Learn the four key elements of negligence the insurance adjuster must see before paying your claim. Here’s what you need to prove you deserve compensation.
When someone else caused your injury, you expect to be compensated.
Before you see a dime from the at-fault person’s insurance company, the burden is on you to prove the other party’s negligence.
There are four parts, called elements, of negligence needed for a successful injury claim. The elements are duty, breach of duty, causation, and verifiable damages.
Before you begin negotiating your claim, you must understand how to prove all the elements that combine to form negligence. Although negligence exists in many forms, the definition remains constant:
Negligence is 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 adjuster.
Element 1: You Were Owed a Duty of Care
The first element of negligence is establishing the presence of a duty owed by one person to another.
In most cases, individuals, businesses, and other “entities” like property owners have a duty of care to avoid causing harm to others. In other words, people are supposed to be careful not to hurt someone else.
Your claim documents will show why the at-fault person had a responsibility to avoid causing you harm.
Examples of Duty of Care:
- Drivers have a duty to their passengers and other drivers to operate their vehicle carefully.
- Companies have a duty to their customers to make sure their products are safe.
- Store owners have a duty to their customers to keep their floors clear of slippery substances and other hazards.
- Doctors have a duty to give their patients appropriate medical care.
Element 2: The Duty of Care was Breached
The second element of negligence proves how the at-fault person breached their duty of care. A breach is like a broken promise.
A party breaches their duty of care by doing something wrong, or failing to do what a reasonable person would do under the same circumstances.
Examples of Breach of Duty:
- A driver runs a red light and T-bones another vehicle.
- A manufacturer produces poorly designed bookcases that tip over.
- Grocery store employees fail to clean up spilled detergent in the laundry products aisle.
- A doctor prescribes the wrong medication to a fragile patient.
Element 3: The Breach of Duty Caused Your Injuries
The third element is when the breach of duty results in another person’s injuries. The breach of duty must be the direct and proximate cause of your damages.
The insurance company will need proof that their insured caused your injuries by doing something wrong or failing to do the right thing.
Examples of Direct Injuries:
- The car accident victim suffered a spinal cord injury because the at-fault driver ran a red light.
- A toddler was fatally injured when a poorly designed bookcase tipped over and crushed the child.
- A woman suffers a broken hip after a slip and fall on spilled soap at the grocery store.
- A patient goes into a diabetic coma because of a prescription error.
Element 4: You Suffered Verifiable Damages
After you’ve convinced the insurance company that their insured caused your injuries, you’ll need evidence to prove the nature and extent of your damages.
There are two categories of injury damages you can include in your claim:
Special damages, also called economic damages, are the amounts of money you lost and will continue to lose because of the at-fault party’s negligence. “Specials” include things like medical bills, out-of-pocket medical expenses, and lost wages.
General damages, also called non-economic damages, include pain and emotional trauma. There are no objective measurements for general damages, but there are ways to prove your pain and suffering.
The first three elements of negligence establish the negligent party’s fault. The fourth element helps prove what your injury claim is worth by nailing down how badly you were injured, including pain, suffering, and emotional distress.
Examples of Damage Verification:
- Medical records and bills
- Physical therapy and chiropractic records and bills
- Receipts for out-of-pocket medical expenses, like medications and bandages
- Receipts for replacement services like childcare, housekeeping, and lawn mowing
- Photographs and video of the injuries
- Written statements by witnesses and caregivers
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 their insured was negligent, and that your claim’s value is in line with your settlement demand.
When you keep in mind the elements of negligence, you can organize the information that supports your claim in a way that makes it easier for the claims adjuster to approve your demand for compensation.
Example: Elements of Negligence in an Injury Claim
On a clear evening, John is driving home from work on Burke Street at the posted speed limit. As he approaches the intersection of Burke and Queen Streets, he has the green light and proceeds through the intersection.
Martha was also heading home from work, but she was running late. As she traveled along Queen Street, she was texting her husband to pick up their kids from daycare.
Distracted, Marsha didn’t see the red light as she approached the intersection with Burke Street. Marsha slammed into the side of John’s car, seriously injuring both drivers and totaling their cars.
John suffered several broken bones and a spinal cord injury that required him to spend months in a painful “halo” brace that was affixed to his skull.
Through his attorney, John made a demand to Marsha’s insurance company for $200,000.
The four elements of negligence in John’s claim are:
- Marsha had a clear duty to obey traffic signals and avoid distractions while driving.
- Marsha breached her duty by texting while driving and running a red light.
- Marsha’s breach of duty to drive safely was the direct cause of John’s injuries. If not for Marsha running the red light, John would not have been injured.
- Marsha’s negligence resulted in John’s medically documented injuries and related monetary losses, such as medical bills, lost wages, and more.
Now that you understand the four elements of negligence, you’re closer to successfully negotiating your injury claim.
If you’ve fully recovered from relatively mild injuries, you should be able to handle your insurance claim without a lawyer. If you suffered serious injuries, or have a more complicated claim, you should consult an experienced personal injury attorney.
Keep in mind that most attorneys don’t charge for their initial consultation. There’s no obligation, and it costs nothing to find out what a good attorney can do for you.
Video: Using Elements of Negligence to Build a Claim
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