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Legal Resources

Personal Injury

  • Negligence Overview

Negligence Overview

Negligence is the cause of action, or legal basis, for most personal injury cases. It’s important to note that negligence lawsuits are based on injuries caused by a defendant’s carelessness as opposed to an intentional harm.

There are four elements that the plaintiff’s personal injury lawyer must prove to the court to be successful in a negligence lawsuit. Those elements are:

  1. The defendant owed a legal duty to the plaintiff.
  2. The defendant breached that legal duty.
  3. The defendant’s breach was the proximate cause of the plaintiff’s injuries.
  4. The plaintiff was injured and suffered damages.

“Defendant” is always the person, or company, being sued. For simplicity, we will use “plaintiff” to describe the injured party. It is important to note, however, that a plaintiff can also be someone suing on behalf of an injured person. Also, plaintiffs and defendants don’t always have to be individual people, they can also be groups of people, companies or business entities.

Duty: First, the plaintiff’s lawyer must prove that the defendant owed the plaintiff a legal duty. A legal duty requires someone, by law, to behave a certain way. Generally, a person has a duty to behave like a reasonable person would in a similar situation, to avoid causing harm to others. This general duty can change, depending on the relationship between the parties, the actions of the parties, or local laws.

Breach: Second, the plaintiff’s lawyer must prove that the defendant breached their legal duty. A defendant can breach a duty by doing something they aren’t supposed to do, or by not doing something they are supposed to do. In a personal injury case, the defendant’s breach of duty will have caused injury to the plaintiff.

Proximate Cause: Third, the plaintiff’s lawyer must prove that the defendant’s breach was the “proximate cause”, or legal cause, of the plaintiff’s injuries. There a number of factors that affect whether the breach was the proximate cause.

Damages: Finally, the plaintiff’s lawyer must prove they have suffered damages because of the defendant’s breach. There needs to be an injury for the lawsuit to be valid. The injury can include physical harm to a person or property, or even monetary loss.

Gross Negligence: In some severe cases, negligence can rise to the level of “gross negligence.” To prove gross negligence, the plaintiff’s lawyer must show that (1) the defendant’s behavior created an extreme level of risk and (2) the defendant actually knew the risk involved. Extreme risk requires a high probability of serious injury. If the lawsuit rises to the level of gross negligence, the plaintiff may be awarded more damages.

How long do I have to file a negligence case? The Statute of Limitations is the time limit a plaintiff has before a lawsuit must be filed. For personal injury cases, the statute of limitations is two years. The clock starts ticking as soon as the injury occurs. Cases must be filed on or before the last day of the statute of limitations or the claim will be time barred. Once a claim is time barred, it is virtually impossible to get into court.

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