Before all the math of adding damage totals and figuring out your settlement, your attorney must first establish negligence while analyzing your case. Knowing what types of negligence apply to your lawsuit is key, because your settlement amount revolves around the law deciding who was liable to your damages.
Negligence comes in four forms, all of which may apply differently to your case. You need a trained personal injury attorney to analyze your evidence. They’re on your side to maximize your damages while holding the guilty party responsible. Without legal help, the other side may paint you as more negligent than who you actually are.
What is Negligence?
Negligence occurs when someone’s action or inaction causes unnecessary or deliberate harm to another person. This doesn’t mean any harmful action causes negligence.
The courts must establish four elements to prove whether another person’s actions are considered negligent under personal injury law, which are:
- Duty of Care
- Breach of Duty of Care
- Significant Damages
All of these classifications are subjective, so the more evidence to prove these things, the better. Even if the case seems cut and dry, like if a pedestrian gets hit outside of a crosswalk, you still need evidence.
All four of these elements must be present to prove negligence in a personal injury claim. The severity of the guilty party’s violations will influence your settlement payout.
Duty of Care
Each citizen holds a certain level of responsibility to prevent harm around others and their surroundings. This responsibility is referred to as duty of care, and one’s level of care changes depending on their situation.
Drug companies hold a duty of care to prevent poisonous products from entering the population. Truckers hold a greater duty of care than others to drive safely on the road because of their truck’s size and capacity to do harm. A nursing home holds a duty of care to provide reasonable medical assistance to their vulnerable adults.
Even if harm was caused by another person’s actions, if they held no duty of care, their actions will most likely not be considered negligent. That is why Good Samaritan laws exist and are protected under certain state regulations.
If you tried to save someone from a burning vehicle, they cannot sue you for their injuries under grounds of negligence. That’s because you held no duty of care to save them from their vehicle. If an emergency worker like a firefighter ignored someone in that position and failed to call backup, they may be considered negligent.
Breach of Duty of Care
After proving the opposing party’s duty of care, you must show they violated their duty to prove negligence. This is where your evidence matters, objectively showing the moments where the guilty party ignored their duty of care.
If you’re suing for a hostile work environment, you must prove your workplace violated their duty of care in preventing severe harassment. Evidence like witness reports, anonymous interviews, and photos of instances of harassment may prove their breach in care.
Evidence is also key in proving causation, that your injuries were directly caused by someone’s negligent actions. Causation may occur in two forms:
- Proximate cause
Cause-in-fact refers to someone’s actions directly causing your injuries. An example would be if you were hit directly in a hit-and-run accident. The negligent driver violated their duty of care of keeping other drivers safe, and their vehicle’s impact caused your injuries.
Proximate cause applies when someone’s actions indirectly cause your injuries. In the hit-and-run example, if they hit a tree and it lands on you, causing your injuries, you may sue the driver for negligence under proximate cause. They didn’t hit you directly, but their actions indirectly caused your injuries.
You need to prove your damages were significant to warrant a lawsuit based on prima facie negligence. You may write off your injuries and try to ignore them after an accident, but future losses may pop up. Schedule a meeting with an attorney as soon as possible to know for sure what injuries you can sue for.
The Four Types of Negligence
All the aspects above need to be present to prove ordinary negligence for your case, but there are four other types of negligence that may apply to you:
- Gross Negligence
- Comparative Negligence
- Contributory Negligence
- Vicarious Negligence
These forms of negligence may be relevant under specific cases, making an attorney that much more crucial to your representation.
Gross negligence is a more severe type of negligence where someone’s reckless disregard causes severe harm to others. A reasonable person in law would have to see the guilty party’s actions as a blatant disregard for human life.
A simple example of gross negligence would be if a drunk driver hit a child while speeding in a school zone. Extremely dangerous or malicious actions constitute gross negligence.
Comparative negligence occurs when multiple people share a percentage of liability for their injuries. This allows people partially at-fault to receive damages. Usually each party’s total settlement is reduced depending on how much they’re deemed at-fault for the accident.
Under a comparative negligence system, if you were a victim of an accident but were 20% partially at-fault, your total settlement will shrink to 80% of the original total. Some states like Colorado follow a modified comparative negligence system where you’re barred from receiving damages when found more than 50% at-fault.
Find a lawyer who specializes in your state to form the strongest argument possible for your case.
Differing from the example above is contributory negligence, where parties are barred from receiving compensation even when found 1% at-fault.
This allows courts to avoid the process of determining fault, leaning heavily towards the defendant. Most states don’t follow a pure contributory negligence system, but there are hybrid models existing in certain states.
The last type of negligence is vicarious negligence, where another person is responsible for the harmful actions of an individual. Vicarious negligence is especially relevant for parents and companies, where their childrens’ or workers’ actions are under their supervision.
Under vicarious negligence, you don’t sue the individual doing the harmful action, but the entity causing them to act negligently.
What Type of Negligence Applies to You?
Negligence is the foundation for your entire case, so a personal injury attorney is key to accurately establishing the facts. Even when a case seems cut-and-dry, each state interprets negligence in different ways. This doesn’t take into account what type of negligence your case falls on.
Most personal injury attorneys work under contingency fees, meaning their services are free until your settlement arrives. There is no risk to you if they lose your case, and no up-front fees during the legal process.
Each state has separate laws, so find a lawyer specialized in your state. Our attorney network partners with 500+ law firms across the United States. If you need an attorney to establish what type of negligence applies to your case, don’t hesitate to reach out!
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Jan Reburiano is a content writer and SEO specialist for law firms focusing on personal injury, disability, employment law, among other practices. He has written and edited numerous articles and created commercial spots for broadcasters that you can find in his LinkedIn. Jan currently lives in Los Angeles, California while writing for clients from around the United States.