Negligence: Elements and Compensation

Negligence plays an essential part in determining the cause of an injury, damage, or death in most accident cases. The elements of negligence can be determined through the following.

• If there is the failure to exercise the required or expected amount of care that a reasonably prudent and careful person would use under similar circumstances

• Doing something which a cautious person would normally not do under the circumstances

• The conduct falls below the standard established by law for the protection of others that it posed unreasonable risk

An act of negligence may land one a personal injury lawsuit. However, there still are elements that should be proven first in order to determine whether an injured victim can recover damages for the negligence of another.

• Duty to protect – Otherwise known as the legal duty of care. A person shouldn’t do anything reckless that may harm another.

• Breach of duty – Happens when someone fails to exercise the duty of care. The person may have intentionally or unintentionally exposed another to a risk and resulted to damage.

• Actual injury – The breach of duty must result to a loss or an evident injury. Property damage and emotional distress fall under this element.

• Legal or Factual Causation (Proximate cause): There must be a connection between the breach of duty and the injury, also known as factual or legal causation.

A negligence lawsuit can be brought by the attorney of the injured or plaintiff against the particular person who caused the injury or the owner of the location where the injury-inducing accident occurred. In a business setting, all of the parties in a “partnership” can also be charged with a lawsuit, or the employer of the negligent employee, as long as the action was done while performing his duties.

The negligence damages that can be recovered are classified into two:

• Special – Monetary compensation for quantifiable financial losses. This includes medical or hospital expenses, damage to property, and loss of income.

• General – Losses that cannot be quantified in monetary terms with certainty, especially since they are not a concrete loss. Emotional distress, pain and suffering, and loss of consortium are the common examples of general damages.

Another type of damages called Punitive damages can also be recovered in a personal injury lawsuit. However, if the action was proven intentional or malicious, the court may order the defendant to pay this kind of damages. The purpose of punitive damages is not to compensate but to punish the defendant and to discourage others from doing similar conduct. Punitive damages can be recovered in a personal injury case, but not if it’s not due to negligence.