LOUISIANA PERSONAL INJURY ACCIDENT BASICS

Transcription

1 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

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

3 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 Personal Injury Accident Basics The Concept of Negligence broussard-hart.com 3

4 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. Personal Injury Accident Basics The Concept of Negligence broussard-hart.com 4

5 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. Personal Injury Accident Basics The Concept of Negligence broussard-hart.com 5

6 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 Personal Injury Accident Basics The Concept of Negligence broussard-hart.com 6

7 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 Personal Injury Accident Basics The Concept of Negligence broussard-hart.com 7

8 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 Common Street Lake Charles LA Phone: Website: Personal Injury Accident Basics The Concept of Negligence broussard-hart.com 8