Breach of Duty / Negligence

In the last few blogs we have discussed the elements of a personal injury claim.  There must be a duty to the victim before there can be a breach of that duty.  This breach of duty is often referred to as negligence and this is the second element of a claim in tort.


You hear personal injury lawyers use the term negligence all the time.  They will talk about the negligent party or the negligent tortfeasor (we’ll talk about tortfeasors and torts in another blog).  The reality is that negligence is nothing more than the technical legal term in law that referred to the act of doing something careless or failing to do what you are supposed to do.  If you search the technical legal term in a dictionary, you will find it defined as a noun that means “the failure to exercise the proper care toward others, which a reasonable or prudent person would do in the circumstance.”  You may also find the reverse definition, “taking an action that a reasonable person would not take.”  Both are really two sides of the same coin.  One is a failure to take an action and the other is taking an affirmative action.  Either can be negligent under the right circumstance.

You will also hear attorneys use the term “fault” or “at fault” in place of the term negligence.  This is another way to think about negligence as to who is at fault for the accident or who is to blame for the accident.

It can be difficult to understand what negligence is by giving definitions.  It is often easier to understand the concept with examples.  Negligence is the most common cause of car accidents, collisions and personal injuries.  In the context of car accidents it is easy to see examples of negligence.  Failing to stop for a traffic light is a good example of negligent conduct on the part of a driver.  This is a failure to act negligence case.  It involves the failure to obey a traffic control device under the law.  It also involves a failure to yield the right of way and a failure to pay proper attention to the roadway.  Using the definition, you can see how it works.  The community agrees that a reasonable person will stop for traffic lights, yield the right of way to other cars on the roadway and pay attention to his surroundings has he drives 3 tons of metal at 45 miles an hour down the boulevard.

You can also think of examples of affirmative actions in the car crash context that are negligent.  For example, when someone leaves a bar at 2 am after drinking 8 beers, we see that this is an affirmative action that is negligent.  As a community we recognize that a reasonable person would not behave in this way.  When this drunk driver crashes into someone’s car, we see that this is negligent behavior on the part of the drunk driver (it is also reckless).

Negligence is not limited to car accidents.  It may result in a slip and fall where the store employees left a leaking pipe unprepared allowing water to pool in the floor, causing the shopper to slip and fall.  In the context of medical malpractice it may occur when a surgeon leaves a foreign object in a patient.

Of course, it is not enough to show that someone was negligent to collect money in a case.  There are several elements that must be shown.  You must show that the negligence caused a harm and that it the negligent person had a duty to other’s to take reasonable care.  We will discuss these in separate blogs as we go.

There can be no doubt that proving negligence is central to any case.  Someone has to have done something wrong for you to have a negligence case.  There cannot be an accident without negligence so proving negligence is essential to any personal injury claim.  If you cannot prove negligence, then nobody owes you financial compensation for your injuries.

The personal injury lawyers at Whitener Law Firm, P.A. are advocates for personal injury victim’s rights.  We know what to look for and what evidence to develop to establish negligence on the part of a negligent driver, store owner or medical doctor.  The attorneys at Whitener Law Firm, P.A. handle many kinds of negligence cases including car accidents, trucking accidents, motorcycle accidents, drunk driving accidents, dog bites, medical malpractice, slip  and falls, premises liability and products liability claims.

If you were injured due to someone else’s negligence, then you should talk to the experienced attorneys at Whitener Law Firm.   Contact Whitener Law Firm ONLINE or at (505) 883-RUSS for a FREE CONSULTATION.  Remember there is NO ATTORNEY FEE unless you settle or win your case. 

After a Crash, Don’t Accept Quick Cash… call Whitener Law Firm, P.A.