The majority of personal injury claims are based on the legal concept of negligence. In order to succeed in your personal injury claim or case you need to prove negligence in accordance with the negligence elements. This article will discuss the negligence elements, duty of care and breach of duty; and how they work in a personal injury case.
There are four negligence elements that must be proven in a personal injury case in order to succeed. These four elements are:
- Duty of care
- Breach of duty of care
It is important to note that even if the plaintiff is able to only prove three out of the four elements he or she will lose their case. As such, it is advisable to speak to a car accident lawyer in Bakersfield for legal advice and representation in your specific personal injury claim.
Firstly, if you and your attorney decide to settle the claim, the issue of fault does not need to be proven. However, it is the key element in all personal injury cases, as the at-fault person is the one who pays the damages of the victim. You are not likely to get a settlement of a case where you cannot prove the other driver was at fault, or negligent.
The term duty of care basically means having an obligation to not injure another person or to put them in the line of danger. When put like that, generally every person owes another person some measure of care, especially while driving. In some cases, it is difficult to determine what duty of care is owed to another person; this is mainly because there are no laws in place stipulating how a person ought to act. However, in other cases there are laws set out giving a standard of the duty of care. For example, the Vehicle Code [California Vehicle Code :: 2005 California Code :: California Law :: California Code :: US Codes and Statutes :: US Law :: Justia] spells out how drivers ought to conduct themselves while driving. When it comes to other circumstances and incidents the law requires the act of reason on the party that owed the duty of care. For example, a grocery store owner is required to take ‘reasonable’ steps to ensure customer safety; such reasonable steps might include checking for floor spills on a regular basis, warning about known spills with brightly colored cones, and cleaning them up as quickly as possible.
The breach of duty could be a result of a careless act, or sometimes a failure to act where appropriate. In simple terms this means that the person breached their duty of care by creating or allowing a dangerous situation over and above the normal level of risk an individual may encounter. In car accident cases, it is often easy to determine whether an individual breached their duty of care. For example, roads and highways have speed limits posted, so a driver’s duty of care may involve observing the speed limit. Determining whether a driver was going above the speed limit may be established easily through the testimony of eyewitness statements as to the car’s speed rate. If the speeding contributed to the accident, then the third element that is needed to be proven, causation, will also be present. Or, in another example, a driver has the duty to stop at a red light. Therefore, it would be a breach of the duty of care if the vehicle entered the intersection when the light was red. This also can be determined by eyewitness statements.
However, in other situations determining the breach of duty of care is much more difficult because compliance with the duty is not the only element that must be taken into consideration. For example, if two cars collide in an uncontrolled intersection it might not be clear who had the right of way.