Establishing Negligence in Personal Injury Cases

If you would like to file a tort of negligence, you must prove the following. It is wise to find a personal injury attorney in your area who can help you understand tort law, a division of personal injury law.

• That the defendant had a legal obligation to behave or refrain from behaving in a particular manner
• That the defendant failed to fulfill this obligation by acting inappropriately, thereby causing your personal injury
• That the defendant's legal breech of conduct caused your personal injury

When evaluating these three standards and determining liability, the judge or jury will consider the following:

The Reasonable Person

Legal standards of behavior are based on what a “reasonable” person would do in a particular situation as opposed to the “average” person. First, it is important to note that the standards for a “reasonable” person and an “average” person are different. Those for the reasonable person are based on the community's judgment of how a person should act, while those for the average person are based on how the typical person might act. In court, the only standard that receives consideration is that for the reasonable person, and what the average person would have done in that situation is irrelevant. For example, if a group of consumers shoplifts, their actions might be considered average (since everyone participated), but they certainly are not reasonable and may not stand up in court. A personal injury attorney can help you determine liability as well as how this standard applies to your negligence case.

Professional Negligence

In the cases of doctors, lawyers, pilots, and other individuals with specialized training or knowledge, the standards of conduct are based on what reasonable people in those fields would or wouldn't do. For example, a doctor who prescribes the wrong medication may be found negligent because a reasonable person in his field would have caught the mistake before it was made. In addition, there is no deviation in the standard for beginners or for unqualified people who engage in the activity - just as licensed physicians and drivers can be found negligent, so can medical residents and underage drivers. A personal injury lawyer can help you determine liability as well as how this standard applies to negligence cases.

Mental Capacity

Mental capacity is not generally taken into account when determining if a defendant's behavior was reasonable; instead, actual conduct is used to determine negligence. Lack of intelligence or poor memory cannot be used as an effective defense. In most cases, individuals are held to the reasonable person standard despite mental or emotional limitations, because these standards are deemed reasonable and not extraordinary. Likewise, intoxication is not an excuse for negligence because the impaired judgment was nonetheless chosen. A personal injury attorney can help you determine how this standard applies to negligence cases.

Proving Negligence

In order to win a tort of negligence/ civil lawsuit, the plaintiff must show that 1) the defendant deviated from the standard of behavior expected of a reasonable person and that the personal injury could have been prevented and 2) the deviation resulted in the plaintiff's personal injury. There are a number of ways to demonstrate that these actually occurred, including analyzing expert witness testimony and circumstantial evidence and submitting federal and state statutes as proof.

Federal and State Statutes as Proof of Negligence

Federal and state statutes, as well as certain administrative regulations and municipal ordinances, may be used as prove negligence in a civil lawsuit if the plaintiff can prove that the defendant disobeyed the statute. In some jurisdictions, this proof is enough to warrant an automatic conviction, while in others, this proof is merely regarded as submissive evidence. Under special circumstances, disobeying a statute does not constitute negligence: as long as the reasonable person would have broken the same law in the same way, the defendant may be acquitted. For example, a woman who injures her husband in an attempt to stop him from physically abusing their child could be exonerated if the jury decides that the reasonable person would have acted similarly.

Negligence and Duty

In general, people have a duty to reasonably protect others from harm. For example, property owners cannot allow gross hazards - such as recently mopped, wet floors - to go unmarked. If a customer falls on such a floor and if posting a warning sign could have prevented the accident from occurring, the storeowner will likely be found liable for the personal injury incurred In some cases, however, the law limits the duty owed by one person to another: trespassers, for instance, are generally owed a lower standard of care than people who are invited onto a property.

It is important to note that while people are expected not to intentionally endanger others, they are not obligated to assist those in trouble. For instance, a person is not legally required to enter a burning building in an attempt to save those who live there.

However, if a person assumes a duty that was not legally imposed on him or her, he must provide a reasonable standard of care. For example, if a person chooses to administer CPR, he or she must administer it correctly or face consequences for any personal injury that results.

Pre-existing Relationships and Duty

Pre-existing relationships - such as those between companies and workers - create duty. For example, employers have a duty to protect their employees from on-the-job harm or personal injury.

Negligence and the Assumption of Risk

In certain situations, a person may voluntarily assume the risks associated with another person's negligence (or potential negligence). Consent forms for participation in certain events (athletic events are a common example) waive the host's liability in case of personal injury to the participant. Even if no written agreement is signed, implied assumption of risk can sometimes be used as a defense. People who ride on roller coasters often have the opportunity to read a posted warning before riding. Choosing to participate despite the warning may demonstrate implied assumption of risk. When a person uses an obviously defective product in spite of the known problem, that person may be assumed to perceive the risk and deem it worth taking.

Speak to an Attorney

If you have been a victim of a tort of negligence, it is in your best interest to find a personal injury attorney in your area. An experienced personal injury lawyer can help you understand tort and personal injury law and help you file your civil lawsuit.

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