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06/10/2021

Negligence is a word we've all come across at different times. It is the foundational rock of most personal injury claims, whether from car accidents or medical negligence. Without the presence of negligence, you cannot hope to succeed in a personal injury lawsuit. 

This article will attempt to define negligence, list cases where it applies, and how to prove it. If you are involved in a personal injury action, contact our personal injury attorneys at Glenn Law for legal advice. We will help you through the claims process. 

What Is Negligence? 

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Negligence is an area of tort law that covers the liability of persons. It is the legal standard for determining whether someone behaved in the way a prudent person is expected to act in a similar situation. For a person to have acted negligently, they must have failed to exercise reasonable care, and that failure led to harm of another person. 

The doctrine of negligence applies in most civil cases, particularly personal injury claims. Negligence comes into play in fiduciary relationships or where the fault party owed a duty of care to the injured person. Examples of situations where a negligence claim would come to bear include the following: 

  • Motor Vehicle Accidents: Most claims for damages for car accidents are on the ground of negligence. A driver has a duty to exercise care when on the road. They do this by following traffic rules like driving without impairment and within the speed limit. A driver who deviates from these rules and causes an accident would be guilty of negligence. 
  • Medical Malpractice/Negligence: The nature of the doctor-patient relationship is such that the physician owes the patient a duty of care. It means they must deviate from negligent actions and provide the best care possible for their patients. Medical malpractice takes different shapes. It includes unnecessary surgery, wrong diagnosis, poor follow-up care, premature discharge, etc. 
  • Premises Liability: Premises owners have a duty to maintain their property in a way a reasonable person would. The premises must be safe to avoid slip and fall accidents and other harm to lawful visitors. Similarly, an employer must keep the work environment in decent shape to avoid a workplace accident. 
  • Product Liability: Most defective product lawsuits often accuse manufacturers of behaving negligently. This usually means that they failed in their duty to warn customers of harmful side effects of their goods. Pharmaceutical companies are mostly the defendants in most product liability lawsuits. 

How Do You Prove Negligence? 

In proving negligence in a personal injury claim, the injured party must be able to establish the four elements of negligence. The four go hand-in-hand, so you can't prove one and leave the others. Below, we discuss what these elements are. 

The Duty of Care

A duty of care is a responsibility one person owes another to avoid situations or conducts that would cause the other person harm. In most cases, every reasonable person owes this duty towards others. Car drivers owe it to passengers and other road users; doctors owe it to patients and manufacturers to their customers. 

In proving the existence of a duty, the court and insurance companies ask: 

  • Who the fault party owes the duty to; and
  • How broad the duty is.

The extent of the duty determines the magnitude of the breach. Since no laws determine the level of care owed to individuals, courts and insurance companies apply the "reasonable man test." They look at the case facts to determine if another person would behave in the same way given the same scenario and circumstances. 

Breach of Duty

Where there is a duty, there must be a breach for personal injury action to exist. Here, the question shifts from the existence of a duty of care to whether the person who had the responsibility lived up to their legal obligation. If the person's conduct does not measure up, they are deemed "negligent" or "careless."

In another way, the responsible party must have created a dangerous condition that placed the victim's life at risk. This is why most accident lawsuits seek to find whether the defendant met the required standard of care. A good example of a breach is a driver speeding beyond the legal miles per hour. By doing the latter, they disobey the universal speed law and fail in their duty to drive safely for their safety and other road users. 

Causation

Even after establishing that a fault party failed in their duty to exercise the standard of care, you need to prove that their action caused your injury. This is vital because the fault party can accept blame for a breached duty but deny causing your wound. Thus, injured victims must link their injuries to the breached duty. 

For example, a medical doctor might claim that it was not a wrong prescription that aggravated your medical condition. A driver might claim that entering the intersection when you had a red light caused an accident, not their failure to signal when turning. This is why you must work with experienced attorneys when making a personal injury claim. 

Damages 

The last thing you need to prove is damages. Following the legal principle of "where there is a wrong, there must be a remedy," you must show the defendant's actions caused you to suffer losses. Damages under this head would include economic damages, non-economic damages, and punitive damages. 

They cover the following: 

Proving the four elements is easier with legal representation. A personal injury lawyer has experience dealing with personal injury cases.. They will apply the right legal principles to help you win and get adequate monetary compensation. 

What Is the Difference Between Comparative Negligence and Contributory Negligence? 

Contributory negligence is a Common Law doctrine. It started in the context of employment situations where employers tried to defend themselves from workplace accident lawsuits. The intention was to reduce fraudulent claims and the careless conduct of employers. An injury victim who contributes to an accident to any degree would be unable to get a settlement. 

A personal injury book sits on a Lawyers desk in Texas

Contributory negligence is a harsh rule, but some states in the US still practice it. Those who do not adopt the doctrine of comparative negligence. The latter is used for the allocation of fault in accidents. Courts look at the percentage of fault to determine how much the injured victim is entitled to. 

There are two types of comparative negligence in the US: pure comparative negligence and modified comparative negligence. 

Pure Comparative Negligence

 According to the balances mb, about a quarter of the state in the US practice the doctrine of pure comparative negligence. The legal theory states that a person is eligible for compensation only to the extent they were not responsible for an accident. Thus, a victim who has 25% would only get 75% compensation. 

It means that if the court awards the victim $100 000 as a judgment sum, they will take home $75 000. The remaining $25 000 would be the "penalty" for their role in the occurrence that led to their injury. The only drawback to this rule is that a partly guilty person can still get financial compensation from the other party.

Modified Comparative Negligence 

About two-thirds of the states in the US adopted the modified comparative negligence rule. Here, the victim only gets awarded damages for the portion of the injury not attributed to them. It means that a victim's claim for compensation will only succeed if the culpability does not exceed a certain threshold. 

It is usually 50% to 51%. Thus, if a state's negligence threshold is 50%, a victim whose liability is up that percentage will be unable to claim. But if their liability percentage is 45%, and the fault person is 55% liable, the victim will get compensated. In this instance, their settlement or judgment sum will be 55% of the total sum awarded. 

Is Texas a Comparative Negligence State? 

Texas adopts the modified comparative negligence doctrine. The state uses what it calls the "51% bar rule," meaning that you cannot receive compensation if you have 51% or more blame. The law eliminates counter-lawsuits by the fault party and increases the victim's chance of getting fair compensation. 

Who Does the Burden of Proving Negligence Fall On? 

Like in all civil lawsuits, the legal principle of "he who asserts must prove" applies in personal injury actions. The burden is on the plaintiff to prove the defendant's negligence. During the trial, the plaintiff will present documentary and oral evidence to the fault person's liability. 

These pieces of evidence include: 

  • Medical report
  • Expert opinion
  • Witness statements
  • Police report
  • Photo of accident scene and injuries
  • Receipts of medical bills and other out-of-pocket expenses 

Note that cases like this are determined on a balance of probabilities. It means the court will weigh the parties' evidence against each other to determine to see the more convincing one. If the plaintiff's evidence outweighs that of the defendant, the court will rule in their favor. It doesn't have to be beyond a reasonable doubt like in criminal trials. The evidence just needs to tip the scale of justice in the plaintiff's favor. 

Glenn Law Can Prove Your Case! 

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Proving negligence can be tricky and requires expert help. At Glenn Law, we have the experience and expertise needed to prove your case and get you fair compensation. We will ensure we tip the scale of justice in your favor and get you the justice you deserve. Contact us today for a free case review. 

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