Negligence

Though you can file a claim for personal injuries sustained as a result of the intentional act of another person, most personal injury claims are litigated under a legal theory of negligence or carelessness. To successfully recover damages under a theory of negligence, an injured party must show:

• The person causing the injury did not act as a reasonable person would;
• The failure to act reasonably caused the injury; and
• The injured party actually suffered loss because of the accident.

The Standard of Care

The law of negligence assumes that every person has a duty, in all conduct in their daily lives, to act as a reasonable person would. When driving a car, when building a home, when maintaining property, when designing or marketing a product, a person engaged in the activity must act reasonably. The “reasonable person” standard does not look at what a typical or average person would do, but instead is based on a sort of composite of community standards. In a personal injury case, the jury has the responsibility to determine whether the actions of the defendant were reasonable. Unreasonable actions are deemed a violation or “breach” of the standard of care.

Causation

Negligence law requires two types of causation:

• The wrongful act of the defendant must have been the actual, or “but for” cause, such that the injury would not have occurred if the defendant had not acted improperly; and
• The wrongful act also must be the “proximate” cause of the injury, which means that the type of injury that occurred must have been reasonably foreseeable by a person committing the wrongful act attributed to the defendant. In other words, the injury must not have been the result of a wholly unpredictable event, or chain of events.

Types of Negligence

• Simple negligence is the failure to exercise reasonable care. For instance, a driver who makes a turn without checking to see if someone has started to cross the street is probably guilty of simple negligence.
• Gross negligence is defined as carelessness so great that it amounts to a reckless disregard for the safety or lives of others. For example, a driver who accelerates in a posted school zone as classes are letting out and children are boarding buses may act with gross negligence.

Whether negligence is “simple” or “gross” can affect the amount of damages, as explained below. For example, a finding of simple negligence will not support punitive damages

Damages

Negligence law provides a basis for recovering actual losses. Even though a defendant may have acted carelessly, if there is no actual and provable monetary loss, there will be no financial recovery.The following types of damages are available to accident victims:

• Compensatory damages: this type of damages includes both special and general damages
  • Special damages compensate victims for all actual financial losses suffered or expenses incurred, so accident victims should keep track of lost wages, medical, bills, any property damage, and other losses, including costs associated with canceled plans.
  • General damages include compensation for other kinds of harm suffered in an accident, such as physical pain and suffering and emotional distress. An accident victim who experiences lingering trauma – sleeplessness, depression, etc. – and who can establish a link between the trauma and the accident may be able to collect damages for emotional distress.
• Punitive damages:In accident cases, this type of damages is available only if the defendant’s actions were especially blameworthy, that is, if the defendant acted with gross negligence. As the name suggests, punitive damages are meant to punish the defendant severely enough to deter similar actions in the future.