Proving Negligence

How Do I Prove Negligence in a Personal Injury Case?

The Elements of a Negligence Claim

Many people who are inundated with advertisements on the radio, television, and the Internet mistakenly believe that obtaining monetary compensation in a personal injury lawsuit is a relatively simple matter. Rest assured that these advertisements want people to think it’s a quick and easy process, but proving negligence in court involves and requires skill, experience and an intimate knowledge of the law. Below are the four elements of negligence that must be proven in order for an injured plaintiff to prevail in a personal injury lawsuit.

Element One – Duty of Care

The first element of negligence that a personal injury lawyer must prove involves the establishment of a legal duty of care. The law states that a person owes others a duty to not put them into situations of unreasonable risk of harm or injury, but there are limits to this duty that usually involve people who could be foreseen to be put in danger by the defendant.

Whether a duty of care exists requires examination of the plaintiff's relationship with the defendant. For example, a doctor owes his/her patient a legal duty to provide competent care. Another example is a property owner has a legal duty to make sure the premises is safe and free of hazards for guests and patrons.

Element Two – Breach of the Duty of Care

After an attorney has successfully proven the existence of a duty of care that was owed to the plaintiff by the defendant, the next step is to prove that this duty was breached by the defendant. Basically, the law calls for those deciding a case to use a ‘reasonable person’ standard, in that a breach of the duty of care has occurred if the defendant failed to act in a way that a reasonable person would have in similar circumstances.

Questions such as: "Could a reasonable person foresee the dangers?" and "Did the defendant attempt to take actions to correct or prevent the harm?" are considered when determining a breach of duty of care.

An example of a breach is if a person owned a very aggressive dog with a previous history of attacking children, and the dog owner failed to leash the dog or brings the dog to a park known for having young children around.

Element Three – Causation

After the first two elements of negligence have been proven, the attorney must then prove the most complicated element in personal injury law that is known as causation. Generally, the plaintiff must show that the defendant’s breach of the duty of care either directly or indirectly led to or caused the injuries and damages suffered by the plaintiff. There have been hundreds of cases over the years that have attempted to clarify this element.

One example is when a grocery store fails to clean up a spill that has been there for hours. A shopper slips on the puddle and is severely injured. In this situation, the patron would not have been injured had the spill been cleaned immediately.

Element Four – Damages

Finally, if all three of the elements of negligence above are proven, the plaintiff must show that he or she has suffered actual damages. These damages can be quantifiable in terms of medical costs, lost income and property damage, but they can also be less tangible and include such damages as pain and suffering or loss of companionship.

As you see, proving negligence in a personal injury lawsuit involves a high degree of skill. If you or someone you love has been harmed by someone else, contact the experienced and successful San Francisco personal injury lawyers at the Scarlett Law Group today to schedule a free initial consultation.


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