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Elements of a Negligence Claim

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Elements of a Negligence Claim

Lawyer going over the elements of a negligence claim

Being harmed by the negligence of another party is one of the most common reasons for filing a personal injury claim, but 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.

If you or a loved one were the victims of another party’s negligence, you’ll need the best personal injury attorney Houston has to offer if you want to make sure that you get what you deserve.  The Houston injury attorneys at Grimes & Fertitta are experts at proving negligence and getting their clients the restitution that they need to heal.

Call the Houston personal injury attorneys at Grimes & Fertitta today at (713) 224-7644 to start fighting for what you deserve.

What is negligence in law?

What are claims of negligence? Negligence claims occur when someone “fails to exercise the level of care toward another person that a reasonable or prudent person would exercise under the same or similar circumstances.” A person can fail to exercise care because of either their action or inaction, as long as it causes harm to the person to whom they owed a duty of care.

Negligence is the most common cause of personal injury claims, and while it may seem simple, it is certainly not. There are a number of types of negligence, as well as a number of things that must be evident for it to be proved, which we will walk you through in this guide.

What are the 4 elements of a negligence claim?

What is needed to prove negligence? To prove negligence, your representation must prove that all 4 elements of negligence 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. 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.

More negligence elements: damages in a lawsuit

A client must prove to the court that they were actually harmed by the accident 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 negligence attorneys at Grimes & Fertitta immediately. This will help you avoid a lowball insurance settlement offer that they are likely to tempt you with.

What are the three most common types of negligence claims?

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.

What is comparative 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%.

Comparative negligence examples in Texas

Imagine that you are involved in an accident in Texas. Based on accident reconstruction you are determined to have been speeding at the time of the accident, which would likely make you partially culpable in the eyes of the court.

Speeding, however, is much less negligent an act than swerving into your lane, into oncoming traffic, which is exactly what the other car involved in the accident did. Because the other driver did something much more dangerous and contributed much more to the accident, the court determines that they are 90% at fault for the accident, which would mean that your speeding contributed 10% to the accident itself, although it might have also increased the severity of it.

You can collect damages from this accident, although the other driver’s insurance company may only offer to pay for 90% of what you need.

What is vicarious liability?

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

Vicarious liability scenarios in Texas

Imagine that you are the parents of multiple underaged drivers. Although they have their driver’s licenses and are allowed to drive themselves to and from school, and to the movies on the weekends, they are not yet adults.

If one of these underaged drivers gets into a serious accident and causes damage to another party based on their negligent behavior, you will likely be liable for those damages. The same goes for owners of pets who destroy property or cause harm to other people.

What is gross negligence in Texas?

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.

Types of cases in which gross negligence can apply in Texas

Gross negligence doesn’t apply to all cases in Texas, only those that involve reckless disregard or extreme ambivalence towards the safety of others. Some examples of cases that could involve gross negligence include:

  • Driving recklessly through an area crowded with foot traffic
  • A doctor knowingly giving harmful medication or unnecessarily dangerous treatments
  • Daycare workers not giving children water on extremely hot days

Continue reading about negligence in Texas here: Can you sue an insurance company for negligence? Can you sue a daycare for negligence?

Call Grimes & Fertitta for support in your negligence claim

Proving the elements of a negligence claim can be difficult, but with the right attorney by your side it is not impossible. Although it might not be difficult to show that you were harmed, it takes dedication and experience to prove in a court of law that you deserve damages for the pain that you have suffered.

The attorneys at Grimes & Fertitta know exactly how big companies nickel and dime victims of negligence, offering them paltry sums during the most vulnerable times in their lives, knowing that they have no choice but to take them.

Get what you deserve by working with an experienced negligence attorney in Houston. If you need a personal injury attorney in Houston, you need to call Grimes & Fertitta today at (713) 224-7644 or contact us online for a free consultation.

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