Personal injury cases rely on an attorney’s ability to define, determine, and prove negligence – and while proving negligence may seem simple or even self-evident at first glance, the truth is that a plaintiff’s attorney must meet multiple legal standards before a case of negligence can even be considered.
Below are a few of the things a successful personal injury attorney will seek to establish before moving forward on your case.
The Legal Information Institute defines negligence as a failure to behave with the level of care that a reasonable person would have exercised under the same circumstances. While the behavior in question usually consists of actions, it can also consist of omissions when there is some duty to act.
When attempting to ascertain whether a person’s conduct or behavior lacked reasonable care, lawyers will consider the four elements that are required to establish a prima facie case (a legally required rebuttable presumption). The elements are:
The first step in analyzing a negligence case is to establish the existence of a legal duty that the defendant owed to the plaintiff. In law, there are two kinds of duty that can be owed:
To determine whether a general duty of care or a special duty was owed, lawyers and courts look at the relationship between the plaintiff and the defendant and identify if a duty was owed based on that relationship.
The next step in establishing a prima facie case of negligence is to determine whether the defendant has breached a duty. To do this, courts often apply the Hand Formula.
The Hand Formula was first used by Judge Learned Hand in United State v. Carroll Towing and says that if the burden of taking precautions is less than the probability of injury multiplied by the gravity of any resulting injury, then the party with the burden of taking precautions has some amount of liability.
The formula can be simplified as B < PL with B representing burden of taking precautions, P representing the probability of personal loss, and L representing the gravity of personal loss.
The next step in analyzing a case of negligence is establishing that there was, in fact, an injury. In a case of negligence, injury must be one of two things:
Common examples of bodily harm cited in personal injury cases are:
While pure economic loss often fails to meet the injury requirement, emotional distress and emotional harm can meet the bodily harm requirement even in if no accompanying physical harm is present (i.e. emotional abuse).
The final part of forming a prima facie negligence case is establishing proof that the plaintiff’s injuries were caused by the defendant’s breach of duty. There are two types of causation in cases of negligence which must be addressed:
Another way to think of proximate cause is that the injury of the plaintiff should be close (proximate) in time and close (proximate) in the “chain of causation” linked to the defendant’s actions.