Negligence: How It Is Determined in Personal Injury Cases

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.

What Is Negligence?

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.

Duty of Care

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.

Breach of Duty

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.

What Negligence Cases Can Look Like

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.

Your Employer

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.

Another Person

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.

Property Owners

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.

Defective Parts

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 Negligence to Get the Right Compensation

Proving that negligence occurred is usually a matter for an experienced personal injury attorney and will require many hours of:

• Gathering evidence
• Taking witness statements
• Enlisting the help of expert analysts
• Piecing together the facts of the case
• Negotiation with the defendant’s insurance or lawyers

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:

• Causation – It seems obvious, but proving that the negligence was a cause of the injury is a crucial part of a compensation claim. The legal term used is “proximate cause,” which simply means that the breach of duty was close enough (in location, time, relevance, etc.) to the accident that it should be considered the reason why it happened.
• Damages – Finally, there should have been at least some economical suffering by the injured party to achieve the right compensation. If no one was really harmed, then negligence is irrelevant, even if it exists. These damages could be medical bills, loss of wages, or loss of property. Note that these damages can also occur as a result of mental anguish and other emotional injuries, and can extend to other family members.

Limiting Factors

In determining who is negligent—and, therefore, at fault—there are also some other factors which may be taken into consideration. These are:

• Whether multiple parties were found in breach of their duty of care and, therefore, shared the blame for the accident and subsequent injury. You will generally pursue the claim against only one of the responsible parties, but it can make identification of the defendants and prosecution of the case a trickier process.
• Whether you were, at least in part, to blame for your injuries through carelessness or recklessness. This can limit the amount of compensation you will receive, and you will have to determine exactly what percentage of fault can be put on your own actions. In most states, you will get the percentage of damages awarded to you that wasn’t your fault.
• Whether the state allows partial compensation for an accident that you contributed to. As we just mentioned, most states will award a percentage of the claim, but, in some states, having even a minor part to play in your injuries will result in no compensation at all.
• Whether you were in a place where you weren’t supposed to be. In general, trespassing or being in a marked out-of-bounds area will waive your rights to any compensation, even if the injury wasn’t your fault.

Not Sure About Your Case? Leave It to the Experts

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!