Law Offices of Kennedy and Brown

How Does Negligence Work in a Personal Injury Case?

Most of the time, the cases involving “personal injury” victims, people who have suffered physical and emotional injuries in a collision or accident, try to establish a case in which “negligence” of some sort occurred. The question for most victims is: What constitutes negligence? To understand this in a better way, we’ll have to look at the main aspects surrounding the possible negligence claim.

According to, “Duty of care” is legally defined as an implied responsibility of every person to refrain from causing harm or injury to any other person. When applied to personal injury cases, the person accusing the other person of committing negligence must establish the fact that the accused person failed to practice or observe the “duty of care” which caused this injury or incident. Also, it is the legal responsibility of the plaintiff to prove that the accused (defendant) was the sole reason for the incident or how the defendant failed to fulfill the duty of care. Once the plaintiff successfully establishes the presence of a “breach” of duty from the defendant, the next and last step will require the plaintiff to prove that he/she actually sustained personal injuries because of that breach.

We will now analyze the key features related to lawsuits or claims of personal injury.

Duty of Care and Personal Injury Allegations  

In any case of personal injury, the plaintiff is legally obligated to prove that defendant or accused could not comply with the required due diligence (care) in the given circumstances. But how does one determine the exact level of care needed for any given situation or how it differs in different lawsuits involving personal injury? Well, it is dependent on the facts of the case.

Let us take an example of a traffic accident and the resulting lawsuit or a personal injury claim.

It is the implied responsibility of a vehicle driver to be careful and use all precautions while driving. A driver must be aware of the weather, visibility, and traffic conditions.

The state has clear legislation in the form of traffic and/or vehicle codes, and a driver is legally bound to follow those rules or policies while driving. For example, there are clear policies on speed limits, yielding, etc. Therefore, if a driver fails to comply with these regulations and he/she causes an injury to others or jeopardizes other pedestrians, passengers, or drivers, it will be considered as a breach of care of duty from the driver.

Duty of care can be illustrated with the help of these injury-related case examples:

  • Slip & fall accident: the owner of any business or property is legally obligated to ensure the safety of the premises by eliminating any known hazards and look out for any other threats linked to that property.
  • Accidents involving medical malpractice: A medical practitioner or medical staff members have this implicit duty to give medical treatment by utilizing their professional skills to a maximum extent. That said, they are required to exercise professional due diligence while handling such matters.   
  • Malfunctioned product: Any manufacturer, seller, or distributor is legally bound to distribute only those products which are safe or fit for consumers.

Establishing Liability 

After establishing a duty of care, the plaintiff will have to establish the fact that some action(s) of the defendant actually breached the duty of care. What did the defendant do that established legal violations and how did it cause an injury to the plaintiff?

Reverting to the example of the car accident, here is how you or your lawyer can establish the at-fault party’s guilt:

  • Providing reasonable evidence of the ways in which the defendant failed to comply with traffic rules. (a report from the police officer on-site can help).
  • Testimonials from the eyewitnesses.
  • Testimonial of the plaintiff about the incident.
  • By having a proper examination of every bit of evidence collected from the scene (this also includes all the damage sustained by the vehicle).

However, sometimes the situation can be different. For example, it is common for there to be some negligence from the accuser (plaintiff) as well. Taking the car accident example into consideration, if it is proved that despite the defendant taking a sharp turn, which caused the accident, there was also negligence from the plaintiff because he/she was also driving over the speed limit, the plaintiff’s claim will be weakened in such circumstances. Being aware of these circumstances, the jury or insurance adjuster can hold the plaintiff as partially responsible for the accident. If such a situation arises, the plaintiff will be compensated accordingly. That said, there will be a reduction in the claimed amount according to the percentage or ratio of the default from the plaintiff.

Most states in the U.S. are following this rule, but there are some states which have a different ruling on this matter, and it is called contributory negligence. As per this terminology, the plaintiff will not be rewarded with any compensation if it is found that the plaintiff was partially or even minutely responsible for the accident.

In establishing negligence, the last step will require the plaintiff to prove that he/she was harmed or affected by the actions of the defendant.

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About the Author

I offer personalized legal aid in Forty Fort, PA. I'm specialize in a variety of case areas, including personal injury, slip and fall injuries, workers compensation, auto accidents, dog bite attacks, wrongful death and survival cases, and Social Security disability.

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