Negligence is the failure to exercise an ordinary standard of care. It is either taking an action carelessly, or failing to take an action that should have been taken. Somebody is negligent when he or she:
- Owes another person a duty
- Breaches that duty
- The breach of duty causes an injury; and
- The injured person suffers damages.
Recovering compensation begins with bringing a personal injury lawsuit against the party whose negligence caused the injury. This person becomes the defendant in the lawsuit, and the injured person is the plaintiff. It is up to the plaintiff to prove each of the aforementioned four elements. By successfully proving each of the four elements, plaintiffs can be compensated for their injuries and losses.
Negligence requires a showing that the defendant owed a duty of care to the plaintiff. Courts use a “reasonable person” standard to determine whether this duty of care existed. This standard holds that a defendant’s duty of care extends to preventing injury that a reasonable person in like circumstances could have foreseen. The duty of care is sometimes readily apparent, and plaintiffs can quickly move on to proving the remaining three elements of negligence. However, the reasonable person standard is inherently vague, and whether a duty of care was present is not always obvious. Courts are always left to examine specific facts of the case when determining whether the defendant owed the plaintiff a duty of care.
Breach of Duty
The next step for a plaintiff in a personal injury lawsuit is proving that the defendant breached his or her duty of care. Defendants can breach their duty of care intentionally or unintentionally. Courts apply the reasonable person standard with this element as well. This element is satisfied so long as a reasonable person would have known that the defendant’s action or lack of action was sufficient to constitute a breach. The reasonable person obeys traffic laws, looks both ways before crossing the street, and is prudent in all aspects of life.
Just like the duty element of negligence, a breach of duty can be readily apparent.
Defendants who clearly breach their duty of care are not liable to plaintiffs unless the breach of duty directly caused the plaintiff’s injury. Proximate cause is used to determine whether a plaintiff’s injury can rightly be attributed to a defendant’s breach of duty. Under the theory of proximate cause, defendants can only be liable for injuries they could have reasonably foreseen resulting from their actions. For instance, failing to post a No Diving sign in a shallow pool could be the proximate cause of a diving injury, but probably not of the heart attack that the diver’s grandfather had when hearing of the injury.
A plaintiff’s personal injury claim will not succeed where the defendant’s breach caused the injury unless he or she suffered actual damages. In other words, plaintiffs cannot be compensated for their injury unless there is something to be compensated for. This element is only satisfied if the plaintiff suffers injury to his or her person or property.
Recovering compensation in a personal injury lawsuit
Plaintiffs bring personal injury lawsuits with the objective of recovering compensation. After establishing liability, the law of damages aims to situate a plaintiff in the same position he or she would have been in had the accident not occurred. Damages compensate plaintiffs for monetary losses as well as pain and suffering. Additionally, damages are sometimes punitive in nature, so as to discourage defendants from future misconduct. Damages can compensate plaintiffs for the following harms:
- Past and future medical expenses
- Lost wages
- Pain and suffering
- Disability and disfigurement
- Loss of consortium
- Mental suffering
- Additional costs stemming from the injury
on your side?
Level the playing field by letting me
fight your injury case for you!
Don't get taken advantage of.
I don't get one dollar until you are compensated.