Personal injury claims are often the result of different types of negligence. Negligence is the failure to act with the level of care that a reasonably careful person would have used. Some of the most common personal injury cases based on negligence are car accidents, injuries at the workplace, medical malpractice, slip and falls, product liability, and wrongful death.
Each personal injury claim is different, but negligence claims generally must meet the same four elements:
Sometimes, in special situations, all that the injured party has to prove is that the at-fault party caused the injury without proving any type of negligence. These “strict liability” situations only occur with animals (like dog bites), with abnormally dangerous activities (like working with explosives), or with dangerously defective products.
Generally, to establish a duty of care, you must prove a relationship with the at-fault party such that they owed a duty of care to the injured party. Some relationships require a duty of care, such as a doctor and patient or a business owner and a customer. Other times, determining whether a duty existed can be more complicated. These relationships might occur because the at-fault party created the risk of harm or the party knew or should have known that his or her conduct was reasonably likely to cause harm.
Once the duty of care is shown, the standard for a breach of duty is the “prudent person” rule. This test analyzes the at-fault party’s conduct and compares it with the action that a reasonable person would have taken. For example, if a reasonably prudent person would have slowed down while riding a bicycle near a group of pedestrians, but the at-fault party was distracted and hit and injured someone in the group, the party has breached his or her duty of care.
Establishing the duty of care can also be complicated, especially when the duty is specialized. In situations where the at-fault party is a professional, it may be necessary to use an expert witness to testify or provide background information about what the standard practice in the field is. For example, an expert witness might have to testify as to whether a medical action taken by a doctor was a common procedure in the medical field.
After the elements of a personal injury negligence claim are met, the next question is how to determine what compensation (damages) the injured party can recover. Different states follow different guidelines for finding which party is at fault and calculating how much money can be recovered. Depending on what standard your state or jurisdiction uses for negligence, you could be barred from recovery.
There are two types of negligence a court will normally address liability in a personal injury claim: contributory negligence and comparative negligence.
If you were injured in an accident, it is important that you understand the differences in these theories of negligence and that you know which theory your jurisdiction uses. Washington, DC, Maryland, and Virginia all have slightly different laws around negligence:
If you’ve been in an accident and are contemplating pursuing a personal injury action, you should consider consulting with an experienced lawyer. The legal knowledge and experience that a good lawyer can bring to the table are crucial to the success of a personal injury claim. Having legal counsel is even more important in DC, Maryland, and Virginia because of the use of contributory negligence. Call today to schedule a consultation. A lawyer from Regan Zambri Long PLLC, specialized with all types of negligence will discuss your claim with you, talk to you about proving the elements of your personal injury negligence claim, and explain how your jurisdiction’s theory of negligence might affect the success of your case.