Negligence Lawsuits

Negligence requires failure of some sort. This can be a failure to give proper care, failure to perform a duty, or failure to be attentive. In situations where an individual is legally responsible to cause no harm, this is called duty. As an example, a physician’s job requires that no harm be done to patients. For an everyday person, there is a duty to cause no harm when driving a vehicle.

Gross Negligence

When an individual’s degree of carelessness is so high that he or she demonstrates a total lack of concern for the safety of others, this is known as gross negligence. This level of disregard goes far beyond simple neglect and is far worse than general negligence. For example, if a nursing home resident goes days and days without a bandage being changed, this qualifies as gross negligence.

Contributory Negligence

In some lawsuits, the person or entity being sued tries to push some blame onto the plaintiff by suggesting that the plaintiff committed actions, or failed to commit actions, and contributed to the cause of the accident. Some states allow the use of such evidence to bar plaintiffs from receiving compensation. However, Georgia is not one of these states, so contributory negligence is not allowed.

Comparative Negligence

Comparative negligence means the person or entity being sued is claiming that the plaintiff helped cause the accident. If this allegation is successfully proven, the monetary amount awarded to the plaintiff is decreased by a percentage determined by the degree of fault. The plaintiff does receive compensation, but it is a reduced amount.

In personal injury cases in Georgia, modified comparative negligence is used. For all intents and purposes, the same manner of reducing the awarded compensation amount occurs here as with the regular comparative negligence method, with one difference. In Georgia, when a plaintiff is deemed to be over 50 percent at fault, no money at all will be received from the defendant. The cutoff is 50 percent, and anything above this disqualifies the plaintiff from receiving compensation.

Vicarious Negligence

To explain vicarious negligence or liability, it may help to first list some relationships by which this form of negligence can occur. Some of these relationships are:

• A parent and child
• An employer and employee
• A pet owner and pet
• A vehicle owner and driver

In situations involving vicarious liability, an individual who didn’t actually cause or participate in the injury can be held liable because of the legal relationship that does exist between this individual and the person (or pet) whose negligent action did cause the injury. For example, an employee’s negligent actions that cause injury to another can ultimately lead to the employer being held liable.

To successfully win a negligence lawsuit, the victim must be able to show that certain elements exist in the case. These elements must be shown in order to find a defendant guilty of negligence. Judges instruct juries to listen to the evidence presented and compare the testimony and facts to determine if these elements of negligence are present.

Duty of Care – Plaintiffs are required to prove that the defendant’s actions or failure to act qualify as a lack of meeting the required level of care in the circumstances involved. Since the standard level of care can vary from one situation to another, the individual facts of a case help determine this factor.

To illustrate duty of care: drivers are required to operate their vehicles with reasonable care. This entails obeying traffic codes and safely handling the vehicle in various weather conditions and traffic patterns. When filing a negligence lawsuit, a plaintiff can show that a driver who ran a red light and caused an accident had a duty of care to drive safely but didn’t.

Listed below are some additional duty of care specifications for other types of injury cases:

• Medical Malpractice – Physicians or medical professionals must give treatment with the same level of care and skill that any other competent doctor or medical professional would reasonably give in the same circumstances. Medical experts are often brought in as witnesses to establish exactly what the prevailing medical practices and standards are within the same medical field or specialty.
• Slips and Falls – Business or property owners must maintain their premises in order to eliminate hazards. There is an additional obligation to discover and fix, in a timely manner, any dangers that present themselves.
• Defective Products – The manufacturers, distributors, and sellers of products have a duty to make, distribute, and sell safe products without unexpected dangers for users.

Breach of Duty – After establishing the duty of care, the plaintiff’s attorney will then demonstrate to the court how the negligent party violated this standard. The lawyer will present evidence showing what the defendant did or failed to do that breached the required duty. This will demonstrate and prove the defendant is at fault for the injuries sustained by the plaintiff.

To illustrate breach of duty in the case of an auto accident, the plaintiff’s attorney may establish fault on the part of the defendant by:

• Presenting a police report showing that the defendant ran a red light
• Presenting testimony from an eyewitness who saw the accident
• Showing pictures from the accident scene that include vehicle damage

This is often the most complicated part of a negligence case and where most of the battle will be in court. Every person has to act as a reasonable person would. The question is figuring out what the standard of care is in each situation. The answer is that it depends on the activity that the defendant is doing. For example, a doctor is going to have a much higher standard of care than other professionals would. If the case involves a truck driver, the reasonable truck driver does not speed and operates their vehicle safely. Some activities, such as police work, may mean a lower standard of care because what police officers do is useful to the public. The duty of care is not just limited to professionals. It involves every day acts that people do in their daily lives, such as driving their cars or even shoveling their sidewalks.

Damages

In order to successfully sue for negligence, one must have suffered some sort of damage from the negligent act. Showing that the defendant failed to exercise reasonable care is not enough. It must be shown that the defendant’s lack of reasonable care resulted in actual damages to the person to whom the defendant owed a duty of care. Personal injury claims must also be brought to court within the appropriate time limit. While this seems obvious, determining whether an injury is an issue can be complicated. For example, someone could claim that they are stressed or traumatized by something that happened, and a court would have to decide whether they have suffered damage from that.

Causation

Whatever the defendant did must have been the proximate cause of the injury. The interesting thing about this is that the defendant’s action does not have to be the direct cause of the plaintiff’s injury. The test is that “but for” the defendant’s actions, the injury would not have occurred. An example of this is if one is driving and has to swerve out of the way to avoid another car that was driving recklessly. If you are then hit by a third car, the proximate cause of your injury is the car that was driving recklessly. In other words, if that driver was not driving in a manner that they were, you would have never been hurt.

Assuming that you are able to prove that the other party is negligent, the court will then look at whether you did anything to contribute to your injury. For example, if you slipped on the ice and fell, but were running at the time, the court would say that there was contributory negligence. In some states, this would completely take away your ability to recover anything. In other states, it would simply mean that the amount of your recovery is reduced by the percentage of negligence that the court assigns to you.

At this point, if you still have a viable claim, the court will start to look at the damages to which you are entitled. Here are some of the things that you can receive compensation for in a case for negligence.

• Pain and Suffering – The court will assign a monetary value to what you have been through.
• Lost Wages – Not only can you recover from past lost wages, but if you lose the ability to work in the future, the defendant may have to pay for that too.
• Medical Bills – Any out-of-pocket medical bills are compensable.
• Loss of Consortium – Your spouse can receive compensation for your injury. The worse the injury, the higher these damages can reach.

If you have been the victim of someone else’s negligence, contact The Eichholz Firm to discuss your legal remedies and whether you can be compensated for your injuries.