What Are the Different Types of Negligence?

Personal injury claims are often the result of different types of negligence. Negligence is the failure to act with the level of care that a reasonably careful person would have used. Some of the most common personal injury cases based on negligence are car accidents, injuries at the workplace, medical malpractice, slip and falls, product liability, and wrongful death.

What Are the Elements of Negligence?

Each personal injury claim is different, but negligence claims generally must meet the same four elements:

• A duty of care. The party who was at fault must have owed the injured party a duty of reasonable care. This is an obligation to avoid harming others when the harm is foreseeable. For example, drivers have the responsibility to drive safely and follow traffic laws, which means they owe a reasonable duty of care to the other motorists and pedestrians using the roadways around them. This standard of care is higher when the at-fault party is a professional, such as a doctor or medical provider. The higher-level education and training require them to act with more care than an average person.
• Breach of the duty of care. The injured party must prove that the at-fault party breached the standard of care owed to them. They must prove what the wrongful conduct was and why that action was a breach. If a pedestrian was injured by a motorist, the pedestrian must detail what the conduct was and demonstrate that a reasonable driver would not have caused that harm. Another example would be an injured patient who must prove that the harmful action taken by their doctor was not normal behavior in the medical field.
• That negligence caused the injury. The injured party needs to show a direct link between the action and their injury, often called “but for” causation because “but for” the negligent action, the harm would not have happened. This type of negligence must have been an essential part of the harm caused by the at-fault party. Sometimes injuries can have multiple causes. Where two actions each cause substantial harm, both parties responsible can be liable to the injured party, called “joint and several” liability. This harm must also have been reasonably foreseeable by the at-fault party, which is called “proximate cause.”
• Actual damages. Finally, the injured party must be able to prove that they suffered actual harm, such as medical bills or lost wages. These damages can also be the mental pain and suffering from the accident or loss of companionship with a partner or children.

Sometimes, in special situations, all that the injured party has to prove is that the at-fault party caused the injury without proving any type of negligence. These “strict liability” situations only occur with animals (like dog bites), with abnormally dangerous activities (like working with explosives), or with dangerously defective products.

How Do You Establish Negligence?

Generally, to establish a duty of care, you must prove a relationship with the at-fault party such that they owed a duty of care to the injured party. Some relationships require a duty of care, such as a doctor and patient or a business owner and a customer. Other times, determining whether a duty existed can be more complicated. These relationships might occur because the at-fault party created the risk of harm or the party knew or should have known that his or her conduct was reasonably likely to cause harm.

Once the duty of care is shown, the standard for a breach of duty is the “prudent person” rule. This test analyzes the at-fault party’s conduct and compares it with the action that a reasonable person would have taken. For example, if a reasonably prudent person would have slowed down while riding a bicycle near a group of pedestrians, but the at-fault party was distracted and hit and injured someone in the group, the party has breached his or her duty of care.

Establishing the duty of care can also be complicated, especially when the duty is specialized. In situations where the at-fault party is a professional, it may be necessary to use an expert witness to testify or provide background information about what the standard practice in the field is. For example, an expert witness might have to testify as to whether a medical action taken by a doctor was a common procedure in the medical field.

What Can the Injured Party Recover?

After the elements of a personal injury negligence claim are met, the next question is how to determine what compensation (damages) the injured party can recover. Different states follow different guidelines for finding which party is at fault and calculating how much money can be recovered. Depending on what standard your state or jurisdiction uses for negligence, you could be barred from recovery.

There are two types of negligence a court will normally address liability in a personal injury claim: contributory negligence and comparative negligence.

• Contributory negligence. This is the traditional, very strict standard. Under this standard, if the injured party contributed at all to the accident, even if the other party was considerably more at fault, he or she would not recover anything. This doctrine is often used as a defense and it can make it very difficult to receive compensation.
• Comparative negligence is a milder standard. It still evaluates how much the injured party may have contributed to the injury or accident, but it allows the injured party to recover the portion of damages the other party was at fault for.

Which Negligence Law Does Your Jurisdiction Use?

If you were injured in an accident, it is important that you understand the differences in these theories of negligence and that you know which theory your jurisdiction uses. Washington, DC, Maryland, and Virginia all have slightly different laws around negligence:

• DC uses a modified contributory negligence standard. This standard is modified based on the Motor Vehicle Collision Recovery Act. This Act allows a person who is injured by a motorist on a public highway while walking, riding a bike, riding a (non-motorized) scooter, or traveling any other non-motorized manor to still be able to recover damages if that person was not the proximate cause of the accident and if he or she was not more at fault than the defending party.
• Maryland and Virginia are also some of the only remaining states that still use a pure contributory negligence standard. Under these standards, if it is found that the injured party contributed in any way to their injury, they may be completely barred from recovery.

Contact Today a Personal Injury Attorney Experienced With All Types of Negligence

If you’ve been in an accident and are contemplating pursuing a personal injury action, you should consider consulting with an experienced lawyer. The legal knowledge and experience that a good lawyer can bring to the table are crucial to the success of a personal injury claim. Having legal counsel is even more important in DC, Maryland, and Virginia because of the use of contributory negligence. Call today to schedule a consultation. A lawyer from Regan Zambri Long PLLC, specialized with all types of negligence will discuss your claim with you, talk to you about proving the elements of your personal injury negligence claim, and explain how your jurisdiction’s theory of negligence might affect the success of your case.