• By: Hank Stout
  • Published: December 2014

If you were in an accident and are considering filing a lawsuit, you probably have many questions. Some of our clients want to know more about the types of legal claims that are typically included in a personal injury lawsuit. This post will attempt to explain in simple terms an important legal concept, negligence.

Understanding Negligence

Negligence is broadly defined as the failure to act with the level of care that a reasonable person would have exercised under the same or similar circumstances.

Negligent conduct usually consists of actions (such as driving dangerously). However, negligent conduct can also consist of an omission when someone has a duty to act. For example, a lifeguard typically has a duty to rescue those he or she is responsible for supervising. A lifeguard’s failure to rescue someone he or she observes drowning in a pool would likely constitute negligence.

Many personal injury suits include a claim or claims for negligence. Suppose that you were injured in a motorcycle accident when the driver of a large truck ran a red light. A reasonable person would have stopped at the red light, as is required by law. Because the truck driver did not act as a reasonable person would in this situation, he was likely negligent.

Who is the Reasonable Person?

The “reasonable person” is a hypothetical individual who behaves in the way society would expect in any given situation. When a jury is considering whether a defendant (the person who has been sued) was negligent, they must compare his or her conduct to that of this imaginary person. The “reasonable person” is usually presumed to be an ordinary man or woman.

However, a special “reasonable person” standard may apply in some personal injury cases. In medical malpractice lawsuits, doctors are held to a higher standard than that of an ordinary person: that of the reasonable doctor having the specialized skills and knowledge of a licensed physician. Special standards also apply to lawsuits brought against children and certain handicapped individuals.

Elements of a Negligence Claim

In order to prevail on a claim for negligence, the plaintiff (the person who files the lawsuit) must establish five elements. Elements are aspects of a legal claim. In a civil case, the elements must be proved to the judge or jury by a preponderance of the evidence. This means that you must convince the court that something is more likely true than not.

There are five elements in a claim for negligence:

  1. The existence of a legal duty to exercise reasonable care;
  2. A failure by the defendant to exercise reasonable care;
  3. Cause “in fact” of physical harm as a result of the negligent conduct;
  4. Physical harm in the form of actual damages; and
  5. Proximate cause, meaning that the harm was foreseeable.

These elements have been defined over time by courts ruling on negligence claims. A lawyer can help you understand whether you have a viable claim for negligence. You should always consult with an attorney before filing a lawsuit of any kind.

Image courtesy of Flickr user steakpinball courtesy of a Creative Commons CC BY 2.0 license.

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