Category: Understanding Personal Injury

What Is Negligence?

Most personal injury lawsuits are based on the argument that another person’s negligence was the cause of an injury. What exactly is negligence, though? Negligence is defined as “the failure to behave with the level of care” that a reasonable person “would have exercised under the same circumstances.” Put another way, negligence is the failure to use reasonable care and which results in harm to another person. Negligence can be based on someone’s actions or failure to act in a certain situation.

Negligence is made up of four distinct elements: duty, breach, causation, and damages. A successful negligence claim requires a plaintiff to prove each element of the offense. According to Sherwin Arzani, a California injury lawyer, “Failing to prove one of these four elements will defeat a claim based on negligence.” Let’s take a closer look at the elements of negligence.

Duty

The first element of negligence requires that the defendant has a duty to the plaintiff to exercise reasonable care and/or act in a specific manner. What is reasonable care? Reasonable care is a subjective standard and is calculated by weighing facts and circumstances relevant to a specific case. Factors that should be of primary consideration in determining whether a person’s conduct lacked reasonable care include:

  1. Reasonable likelihood that conduct will result in harm to another;
  2. Severity of any harm that could result from the conduct; and
  3. The burden on the defendant of taking precautions to eliminate or reduce the risk of harm to others.

When does a duty exist? A person may be encumbered with a duty to exercise reasonable care in many situations. Common situations that may impose a duty include the defendant voluntarily assuming responsibility for protecting a plaintiff from harm; the defendant knowing that his or her conduct could reasonably harm plaintiff; or defendant and plaintiff establish a special relationship. Relationships that may trigger a duty include:

  1. Doctor/patient;
  2. Lawyer/client;
  3. Innkeeper/guest;
  4. Landlord/tenant; and
  5. Business owner/customer.

Breach

The second element of negligence requires that the defendant breaches his or her duty to the plaintiff. A breach occurs when the defendant acted or failed to act to uphold their duty. A breach is determined by asking if a “reasonable person” would have acted in the same way as the defendant under similar circumstances. A breach occurs when a reasonable person would have acted differently.

Causation

The third element of negligence requires that the plaintiff’s injury (or injuries) were caused by the defendant’s behavior. Causation is broken down into two subcategories: actual causation and proximate causation. States have variations and exceptions for determining actual and proximate causation, but the general concept remains the same in each.

What is actual causation? A plaintiff must prove that the defendant’s behavior was the actual cause of his or her injuries. If A was injured in a car accident after B drove through a stop sign and hit her car, A would only need to show that B operated the car that hit her. B’s car hitting A’s car was the actual cause of her injury.

What is proximate causation? is more complicated. Defense attorneys may try to sink a plaintiff’s case by showing that while a defendant’s behavior may have been the actual cause of an accident, it was not the proximate cause. Attorneys use a “but for” test to show proximate causation. A plaintiff must show that “but for” the defendant’s negligence, he or she would not have been injured. The injury to the plaintiff must be a foreseeable risk of the plaintiff’s behavior.

Simply put: the plaintiff’s injury must be a probable and foreseeable risk of the plaintiff’s behavior. For example, if a truck drives into the side of a building, it would be foreseeable that a person inside the building could be injured by the truck or debris. If a window breaks and falls on a person inside the building, it could be said that the truck driver’s negligence was the proximate cause of that person’s injuries. If, after the truck has crashed into the building, a burglar climbs through the wreckage and stabs someone in the building, the driver’s actions will probably not be considered the proximate cause of the subsequent injuries. Being injured by a burglar is not a foreseeable risk of negligently driving a truck into a building.

Damages

The final element of negligence requires that the plaintiff suffer some sort of compensable harm. Simply put, a court must be able to compensate a plaintiff for an injury they sustain. Generally, a physical injury or property damage that caused the plaintiff to suffer monetary losses will satisfy this element.

__

If you or someone you know has been injured in an accident because of another person’s negligence you may be entitled to compensation. Finding an experienced personal injury attorney as soon as possible after your accident will help to ensure that your legal rights are protected. For more information, visit Sherwin Arzani’s law firm at https://www.citywidelaw.com.

Liability

In a few cases, fault in a car crash is rather easy to establish. For example, if Debra Defendant is talking on her cellphone while driving her own vehicle on her own time when she rear-ends Paula Plaintiff, who is stopped in traffic and waiting at a red light, Debra is clearly at fault and clearly responsible for Paula’s damages.

But assume Paula pulled out in front of Debra in traffic and Debra rear-ended Paula. Who is at fault in that scenario? Or assume Debra was hauling goods for XYZ Company in a delivery truck when she hit Paula. Who is responsible for damages in that scenario?

Liability is a two-part inquiry. First, the responsible party, or responsible parties, must be identified. Second, the appropriate party, or parties, must pay damages.

First Party Liability in Car Crashes

The crash between Debra and Paula did not happen by chance or by accident. Most likely, the choices both parties made in the hours, minutes, and moments before the collision caused the wreck.

Decisional liability has to do with the choices made, or not made, before operators start driving. Typically, these decisions revolve around the three types of impairment. Although the sources (alcohol, drugs, and fatigue) are very different, the effects are quite similar.

In most cases, drivers are alcohol-impaired after only one drink. Alcohol is an antidepressant, so people who drink nearly always experience a sense of release and euphoria. When it comes to driving, this feeling of euphoria often means that operators are slower to recognize dangerous situations and more willing to push the envelope in terms of their driving habits. That extra few ticks on the speedometer or half-second delay before tapping the brakes can mean the difference between a safe drive home and a serious injury collision. There are also physical symptoms, such as blurred vision and slower reaction times, that are extremely dangerous when operating heavy machinery, including motor vehicles.

Contrary to popular myth, much drugged driving results from abuse of prescription and over-the-counter medications. Many painkillers and antidepressants are very powerful and have serious side-effects even when patients take them exactly as directed. Taking too many pills, or taking pills while not under a doctor’s care, can be even worse. Similarly, many over-the-counter sleep aids and other medicines have active ingredients that required prescriptions just  few years ago.

Fatigued drivers have many of the same issues as drugged and drunk drivers. In fact, driving after eighteen consecutive waking hours is like driving with a .08 BAC, which is above the legal limit in both Nevada and California. Moreover, most of the tips and tricks that observers once suggested, like turning up the radio volume, may make drivers feel more alert for a few minutes, but the effect quickly passes. Also, these tricks do nothing to remedy the impaired judgement and motor skills associated with fatigued driving.

Behavioral liability, or the choices that drivers make just before the crash, is the second liability area. Typically, behavioral liability is associated with motor vehicle code violations, like speeding, illegal lane changes, ignoring traffic control devices, and the like. Distracted driving is also a serious issue, which is why California lawmakers recently expanded the cellphone ban. Previously, the ban only applied to talking or texting; the amended VC 23123.5, which takes effect January 1, makes it illegal to “use or hold” a cellphone or other electronic device.

Finally, there is environmental liability. Many drivers fail to adjust to adverse conditions, like rain or darkness, by slowing down and driving more carefully. Additionally, although it is easier to drive on familiar streets than unfamiliar ones, many drivers do not acknowledge or appreciate the difference.

In most car crash cases, the insurance company tries to shift blame to the victim, to reduce or deny recovery. Contributory negligence is one of the most common arguments. To return to the previous example, assume Paula made an illegal lane change, and Debra — who was speeding — rear-ended her. In cases like this, the juries must apportion fault on a percentage basis.

California is a pure comparative fault state that divides liability based solely on the percentage of fault. Assume the damages were $100,000 and the jury splits fault 50-50. In California, Paula would receive $50,000. But if the same crash and same result occurred in Nevada, Paula would get nothing. That’s because the Silver State is a modified comparative fault state with a 51 percent bar. So, if the defendant’s liability is not at least 51 percent, the plaintiff is ineligible for recovery.

Third Party Liability in Crash Cases

Many states have dram shop laws that hold commercial alcohol providers liable for damages if their intoxicated patrons later injure someone. But Nevada has never had a dram shop law and California legislators recently did away with the Golden State’s version of that law.

Other third party liability theories may apply, such as respondeat superior (“let the master answer”). In a nutshell, if the tortfeasor (negligent driver) was an employee acting within the course and scope of employment at the time of the crash, the employer is at least partially responsible for the victim’s damages. All the relevant terms are defined in broad and plaintiff-friendly terms.

Third party liability is often important because so many drivers are under-insured. Nevada has one of the lowest minimum auto insurance policy requirements in the country, and California’s requirements are not much higher. While it is relatively easy to collect damages from insurance companies, it is difficult, but not impossible, to collect from individuals.

Personal Injury Overview

Personal injury is derived from tort law. The purpose of tort law is to give private parties a legal mechanism through which the aggrieved party can recover for harm inflicted by the “at-fault” party. Whether you’re in California or Nevada, personal injury cases have similarities that transcend state lines.

DUTY

The first question one must understand is whether the person who caused the harm owed you a duty of care. In general, one is held to the “reasonable person” standard. In other words, if you injure someone in the course of your daily activities, the question becomes whether you acted in a reasonable manner.

On the other hand, someone might be held to a higher duty of care based on their relationship to you or professional standing. A doctor will be held to a higher standard when aiding a person in distress than a non-medical professional.

BREACH OF DUTY

A defendant is negligent if he breaches the duty of care owed to the plaintiff. This occurs when the defendant fails to use reasonable care in the performance of his or her duty. Whether the defendant breached the duty care is a question of fact for the jury.

CAUSATION

Causation is an often overlooked, but critical component, of tort law. If the defendant failed to use reasonable care and is found to have been negligent, you must also prove that the defendant’s actions were the cause of your damages. An important concept connected to this is the plaintiff’s duty to mitigate. In other words, after being in a car accident you have a duty to mitigate the damages by seeking medical assistance. If you suffer a broken leg in a car accident, fail to seek medical care, and the injury becomes more serious, the at-fault driver would not be required to pay for additional medical treatment required by your failure to seek prompt medical treatment.

Additionally, the at-fault party is only responsible for the damages directly caused by his or her negligence. In other words, assume again you’re in a car accident. After the accident you drive yourself to the hospital and get into another accident because the first accident resulted in damage to your vision. While you would not have gotten into the second car accident had it not been for the first, the at-fault party in the first accident would not be held liable for the damages you incurred in the second accident.

DAMAGES

Once it is established that the other party was negligent caused your damages, you have the right to seek financial recovery for both economic and non-economic damages. Economic damages include lost wages, medical expenses, and property damage. Non-economic damages includes pain and suffering, loss of consortium, and punitive damages.

However, your reward may be reduced if the court finds that you were partly at-fault for the accident. For example, assume you were in a car accident and it is determined that you were 20% at-fault. In that case, your award will be reduced by twenty-percent.