Determining Negligence

By: Mesriani Law Group | Posted: 04th June 2009

Negligence is commonly defined as the failure to exercise due prudence and care that a reasonable person would exercise, under circumstances, to prevent injury to another and/or cause damage to another's property.



Los Angeles is a smorgasbord of general negligence claims, most of them come from injuries acquired while at work or inside a public building like restaurants and shopping establishments while some serious negligence cases involve wrongful death as a result of driving under the influence, medical malpractice and exposure to hazardous materials.



What are the types of negligence according to the law?



• Contributory Negligence - this applies to a case when the plaintiff is, in a way, also responsible to the harm that he had suffered through his own negligence. If a judge or the jury finds the complainant to be at least one percent responsible, the complainant would not receive any remuneration for their expenses.



• Pure Comparative Negligence - this means that a judge or a jury will calculate what percentage of fault the plaintiff is liable for and this will be the basis in determining how much the defendant will have to pay the complainant in damages. Several states, including California, use this kind of negligence ruling system.



• Modified Comparative Fault - this has almost the same definition as with Pure Comparative Negligence except that the modified comparative fault sets two limits on how much a plaintiff is liable for. The two limits are:



• 50 Percent Fault Rule - if the complainant is found to have more than 50 percent fault; he cannot recover any damages, whereas if he is less than 49 percent at fault, he can recover the total cost of damages minus the degree of his fault.

• 51 Percent Fault Rule - this rule follows the principle that the complainant who has more fault that the defendant would not be able to claim anything; given this fault, a person who is found to be 50 percent at fault may still recover 50 percent of his damages while a person with more than 51 percent fault would not recover anything.



Typically, attorneys handling general negligence cases have four elements that they would need to established in order for their cases to be successful. These are:

• Duty of care - this is the legal obligation that an individual is imposed with regarding the exercise of due and prudent care while performing any act that may be foreseen to cause harm to others.



• Breach - this is when a defendant is found to have sufficient reason to cause intentional damage to the complainant



• Causation - this is the direct link between the complainant's loss and damages and the defendant's negligence.



• Damages - this is the compensation of the complainant's economic loss. Damages may be classified as:



• Special Damages - expenses incurred between the incident date and the date of the trial.



• General Damages - losses that cannot be translated into monetary terms (pain, suffering, etc). Courts usually would award nominal damages to the complainant to help them recover with their loss.



• Punitive Damages - these are monetary awards given to the complainant which exceeds the actual value of the total loss.



California's law on Premises Liability Claims, Civil Code article 1714 and the Tort Law are some statutes that attorneys use in any general negligence lawsuit.



To help you with personal injury cases such as general negligence and other related concerns, consult with our skilled Los Angeles general negligence attorneys. Visit our website and avail of our free case analysis.
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Tags: circumstances, failure, principle, damages, defendant, plaintiff, medical malpractice, driving under the influence, establishments, prudence, hazardous materials, smorgasbord, remuneration, reasonable person, wrongful death, complainant