What is Negligence in Personal Injury Case?

Monday, December 27, 2021

What is Negligence in Personal Injury Case?

Written by Malman Law, reviewed by Steve J. Malman.

When someone is injured in an accident, the injuries could range anywhere from minor scrapes to more serious, catastrophic, or even deadly. All states have laws to hold those who cause accidents accountable for the injuries suffered by others due to negligence, and Illinois is no exception.

What Is Negligence?

Negligence is a failure to behave with the level of care that someone of ordinary prudence would have exercised under the exact same circumstances.  Although the behavior normally consists of actions, that need not be the case as the behavior can also consist of inaction or omissions when there is some duty to act. To prove negligence in a personal injury case, the person suing must satisfy certain elements required under the law.

Elements of A Negligence Claim

To prevail in a personal negligence case, the person suing must prove the existence of the following elements of negligence:

1. Duty. The person suing another person or entity for personal injury (plaintiff) must show that the person or entity being sued (defendant) owed a duty to the plaintiff. For example, in a medical malpractice lawsuit, the plaintiff will say that the physician who performed surgery owed a duty to the plaintiff to not leave a surgical tool inside the plaintiff that led to further injury and infection.
2. Breach of duty: The plaintiff must show that the defendant failed to keep this duty – meaning that the defendant failed to act with care as would have a person of prudence in the same circumstances. In the example above regarding medical malpractice claims, the physician leaving a surgical tool inside a patient following surgery is a breach of the duty the physician owed the patient when he or she performed the surgery.
3. Causation: The plaintiff must show that there is a direct correlation between the defendant’s action or inaction and the injury the plaintiff suffered. In other words, the plaintiff will be just fine, or their condition would not be worse if the defendant had not failed in their duty of care.
4. Damages: The plaintiff must show that they suffered actual damages because of the defendant’s action or omission in contravention of their duty of care. Damage is an all-encompassing legal term that includes things like physical damages, emotional damages, monetary damages, etc. If the plaintiff cannot prove that they have suffered any of these damages, then the defendant cannot be found to be liable for anything.

Comparative Fault in In Illinois

Illinois law requires fault to be established in all personal injury cases. Comparative fault is a comparison of the degrees or share of fault between the person suing and those they are suing. The share of fault assigned to each party will then determine how much the plaintiff will get as damages or how much the defendant will be held responsible for the injuries suffered by the plaintiff. The plaintiff will only recover partial compensation if they are found to have also been at fault in the accident.

Anyone injured in an accident in the Chicago area should contact the office of Malman and talk to one of the experienced Chicago personal injury lawyers at any time.