Most (but not all) personal injury lawsuits are based on negligence. Although “carelessness” is often used as a layman’s synonym for negligence, the legal concept itself is considerably more nuanced. An understanding of the concept of negligence will help you evaluate the validity of a potential personal injury claim.
Negligence is established when four elements are proven:
- duty of care
- breach of duty
Duty of Care
For negligence to occur, the defendant must have had a legal duty of care with respect to the plaintiff (the person asserting the claim). Every motorist, for example, has the duty to pedestrians and other motorists to drive with reasonable care (by refraining from texting and driving, for example). Indeed, every mentally competent adult has the duty to conduct all of his activities with reasonable care not to injure someone else. In some cases, however, the duty of care is enhanced – a heart surgeon, for example, is held to a very high duty of care because of his professional training and experience.
Breach of Duty
To be held liable for negligence, the defendant must have breached his duty of care. This is often a matter of interpretation – did the owner of a vicious dog, for example, breach his duty of care by chaining the dog in his front yard without erecting a “Beware of Dog” sign to deter a visitor who might try to pet it? Did a doctor breach his professional duty of care by taking the patient’s word for it that he had no drug allergies?
Even if the plaintiff establishes that the defendant breached a duty of care, liability will not be established unless the plaintiff proves that this breach of duty actually caused the personal injury. Suppose, for example, that a motorist is sued for hitting a pedestrian, and the pedestrian proves that the motorist was legally intoxicated at the time of the accident. The pedestrian would still lose his case if the motorist proves that the pedestrian darted out into the street chasing a basketball, and that the accident would have occurred (and would have been equally serious) even if the motorist had been sober.
Some kinds of legal claims, such as copyright infringement, do not necessarily require the plaintiff to prove the amount of his damages. A personal injury lawsuit based on negligence, however, does require proof of damages. This proof could come in the form of medical records, the testimony of a doctor, an employer affidavit (for lost earnings) or other evidence. Once economic damages and physical injury are established, a plaintiff might also be able to claim non-economic damages, such as pain and suffering, in an amount that far exceeds the amount of economic damages. Punitive damages might even be possible.
Most states apply some sort of comparative negligence or comparative fault principle, in which the victim’s damages can be reduced or eliminated if he shared fault for the accident with the defendant.
Negligence law can be quite nuanced when applied to the unique facts of a particular claim. If you need to know whether or not you have a viable negligence claim (or whether a negligence claim against you is viable), consult with a qualified personal injury attorney.