louisiana personal injury accident basics: the concept of negligence
TRANSCRIPT
LOUISIANA PERSONAL
INJURY ACCIDENT BASICS The Concept of Negligence
“If you have been injured, only an experienced Louisiana personal injury accident attorney can evaluate the unique facts and circumstances of your “accident” and advise you regarding your legal options; however, it may also be helpful for you to have a basic understanding of the legal concept of negligence.”
Broussard & Hart, LLC
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When someone is injured as a result of a motor vehicle collision we typically say the
victim was injured in a car
“accident”. The same is true when
injuries are sustained in a slip and
fall “accident” or any other type of
personal injury “accident”. Though
some of these are truly the result of
an accident, more often than not
they are actually the result of the
intentional, wrongful, or negligent
conduct of another party. When that is the case, the victim may be entitled to
compensation from the at-fault party for the injuries suffered. If you have been injured,
only an experienced Louisiana personal injury accident attorney can evaluate the unique
facts and circumstances of your “accident” and advise you regarding your legal options;
however, it may also be helpful for you to have a basic understanding of the legal concept
of negligence.
THE LAW OF TORTS
When a victim suffers injuries to his person or property it is the law of “torts” that allows
the victim to pursue compensation from the at-fault party. The law of torts may hold the
defendant liable for those injuries using one of three standards, depending on the type of
tort involved. Those three include:
Intentional torts – an intentional tort is one in which the defendant intended to
cause harm to the victim. Battery, for example, is an intentional tort. In legal terms,
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battery means an unwanted touching. When used as the basis of a civil lawsuit a
battery typically means that the defendant hit and injured the plaintiff (victim).
Even if the defendant was also charged with the criminal offense of battery a
victim may still choose to pursue a civil lawsuit for the same incident to recover
damages.
Strict liability torts – unlike intentional and negligent torts, in a strict liability tort
the law is not concerned with the defendant’s state of mind at the time of the
injury. All that matters is that the victim was injured and that the law holds the
defendant liable. Dog bite statutes are common examples of strict liability torts. In
many states, the owner of a dog is held liable for injuries to a victim without regard
to anything the owner did or didn’t do to try and prevent an attack.
Negligent torts –negligence is the standard used in most personal injury lawsuits.
Negligence essentially amounts to a “reasonableness” standard.
PROVING NEGLIGENCE – THE ELEMENTS
For the victim of a personal injury
accident to recover damages the victim
must prove that the defendant was
negligent in most cases. Negligence is a
concept that has been argued and
debated both in and out of courtrooms
for decades. A universally accepted
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definition remains elusive; however, it is commonly accepted that to prove negligence
four elements are required:
Duty of care –the duty of care is a legal duty owed to the victim by the defendant.
In essence, it means that the defendant was required to do everything that a
reasonable person would do under the circumstances to prevent harm from
befalling the victim. In some cases the duty of care is already widely accepted
while in others the victim must prove that one existed. For example, courts have
long held that a motorist operating a vehicle on a public roadway owes a duty of
care to all others who share the roadway. Likewise, a shop owner owes a duty of
care to members of the public who enter the shop.
Breach of the duty of care –a victim must next prove that the defendant breached
the duty of care owed to the victim. Recall that the duty of care uses a
reasonableness standard, meaning that the defendant is not legally compelled to do
everything possible to prevent harm, only to take all reasonable steps to prevent
harm. Therefore, a victim must show that the defendant breached the duty of care
by not taking all reasonable steps to prevent harm. For instance, if a motorist is
texting while driving, that is likely a breach of the duty of care.
Causation – a victim must show that the breach of the duty of care was the cause,
or a cause, of the harm suffered by the victim.
Damages –finally, a victim must show that he or she suffered damages, or injuries,
as a result of the defendant’s conduct.
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APPORTIONING FAULT – COMPARATIVE
NEGLIGENCE VS. CONTRIBUTORY NEGLIGENCE
In some cases a victim shares some of the blame, or fault, in a personal injury accident.
Motor vehicle accidents are a common example of situations wherein a victim may be
partially at fault. The law of negligence handles situations wherein the victim shares in
the fault in one of two ways, by using contributory or comparative negligence.
Fortunately, the State of Louisiana uses comparative negligence.
Contributory negligence bars a victim from recovering damages if the victim contributed
in any way to the accident. Under the doctrine of contributory negligence, therefore, if a
victim was one percent at fault the victim cannot recover anything from the defendant
despite the fact that the defendant was 99 percent at fault. Only four states and the
District of Columbia currently use contributory negligence.
Comparative negligence, which is used in its pure form in Louisiana, apportions the fault
when the victim is found to have contributed to the accident by diminishing the
compensation recoverable by the victim by the amount of fault the victim shares in the
accident. For example, if a victim has damages valued at $100,000 and is found to be 15
percent at fault in the accident the victim will only be entitled to recover $85,000 from
the defendant.
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WHAT TYPE OF CASES USE A NEGLIGENCE
STANDARD?
The vast majority of personal injury “accident” cases require the victim to prove
negligence on the part of the defendant. Common examples include, but are not limited
to, the following:
Car accidents
Slip and fall accidents
Premises liability injuries
Motorcycle accidents
Product liability injuries
Medical malpractice injuries
Wrongful death
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If you have suffered injuries in what you believe to be a personal injury accident, or you
lost a loved one to an unfortunate “accident”, you may be entitled to compensation for
your injuries or your loss if you are able to prove negligence on the part of the defendant.
While the law does allow victims to pursue compensation for their injuries, the law also
limits the time within which a victim must do so. For this reason alone it is in your best
interest to consult with an experienced Louisiana personal injury accident attorney as
soon as possible if you are the victim or survivor of a personal injury accident.
Findlaw, Elements of a Negligence Case
Justia, Louisiana Laws -- Civil Code 2323 Comparative Fault
Laws.com, Comparative Negligence
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About Broussard & Hart, LLC
If you or a member of your family has been seriously
or fatally injured in an accident or as a result of
medical malpractice, you have experienced and
continue to experience trauma and grief. During this
difficult time, as you struggle with medical,
emotional, and financial issues, you will need to make
decisions that will permanently affect your ability to
take care of yourself and your family.
At Broussard & Hart, L.L.C., our Lake Charles law
firm staff and lawyers are focused on helping those
who, like yourself, have suffered losses to
catastrophic injuries or wrongful death, working to see
that they recover the compensation they need and
deserve. Our efforts stem from a genuine concern for
those we serve.
Our firm is prepared to handle a wide variety of
personal injury claims, including those involving medical malpractice, trucking accidents, 18-wheeler
accidents, and maritime law. After our Louisiana attorneys have reviewed your case they will give you
an honest assessment of your options. If you would like to schedule a free, confidential consultation with
our law firm in Lake Charles, please contact our office.
1301 Common Street
Lake Charles LA 70601
Phone: 337-564-3318
Website: http://broussard-hart.com