Elements of a Negligence Claim
In order to prove negligence and win a personal injury claim, you need to prove the basic elements of a negligence case, no matter who was negligent or how the accident or injury occurred. Suffering an injury at the expense of someone else does not alone entitle you to compensation; you need to prove negligence, and to do that, you’ll need a good lawyer.
The top-rated injury lawyers at Grimes & Fertitta are experts at proving negligence and getting their clients the restitution that they deserve. If you think you were the victim of another party’s negligence, read about when to sue for personal injury, call Grimes & Fertitta to discuss your legal options.
What are the four basic elements of a negligence claim?
In order to prove negligence, your representation must prove that all four elements of a negligence case apply to your specific situation.
Element 1 – Duty of care
It must be proved that the defendant had a duty to act (or not act) within a standard of care that any reasonable person or average person would. This can often be thought of as a duty to not cause you, or anyone else, harm. For example, drivers have a duty of care to drive responsibly for the safety of themselves and other vehicles on the road.
Element 2 – Breach of duty
Your representation must prove that the duty of care was breached. Courts usually use the Hand Formula to determine whether or not the defendant has breached their duty. The Hand Formula looks like this:
If B < PL, then that party will be liable.
It states that if the burden of taking precautions (B) is less than the probability of injury (P) multiplied by the gravity of any resulting injury (L), then the party with the burden of taking precautions will have some amount of liability. Basically the simpler, or more reasonable, it would have been to prevent injury or loss, the greater the chance the party is liable for a breach of duty.
Element 3 – Causation, or cause in fact
It must be proved that the established breach of duty did in fact cause the injury. Showing that the breach of duty created a less safe environment is often not enough, as the court is looking for direct causation. A way to prove causation could be through documentation of the accident including photos, eyewitness statements, or medical receipts.
Element 4 – Proximate cause
Your attorney must illustrate that the average, reasonable person, could have foreseen that their breach of duty/failure to provide the standard of care could cause injury or possible harm.
Bonus – Damages
A client must prove to the court that they were actually harmed by the accident in order to receive financial compensation from the liable party. This proof of either bodily harm or damage done to property will determine what kind of damages to seek. Pure economic loss does not usually meet this requirement on its own, however mental distress caused by economic loss might.
Continue reading: Types of damages in a lawsuit
If the insurance companies know that you were harmed because of another party’s negligence they may attempt to contact you. If you receive a call from an insurance adjuster do not, under any circumstances, speak to them, and call the lawyers at Grimes & Fertitta immediately. This will help you avoid a lowball insurance settlement offer that they are likely to tempt you with.
Types of negligence in Texas
Texas negligence law stipulates a few different types of negligence, although the elements of a negligence case don’t fundamentally change based on the type of negligence.
There are a few types of comparative negligence:
- Pure comparative negligence allows a party to collect damages even if they were partially responsible for the injuries they received in an accident. The intent of pure comparative negligence is to avoid victimizing those who have already suffered from accidents but allows a party to seek damages even if they were primarily at fault for an accident, which can lead to frivolous claims.
- Modified comparative negligence and the 50% bar rule allow someone to collect damages if they are less than 50% at-fault for their accident (49% or less). Damages claimed are often reduced according to the percentage to which the person was at fault for their own accident. Persons 50% or more at fault for their accident are not able to claim damages.
- Modified comparative negligence and the 51% bar rule are what the state of Texas uses in comparative negligence cases. It is like the 50% bar rule, except that it allows persons to collect damages who are up to 50% responsible for their own accidents, instead of 49%.
Vicarious liability is used when someone is held responsible for the actions of someone else who caused an accident. Some common examples of those being held liable for the actions of others are the parents of underaged drivers, employers of negligent employees, or pet owners.
In order to prove gross negligence, it must be provided that a person was aware that their actions carried a high probability to create extreme risk, and consciously committed their actions despite the consequences. Unlike standard negligence cases, punitive damages may be sought in gross negligence cases.
Does your case contain all of the elements of a negligence claim? Call Grimes & Fertitta now for representation.
Proving the elements of a negligence case takes time and experience. If you are concerned that you or a loved one has been the victim of negligence by another party do not delay, call the personal injury experts at Grimes & Fertitta.
Take your first step on the road to getting what you deserve. Call Grimes & Fertitta today at (713) 224-7644 or go online to schedule a free consultation.
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