Understanding Negligence in Personal Injury Lawsuits

By September 28, 2010 Personal Injury

Most people have heard the term “negligence” before. The most basic definition for the term negligence is “fault” or “blame”. While these explanations are adequate for a simple and quick explanation, negligence is actually much more complicated and complex. Negligence is the basis of the majority of tort claims in the United States. A tort claim is a claim for injury. The United states also recognizes intentional torts and strict liability torts but the vast majority of tort claims fall under the purview of negligent torts.

The definition of negligence has evolved over the years and continues to evolve today. Some scholars content that negligence in its most basic form only requires three elements ( conduct, causation and damages) while another minority claims that negligence actually requires five elements (duty, breach of duty, actual cause, proximate cause and damages). The majority of scholars and courts, however, require four elements in order to prove negligence: duty, breach of duty, causation and damages.

Duty is the first, and most important elements when attempting to prove a negligence case. Basically the defendant must have owed a duty of care to the plaintiff. In some situations, duty is easy to prove. For instance, most courts have held that the operator of a vehicle on a public road always owes a duty of care to the other drivers. Therefore, in a personal injury car accident lawsuit the duty of care is clear. In other personal injury cases the duty of care is not as clear. For instance, what is the duty of care owed to a trespasser on your own property? What is the duty of care owed to an employee? These situations are not as black and white and often require an experienced attorney to argue that there was, indeed, a duty owed to the plaintiff.

The second element – breach of duty – has also been the subject of much debate over the years. Most courts explain the duty of care as a “failing to use reasonable care that an ordinary person would use under the circumstances”. As you can see, this leaves much room for debate. What is “reasonable care” ? Who is an “ordinary person”? A good example of the difficulty in deciding whether there has been a breach of the duty of care involves a swimming pool drowning. If a plaintiff installs a swimming pool on her own property, posts no trespassing signs and even puts a fence around the property but a small child manages to open the gate and ultimately drown in the pool has the plaintiff breached her duty of care? Swimming pool drowning s have been the subject of much debate over the duty of care element. The bottom line, however, is that to prevail in a personal injury lawsuit the plaintiff must prove that the defendant did breach his duty of care to the plaintiff.

Causation is the next element that must be proven in a personal injury lawsuit. As it sounds, causation requires the plaintiff to show that the breach of duty of care made by the defendant actually caused the plaintiff’s injuries. This may sound obvious and simple, but it is not always as straight forward as it appears. Imagine that an employer fails to use proper safety equipment in the workplace – clearly a breach of the duty of care. The plaintiff, however receives injuries as a result of asbestos. The asbestos exposure is not a result of the failure to use proper safety equipment and therefore the breach of duty is not the cause of the injuries. It may be that the defendant breached another duty of care by exposing the plaintiff to the asbestos, but the breach for failing to use proper equipment is not the cause of the injuries.

Last, the plaintiff must prove damages. In most states, the plaintiff must prove actual or economic damages before she can receive compensation for special or non-economic damages. What this means is that she must first prove that she received some type of physical injury as a rule before she can ask for pain and suffering type damages. Damages can also include things such as lost wages from missed work or property damage.

If you have any questions regarding negligence or California personal injury law, please contact the personal injury law firm of Ledger & Associates at 1-800-300-0001 or www.ledgerlaw.com.