As plaintiff advocates, Fair Rate Funding specializes in providing fast, low cost lawsuit loans to plaintiffs. The vast majority of our clients are involved in negligence cases. This post will answer the question: What is negligence law?
Negligence Lawsuits – Background and History
A century ago Oliver Wendell Holmes, Jr., asked “what is negligence” in search of a general theory of tort. A tort is defined as a wrongful act or infringement upon another. Torts (assault, battery, intentional infliction of emotional distress) historically gave rise to liability against the wrongdoer (tortfeasor). Holmes concluded that the basis of tort liability was fault, or the failure to exercise due care. In other words, negligence is a tort, but not an intentional one.
Without intent as a prerequisite, what constitutes negligence becomes three fold:
- Did the defendant owe a duty of care?
- Was that duty of care breached?
- Was the breach the proximate cause of plaintiffs damages?
Duty of Care
A duty of care is a requirement that a person or persons act toward others and the public with “the watchfulness, attention, caution and prudence that a reasonable person in the circumstances would use.” (Law.com legal dictionary “duty of care”).
What is reasonable has been argued since negligence law first emerged. But an example might be that all automobile drivers are expected to maintain their vehicle in safe condition and operate their auto safely and in accordance with all traffic laws.
If a person’s actions do not meet this standard of care, then the acts are considered negligent, and any damages resulting may be claimed in a lawsuit for negligence.
Breach of Duty
A defendant breached the duty of care by doing or not doing something that an average person would do in similar circumstances.
For example, a jury could find negligence if it found that an average person:
- Knew everything the defendant knew at the time; and
- Would have known his/her actions could cause injury to another; and
- Would likely have done something differently than what the defendant did under the circumstances.
Judge Learned Hand created a formula to determine a breach of the duty of care. Many courts still use this formula today. It reads: If the burden of taking precautions is less than the probability of loss multiplied by the severity of that loss, then the party with the burden to take precautions will have breached the duty of care.
The Hand formula was set forth in United States v. Carroll Towing. In describing whether a vessel might break free from her moorings, the case states:
Since there are occasions when every vessel will break from her moorings, and since, if she does, she becomes a menace to those about her; the owner’s duty, as in other similar situations, to provide against resulting injuries is a function of three variables: (1) The probability that she will break away; (2) the gravity of the resulting injury, if she does; (3) the burden of adequate precautions.
Of course, this and other legal “formulas” give attorneys something to argue about. Ultimately, it will be up to a judge or jury to decide what the duty was and whether it was breached.
Causation requires a plaintiff to show the defendant’s breach of the duty of care actually caused the plaintiff’s injury and other losses.
Actual cause (aka “cause in fact”) means the action or inaction directly led to the incident. For example, a car failing to stop at a stop sign and running into another car which had the right of way was the “actual” cause of an accident.
Proximate cause is a little different because the cause of plaintiff’s damages is a little further removed from the action/inaction that breached the duty of care. Proximate cause is also known as “legal cause”. It can be defined as an action/inaction which resulted in damages that were foreseeable. The breach must be the primary cause of injury. If someone’s action(s)/inaction(s) are a remote cause of the injury, there is no proximate cause.
Damages are the final element of negligence. If a plaintiff suffered losses (injury, lost wages, loss of earning capacity, etc.) and that loss was caused by by a breach in the duty of care owed to that plaintiff, money may be the only way to compensate that individual. Obviously, no amount of money can truly compensate for permanent physical impairment. The legal system nonetheless attempts the impossible through monetary awards. Damages in negligence cases normally include:
- medical care
- lost wages
- lost earning capacity
- pain and suffering
- psychological and emotional stress
- and more…
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Negligence Cases and Practicalities
You’re reading this post because you are interested in negligence law. Perhaps you visited this site because you are researching the truth about lawsuit loans – what they are and how to obtain them. This makes sense, since the overwhelming majority of lawsuit loans are given to plaintiffs involved in negligence cases.
There are some practicalities to pursuing negligence cases. First, you will rarely see a negligence case pursued without an attorney. Although some plaintiffs access the courts pro se (without an attorney), almost all negligence accident victims are represented by counsel in court.
This make sense too, because courts allow a contingency fee retainer for these types of cases. A contingency fee retainer means plaintiff’s lawyer is able to share in the recovery. So the hiring of an attorney is a no-risk proposition for clients because there are no up-front legal fees.
Second, negligence cases involve both economic and non-economic damages for the most part. That is, plaintiffs might have suffered losses to property or lost wages. These damages are easy to quantify such as through a repair estimate or past pay check stubs.
Third, non-economic damages make up the most valuable portion of a negligence recovery. Non-economic damages are not easy to pin down. You might say this subjective nature is the reason the court system is used to decide the issue.
Experienced attorneys are particularly skilled in assessing what a jury might award if a negligence case goes to trial. Of course, these are really just guesses. Juries are made up of individuals who each bring there experiences and biases into the jury box. There is simply no way to accurately ascertain what a jury would do in a particular case.
Yet, with the sheer volume of cases in an already crowded docket, settlement remains the name of the game. Legal professionals recommend settlement because it is in everyone’s best interest.
By settling a negligence case, the amounts are known. Everyone may be disappointed in the amounts, but the case is still resolved. The insurance carrier closes its file and accounts for the loss. Plaintiff’s lawyers recapture litigation costs and generate a fee. And the plaintiff gets to move on with life compensated under the law for their injury.
Answering the Question – What is a Negligence Case?
In this post, we posed and answered the question: What is a negligence case? We explored the definition of negligence, it’s elements and some practical aspects of this large but sophisticated area of the law.
Thank you for your interest in negligence law and Fair Rate Funding.