What is Negligence and How Does it Affect Personal Injury Claims?

Posted on behalf of Henness & Haight on Nov 13, 2014 in Insurance News

Sometimes it can be unclear whether or not you have a personal injury case worth pursuing. The easiest answer to this question is whether or not you have sustained injuries that require either significant medical costs, a long amount of time to recover from or that result in a loss such as emotional damages or missed work. Without a large amount of one or more of these types of personal loss as the result of your injury, looking for a cash settlement may not be worth the trouble of creating a personal injury case. If you have genuinely experienced detrimental effects as a result of a personal injury, the next question is "Do I have a case worth pursuing compensation for damages?" Reaching a settlement or a favorable verdict in these cases requires proving that the other party was at fault because of their negligence. Proving this accusation of negligence is the key in establishing your personal injury case.

What is Negligence?

Finding a party negligent means that they essentially did something they were not supposed to do or failed to do something they were supposed to do. These criteria are referred to as "due diligence." In other words, if a party did something careless, irresponsible or even illegal, they were not exercising their due diligence as would be expected of a reasonable adult citizen. In personal injury cases, proving that the other party did not exercise due diligence is the foundation of a solid argument in favor of the plaintiff. The burden of proof in these cases is thus upon the plaintiff and his or her attorney to establish this fact.

How Does an Attorney Establish Negligence?

When a personal injury lawyer is trying to establishing that a party was negligent there are four key elements.

Duty and Breach

First, the defendant must have had some sort of duty. Searching through written laws, the plaintiff's attorney must be able to point to a concrete statement that the defendant had a legal responsibility. Once a duty is established, the plaintiff's attorney must then prove that the defendant had a breach in that duty, or that they had failed in their duties in some way. The easiest example of this is in a car wreck where the defendant failed to stop at a red light. In this example, the defendant had an obvious legal obligation to stop at the red light, which they ignored. In other instances, proving a duty and a breach is not so clear-cut. For example, does a dog owner have an obligation to teach their pets not to bite a pet sitter? If the dog is not under the owner's care at the moment and if the dog was on the plaintiff's property who was being compensated for caring for the dog, was it the plaintiff's responsibility to keep the dog from biting them? Proving negligence in this example would require showing that the dog owner had a breach in their duty to teach the dog not to bite people, or that they had inadequately warned the dog sitter of the danger.

Causation and Damages

Once the plaintiff's attorney has proven that the defendant had a breach in legal duty, the next step is to prove that the breach caused an injury and that the injury was substantial enough to warrant the damages the plaintiff was claiming. In many cases, this second part can be more straightforward than the first, but some defending attorneys will split hairs by saying, "Yes, my client was negligent, but their negligence did not cause the injury that the plaintiff is claiming." Being able to navigate these steps successfully depends on the circumstances of your case and your lawyer's ability to find evidence and make convincing arguments based upon it. This reality is why it is crucial to establish the facts of your case from the beginning when making a personal injury claim.


If you have further questions about injuries resulting from a car crash don't hesitate to contact the personal injury lawyers of Henness and Haight in Las Vegas.