Negligence

In personal injury law, the term negligence refers to a legal claim that alleges that you were injured as the result of another person’s carelessness or failure to exercise ordinary care.  When you bring and prevail on a negligence claim, you may be entitled to various forms of compensation.  In personal injury law, your various claims for compensation are referred to as your claims for “damages.”  The types of damages available in personal injury claims include payment for medical bills, lost wages, loss of future earning capacity, pain and suffering, and loss of companionship (in death cases), among other forms of damages.

How Your Lawyer Will Prove and Win Your Negligence Claim 

In order to win your negligence claim, and obtain one or more of the types of damages available to you as an injured victim, your personal injury lawyer will have to prove four things: (1) duty; (2) breach; (3) causation; and (4) damages. More specifically, your attorney will have to prove the following:

  •        1.  Duty.  The person who injured owed a legal duty to avoid causing harm to you.
  •        2.  Breach.  The person breached their legal duty to exercise ordinary care.
  •        3.  Causation.  The person’s breach of their legal duty was the direct cause of the accident or incident that led to your injuries.
  •        4.  Damages.  You suffered have damages as a result of the accident or incident.

Duty

The existence of a duty is established in almost all cases.  All people have a duty to act as reasonably prudent people and exercise ordinary care in order to avoid harming or causing injury to others.  The reasonably prudent person’s standard is a strict standard, and requires that people use the utmost care and caution to avoid harming others.  In some cases, a person may be held to an even higher standard of duty.  For example, in medical malpractice cases (negligence by a health care provider), a surgeon operating on someone will be held to the standard of a reasonably prudent surgeon, which means they must possess the knowledge, skills, and competence of a surgeon operating under similar circumstances.

Breach

Breach of a duty occurs when a person failed to abide by their legal standard of duty, for example, the duty to exercise ordinary care.  For example, if a driver is going over the speed limit, the driver clearly is not acting as a reasonably prudent person in that they are not exercising the utmost care and caution to avoid harming others.  For this reason, in car accident cases, one of the first things that your car accident lawyer will do is examine the police report to see if the other driver was speeding.

Causation

The next issue is causation.   In order to prove negligence, you must show that the person’s breach of their duty, that is, their failure to exercise ordinary care, was the direct cause of your injuries.  In a car accident case, another person may have been speeding, but you may have suddenly turned into their lane without looking before you changed lanes.  In some states, you would be prohibited from bringing a negligence claim.  California is different. 

California personal injury law follows a rule called comparative fault.  Under the rule of comparative fault, even if you were at fault, you can still bring a claim for your injuries, however your damages will be reduced by the percentage of fault that is attributed to your own negligence conduct.

Damages

Finally, in order to bring and win a claim for negligence you must prove that you have suffered damages.  This means that you suffered some type of harm or injury as the result of the accident or incident.  In most personal injury cases, damages include medical bills, pain and suffering, lost wages, and loss of future earning capacity.

Establishing Duty and Breach By Negligence Per Se

Under a rule known as Negligence Per Se, both duty and breach can be automatically established by the breaking of a law.  For example, in dog attack cases that do not involve a bite and therefore do not implicate the rule of strict liability under the California dog bite law, if the owner of the dog did not have a leash on the dog, duty and breach can be automatically established through the rule of Negligence Per Se based on a violation of the dog leash law.  For this reason, in dog bite cases, one of the first things that your dog bite lawyer will do is determine whether the dog who attacked you was wearing a leash at the time and if the dog was in a public place or other location where a leash was required.

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