Most personal injury cases are based on the defendant’s negligence. The legal standard requires establishing that the defendant owed the plaintiff a duty of care which they breached. In cases relying on general negligence, the test is whether the defendant behaved like a reasonable person would in a similar situation. In contrast, negligence per se focuses on the violation of a statute or regulation.
The difference between negligence and negligence per se could have a significant impact on your personal injury claims. If you’ve been hurt in an accident, a Virginia personal injury lawyer from Marks & Harrison can help you find the best strategy to seek compensation for your injuries through a negligence claim.
Contact us now for a free claim review.
How Do You Prove Negligence?
Essentially, a person acts negligently when they fail to act with the care with which a hypothetical reasonable person would have in similar circumstances. Establishing that a person behaved negligently is usually critical to winning a personal injury case.
Proving a negligence claim involves establishing the following elements:
- The defendant owed the plaintiff (the person bringing the case) a legal duty of care. For example, the defendant was driving on the highway and was obligated to do so with care and attention.
- The defendant breached that duty. Let’s say they did not check their blind spot before merging lanes, causing a car accident.
- The plaintiff suffered harm. Continuing our example, the plaintiff suffered a back injury that necessitated surgery, left them unable to work while they healed, and caused them considerable pain.
- The defendant’s actions caused the harm. Finally, the plaintiff would not have suffered their back injury had the other driver checked their blind spot before merging into the plaintiff’s lane and hitting their car.
Establishing these four elements requires considerable evidence, such as:
- Photos and videos – These capture the scene where the accident occurred, showing conditions like lighting, weather, and potential hazards.
- Witness statements – People who saw the accident can provide firsthand accounts of what happened, which can help establish the sequence of events.
- Medical records – These document any injuries sustained, linking them directly to the accident and demonstrating their severity.
- Accident reports – Reports from the police or other authorities contain crucial details about the incident and often include an initial assessment of fault.
- Physical evidence – Items from the accident scene, such as damaged clothing or equipment, can show the impact and context of the event.
- Expert analysis – Professionals in fields like accident reconstruction can explain how the accident likely occurred. Contact our Richmond car accident attorney today.
How Do You Establish Negligence Per Se?
The term “per se” is Latin for “in itself.” In a personal injury lawsuit involving negligence per se, the plaintiff argues that the defendant is, by definition, negligent because they broke a safety law meant to protect people from injury. Therefore, the defendant is presumed to have owed a duty and breached it, and the plaintiff must only prove that they suffered harm as a result.
A typical example of negligence per se is a car accident involving a motorist’s violation of traffic laws. If the motorist was speeding in violation of Virginia law and caused a collision with another vehicle, the speeding motorist could be considered negligent per se for breaking the speed limit and causing a car accident.
Which Is More Difficult to Prove – Negligence Per Se or General Negligence?
Proving an ordinary case of negligence requires the plaintiff to establish that the defendant owed them a duty of care and then breached that duty. This involves a detailed analysis of what constitutes reasonable care in the given circumstances.
Proving negligence per se, on the other hand, is typically easier than proving ordinary negligence because it involves fewer elements. In cases of negligence per se, the focus is on whether the defendant broke a law intended to prevent the type of harm that occurred. If the plaintiff proves the defendant did indeed break the law, the court assumes that the duty of care existed and that the defendant breached it. The plaintiff does not have to establish these elements independently.
What Is the Burden of Proof?
In personal injury cases, the burden of proof rests on the plaintiff, meaning the plaintiff has to prove their case to the court, similar to how the prosecution has the burden of proof in criminal cases. It is up to the plaintiff to show that what they are alleging is true. The defendant must only refute those allegations.
However, there is a crucial difference between criminal and civil law when satisfying that burden of proof – what must be established for the court to treat an allegation as fact. In criminal cases, the burden of proof is that the defendant is guilty beyond a reasonable doubt. There must be no likelier explanation for the established facts of the case than the defendant’s guilt. In a civil case like a personal injury suit, the plaintiff must only show by a preponderance of the evidence that the defendant behaved negligently – that it is more likely than not that the defendant was negligent.
Are There Any Defenses in Negligence Per Se Cases?
There are some strategies defendants can use in negligence per se cases. One common defense is proving that the violation of the law was reasonable under the circumstances. For instance, if the defendant broke the law because of an emergency, they could show that the risk of harm in breaking the law was less than it would have been had they complied with the law.
Another defense could be showing that the violation did not cause the injury. This approach involves arguing that the injury would have happened regardless of the law being broken. These defenses require showing specific reasons why the usual conclusions of negligence per se should not apply.
Contact a Virginia Personal Injury Lawyer
Have you been injured in an accident due to someone else’s negligence? If so, you need help from our Virginia personal injury attorneys to prove your case. As a highly experienced and dedicated personal injury law firm, Marks & Harrison is fully prepared to find the best strategy to establish the other party’s negligence.
Call us today or complete our contact form for a free consultation.
