Negligence

Negligence is an important legal concept. Negligence must be proven to succeed in a variety of different lawsuits. An injury alone does not mean that you have a claim, you will have to prove negligence on the part of the other party. In a personal injury case the injured party will have to prove that their injury was caused by the negligence of the other party. In a car accident case, the injured party will also have to prove negligence in order to succeed. 

Negligence laws vary by state. Injured parties in Charlotte, North Carolina will have different negligence rules than those in Philadelphia, Pennsylvania. 

What Is Negligence?

Black’s Law Dictionary defines negligence as “[t]he omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do. Or doing something which a prudent and reasonable man would not do.” 

Negligence, in layman’s terms, occurs when someone acts in a way that is not normal, or is reckless. They do not behave as a “reasonable” person would under the circumstances. Let’s take the case of a car accident. If a reasonable person was driving down the road and saw someone crossing in the middle of the street, they would slow down or stop to let the person finish crossing the road. If on the other hand, the driver sees the person but does not slow down and hits the pedestrian, he/she is not acting as a reasonable person would under the circumstances and is therefore acting negligently. 

In the case of a business, a business owes a “duty of care” to its employees, customers and clients. A restaurant has a duty to make sure that the food it is serving to customers is cooked properly. Serving customers raw chicken, which could lead to food poisoning, would violate the restaurant’s duty of care to its customers and could lead to a finding of negligence.If a diner at the restaurant has a shellfish allergy but does not mention the allergy, and then becomes sick the restaurant would not be negligent.  

Common Types of Negligence

1. Ordinary Negligence. Although some people use the term ordinary negligence, it is really just the same as negligence. Ordinary negligence is when a person fails to use reasonable care under the existing circumstances. In the above car accident example, not slowing down would be considered ordinary negligence. 
2. Gross Negligence. Gross Negligence occurs when a person’s actions are intentional or show a complete lack of regard for others and their safety. Using the above car accident example, speeding up to intentionally hit someone crossing the street would be gross negligence. 
3. Negligence Per Se. Negligence per se comes into play when an injury happens because one party violated a law that is intended to protect the public. Speeding laws are intended to protect the public, and someone who causes a car accident because they were speeding could be found to be negligent per se. Negligence per se is recognized in Charlotte and North Carolina but is not recognized in all states. 
4. Contributory Negligence. Contributory negligence is the law in only a handful of jurisdictions including Charlotte and North Carolina. If a plaintiff is partially at fault, contributory negligence will prevent the plaintiff from recovering damages. Sticking with the car accident example above, if the pedestrian (also the plaintiff) was illegally crossing the street, so not at a light or in a cross-work, then they might be found to have contributed to the accident and barred from recovering any damages.  
5. Comparative Negligence. Comparable negligence is the law in the majority of states. If a plaintiff is partially at fault, then his/her damages will be reduced by the amount to which they are found at fault. So, in the car accident example, in a state that follows the comparative negligence rule, if the pedestrian is found to be 30% at fault, his/her damage award would be reduced by 30%. In the case of a $100,000 verdict in the plaintiff’s favor, he/she would only receive $70,000. 
6. Vicarious Liability. Vicarious liability means that an employer, business or organization is responsible for the negligent actions of those who are employed by them, or who are under their supervision. In the car accident example above, if the driver was an employee of a retirement community and driving members of the community in a company van and caused an accident, the retirement community could be found to be liable vicariously. 

How Do You Prove Negligence?

To prove negligence, a plaintiff (the injured party) must show that:

1. The defendant (the person who caused the injury or car accident) had a duty to act or not act;
2. The defendant breached, or did not meet, the duty;
3. The defendant’s breach of duty was the cause of the plaintiff’s injury; and
4. The plaintiff had actual damages. 

Could you prove the elements of negligence using the car accident example cited above? Looking at the elements with the facts: 

1. Drivers have a duty to follow the traffic laws. This can be established easily.
2. The driver breached the duty. This is more tricky. If the driver was speeding, or not obeying traffic rules like pedestrians have the right of way when in a crosswalk, then they likely have breached the duty. However, if the pedestrian was crossing illegally, there might not be a breach of duty. Yet there still could be negligence because a reasonable person driving who sees someone crossing the road, whether legally or illegally, would slow down.
3. If the pedestrian was crossing legally and the driver of the car hit him or her and caused an injury, then the driver’s breach of duty would be found to cause the accident. If the pedestrian was crossing illegally, then likely they would both be found to be at fault for the car accident.
4. If the pedestrian was injured and had to go to the hospital then they would have actual damages. If the pedestrian was merely knocked to the ground then they’d likely have no actual damages. 

This particular set of facts could prove tricky for a plaintiff in Charlotte, North Carolina, particularly since North Carolina which is a contributory negligence state. Every case will be different because the facts will be different and the law is complex. That is what is so important to consult with a Charlotte, North Carolina attorney to discuss your specific facts and the law.

Let Our Negligence Attorneys Review Your Case

If you have a personal injury or car accident case, the Charlotte, NC based lawyers at Rosensteel Fleishman, PLLC are experienced attorneys who can help you understand your rights and whether or not there is negligence to proceed with a claim. Please contact our office at 704-714-1450. There is no fee for an initial consultation.