The word negligence tends to get thrown around both in a casual way that simplifies when you can sue, and in a way that makes it overly complicated to understand how a civil lawsuit works. On the one hand, whether you can sue over someone’s negligent acts depends on when and where they occurred, and what state laws may limit whether you can sue for such acts. On the other hand, suing for negligence as a general matter is pretty straightforward—if someone fails to act with reasonable care in a given situation, and it causes an accident and injuries to you, you can sue for damages.
Damages is a legal term referring to the compensation you receive for injuries and related losses if you win your lawsuit. Although intentional harm causes some personal injury claims, negligence causes the vast majority.
Understanding the complete ins and outs of bringing a lawsuit based on negligence can be tricky, and it’s best to hire an attorney experienced in the area of law your negligence claim deals with. However, there are some general ideas anyone should be aware of regarding lawsuits for negligence, so they can recognize when they may have a right to compensation.
The discussion below covers the meaning of negligence, types of negligence, the relationship between negligence and liability, and how lawyers prove negligence, so you have a better understanding of the process of suing for damages.
What Is Negligence?
In everyday use, the word negligence refers to carelessness, but it has a specific legal definition in the context of a personal injury lawsuit. The legal definition of negligence is more detailed. Negligence is a failure to uphold a standard of care that a reasonable person would under the same circumstances.
Negligence typically refers to the defendant’s affirmative acts, but it can also refer to an omission when a defendant must perform certain acts but fails to do so. Omissions are especially common in premises liability claims and medical malpractice claims.
Premises Liability Claim Failure to Act
Slip and fall and trip and fall accident injuries often lead to premises liability claims. Property owners have a legal duty to fix any hazards on their premises that they know or should know about, or to warn those legally on their properties about any such hazards they know or should know of.
For instance, a customer enters a boutique shop open to the public for business and falls when they walk up a stairway to the second level. The fall occurred because a rotted wooden step broke. The boutique owner knew about the condition of the step for several months but failed to fix it. The owner’s failure to fix the steps or warn the customer about their danger as they went upstairs may constitute negligence.
Medical Malpractice Claim Failure to Act
Medical professionals have a legal duty to uphold the standards of care set by the medical community. Through action and inaction, physicians and other medical professionals can harm their patients, leading lead to medical malpractice lawsuits. Consider a patient who visits a doctor because he is experiencing troublesome stomach symptoms.
The doctor diagnoses the issue as an infection and decides to treat it with antibiotics. However, the doctor did not review the patient’s record or talk to him about his medical history. Had the doctor taken a complete medical history, he would have found out his patient was allergic to antibiotics. The doctor’s failure to get a complete medical history may constitute medical negligence.
Defining Negligence With the Reasonable Person Standard
Regardless of whether negligence is a behavior or act of omission, the reasonable person standard applies. This legal standard asks what a reasonable person would do in a particular situation.
The applicable standard might vary slightly depending on the situation. For example, in a medical malpractice claim, a written standard in the medical profession may dictate how to deal with diagnosis, treatment, etc. That written standard would control. In other cases, there might not be a written standard, and so the reasonable person standard would apply. The reasonable person standard can be much more fluid, and responsive to unique circumstances.
Other Types of Negligence in Personal Injury Cases
The aforementioned examples of negligence primarily deal with very specific standards applicable to certain professions or parties. Other kinds of negligence include:
When thinking about situations that give rise to a personal injury lawsuit based on negligence, many probably think of ordinary negligence. A person, a business, or another entity causes harm to another, in violation of the reasonable personal standard. Harm can be physical, emotional, financial, or a combination of the three. While accidental, ordinary negligence is still preventable, had the injuring party exercised a reasonable degree of care in the situation.
Negligence Per Se. Per se is a Latin phrase that translates to “by itself.” Negligence per se refers to automatically negligent actions or behavior, usually due to written law. Thus, you needn’t ask whether the activity was reasonable, because the law automatically determines it was. For instance, a state could pass a statute stating that speeding is negligence per se. In a way, it is a form of strict liability.
One of the clearest examples of negligence per se is drunk driving. It’s against the written law in every state to operate a motor vehicle to drive when one has a blood alcohol content (BAC) of 0.08 or greater. If someone causes an accident, the police officer performs a Breathalyzer and finds the driver had a BAC of greater than 0.08, per se negligence may apply because it is inherently unreasonable, per written law, to drive while intoxicated.
Vicarious liability occurs when one bears liability for the negligent acts of another. For vicarious liability to exist, there has to be a certain kind of relationship between the two persons, and the first person must have acted or failed to act in some way that contributed to the accident caused by the second person.
Vicarious liability often arises in the employment context, where an employer bears liability for the negligent acts of an employee. For example, if a truck driver gets into an accident, you can hold their employer vicariously liable for compensation so long as the trucker drove within the scope of their employment.
Dram shop claims are another common example of vicarious liability. Dram shop lawsuits are ones brought against businesses that serve alcohol. For instance, if a bartender serves too much alcohol to a patron, and then allows the patron to leave in their car, despite being clearly impaired, the bar could be vicariously liable for damages related to any subsequent car accident the patron ends up in due to their impairment.
Gross negligence refers to actions and behaviors that demonstrate reckless disregard for others beyond simple carelessness. The negligence is so egregious as to rise to an intentional disregard for the safety of others. Gross negligence is never simply inattention or a mistake. For instance, when someone crashes a car while looking down at one’s phone briefly to check for text messages, it may constitute ordinary negligence. In many cases, gross negligence also includes criminal activity, so lawyers might argue negligence per se in a lawsuit. Gross negligence is also unique in that it creates a possibility of punitive damages.
Courts award punitive damages to a plaintiff to punish a defendant and deter future negligent behavior. Unlike compensatory damages, which compensate a plaintiff for the demonstrable expenses and impacts they have sustained in an accident, claims involving gross negligence often have a higher value because of the addition of punitive damages.
Examples of scenarios that could lead to injury and warrant an attorney arguing gross negligence include:
- A reckless driver speeds excessively through a school zone and hits a child
- Drunk driving
- A doctor covers up a medical error or defrauds a patient
- Nursing home staff deliberately deprive a resident of adequate food or water
If you have been a victim of negligence, it’s best to go over the details of your case with a personal injury attorney. An attorney can advise you on whether the behavior that led to your injuries qualifies as gross negligence.
Proving Negligence in Personal Injury Claims
To prove negligence sufficient to hold a party liable for damages, a plaintiff must provide evidence to establish four primary elements. The standard of proof in a civil lawsuit is a “preponderance of the evidence,” which means a plaintiff needs only to show it is more likely than not that something is the case. (In cases involving punitive damages, in many states, a higher “clear and convincing” standard will apply.) In any case, the four elements a plaintiff must establish are as follows:
Duty of Care
As mentioned above, everyone has some form of duty of care to one another in any given situation. This may simply be to exercise reasonable care while driving, by following driving laws and operating a vehicle safely. In other cases, one might owe a special duty of care, such as a physician’s duty of care to a patient, which is a higher duty of care. Property owners have a duty of care to maintain a safe premises and to warn of hazards they know or should know of. Manufacturers have a duty to consumers to only introduce products to the market that are safe for public consumption or use.
Breach of Duty
Once you establish the pertinent duty of care, you must show that the defendant breached that duty. Breaches of duty are obvious in some cases, especially those involving traffic accidents. Drunk driving, speeding, texting and driving, and reckless driving are examples of driving behaviors that breach the duty to others on the road.
Other examples of breaches of duty in different types of personal injury cases include:
- Putting defective medical devices and other products on the market that pose a risk of harm to users/consumers
- Failure of a business owner to clear snow and ice from their storefront after a winter storm
- A surgeon who operates on the wrong patient or the wrong part of the body
In other cases, establishing a breach of duty is more difficult. This often occurs when a third party comes into play, as in the examples above about vicarious liability. In such cases, one party may point the finger at the other, to argue that it was actually the other party that breached their duty of care. This may come up in multi-vehicle car crashes. It’s often the case in such crashes that more than one person breached their duty of care.
Causation is typically the most contested element of negligence. To prevail in a personal injury lawsuit, a plaintiff must prove that the defendant’s breach of duty led to the injuries. Establishing causation depends on evidence, and sometimes requires more than a police report. Traffic accident cases are often more straightforward than other types of personal injury claims. When causation is harder to determine, lawyers can bring in experts to assist in determining how the accident occurred, such as reconstruction specialists in a multi-vehicle accident case.
Slip and fall accidents, medical malpractice, and product liability cases can be more tricky. For example, if a doctor fails to diagnose a terminal disease in a patient, they have breached their duty. However, the plaintiff’s lawyer must prove that the doctor’s failure led to death. The doctor or their insurer might try to argue that the plaintiff’s death would have occurred, regardless of the doctor’s error.
Finally, a plaintiff must show that the accident caused them more than nominal harm or loss. In vehicle accident cases, the causal line between the accident and the physical injuries or property damages is much more straightforward. However, emotional and psychological compensable harm can take place as well. The causal line between the accident and these less tangible harms is harder to establish. A personal injury lawyer near you can evaluate your claim and help you do just that.