The Elements of Negligence

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Earlier, we discussed what negligence is. At it’s most basic, negligence is the failure of a person to exercise reasonable care. But, like all things lawyers touch, this is a complicated concept. There are different ways to think about negligence, but a case generally boils down to 4 elements: duty, breach, causation, and damages. There are different formulations of this breakdown, but I like the 4-part explanation best.

DUTY

All negligence claims are based on a duty. Most often, that is the general duty we all have to exercise reasonable care when interacting with the world. Most often, this forms the basis of a negligence claim. But some people, when performing certain tasks, are held to a higher standard of care. A doctor, for example, can be held legally negligent for failing to do something that an ordinary person would never be expected to do. This is a large part of why all injury and negligence cases are so different. Analyzing what happened depends on who did it, and in what capacity they were acting.

BREACH

Once we have established what duty was owed, we need to determine whether there was a breach of that duty. Although it can be a significant factor, the fact that an injury occurred does not necessarily mean that there was a breach of the duty. As the standard of care rises and the task being performed becomes more complex, it can be harder and harder to tell whether a breach occurred. In the case of the doctor mentioned above, it may require expert testimony by another doctor to determine whether the first doctor took the precautions that were reasonable. In more ordinary circumstances, like a driver who failed to secure his trailer, common sense intuitions about safety can go a long way – but fall short in unexpected ways. The bottom line is that a trained negligence lawyer will probably be necessary to determine whether there was a breach or not. And sometimes, the area is just so gray that a judge or a jury is required to make the final determination.

CAUSATION

For a negligence claim, it is not enough that a duty was breached. The injured party must also show that the breach was the cause of the damages that he sustained. This can be a very complicated step. A law school trick for determining causation is the but-for test. Ask yourself, “but for the defendant’s actions, would the injury have taken place.” If, in a world without the defendant’s action, the injury still would have occurred, we probably don’t have causation. On the other hand, if we take away the defendant’s action and the injury disappears, that’s a good sign that causation exists. It’s important to remember that there is some limit on causation. People are only responsible for the reasonably foreseeable results of their actions. If the damage was a result of a long and windy path of improbable and unlikely reactions, it may be that legal causation will limit the defendant’s responsibility and determine that causation doesn’t exist. Again, this is highly fact specific and worth consulting an expert about for your situation.

DAMAGES

Finally, a negligence case must have damages. It’s not enough that a duty was breached and that breach caused something to happen to a victim. The breach must cause damage to the victim. Damages are about placing a monetary value on the harm to a victim. They are imperfect and occasionally insulting, but the best our legal system has to offer. There are different types of damages. Special damages are quantifiable dollar amounts that the victim lost because of the harm. They include compensatory damages. They might include lost wages, medical bills, or damage to your car as examples. General damages are reflective of harm that doesn’t have a specific dollar amount. Pain and suffering a commonly used example. Finally, we have punitive damages which are intended to punish the negligent party for his actions. They don’t exist to compensate and aren’t tied to the harm suffered but instead to how badly the defendant acted.

Calling an Injury Attorney too Late Can Ruin Your Case

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Too often we have to turn away potential personal injury clients because they called too late. Before their case could even get started, it was shut down. Leaving them with injuries and losses that will never be compensated.

In my experience, people don’t contact an injury lawyer soon after an accident for different reasons. Some believe their injury is minor or temporary, and will just go away. Others think the insurance adjuster when he says he will be fair. And some others want to avoid an cost of a lawyer by handling the claim themselves.

Honestly, there are personal injury cases where a lawyer won’t be all that much of a benefit. We pride ourselves on the fact that we’re honest when there isn’t much value we can bring to a case and they would be better off handling the matter on their own.

But there are many other cases where people wait too long to contact a lawyer (or don’t contact one ever) and make serious errors that hurt their case or don’t collect the information and evidence needed to prove their case. And, even worse, some wait past the deadline for taking legal action (the statute of limitations) or call a lawyer so late that it’s impossible to take on the case.

Here’s my advice: if you have been injured because of someone else’s actions and you believe that person (or business) is at fault, call an experienced personal injury lawyer for a free consultation. Obviously, we would prefer that you call us, but at at least call someone with the knowledge and skills to evaluate your case and advise you of your rights.

Dog Bite Injuries

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Dog attacks can cause painful and lasting injuries for the victims. The owners of dogs who bites bystanders are held strictly liable. This means that even if the owner was trying to control the dog, and took adequate precautions, they can still be held liable for the damage that their dogs cause.

If you’ve read other articles on our site, you know that this is a departure from the common standard. Usually, you have to prove that the other party was negligent before they can be held responsible. In the case of dog bites though, the statute creates strict liability so negligence is not an issue. The law does impose a few other restrictions though.

The law only applies within an incorporated city or town. Also, the victim must either be in a public place, or be lawfully in a private place. The upside of this is that if your dog attacks a burglar who is robbing your house, the thief can’t turn around and sue you for his injuries. But, if you are walking down the street and a dog bites you, you probably have a cause of action against the owner. So long as you meet the next requirement, which is that the dog attacked without provocation. The law will not protect someone who harasses a dog and then is attacked because of it.

Law suits in dog bite cases often focus on whether the victim harassed the dog, and whether they were trespassing at the time of the attack. Unfortunately, the Supreme Court has had very few chances to address this law meaning that we don’t have a tremendous amount of guidance. But we do know a few things. In one case, a man had his hands over his neighbor’s fence. The neighbor warned him to remove his hands from the fence prior to the dog bite attack, but the man did not remove his hands. The Supreme Court ruled that this did not make him a trespasser and he could still recover for his injuries. In the same case, the man who was attacked had chased the dog with a fence post four to six weeks before the attack. The Supreme Court ruled that this did not qualify as “provocation” under the dog bite laws. While I would never recommend either course of action, it does give some idea for when the statute continues to apply.

Dog bites cause immediate physical pain, can result in the need for surgery or other rehabilitation, and often include severe psychological trauma. Dealing with the fallout from an animal attack requires skill and a delicate touch. If you or your child has been injured by a dog or animal attack, please consider calling us today for a free consultation.