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What is Negligence?

August 3, 2015

What is negligence?

No Negligence = No Compensation

Negligence is a requirement for any personal injury case. If you cannot prove negligence, you cannot successfully sue the other party. The five elements are:

  • Duty of care
  • Breach
  • Cause in fact
  • Proximate cause
  • Damages

Duty of Care

A duty of care is a legal obligation which requires us to follow the appropriate standard of care when we are engaging in an activity during which we could hurt another person. The general standard is that of the “reasonable person” but the standard can shift depending on who we are and what we are doing.

  • Drivers have a duty to drive properly for road conditions.
  • Doctors have a duty to follow the medical standard of care when they treat patients.
  • A grocery store owner is required to keep his store physically safe for its customers.
  • Lawyers have a duty to represent their clients within the legal standard of care.

 Breach

texting and driving

Texting while driving is a breach of the standard of care required while driving.

A breach is a violation of the duty of care. For example:

  • Driving a car while texting means you aren’t paying attention. This is a clear breach of the duty to drive responsibly.
  • A landlord who is aware of an unsafe banister but fails to fix it has violated his duty to provide a safe residence to his tenants.
  • A doctor who fails to perform a test when the standard of care requires that he do so, has breached his duty to his patient.

Cause in Fact

Cause in fact is also called the “but for” element because, you can use the “but for” statement to determine if the person who hurt you meets it. For example, if the texting driver hits your car because he wasn’t paying attention, he breached his duty of care as a driver. You wouldn’t have been injured but for his failure to pay attention to the road.

Proximate Cause

The injury you suffered must be foreseeable or predictable. For example it is predictable that:

  • Texting while driving will lead to a car crash, which will in turn lead to injuries to other people.
  • Failing to properly test someone who is on coumadin could lead to thin blood which could lead to a stroke.
broken arm negligence

Texting while driving is a breach of duty. If you get in an accident and hurt someone, you will likely be found responsible and deemed negligent. Or even grossly negligent.

Damages

Damages mean that you actually suffered an injury. For example:

  • You broke your arm in a car accident
  • Your breast cancer worsened because a doctor failed to timely diagnose it
  • Your suffered a brain injury because you fell due to an unsafe walkway

If you did not suffer any physical harm, except in rare circumstances, you cannot successfully sue. The one exception to this rule is that you can sue for infliction of emotional distress if you meet some very specific requirements.

Conclusion

Negligence is a critical part of any injury lawsuit. Without negligence, a lawyer will be unable to take on your case and seek compensation for you. Each element of negligence must be met. Even if you have substantial damages, if the person who hurt you did not violate the duty of care he owes you or did not owe you a duty of care at all, you cannot successfully sustain a lawsuit. In addition, if the person did violate his standard of care, as in medical malpractice, but the damage you suffered was not a direct result of that violation, you will be unable to recover. Proving every element of negligence is a key reason to retain a top lawyer to represent you in your claim.

 

 

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