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One of the most common claims that plaintiffs sue defendants for is that of negligence. Negligence is defined as the absence of ordinary care which a reasonably prudent person would exercise in the circumstance. A large percentage of personal injury cases, spanning from medical malpractice to auto accidents, include negligence claims. Negligence is easier to establish than many other claims, because it requires no intent on the part of the defendant.

Legendary Supreme Court Justice Oliver Wendell Holmes was a staunch defender of the negligence doctrine. He argued that it allowed any loss to lie where it falls, with the person responsible for the harm directly paying the person harmed. According to Justice Holmes, the negligence doctrine is derived from and consistent with this country’s capitalist economic system, which focuses on individuals rather than communities or the state.

The Elements of a Negligence Claim

To establish a negligence case, a plaintiff must prove the following elements:

1. Duty: The defendant must owe the plaintiff a legal duty

2. Breach of duty: The defendant must breach his legal duty to the plaintiff. The test is whether a reasonable person, in the defendant’s shoes, would have behaved the way the defendant did. If not, the defendant breached his duty.

3. Causation: The plaintiff must show that the defendant’s breach led to actual harm to the plaintiff. Different courts use different tests for causation. Among them are proximate cause, but-for cause, cause in fact, and causal tendency.

4. Actual harm: Plaintiff must demonstrate that the defendant’s breach actually harmed the plaintiff. This harm can be physical, emotional, financial, etc.

If a judge or jury finds that each of these elements is satisfied by the preponderance of the evidence, and the defendant cannot establish any affirmative defenses, then the plaintiff’s negligence claim will be successful. The next step would be to award damages.

Defenses to a Negligence Claim

There are four common defenses raised by defendants in negligence cases. They are as follows:

1. Contributory negligence: In a few states, if the plaintiff contributed in any way to the harm he experienced, he cannot collect damages from the defendant.

2. Comparative negligence: In most states, if multiple people (including the plaintiff) cause the harm to the plaintiff, the defendant can still be liable for the percentage of the harm he caused. Some states only find defendant liability if he caused at least 50% of the harm, while others allow damages for any percentage of the harm caused by the defendant.

3. Assumption of Risk: In some situations, the plaintiff takes on the risks associated with a given activity or product, thus effectively shielding the defendant from liability.

4. Statutes of Limitations: The claim must be brought within a certain amount of time from when the harm occurred.

Defendants, particularly those with deep pockets, can often get creative and aggressive in trying to establish defenses to negligence claims. This is all the more reason why a plaintiff needs a zealous and effective attorney.

Pursuing a Negligence Claim

If you believe you have been harmed by another party’s negligence, you should contact a personal injury attorney immediately. An attorney can review the facts of your case and determine whether you have a viable claim. If so, they can help you seek the compensation you deserve.

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