The crux of most personal injury cases is negligence!
Every person has a duty of care, which is the duty to refrain from causing others harm, injury, or loss. In tort law or personal injury law, duty of care is a legal obligation imposed on people requiring them to adhere to a standard of reasonable care that prevents them from bringing harm to others through their actions.
Now, if someone acts carelessly and their actions result in another person or people being injured, they are held responsible in the legal principle of negligence. There are several types of negligence, and almost all personal injury cases are based on the sole fact that one party must have been negligent for the accident or incident that caused injuries to happen. The type of negligence determines who is held liable for the injuries, and the degree of liability they must face.
Negligence, however, applies in all different types of personal injury cases. From car accidents, slips and falls, defective products, or nursing home neglect, etcetera.
In most cases, negligence is an action, but omission also applies in case the duty was not fulfilled. If you’re currently pursuing a personal injury case, it’s imperative that you understand the different types of negligence.
Compulsory negligence is by far the most common, rigid, and dated of all the types of negligence available. If you live in a contributory negligence jurisdiction, if you, as the plaintiff, are found negligent, you will be barred from getting recovery from the other party. This means that if you contributed to the accident and the cause of your own injuries, even in the slightest, you’d not get anything.
Currently, only four states follow the pure contributory negligence. These are Maryland, Alabama, Virginia, and North Carolina. Contributory negligence can apply to different cases of personal injury claims, including a car accident, dog bites, medical malpractice, slip and fall accidents, truck accidents, and motorcycle accidents. It’s incredibly important that you speak to a professional attorney so they can advise you on the best course of action in your case.
Do this before you talk to insurance adjusters. They will do everything possible to prove that 1% of your contribution to evade paying the compensation. It’s going to be up to you and your attorney to prove that the other party was sorely at fault for the accident or incident if you’re to get any compensation for your injuries.
Even if you did contribute, there are certain ways your attorney can evade the contributory negligence. They could prove the defendant had the last clear chance to avoid the accident but still failed to do it, in which case they may be liable. If you live in any of these states, or Washington DC, it’s important that you see a personal injury attorney immediately after getting treatment.
Comparative negligence allows the plaintiff to receive compensation, even when they contributed to their own injuries. This type assigns an amount of blame to each either the plaintiff or the defendant.
The percentage of liability controls how much compensation they’ll get. In most car accidents, for instance, it’s usually hard to tell who’s at fault. The comparative theory helps determine how much compensation the parties get.
There are two types of comparative negligence. Pure comparative negligence and modified comparative negligence.
In the former approach, the plaintiff can recover damages from the defendant minus their own percentage of the contribution. For instance, if the plaintiff was awarded $10,000 and was found to be 25%, they would be awarded $7,500.
In some states like California, plaintiffs are allowed to recover compensation even if they were 99% responsible. Modified comparative negligence, on the other hand, is the most used. It doesn’t allow the plaintiff to get any compensation if found to be either 50% or more liable for the injuries.
In essence, it means that even if you’re found to be 51% responsible, the defendant will not compensate you at all. In this type of negligence, you will also get compensated depending on your assigned percentage of fault, if found to be 50% or less. For instance, if you get awarded $100,000, and you were found to be 10% liable, the award would be reduced by $10,000.
Combination of Comparative and Compulsory Negligence
Some states use both types of negligence, and the insurance company could deny you compensation if you are found to be at fault. They could also reduce your compensation amount to your degree of fault.
It’s critical to have a personal injury attorney helping you in such a case. They can help you navigate your case and get you the compensation you deserve.
Gross negligence is more about more than failing to act with the right amount of care. It goes deeper when a person’s actions demonstrate a reckless disregard for the safety of the other people involved. Grossly negligent people go beyond what’s reasonable. It implies the person responsible caused harm intentionally.
They were careless and had utter disregard for the safety of people’s lives, health, and properties. In a nutshell, it’s no longer about an error or an omission but intentional.
Once gross negligence has been proven, it ratchets up the injuries and damages to, and you may even qualify for punitive damages. Some good examples of gross negligence include a doctor amputating the wrong limb or a caregiver neglecting to feed their senior patient.
In most gross negligence cases, the consequences are limited to compensation, such as monetary payments to compensate the victim for their losses. Punitive damages may sometimes be added to the compensation.
They essentially discourage other people from engaging in dangerous situations. Punitive damages can amount to a lot of money, sometimes up to three times the initial compensatory money.
Last but not least, on this list of types of negligence is vicarious liability. Personal injury law allows vicarious liability, which is the liability one person bears for the actions of another person.
For instance, if you are a parent to a teenager, personal injury law can allow you to be vicariously liable for their actions. If you were an employer, you could take responsibility for what your employee did.
In the case of employer-employee relationships, the employee must be in their line of work during the accident. For instance, if a nurse is negligent in the way they handle a patient, the hospital can be vicariously liable. If a debt collector hired by a credit harasses and assaults a borrower, the creditor will be vicariously liable for the assault.
Sometimes the situation is not black and white because the person responsible could be a contractor and not an employee. In this case, it’s essential for you to hire a professional personal injury attorney.
They can do sufficient research into the case and find out who should be liable for your injuries. Apart from these, business partners can be liable for each other, and so can joint car owners and licensees.
The Elements of Negligence
Proving negligence is not always straightforward. Personal injury law follows several elements of negligence that determine the types of negligence to assign to a case. Let’s look at the four elements of negligence below.
Duty of Care
As mentioned at the beginning of the post, duty of care is the first element to prove in a personal injury case. Duty refers to an obligation to conform to a certain standard of conduct. To determine whether there was duty of care, you need to consider several factors, such as risks, foreseeability, and the likelihood of injuries.
For instance, if you were loading sacks of corn into a truck and struck a child with one of the bags, the jury will first have to resolve whether you have a duty to that child. If you were in a public area, such as a sidewalk, and the child was passing by, then you would have a duty of care to them.
On the other hand, if you were on private property and the child was trespassing, you may have had no idea they were there in the first place during the accident, so you had no duty to them.
Breach of Duty
Beyond proving that a person had a duty of care, a personal injury lawyer must also prove that the negligent party breached that duty. They would be breaching their care of duty if they failed to exercise reasonable care. In the example above, the jury would decide breach of duty using facts and determine whether you exercise reasonable care when handling the sacks of grain.
Cause in Fact
It’s also vital for the plaintiff to prove that the actions of the defendant were the actual cause of the injuries, and nothing else. Known as “but-for” causation, this means that if not for the actions of the defendant, the plaintiff would not have sustained injuries. In the example above, it can be proven that if you weren’t tossing the sacks of grain, you wouldn’t have injured the child.
The plaintiff must prove legally recognized harm in the form of physical injuries or damages to properties such as the car involved in the accident. Even if the negligent person failed to exercise caution, you must prove that their actions resulted in actual harm.
Different Types of Negligence: Why You Need a Personal Injury Lawyer
These are the different types of negligence in personal injury law. As you can see, they are quite complex and complicated. It’s vital for you to hire a professional personal injury attorney to handle your personal injury case.
If you’ve enjoyed our post, please check out our blog section, where we have so much more informative content for you.