Negligence

In common speech, the legal term “negligence” means something like “carelessness.” Most personal injury claims are based on negligence, although exceptions do exist. You need to prove four legal elements to win a negligence claim.

Element #1: Duty

Almost everyone other than a small child is subject to legal duties to others. If you drive a car, for example, you must drive in the manner that a “reasonably prudent person” would drive. This hypothetical “reasonably prudent person” would never run a red light while intoxicated, for example.

Certain people, particularly professionals, are subject to a higher duty of care when engaging in certain activities. A medical doctor, for example, must meet a much higher duty of care to their patients than a non-doctor must meet while rendering first aid to a stranger at the scene of a traffic accident.

Sometimes the law defines the standard of care. You have a duty to stop at red lights, for example, or to drive within the posted speed limit. Other duties might arise based on circumstances rather than a specific law. For instance, you might have a duty to slam on your brakes to avoid hitting someone who accidentally fell into the road.

Element #2: Breach of Duty

You breach your duty when you fail to meet its demands. You might take a drive while intoxicated (a negligent act) or fail to stop at a red light (a negligent omission). In most cases, the defendant’s duty was clear, and the question of breach is an issue of fact (e.g., “What color was the traffic light when the defendant entered the intersection?”).

In other cases, such as a medical malpractice claim, you might need an expert witness to determine whether the defendant breached their duty. The other side might call an opposing expert witness to refute your expert’s testimony.

Element #3: Damages

The term “damages” in the personal injury context means any losses you suffered, whether economic or non-economic.

Economic Damages

Economic damages might include:

• Medical expenses;
• Lost earnings while you were in the hospital; and
• Child care expenses while you were convalescing and could not care for your children.

Non-Economic Damages

Non-economic damages are intangible, primarily psychological losses. These include:

• Pain and suffering refers to the physical suffering you endured; and
• Mental anguish refers to more abstract psychological suffering, such as social isolation caused by severe facial disfigurement.

Most states also recognize other forms of non-economic damages. In a negligence claim, you must normally show some type of physical damages (typically bodily injury) before you can claim damages for psychological distress.

Punitive Damages

The purpose of punitive damages is to punish the defendant for outrageous behavior. Most courts only occasionally award punitive damages, even when they award economic and non-economic damages. Courts might award punitive damages when the defendant’s conduct was intentional or exhibited “gross negligence” (an intentional “road rage” injury, for example). Ordinary negligence is not enough.

Element #4: Causation

Was the defendant’s negligence the cause of your damages? This is the element of causation. You need two to prove two kinds of causation to win your claim – cause in fact and proximate cause.

Cause in Fact

“Cause in fact” is also known as “but for” causation (“but for the defendant’s negligence, I would not have suffered these damages”). As an example, this prong of the causation element would be met in an instance where a driver runs a red light and strikes your vehicle. If the driver had not run the red light, the accident would not have occurred.

Proximate Cause

“Proximate cause” means that your damages were a reasonable and foreseeable consequence of the defendant’s negligence. If you lost two months of work from a car accident caused by the defendant, for example, you might sue the defendant for two months of wages.

You probably could not, however, claim that you were planning on investing those wages into the stock of XYZ Corporation, which increased in value by 10,000% while you were in the hospital. Even if your claim was true, the defendant could not have known that, for example, running a stoplight would prevent you from investing in a particularly lucrative venture.

The Standard of Proof

The applicable standard of proof in a personal injury or wrongful death claim is a “preponderance of the evidence.” To win your claim, you must prove that each element meets the preponderance of the evidence standard; that is, each element is more likely than not to be present.

For example, to prove damages, it is enough to show that there is a greater than 50% likelihood that you actually suffered the damages you are claiming. If you can show the same likelihood for the presence of the other three elements, you are in a good position to win your claim.

You’re Probably Going to Need a Lawyer for This One

If your claim is minor (a fender-bender, for example), you might not need a lawyer. If you suffered an injury, however, don’t rush to dismiss the idea of hiring a lawyer. The symptoms of some injuries, such as whiplash or traumatic brain injury (TBI), might not show up immediately. Just about every personal injury attorney in Queens offers free initial consultations as well.

We also have a team of personal injury lawyers in Bronx that can help you.