A Guide to Negligence

Accidents happen all the time and it would be rare to go through life without slipping or tripping over, being involved in a car crash or some other kind of accident.

If the accident was your fault, then there is no-one else to blame, but more often than not, someone else’s negligent actions are to blame. If you can prove that someone else was at fault, you may have good grounds to sue for negligence. This can help to pay for medical treatment, replace lost income and compensate for the pain and suffering due to an injury.

The Elements of Negligence

Negligence in a legal sense can be described as behavior involving a lack of care. When an accident shouldn’t have happened if more care had taken place, then this would be considered as an example of negligence. In a personal injury claim, negligence must be proven through evidence that the following 4 elements were present:

  • there was a duty of care;
  • there was a breach of that duty of care;
  • there was causation, i.e. an injury was caused by the breach of duty of care;
  • there were damages directly attributable to the negligence.

Duty of care means that one party involved in the accident had an obligation to ensure that their actions did not endanger anyone else. Duty of care depends on the situation. For example, a supermarket has duty of care for customers and its own staff when it is open.

However, the supermarket has no duty of care for anyone who is not authorized to use the supermarket. Vehicle drivers have a duty of care to other road users and their own passengers when they drive on a public highway. They are expected to drive safely to avoid accidents.

Breach of duty of care occurs when the party who has a duty of care breaches that duty and their lack of proper care causes an accident. An example of a breach of duty of care in a supermarket scenario is when the management or staff member in the supermarket fails to keep the floor surface clean and tidy, allowing the surface to be too slippery.

In the case of vehicle use, a driver who is speeding, distracted because they are illegally using their cell phone while driving, not stopping at a red light or driving under the influence could be said to have breached their duty of care to other road users.

Causation means that the breach of duty of care gave rise to an accident. This is a particularly important element in any personal injury claim. For example, a driver may have been speeding and therefore breaching their duty of care to other road users, but if that driver was involved in an accident, it doesn’t mean that the driver caused the accident because of their speed.

The accident may have been caused by another driver who failed to indicate when merging or turning or ran a red light at an intersection. In many cases like this, an investigation may show that both drivers were at fault to some extent, i.e. their combined negligence caused the accident.

The issue of more than one party determined to be at fault has given rise to different state rules for awarding compensation. In a contributory negligence state like Alabama, Maryland or Virginia, any degree of negligence by the plaintiff will negate their claim for compensation, even if their share of negligence was only a few percent.

In a comparative negligence state where both parties share some degree of fault, then the compensation is divided on a percentage basis (pure comparative negligence) or denied to a plaintiff only when their share of fault is 50% or more (modified comparative negligence).

California is a pure comparative negligence state, while Mississippi is a comparative negligence state.
Damages may be claimed if there has been an injury or property damage caused by a breach of duty of care, in other words directly caused by someone’s negligence.

In the supermarket scenario mentioned above, if a customer slips over and breaks their leg on a slippery floor which should have been kept clean, then damages can be claimed if the accident victim chooses to pursue a personal injury claim against the supermarket owner or management.

A Guide to Negligence

How to Prove Negligence

To prove negligence after an accident, you must be able to show that all four elements as described above were present.
In the case of an auto accident, for example, as long as the accident happened on a public highway, then all drivers have duty of care.

A breach of that duty of care, such as speeding or drunk driving may be established with the help of surveillance cameras, eye witness reports or a DUI test carried out by a police officer. The negligent behavior must then be linked to the accident, i.e. because the other driver was drunk, or driving while using a cell phone, he/she crashed into your vehicle.

Again, there must be evidence such as video footage, witnesses, crash investigation which shows this. Lastly, damages in the form of medical treatment costs, lost wages etc. must be claimed due to an injury caused by the other driver’s negligence.

In a slip and fall accident, you must be able to show that:

  • you were permitted to be in the place where the accident took place such as a shopping mall or fast food outlet;
  • there was a hazard that shouldn’t have been left in place, such as spilled liquid or grease;
  • you slipped over on the unexpected hazard;
  • you suffered an injury caused by the accident and are claiming damages.

Calculating Pain and Suffering

You may be able to claim compensation for the pain and suffering experienced as a result of an injury. Different states have different rules about pain and suffering claims, which typically are often more difficult to determine because they are dependent on more subjective criteria than, for example, the cost of medical treatment or lost wages.

Most states allow pain and suffering claims but may put a cap on them. An attorney may use a formula to calculate how much pain and suffering compensation can be claimed such as a percentage of the total economic damages, or use similar previous awards as a basis for the claim.

How an Attorney Can Help You Prove Negligence

An attorney may be able to help you prove that your personal injury claim is justified because it was caused by negligence. The attorney will ensure that all four elements of negligence are demonstrated in the claim. Fill out a free case evaluation to receive the compensation you deserve.

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