As an attorney, you’re going to be approached to take on a variety of personal injury cases.
You have to be able to analyze these cases at face value before you decide to invest in a client. At the heart of these cases is the presence of negligence.
There are 5 elements of negligence that have to be present in order to have a chance at proving a personal injury claim. What are the 5 elements of negligence?
Keep reading to discover what these elements are and the types of negligence that are most common.
The Elements of Negligence
The plaintiff in the case must prove that these five elements were present in any personal injury case against a business. These elements will show that someone understood that there was a risk associated with an action, and failed to mitigate that risk.
As an example, a gym owner knew that a treadmill at their establishment was broken. They did nothing to notify members that the treadmill shouldn’t be used. A member hopped on and injured themselves.
That injury was the direct result of negligence on the part of the gym owner. Where the 5 elements of negligence present? Read the elements of negligence and decide for yourself.
Duty of Care
The legal experts at the Preszler Law Firm explain that in order to sue a person or company for negligence, there needs to be an expectation of ‘reasonable care’ from them.
The plaintiff has to show that the defendant is obligated to act in a way to protect the plaintiff. That could be in the context of a doctor-patient relationship or a business-client relationship.
Breach of Duty
The second element of negligence is that the duty of care was breached. The defendant has to have failed in some way to provide reasonable care.
Cause In Fact
Did the actions or inactions of the defendant cause the injury of the plaintiff? That is what cause in fact is about. This is often called actual cause.
There is a legal standard for showing cause in fact. The plaintiff has to show that if it wasn’t for the defendant’s actions or inactions, the plaintiff would not have been harmed.
This is difficult to prove in medical malpractice cases. That may be why 80% of medical malpractice lawsuits end without payment to the plaintiff.
Negative outcomes can happen at any time in medicine. A doctor may have delayed a diagnosis or a bone break may not have healed properly.
These are challenging to prove because there are so many other factors that could have caused harm to the plaintiff. A plaintiff has to legally establish the treatment that the doctor provided directly caused the injury.
Proximate Cause
Proximate cause relates to the defendant’s responsibility for the incident. It’s up to the plaintiff to show that the defendant could have taken steps to prevent the incident from happening.
Damages
Were there damages because of the inactions or actions of another person or business? These damages could be in the form of physical injuries or property damages. When damages are present, they will be resolved through financial compensation.
Going back to the example of the gym owner, were all 5 elements of negligence present? One could easily argue that they were.
Types of Negligence
Not only are there 5 elements of negligence, but there are also 5 types of negligence that can be argued in court. These types have varying standards of proof. These standards are going to depend on the laws in each state.
Comparative Negligence
Under comparative negligence, a plaintiff shares some responsibility for their injuries along with the defendant. An example would be a doctor prescribing a medication that caused a reaction in a patient. It turns out that the patient didn’t follow the instructions, so they both are responsible for the reaction.
Judges will base the financial damages on the percentage of responsibility. A case that has a $200,000 damage claim, but the plaintiff was found to have 40% responsibility will result in an $80,000 award in damages.
Gross Negligence
In the case of the gym owner, they could be sued for gross negligence because they knew about the issue and didn’t act. They neglected to take action to prevent someone from getting hurt.
This form of negligence is the most significant because it is so much more than an oversight.
Vicarious Negligence
Business owners are responsible for the actions of their employees. If an employee causes harm to another and the 5 elements of negligence are present, then the owner of the business can be sued vicariously.
This also applies to animals on the premises. For example, if a person brings their dog to work and the dog bites a client. The client could sue the business for negligence.
Contributory Negligence
Did the plaintiff contribute to the incident? If they did, then they aren’t entitled to receive damages. This is different from comparative negligence because if the plaintiff caused the injury, they won’t receive damages.
Contributory and Comparative Negligence
Some state laws will have a mix of contributory or comparative negligence laws. As you’ve seen in the previous examples, the plaintiff will get partial damages or nothing.
The Burden of Proof
Since it’s up to the plaintiff to prove negligence, what are some of the ways that it can be done? The direct evidence may not always fulfill the burden of proof, so attorneys need to rely on other methods.
You can work with experts in the industry who can use them as witnesses. You can also talk to other people within the plaintiff’s industry to find out how others normally act or handle situations.
What Are the 5 Elements of Negligence?
If you’re representing someone in a civil case, you’re going to have to prove negligence occurred. What are the 5 elements of negligence? Duty to care, breach of care, cause, damages, and proximate cause are the elements that have to be present to proceed with your case.
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