What is negligence?

Negligence is a legal concept, a subcategory of the larger legal concept of “torts.” Torts is one of the pillars of remedial law, along with criminal law and contracts, i.e., a law which lays out the process of securing a remedy for an alleged wrong. For example, in contract law, if a contracting party reneges on a promise, contract law provides a remedy for the aggrieved party. So too in tort law.

In tort law if a party is physically injured by another, tort law provides a remedy for the injured party.

Lady Justice | Personal Injury Law

If a party is physically injured by another, tort law provides a remedy for the injured party.

There are several types of torts including intentional and unintentional. Intentional torts include assaults of various varieties, defamation and so forth — wrongs which people intentionally commit. Then there are wrongs which people unintentionally commit. Negligence falls into the unintentional tort category.

When a person is negligent in the operation of a motor vehicle, and that negligence results in harm to another, then it is said that the negligent person is “liable” for the inflicted harm. This sounds very straightforward, right? Wrong. Judges, juries, and legal scholars have wrestled with the theoretical and practical meaning of negligence for centuries. It’s one of the beautiful and frustrating attributes of the law.

Negligence itself is divided into four major categories or “elements” — duty, breach, causation, and damages. Visit any first-year law school class around final exam time and you’ll likely encounter scores of zombie-like law students chanting the mantra of negligence — duty, breach, causation, damages.

Many of my clients think that merely because another driver has disregarded the rules of the road and collided with their vehicle, they are “owed” damages — i.e. money. In other words that the offender is “strictly liable.” This is not the case — even if the collision was so severe it “could have killed me.”

Understand that the client (which means you for the sake of this discussion) has the burden of proving the offender’ s negligence. It may not seem it, but right there is a mouthful. Some of my clients roll their eyes when I tell then this. They tell me: “why should I have to prove anything. After all, he hit me.

At law, this means that you — hopefully your lawyer — must prove each and every element of the alleged offender’ s negligence.

So let’s briefly examine the elements of negligence.

“Duty” means the obligation to take care in all of our dealings with others. For the purposes of this discussion, we’ll take duty for granted.

Let’s move on to breach. Breach is the heart of negligence — when a person breaches her duty of care to another person. In the context of an MVA (Motor Vehicle Accident), a breach can occur in any number of ways — traveling too fast for conditions, failure
to obey a traffic signal and so forth. It usually involves a traffic violation, but not necessarily so.

But, just because a police officer charges a driver with a traffic offense does not necessarily mean you have proven the element of breach. The police have been known to be wrong in their determination of liability. If that sounds like an understatement, it is.

Unless the responding officer actually sees an accident occur, his testimony about how the accident happened is irrelevant and inadmissible at trial. And unless he has been trained as an accident reconstruction expert, he cannot give his opinion as to who caused the accident and why.

This fact definitely comes as a shock to some clients. Moreover, what happens if there is evidence that you have also to acted negligently — what is called comparative negligence? We can take that issue up in another blog.

If you have a question based on this aspect, please give me a call at 864-233-2000 and book an appointment. I’ll be more than happy to meet with you for a free consultation.

For the moment let’s skip causation and talk about the last element of a negligence claim — damages. There are many types of damages, and one of the reasons you should seek counsel is to make sure you claim all the damages due you. An attorney also has the expertise to prove them. It is said that a lawyer’s stock in trade is his time. That’s true. But the real lawyer’s stack in trade is his expertise and the years of study and sacrifice that has gone into that expertise.

Now, damages include medical bills, pain, suffering, vehicle damage and so forth. Again, you, the victim, must shoulder the burden of proving your damages.

And finally, there’s causation. In a nutshell, causation links the breach to damages. In other words, you have to prove that because of the at-fault drivers’ negligence, you suffered property damage, bodily injury and so forth. Again this is easier said than done. Perhaps of all the elements we’ve discussed proving causation requires the services of a lawyer.

Good luck with your claim and don’t forget to call me should you have any questions!