Most people have some knowledge of the legal system, whether from personal involvement in a court case, or even just from legal dramas on TV, in books, or at the movies. There are still many legal concepts that are confusing. One key example is negligence — a term often used in personal injury cases.
Negligence has a specific legal meaning, but the idea behind it is simple. It means that a person didn’t act the way a reasonable person would have acted under the same circumstances in order to avoid hurting another person. For example, if you are texting and driving, you are acting negligently — because a reasonable person wouldn’t take his or her eyes off of the road while behind the wheel in order to read or send a text.
Different types of negligence may apply in certain cases. A personal injury attorney can help you determine whether a person or organization that caused your accident was negligent in some way — and if you can make a claim against them as a result.
What Is Negligence?
Negligence is a legal concept that applies to most personal injury cases. If a person fails to act in a reasonable manner and causes injury to another as a result, that may be considered negligence. If that person (or an entity, such as a company or a governmental body) is determined to be negligent, that person or entity will be held responsible for the other person’s losses.
This concept is applied in a number of different ways. For example, imagine that you are at a store, and you slip and fall on a wet floor. The store may be considered negligent if it knew about the dangerous condition (wet floor) and failed to clean it or at least alert customers about the dangerous condition. This type of personal injury case is known as premises liability.
In medical malpractice, the question of negligence is based on the standard of a reasonable healthcare professional in that situation. If your surgeon operated on you without washing his hands or making sure that the instruments were sterile, and you got an infection as a result, the surgeon acted negligently. That is because a reasonable surgeon would (1) wash hands and (2) ensure that the instruments were sterile before proceeding with an operation.
Proving negligence requires demonstrating four elements:
- Duty: The other person had a duty to act in a reasonable manner. For example, a driver owes a duty to others on the road (including pedestrians) to drive safely and to follow the rules of the road.
- Breach: The other person violated that duty. In the case of a driver who struck a pedestrian, the driver may have violated his or her duty of care by not paying full time and attention while driving.
- Causation: The other person’s breach of the duty of care caused injuries to someone else. An added component is that this breach must be the proximate or “but for” cause of injury. In other words, you would not have been injured but for the other person’s actions.
- Damages: The injured person must prove the claimed suffered losses and the amount of those losses.
To prove negligence, your attorney will use knowledge of both statutory laws on negligence as well as case law, which is the body of decisions made by judges in court cases. Your lawyer will analyze the facts of your case against these laws to determine if you have a viable case, and if so, what damages you may be entitled to under the law. For example, if the injury happened in Washington, D.C., your attorney may research case law to find an accident case that is similar to yours, and evaluate the way that the court applied D.C. law in that case. In this way, your lawyer will not only be able to determine whether you can file a claim but also build a strong claim that the other party was negligent and that you are entitled to damages for your losses.
In personal injury cases, negligence is the general standard that applies to the defendant against whom you are bringing your claim. When it comes to the conduct of you, the injured person, two other types of negligence come into play: contributory and comparative negligence.
Contributory and Comparative Negligence in D.C. Personal Injury Cases
Many personal injury cases are relatively straightforward: one person was negligent, and someone else was injured as a result. But what if the injured person was not entirely blameless in causing the harm? What if you did something wrong that the other person says contributed to your own injury?
A classic example might be if you were a pedestrian knocked down in a crosswalk by a car. You had a legal right to be in the crosswalk. But what if you were looking down at your phone when you were hit and didn’t look to see the approaching vehicle? Or what if you were running across the street as the light was turning yellow to try to beat the red?
In these situations, the doctrines of comparative or contributory negligence come into play. These concepts basically mean that when the injured person may have been negligent, a percentage of legal fault can be assigned to the injured person. Recovery may be barred entirely, or reduced by the percentage that the injured person was at fault.
Most jurisdictions use a form of comparative negligence. With comparative negligence, an individual can still recover for an accident, even if the individual is at fault. Recovery is just reduced by the percentage of fault.
For example, if you were hit by a car as a pedestrian, you may have been partially at fault because you were looking down at your phone when crossing the street, and didn’t look both ways. If the jury decides that you were 10% at fault, and also decides that your total damages were $100,000, then your total recovery would be $90,000 ($100,000 minus 10%, or $10,000).
In contrast, contributory negligence jurisdictions prevent a person from recovering at all if that person was even a little bit at fault for an accident. In the example above, you would receive nothing for your injuries because the jury found that you were at least partially to blame for the accident. Only four states still have this harsh rule, including both Maryland and Virginia, and to some extent, the District of Columbia.
Until 2016, Washington, D.C. also followed the contributory negligence rule. The District of Columbia updated its code with the Motor Vehicle Collision Recovery Act. Under this law, there are exceptions to the contributory negligence rule in D.C. The following rules now apply:
- The negligence of a pedestrian, bicyclist, or other non-motorized users of a public highway involved in an accident will not bar recovery unless:
- The plaintiff (injured party)’s negligence was the proximate or but-for cause of the injury; and
- The plaintiff’s share of negligence is greater than 50%
Under this law, as long as the driver’s fault is greater than the victim’s, then the victim can recover all of the proven damages.
This new law is not a form of comparative negligence. Instead, it eliminates contributory negligence for pedestrians and cyclists who have been hit by cars.
However, contributory negligence is still the law for users of motorized vehicles — like cars, trucks, and electric scooters. If you are in a car accident with another vehicle, you could still be barred from recovery if you are even slightly at fault for the crash, barring any exceptions to the contrary.
Because of this unjust law, it is important to work with a Washington, D.C. personal injury attorney who can aggressively advocate for your right to recovery. By performing a thorough investigation, your lawyer can frame the case in a way that allows you the best chance to recover for your losses.
An attorney will also look for case law involving similar cases. For example, there is a legal rule called “last clear chance,” that lets the injured person recover damages even though he or she was partly at fault for the injury, as long as it can be shown that the other at-fault person had the “last clear chance” to avoid the harm.
Based on your lawyer’s analysis of these and other laws, as well as the legal standards set forth in previous cases, your lawyer can put together a claim that will be more likely to lead to a favorable outcome by reducing or eliminating the percentage that you were considered at fault for an accident.
Injured in an Accident? Reach Out for Help Today.
The concept of negligence is the basis for most personal injury claims. Although contributory negligence is no longer the rule for D.C. pedestrian and bike accident claims, it is still used for other types of personal injury cases. Building a strong case for recovery should include proving that you were not at fault for the accident.
At Patrick Malone & Associates, we work passionately to obtain the best possible result for our clients. We offer free initial consultations, and never charge attorney’s fees unless we recover a settlement or verdict for you. To learn more or to schedule a free initial consultation, contact us online or call us at 202-742-1500.