Winning Your California Personal Injury Lawsuit : Understanding Negligence
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Transcript of Winning Your California Personal Injury Lawsuit : Understanding Negligence
WINNING YOUR CALIFORNIA PERSONAL
INJURY LAWSUIT Understanding Negligence
Only an Experienced Personal Injury Attorney Can Tell You If You Have a Personal Injury Claim; However, a Basic Understanding of the Concept of
Negligence May Be Beneficial
Winning Your Personal Injury Lawsuit www.martinezschill.com 2
If you have been injured in an accident you could be entitled to
compensation for the injuries you suffered. Although we commonly use the
term “accident”, many “accidents” are actually the result of the intentional
or negligent conduct of another party. When another party caused, or
contributed to, the accident that caused your injuries you may have the
basis for a personal injury lawsuit. To prevail in the lawsuit you must prove
that the defendant’s conduct rises to a level that the law requires in order
to hold the defendant financially responsible for your injuries. In most
cases this requires you to prove that the defendant was negligent. Only an
experienced California personal injury attorney can tell you if the specific
facts and circumstances surrounding your accident form the basis of a
viable personal injury lawsuit; however, a basic understanding of the
concept of negligence may be beneficial in the meantime.
TORT LAW – INTENTIONAL, STRICT LIABILITY AND NEGLIGENT LIABILITY
“Torts” is the area of the law that
addresses injuries to your person
or property. Personal injury
accident lawsuits fall within the
purview of tort law. For a
defendant to be held liable for
injuries to a victim the
Winning Your Personal Injury Lawsuit www.martinezschill.com 3
defendant’s conduct must fall into one of three categories – intentional,
strict liability, or negligent.
Intentional conduct, as the name implies, is conduct that was willful or
purposeful. Often, intentional conduct also gives rise to criminal charges.
Imagine, for example, that you are the victim of road rage wherein another
motorist becomes so angry and aggressive that he actually physically
assaults you. The motorist would likely face criminal charges for assault;
however, you would also be
entitled to file a civil lawsuit for
damages based on injuries you
suffered as a result of the
defendant’s intentional conduct.
Strict liability is rarely used
because it makes a defendant
liable regardless of the
defendant’s mensrea, or state
of mind, and regardless of
whether the defendant did
anything to try and prevent injury from occurring. Dog bite cases are based
on strict liability in some states, including California. In essence, strict
liability only requires an injury to a victim. In California, for example, “The
owner of any dog is liable for the damages suffered by any person who is
bitten by the dog while in a public place or lawfully in a private place,
Winning Your Personal Injury Lawsuit www.martinezschill.com 4
including the property of the owner of the dog, regardless of the former
viciousness of the dog or the owner's knowledge of such viciousness.”
California Civil Code section 3342.
The vast majority of personal injury lawsuits are based on negligence.
Negligence is the most difficult of the three to understand as well. The
precise definition of negligence has been argued and debated by scholars,
attorneys, and judges for decades. In its simplest terms, negligence
requires four elements – duty of care, breach of duty, causation, and
damages. All four elements must be proven to prevail in a personal injury
lawsuit based on negligence.
DUTY OF CARE
The first, and most important, element in a negligence lawsuit is the duty
of care. The defendant must have owed a duty of care to the victim. The
duty of care means that the defendant was legally obligated to do
everything reasonably possible to prevent harm to the victim. By way of
illustration:
A motorist operating a vehicle on a public roadway owes a duty of
care to everyone else on the roadway.
A business owner owes a duty of care to members of the public who
enter the business
Winning Your Personal Injury Lawsuit www.martinezschill.com 5
A restaurant owner owes a duty of care to the customers who eat in
the restaurant
A vehicle manufacturer owes a duty of care to the customers who
purchase the vehicles
BREACH OF THE DUTY OF CARE
Once you have established that the defendant owed a duty of care to the
victim the next question is whether or not the defendant breached that
duty of care. This is often where is gets tricky because the exactly what
duty of care was owed to a potential victim often depends on the
relationship between the defendant and the victim. A doctor, for instance,
owes a higher duty to an injured patient than someone passing by on the
street who sees an injured individual. Likewise, the law says that a store
owner owes a higher duty of care to a customer than would be owed to a
serviceman who is there to repair something.
Furthermore, the test for breaching the duty of care can have both an
objective and a subjective component. An objective analysis can be used if
the defendant knowingly breached the duty of care. If the defendant did
not knowingly breach the duty of care than a subjective analysis must
decide if the defendant should have knownthat the defendant’s conduct
placed the victim at risk of harm. The question is often “Would a
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reasonable person have known that the defendant’s conduct would place
the victim at risk of harm?”
Whether or not a breach has occurred depends on the facts of the case.
Some cases are easier to decide than others. A motorist who gets behind
the wheel while intoxicated has clearly breached the duty of care. Likewise,
a surgeon who operates while under the influence of drugs has also
breached the duty of care. Other situations are more difficult to decide
and, therefore, require a detailed review and analysis by an experienced
California personal injury attorney.
CAUSATION
Assuming that both of the first two elements have been established,
causation must then be established. Often this is easy as causation flows
naturally from the events that occurred; however, in some cases causation
can be tricky. It must be proven that the defendant’s breach of duty
caused the victim’s injuries. The question used to determine causation is
often “But for the defendant’s action would the victim have been injured?”
This test, however, does have a limit. If the injuries a victim suffered were
so unlikely that they could not reasonably have been foreseen then the
defendant may not be held liable even if the “But for” test is passed. This
typically applies when the defendant’s conduct sets off a chain of events
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that could never have been foreseen and that ultimately cause injury to the
victim.
DAMAGES
“Damages” refers to the harm done to the victim. In a personal injury
lawsuit a victim usually claims both economic and non-economic damages.
Both must be proven to be compensable. Economic damages include things
such as medical bills, property damage, and lost wages. Non-economic
damages are what people usually refer to as “pain and suffering”.
To prevail in a California personal injury lawsuit based on negligence all
four elements must be proven to the satisfaction of the judge or jury. In
some cases negligence on the part of a defendant is clear; however, more
often than not negligence is the first, and most important, hurdle in a
personal injury lawsuit. If you believe that you have been injured as a
result of the negligence of another party, contact an experienced California
personal injury attorney right away to have your case evaluated as there
are time limits within which a lawsuit must be filed to preserve your right
to compensation.
Justia, California Civil Jury Instructions -- Negligence
Findlaw, Elements of a Negligence Case
Winning Your Personal Injury Lawsuit www.martinezschill.com 8
About Martinez & Schill LLP
Martinez & Schill LLP is a full service civil law firm located in San
Diego and serving Southern California.
Our accomplished team of lawyers includes founders Jennifer Martinez
and Michelle Schill and Of Counsel attorney, Kent Thaeler. Together,
we provide our clients with more than 35 years of legal experience. Through skillful negotiation,
mediation, and tenacious litigation, we are committed to obtaining the best results for our clients.
When you hire Martinez & Schill LLP you are hiring a team of lawyers assigned to your
case that are always available to you. We believe it is important to build a personal relationship with our clients so we may act as a better advocate on behalf or you or your company.
The results we have obtained for clients are the reason why clients have continually
chosen our firm to represent them in various simple and complex legal matters and referred us to other friends, family and colleagues.
Our firm has provided individuals, business owners and companies representation in matters involving:
General Personal Injury Litigation
Products Liability Industrial Accidents
Severe Personal Injury Wrongful Death Liquor Licensing
Conditional and Neighborhood Use Permits Business Formation
Martinez & Schill LLP is conveniently located in downtown San Diego, California. Our San Diego office is centrally located in the Koll Center downtown at Broadway and
Columbia, near both the San Diego Superior Court and Federal courthouses. Please contact our firm at 619-512-5995 for more detailed directions.