Negligence Overview

GENERAL LAW INFORMATION - SECTION III

In order to be successful in a personal injury case, the plaintiff must prove that the defendant was negligent. Legally, negligence is when someone fails to exercise the care that a reasonably prudent person would exercise in like circumstances. The omission to do something which a reasonable person, guided by those ordinary considerations which ordinarily regulate human affairs, would do or the doing of something which a reasonable and prudent person would not do. Failure to use such care as a reasonably prudent and careful person would use under similar circumstances.

When a person is injured and brings a suit against the wrongdoer for negligence, he/she in order to prevail, must prove the following key elements by a preponderance of the evidence:

1. It must be shown that the wrongdoer owed a duty to the victim. Everyone has a legal duty to act as an ordinary, prudent and reasonable person and to take precautions against creating unreasonable risk of injury to others. The duty may change depending on the relationship between the parties. For example, a child is held to a lower standard, that being what another child would do under the circumstances, not what an adult would do unless they are engaged in an adult activity. Another example is certain professionals. Certain professions are held to a higher standard, what others in their profession would do under the circumstances.
2. That the wrongdoer breached their duty of care. Did the defendant’s conduct fall below the level of care owed to the plaintiff? In other words, the defendant failed to do what they should have under the circumstances in light of the duty owed.
3. That the breach in their duty of care caused injury to the plaintiff. The basic test is to ask whether the injury would have occurred but for, or without, the accused party's breach of the duty owed to the injured party. It must be shown that the breach of the standard of care was the actual and proximate cause of the injury. This means that the injury was the foreseeable result of the breach of care or put another way, there was a causal connection between the defendant’s unreasonable conduct and the plaintiff’s harm.
4. A plaintiff may not recover unless he can prove that the defendant's breach caused damage. As a general rule, a plaintiff must prove that he/she suffered a loss. Damages are compensatory in nature and a necessary element of the plaintiff’s case in negligence. The award should make the plaintiff whole, sufficient to put the plaintiff back in the position he or she was before Defendant's negligent act.