Personal Injury 360

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:

Reasonable likelihood that conduct will result in harm to another;
Severity of any harm that could result from the conduct; and
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:

Doctor/patient;
Lawyer/client;
Innkeeper/guest;
Landlord/tenant; and
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.

Understanding Pedestrian Accidents In Nevada

About one in four of the traffic fatalities in the Silver State are pedestrians, and that figure is well above the national average. Many, if not most, of these fatalities occur outside crosswalks in non-urban areas during non-daylight hours (between dusk and dawn), and most victims are either young children or older adults.

These facts mean a lot. Many vehicles slow down around intersections, especially if traffic is heavy, and speed up in non-intersections, especially if traffic is light or moderate.

Further, as a rule of thumb, visibility is about 300 times greater during daylight hours. And, since many non-crosswalk areas are unlit, the difference may be even greater when it comes to pedestrian accidents. Lack of visibility also explains why so many young children are victims, because it is simply harder for motorists to see them, especially if they are not really looking for pedestrians in the first place.

Injuries in Pedestrian Accidents

In collisions, several layers of glass, plastic, and steel, not to mention multiple restraint layers, protect vehicle occupants. However, in similar situations, pedestrians are completely exposed to the risk of injury. Some common wounds include:

Head Injuries: With no seat belts or airbags to hold them in place, nearly all pedestrians are launched into the air in these cases. The jarring motion when they land, even if they do not land on their heads, often causes permanent brain injuries.
Broken Bones: Fall-induced fractures in young people often heal quickly with little medical intervention. In almost all other cases, and for almost all other victims, surgeons must use metal screws, pins, or plates to set the bone.

After several weeks or months of near-total immobilization, most victims require weeks or months of expensive and painful physical therapy to regain a minimal amount of lost function.

Blood Loss: Because of the serious nature of the injuries, and because many of these incidents occur relatively far from first responders and hospitals, the victims often lose vast amounts of blood before they can be properly stabilized, and the weakened state of their bodies makes their other injuries even worse.

All these injuries often mean huge medical bills and significant time away from work, so victims are entitled to compensation for these economic damages. There are intangible wounds as well, such as loss of enjoyment in life and pain and suffering damages as well.

Fault and Liability in Pedestrian Accidents

Speed is a factor in about a third of fatal car crashes. First, excessive velocity greatly increases stopping distance, which is thinking distance (reaction time) plus braking distance (amount of time required to stop safely). At 20mph, stopping distance is about three car lengths for most passenger vehicles. At 40mph, stopping distance triples to nine car lengths, or even more in some cases. In practical terms, if a pedestrian is in the path of a slow moving car, for whatever reason, the motorist can nearly always avoid the crash by slowing down, stopping, or changing lanes. However, if a pedestrian is in the path of a fast moving car, a collision is basically inevitable.

Speed-induced crashes also have much more force, because of Newton’s Second Physical Law. That is why, as a rule of thumb, pedestrian accidents at under 20mph are typically survivable and often do not even cause serious injuries, and collisions at greater than 40mph are nearly always fatal.

Next, alcohol is a factor in about a third of vehicle crash fatalities. After only one drink, most people are unable to make good judgements because alcohol is a depressant and have problems controlling their motor skills because alcohol is a tranquilizer. After another drink or two, these symptoms significantly worsen and joined by blurred vision because of bloodshot eyes; most people are essentially comatose if they consume much more alcohol.

In terms of pedestrian accidents, the slowed reactions increase stopping distance, the impaired vision makes it more difficult to see pedestrians, and the impaired motor skills make it more difficult for drivers to control their vehicles in emergencies.

Distracted driving causes many other fatal and serious injury crashes. Cellphones garner considerable attention in this area, because these devices combine all three types of distracted driving:

Visual: People who are looking at screens are not watching the road. Moreover, at highway speeds, a vehicle can travel the length of a football field in the time it takes to send a text message.
Manual: In addition to using cellphones for communication or web-surfing, people also take their hands off the wheel to adjust the radio or air conditioner.
Cognitive: Both live and virtual conversations require concentration, so drivers take their minds off driving when they talk on cellphones, send messages, post on social media, or talk to passengers.

Hands-free devices, whether they are built into the vehicle or hand-held devices in speaker mode, are not much safer than hand-held devices, and because they give drivers a false sense of security, they may even be more dangerous.

The New California Cellphone Law And Negligence Cases – CA

An expanded cellphone law that its author says is designed to “prevent distracted driving” takes effect this coming January 1.

The move takes place as cellphone use while driving has expanded in California and elsewhere. As a result, CHP spokesperson Jon Sloat called the bill “welcome news” for law enforcement. Beginning in January, officers will write tickets whenever they see drivers using cellphones, whether they are talking, texting, “checking their GPS or their music,” he added. The bill’s primary sponsor was Assembly-member Bill Quirk (D-Hayward).

Last year, cellphone-related car accidents killed sixteen Californians and injured 500 others, and Officer Sloat believes these numbers are vastly under-reported.

The California Cellphone Law

When lawmakers began debating the current cellphone laws a little over a decade ago, most available devices were quite rudimentary compared to the ones of today, and the more advanced models were often priced out of reach of many drivers. Moreover, social media platforms and smartphone apps were not nearly as well-developed then as they are today. As a result, since most people still used their phones primarily for talking and texting, the Legislature passed very narrowly tailored laws to address these concerns.

In 2014, the Fifth District Court of Appeal court ruled in favor of Steven Spriggs, who received a ticket for using his cellphone to access a GPS map while he was stuck in traffic. The court ruled that since Mr. Spriggs was not talking on his phone at the time, the statute as written did not apply. “We conclude the statute means what it says — it prohibits a driver only from holding a wireless telephone while conversing on it,” the court wrote. At the time, the CHP elected not to appeal this decision, probably because the court was clearly correct in its interpretation of the narrow law.

A.B. 1785 passed by wide margins in both the Assembly and the Senate. It essentially replaces the existing “talking and texting” language with the phrase “holding or operating a handheld wireless telephone or an electronic wireless communications device.” The law also limits the use of cellphone mounts.

Direct Evidence of Negligence

When drivers are cited for violating the new Vehicle Code 23123.5, prosecutors must still prove that the driver was using the device and not checking the time, glancing at a status update, declining an incoming call, or otherwise using the device in an approved way. However, in civil court, the burden of proof is lower. So, evidence that a cellphone was on and was in the front passenger area would probably be sufficient for a reasonable juror to conclude that, more likely than not, the driver was using the device at or near the time of the crash.

It is well-settled law in California that most statutory violations, including VC 23123.5 infractions, constitute negligence per se (negligence “as such”). The elements are:

Infraction: The jury must determine, based on the evidence, that the tortfeasor (negligent driver) violated a safety law; the jury could make such a finding even if the tortfeasor was not convicted in criminal court, because of the lower standard of proof.
Cause: The violation must have been “a substantial factor in bringing about the harm,” which is not the same thing as the sole factor in bringing about the harm.

Violating a traffic or other law sometimes raises a presumption in favor of additional punitive damages. To obtain these damages, the plaintiff must offer clear and convincing evidence that the tortfeasor recklessly disregarded the safety and property of others, and 90 percent of drivers agree that using a cellphone while driving is a serious hazard.

Indirect Evidence

Cellphone use is one of the most dangerous kinds of distracted driving because it involves all three areas of distraction:

Cognitive (taking your mind off the road),
Visual (taking your eyes off the road), and
Manual (taking at least one hand off the wheel).

This definition obviously encompasses a wide array of behaviors that may or may not cause car crashes. For example, since it involves two types of distraction (cognitive and visual), turning one’s head to speak to a passenger is almost as distracting as using a cellphone. In these situations, the jury determines if the driver breached the duty of reasonable care. In a nutshell, there is a significant difference between having an emotional face-to-face discussion with a significant other while driving and turning one’s head for a moment to ask if the air conditioner is blowing too hard.

In both direct and indirect evidence cases, compensatory damages generally include money for economic damages, such as lost wages, and noneconomic damages, such as loss of enjoyment in life and Pain and Suffering. If you’ve been injured, make sure to see our guide on how to find a good lawyer in California.