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Another way of framing these questions is to ask, in the language of the law: "Was anyone negligent?" Let's look at the elements that make up the concept of negligence, some examples of negligence, and more.
In some situations, the question of whether someone is legally liable for another person's injuries may turn on whether a "duty of care" existed under the circumstances.
With a car accident, this element is almost always met, by the fact that anyone driving a vehicle has a legal obligation to act with proper care and caution at all times, with respect to anyone else using the roads, streets, and highways. So all drivers owe a duty of care to other drivers, passengers, motorcyclists, bicyclists, and pedestrians.
But the duty of care element isn't always so easily established in other kinds of personal injury claims. For instance, what if the person who was injured wasn't expected to be in the place where the accident happened?
Example: Sameer wanted to ask a question of the produce manager at his local supermarket. He knocked on the door of the produce back room, but no one answered. Although the door was marked "Employees Only," Sameer went in. While he was looking around for someone, he tripped over a stack of pallets and fell, breaking his wrist.
Sameer would probably not have a good liability claim against the store, which would usually have no ordinary duty to protect customers who ignore "Employees Only" signs and wander around where they are not supposed to be. The store's duty here might be limited to not acting intentionally or recklessly to cause a customer's injuries. Keeping stacked pallets in a storeroom is anything but reckless (it's common supermarket practice), and Sameer would likely have no injury case against the store.
In the basic negligence rule that everyone must take "reasonable care" to avoid injury to others, reasonable care can vary with time and place and with the relationship between people, so that the same conduct might be considered negligent in one instance but not in another.
Example 1: Players are on a softball field. A foul ball accidentally strikes someone who was watching at the edge of the field. Because the players were acting reasonably in playing on a field, and hitting a foul ball is a normal part of the game, they were probably not negligent. If anyone was careless, it may be the person who sat too close to the field where a ball was flying around.
Example 2: One of the players in a softball game gets angry and throws his bat, accidentally hitting someone who is sitting at the edge of the field watching. Because throwing a bat in anger is not a "reasonable" part of softball, and because the person watching had a right to be there, throwing the bat is a negligent act, and the bat-thrower would be liable for the injuries caused.
Regardless of how your accident happened, obtaining fair compensation for your injuries usually involves no more than application—with simple language and in a commonsense way—of a few basic principles:
In a sense, yes, there are different types of negligence. Or it might be more accurate to say that the concept of negligence is sometimes applied in different ways in personal injury claims. Let's look at a few examples.
Ordinary negligence might be described as run-of-the-mill carelessness: A driver making a right turn on a red light without properly considering the speed of the vehicle coming towards him; grocery store employees not noticing a spill in the dairy aisle until a customer slips and falls because of it.
Contributory negligence and comparative negligence are legal concepts that apply when the person bringing the injury claim might share some level of fault for the underlying accident or incident. The specifics vary according to the rule followed in the particular state. For example, in a "pure comparative negligence" state, when a personal injury plaintiff bears some amount of liability for their own injuries, the amount the plaintiff can receive from other at-fault parties will be reduced by a percentage that's equal to the plaintiff's share of fault. Learn more about shared negligence in personal injury cases.
Vicarious negligence (or vicarious liability) comes into play when one person's negligence can be passed on to another party (which could be a person or a business). In the store slip and fall example above, the store owner would be vicariously negligent for the store employees' failure to spot and clean up the dairy aisle spill within a reasonable amount of time.
Gross negligence is a level of fault that goes well beyond ordinary carelessness, and usually includes recklessness or extreme disregard for other people's safety. Driving a few hours over the speed limit and causing a car accident would be considered negligent; driving 80 miles per hour in a school zone and causing a crash would be considered gross negligence.
If you can apply the basic rules we've discussed here to your accident, and you're comfortable handling the injury claim process on your own, you can negotiate a fair settlement of your injury claim. If you're getting pushback from the other party or their insurance company, or you just want to make sure your claim is in experienced hands, it might make sense to discuss your situation with a legal professional.
Learn more about how a lawyer can help with your personal injury claim, and get tips on finding the right personal injury attorney. You can also connect with a lawyer in your area using the tools on this page.
For a definitive guide to each step of the claim process, get How to Win Your Personal Injury Claim by Joseph L. Matthews (Nolo).