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Negligence is described as a lack of taking proper care in doing something, but in personal injury law, it means the failure to use a level of care that another reasonable person would have used in a similar situation. This includes both actions and omissions that would prevent an accident that a normal and reasonable person would have been expected to take. When dealing with a personal injury case, negligence is required to establish a valid case in which you can recover compensation for your injuries. This is because a personal injury case is meant to give back to the person who was injured due to another person or company’s unreasonable acts or lack of acting in a reasonable and safe manner when it could affect other persons.
When looking at whether someone’s actions were considered negligent, lawyers and judges will use a standard called the reasonable person test which is analyzing what any reasonable person would have done in that situation, regardless of their individualities like education, income, their experience or anything else. If it is decided that a person acting with reasonable care would not have acted the way the person in question did, then their actions will likely be considered negligence.
Negligence can be classified into various different categories based on numerous factors and each state uses their own predetermined set of negligence categories to decide on how personal injury claims are handled in that state. Let’s take a look at these different types of negligence.
Negligence per se occurs when the at-fault party has violated a law that was put in place to improve public safety and protect against the type of harm that would be caused by its violation. The simplest example of negligence per se is when an at-fault driver runs a red light causing an accident, the police are called, and cite the at-fault driver with failure to yield to a traffic control device. Because the failure to yield law was enacted to ensure the safety of the public by promoting respect for traffic lights, if it can be proven that the at-fault driver ran the redlight, then the injured party would not have to prove the duty of care and breach elements of a negligence claim, described below.
Willful and wanton conduct is the most dangerous category of negligence, as it means that the person acted with reckless disregard for the safety of others around them. It does not mean that someone intended to harm others, but it does mean that their actions were clearly very dangerous and very easily could cause harm to others and they committed the act anyway.
When a person acts willfully and wantonly, they will likely be punished with higher amounts of damages in the personal injury case for acting in such a reckless manner. To give you an example of willful and wanton conduct, let’s say that a person is driving drunk and runs a red light because they don’t want to wait at the stop light and they end up causing an accident. This is considered more severe than someone who runs a redlight because they weren’t paying attention, because the drunk driver knew how dangerous drinking and driving was and still decided to do it. They also knew how dangerous it is to run red lights and still run the red light anyways. If willful and wanton conduct can be established against a party in court, it can increase the amount of damages that party will have to pay to satisfy a claim.
Contributory negligence is when the person who was injured due to another person’s negligence also acted with negligence which contributed to the accident taking place. This means that the person suing the other person for causing them harm, was also partially responsible for the incident that caused their injuries.
So, for example, if a person was on their phone while driving and didn’t see the person next to them trying to merge and the person merging crashed into them, then the person that was on their phone contributed to the accident happening because had they not been on their p[hone, they might have seen the person merging and reacted accordingly. Even though the person merging has a duty to merge into oncoming traffic safely, the accident could have likely been avoided if the other person was not distracted by their phone while driving. This equates to contributory negligence and could be used in court against them if the opposing party can prove that they were on their phone during the incident.
Many states do not use contributory negligence as a standard when determining liability in personal injury claims, but some do, so it is important to be aware of this type of negligence. The downside to being in a state that does use this standard is that sometimes the injured party will unjustly get the injury claim dropped because they played a small role in causing the accident, which leaves them to pay for all of the damages they incurred on their own instead of the person who was mostly at fault for the accident.
Due to how often cases using contributory negligence have given unfair results for the injured parties, the majority of states have adopted comparative negligence standards instead, which is how Colorado handles these types of issues. Comparative negligence gives a much more fair approach to injury claims as it compares each parties negligence and still allows the injured party to be compensated even if they were partially at fault.
Comparative negligence works by comparing the amount of fault that each party had in the accident taking place but there are two different ways this can be calculated, depending on the states laws that the accident took place in.
Pure Comparative Negligence – When using pure comparative negligence, the injured party can receive compensation for the percentage of fault that was not theirs. So for example, if damages were calculated to be $100,000 in compensation and the injured party was 25% at fault for the accident, then they would receive 75% of the total compensation or $75,000 in this case. If they were 80% at fault for the accident, then they would only receive $20% of the total compensation or $20,000.
(Colorado Law) Modified Comparative Negligence – If your state uses modified comparative negligence, then they will only allow the injured person to receive compensation if they were 50% – 51% or less at fault for the accident. So in a state that uses the 50% rule, if you were found to be equally responsible or 50% at fault, then you would not be allowed to receive compensation. If you are in a state that uses the 51% rule and were deemed equally at fault or 50%, then you would still be eligible to receive compensation but the total amount would be reduced by the percentage that you were at fault.
Vicarious negligence means that a different person or entity is the liable party than the one that may have actually acted negligently. This is common with cases involving businesses, where the person that owns the company would be responsible for the negligence of their employees while they are on the job. For example, if a store owner had a customer slip and fall on ice on their porch because their employees did not remove the ice or put up caution signs around the ice, then the store owner would be responsible for that negligence, even though the store owner did not personally create the slippery surface, they just did not tell their employees to clear the safety hazard to keep customers safe on their property.
To prove that a person was negligent so that you can pursue compensation in a personal injury claim, you need to be able to prove all four elements of negligence for it to be valid. Without all four parts present and provable, negligence is not considered valid and the claim can not move forward so make sure all 4 aspects are able to be proven in court if you are going to spend your efforts trying to win a settlement from the at fault party.
Duty Of Care is basically a law or standard of conduct that needs to be upheld for the safety of others when in your presence. This can be when driving, as a homeowner, a pedestrian, or anything else where your actions could create a harmful outcome for the people around you. Most often, it is a law that needs to be adhered to to avoid consequences. For example, if you are driving, then your duty of care is not only to follow all of the local laws and regulations for driving such as speed limits, stopping at stop signs, using turn signals, yielding to oncoming traffic and more, but also to exercise reasonable care that an ordinary person would be expected to follow in a similar situation.
Breach of duty of care is failing to act as a reasonably prudent person would in a similar situation. It can be the act of breaking the law, or simply acting in a manner that is unsafe for the people around you. As mentioned above, your duty of care while driving is following the local laws for driving. So if you ran a red light, then you would be breaching your duty of care by breaking the law that states you must stop at red lights. This may also apply to a person driving the speed limit, but in a hail storm, such as a reasonably prudent person might appreciate the need to drive more slowly to ensure their vehicle maintains traction on the road.
Once the duty of care and breach of duty has been established, the next thing is proving causation. Causation means that the negligent party’s breach of duty is what caused the plaintiff to become injured and without that breach of duty, the plaintiff would not have been injured. So, to keep with our example of running red lights, the driver that ran the red light caused the accident, which is what was responsible for the plaintiff’s injuries. Had the at fault party not ran the red light, then the accident would not have happened and neither would the injuries that came with it.
The last piece of negligence that is required is harm or damages. For you to be able to pursue compensation, there has to be evidence that harm was done to you and you deserve compensation for that harm. This is also referred to as damages, meaning losses that you suffered due to the accident. So if you were hit because of the driver that ran the red light, you may have suffered extensive injuries that came with large amounts of medical expenses to properly heal from, your car likely needed repairs to make it drivable again, you may have missed work for a month or so while you were healing, property damages and various other things that you suffered from due to the accident. These losses are what you will be compensated for when you file and win your personal injury claim against the defendant if you can prove all 4 pieces of their negligence.
In some cases, it is very easy to prove that the at fault party was negligent, such as in our running a red light example we used earlier. In cases like these, your lawyer will easily be able to prove all four key aspects of negligence showing their duty of care, breach of duty, causation and damages. But in some cases, there may not be much evidence available and from there, your personal injury attorney will need to prove negligence based on what a reasonable person would have done in that same situation. This can be much harder to prove in court and will require more work from your attorneys to be able to effectively prove negligence in order to win a settlement for you. Your attorney will try to use witness testimony, surveillance videos, pictures of the scene of the accident and whatever else they can find to support their argument that the other person was negligent and caused injury to you based on their findings.
If you were injured due to another person’s negligence or you think that they were negligent, make sure to reach out to use for a free case consultation. Our attorneys have been litigating personal injury claims for decades and know exactly how to prove negligence and acquire the evidence needed to build a strong, evidence backed case in order to get you the best settlement possible. Our law firm has a long history of winning cases for our clients and we have an extensive list of testimonials from happy clients that we were able to get compensation for, so don’t hesitate to reach out to us. We are available by phone 24/7 or feel free to stop- by our office in Colorado Springs, CO to speak with an attorney in person.
We serve clients injured in slip & fall accidents anywhere throughout the state of Colorado, but we focus on residents of these areas: Colorado Springs, Manitou Springs, Fountain, Briargate, Monument, Black Forest, Pueblo, Canon City, Larkspur, Security-Widefield, Peyton, Falcon, Calhan, Castle Rock, Teller County, El Paso County, Elbert County, Park County, Douglas County and beyond.
We serve clients injured in the following zip codes: 80907, 80909, 80918, 80917, 80931, 80932, 80933, 80934, 80935, 80936, 80937, 80941, 80942, 80946, 80947, 80949, 80950, 80960, 80962, 80977 ,80995 ,80997 80901, 80912, 80904, 80915, 80905, 80910, 80923, 80922, 80919, 80920, 80916, 80939, 80914, 80951, 80924, 80927, 80938, 80906, 80840, 80829, 80902, 80809, 80841, 80911, 80908, 80929, 80819, 80921, 80925, 80132, 80926, 80913, 80863, 80817, 80831, 80133, 80930, 80860, 80814, 80813, 80118, 80106, 80928, 80866, 80816, 80808, 80104, 80116, 81008, 80864, 80135, 81240, 81007, 80109, 81290, 80107, 80108, 80425, 81215, 81221, 80117, 80827, 81212, 80134, 80835, 81003, 80131, 81226, 81001, 80138, 80125, 81002, 81009, 81010, 81011, 81012, 80124, 81244, 80126, 80820, 80130, 80163, 80433, 80129, 80833, 80112, 80832, 81025, 81005, 81223, 81006, 80470, 80127, 80122 and beyond.
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