The vast majority of personal injury claims are filed on the basis of negligence. Before we explain how to prove negligence in a tort case, let’s define two important terms:
- Negligence: One party’s breach of the duty of care owed to another party
- Duty of Care: A legal obligation to exercise a level of care that a person of ordinary prudence would exercise under the same circumstances
Read on to learn about the elements that must be proven in order to establish negligence:
A Duty of Care Existed
The duty of care may be express or implied. An express duty of care is established in writing or through a particular action. For example, when you visit a doctor to diagnose your symptoms, the doctor has a duty to use the most widely accepted and reasonable standards of care. This duty is established once the patient-healthcare provider relationship begins. But if a doctor provides advice to a friend in passing, no duty of care would exist.
An implied duty of care can exist based on circumstance. No written agreement is required. For instance, all drivers owe one another an implied duty of care to follow all traffic laws and to avoid unreasonably dangerous behaviors while behind the wheel. Business establishments owe invitees a duty of care to inspect their premises and fix dangerous conditions or post warnings about them within a reasonable amount of time.
The Duty of Care Was Breached
Once your personal injury lawyer has established that a duty of care existed, it must then be shown that the duty of care was breached by the defendant (or by the defendant’s employee). Continuing with the medical example, doctors may breach the duty of care owed to patients when they fail to use the most widely accepted standards of care. Drivers may breach the duty of care owed to other motorists when they speed, make illegal turns, or operate a vehicle while under the influence of drugs or alcohol.
Although demonstrating a breach of duty is the final step in proving negligence, there are other elements your lawyer will have to prove in order to win a settlement or verdict. Those elements are:
It must be shown that the defendant’s negligence was the actual or proximate cause of your damages. The evidence required to prove causation varies by case but may include the police report, photos of injuries and property damage, surveillance footage, eyewitness testimony, expert witness testimony, and medical records. The defendant or insurance company might dispute causation if you had a pre-existing condition that was aggravated by the accident or if you waited too long to visit a doctor. For this reason, it’s a good idea to hire a skilled personal injury lawyer right away even if there’s strong evidence of negligence.
You won’t be able to recover an award of damages unless you actually suffered damages. Evidence of damages may include medical bills, financial documents, contractor estimates for property repairs, your personal injury journal, and expert witness testimony.
Call 713-893-8808 to Speak with a Personal Injury Lawyer in Houston
Chelsie King Garza, P.C. has more than 19 years of experience helping accident victims and their families fight for the compensation they deserve. Chelsie is respected by insurance companies throughout Texas as a tough litigator and aggressive negotiator. Call 713-893-8808 or fill out our Contact Form to set up a free consultation.