The 4 Elements of Negligence
October 1, 2018 | Personal Injury
When you have an insurance claim, and it finally escalates to court, there are four elements that determine negligence. Proving negligence is your priority, after all, and the goal of your personal injury lawyer. You should hire a lawyer at this point in the process if you haven’t already since the insurer denied your claim or offered a much lower settlement than you deserve.
Claims attorneys know how courts operate, give your claim solid footing, and can help you recover the maximum amount of compensation. Below, we’re going to discuss and provide a few examples of the four distinct things they need to show and prove in order to win the dispute.
1. Determining a Reasonable Duty of Care
Society has laws in place to encourage people to act responsibly. “Duty of Care” is the reasonable and responsible moral/legal contract between a victim and the negligent party. Put simply, the entity responsible for your alleged injury is legally obligated to act in a decent or certain way.
- Scenario 1: A restaurant owner has a duty to make sure his patrons are safe on the premises. If there’s a stairway, for example, regular inspections and actively repairing and warning customers about danger is the owner’s duty of care.
- Scenario 2: A product manufacturer has an inherent duty of care to make sure their products aren’t unreasonable dangerous. If a product is dangerous, there should be warning labels and other measures put in place.
The next step in proving negligence is deciding exactly if and how the negligent party “breached” their duty of care. For example, a commercial truck driver knows he is supposed to slow to a stop a particular distance from red light (duty of care) but slams into a car or someone crossing the street. The failure to act responsibly is the breach. Another example would be wrongful amputation by a surgeon.
Causation is where things get interesting. “Causation” is proving that the person who breached the duty of care was actually responsible (or partially responsible) for causing your injuries. The breach needs to be at least proximately-related to the incident. Here are a few examples:
- A child is hit by a car moving an unreasonable speed through a parking lot. The child is severely injured because of the negligent driver’s breach of duty. The child wouldn’t have broken a collarbone and suffered other injuries if the driver was being responsible.
- It’s winter, and the owner of an antique store with an outside area fails to salt or chip away or warn that there are several patches of ice. An elderly customer slips on the ice, and it’s reasonable to believe the customer slipped because the owner failed to act responsibly.
If you stub your toe on a shopping mall’s escalator, the odds are that was your fault and not worth a lawsuit. However, if a negligent driver sideswipes a motorcyclist, causing the victim to get several thousands of dollars in medical treatment, there are physical and emotional “damages.” Damages are synonymous with monetary compensation.
Damages are calculated differently in each state based on laws, monetary caps, and precedents. Certainly lost limbs are worth certain amounts. Morbid, but that’s how insurance claims work. It’s important to keep track of all of the financial stressors that came as a result of your injury so you can get the most compensation possible.
You may be wondering how much your injury is worth and the types of damages you can claim. Here are the most common types of damages paid in personal injury claims:
- Lost Wages
- Medical Expenses
- Future Rehabilitation
- Emotional Distress
- Pain and Suffering
- Loss of Companionship
- Wrongful Death
Some states also allow you to claim punitive damages, or when the court “fines” the defendant.
If you want to learn more about personal injury law and reimbursement, continue going through this FAQ. As always, you can contact the Dixon Injury Firm today for a free case review and more information.