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Legal Negligence

By: LawInfo

Published: 10/2009

Negligence is a term that is commonly used to mean that someone did not act with the appropriate level of care. However, when negligence is used as a legal term it has a very specific definition and in order for a person who sustained injuries in an accident to recover damages, each element of the legal definition of negligence must be satisfied.

Generally, there are four elements that a plaintiff must prove in a negligence case. Those elements include:

· Duty of Care: A plaintiff first needs to establish that the defendant had a legal responsibility to exercise a reasonable degree of care toward the victim. The way in which you determine whether a defendant owed the victim a duty of care depends on the jurisdiction in which the case is heard. Some states have adopted a “foreseeability” test to determine if a duty of care exists. In these states, the defendant owed the victim a duty of care if harm to the victim was a foreseeable consequence of the defendant’s actions. Other states determine whether a duty of care exists by applying a balancing test that considers the forseeability of the harm, the degree of certainty that someone will be harmed, the burden that would be placed on the defendant if he tried to prevent the harm and other similar factors.

· Breach of the Duty of Care: Once a duty of care is established, the plaintiff must prove that duty of care was breached. Typically, the duty of care is breached if the defendant knew what the consequences of his or her actions would be or failed to act like a reasonable person would have acted given the circumstances. The reasonable person standard considers both the location and qualifications of the defendant. For example, a cardiologist is compared to other cardiologists in his jurisdiction when the court is deciding if he failed to act like a reasonable person would act in a medical malpractice action.

· Causation: If a defendant is found to have breached his or her duty of care, the next step for the plaintiff is to prove that the defendant’s actions caused the plaintiff’s injuries which would not have happened but for the defendant’s actions. For example, if the victim was hurt in a car accident then the victim’s injuries must have occurred because of the defendant’s breach of his duty of care (for example, speeding) and not for any other reason (for example, the victim suffered a heart attack while driving).

· Damages: If a plaintiff is successful in proving that the defendant had a duty of care that was breached and that caused the victim’s damages then the plaintiff must prove that he or she is entitled to damages pursuant to state law.

It is important to remember that negligence cases are most often tried in state court and that while many jurisdictions follow the basic definition of negligence provided above, every jurisdiction has its own laws about what constitutes legal negligence. Therefore, it is important to contact a personal injury attorney in the state in which your accident occurred if you believe that you might have a negligence case in that jurisdiction.

Legal Negligence

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