Negligence
The Elements of a Personal Injury Claim Based on Negligence
Black and Davison
In the aftermath of a personal injury, you can face serious physical and financial challenges. You may be unable to work because of your injury, and have no disability insurance or other means of income. Under those circumstances, it’s common to want your personal injury claim resolved fairly soon. Unfortunately, it’s a process and there are specific things you must demonstrate to a court before you can succeed with a personal injury claim.
Though you can always seek compensation for the intentional or reckless acts of another person, as a practical matter, most personal injury claims are based on a legal theory of negligence. To successfully prosecute a personal injury claim based on negligence, you must show three things: that the defendant breached the duty of care; that the breach caused the accident; and that, because of the accident, you suffered actual loss.
The Standard of Care
Under the law of negligence, as it has developed over the centuries, every person is considered to have a duty to use reasonable care in all daily actions. Accordingly, when you are driving a motor vehicle, designing or manufacturing a product, maintaining real property, using a power tool, or engaging in any activity, you must act as a reasonable person would. The law, however, does not specifically identify what qualifies as reasonable behavior. Instead, the standard of care (and whether it was breached) is determined by the jury on a case-by-case basis, with attention paid to prior decisions.
Causation
There are two types of causation that must be proven in a successful personal injury claim: actual cause and proximate cause. Actual cause, also known as “but for” cause, simply asks the question whether the accident would have occurred “but for” the defendant’s breach of the duty of care. Proximate cause is a somewhat higher standard, and requires that the accident or injury be “reasonably foreseeable” based on the breach of the duty of care.
Actual Loss
There are situations where you can show that the defendant did not act reasonably and that the breached caused an accident, but you may still be unable to recover damages (monetary compensation for your losses). For example, if all your losses are covered by insurance, you won’t be able to recover compensatory damages, as the law does not allow you to recover twice for the same loss. In addition, if your car had little or no value and the damage caused in an accident did not reduce its value, you have no loss for which you are entitled to be compensated.
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