The American legal system imposes civil liability based upon a jury finding of negligence on the part of the alleged liable party or “tortfeasor.” But what does this mean? Who decides what conduct is “negligent” and under what scenarios a person may be sued? This article will explore each of these questions and then give real world examples of when a person may be sued for negligence.
What Is Negligence in Simple Terms?
Negligence in simple terms means that a person had a legally-recognized obligation to act a certain way and they failed to do so. Negligence becomes actionable in the form of a lawsuit when, as a result of the failure of one to meet their obligation or “duty,” another person is harmed in a way that was foreseeable.
Where Do Legal Duties Come From?
Legal duties derive from two primary sources: English Common Law and Statutory Law created by a City, State, or Federal legislative body. United States law originally developed from the old English Common Law. The English Common Law was developed by the kings and courts of England as reflected in their opinions and decisions. Under English Common Law, everyone is expected to live up to certain standards when it comes to dealing with their fellow man. These standards are known as “duties” under the law. These duties are basic codes of conduct imposed on everyone such as a duty to act with ordinary care not to harm others. The legislative duties are specific statutes and rules that establish how people are required to act such as criminal laws and traffic laws.
Negligence as a Basis for Legal Liability
Four basic elements must be met before liability may be imposed on the basis of negligence. There elements are:
- A duty to act must exist,
- The tortfeasor must fail to meet (breach) that duty,
- The victim must suffer some harm as a result of the alleged breach of duty, and;
- The breach must proximately cause the harm.
If the above four elements are met, there is a legitimate cause of action for negligence for which the injured party may file a lawsuit.
Application of the Elements
The Judge determines whether a duty exists. Next, a judge or jury decides whether the duty was met and what harm resulted from it. Proximate cause is combination of whether the breach was the cause in fact of the jury and whether it was a foreseeable consequence of the breach of duty. Under this standard the tortfeasor is held responsible for the consequences of his actions that he should have anticipated.
Contributory Negligence
In most jurisdictions, the conduct of both all parties may be considered in deciding who was negligent. Moreover, more than one party may be negligent. When the party bringing the claim is also negligent, whether they may recover will depend upon how their jurisdiction views their negligent conduct and the percentage to which their negligence contributes to cause the harm. Some jurisdictions bar the injured party from recovery if they were found contributorily negligent at all. Others that use a comparative negligence or modified comparative negligence rule, bar recover if they injured party was 50 or 51% or more negligent and the reduce the recovery by the percentage of negligence placed on the injured party if that percentage is less than bar percent threshold.
Where Can Negligence Occur?
Anywhere that an obligation to act a specific way is recognized by law, custom, or professional standards, there is a potential for a negligence cause of action when someone is harmed. This includes negligence while operating a motor vehicle, negligence in business, negligence in healthcare, negligence in the workplace, and negligence in property ownership and/or maintenance.
Examples of Negligence in Operating a Motor Vehicle
Every state has traffic laws created by the state legislatures that set the standard of how to act while operating a motor vehicle. Most of these traffic laws are uniform across the United States. Some examples of failures to act in accordance with the traffic codes that demonstrate examples of negligence are:
- Failing to stop for a red light.
- Driving the wrong way.
- Failing to maintain a single lane.
- Driving at an excessive speed.
- Driving while intoxicated.
- Distracted driving.
If any of the above acts result in a collision causing another person injury, that injured party may hire a car accident attorney and bring a lawsuit for negligence against the actor.
Examples of Negligence in Business
Many professionals are governed by a set of professional standards. These are the accepted standards of conduct within an industry. They are typically codified in law and/or developed through a governing body for the profession such as a state licensing board. Examples of negligence in business include:
- An accountant who fails to use accepted and approved accounting methods to estimate a client’s taxes.
- A building designer who fails to meet the building standards in his design.
- An employer who commits wage theft by failing to pay his employees for work that the federal labor board says he is entitled to be compensated for.
- A real estate agent who fails to check that a person holds a valid title before he advises his client to enter into a purchase contract.
- An insurance agent who fails to renew coverage after accepting a client’s premium.
- A corporate officer who makes reckless statements about a company causes its value to decline to the detriment of shareholders.
- An insurance company adjuster denies a valid claim by an insured.
Examples of Negligence in Healthcare
In the medical field, every profession has its own set of professional standards that determine the medical standard of care for each provider of healthcare. Failure to comply with the medical standard of care is medical negligence which may give rise to a medical malpractice lawsuit if the patient is injured thereby. Some examples of medical negligence in the healthcare industry include:
- A surgeon who operates on the wrong limb or nicks an artery during surgery.
- A nurse who fails to monitor the heartbeat of a sedated patient in the post-surgery recovery unit he slips into cardiac arrest.
- An emergency room doctor who fails to run a test indicated by the patient’s presentation or history resulting in the failure to diagnose and treat a medical condition.
- A pharmacist who fills the wrong prescription for a patient.
- A radiologist who fails to spot signs of appendicitis in an X-ray resulting in a rupture.
Examples of Negligence in the Workplace
Employers have a duty to provide a safe workplace. Industry standards such as OSHA set forth certain rules that must be followed to protect employees. When employers fail to implement rules and procedures to ensure standards are met, the employer may be held liable for negligence. Depending upon the state you are in and the employer, you may be able to pursue a claim under either worker’s compensation or common law against the employer. Some examples of workplace negligence include:
- An employer who fails to keep the workspace free of trip and slip hazards for employees.
- A construction company that fails to provide fall protective gear for employees working at heights.
- A chemical company that fails to provide workers with safety goggles.
- A warehouse company that fails to provide forklift operators with proper training on how to drive a forklift.
Examples of Negligence in Property Ownership or Control
Anyone who owns real or personal property may be liable if they are negligent in their maintenance and/or control of their property as it relates to others. Failing to remedy known dangers and/or provide warnings regarding the dangers may result in liability to guests or other persons you should have anticipated would encounter these. Additionally, if you own a pet but are negligent in keeping or controlling your pet, you may be liable for your actions if you had reason to know your pet was dangerous. Some examples of negligence in property ownership or control are:
- A store owner who fails to protect customers against slipping on water from a known leak in the roof.
- A homeowner who fails to warn a guest of a rotten entry ramp that falls through.
- A dog owner that fails to restrain a dog from people when it has bitten before.
What Kind of Lawyer Sues for Negligence?
Negligence lawsuits are brought by personal injury lawyers on behalf of the injury victims. Personal injury is a broad term that encompasses all the above areas of law. Some personal injury lawyers specialize in one or more of the above fields while others engage in a general practice of all of the areas of personal injury law.
Simmons and Fletcher, P.C., are personal injury attorneys who have been helping victims since 1979. Call us for a free consultation or if you would like more information on the types of negligence lawsuits we file. Our number is 800-298-0111.