Using the Elements of Negligence to Build a Strong Personal Injury Claim



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The basis of any personal injury claim is proof of negligence. Before you begin negotiating your claim, you must understand how to prove all the elements that combine to form negligence. Although it exists in many forms, the definition remains constant:

Negligence - conduct which falls short of reasonable standards for protecting a person from foreseeable risks of harm.

Understanding and proving exactly how the at-fault party's negligence caused your injuries is essential. Once you put together the elements of your case, you can confidently present the facts to the insurance company's claims adjuster. Earning the adjuster's respect right from the start will help position you for success.

The Four Basic Elements of Negligence

  1. Presence of a Duty of Care

    The first element is establishing the presence of a duty owed by one person to another. People have a duty to act in a reasonable manner toward others. Each unique personal injury claim starts with identifying this duty.

    Examples of Duty of Care:

    • Drivers have a duty to their passengers and other drivers to operate their vehicle carefully.

    • Retail stores have a duty to their customers and employees to keep their floors clear of slippery substances and other hazards.

    • Companies have a duty to their customers to make sure their products are safe.

    • Doctors have a duty to their patients to treat them in a medically-appropriate manner.
  2. Someone Breached Their Duty

    The second element is a breach of the duty owed by one person to another. A person breaches their duty by failing to act in a reasonable manner toward another person.

    Examples of Breach of Duty:

    • A reckless driver causes an auto accident.

    • A company manufactures a defective product that injures a customer.

    • The host of a party fails to clean up a spill, and a guest is injured when he slips and falls on it.

    • A doctor prescribes the wrong medication, and the patient is hospitalized.
  3. The Breach Directly Causes Injuries

    The third element is when the breach of duty becomes the direct cause of another person's injuries. The type and severity of injuries must be related to a failure to act in a reasonable way. The source of the breach could be a person, business, organization, or other entity.

    Examples of Direct Injuries:

    • A speeding driver causes an auto accident and someone is injured: the act of speeding is the direct cause of the injuries.

    • A company manufactures a defective product and a customer is injured while using it: the product directly caused the injury.

    • A homeowner fails to clean up a spill from the floor, and a guest slips and is injured: the failure to clean up the spill is the direct cause of the injury.

    • A patient's condition worsens because of a prescription error: the treating doctor's action in prescribing the wrong medication is the direct cause.
  4. Proving Monetary Losses

    The fourth element is closely tied to each of the first three. When a duty exists, and a breach of that duty directly causes an injury, the injured person is responsible for proving the nature and extent of his injuries.

    Documented evidence of the injuries and related expenses is critical for recovering any settlement or court judgment against the responsible party.

    Without documentation, the person claiming injuries will have a very difficult, if not impossible time negotiating their claim. The first three elements of negligence do not confirm the nature and extent of injuries, nor the financial costs related to those injuries; they must be separately proven.

    Examples of Proof of Losses:

    • Hospital treatment records and corresponding medical bills

    • Doctors' diagnosis and prognosis of the injury

    • Physical therapy and chiropractic records and bills

    • Receipts for out-of-pocket costs related to the injury (e.g. medications, crutches, bandages, hospital parking fees, etc.)

Once you understand the elements of negligence, you can begin matching them to the facts of your case. Your goal is to convince the claims adjuster to approve your settlement demand. To do that, you must prove their insured was negligent.

Proving your case should not be complicated. You simply must gather all the information that supports your claim. Then use it to show how the facts of the accident come together to form negligence.

Case example showing the four elements negligence:

On a clear evening, John is driving home from work at the posted speed limit. The highway has four lanes, two running north and two running south. He's on the inside lane driving north. He comes to an intersection with a green traffic light. The light is red for traffic approaching in the opposite lane (heading south).

A driver in the southbound lane suddenly decides to make a left turn. Unable to stop, John slams into the southbound driver's side door, seriously injuring both drivers and totaling their cars. John is taken by ambulance to the hospital, where he's diagnosed with several broken ribs, a herniated disk, and a broken left femur.

The four elements of negligence in this scenario are:

  1. The at-fault driver had a clear duty to drive in a reasonable and safe manner.

  2. He breached that duty when he illegally ran a red light and crossed in front of John.

  3. His breach of duty to drive safely was the direct cause of John's injuries.

  4. His negligence resulted in John's medically documented injuries and related monetary losses, such as medical bills, lost wages, etc.

Now that you understand the four elements of negligence, you're closer to successfully negotiating your injury settlement. The claims adjuster will respect your effort to present your information clearly. That respect will benefit you throughout the course of your negotiations.

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