Frequently Asked Questions

What is ‘negligence’?

A person is negligent when he or she fails to act like the standard “ordinary reasonable person”. Of course the critical issue in many cases is just how an “ordinary, reasonable person” was expected to act in the particular situation that caused the injury.

For example, an ordinary, reasonable person can travel down the Interstate, which has a posted speed limit of 65 miles per hour, at 65 miles per hour. However, if dense fog is present, the same ordinary, reasonable person would be expected to reduce his/her speed of travel. Suppose someone plows into your car while she was driving at 55 or 45 or 35? Would that be what the standard “ordinary reasonable person” should have done?

The determination of whether a given person has met his/her “ordinary reasonable person” standard is often a matter that is resolved by a jury after presentation of evidence and argument at trial.


What is ‘comparative negligence?’

Comparative negligence comes into play when it is contended that two or more parties failed to perform at the standard of the “ordinary reasonable person”. For example, suppose one person was driving too fast in a patch of dense fog on the highway and hit a car — but the car that was hit did not have its lights on as it should have.

In a situation where each party has some degree of negligence in causing an accident, the responsibility to the other person(s) is reduced by the others’ degree of negligence. For example suppose a jury decides that the driver going too fast in the fog was 60% responsible for the accident, while the driver without vehicle lights on is 40% responsible. If the driver who didn’t have his lights on would have recovered $10,000, his recovery would be reduced to $6,000 because of his 40% contributory negligence. Whether the speeding driver would recover anything will depend on state law — in some states the driver who bears over 50% of the responsibility would recover nothing, not the 40% of his damages.


How do you prove a negligence claim?

To support a legal claim for negligence, the plaintiff (the person filing the lawsuit) must show four things:

  • That the defendant (the person or entity being sued) owed the plaintiff a duty of care;
  • that the defendant failed to exercise due care towards the plaintiff (i.e. breached the duty);
  • that the defendant’s breach of duty caused the plaintiff’s injury; and
  • that the plaintiff suffered damages as a result.


What is “proximate cause”?

In order for someone to be legally responsible for damages, it is necessary to show that the wrongful act was the proximate cause of the harm. The injury must be shown to be the natural and probable result or consequence of the act of negligence alleged to have been committed. The plaintiff must prove that any negligence of which the defendant is accused proximately caused the Plaintiff’s injury. There may be more than one proximate cause of an accident. Multiple acts of negligence by different people may cause the same accident, yet each may be deemed to be a proximate cause of the accident. Sometimes there is an intervening cause which comes after the original negligence of the defendant which may reduce the amount of the defendant’s liability. If this intervening cause is the substantial reason for the injury, then the defendant will not be liable at all.


What doe it mean to have “assumed a risk”?

Assumption of risk is a defense which a defendant can raise which basically states that the plaintiff has knowingly assumed the risk of the harm that was caused.  A fan hit by a basketball at a basketball game has assumed the risk of getting hit because it is a known danger that basketballs are thrown into the stands by players (when another player fails to make the catch) from time to time.  However, the doctrine of assumption of risk has been watered down by the doctrine of comparative negligence.  For example, if a plaintiff drives an automobile knowing his brakes are defective and he fails to stop at a railroad crossing and is there­fore hit by a train, comparative or contributory negligence would be more appropriate than assumption of risk, although the plaintiff could arguably be deemed to have assumed the risk of an accident by driving with defective brakes that he knew to be defective.


Are certain persons and entities not subject to tort liability? 

Certain persons and entities are not subject to tort liability.  This is called immunity from liability.  Governments are generally immune from tort liability.  Both states and the federal government have abolished governmental immunity by statute in some situations.  For example, under the Federal Tort Claims Act, damages may be recovered from the United States for the negligence of any employee of the United States under circum­stances that the United States, if a private person, would have been liable. Very young children are immune from tort liability.

Inside Frequently Asked Questions