Most injury lawsuits are brought before a court because some injury happened to some person because of another person. However, as most are aware, those facts are not enough to win a lawsuit as some legal principle needs to back up the claims being brought by the plaintiff. Most of the time, the legal theory behind a civil suit for injury, is that of negligence.
Negligence is a concept that involves a duty that was owed to one individual and failure to exercise that duty or act in a manner that is consistent with how other reasonable people would act. Thus, for negligence to be proven, it must be clear that there was a duty, that there was a failure to exercise that duty, that the failure to exercise the duty was the direct – proximate – cause of the injury and that an actual injury occurred.
It is important to note that all four of the negligence elements, mentioned above, must be proved. An absence of proof as to any of those elements means that negligence, as a whole, cannot be proven.
However, even if all of the elements to negligence are proven, this does not mean that the other party to the lawsuit will not have an opportunity to defend.
The two main defenses in a negligence action are contributory negligence and assumption of risk.
Contributory negligence is a legal defense that asserts that the other party also had a duty to act, effectively apportioning out the negligence of both parties in a percentage-like fashion. For example, if one person was intoxicated while driving and gets into an accident with another person who was sober but sped through a stop sign, it is likely that both parties contributed to the accident. A court would then apportion out the fault on a percentage basis.
Assumption of risk is a legal defense that states that a party is at least partially at fault if they voluntarily expose themselves to the risk. For example, if a person pays an entry fee to a football league and they break their leg on a routine play, it is unlikely the league will be liable since the person who was injured should know that football is a dangerous sport and that injury was possible. However, if the person broke their leg after stepping in a two-foot deep pothole, the player likely did not assume that risk since it was the league who failed to maintain the field in a proper manner.
No matter who wins the lawsuit, it is likely damages will be awarded. Damages are awarded on a compensatory, and sometimes punitive, manner. Compensatory damages are awarded for the payment for measurable costs such as hospital bills, prescriptions, lost wages, etc. Punitive damages are awarded to the victim in order to punish a wrongdoer.
If you feel you need assistance with a negligence claim, seek the help of qualified and experienced legal counsel. 702 Defense has years of experience in the area of law and can be reached at 702-333-3673.