A standard dictionary definition of negligence is neglecting to take the care that a person of average prudence would typically exercise in a comparable circumstance. The legal issue of negligence is much more complex.
Generally, it is up to the plaintiff, the one who is suing, to prove that the defendant was negligent. To demonstrate that a business is negligent in a serious injury case involves five different elements:
- Duty – The defendant must owe a responsibility to the plaintiff. This depends on the relationship between the two parties. A plaintiff who was trespassing on the defendant’s property would probably not be able to demonstrate a duty owed by the defendant regarding the maintenance of the property.
- Breach of duty – Next, the plaintiff has to show that the defendant did not exercise reasonable care in that duty.
- Cause in fact – If not for the actions of the defendant, the plaintiff would not have been injured.
- Proximate cause – Could the defendant have foreseen the damages to the plaintiff? For example, a defendant who tosses a rock off a balcony could reasonably foresee damages to a vehicle or the rock hitting a cyclist. This is proximate causation.
- Damages – It is not enough just to show that the defendant failed to exercise reasonable care; the plaintiff must also demonstrate that the harm resulted in some kind of damages to the plaintiff. In the above example, if the rock did not hurt the cyclist, there is no negligence.
Filing a claim
Even though you might think you have all the elements of a negligence claim, if you do not have experience, it can be difficult to present a strong case compelling enough to win in court. An experienced personal injury attorney can assess your situation and help you put the evidence together in a way that would make your case. If you have been injured due to another person’s negligence, it is a good idea to talk to an attorney before discussing the case with the insurance company.