The 4 Elements Of Negligence
Bryan Greenberg
Personal Injury
The basis of any personal injury lawsuit is the idea that someone is a victim of negligence, and the person responsible for that negligence has a legal and financial obligation to compensate the injured party. This is the legal option open to any American when there has been a breach of law that isn’t necessarily criminal. In some cases, it may even apply as an additional penalty for criminal acts, such as accidents related to drunk driving.But how exactly does negligence work in the legal sense? You may think you’re the victim of negligence in an accident, but does legal interpretation agree with you? Here are the four things that a lawyer will look for in attempting to determine whether there’s a legitimate case of negligence.
Presence Of Duty
This is all about laying out the responsibilities that a person may or may not have to another. Driver safety on the road, for example, is about taking responsibility for acts of negligence while driving, but now this means defining what responsibilities a driver has to other people on the road.
So while a driver being distracted on the phone, swerving off the road and hitting someone on the sidewalk be a case of negligence. Someone being picked up from the sidewalk and thrown at a passing car would not be negligent. The driver has no responsibility to protect someone that is thrown at the windshield of the car by someone else on the sidewalk, with no way to avoid it.
Breach Of Duty
This is the element that would be considered breaking whatever responsibility the offending party may have. So, in the case of drivers on the road, driving in a safe, responsible manner would be breached by driving drunk. Driving in a state of intoxication is already illegal in the eyes of the law, so someone who is ignoring the law and driving drunk would have that drunkenness identified as the “breach” of duty.
In the same way, a security guard on shift has a basic responsibility to protect guests, residents, and/or cus-tomers or other visitors to a property. If a security guard, who is paid and legally expected to provide a safe environment witnesses someone being assaulted, and that person cries for help, and the security guard ignores those cries and stands by watching, that would be considered the breach.
Evidence Of Direct Causation
This is essentially “proof.” Once the presence of duty has been established, and once a breach of duty has been recognized, there needs to be some evidence that the breach of duty led directly to an injury. There are many ways to go about this.
In a drunk driving accident, for example, police on the scene may conduct a breathalyzer test, and if the results indicate that the driver is over the legal limit for alcohol consumption, that is already evidence that a law has been broken. However, if there is dashcam footage, eye witness accounts, and clear proof of wreckage on the road, as well as tire tracks and other evidence from accident reconstruction that indicates the drunk driver drift-ed into the opposing lane and hit another car head-on, that is evidence that drunkenness caused an injury. A sober person would not drive into the opposing lane.
Proof Of Damages
The final element is the actual extent of injuries, which would determine the final dollar amount that is being sought in court for damages. This final element will always be unique to each case, determined by the injuries, their severity, and the consequences they have for the victim.
If you’re a victim of negligence in an accident, talk to an experienced personal injury attorney to see what your next steps should be in seeking compensation.