“Counselor” is a title often given to lawyers. The title is given because lawyers should do more than provide legal advice and guidance. All good lawyers should provide sound counseling to clients. This counseling should inform, educate and clearly convey legal judgments. But perhaps more importantly, it should answer questions, soothe nerves and assist with the emotional thunderstorm our system of justice can, at times, create.
The Phillips Law Firm is more than a group of attorneys that render legal advice. We’re counselors; and, we understand that legal terms and concepts may confuse and even intimidate at times. As counselors, one of our goals is to generate sincere clarity so as to avoid this confusion and intimidation. One of the reasons we incorporate this blog into our website is to help achieve this goal by explaining complex legal concepts.
Negligence is a legal term that typically saturates a personal injury case. The term, however, is not an easy one to grasp. We’ll go even farther here. If you were Jason searching for a Golden Fleece, negligence would be your Hydra. Not to worry though. As counselors, we’re here to help.
What Exactly is Negligence?
In short, negligence is a failure to exercise the care that a reasonably prudent person would exercise in like circumstances. According to Black’s Law Dictionary, negligence is “the omission to do something which a reasonable man…would do.” It’s also the act of “doing something which a reasonable man would not do.” In personal injury lawsuits, negligence is often determined by reference to the situation, the knowledge of the parties, and all attendant circumstances.
Let’s consider a few examples to help clarify. The following is a brief list of acts or situations in which negligence could be found.
- A store owner could be negligent in maintaining a safe establishment if, in mopping the floor, he creates a slippery surface and fails to post a “Wet Floor” sign.
- A doctor could be negligent in his care if, while operating on a patient, he misreads the medical chart and operates on a wrong body part.
- A driver could be negligent in his operation of a motor vehicle if he fails to stop at a stop sign or drives at an excessive speed.
- A property owner could be negligent in the maintenance of his home if he leaves a step railing unrepaired and the disrepair causes a friend to trip and fall.
In each of these situations, a party failed to act as an otherwise reasonable person would. This failure could lead to the party’s negligence.
Why is Negligence Important?
Negligence is a critical component to personal injury suits because if an injured party proves that another person acted negligently, the party can try to recover damages for any injury sustained. Negligence is basically the key that unlocks the right to compensation when an act, or a failure to act, causes harm and injury. If negligence is proven, this compensation can be for harm to a person’s: body, property, financial status, ability to work, and mental well-being.
Is Negligence Difficult to Prove?
The quick answer is that it all depends on the circumstances and facts involved in a particular case. Please note that in proving negligence, a plaintiff (or injured party) must prove four distinct elements. The first is that a person owed an injured party a certain duty of care. The second is that this person failed to adhere to, or breached, this duty. The third is that this breach caused a harm or injury. The fourth is that a plaintiff actually suffered damages from the harm or injury incurred.
Let’s return to the driving example mentioned above. As drivers, we have a duty to exercise sound judgment and abide by traffic laws when operating a motor vehicle. If we operate a vehicle and fail to stop at a stop sign, then we have breached this duty. If, in failing to stop, we collided with another vehicle or pedestrian, then our breach may have caused a harm or injury. If the driver of the other vehicle, or the pedestrian, suffered damages from the creation of our harm, then we could very well be negligent in our operation of the vehicle and could be legally responsible to compensate the injured party for any losses or injuries sustained.
A difficulty in proving negligence is that every element of a negligence claim has to be proven on its own. If one element cannot be proven, then an entire negligence claim fails. Our initial question was whether negligence is difficult to prove. Our same answer is that it might or might not be. It all depends on the particular facts of a case and whether the facts can support all of the elements of a negligence case.
Please consider the above a basic workshop into the concept of negligence. We know that in attempting to clarify complex and confusing legal terms that questions may arise. Please never hesitate to contact us if your questions have not been answered. We are here to provide legal guidance. But, we are also here to serve as counselors.