Negligence

1. What is negligence?
2. What makes a person negligent?
3. Can a person be liable for the negligence of another?
4. What are some defenses to negligence?
5. Once all the elements of negligence are present, does it mean the defendant will always be liable?
6. What is a personal injury?

7. How do I know if I have a personal injury claim?
8. What if the accident is partly my fault may I still have a claim?
9. What is a “slip & fall” accident?

10. Who is responsible for a slip and fall accident? The owner or the person injured?
11. What is a hazardous condition? Who is responsible for it?
12. Am I able to sue my employer for my fall?
13. What compensation might I be eligible for?
14. Does an accident report have to be filled out at the time of the fall?

15. How do I know if I may need an attorney?
16. If I have a personal injury claim do I have to go to court?

1. What is negligence?
One of the most common forms of an area of law called torts, negligence is the failure to act as a reasonably cautious person is expected to act within similar circumstances. Negligence deals with carelessly imposing injury on another, rather than intentionally doing so. In law, negligence is a type of tort or that may be either criminal or civil in nature. Negligence means conduct that is culpable because it is below the legal standard protecting individuals against foreseeable risk or harmful acts of other members of society. Negligent behavior towards others gives them rights to be compensated for the harm to their body or property. The five main principles of negligence are:
• A duty of care (by the defendant to the plaintiff)
• A breach of that duty
• Damages to persons or property
• Causation between the breach and the duty;
• The causation must not be too remote from the breach and the duty in the causal chain.

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2. What makes a person negligent?
To make a person negligent the defendant must owe a duty to the plaintiff to act reasonably; the defendant must have breached the duty; causing harm to the plaintiff and the breach must be the legal cause of the harm. The following explains each requirement:
1) Defendant must owe a duty to the plaintiff to act reasonably: acting reasonably refers to the way a reasonable person would act in similar situation. The duty is dependant upon factors such as physical and mental conditions and relationship to the other person. People may owe a duty to forbear from harming another.
2) Defendant must have breached the duty: All circumstances pertaining to the situation are considered as the defendants actions are evaluated by the objective standard. Often to determine a breach of contract an expert witness is called upon to explain how the defendant may have breached a professional standard of care. A person may be found to have breached a duty if they violate a statute which had been created to protect the public.
3) The defendant’s actions must cause the injuries to the plaintiff. What if there is more than one cause of injury? The court determines which factor is substantial to the cause of injury. If this substantial factor is the defendant’s action which caused the injury to the plaintiff then the defendant is liable. Sometimes, if more than one cause is established, the award may be apportioned.
4) The plaintiff's harm. The harm can be to a person or property.

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3. Can a person be liable for the negligence of another?
A person can be held responsible for the actions of someone else. For example, a restaurant owner maybe is held liable if a waiter negligently harms a patron within his or her own restaurant.

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4. What are some defenses to negligence?
Contributory Negligence: the plaintiff caused their own injuries or failed to protect themselves from predictable risks. If this is found then the defendant may be relieved from liability. The plaintiff must be proved to have knowledge of the risks at hand prior to voluntarily putting oneself in danger.
Comparative Negligence: Measures the “relative” negligence of the plaintiff and defendant with an allocation of compensation for injuries.

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5. Once all the elements of Negligence are present, does it mean the defendant will always be liable?
No. The defendant in a negligence case can use several defenses to escape liability. These defenses include contributory negligence, comparative negligence, and assumption of the risk.

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6. What is a personal injury?

Personal injury law, a part of tort law, protects the rights of victims of negligence, recklessness, malpractice, and the inaction of others. A Personal Injury is any physical or mental injury is to a person as a result of someone's negligence or harmful act. Sometimes personal injury is referred to as bodily injury. Personal injuries can occur in a wide variety of ways. The following are some of the most common accidents resulting in personal injury:

• Auto accidents
• Dangerous or defective product injuries (Product Liability)
• Aviation disasters
• Professional malpractice
• Workers' compensation
• Wrongful death
• Toxic exposure
• Home accidents
• Dog bites

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7. How do I know if I may have a Personal Injury claim?
To have a personal injury case, you must be able to show that you have been injured. This may be a physical injury or it may be an emotional injury. In addition, you must be able to show that someone else (the defendant) is at fault for your injury under a negligence, strict liability or intentional misconduct theory. In some cases, it may be necessary for you to show that the other party is more at fault for the injury than you are.

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8. What if the accident is partly my fault can I still have a claim?
Even if an accident or injury was partially your fault you still may have a claim based on the concept of Comparative Negligence or Contributory Negligence. The term "contributory negligence" is used to describe the actions of an injured person that may have also caused that person's own injuries. For example, a person who ignores a "Caution - Wet Floor" sign and slips and falls in the supermarket may be found to have been careless and at fault for any injuries suffered. "Contributory negligence" can prevent a person from collecting any monies to compensate for injuries suffered, even if that person's carelessness was minor. Some states have done away with the concept of contributory negligence altogether and instead use the concept of "comparative negligence. The term "comparative negligence: means that the fault of all parties is compared and the amount of the recovery for damages sustained by the injured victim is reduced by the percentage of his or her own fault. In this way, each person is held accountable for the amount of damages that they caused". If you’re injured by the negligent action of another, but you contributed to the accident by your failure to exercise reasonably prudent care, you may be liable for contributory negligence. You may also be liable for a form of contributory negligence if you voluntarily expose yourself to danger - by riding a roller coaster without wearing a seat belt, or working with a neighbor’s power saw or other dangerous tool if you’re inexperienced or fail to use a safety guard. This is called assumption of risk.

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9. What is a “slip & fall” accident?
Slip and fall accidents are a personal injury and are one type of "fall down" accidents. There are four general types of fall accidents:
1. Trip-and-fall accidents, where there is a foreign object in the walking path
2. Stump-and-fall accidents, where there is an impediment in the walking surface
3. Step-and-fall accidents, where there is an unexpected failure or hole in the walking surface, and
4. Slip-and-fall accidents, in which the interface of the shoe and the floor fails

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10. Who is responsible for a slip and fall accident? The owner or the person injured?
It depends. Both the property owner as well as the injured person can be held to varying degrees of responsibility for an injury. The property owner has a responsibility to keep property safe. Each person has a duty to watch where they are going, as well as realize that there are things that fall or spill onto walking surfaces.

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11. What is a hazardous condition?
A “hazardous condition” is a situation where there is potential for injury. Hazardous conditions can be permanent (such as a broken stair) or temporary (as in the case of ice on the sidewalk). Property owners are often responsible for permanent conditions, because they should have known about the situation. But injuries that occur due to temporary conditions they may not have had knowledge of may not be their responsibility. A factor in temporary hazards is did the owner have enough opportunity to realize the situation and correct it?

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12. Am I able to sue my employer for negligence?
Generally, you cannot sue your employer. Injuries sustained at work are usually covered under your state's workers' compensation laws.

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13. What compensation might I be eligible for in a negligence case?
Depending on the type and extent of your personal injury, you may be eligible for compensatory damages, and possibly punitive damages. The damages may include the following:
• Medical expenses
• Lost Wages, including overtime
• Pain and suffering
• Physical Disability
• Disfigurement
• Permanent scars
• Emotional trauma
• Mental anguish
• Loss of enjoyment, love and affection
• Embarrassment
• Mental disability
• Property damage
• All out-of-pocket expenses

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14. If I have an accident at work, does an accident report have to be filled out at the time of the fall?
Ideally, an accident report should be completed at the time of the incident noting what happened, who witnessed both the accident and the conditions that caused the fall along with any other relevant information such as lighting. The requirement for a report is generally a store or business policy, rather than mandated by law. If a report is not completed at the business location or occurred at private location or was not observed by others, compile a record of what happened by you. Include information such as:
• A description of the circumstances
• Who was present
• The comments made by those who saw or helped after the incident.
• If possible, take photos of the area in which the incident occurred and the injury. If you were physically hurt, have your injury checked out immediately to help substantiate your claim.
In cases of automobile accidents, generally a report must be promptly made to the police

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15. How do I know if I may need an attorney?
An experienced personal injury attorney should always be consulted as soon as possible, and definitely before you give any statements (on the telephone or in person) or sign any papers of any kind. Most lawyers offer a free consultation, with no obligation; therefore, you have nothing to lose by consulting an attorney before you accept any insurance company offer. There is a statute of limitations that requires you to file suit within a specific period of time, depending upon the circumstances of your case, or else you will be prohibited from obtaining any compensation for your injuries. An attorney will be able to help you keep within the statute of limitations.

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16. If I have a personal injury claim do I have to go to court?
It depends. Most personal injury cases are settled out of court before a trial is necessary. If a case does go to trial you most likely will have to appear so that your testimony can be heard.

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