The basis of both personal injury insurance claims and personal injury lawsuits is a legal concept known as negligence. Before you begin negotiating your personal injury insurance claim with a claims adjuster or consider filing a personal injury lawsuit with the assistance of an experienced personal injury lawyer, you should understand what the four distinct elements of negligence are and how they relate to one another.
This page contains basic information about negligence. It may not apply to you and is not a substitute for consulting with an experienced personal injury lawyer. Only a licensed attorney in your area can give you legal advice about your situation.
The definition of negligence is:
The failure to do an act which a reasonably careful person would do, or the doing of an act which a reasonably careful person would not do, under the same or similar circumstances to protect oneself or others from bodily injury, death, property damage.
Typically, negligent conduct involves an action, such hitting a pedestrian in an intersection or rear-ending another driver’s vehicle. Negligent conduct may involve inaction – that is, a failure to act. For example, a lifeguard who fails to rescue someone who is drowning in the pool he or she oversees may be liable for negligence. Similarly, a business owner may be liable for negligently failing to repair a hazardous condition on his or her premises that injures a customer.
The Elements of Negligence
There are four distinct elements of negligence. An “element” is an essential component of a legal claim. If you cannot establish each of the four elements of negligence, you will not be able to secure compensation for your injuries. This is true regardless of whether you are filing a personal injury insurance claim or a lawsuit.
(Also Read: How Police Reports Can Impact Insurance Claims)
Duty of Care
The first element of negligence is known as the “duty of care.” A duty of care arises when the law recognizes a relationship between two parties, and due to this relationship, one party has a legal obligation to act in a certain manner toward the other. Here are some examples of situations where a duty of care exists:
Example: All drivers have a duty to exercise care toward other drivers, cyclists, and pedestrians who share the roadways. They are required to abide by traffic signals and laws and must refrain from causing unreasonable danger to others. Example: Business owners have a duty to take reasonable care to keep their premises safe for customers. Generally, business owners must regularly inspect their property for unsafe conditions and either warn customers of their existence or remedy them within a reasonable time frame. Example: Manufacturers of products, including pharmaceutical drugs and medical devices, must ensure that their products do not cause unreasonable danger to consumers. When a product is inherently dangerous, manufacturers must adequately warn consumers of the risks involved with using the product. Example: Doctors and other medical care providers have a duty to treat their patients in a medically appropriate manner. In some situations, they must warn their patients of the risks involved with a given course of treatment.
The second element of negligence is a breach of the duty of care. A person or entity (such as a business or government agency) breaches the duty of care by failing to exercise reasonable care in fulfilling the duty. Here are some examples of scenarios in which a breach of the duty of care has occurred:
Example: A driver speeds down a residential street on a weekday afternoon, hitting three children crossing the street on their way home from a nearby school.
Example: A truck driver does not allow adequate stopping distance when approaching an intersection, striking a minivan that was stopped at the light.
Example: A dog owner who knows of her dog’s aggressive tendencies towards small children brings her dog to a tee-ball game, where the dog attacks a child.
Example: A home goods manufacturer uses lead paint to coat a vase, selling it to consumers in the United States.
Example: A surgeon removes the wrong kidney from a patient, leaving the patient with no functioning kidneys.
The third element of negligence is causation. The breach of the duty of care must be the legal cause of the harms suffered by the injured person. There are two distinct but closely related components of legal causation: actual cause and proximate cause. Actual cause exists when but for the breach of the duty of care, the injured person would not have suffered an injury. Proximate cause exists when the type and extent of the injured person’s injuries were reasonably related to the breach of the duty of care.
Here are some examples of situations where legal cause exists:
Example: While merging onto a highway, a truck driver hits a motorcyclist. The motorcyclist breaks his neck, suffering paralysis. Had the truck driver not hit the motorcyclist, he would not have broken his neck. The injuries suffered by the motorcyclist are reasonably related to the truck driver’s failure to exercise reasonable care while merging onto the highway. Example: A driver strikes a pedestrian in a parking lot, causing the pedestrian to suffer a broken leg and severe bruising at the site of impact. But for the driver striking the pedestrian, the pedestrian would not have been hurt. The pedestrian’s broken leg and bruising are reasonably related to the driver’s failure to exercise reasonable care while driving in the parking lot. Example: The manager of a grocery store watches a store employee spill cooking oil on the tile floor in the condiments aisle. Neither the manager nor any of her employees clean up the spill in a timely manner. An elderly customer slips on the spilled oil, breaking her hip. But for the failure of the grocery store manager and her employees, the elderly customer would not have slipped on the floor. A broken hip is reasonably related to their breach of the duty of care.
The fourth element of negligence is damages. The injured person must have suffered an injury that can be remedied by money damages, which is the legal term for monetary compensation. Here are some situations in which the damages element of negligence is satisfied:
Example: The driver of a sport utility vehicle, in the morning rush hour traffic, turns left at intersection, striking a motorcyclist. He requires surgery, spends months in a cast, and misses work. Money can compensate the motorcyclist for his medical expenses, lost earnings, the pain and suffering he endured, and loss of quality of life. Example: The manager of a hardware store displays hammers for sale on a flimsy shelf above the cash register. The shelf collapses, sending hammers flying into the air. One of the hammers strikes a customer on the head, causing him to suffer a concussion. The customer misses several weeks of work, experiences migraines, and receives a bill from the hospital for $2,000 dollars for a CAT scan. Money damages can compensate the customer for his injury, lost wages, ongoing medical problems, and the hospital bill.
It is important to understand that there are many factors that may limit compensation for your injuries (or prevent you from being compensated at all). To understand some of these factors, visit the following pages or schedule a consultation with a personal injury lawyer:
As you can see, the four elements of negligence are closely related to each other. If you were injured in an accident and you believe that you can establish each of the four elements of negligence, you may be able to successfully negotiate a personal injury claim with the at-fault party’s insurance company. Understanding how each of the elements of negligence are defined will help you clearly present your case to the claims adjuster.
If negotiations with the insurance company break down, or you have any questions about your legal rights or responsibilities, you should speak to an experienced personal injury lawyer immediately. The information on this page is not a substitute for the guidance of a reputable attorney, and there are many exceptions to these general rules. Only a licensed attorney in your area can give you legal advice about your situation.
Disclaimer: Information provided on this site is NOT formal legal advice. It is generic legal information. Under no circumstances should the information on this site be relied upon when deciding the proper course of a legal action. Always get a formal case evaluation from a licensed attorney if you think you might have a personal injury lawsuit.