Negligence

Negligence is essentially the failure to exercise the due care toward others which a reasonable or prudent person would do in the same circumstances, or taking action which such a reasonable person would not. Negligence is accidental as opposed to "intentional torts" (assault or trespass, for example) or from crimes, but some crimes can also constitute negligence, such as reckless driving. Negligence can result in all types of accidents causing physical and/or property damage, but can also include business errors and miscalculations, such as a sloppy land survey. In a personal injury lawsuit, under the legal concept of "negligence," a person can be held legally liable for any damages they cause through their careless (or "negligent") behavior.

The law of negligence requires that persons conduct themselves in a manner that conforms with certain standards of conduct. Where a person's actions violate those standards, the law requires the person to compensate someone who is injured as a result. In some instances, the law of negligence also covers a person's omission to act.

Negligence generally consists of five elements, including the following: (1) a duty of care owed by the defendant to the plaintiff; (2) a breach of that duty; (3) an actual causal connection between the defendant's conduct and the resulting harm; (4) proximate cause, which relates to whether the harm was foreseeable; and (5) damages resulting from the defendant's conduct.

In some instances, a statute or other law may define specific duties, such as the duty of a person to rescue another. Professionals, such as doctors and lawyers, are also required to uphold a standard of care expected in their profession. When a professional fails to uphold such a standard of care, the professional may be liable for malpractice, which is based on the law of negligence

Proving Fault: What is Negligence? In most claims that arise from accidents or injuries -- from car accidents to ìslip and fallî cases -- the basis for holding a person or company legally responsible for any resulting harm comes from a theory called negligence.

Generally speaking, when someone acts in a careless way and causes an injury to another person, under the legal principle of negligence the careless person will be legally liable for any resulting harm. This basis for assessing and determining fault is utilized in most disputes involving an accident or injury, during informal settlement talks and up through a trial in a personal injury lawsuit.

Specifically, in negligence claims the plaintiff (the person injured) tries to show that the defendant (the person supposedly at fault): … Owed a legal duty of care to the plaintiff under the circumstances; and … Failed to fulfill ("breached") that legal duty through conduct or action (this can include a failure to act); and … Caused an accident or injury involving the plaintiff; and … Harmed or injured the plaintiff as a result.

Proof in a Negligence Case. A negligence case is usually proven through one of two types of evidence: direct and circumstantial. Evidence derived from the personal knowledge of a witness or from images in a photograph or video constitutes direct evidence. Circumstantial evidence, by comparison, requires a fact-finder to draw an inference based on the evidence that has been produced. Courts have formulated special rules that govern proof in specific instances. In a slip-and-fall case, where a plaintiff's injury occurs when the plaintiff slips and falls due to a condition on the defendant's property, courts require the plaintiff to prove that the condition existed for such a length of time that the defendant should have discovered and remedied the condition. Thus, a plaintiff who sues a supermarket when she slips on spilled liquid laundry soap could not recover from the supermarket without showing that the liquid had been on the floor long enough for the supermarket to have discovered it. Evidence that the soap was smeared across the floor due to the number of customers walking on the liquid may be sufficient proof in this type of case.

A plaintiff in some instances may rely on the doctrine of res ipsa loquitur, which is Latin for "the thing speaks for itself." This doctrine allows a jury to infer that a defendant acted negligently, even without other proof of misconduct. In order for this doctrine to apply, the plaintiff must prove that the event that occurred usually does not happen in the absence of negligence and that the defendant had exclusive control of the instrument that caused injury. For example, the child who was injured by the bag of grain on a public sidewalk may not have any direct or circumstantial proof that the defendant was negligent in handling the bag. However, a bag of grain typically does not fly onto a public sidewalk in the absence of negligence, and the defendant had exclusive control over the bag at the time of the accident. In this instance, the jury may infer negligence on the part of the defendant by employing res ipsa loquitur.

Who Might be Responsible for Negligence? In some legal disputes that arise after an accident or injury, the concept of negligence may extend to people or entities that were not directly involved in what took place. For example, using a car accident scenario, suppose the incident occurred at 9:30 a.m. on a weekday and that Richard, an employee of United Office Supply, was driving a company van while making a delivery to a local office building. Under a theory of negligence called "vicarious liability", not only will Richard be found at fault for causing the accident with Don, but as Richard's employer United Office Supply also could be held legally responsible for Richard's negligence in causing the car accident. This is because United is accountable for any carelessness on Richard's part that might occur in the normal course of his employment duties, including the manner in which he drives while making deliveries for the company.

For practical purposes, in personal injury cases vicarious liability is often used to make certain that an injured person can recover his or her damages from the most financially secure and adequately insured party. In the above example, that party is more likely to be United than Richard.

Keep in mind that the concept of negligence is not limited to the action (or inaction) of an individual. Small businesses, partnerships, organizations, and large corporations may all be held legally responsible in situations where they failed to properly ensure the safety of others. This is especially true in personal injury cases that stem from defective and dangerous products (against product manufacturers, distributors, and sellers) and in "slip and fall" cases (against commercial businesses and corporate property owners).

Negligence: Not in Every Accident or Injury Case. While the concept of negligence applies to most types of personal injury cases, certain kinds of injury claims will use a different rule of fault called "strict liability." If you are injured by a defective product, or through certain inherently dangerous activities like the shipping of toxic chemicals or the keeping of a dangerous animal, your case will likely proceed under this legal theory. While the rules are different from those in negligence cases, the good news is that when compared to negligence claims, a plaintiff in a "strict liability" personal injury case does not ordinarily need to show that the defendant was at fault -- only that the product or activity was unreasonably dangerous, and plaintiff's injuries were the result.

Negligence Matters that We Can Assist. NationWide Law Group can assist individuals involved in a wide variety of negligence matters, including those relating to Car and Truck Accidents, Motorcycle Accidents, Boating Accidents, Animal and Dog Bites, Birth Injuries, Brain Injuries, Construction Worker Accidents, Defective and Dangerous Products, Defective Medical Devices, Defective Pharmaceuticals/Drugs, Lead Poisoning, Medical Malpractice, Mesothelioma and Asbestos, Toxic Mold, Nursing Home Abuse/Patient Neglect, Pedestrian Accidents, Child Injuries, Toy Recalls, Railroad Worker Injuries, Slip and Fall Accidents, Food Poisoning, FDA Recalls, and Wrongful Death. Call us for a free consultation us at 551-427-6047.

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Standards of Care and the "Reasonable Person". The standard of care required in negligence law typically relates to a person's conduct, rather than a person's state of mind. In most instances, a defendant is required to exercise the same "ordinary care" or "due care" that a reasonable person would exercise in the same or similar circumstances. Negligence cases often focus on the reasonableness requirement.

Reasonable Person. The so-called reasonable person in the law of negligence is a creation of legal fiction. Such a "person" is really an ideal, focusing on how a typical person, with ordinary prudence, would act in certain circumstances. The test as to whether a person has acted as a reasonable person is an objective one, and so it does not take into account the specific abilities of a defendant. Thus, even a person who has low intelligence or is chronically careless is held to the same standard as a more careful person or a person of higher intelligence. A jury generally decides whether a defendant has acted as a reasonable person would have acted. In making this decision, the jury generally considers the defendant's conduct in light of what the defendant actually knows, has experienced, or has perceived.

For example, one may consider a defendant working on a loading dock and tossing large bags of grain onto a truck. In the process of doing this, the defendant notices two children playing near the truck. The defendant throws a bag towards the truck and unintentionally strikes one of the children. In this instance, a jury would take into account the defendant's actual knowledge that children were playing in the area when the jury determines whether the defendant acted reasonably under the circumstances. One must note, however, that the defendant would be liable for negligence only if the defendant owed a duty to the child. In addition to the defendant's actual knowledge, a jury also considers knowledge that should be common to everyone in a particular community. Accordingly, the defendant in the example above would be charged with knowing that a bag of grain could injure a child, as well as with knowing the natural propensities of children.

Standards of Care for Children. A child generally is not expected to act as a reasonable adult would act. Instead, courts hold children to a modified standard. Under this standard, a child's actions are compared with the conduct of other children of the same age, experience, and intelligence. Courts in some jurisdictions, however, apply the adult standard of care to children who engage in certain adult activities, such as snowmobiling.

Elements of a Negligence Case.

1. Duty. The outcomes of some negligence cases depend on whether the defendant owed a duty to the plaintiff. Such a duty arises when the law recognizes a relationship between the defendant and the plaintiff, and due to this relationship, the defendant is obligated to act in a certain manner toward the plaintiff. A judge, rather than a jury, ordinarily determines whether a defendant owed a duty of care to a plaintiff. Where a reasonable person would find that a duty exists under a particular set of circumstances, the court will generally find that such a duty exists.

In the example involving the defendant loading bags of grain onto a truck, and striking a child with one of the bags, the first question that must be resolved is whether the defendant owed a duty to the child. In other words, a court would need to decide whether the defendant and the child had a relationship such that the defendant was required to exercise reasonable care in handling the bags of grain near the child. If the loading dock were near a public place, such a public sidewalk, and the child was merely passing by, then the court may be more likely to find that the defendant owed a duty to the child. On the other hand, if the child were trespassing on private property and the defendant did not know that the child was present at the time of the accident, then the court would be less likely to find that the defendant owed a duty.

2. Breach of Duty. A defendant is liable for negligence when the defendant breaches the duty that the defendant owes to the plaintiff. A defendant breaches such a duty by failing to exercise reasonable care in fulfilling the duty. Unlike the question of whether a duty exists, the issue of whether a defendant breached a duty of care is decided by a jury as a question of fact. Thus, in the example above, a jury would decide whether the defendant exercised reasonable care in handling the bags of grain near the child.

3. Cause in Fact Under the traditional rules in negligence cases, a plaintiff must prove that the defendant's actions actually caused the plaintiff's injury. This is often referred to as "but-for" causation. In other words, but for the defendant's actions, the plaintiff's injury would not have occurred. The child injured by the defendant who tossed a bag of grain onto a truck could prove this element by showing that but for the defendant's negligent act of tossing the grain, the child would not have suffered harm.

4. Proximate Cause. Proximate cause relates to the scope of a defendant's responsibility in a negligence case. A defendant in a negligence case is only responsible for those harms that the defendant could have foreseen through his or her actions. If a defendant has caused damages that are outside of the scope of the risks that the defendant could have foreseen, then the plaintiff cannot prove that the defendant's actions were the proximate cause of the plaintiff's damages. In the example described above, the child injured by the bag of grain would prove proximate cause by showing that the defendant could have foreseen the harm that would have resulted from the bag striking the child. Conversely, if the harm is something more remote to the defendant's act, then the plaintiff will be less likely to prove this element.

Assume that when the child is struck with the bag of grain, the child's bicycle on which he was riding is damaged. Three days later, the child and his father drive to a shop to have the bicycle fixed. On their way to the shop, the father and son are struck by another car. Although the harm to the child and the damage to the bicycle may be within the scope of the harm that the defendant risked by his actions, the defendant probably could not have foreseen that the father and son would be injured three days later on their way to having the bicycle repaired. Hence, the father and son could not prove proximate causation.

5. Damages. A plaintiff in a negligence case must prove a legally recognized harm, usually in the form of physical injury to a person or to property. It is not enough that the defendant failed to exercise reasonable care. The failure to exercise reasonable care must result in actual damages to a person to whom the defendant owed a duty of care.

Getting Legal. If you or a loved one has suffered a personal injury matter caused by the negligence of another individual, company or entity, you may be entitled to bring a legal action against those responsible. Especially in light of time deadlines for filing such a lawsuit, you should contact an experienced personal injury attorney as soon as possible, to discuss your legal rights and your potential case. NationWide Law Group would be honored to assist you.

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