Negligence


Someone claiming personal injury must usually prove negligence. In some circumstances, such as a personal injury claim occurring during an international flight, strict liability may apply.

Negligence has three elements. The personal injury claimant must prove the existence of a legal duty, breach of that duty, and damages caused by the breach.

Duty. An example of a legal duty is the duty to drive a speed that is safe under the conditions. It might be reasonable to dive the speed limit in most conditions.  If there is inclement weather, driving the speed limit through torrential rain or snow and ice may be unreasonable and a breach of the duty to drive a speed that is safe under the conditions.

Breach. The person making a personal injury claim bears the burden of prooving that the duty was breached. This can get tricky if, for instance, both drivers claim to have had the green light.

Damages and causation. The person making a personal injury claim must prove the nature and extent of the damages. Damages include things like medical bills (called “special damages”) and pain and suffering and diminished enjoyment of life (called “general damages”).

No damages are assumed, but instead the personal injury claimant must prove all damages. For example, it is not enough to merely present the medical bills. The personal injury claimant must prove—normally through expert witnesses—that all the services were medically necessary, were related to the accident in question, and the amounts charged are reasonable amounts in the medical community.

Insurance companies often aggressively challenge the medical bills on any or all three grounds of medical necessity, relatedness, and reasonable amount.

The personal injury claimant must also prove proximate causation. Proximate causation has two elements—cause in fact and legal causation. Cause in fact simply means that the event in question did cause the damages alleged. Legal causation excludes liability for events too remote in a chain of events.

Negligence, or fault, may seem straightforward—but the legal concepts can get nuanced and sometimes who is at fault and to what degree is not as simple as it seems. If you have been injured and have questions about who is at fault you should seek a free case evaluation from a personal injury attorney.