BREACH OF DUTY, THE ELEMENT OF A PERSONAL INJURY DEMONSTRATING THE RESPONSIBLE PARTY IS AT FAULT

Hi, I’m David Allen.

If you watched the induction video in this series of videos you possess some understanding as to standard of care and the breach of standard of care, or breach of duty..

STANDARD OF CARE FOR PERSONAL INJURY

We are all held to standards of care as we go about our of everyday life. When we walk down the street we need to look where we are going. If we fail to look where we’re going we may run into someone else and cause them injury. Likewise when you’re driving an automobile you need to adhere to the accepted standards for operation of the car so you don’t hurt somebody. I think we all understand this.

The law also understands this. The law also provides that if someone breaches the standard of care and causes personal injury, the person who breached the standard of care may be held responsible for the personal injuries inflicted on someone else due to the breach.

DEFINATION OF NEGLIGENCE IN PERSONAL INJURY

A lot of people will refer to a breach of standard of care as negligence. The law doesn’t do this. The law uses the word negligence to refer to the presence of all the elements necessary for a negligent action in a court of law. This includes personal injury, breach of standard of care, causation, and proof of personal injury. It is only when all these elements are present the law considers it as negligence.

So how do we know what the standard of care is when engaging in conduct. If the conduct is something that most people do there is a general understanding as to what that conduct should be. It is something we are taught as we grow up as kids. When driving an automobile we need to adhere to the rules of the road. In some instances we may need to use plain common sense. When driving a car on a gravel road it is simple common sense not to drive at a high rate of speed because there is not good traction between the tires and the gravel. If you need to stop quickly on a gravel road it may not be possible. It also possible to lose control on a gravel road more easily than when driving on a hard surface.

When driving an automobile we also are held accountable to obeying the laws for the state where we are driving. We need to stop to stop signs. We need the obey yield signs. When someone breaks a rule of the road is generally considered to be a breach of the standard of care. This may well raise a question for you as to whether someone who breaks the law is automatically considered to be liable for personal injuries.

In the law there exists a concept, or doctrine, referred to as negligence per say. It means that if a person broke a specific law, such as running a stop sign, there is a presumption they are responsible for any personal injuries they cause. It does not make the person automatically at fault because a person who suffered personal injury must show the other elements of the claim, personal injury causation.

CONDUCT PRODUCING AUTOMATIC FAULT IN PERSONAL INJURY

There are some forms of conduct, or lack of conduct, which can make a person automatically at fault. This concept, or doctrine of law, is referred to his ris ipsa locquiter. Roughly translated it means the act speaks for itself. An example would be a fluorescent light that falls out of a ceiling fixture and crashes on someone’s head in a supermarket. It is the kind of thing that happens only when someone fail to do what they were supposed to do. In this instance that might be a the custodian working for the supermarket who replaced the light fixture. The light bulb falling is kind of thing that only happens when there is a breach of duty. The duty was to make sure the light bulb was properly put into the fixture. The light bulb fell out. Nothing hit it or caused it to fall. The guy that got hit did nothing wrong. This is an example of the document of ris ipsa locquiter. It makes the supermarket at fault for the personal injuries caused by the bulb crashing into someone’s head.

It is very rare in everyday life light bulbs fall from ceilings and cause personal injury. In the majority of personal injury claims it necessary to demonstrate a standard of care and how it was breached. This is particularly true when dealing with professional conduct. When a claim is brought for medical malpractice it is necessary to show the doctor who allegedly did something wrong breached the standard of care. How is the standard of care established. ? By showing what other doctors in a similar situation should do. This requires expert testimony. Someone who is trained in the same way in which the doctor who erred needs to come forward and point out how the doctor who allegedly acting badly breached the standard of care. The same is true for accountants, architects engineers and other professionals, including lawyers.

COMPARATIVE FAULT IN PERSONAL INJURY

So what happens when multiple people are involved in causing a personal injury? Generally when a car crash happens there are two drivers involved. Unless one driver is clearly at fault in most states the fault is divided between the two drivers. This is commonly called comparative fault. The doctrine of comparative fault does not exist in all states. States where does exist deal with it differently. Every state does not deal with it the same way. Let’s take a simple example. Alex turns left in front of the Betty. In California the negligence of Alex and Betty will be compared. The jury may find Alex was that 70% fault and Betty was 30% of fault. Betty would only be able to recover 70% of her personal injuries since she was 30% of fault.

California is a state with pure comparative negligence state. If the car crash takes place and one driver is 90% of fault that driver can still collect 10% of the value of their personal injury from the other driver. This is not true in all states.

Nevada is a state that borders on California. Nevada does not use pure comparative negligence. Instead, Nevada uses threshold negligence. If two people are involved in the crash the person who wants to bring claim must show the other driver is over 50% at fault. If the other driver is less than 50% at fault the injured person collects nothing.

As can be seen the concept of fault is not always straightforward depending on the circumstances. As can be seen different states deal with the concept of fault differently. A good lawyer understands how to navigate through all of this. My name is David Allen, with David Allen & Associates.