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Negligence and Injury Lawsuits

By Aaron Larson
March, 2005


What Is Negligence?

In general terms, negligence refers to acts which cause accidental, unintended injuries to others. Typically the law defines negligence as follows:

  1. Duty: The defendant owed a duty to the plaintiff (or a duty to the general public, including the plaintiff);
  2. Breach of Duty: The defendant violated that duty;
  3. Proximate Cause: As a result of the defendant's violation of that duty, the plaintiff suffered injury; and
  4. Injury: The plaintiff suffered an injury which was a reasonably foreseeable consequence of the defendant's action or inaction.

What is Gross Negligence?

Gross negligence is typically defined as a negligent act which also satisfies this additional element: "The defendant acted with reckless disregard for the lives and safety of others". For example, if a defendant living in a city decides to engage in target shooting in his back yard, and sets up some paper targets at the end of the yard, it should be obvious that the bullets will continue to fly after passing through the paper and will pose great potential risk to the lives and safety of others. Even though the defendant does not intend to cause harm, his conduct would likely be regarded as grossly negligent.

Proximate Cause

To prevail in a negligence action, the plaintiff must establish that the defendant's conduct was the proximate cause of the plaintiff's injury. That means that there was a direct connection between the defendant's conduct and the plaintiff's injury, not excessively remote in terms of time and place.

Some jurisdictions distinguish between "cause in fact" and "legal cause", requiring a plaintiff to prove both before proximate cause is established. A "cause in fact" is sometimes called a "but for" cause, meaning "but for the conduct of the defendant, no injury would have occurred." "A legal cause" exists where the defendant's conduct was a substantial cause in bringing about the harm caused by the plaintiff, and there was nothing in the law which would excuse the defendant from liability for that conduct.

It is possible for an injury to a plaintiff to have more than one proximate cause, where the acts of more than one defendant combine to result in the injury.

Negligence and Children

When children are accused of negligence, the law frequently treats them differently than adults, due to their age and lack of experience. Children, particularly young children, don't understand and assess risks in the same manner as adults. The provisions made vary significantly between states. Common provisions include:

Presumptions That Young Children Are Incapable of Negligence - Some states set forth a legal presumption that children below a certain age, such as the age of seven, are incapable of negligence.

Comparisons To Children Of Similar Age and Experience - Often, a child's negligence will be assessed based upon the jury's estimation of whether the child's conduct violated a standard of care that would be expected from a child of similar age, experience, and intelligence. If the child did not act negligently when judged by this standard, even if an adult would be liable, the child's conduct cannot support a negligence lawsuit. Some states with recognize this exception also set an age when a minor is to be treated in the same manner as an adult, even though the minor has not yet reached the age of 18.

In some states, a minor's negligence will be evaluated in the same manner as an adult's where the minor is said to have been engaging in an "adult activity" (such as driving) or certain highly dangerous activities (perhaps such as hunting).

Common Negligence Claims

The following causes of action are usually based upon theories of negligence:

Car Accident Cases - Most litigation from motor vehicle collisions proceeds on the theory that the defendant was negligent in the operation of a motor vehicle.

Dog Bite Cases - A typical dog bite case will include a claim based in negligence that the dog's owner knew or should have known of the dog's dangerous propensities, and did not act with appropriate care to protect the plaintiff from being bitten by the dog.

Premises Liability (e.g., Trip / Slip and Fall) - Typical premises liablity cases allege that the premises owner did not exercise appropriate care in the prevention of hazards on the premises, or in warning visitors of known dangers.

Malpractice - Professional negligence claims allege that a professional (such as a doctor or lawyer) failed to fulfill a duty to the plaintiff in a manner consistent with the standard of care owed by the professional.

Common Defenses

Frequently the following theories will be advanced as partial or total defenses to a negligence action:

Intervening Cause (Sometimes called a "Superseding Cause" or "Supervening Cause") - Where a defendant alleges an "intervening cause", it is alleged that another separate and independent event occurred after the defendant's conduct but prior to the injury, and that this intervening event broke the connection between the defendant's negligence and the injury suffered by the plaintiff. However, unless the intervening cause was the sole cause of the plaintiff's injury, this defense will at best be partial.

Release - The plaintiff signed a release agreement, for example before participating in a sporting event, which prohibits the plaintiff from suing the defendant. For public policy reasons, many jurisdictions will permit the release only of acts of ordinary negligence, while permitting lawsuits to proceed on theories of gross negligence or intentional harm.

Comparative Negligence - In states which recognize "comparative negligence", the negligence of all the parties involved in the accident is determined, and typically the plaintiff's recovery is reduced in proportion to the plaintiff's own negligence. There may be additional rules, such as a rule which prohibits a plaintiff from recovering for an injury if the plaintiff is determined to be more than 50% responsible for his own injury, or which limits a defendant's liability or duty to pay "joint and several damages" in cases involving multiple defendants where the extent of that defendant's responsibility is found to be less than that of the plaintiff.

Contributory Negligence - This harsh rule which emerges from common law holds that were a plaintiff contributes in any way to the cause of his or her own injury, the plaintiff's cause of action is barred. Although most states have moved to some form of comparative negligence, there are jurisdictions and types of case where a traditional "contributory negligence" rule is applied.

Lack of Foreseeability - This defense claims that, although the defendant's acts or omissions resulted in harm to the plaintiff, it was not reasonably foreseeable that the plaintiff would suffer harm as a result of the acts. In a classic case, Palsgraf v Long Island Railroad Co, a guard pushed a man to help him board a train, resulting in the man's dropping a package of fireworks which exploded when they hit the ground, creating an explosion which caused a set of scales at the far end of the platform to fall, striking the plaintiff. It was held that it was not reasonably foreseeable that a guard's acts in assisting a man carrying a brown paper package would cause an injury of the type suffered by the plaintiff.

Harm Greater Than Expected

It is not ordinarily a defense to a negligence action that the harm suffered by the plaintiff was greater than would ordinarily have been expected. Under the "eggshell skull" doctrine, a defendant is said to take the plaintiff as he finds him. The plaintiff's particular susceptibility to injury does not reduce the defendant's obligation to fully compensate the plaintiff for the injury which resulted from the defendant's negligence.

Additionally, where a plaintiff suffers injury requiring medical care, it is generally said that negligence in the administration of that care is reasonably foreseeable. That is, if the plaintiff's doctor makes a mistake or commits malpractice, aggravating the plaintiff's injury, the defendant can be held responsible for the plaintiff's entire injury as worsened by the inappropriate medical treatment. This follows from the fact that but for the defendant's negligence, the plaintiff would not have required any medical treatment to begin with.

Vicarious Liability

Under principles of vicarious liability, one person can be held responsible for the negligence of another. The most common context for claims of vicarious liability occur where the defendant is acting within the scope of employment and in furtherance of the employer's interest. Under such circumstances, the employer will typically be held vicariously responsible for the employee's negligent conduct. Sometimes a parent may be held vicariously liable for the negligence of a minor child, although that rule has been significantly modified, limited, or eliminated in many jurisdictions.

About The Author
Aaron Larson is a Michigan lawyer whose practice emphasizes civil appeals and litigation consulting. Copyright © 2005, Aaron Larson, all rights reserved.
As legal advice must be tailored to the specific facts and circumstances of your case, information cannot substitute for the advice of qualified legal counsel. All information on this website is believed to be accurate as of the time it was authored. However, due to the possibility of changes in the law since that time, and as personal injury laws can vary significantly from state to state, you should verify any information you find on this site with a licensed legal professional in your state. All information on this site is presented on an "as is" basis. Your use of this site does not create an attorney-client relationship.