Tort Components: Negligence

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Modified on 2009/10/14 21:43 by admin
An accident occurs when someone is injured because of someone elses negligence. While an intentional tort is a purposeful act meant to harm another, a negligent tort occurs when one simply fails to pay attention and therefore harms another person or thing. An intentional tort is inherently more evil, as it is done with the purpose of causing harm. The negligent tort is simply an accident. In order to win a lawsuit against another person or company for negligently causing you, your loved one, or your property harm, your attorney must be able to prove all of the following:

1. That the person you are suing, the Defendant, had a responsibility to act in a certain manner. Lawyers refer to this responsibility as a duty. Your attorney must show that it was the Defendant
s duty to act in a certain manner. For example, while driving a car, a defendant has a duty to pay attention to the road.

2. That the Defendant in fact failed to act in the manner required. That is, your attorney must prove that the person breached the duty that he owed you to act with a certain amount of responsibility and care. For example, a driver breaches his or her duty to pay attention to the road if he or she turns around and has a conversation with a passenger in the back seat! During the conversation the driver is breaching his duty to pay attention to the road.

3. That as a result of this failure by the Defendant to act responsibly (i.e., breaching his duty), you, a loved one, or your property was indeed injured or harmed in some way. That is, you must show that your injury was caused and occurred as a result of the Defendants breach of duty. For example, if while talking to the passenger in the backseat the driver rear ended your car, that drivers breach of his duty to pay attention caused the accident.

4. That you, a loved one or your property was actually hurt in some way. That is, your attorney must prove that you were actually damaged by the Defendants actions. For instance, if a body shop charges you $500 to fix the damage from the collision, or you have to pay hospital bills, then you and your property were indeed damaged by the Defendants actions.

If your lawyer can prove each of the above four elements, then you may win the lawsuit and the Defendant may be ordered to pay you money. However, even if your attorney can prove all four of the elements, the Defendant may have what attorneys call an affirmative defense.

The bottom line is that your attorney must prove all four elements and the Defendant must fail in his attempt to show that he has an affirmative defense. Should your attorney be successful, you will win the case, and your attorney''s next challenge will be to actually make the Defendant write you a check to compensate you for your damages. This final stage of the case is referred to as the Damages Phase.

See Also

  1. About Personal InjuryTorts
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