When you suffer an injury because of someone else’s fault, you have
the right to be compensated for the damages you’ve suffered. But
whether that right becomes a reality through a fair
personal injury financial settlement may depend quite a bit on the diligence and advocacy
efforts of your attorney. It’s necessary to prove the 4 elements
of negligence. Even in cases where the defendant’s fault may seem
cut-and-dried, proving all 4 of these elements can be more difficult than
it might seem. Furthermore,
all four elements must be present, or there will be no settlement.
The 4 Elements of Negligence: What They Mean & How To Prove Them
The 4 elements of negligence are as follows…
- Duty of Care
- Breach of Duty
Here’s what they mean…
Duty of Care
It’s not enough for the defendant simply to be responsible for the
plaintiff’s injuries. The defendant must have had a responsibility
to the defendant to begin with.
To illustrate this, let’s use an obvious example where duty of care is
not present. A homeowner owes no duty of care to a burglar. If a person unlawfully
enters your home and steps on a nail protruding out of the floor, it really
doesn’t matter if the homeowner was negligent in leaving the nail
out. Trespassers, except in rare situations, usually involving children,
are not owed a duty of care.
Conversely, if an invited guest were to step on the nail, then duty of
care would be present. Property owners have a duty of care to those they
invite to their home. Businesses have the same duty to customers and others
who enter their place of business. Medical personnel owes a duty of care
to their patients. Drivers and motorcyclists owe a duty of care to each
other. The existence of this duty is the foundation of any negligence
claim made against the defendant.
Breach of Duty
The second step is to show that an existing duty of care was breached.
The state of California does not expect people to be perfect. Accidents
happen. Sometimes, the person we invite over for a game of pickup basketball
sprains their ankle and it’s no one’s fault. Sometimes, a
car skids on a rainy day and the accident is no one’s fault. When
that happens, the plaintiff’s injuries have to be covered by their
own insurance. But what if the defendant did not exercise a
reasonable standard of care? This is the principle that is used in determining if there was breach of duty.
Let’s say the homeowner hosting a pickup basketball game knows that
there is a space underneath the hoop, where the driveway connects with
the grass, where there is a bit of a drop off. The person driving in for
a layup would be uniquely vulnerable. If the homeowner warns the participants
ahead of time, they have a viable defense. But if they just let their
guests play, unaware of the dangers, this might be seen as violating the
reasonable standard of care principle.
Or to look at our car accident example, drivers are expected to adjust
for conditions. Even a driver going the speed limit might be seen to have
breached their duty if a reasonable person would have slowed down under
Who decides what’s reasonable and what is not? If a case goes to
court, the answer is the 12 individuals on a jury. The quality of one’s
attorney can help in shaping how the jury understands the facts of the case.
The breach of duty must then be established as the cause of the plaintiff’s
injuries. This might seem self-evident, and in some cases it will be.
The person who suffers catastrophic injuries in a multi-car crash quite
clearly had their injuries caused by the accident. But not every personal
injury case is this clear-cut.
Let’s return to our hypothetical incident of a car crash on a rainy
day, We’ll assume, for the sake of discussion, that the plaintiff’s
injuries are to the back and neck and came about after being rear-ended.
What if the plaintiff had pre-existing back problems? The lawyers for the
defendant’s insurance company might argue that the injuries are
the result of those pre-existing conditions, and not caused by the car
accident. Plaintiffs should assume that the insurance company will review
all relevant medical records.
Furthermore, plaintiffs should also adopt a policy of silence in the aftermath
of an accident. After a fender-bender, it can be easy to reassure the
other driver that you’re okay. The injured plaintiff might take
to social media to tell their network about the incident and conclude
with “Glad I’m okay”, or words to that effect.
All of this can be used by the defendant’s lawyers to undermine causation,
especially if pre-existing conditions are present. It’s the job
of the plaintiff’s attorneys to be even more zealous in keeping
the link between accident and injury—the causation link—intact.
Our last step in proving negligence is to show that all of the above elements
resulted in damage to the plaintiff. This is another area where showing
what it means might be best accomplished by showing where damages would
The hypothetical basketball player turns their ankle in that vulnerable
spot on the defendant’s driveway. But it turns out, there was no
lasting damage. After feeling really sore for a short time, the plaintiff
is back up and moving around in a couple hours. Or, at worse, they had
to ice it for a little bit. The defendant is still at fault—they
still breached their duty, and that breach caused the injury. But there
are no medical bills, no missed time at work, and it’s quite unlikely
there was any real trauma. All of which is to say there are no damages.
When there are damages, it’s the job of an experienced lawyer to
flesh out the full scope of what the injured plaintiff lost. That starts
with hospital bills and lost time at work. But it also includes the cost
of ongoing rehab. For serious accidents, there may be significant mental
trauma. That means therapy. In catastrophic injury cases, it’s possible
a plaintiff’s entire home may need to be remodeled or even sold,
so they can live in a home fitted with rampways.
All of these are costs that can be quantified in concrete ways. Less concrete—but
no less significant—are the intangible costs of lost joy. What is
the value of being unable to sleep due to recurring nightmares? Or no
longer being able to partake in treasured activities? Or simply being
unable to enjoy time with family and friends. Truly assigning a dollar
value to these losses is impossible. But the legal system is obligated
to try. A good lawyer can work with plaintiffs and their families to illuminate
all a plaintiff has lost because of their injuries.
Diligent On The Details; Passionate in Advocacy
Allen Semelsberg Kaelin LLP prides ourselves in the tenacious preparation
we do on every personal injury case. Little details can add up to significant
dollar amounts and we know our clients are relying on us for a fair settlement.
Backed up by diligent preparation, we can then be passionate advocates
for fairness, whether that’s in settlement negotiation or in a court of law.
Call our office today or contact us online
to set up a consultation.