Negligence is the basis for most personal injury claims. In law, negligence is the failure to exercise due care that causes an injury. In most personal injury lawsuits and medical malpractice claims, the plaintiff needs to show the defendant was negligent in causing their injuries.
What is Negligence?
In a personal injury claim, the injury victim generally needs to prove the following 4 elements to find negligence:
- The defendant owed the plaintiff a duty of care;
- The defendant breached the duty of care;
- The breach caused the plaintiff’s injury; and
- The plaintiff suffered harm or damage as a result.
You may owe others a duty of care to others, even if you don’t know who they are. Just about everyone owes others a general duty of care. The duty is to not do anything unreasonable that could put the other person at risk of suffering an injury. The standard for a breach of the duty of care is based on the “reasonable person.” A “reasonable person” is not any actual person but it is an idea for the jury to consider when they determine whether the defendant was negligent. What would a reasonable person do under similar circumstances?
Causation means that the breach of duty was responsible for the damage. Cause-in-fact means that the injury could not have otherwise occurred but for the breach. Causation also generally has to be foreseeable or a proximate cause for the defendant to be found negligent. Finally, to recover damages, the victim has to suffer some kind of loss. Damages can include property damage, personal injury, medical bills, loss of income, and pain and suffering.
Examples of Negligence
There are many examples of negligence you may see in your everyday life, including car accidents, dog bite injuries, or slip and fall accidents. If the accident is minor and does not cause much damage, the injury victim may not bother with trying to recover any damages. However, in a serious accident, the injury victim may be left with thousands of dollars in medical bills, lost wages, and property damage. If the person responsible does not pay for the damages, the victim can file a personal injury claim to recover damages.
Negligence in a Car Accident
Car accidents are some of the most common causes of injuries in the United States. According to the Insurance Institute for Highway Safety (IIHS), more than 36,000 people died in motor vehicle crashes in 2019. Car accidents caused an estimated $242 billion in losses. Most car accidents are caused by operator error. Drivers owe a duty of care to others on the road, to drive as a reasonable person, and obey traffic laws.
Many car accident cases can involve negligence per se. In a car accident, the injury victim may be able to show negligence of the other driver by the fact that they were violating a traffic law that was intended to avoid accidents. For example, traffic laws requiring drivers to stop at a stop sign or red light are intended to protect other drivers, pedestrians, and cyclists. If another driver ran a red light that caused an accident, running the red light may be used as evidence of the driver’s negligence.
Negligence in a Dog Bite Injury
Dogs cannot be held responsible for biting someone but their owners can. Dog owners and other animal owners are responsible for when their animals cause damage. Some states require the injury victim to show that the dog owner was negligent. However, other states have strict liability that creates a presumption of fault after a dog bite.
In Maryland, in a claim against the owner of a dog for damages caused by a dog bite or attack, the evidence that the dog caused the injury creates a rebuttable presumption that the owner knew or should have known that the dog had dangerous propensities.
States like Philadelphia have a “one bite rule” when it comes to dog bite injuries. Injury victims can recover damages from the dog’s owner if the owner knows or should have known the dog had a propensity for violence.
Negligence by a Doctor
When a doctor is negligent and causes injury to a patient, this is also known as medical malpractice. Malpractice is like professional negligence. When a doctor has a duty of care to their patient, deviates from the standard of care, causes an injury, and the patient suffers damages, those are the elements in a medical malpractice lawsuit. There may be differences because of how complex medical malpractice cases can be but medical malpractice is essentially negligence by a doctor.
Negligence by a Property Owner
Property owners owe a special duty of care to others. The duty owed by property owners may be based on the relationship to the visitor. For example, property owners owe a very low duty of care to trespassers but a higher duty to people invited onto the property. Generally, property owners have to fix dangerous features or warn others about hidden dangers. If a property owner is negligent and causes an injury to a visitor or invitee, the property owner may be liable for damages.
Property owner negligence is known as “premises liability.” Many of these claims involve businesses where others are invited onto the property as customers, including grocery stores, restaurants, and apartment buildings. Premises liability claims generally include injuries like:
- Slip and fall accidents
- Stair injuries
- Elevator accidents
- Escalator accidents
- Injuries caused by poor security
- Injuries caused by improper lighting
- Icy sidewalks
- Swimming pool accidents
Negligence by Employers
On-the-job injuries generally fall under workers’ compensation. With workers’ comp, the injured worker does not need to show negligence by the employer. However, as a trade-off, the injury victim has limited recovery options. An injured worker is generally limited to having the employer cover their medical bills related to the injury and partial wage replacement while they are unable to work.
What is Gross Negligence?
Gross negligence is like extreme negligence. This requires a showing beyond simply breaching a duty of care. In gross negligence, the defendant must show a reckless disregard for the safety of others. Gross negligence may not be an issue in most personal injury claims. However, gross negligence may be required to overcome governmental immunity or it may impact damages and allow recovery of punitive damages.
Negligence by Multiple People
In an accident, multiple parties could be at fault. For example, in a multiple vehicle rear-end collision, multiple drivers may have been negligent. One driver may be following too closely, one driver may be distracted by their phone, and one driver may have failed to keep up with brake maintenance, all contributing to an accident.
When multiple defendants are found to be negligent, the jury usually determines a percentage of fault for each party. For example, Driver A may be 60% at fault, Driver B may be 30% at fault, and Driver C may be 10% at fault, all adding up to 100%. This can be complicated for the injury victim because they could try and recover damages from 3 separate defendants. Some defendants may not have enough money to cover their portion of the damages, leaving the victim without full compensation. However, joint and several liability may allow the injury victim to recover full damages from just one defendant.
Joint and several liability is the legal doctrine of allowing the plaintiff to collect damages from each or any single defendant. This can greatly reduce the burden on the plaintiff after suffering a serious injury through no fault of their own. It is then left up to the multiple defendants to try and settle the amounts owed between them through their right to contribution.
Pure Joint and Several Liability
Different states take different approaches to joint and several liability. For example, Maryland follows the doctrine of pure joint and several liability. With pure joint and several liability, the defendants have the burden of dealing with negligent parties who were not identified and defendants without financial resources.
Each defendant is individually responsible for the entire amount of damages, no matter what percentage they were found at fault. In the multiple vehicle rear-end collision example above, Driver C could have to pay for all the plaintiff’s damages even though Driver C was only 10% at fault. Driver C would then have to turn to Drivers A and B to collect their share of the damages.
Modified Joint and Several Liability
The majority of states follow modified joint and several liability. In modified joint and several liability, any one defendant is liable for the full damages only if they are found to be more than a certain percentage at fault. For example, in Illinois, if any defendant is found 25% or more at fault for the damages, the defendant may be liable for all monetary damages. If a defendant is less than 25% responsible, they are liable for all medical damages but only proportionally liable for their share of non-medical damages.
Pure Several Liability
Other states follow pure several liability. In several liability cases, the plaintiff has the burden to collect from each defendant and has to deal with insolvent tortfeasors on their own. Each defendant is only liable for their percentage of the damages but there may be some exceptions depending on the defendant’s level of fault and where the injuries were caused intentionally.
Partial Negligence of the Victim
Even if someone else helped cause the injury, the victim may have played a contributing role. When the plaintiff in a personal injury case was also partially negligent, this is known as contributory negligence. Contributory negligence can limit the amount of damages the injury victim can recover in a civil lawsuit.
Different states take different approaches to contributory negligence. The main 4 different approaches include:
- Pure contributory negligence
- Pure comparative negligence
- Modified comparative 50% bar negligence
- Modified comparative 51% bar negligence
Pure Comparative Negligence
States like Arizona, California, Florida, and New York follow pure comparative negligence. In pure comparative negligence cases, the jury or judge will determine the percent of the fault committed by the plaintiff versus the defendants. The defendants are liable for damages based on their level of fault. For example, if the plaintiff was found to be 40% at fault for an injury and the defendant was 60% responsible, the plaintiff can receive up to 60% of the total damages. If the total damages are $100,000, the plaintiff can recover $60,000.
Even if the plaintiff was found to be 99% responsible and the defendant was only 1% responsible, the plaintiff could still recover 1% in damages. If the total damages are $100,000, the plaintiff can recover $1,000.
Pure Contributory Negligence
Contributory negligence is much harsher on the injury victim. If the plaintiff had any fault in the accident the plaintiff is barred from recovering damages. Only a few states still use contributory negligence, including Maryland and Washington, D.C. In a pure contributory negligence state, even if the injury victim is only 1% responsible for the accident, they cannot claim any damages.
Modified Comparative Negligence
Most states use some level of modified comparative negligence. In modified comparative negligence, there may be a limit to the victim’s recovery if they are more than a certain amount responsible. Depending on the state, if the victim is 50% responsible or 51% responsible, they may not be eligible to recover any damages.
States like Illinois and Pennsylvania follow the 51% rule for modified comparative negligence. For example, in a car accident, Driver A suffers $100,000 in damages in an accident with Driver B. Driver A files a personal injury claim against Driver B. If the jury determines Driver A and Driver B are both 50-50 responsible for the accident, Driver A could recover $50,000 in damages from Driver B. However, if the jury found Driver A 51% responsible and Driver B 49% responsible, Driver A would be barred from recovering from Driver B.
In the 50% bar modified comparative negligence states, the victim cannot recover damages if they are at least 50% at fault. In the example above, a jury determines Driver A and Driver B are both 50-50 responsible for the accident. Because Driver A is at least half responsible, Driver A would be barred from recovering from Driver B.
Can You Recover Damages After an Injury Caused by Negligence?
If you were injured because of the actions or inaction of another, you may be eligible for damages. To recover damages, an experienced personal injury law firm can write an initial demand letter that may allow you to win an award without even filing a lawsuit. If the person responsible does not want to pay for your damages, your lawyers can file a civil lawsuit to recover a financial award from a jury.
Some injury victims are offered a small settlement to waive their legal rights. Before you sign anything that gives up your rights to file a claim, make sure you understand your options. A personal injury lawyer can generally give you a free initial consultation so you can find out about your rights without having to pay anything upfront. In most cases, your lawyer can take your case on a contingency fee basis. That means you do not have to pay anything until you win your case.
If you have any questions about recovering damages after an injury caused by negligence, talk to experienced trial attorneys who can review your case and help you understand your legal options. Contact Gilman & Bedigian online or at 800-529-6162 for a free consultation.