Negligence Defined
Negligence is the area of law that most of us deal with relating to accidents.
- Negligence is comprised of the duty of a person to do or not to do something that other reasonable people do or refrain from doing.
- It is the duty on the part of the defendant to use due care in whatever it is the defendant is doing, such as maintaining property or driving an automobile.
- The breach of that duty is negligence
- That negligence has to have caused some damage to the plaintiff.
We all know that, if we are rear-ended while we are stopped at a light, the person behind us was negligent and that person's negligence caused damage to our car (property damage) or caused us injury (personal injury). This person is liable for our damages.
Uncontrolled Intersection Auto Accident Example & Negligence
This is a little more complicated in other facts situations such as if there is an uncontrolled intersection and both automobiles get to the uncontrolled intersection at approximately the same time. Who is negligent?
It also gets a little more complicated when both of the parties are negligent. Does that mean neither side gets paid for its damages? Do both sides get paid for their damages? Or does one side or the other get paid for part of its damages and there is an offset for its percentage of negligence?
Slip & Fall Example on Property & Negligence
The owner or manager of property can be liable to somebody injured on their property, but not under all circumstances. The owner or the manager of the property has to be negligent in the conduct of caring for or managing their property. Take the example of someone falling down because a light burned out. If the light burned out a second before the person got to that location and fell down, would or should the owner or manager of the property be liable? In that situation, they probably would not be liable because the owner or manager of the property did not cause the defect in the property, and the defect did not last long enough for the owner or manager of the property to know about the defect and fix it.
Slip & Fall Example In A Supermarket & Negligence
Another example would be in a supermarket, when another customer spills something immediately before the person falls down and the owner of the store did not have enough time to find the spilled material and clean it up. So then in negligence, it is not strict liability, whereas the owner of the property is liable if anyone gets injured on their property, but it is the standard of negligence. In other words, if the owner of the property caused the defect or problem, they will be liable. But if they did not directly cause the spill and someone else caused the spill, it had to have been on the property for a long enough period of time for the owner to be able to know about it and to be able to clean it up.
Bus Example & Common Carrier Negligence
When a person is riding in a bus, this is a different situation for negligence because a bus is considered a Common Carrier. A Common Carrier has a higher duty of care than a regular person who is taking people in their car and does not get paid a fee for transporting people.
Further information on the subject of Common Carrier & Negligence may be found in the Aviation section of the Personal Injury Law Guide, found at the bottom of this page.
Doctor's & Medical Negligence
Within the area of negligence there are special rules relating to various people and/or various categories regarding their particular duty. The same would be true for a doctor's negligence. A doctor's negligence has to be measured by other doctor's of similar standing in the community. If you are claiming that an orthopedist was negligent in diagnosing or misdiagnosing or performing surgery, it would be required that another orthopedist be able to testify that the doctor not only caused some damage, but the damage was caused by his doing or failing to do something that was below the standard of care for orthopedists in that community. This would also apply to any other profession, such as attorneys and other medical personnel.
Collecting Damages
It is not enough to be able to prove negligence and that the person suffered damage. Usually, most people do not have enough money to pay those damages unless they have insurance. In California, if you do not have automobile insurance, and you are injured by someone else, even if it is their fault, you can only collect your special damages, i.e., your medical expenses and loss of earnings, but not general damages, i.e., your mental suffering and emotional distress. That law was passed to encourage people to drive with insurance. Also, if you do not have automobile insurance, you can lose your driving privilege in California.
For further information see the following sections:
