Negligence
The personal injury claims discussed on our page are for the most part based in
negligence law. "Negligence" is a legal concept involving the following key elements:
1) the defendant owed the plaintiff a duty of care, 2) the defendant breached that duty,
3) this breach causes, 4) damage to the plaintiff. While this seems to be straightforward,
there is a lot involved in each of these elements. This article briefly discusses each element;
you should consult with a personal injury attorney if you have any questions about how these
apply to your case.
We all owe each other a duty of care to act reasonably; this is the law's way of
making sure that each member of our society is held responsible to act like another
similar person would. Thus, a 12 year old child is expected to act like other 12 year
old children, an adult is expected to act like a reasonable adult, etc.
Reasonableness is obviously an uncertain standard. The judge or jury must decide
if the defendant acted prudently and appropriately enough that our society doesn't want
to hold him or her responsible for whatever happened to the plaintiff. For example, you
owe a duty of care to someone not to put them at risk of injury by pulling a chair out
from underneath them as they sit down. A reasonable person understands that a personal
injury could result from such action. You do not owe a duty of care to warn someone that
another person has pulled the chair out from underneath them; a reasonable person cannot
be expected to be constantly monitoring dangers to others and warning them. This is a
very basic example of a breach of duty of care; duty of care is a complicated principle
and you should rely on your personal injury attorney to inform you as to what parties
owed you a duty of care when you are considering litigation.
Whether a duty of care has been breached is decided on a case by case basis, but
there are many instances in which you can assume that the defendant breached a duty of
care owed to you. For example, in a car accident case, a peronal injury lawyer should be
able to successfully argue that the defendant owes each other driver on the road a duty
of care not to rear end the plaintiff's car. In a medical malpractice case, a doctor has
a duty of care to reasonably diagnose and treat patients; if you walk into an emergency
room with a visibly broken arm and the doctor treats your allergies only, you can argue
as a plaintiff that the doctor violated his or her duty of care to diagnose and treat your
broken arm.
Assuming your personal injury attorney has proven that a duty of care existed, and
was breached, the next step is to prove that the breach itself caused your injuries. This
may sound simple, but this could be hotly contested in your personal injury case.
Referring again to the rear end car accident, assume that you were not wearing a seatbelt
at the time of impact. The defendant's lawyer will argue that the injuries you received
in the accident were solely the result of your own negligence (i.e., not wearing a seatbelt)
and that there is no evidence that you would have been injured if you had been wearing
your seatbelt. Your attorney will then have to prove that it was the defendant's negligence
(not your own or another's party) that directly caused your injury.
Different types of damages which can be claimed in a personal injury lawsuit are
discussed on our page in some detail. Again, the important thing to remember is that
your attorney will have to prove each type of claimed damage is the direct result of
the defendant's negligence. If you are going to argue that you lost future earnings as
a medical doctor due to your personal injuries, you won’t succeed on this damages claim
if you haven't even been accepted to study at a medical school. This is an extreme
example, but as your personal injury attorney will tell you, a reasonable damages claim
is an important part of establishing your credibility as a personal injury plaintiff
so that the judge and jury will side with you.