Unfortunately, accidents can happen at any time and to anyone. They can happen on the road, at the store, or even at work. Sadly, in many cases, these accidents could have been avoided if people had taken the proper precautions. By neglecting to address dangerous conditions or drive responsibly, people can often cause others to get seriously injured or even killed.
If you or a loved one was injured due to another person’s negligence, contact the experienced personal injury attorneys at Chandler | Ross, PLLC. We can help prove that the negligence of a driver, property owner, employer, or other person who caused your injuries. We will make sure that the proper responsible party is held liable for their negligent actions.
Negligence is often cited as the cause of personal injuries. To win a negligence claim, the plaintiff must prove the following:
To prove an action for negligence, the plaintiff must establish the defendant had a legal duty. Without a legal duty, a defendant cannot be held liable in a negligence lawsuit. A duty is a legal obligation that requires the defendant to conform to a certain standard of conduct to protect others against unreasonable risks. Duties arise either by statue or by common law. The existence of a duty is a question of law.
Common duties include:
To prove an action for negligence, the plaintiff must next establish that the defendant breached its legal duty. A legal duty is breached when a defendant does meet the required standard of care. The difference standards of care a defendant may be required to exercise are (1) ordinary care, (2) highest degree of care, (3) a child’s degree of care, and (4) any degree of care established by law.
In most circumstances, a defendant will be held to the standard of “ordinary care”. Courts have held that the concept of “ordinary care” is so elastic that it can meet all emergencies, and the amount of care to be applied will depend on the circumstances. When the duty requires the general public to exercise “ordinary care”, the defendant’s standard of care is defined as what a person of ordinary prudence would or would not have done under the same or similar circumstances.
When a professional breaches a duty, the standard of care is slightly different form tan ordinary peso’s standard of care. A professional’s standard of care is defined as what a professional of ordinary prudence in that particular field would or would have done under the same or similar circumstances.
The third element is known as “causation.” The plaintiff must establish the defendant’s breach of duty proximately caused the plaintiff’s injuries. The components of proximate cause are (1) cause-in-fact and (2) foreseeability.
The test for cause-in-fact, or “but-for” causation, is whether the negligent act or omission was a substantial factor in bringing about injury and whether the injury would have occurred without the at or omission. Cause-in-fact must be proven by either direct or circumstantial evidence and must be sufficient for the jury to determine within a reasonable probability that the plaintiff’s injury would not have occurred but for the defendant’s negligence. When the plaintiff’s injuries involve medical conditions outside the common knowledge and experience of jurors, the plaintiff must provide expert testimony, i.e. from a medical doctor and/or treating physician, that his or her injuries were caused by the defendant’s conduct.
To prove foreseeability, the plaintiff must establish that a person of ordinary intelligence should have anticipated the danger created by the negligence act or omission. Foreseeability does not require a person or company to foresee the particular accident or injury that occurs. Foreseeability requires only that (1) the injury be a general character that might reasonably have been anticipated and (2) the injury party be situated in relation to the wrongful act so that the injury to him or her, or someone similarly situated might reasonably have been foreseen.
If all of the above elements can be proved, the plaintiff must then also prove what damages he/she is owed. These damages may include:
Proving all four of the elements of a negligence case can be difficult without the right legal representation. At Chandler | Ross, PLLC, our attorneys have extensive experience proving negligence in a wide variety of personal injury cases. We will fight for you to obtain the full compensation you deserve for your and/or your loved one’s injuries and damages that resulted from the negligence of someone else.
Texas is not a no-fault state, and it is a modified comparative fault state. Modified comparative negligence doctrine is a legal principle whereby the negligence is apportioned in accordance with the percentage of fault that the fact-finder (judge or jury) assigns to each party. According to this doctrine the plaintiff’s recovery will be reduced by the percentage of negligence assigned to the plaintiff.
Comparative negligence essentially assigns a percentage of fault to the drivers involved in a car accident. If someone decides to sue for car accident damages, the plaintiff must be found less than 50% at fault for the wreck in order to receive compensation. Texas follows the 51% Bar Rule, under which a damaged party cannot recover if it is 51% or more at fault. However, the damaged party can recover if it is 50% or less at fault, but that recovery would be reduced by its degree of fault.
For example, if a person is injured in a car accident in Texas, he or she cannot recover damages from the other party if he is 51% or more at fault for the accident. By definition, comparative fault (which Texas officially calls “proportionate responsibility”) is just that: The defendant argues that he was not the only one who was careless and that the plaintiff shares some of the blame for his own injuries. In cases involving comparative fault, the jury will be asked to determine the percentage of responsibility of each plaintiff, each defendant, and any other responsible parties. After hearing the evidence, the judge will instruct the jury to assign a percentage of responsibility to everyone. If the plaintiff is found to be less than 50% at fault for causing the accident, his or her recovery will be reduced by whatever percentage of fault he is found responsible for. For example, if plaintiff is awarded $100,000 in damages and was found to be 10% at fault, while two other defendants (Defendant A = 70%, Defendant B = 20%) are found to be 90% at fault in total, the plaintiff would be entitled to recover $90,000. However, if the plaintiff is found to be 51% or more at fault, then he or she will be barred from any recovery.
In some egregious cases, injuries can be attributed to gross negligence, which is not the same thing as ordinary negligence. Ordinary negligence is the failure to use ordinary care to take actions that may have prevented a person from getting injured. For example, a person may be guilty of ordinary negligence if followed too closely in traffic and failed to timely apply their brakes to avoid a collision.
However, gross negligence is defined in the Texas Civil Practice and Remedies Code, Chapter 41 as an act or omission that “involves an extreme degree of risk,” which the actor is aware of, but the actor “nevertheless proceeds with conscious indifference to the rights, safety, or welfare of others.” As opposed to ordinary negligence, gross negligence involves an intentional action or an extreme degree of disregard for the safety and welfare of others. Gross negligence is a higher degree of negligence, often equated with recklessness.
To prove gross negligence, the plaintiff must satisfy (1) the objective test and (2) the subjective test.
The act or omission, when viewed objectively from the defendant’s standpoint at the time it occurred, involved an extreme degree of risk, considering the probability and magnitude of the potential harm to others. An act or omission involves an extreme degree of risk when is a likelihood of serious injury to the plaintiff.
The defendant had actual, subjective awareness of the risk but proceeded with conscious indifference to the rights, safety, or welfare of others. To prove the defendant had actual subjective awareness of the risk but proceeded with conscious indifference, the plaintiff must show the defendant knew about the risk but proceeded anyway.
If a plaintiff is able to prove each of the required elements of gross negligence, he or she may be entitled to substantial exemplary or punitive damages, which are damages designed to punish a defendant and prevent the defendant and other form engaging in similar conduct.
Negligence, negligence per se and gross negligence are the causes of action of the majority of personal injuries. Negligence, negligence per se and gross negligence are often cited as the causes of:
Negligence, negligence per se and gross negligence claims can be complex and require the skill of an experienced attorney. If you or a family member has been injured as a result of someone’s negligence, negligence per se and/or gross negligence, please contact Chandler | Ross, PLLC immediately for your free consultation. We welcome clients from the Denton, Dallas and Fort Worth, Texas, areas and we are here to help you and your family. Our initial consultation is free.
With offices in Denton, Dallas, and Fort Worth, Texas, Chandler | Ross, PLLC is well positioned to provide the most effective and highly-skilled Negligence Attorneys possible. Don’t wait, and don’t compromise – contact us today for a Free Case Evaluation and see how we can help you. In most cases, you pay nothing unless we settle your case or win a verdict. Contact us now at (940)-800-2500 or email@example.com to schedule your free personal injury case evaluation and consultation.