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Negligence

0000NegligenceThough you can file a personal injury claim for injuries sustained as a result of the intentional act of another personal, most personal injury claims are litigated under a legal theory of negligence or carelessness. To successfully recover damages under a theory of negligence, an injured party must show:

  • The person causing the injury did not act as a reasonable person would;
  • The failure to act reasonably caused the injury; and
  • The injured party actually suffered loss because of the accident.

 

The Standard of Care


The law of negligence assumes that every person has a duty, in all conduct in their daily lives, to act as a reasonable person would. When driving a car, when building a home, when maintaining property, when designing or marketing a product, a person engaged in the activity must act reasonably. The concept of the “reasonable person” evolved in English common law, through opinions written by judges over centuries of jurisprudence. The “reasonable person” standard does not look at what a typical or average person would do, but instead is based on a sort of composite of community standards. In a personal injury case, the jury has the responsibility to determine whether the actions of the defendant were reasonable, or violated the standard of care.
 

Causation

Negligence law requires two types of causation:

  • The wrongful act of the defendant must have been the actual, or “but for” cause, such that the injury would not have occurred if the defendant had not acted improperly; and
  • The wrongful act must also be the “proximate” cause of the injury. This essentially means that the type of injury that occurred must have been reasonably foreseeable by a person committing the wrongful act attributed to the defendant. In other words, the injury must not have been the result of a wholly unpredictable event, or chain of events.

 

Damage

Negligence law provides a basis for recovering actual losses. Even though a defendant may have acted carelessly, if there is no actual or provable loss, there will be no financial recovery.

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