Negligence is the failure to use reasonable care to avoid a foreseeable harm to person or property. To prove negligence, several criteria must be met:
- First, you must show that there was a duty owed from one person to another. The nature of that duty may change depending on the relationship of the parties.
- Typically, persons owe a duty of "ordinary care" to other people. However, a child is held to a lower standard, that being what another child would do under the circumstances, as opposed to what an adult would do.
- Certain professionals and tradesmen are held to a higher standard, that being what other persons in that profession or trade would do under the circumstances.
- Second, it must be shown that there was a breach of that standard of care. In other words, someone failed to do what they should have under the circumstances in light of the duty owed from one person to another.
- Third, it must be shown that the breach of that standard of care was the actual and "proximate", or legal, cause of the injury. This means that the injury was the foreseeable consequence of the breach of care.
- Lastly, damages must be shown to have resulted from all of the above.
Comparative & Contributory Negligence
Comparative and contributory negligence are defenses available to mitigate the amount that a defendant may have to pay to a plaintiff for damages. Each of these defenses is based on an assessment of fault towards the plaintiff.
Depending upon the laws of the state where the case is venued, one of three different versions of these defenses may be applicable:
- Pure contributory negligence is, by far, the most oppressive to the plaintiff. In those states that allow this defense, if a defendant can prove that the plaintiff is one iota to blame for the accident, then he or she recovers nothing.
- For instance, if the evidence shows that a defendant was speeding and went through a stop sign and that the plaintiff was only one percent at fault because he or she didn't swerve or brake quickly enough, then the plaintiff may be entitled to no recovery.
Less oppressive to the plaintiff and more prevalent are the two different versions of comparative negligence:
- The first version is what is commonly known as "pure" comparative negligence. In "pure" comparative negligence, the award of damages to the plaintiff will be reduced in direct proportion to the plaintiff's percentage of fault, no matter what the ratio.
- For instance, if you are 30 percent at fault for an accident, you could recover 70 percent of your damages. If you are 70 percent at fault for an accident, you could recover only 30 percent of your damages. All of the other parties alleged to be at fault would then be responsible for paying you 30% of your total damages, apportioned between them in proportion to the amount of fault assigned to them.
- The last of these defenses is also fairly common among the states. It is known as "limited" comparative negligence. With this version, in order to be able to receive any damages, the plaintiff must be no more than 50 percent at fault for the injury. If the plaintiff is no more than 50 percent liable, but is still partially at fault, then the award of damages will be adjusted according to the plaintiff's percentage of fault and the plaintiff's award will be reduced accordingly.
- For example, suppose a jury awards you $100,000 in damages as a result of a car accident, but it finds you 30 percent at fault for your injuries because you did not properly use a signal. After applying comparative negligence, you would be entitled to $70,000 in damages - $100,000 minus 30 percent.
In the above example, the judge or jury determines the degree of the each party's negligence and apportions to each party a percentage of the total damages suffered, based on each party's percentage of fault for causing your injury. If you were found to be 51 percent liable, you would be unable to collect any amount.