Negligence by any other name is… negligence. Of course, to be sure, there are terms that we can use to illustrate what negligence is: a civil wrong, fault, failure to act as a reasonable and prudent person, individual, corporation, professional, etc. Negligence can entail acting (not just failing to act) but in a way that is below the commonly accepted standard. To prove negligence, the client must have sustained an injury that falls either under bodily harm, or harm to property. Emotional distress can be compensable as part of the action.
What is interesting in personal injury law is that you have to prove four elements. Happily, those elements are transferable from one kind of negligence case to the other. Regardless, if it’s a malpractice case, a premises liability case, a construction accident, or a case that involves automobile negligence, the following four questions are crucial:
Those are the four elements. You might question if you have a particular type of negligence case, how do these elements come into play? How do we establish them? Well, we establish the standard of conduct on the alleged negligent actor by what the custom or practice is in the industry/activity. We may use other sources to establish what that standard of conduct is: what is expected of that person, entity, corporation, or professional. Again, the overriding concept is did they act as a reasonable person, engineer, attorney, etc. Another factor to consider is whether the injury/ damages were foreseeable as a direct and “proximate” result of the defendant’s negligence. In other words, if it weren’t for the defendant’s negligent conduct, would the victim have gotten injured?
If you are dealing with professional malpractice, for instance, others in that field are the only ones who are competent to testify to the acceptable standard of conduct. We know what competent means; to be competent as a witness means that the person is deemed appropriately qualified to give testimony on the standard of conduct, the standard of care, etc.
The key concepts in a negligence case are ordinary and prudent behavior. You fashion these ideas to fit into the particular situation you are given. I want to emphasize that these concepts are very much transferable from one form of negligence case to another.
Keep in mind that the mere fact that an accident occurred does not mean that there is negligence. If someone gets hurt on a construction site, just because an accident occurred doesn’t mean that the construction company, subcontractor, general contractor, or particular engineer is negligent.
There are two main points that need to be proven to establish negligence. First you must prove that there was a duty owed. That can be done with relative ease in the typical situation. The second and more contentious point you must prove is that there was a breach of that duty. Much of the debate revolves around this issue. However there are ways in which to establish a breach of that duty. One of the ways to establish if the defendant breached their duty of reasonable care is known as the Learned Hand formula, which states that if the burden of taking necessary precautions is less than probability of loss times the gravity of the loss suffered, then the defendant will be found liable for negligence. Learned Hand was a very respected appellate judge from a century ago; his formula has stood the test of time. It is followed in every jurisdiction in establishing negligence.
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