Tort law is one of the best ways a country protects its people from civil wrong such as gross negligence, but before you can assert it, you need to know the four elements of negligence. These factors can help you determine whether you have a personal injury case and, most importantly, identify the at-fault party or the person with the most liability. Today, you will learn these elements along with some examples to help you understand them.
Four Elements of Negligence | The Primary Factors to Establish Personal Injury Claim
One of the four elements of negligence is duty. It refers to the level or standard of care the defendant owes to the plaintiff, who can be you. The purpose of this is to establish whether there is a relationship between both parties.
The easiest example is when you rode in an Uber, which eventually got in an accident because your driver had fallen asleep at the wheel. You then filed for a personal injury claim due to your whiplash injury.
It can be an easy case, since the relationship between both parties is clear. However, duty remains an element even when the connection is not clear.
For example, you approach a Sacramento personal injury lawyer after a large metal sheet fell on top of your head while walking on a construction site and you obtained a large gash. You and the construction company (and its staff) do not have any personal or professional relationship, but you can file for a negligence claim.
2. Breach of Duty
In most cases, establishing duty is relatively straightforward, but then, your Sacramento personal injury lawyer has to show the individual breached their duty.
Breach of duty, which is one of the four elements of negligence, essentially distinguishes between honest mistakes and negligence. After all, a reasonable person would have taken all the necessary precautions to avoid the harm.
To know if there is a breach of duty, the lawyer tries to determine if the actions of the defendant are normal. To explain, imagine a surgeon did everything in their power to save a patient, but the patient died on the operating table, so you called on a Sacramento wrongful death lawyer.
If other surgeons would have taken the same actions in that situation, the doctor most likely did not breach their duty. Instead, what happened was simply a tragedy out of his complete control.
In contrast, consider the surgeon who operated on the wrong body part, left a surgical sponge in the patient’s body or did the procedure while under the influence of alcohol. Those are all actions most competent surgeons would not do. In these situations, there is a clear breach of duty, and you can sue the medical professional for medical negligence.
To give you another example, imagine that someone spilled a cup of coffee on the floor in a grocery store. The spilled drink made the floor extremely slippery and dangerous. As a result, an unsuspecting shopper slipped and fell, breaking their leg and causing them to be unable to work.
If this all happened within a few seconds, the shop owner could not have reasonably known the spill was there, and it may just be an accident.
However, if the spill was there for hours and the shop owner made no efforts to clean it up, that may count as a breach of duty.
When it comes to breach of duty, there can be a lot of gray areas. For this reason, it is critical to have a quality personal injury lawyer in your corner. They have experience with personal injury and medical malpractice claims, and they also have access to expert witnesses who can help establish there was indeed a breach.
A lot of people are negligent of their duties, but it does not mean they are immediately liable to you or that their actions and decisions caused you harm.
One of the important four elements of negligence is causation. It simply means your lawyer needs to show that the defendant’s breach of duty caused your injuries.
While you were in traffic riding your motorcycle, you happened to see a driver drinking and texting. A few minutes later, you crashed into a lamp post. Should you call on a Sacramento motorcycle accident attorney?
The person texting and drinking while driving may be committing a breach of duty, but if they did not cause your accident, then your case may fail due to lack of a causation element.
Beyond just causing your injuries, the defendant must also have had some idea that their actions could potentially cause you injury. If the injury occurred due to a random sequence of actions a reasonable person could not have foreseen, the defendant may not be liable.
For instance, if a dog rushed out of an unfenced yard and knocked over a jogger, the dog clearly caused injuries to the plaintiff, and arguably, the defendant breached their duty of care by not fencing in the dog.
In contrast, imagine someone was walking their dog. Unknown to them, there was a raccoon nearby. Scared by the dog, the raccoon ran into the middle of the street. This startled a child who dropped their ice cream cone. Then, a jogger slipped on the ice cream. In this case, it would be hard to argue the dog owner caused the jogger’s injuries. The random sequence of events was nearly impossible to predict.
The last of the four elements of negligence is damages. If someone slips in a grocery store but does not get hurt, they have not suffered any damages, and they cannot bring forward a case.
However, damages do not just include physical injuries, so there may be other areas to explore even in a case like that.
Damages can include medical costs, lost time at work, cost of hiring help around the house, and any other direct costs you incurred as a result of your injuries. They can also include pain and suffering.
To calculate pain and suffering, insurance companies and lawyers often use the multiplier method. With this method, they take your actual costs and multiply it by a factor ranging from 1.5 to 5.
For instance, you were involved in a car accident and thus contacted a Sacramento car accident lawyer. If you incurred costs equal to $50,000, but you are also in intense pain, your lawyer may argue you deserve to multiply your damages by three, bringing your claim to $150,000.
In other cases, lawyers value pain and suffering using the per diem method. To calculate your per diem rate, they take your annual income and divide it by the 250 work days in a year.
If you earn $50,000 per year, your per diem rate is $200. If you were in pain for 90 days, your lawyer would argue you deserve at least $18,000.
The idea behind these rulings is that being in pain is worth at least the same amount of money you make going to work every day.
On top of this, you may also have damages related to emotional distress. For instance, if you suffer from PTSD because of the accident, that has to be taken into account. Other potential damages include loss of consortium. That puts a value on how the injuries have affected your intimate relationship with your spouse or the companionship you have with other family members.
Sometimes, you can also claim damages related to loss of enjoyment. If you can no longer pursue your favorite hobbies or do regular day-to-day activities, that falls into this category.
Technology is already helping both lawyers and plaintiffs establish a personal injury case. Watch this video about drones:
If you are dealing with a personal injury, you need a competent attorney fighting in your corner. They can bring together these four elements of negligence and prove you deserve a settlement. Edward Smith and his team have the experience and knowledge you need in this type of situation. They can help you get the compensation and justice you deserve after an accident. To learn more or to get a free case evaluation, contact us today.
Have you ever worked with a personal injury lawyer? How was your experience? Let us know in the comments section below.
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