More negligence claims are tried in the
civil courts than criminal courts and the negligence claims need
to be proven by a "preponderance of the evidence" instead
of "beyond a reasonable doubt" (the standard for criminal
Arising out of common law, the idea of
negligence today is incorporated into many statutes and codes.
Ahead of intentional
torts, negligence claims make up, by far, the most personal
injury cases in the United States today.
In order to claim negligence in a personal injury case, the plaintiff
has to prove 4 standard points:
1. A duty of care was owed to the plaintiff by the defendant
2. The defendant breached the duty of care
3. The defendant suffered a loss, damage or injury
4. The injury was caused by the breach and damages need to be
Duty of Care
In any negligence claim, duty of care must first be proven. The
plaintiff must establish that they and the defendant had a relationship
and that the defendant owed them a duty of care. Such a
relationship can be a doctor / patient relationship, attorney
/ client relationship or even a manufacturer / consumer relationship
where a "prudent and reasonable person" or provider
of goods and services could foresee risk of injury to the consumer
of the goods and services.
For instance, a prudent and reasonable physician who prescribes
the wrong medication to a pregnant woman would foresee risk of
injury to the woman and her fetus. Or a tire manufacturer, that
has internal documentation of testing that shows tread separation
may foresee blowouts of the tire causing harm to drivers and passengers
and other people and property in the vicinity of the vehicle.
In claims such as these, a duty is owed to the consumer that no
harm will come to them by the provider.
Breach of Duty of Care
Once the duty of care from defendant to plaintiff has been established,
then a breach of that duty has to be proven. In negligence claims,
a breach of duty can happen in two ways. First, if the defendant
knew they were putting the plaintiff at risk for injury or damage
and failed to take action to rectify the situation, then a breach
has occurred. Second, if the defendant did not realize they were
putting someone else at risk, but a "reasonable and prudent"
person would have realized this, then this is also a breach of
Damage Has Occurred
If a person or company who has a duty of care acts in a way that
breaches that duty, but no damage has occurred, then a negligence
claim will not proceed. The term "no harm, no foul"
may be applied to a case such as this. For instance, a if company
knew that the coffee it was serving was hotter than specifications
and could cause serious burns if spilled upon a person, continued
to do so and an incident occurred where coffee was spilled and
someone was startled by the heat, but no physical burns or other
damage occurred, then no harm, no foul would apply. If, however,
tangible burns were suffered and needed to be medically treated
or the extraordinarily hot coffee startled someone causing them
to slip, fall and break a leg, then a negligence claim would be
able to go forward.
Damage Was Caused by the Breach
If the plaintiff can show in the negligence claim that a direct
correlation existed between the breach of duty and the injury
or damage, then the plaintiff will likely be compensated for the
damages. In the faulty tire example again, if the design or manufacturing
flaw in the tire, can be shown to have caused a blowout of the
tire, which in turn caused the vehicle to rollover, then monetary
damages will likely be granted to the victims for medical expenses
and items such a pain and suffering.
For the defendant to be held liable it must be shown that their
acts or omissions caused the damage or injury. In negligence claims,
there are two types of casual relationships: cause in fact and
proximate cause. In cause in fact cases, it must be shown that
the injury or damage would not have occurred "but for"
the actions or omissions of the defendant. In proximate cause
claims, it must be shown that the accident would have been foreseen
by a reasonable and prudent person. Sometimes expert testimony
is brought in to say that as a reasonable and prudent person,
they would have taken this or that course of action.
If the infraction by the defendant is seen to be egregious by
the jury, then in some jurisdictions, they may also award punitive
damages in order to discourage others from similar kinds of
negligence. Sometimes this behavior is called gross negligence.
In assigning damages to personal injury victims, most states have
adopted the idea of comparative negligence. For instance, if the
plaintiff is said by the jury to be 20-percent at fault for the
incident, then the monetary award would be reduced by that percentage.
In the hot coffee example, suppose a jury said the person handling
the hot coffee was 50-percent responsible for the accident, then
the award would be reduced by that percentage. Not too long ago
in some states the plaintiff could not be over 50-percent responsible
for an accident, otherwise they would be awarded nothing, even
if the jury came back and said they were 51-perent responsible
and the defendant was 49-percent responsible. Comparative negligence
is used in 46 states, but in still four U. S. states, the plaintiff
cannot even be 1-percent negligent, otherwise they get nothing.
Many see these statutes as outlandish and medieval.
In some negligence claims, the plaintiff will lose because they
are seen by the jury to have assumed the risk, either explicitly
or implicitly for the accident. For instance, fans at a ballpark
are seen to assume the risk of being hit by an errant baseball
or bat when sitting in the stands. This is a foreseeable event
where there is risk of injury and the plaintiff was willing to
accept that risk. Another kind of case where the plaintiff may
lose is if they were involved in wrongdoing at the time of the
injury. If the plaintiff was robbing a bank and a patron used
reasonable force to subdue the criminal also causing injury, then
it is unlikely any damages will be awarded.
These are the basics of negligence claims. The legal concept
of negligence is considered a tort
and varies from one state to the next. If you have been injured
due to someone else's negligence, it is important to consult with
a personal injury attorney for the specifics
regarding negligence claims in your particular state and jurisdiction.
When dealing with large negligence claims it is imperative to
exercise patience since they may last for years and when a jury
finally comes back with the award, it may vary widely from what
one thinks is "reasonable." Also, in some jurisdictions,
judges may overturn a jury's award if it is deemed inappropriately
high. In other cases, awards may be nullified or changed upon
appeal. This is probably why ninety-five percent of negligence
claims are settled before going to court. Even after the jury
pronounces its award, it could be years before the plaintiff sees
any money, so many personal injury cases are even settled after
trial, during the appeal process.
For more information on our blog see Negligence