The Different Types of Negligence in Personal Injury Claims
Nearly all personal injury claims are based on the fact that one party was negligent. However, there are different types of negligence involved in each personal injury claim. These contribute both to who might be held liable for damages resulting from a personal injury accident, as well as the degree of liability a person may face.
If you are pursuing a personal injury claim, it is important that you understand the basics about how negligence works, the different types of negligence, and how to prove negligence in a personal injury claim. Although this can be a complex topic, the knowledgeable personal injury lawyers at Ketterman Rowland & Westlund are here to help.
Please contact us to talk about the specifics of your case in a free, no obligation consultation. Our team can help you identify all potentially liable parties and work to prove negligence in your claim.
What Is Negligence?
The crux of most personal injury claims is negligence. But what exactly is negligence?
Negligence is the failure to exercise the same degree of care that a person of “ordinary prudence” would have exercised under the same circumstances, according to the Legal Information Institute (LLI) at Cornell University Law School. Negligence is often an action, but it can also be an omission, such as if a duty to act is not fulfilled.
Note that negligence applies in all different types of personal injury claims, including car accidents, truck accidents, slip and falls, defective product claims, nursing home neglect cases, and more.
What Are the Different Types of Negligence?
There are various theories of negligence that may be applied in your case. Note that the theory that is applied may depend, in part, on where you live. For example, the theory of negligence that is applied in a Texas is not the same theory of negligence that is applied in California.
- Contributory negligence. Contributory negligence is, arguably, the most dated theory of negligence, as well as the most rigid. In a contributory negligence jurisdiction, if the plaintiff is found by a jury to be the least bit negligent ─ i.e. if the plaintiff contributed to his or her own accident or injuries in the slightest, even a mere 1 percent ─ then he or she will be barred from recovery entirely. There are only four states ─ Alabama, Virginia, North Carolina, and Maryland ─ and Washington, D.C., that follow the pure contributory negligence rule.
- Comparative negligence. Comparative negligence, on the other hand, does allow for a plaintiff’s recovery, even in the event that the victim contributed to his or her own harm. There are three types of comparative negligence:
- Pure comparative negligence. Pure comparative negligence, or pure comparative fault, is exactly the opposite of pure contributory negligence. In a pure comparative fault jurisdiction, the plaintiff can recover damages even if he or she was 99 percent to blame for the injuries, although the person’s damages award would be reduced in proportion to the degree of fault.
- Modified comparative negligence ─ 50 percent bar. In a modified comparative negligence jurisdiction, a plaintiff can recover compensation even if he or she contributed to the injuries, as long as the person is less than 50 percent at fault. The plaintiff’s recoverable damages award would be reduced, though, in proportion to the plaintiff’s degree of fault. A person is barred from recovering damages if he or she is 50 percent or more at fault.
- Modified comparative negligence ─ 51 percent bar. Texas follows the 51 percent bar rule. In a 51 percent bar state, the plaintiff can recover damages if he or she is 50 percent at fault or less. Again, though, the damages would be reduced by the percentage of fault assigned. So, if a person was awarded $100,000 but was also found to be 10 percent at fault, the award would be reduced by 10 percent, or $10,000.
- Combination of comparative and contributory negligence. In a motor vehicle accident claim, an insurer may deny a victim’s claim altogether if it is found that the plaintiff contributed to/was at fault for the accident. Or the insurer may reduce the amount of the plaintiff’s recoverable damages in proportion to the person’s degree of fault.
- Gross negligence. Gross negligence refers to a type of negligence that goes beyond just failing to act with the necessary or expected degree of care. Instead, gross negligence occurs when a defendant’s actions demonstrated reckless disregard for the safety of others. The LLI holds that gross negligence is more than “a simple inadvertence,” and explains that it may affect the amount of damages recoverable.
- Vicarious liability. Finally, another legal theory pertaining to negligence that you should be aware of if you are pursuing a personal injury claim is vicarious liability. Vicarious liability refers to liability that one party bears for the conduct of another. For example, a parent may be vicariously liable for a teen’s actions, or an employer may be held vicariously liable for the actions of an employee.
Proving Negligence in a Personal Injury Claim
In a personal injury claim, there are four components that you will need to establish in order to recover damages from the defendant. These components are the same regardless of the type of claim you are pursuing (car accident claim vs. slip and fall claim, etc.) Proving each of these four elements is essential for recovering compensation:
- Duty of care. You must be able to prove that the defendant owed you some degree of care. In many cases, this is implied. For example, all drivers owe a duty of care to everyone else on the road to operate their vehicles responsibly and within the confines of the law. In other cases, though, you will need to prove that the defendant owed you a duty of care. For example, you may need to prove the duty of care that a property owner owed to you while you were on their property.
- Breach of duty. The second part of the personal injury claims process is proving that the duty of care owed to you was breached by the defendant. (This is the negligence aspect of the claims process.)
- Causation. Next, you must prove that the defendant’s breach of the duty of care was the cause of your accident and injuries. Another way to think about this is that you must prove that your accident and injuries would not have occurred but for the defendant’s negligence. If you can’t prove causation, you won’t have a case.
- Damages. Finally, you must prove that you suffered actual damages as a result of the accident. Even if you can prove that the defendant acted negligently and that the negligence caused an accident, if you didn’t suffer actual harm, either economically or non-economically, you won’t have a case.
As you can see, the legal process is very technical, so it is important to have a knowledgeable attorney on your side to craft a strong case for you.
Is There Any Other Basis for Personal Injury Besides Negligence?
Although the vast majority of personal injury claims are negligence-based, there are two other theories of liability that may be applied. These include:
- Strict liability. Strict liability exists when a defendant is liable for a plaintiff’s damages regardless of what their intent was and regardless of whether or not negligence occurred. For example, in a product liability case, a defendant (the product manufacturer) may be held strictly liable for a plaintiff’s injuries that were caused by a defective product.
- Intentional wrongs. An intentional wrong, or intentional tort, results from a defendant committing an intentional act against the plaintiff. For example, an act of assault is an intentional tort.
Being hurt in an accident can be scary, and navigating the personal injury claims process while coping with an injury can feel overwhelming. If you have been harmed due to the negligence of another, you may have a personal injury claim.
Rather than attempting to navigate the claims process on your own, though, and risk overlooking an important component that could have a major effect on the outcome of your case, we strongly recommend working with an experienced attorney. At Ketterman Rowland & Westlund, our knowledgeable personal injury lawyers can make sure you understand negligence and the law as it relates to your case.
To learn more about how we can help, contact us now to schedule a free consultation. Our respected law firm has the experience, the knowledge, and the resources to make a difference in your case.