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What Is Negligence And How Does It Apply To Personal Injury Law?

April 01, 2012 | Comments: 0 | Views: 171

In personal injury law, the term negligence is used to indicate that someone failed to exercise the proper care in a particular situation. When used as a legal term, the word negligence had a particular definition with specific elements. In order for an injured party to collect damages from the negligent party, they must establish proof of each element.

When determining negligence, the first element that must be established is a Duty of Care. The injured party must show that the other party had a legal duty to exercise a level of care under the circumstances. For instance, in car accident cases, all drivers are charged with the duty to obey traffic laws. In addition, they have a general duty to keep a proper lookout and not intentionally cause an accident. For instance, if a driver sees a potential hazard, they may not ignore the hazard just because the law indicates they have right of way. If a driver is on a highway approaching a green light, they have the duty to not plow into vehicle stalled in an intersection.

The second element of negligence is to determine whether there was a Breach of Duty. Once a legal duty of care has been established, a plaintiff must show that the defendant failed to honor that duty. Generally, this is proved by showing the defendant knew, or should have known, that their actions would have resulted in the consequences that followed. In car accident cases, a driver knows, or should know, that following another care too closely might result in a rear end collision. Thus, if that driver fails to keep a proper distance from the car they are following crashes into it, they have breached their duty to maintain a safe following distance.

An injured party must next establish that the breach of a legal duty of care was the Cause of their injuries. Keeping with the car accident example, a plaintiff would have to show their particular injury, e.g., whiplash, was caused because the defendant ran a red light and crashed into their car. In some instances, a particular injury or ailment may be attributable to several negligent acts. In a famous case in 1902, two campfires were left burning which led a forest fire and to the plaintiff's house being burned down. The case decided that both defendants' negligent actions equally caused the plaintiff's losses.

Finally, the plaintiff must establish a real injury or Harm for which he is legally entitled to collect damages. Most cases involving physical injury or harm are actionable. Some cases where there is emotional harm only there is no right to compensation. A parent whose child is injured in a car accident cannot make a claim for emotional damage based on them having to cope with the horror of their child's injury.

Once the plaintiff has met their burden of establishing negligence based on the four factors above, they may collect damages. Damages are generally classified as special, general or punitive. Special damages are those that are quantifiable, such as medical bills, loss of earnings, damaged property. General damages are those that are intangible such as pain and suffering, loss of quality of life, loss of consortium. Punitive damages are those meant to punish the plaintiff for their actions, for instance injuries resulting from a drunk driver.

The general definition is fairly standard in all jurisdictions; however, some areas apply it differently depending on the circumstances. Be sure to consult with a personal injury lawyer if you think you have been the victim of someone else's negligence.

James Garrett is the founder of Garret Law Group, PLC in Virginia Beach, VA. Contact his office for more information or if you are in the need of:

Virginia Beach Personal Injury AttorneyVirginia Beach Personal Injury Law

Source: EzineArticles
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