When you file a personal injury claim against someone, you need a recognized legal basis–negligence, intentional misconduct, strict liability, etc. Negligence is the most common basis for a personal injury claim. It is essentially a claim of carelessness—the defendant failed to exercise proper care to avoid injuring you.
Ordinary Negligence
An ordinary negligence claim includes the types of accidents that occur daily–slip and fall accidents, car accidents, dog bites, etc. To win a claim based on ordinary negligence, you must prove the following facts:
- Duty of care: The defendant owed you a duty of at least ordinary care. Every competent adult owes everyone else the duty to act as the hypothetical ‘reasonable person’ would to avoid injuring others. That might mean refraining from skateboarding with your eyes closed, for example.
- Breach of duty: They breached their duty of care–by doing something wrong or by not doing something they should have done. Breach of duty equals negligence.
- Damages: You suffered damages–some sort of loss that money can compensate you for. Most of the time you need a physical injury, but under certain circumstances even emotional distress will be enough. If you suffer physical injury, however, you can almost always tack on accompanying emotional distress.
- Actual cause: Except for the defendant’s negligence, you would not have suffered your damages (“actual cause”).
- Proximate cause: The connection between the defendant’s negligence and your damages was close enough to render it fair to assign liability to the defendant (‘proximate cause’).
To establish liability, you have to prove all five of these facts on a “more likely than not” basis.
Negligence Per Se
Negligence per se is a shortcut to proving negligence. Normally, you must use a “reasonable person” standard to determine whether the defendant was negligent. If you can prove that the defendant broke a safety law or regulation, you have automatically established negligence without having to concern yourself with the reasonable person standard.
Normally, you bear the burden of proving the defendant was negligent. Once you establish negligence per se, however, you shift the burden to the defendant to prove that they were not negligent. Proving negligence per se involves certain nuances that are beyond the scope of this article. Remember that even if you prove negligence per se, to establish liability, you must still prove damages, actual cause, and proximate cause.
Professional Negligence
The prime example of professional negligence in personal injury law is medical malpractice. Professional negligence is not limited to medical malpractice. Professionals must comply with higher demands than the general public while practicing their profession.
A doctor, for example, must observe a much higher standard of care than, say, Joe the plumber rendering roadside first aid to a car accident victim. Keep in mind, however, that you need to prove the existence of a doctor-patient relationship to win a medical malpractice claim.
Professional negligence also applies to wrongful death claims.
Gross Negligence
Gross negligence is an extreme form of negligence. There is no clear dividing line between ordinary negligence and gross negligence. Courts decide the issue on a case-by-case basis. It is legally significant because in Illinois, you can seek punitive damages if you can prove the defendant acted with gross negligence. Gross negligence is not the only basis for punitive damages, however–there are alternatives.
Criminal Negligence
The concept of criminal negligence is not used in personal injury law. It works something like gross negligence, except that it justifies criminal liability rather than punitive damages. You can establish gross negligence against a defendant even if a criminal court acquits them of criminal negligence. That is because criminal proceedings and civil lawsuits are separate proceedings.
Modified Comparative Negligence
You could lose some of all of your damages if you also committed negligence that contributed to your injuries. Suppose, for example, that you were 15% at fault. In that case, you will lose 15% of your damages. The same principle applies if you were 25% at fault–you would lose 25% of your damages. The same principle also applies if you were 49% at fault. Once you hit 51% fault, however, you fall off a cliff–with 51% or more fault, you qualify for zero compensation in Illinois.
The defendant cannot use comparative negligence against you if they committed intentional misconduct. It is also difficult for the defendant to use this defense if your claim is based on strict liability (liability without fault). The situation gets even more complex in cases of vicarious liability. If you are entitled to punitive damages, your own negligence will not reduce the amount of money that you can win from the defendant. In all of these cases, you’ll need a lawyer.
The Right Law Firm Can Make It Happen for You
You can probably handle a small insurance claim on your own. If your claim is substantial, however, you’re probably going to need professional legal assistance in the form of a reputable Chicago personal injury law firm. Contact our law firm at Powell and Pisman Injury Lawyers today to schedule a free consultation at (312) 635-5400.