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Few things in life are clear cut. Sports games, health, the weather: Everything is a result of a complex chain of causes, factors, and even pure chance, and at times it’s very difficult to pinpoint exactly why something happened the way it did.
Accidents and injuries are no different. Determining fault after a traumatic event like a car accident is also often quite tricky, given how many variables there are. What if the other driver had looked left instead of right? Should I have held on to something as I stepped out of the shower? Who’s to blame for a person running out of protective equipment at work?
Unfortunately, finding fault is necessary to test the validity and the amount of a compensation claim. Personal injury law tries to simplify this process through the concept of “negligence,” but for those without a good personal injury attorney, even this can be confusing. Here, we go through negligence in personal injury cases, how it’s applied, and how it’s determined.
The basic idea of negligence exists in two parts. For a person to be negligent, they must first have a duty of care toward another party. Then, they must breach that duty of care through their action or inaction.
Living in a functioning society means we must take care of the people around us. When we step out of the house, we expect that we won’t be injured by the actions or carelessness of others. The same works in reverse: we are expected to do whatever is in our power to prevent injuries happening to the people we come in contact with.
This is the basis of the duty of care. It states that all of us have a duty to avoid carelessness that is reasonably likely to cause harm to others.
Of course, every element of our lives involves some level of risk, and it is accepted that not everything can possibly be done to remove that risk from our lives. This is why we say that a “breach” of the duty of care usually only occurs when a situation is created that is over and above a normal level of risk.
In other words, the person who has a duty of care breaches it when their actions (or lack of actions) make the environment more dangerous than it usually is. Note that an accident doesn’t have to happen for a breach to occur. A shopkeeper leaving a spill on the floor, for example, is in breach of their duty of care regardless of whether someone actually slips on it. From that duty of care to their customers, and that breach of their duty, they would be considered negligent.
Some examples of negligence and the breach of the duty of care are helpful to illustrate how it is determined in everyday life. As you will see, there are different levels and awareness of duty of care required, depending on each situation.
The duty of care of an employer is to provide a workplace that’s free of reasonable danger. Their duty is much more active than that of many other parties since they must at all times provide sufficient training, warning, and protective equipment to avoid injurious accidents.
They must also take action to remove any dangers in a reasonable amount of time from the moment that they occur, not from the moment that they’re first aware of them. That means that they must be actively looking for problems—such as faulty machinery—not just waiting for problems to be reported to them. As well as this, if an accident is caused by someone else who was improperly trained, the employer might also be found at fault.
It would be unreasonable to expect everyone to take full responsibility for those around them. That’s why the duty of care is a little more limited for individuals and usually applies to their own specific actions and not their reactions to the actions of others.
If you spill a drink in a food court and fail to clean it up (or try to remove the hazard in some way), you would be negligent. However, if you saw someone else’s spilled drink and stepped around it without cleaning it up, and then someone else slipped on it, you would not be negligent. The same is true for traffic violations: You cannot control the actions of others (and aren’t expected to), but you are expected to be in full control of your own driving.
A property made dangerous through neglect or poor workmanship is the responsibility of the owner of the property, not the person who caused the dangerous situation in the first place. So, if you hired a contractor to build some stairs, for example, and they did a bad job, it’s still your duty of care to prevent accidents occurring on those stairs. The same negligence would be found if those stairs were made unsafe by a lack of maintenance on your part.
Manufacturers, distributors, and sellers all have a duty of care toward the end user of their products. Even if a store that sells the product isn’t aware of a defective part, they still can be found negligent if a customer is injured as a result.
Proving that negligence occurred is usually a matter for an experienced personal injury attorney and will require many hours of:
However, it’s not enough to prove that negligence occurred. To be successfully compensated for the result of that negligence, there are two final points which much be taken into account. For all cases, you must also prove:
In determining who is negligent—and, therefore, at fault—there are also some other factors which may be taken into consideration. These are:
Although the law is designed to be straightforward, the reality of a lawyer’s personal injury cases is often far different. Getting the right compensation requires deep experience and knowledge. Complicated causes and factors mean you need the right personal injury lawyer on your side.
If you’re not sure who’s at fault, or for what compensation you could be eligible, turn to the expert team at Schechter, Shaffer & Harris, L.L.P., Accident & Injury Lawyers With over 100 years of combined experience in personal and workplace injury and maritime law, we’ve got what it takes to get you the justice you deserve. For a free case assessment, contact us today!