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Only an Experienced Personal Injury Attorney Can Tell You If You Have a Personal Injury Claim; However, a Basic Understanding of the Concept of Negligence May Be Beneficial

If you have been injured in an accident you could be entitled to compensation for the injuries you suffered. Although we commonly use the term “accident”, many “accidents” are actually the result of the intentional or negligent conduct of another party. When another party caused, or contributed to, the accident that caused your injuries you may have the basis for a personal injury lawsuit. To prevail in the lawsuit you must prove that the defendant’s conduct rises to a level that the law requires in order to hold the defendant financially responsible for your injuries. In most cases this requires you to prove that the defendant was negligent. Only an experienced California personal injury attorney can tell you if the specific facts and circumstances surrounding your accident form the basis of a viable personal injury lawsuit; however, a basic understanding of the concept of negligence may be beneficial in the meantime.

TORT LAW – INTENTIONAL, STRICT LIABILITY AND NEGLIGENT LIABILITY “Torts” is the area of the law that addresses injuries to your person or property. Personal injury accident lawsuits fall within the purview of tort law. For a defendant to be held liable for injuries to a victim the

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defendant’s conduct must fall into one of three categories – intentional, strict liability, or negligent. Intentional conduct, as the name implies, is conduct that was willful or purposeful. Often, intentional conduct also gives rise to criminal charges. Imagine, for example, that you are the victim of road rage wherein another motorist becomes so angry and aggressive that he actually physically assaults you. The motorist would likely face criminal charges for assault; however, you would also be entitled to file a civil lawsuit for damages based on injuries you suffered as a result of the defendant’s intentional conduct. Strict liability is rarely used because it makes a defendant liable regardless of the defendant’s mensrea, or state of mind, and regardless of whether the defendant did anything to try and prevent injury from occurring. Dog bite cases are based on strict liability in some states, including California. In essence, strict liability only requires an injury to a victim. In California, for example, “The owner of any dog is liable for the damages suffered by any person who is bitten by the dog while in a public place or lawfully in a private place,

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including the property of the owner of the dog, regardless of the former viciousness of the dog or the owner's knowledge of such viciousness.� California Civil Code section 3342. The vast majority of personal injury lawsuits are based on negligence. Negligence is the most difficult of the three to understand as well. The precise definition of negligence has been argued and debated by scholars, attorneys, and judges for decades. In its simplest terms, negligence requires four elements – duty of care, breach of duty, causation, and damages. All four elements must be proven to prevail in a personal injury lawsuit based on negligence.


The first, and most important, element in a negligence lawsuit is the duty of care. The defendant must have owed a duty of care to the victim. The duty of care means that the defendant was legally obligated to do everything reasonably possible to prevent harm to the victim. By way of illustration: A motorist operating a vehicle on a public roadway owes a duty of care to everyone else on the roadway. A business owner owes a duty of care to members of the public who enter the business

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A restaurant owner owes a duty of care to the customers who eat in the restaurant A vehicle manufacturer owes a duty of care to the customers who purchase the vehicles


Once you have established that the defendant owed a duty of care to the victim the next question is whether or not the defendant breached that duty of care. This is often where is gets tricky because the exactly what duty of care was owed to a potential victim often depends on the relationship between the defendant and the victim. A doctor, for instance, owes a higher duty to an injured patient than someone passing by on the street who sees an injured individual. Likewise, the law says that a store owner owes a higher duty of care to a customer than would be owed to a serviceman who is there to repair something. Furthermore, the test for breaching the duty of care can have both an objective and a subjective component. An objective analysis can be used if the defendant knowingly breached the duty of care. If the defendant did not knowingly breach the duty of care than a subjective analysis must decide if the defendant should have knownthat the defendant’s conduct placed the victim at risk of harm. The question is often “Would a

Winning Your Personal Injury Lawsuit


reasonable person have known that the defendant’s conduct would place the victim at risk of harm?” Whether or not a breach has occurred depends on the facts of the case. Some cases are easier to decide than others. A motorist who gets behind the wheel while intoxicated has clearly breached the duty of care. Likewise, a surgeon who operates while under the influence of drugs has also breached the duty of care. Other situations are more difficult to decide and, therefore, require a detailed review and analysis by an experienced California personal injury attorney.


Assuming that both of the first two elements have been established, causation must then be established. Often this is easy as causation flows naturally from the events that occurred; however, in some cases causation can be tricky. It must be proven that the defendant’s breach of duty caused the victim’s injuries. The question used to determine causation is often “But for the defendant’s action would the victim have been injured?” This test, however, does have a limit. If the injuries a victim suffered were so unlikely that they could not reasonably have been foreseen then the defendant may not be held liable even if the “But for” test is passed. This typically applies when the defendant’s conduct sets off a chain of events

Winning Your Personal Injury Lawsuit


that could never have been foreseen and that ultimately cause injury to the victim.


“Damages” refers to the harm done to the victim. In a personal injury lawsuit a victim usually claims both economic and non-economic damages. Both must be proven to be compensable. Economic damages include things such as medical bills, property damage, and lost wages. Non-economic damages are what people usually refer to as “pain and suffering”. To prevail in a California personal injury lawsuit based on negligence all four elements must be proven to the satisfaction of the judge or jury. In some cases negligence on the part of a defendant is clear; however, more often than not negligence is the first, and most important, hurdle in a personal injury lawsuit. If you believe that you have been injured as a result of the negligence of another party, contact an experienced California personal injury attorney right away to have your case evaluated as there are time limits within which a lawsuit must be filed to preserve your right to compensation. Justia, California Civil Jury Instructions -- Negligence Findlaw, Elements of a Negligence Case

Winning Your Personal Injury Lawsuit


About Martinez & Schill LLP Martinez & Schill LLP is a full service civil law firm located in San Diego and serving Southern California. Our accomplished team of lawyers includes founders Jennifer Martinez and Michelle Schill and Of Counsel attorney, Kent Thaeler. Together, we provide our clients with more than 35 years of legal experience. Through skillful negotiation, mediation, and tenacious litigation, we are committed to obtaining the best results for our clients. When you hire Martinez & Schill LLP you are hiring a team of lawyers assigned to your case that are always available to you. We believe it is important to build a personal relationship with our clients so we may act as a better advocate on behalf or you or your company. The results we have obtained for clients are the reason why clients have continually chosen our firm to represent them in various simple and complex legal matters and referred us to other friends, family and colleagues. Our firm has provided individuals, business owners and companies representation in matters involving: General Personal Injury Litigation Products Liability Industrial Accidents Severe Personal Injury Wrongful Death Liquor Licensing Conditional and Neighborhood Use Permits Business Formation Martinez & Schill LLP is conveniently located in downtown San Diego, California. Our San Diego office is centrally located in the Koll Center downtown at Broadway and Columbia, near both the San Diego Superior Court and Federal courthouses. Please contact our firm at 619-512-5995 for more detailed directions.

Winning Your Personal Injury Lawsuit


Winning Your California Personal Injury Lawsuit : Understanding Negligence  

Only an experienced personal injury attorney can tell if you have a personal injury claim; However, a basic understanding of the concept of...

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