Every year, unintentional injuries claim about 145,000 American lives. Millions of other people must deal with serious injuries. These events are very disruptive, not to mention extremely expensive. Unintentional poisoning, mostly drug overdoses, kill about 47,000 people. Motor vehicle crashes (about 38,000 deaths) and falls (around 33,000 deaths) round out the top three.
Negligence law usually comes into play in these instances. Many drug overdose deaths involve either over prescription or lack of doctor diligence. Human error causes nearly all motor vehicle collisions. Defective tires and other dangerous products only cause a tiny fraction of these crashes. Most falls are preventable as well. Lack of safety equipment at construction sites and lack of supervision in retail stores are two good examples.
A great experience from a personal injury lawyer starts with a compassionate attorney who understands your pain and suffering. Perhaps more importantly, that attorney must know how the law applies to the given facts.
Theories of Liability in Negligence Cases
Most people believe that the concept of negligence comes from a 1930s case called Donoghue v. Stevenson. In this case, the court basically codified the old Golden Rule which many American schoolchildren once had to memorize.
Most people have a duty of reasonable care. For example, most drivers must obey “the rules of the road” and drive defensively. If the tortfeasor (negligent actor) had a special skill, like a professional driver, a higher duty of care may apply. The same result occurs if there is a special relationship between the victim and tortfeasor, such as doctor-patient.
If the tortfeasor violates the applicable duty of care and that violation causes injury, the tortfeasor may be liable for damages. Usually, these damages include compensation for both economic losses, such as medical bills, and noneconomic losses, such as pain and suffering. Additional punitive damages are sometimes available as well, in extreme cases.
In many situations, liability is a little easier to establish, because of the negligence per se shortcut. Many tortfeasors are liable as a matter of law if:
- They break a safety law, and
- That violation substantially causes the victim/plaintiff’s injury.
The burden of proof is the same in both negligence and negligence per se cases. Usually, the plaintiff must prove every element of the tort by a preponderance of the evidence (more likely than not).
Some Defenses in Negligence Cases
Contributory negligence appears in almost every case in some way, shape, or form. Essentially, the defendant or insurance company shifts blame for the injury onto the victim.
The specifics vary by state. For example, Iowa, Wisconsin, and Illinois are all modified comparative fault states with a 51 percent bar. In these jurisdictions, the tortfeasor must be at least 51 percent responsible for the plaintiff to recover a proportional share of damages. The jury normally divides fault based on the evidence presented.
There are some other defenses as well, and if successful, they may completely defeat liability. For example, in pedestrian injury cases, the insurance company often tries to use the sudden emergency defense. But usually, this defense does not apply.
If you were hurt in an accident, talk to an attorney today about your legal options.