Louisiana Personal Injury Accident Basics: The Concept of Negligence

LOUISIANA PERSONAL

INJURY ACCIDENT BASICS The Concept of Negligence

“If you have been injured, only an experienced Louisiana personal injury accident attorney can evaluate the unique facts and circumstances of your “accident” and advise you regarding your legal options; however, it may also be helpful for you to have a basic understanding of the legal concept of negligence.”

Broussard & Hart, LLC

Personal Injury Accident Basics – The Concept of Negligence broussard-hart.com 2

When someone is injured as a result of a motor vehicle collision we typically say the

victim was injured in a car

“accident”. The same is true when

injuries are sustained in a slip and

fall “accident” or any other type of

personal injury “accident”. Though

some of these are truly the result of

an accident, more often than not

they are actually the result of the

intentional, wrongful, or negligent

conduct of another party. When that is the case, the victim may be entitled to

compensation from the at-fault party for the injuries suffered. If you have been injured,

only an experienced Louisiana personal injury accident attorney can evaluate the unique

facts and circumstances of your “accident” and advise you regarding your legal options;

however, it may also be helpful for you to have a basic understanding of the legal concept

of negligence.

THE LAW OF TORTS

When a victim suffers injuries to his person or property it is the law of “torts” that allows

the victim to pursue compensation from the at-fault party. The law of torts may hold the

defendant liable for those injuries using one of three standards, depending on the type of

tort involved. Those three include:

Intentional torts – an intentional tort is one in which the defendant intended to

cause harm to the victim. Battery, for example, is an intentional tort. In legal terms,


battery means an unwanted touching. When used as the basis of a civil lawsuit a

battery typically means that the defendant hit and injured the plaintiff (victim).

Even if the defendant was also charged with the criminal offense of battery a

victim may still choose to pursue a civil lawsuit for the same incident to recover

damages.

Strict liability torts – unlike intentional and negligent torts, in a strict liability tort

the law is not concerned with the defendant’s state of mind at the time of the

injury. All that matters is that the victim was injured and that the law holds the

defendant liable. Dog bite statutes are common examples of strict liability torts. In

many states, the owner of a dog is held liable for injuries to a victim without regard

to anything the owner did or didn’t do to try and prevent an attack.

Negligent torts –negligence is the standard used in most personal injury lawsuits.

Negligence essentially amounts to a “reasonableness” standard.

PROVING NEGLIGENCE – THE ELEMENTS

For the victim of a personal injury

accident to recover damages the victim

must prove that the defendant was

negligent in most cases. Negligence is a

concept that has been argued and

debated both in and out of courtrooms

for decades. A universally accepted


definition remains elusive; however, it is commonly accepted that to prove negligence

four elements are required:

Duty of care –the duty of care is a legal duty owed to the victim by the defendant.

In essence, it means that the defendant was required to do everything that a

reasonable person would do under the circumstances to prevent harm from

befalling the victim. In some cases the duty of care is already widely accepted

while in others the victim must prove that one existed. For example, courts have

long held that a motorist operating a vehicle on a public roadway owes a duty of

care to all others who share the roadway. Likewise, a shop owner owes a duty of

care to members of the public who enter the shop.

Breach of the duty of care –a victim must next prove that the defendant breached

the duty of care owed to the victim. Recall that the duty of care uses a

reasonableness standard, meaning that the defendant is not legally compelled to do

everything possible to prevent harm, only to take all reasonable steps to prevent

harm. Therefore, a victim must show that the defendant breached the duty of care

by not taking all reasonable steps to prevent harm. For instance, if a motorist is

texting while driving, that is likely a breach of the duty of care.

Causation – a victim must show that the breach of the duty of care was the cause,

or a cause, of the harm suffered by the victim.

Damages –finally, a victim must show that he or she suffered damages, or injuries,

as a result of the defendant’s conduct.


APPORTIONING FAULT – COMPARATIVE

NEGLIGENCE VS. CONTRIBUTORY NEGLIGENCE

In some cases a victim shares some of the blame, or fault, in a personal injury accident.

Motor vehicle accidents are a common example of situations wherein a victim may be

partially at fault. The law of negligence handles situations wherein the victim shares in

the fault in one of two ways, by using contributory or comparative negligence.

Fortunately, the State of Louisiana uses comparative negligence.

Contributory negligence bars a victim from recovering damages if the victim contributed

in any way to the accident. Under the doctrine of contributory negligence, therefore, if a

victim was one percent at fault the victim cannot recover anything from the defendant

despite the fact that the defendant was 99 percent at fault. Only four states and the

District of Columbia currently use contributory negligence.

Comparative negligence, which is used in its pure form in Louisiana, apportions the fault

when the victim is found to have contributed to the accident by diminishing the

compensation recoverable by the victim by the amount of fault the victim shares in the

accident. For example, if a victim has damages valued at $100,000 and is found to be 15

percent at fault in the accident the victim will only be entitled to recover $85,000 from

the defendant.


WHAT TYPE OF CASES USE A NEGLIGENCE

STANDARD?

The vast majority of personal injury “accident” cases require the victim to prove

negligence on the part of the defendant. Common examples include, but are not limited

to, the following:

Car accidents

Slip and fall accidents

Premises liability injuries

Motorcycle accidents

Product liability injuries

Medical malpractice injuries

Wrongful death


If you have suffered injuries in what you believe to be a personal injury accident, or you

lost a loved one to an unfortunate “accident”, you may be entitled to compensation for

your injuries or your loss if you are able to prove negligence on the part of the defendant.

While the law does allow victims to pursue compensation for their injuries, the law also

limits the time within which a victim must do so. For this reason alone it is in your best

interest to consult with an experienced Louisiana personal injury accident attorney as

soon as possible if you are the victim or survivor of a personal injury accident.

Findlaw, Elements of a Negligence Case

Justia, Louisiana Laws -- Civil Code 2323 Comparative Fault

Laws.com, Comparative Negligence

http://images.findlaw.com/optimost/accident-injury-law/elements-of-a-negligence-case-2.html

http://law.justia.com/codes/louisiana/2011/cc/cc2323


About Broussard & Hart, LLC

If you or a member of your family has been seriously

or fatally injured in an accident or as a result of

medical malpractice, you have experienced and

continue to experience trauma and grief. During this

difficult time, as you struggle with medical,

emotional, and financial issues, you will need to make

decisions that will permanently affect your ability to

take care of yourself and your family.

At Broussard & Hart, L.L.C., our Lake Charles law

firm staff and lawyers are focused on helping those

who, like yourself, have suffered losses to

catastrophic injuries or wrongful death, working to see

that they recover the compensation they need and

deserve. Our efforts stem from a genuine concern for

those we serve.

Our firm is prepared to handle a wide variety of

personal injury claims, including those involving medical malpractice, trucking accidents, 18-wheeler

accidents, and maritime law. After our Louisiana attorneys have reviewed your case they will give you

an honest assessment of your options. If you would like to schedule a free, confidential consultation with

our law firm in Lake Charles, please contact our office.

1301 Common Street

Lake Charles LA 70601

Phone: 337-564-3318

Website: http://broussard-hart.com

http://broussard-hart.com/