ELEMENTS OF NEGLIGENCE

Personal Injury Attorneys in Vermont & New Hampshire

When looking for the presence of negligence in a personal injury case, the general rule is that a person has a duty to exercise reasonable care regarding foreseeable risks of harm that may arise from their conduct. However, there are certain times when a court will decide to limit a person’s legal duty. In determining whether or not to limit a duty, the courts balance a number of factors, including:

  • The foreseeability of harm
  • The closeness of the connection between the conduct that caused the injury and the injury suffered
  • The moral blame attached to the conduct
  • The social policy of preventing future harm
  • The broader consequences to the community of imposing a duty to exercise care with resulting liability for breach

What Is a Breach?

If it can be established that a person had a legal duty, then the next question becomes whether that duty was breached. A breach occurs when an individual’s conduct created a foreseeable chance of harm or an unreasonable risk of harm. The standard for determining if a breach occurred is commonly referred to as an objective standard of reasonable care. This means that we all owe a standard of care to act as a reasonable person under the same or similar circumstances in order not to cause harm by our actions. If we had a duty to behave in a certain way, and failed to behave as a reasonable person would under the similar circumstances, then a breach occurred. Although customs in a community or culture do not define the reasonable person standard, courts commonly consider them in determining whether a person acted reasonably in a situation.

What Is Causation?

The next element is causation. Causation actually has two parts: actual causation and proximate causation. Actual causation can be determined through the “but for” test. But for that person running the red light, the collision would not have occurred. Actual causation is also commonly referred to as cause-in-fact causation. If the actual cause can be established, then the next step is determining whether the negligent conduct was the proximate cause of the injury. The easiest way to understand proximate cause is to think of it in terms of foreseeability. Was the harm resulting from an action reasonably able to be predicted? For example, one could foresee that swinging a golf club at someone’s head could cause serious injury, but what if you swing a golf club indoors, hitting a shelf, and cause a heavy object to fall on someone’s head that results in serious injury? Your attorney would need to establish that the injury suffered was proximately caused by the initial act of swinging the golf club.

What Are Damages?

The final element of negligence is damages. In order to recover in a personal injury claim, you must suffer legally recognized harm. General damages are composed of pain and suffering, and these are intended to cover any injuries that cannot be given an exact dollar amount. Compensatory damages usually include medical expenses and lost wages. The purpose of awarding damages is to return the injured person to the financial position he was in prior to the injury.

If you or a loved one has suffered injury as a result of what you believe was someone else's negligent conduct, please contact Van Dorn, Curtiss & Rousseau, PLLC by phone at (603) 556-4148 or online to arrange a free consultation at our office in Orford, New Hampshire.

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