Negligence exists in many forms. Understanding the different forms of negligence and how they pertain to accident and injury cases can make a huge difference in the outcome of your case and even whether or not you pursue a claim.
As an accident victim, it is worth your while to gain a full understanding of negligence and how it pertains to accident cases. Information on this page provides a good starting point. After you have reviewed the information on this site, we encourage you to contact us directly to discuss your accident case with a legal professional.
Have you ever decided not to file a personal injury claim because you thought you were partially to blame for your accident? Under California’s (and many other states) comparative negligence law, you may be able to collect damages for your injury even if you were partially at fault.
Negligence Per Se
Negligence per se is defined as a violation of a code, statute, law, ordinance, or regulation, and that the violation results in an injury in which it was created to prevent. The individual injured must be one that the statute or law was designed to protect.
California Evidence Code section 669(a) states: “The failure of a person to exercise due care is presumed if: (1) He violated a statute, ordinance, or regulation of a public entity; (2) The violation proximately caused death or injury to person or property; (3) The death or injury resulted from an occurrence of the nature which the statute, ordinance, or regulation was designed to prevent; and (4) The person suffering the death or the injury to his person or property was one of the classes of persons for whose protection the statute, ordinance, or regulation was adopted.”
Examples of negligence per se:
- Building Code Violations by Building Owners/Tenants
- Speeding and other Motor Vehicle Violations
In many jurisdictions, states use the doctrine of comparative negligence to determine whether the plaintiff can recover for damages even though the plaintiff themselves were partially negligent.
By using a comparative negligence standard, the statutes may provide for the apportionment of damages between the two parties at fault. For example, if the total damage is $100.00 and Plaintiff is 40% at fault and Defendant is 60% at fault then the plaintiff is entitled to $60.00.
There are generally two forms of comparative negligence: Partial and pure comparative negligence. In a partial comparative negligence jurisdiction, most states will bar recovery for the plaintiff if the plaintiff’s negligence was more than (51%) of the negligence of the defendant.
In California, the comparative negligence standard was not adopted by statute but rather by a judicial decision. Under the judicial decision, California applies pure comparative negligence, which states that even if the plaintiff’s negligence exceeds the negligence of the defendant, the plaintiff may still recover the apportionment of damages. For example, if the total damage is $100.00 and the plaintiff is 70% at fault and the defendant 30% at fault, then the plaintiff is entitled to $30.00.
Example of Comparative Negligence
The stiletto slip and fall
Imagine you are a young woman attending a wedding anniversary party in a hotel banquet room. You arrive at the hotel wearing high heels and carrying a wrapped gift of crystal stemware for the guests of honor.
As you walk toward the table where you’ll be seated, your heel catches on a loose seam in the worn carpet in the hotel lobby. You lose your balance. Because you’re carrying a gift, you can’t block your fall. As you land, you injure your back and your leg, and your anniversary gift shatters into shards.
You spend the evening of the party in the emergency room and end up needing to have back surgery. You wish you could hold the hotel responsible for your injury, but you’re second guessing whether you were at fault. If you’d worn low-heeled shoes, you might not have tripped. If you hadn’t been carrying a gift, you might have caught yourself, and your injuries may not have been as severe.
Under California law, the hotel can still be held at least partially responsible for your damages. Even if you were partially at fault – and no one is saying that you were – a jury can adjust the amount of damages it awards by attributing, say 5 percent responsibility to you and 95 percent to the hotel.
Negligent entrustment is defined as when a person is liable for injuries proximately caused by entrusting one’s property in the hands of someone he knows or should have known will use it in a manner that is unreasonable and will pose a serious risk of harm to others.
When doing an analysis using negligent entrustment, the focus is generally on the foreseeability of the harm. Was the harm a foreseeable risk? This does not focus on the particular injury but rather on the defendant’s conduct and whether it was likely to result.
Examples of Negligent Entrustment
Negligent entrustment of automobiles happens to be one of the most common forms of negligent entrustment. Some examples would be an owner who allows an intoxicated driver use the car; a father who allows his son to borrow his car, and is aware that his son has been in several recent car accidents.
Negligent entrustment can apply in any instance where an owner of a potentially dangerous product allows another to borrow it. This includes firearms. However, a stolen gun from a gun cabinet cannot meet the elements for negligent entrustment.