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Negligence Claims

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 cases).

 

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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 awarded

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 care.

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.

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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.

 

Extra

For more information on our blog see Negligence


 

 

 

 

 

 

 


 

 


 

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