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proving negligence

Proving Negligence: How to Find an Attorney and Make Your Case

It is estimated that over 25 thousand people die as a result of negligence, or rather, medical malpractice.

However, negligence is not restricted to hospitals and clinics. It is something that happens everywhere, often leaving behind devastating consequences for the victims. So it is no wonder, that proving negligence in court is a matter of great importance to those fighting for justice against these acts.

But, how do you actually prove it?

Well, according to the legal definition, an act of negligence has four elements to it.

Read on to find out what these are.

Duty of Care

If you want to establish a case of negligence, you must first prove that the defendant had a legally recognized duty to act in a certain way. This could either be the duty to do something or the duty to not do something. For such a duty to exist, there may be some kind of relationship or interaction between the two of you.

For example, in the case of medical malpractice or medical negligence, the plaintiff would have a doctor-patient relationship. Alternatively, in the case of a truck accident, it could also be between a pedestrian and a truck driver.

In the latter, the duty of the driver could be to “exercise reasonable care” while driving.

The concept of reasonable care is based on the expectation that a person must exercise the level of care that could be expected of the average individual in the same situation. It is a legal standard used to confirm or deny the existence or breach of “duty of care”.

A Breach of Duty

The next point of contention deals with whether or not the defendant breached such a duty. This implies a failure to exercise the “duty” established in the previous element of negligence.

The Element of Direct Causation

Now you must prove that the act of personal injury was a direct result of the breach of duty by the defendant. So, even if the defendant did breach his or her duty, but it did not result in an injury of some sort, you will not be able to pursue a lawsuit against them.

You must also consider whether the defendant could have foreseen such an injury happening as a result of the breach.

There also exists a legal principle of “remote cause“, under tort law. This means that the breach of duty should have directly caused the injury in question. It cannot be a series of unfortunate, and unforeseeable consequences that transpired. 

Subsequent Damages

The final element is the ability to provide compensation for the injury caused. For this, you must provide proof of the damages you have suffered while establishing that there lies an ability for the defendant to compensate you for those damages.

This could be medical expenses, loss of wages, pain and suffering, emotional distress or loss of employment. The extent of damages may vary according to different state laws.

This is especially important at times of trial or even negotiations. Make sure to keep records of everything that can be documented. This includes medical receipts, confirmation of unpaid leave and anything else you can think of that can further substantiate your case.

An Overview of the Types of Negligence

Now based on the nature of your circumstances, yours could either be a case of contributory negligence, comparative negligence, a combination of the two, vicarious negligence or gross negligence. The type of negligence involved often determines the kind and extent of the compensation you can claim.

1. Contributory Negligence

In a given accident, it is likely that there are multiple parties at fault. If you happen to be partly responsible for your injuries, along with the defendant, yours could be a case of contributory negligence.

In some states, contributory negligence means that you won’t be entitled to any compensation from the defendant.

2. Comparative Negligence

This kind of negligence has principles similar to that of contributory negligence but applies outside the court. Here, you will be compensated according to the degree at which you are at fault.

3. Contributory + Comparative

Here’s where the court will apply the principle of comparative negligence while deciding your compensation. This means the damages owed will be inversely proportional to your act of contributory negligence. 

4. Vicarious Negligence

Vicarious negligence can only occur when the accused has a vicarious relationship with someone else. For example—an employer might be held liable for the negligent acts of his employee.

5. Gross Negligence

Gross negligence requires that the defendant be 100% liable for the act of negligence. It is often a case of a serious violation of the duty of care, paired with severe injury or losses to the plaintiff.

Proving Negligence in a Personal Injury Claim

In a personal injury claim, the burden of proving negligence lies entirely on the plaintiff. However, establishing your own case can be quite tricky when you don’t entirely grasp the nuances of the law.

That is why it is prudent to employ an attorney who is familiar with these types of cases and concepts. But, it is also important to find yourself the right personal injury attorney to fight your case. Make sure they have a lot of experience in their field, do your research and look for reviews.

Also, ensure that their experience extends to your state.

Do you need help with fighting your personal injury case? Get in touch with us, and let’s make your fight, our fight! 

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