Negligence

As indicated above, negligence is a legal term in personal injury law where a person or organization (plaintiff) can file a claim or lawsuit for property damage and/or bodily injuries against an at-fault party or parties (defendant). When a person is negligent, it means he or she failed to act with the level of care that someone of ordinary prudence would have acted under the same circumstances. The negligent act is typically an act (e.g., a driver runs a red light and hits your car), but negligence can also be an omission to act (e.g., an employer failed to check an employee’s criminal background and that employee had a history of assault and assaulted a customer).

There are different levels or types of care recognized by the State of California. These include:

• Ordinary standard of care
• Medical standard of care
• Professional standard of care
• Standard of care owed to children
• Standard of care for minors
• Standard of care for physically disabled persons.

Ordinary standard of care

Under ordinary circumstances and according to California Civil Code § 1714,

Everyone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself or herself.

Basically, this means we all owe each other a duty of care not to harm each other and will be held responsible for our conduct. In a personal injury case, you can demand a jury trial. This typically happens if a just and fair settlement has not been offered. At trial, a successful lawsuit will be determined by how well the plaintiff’s attorney proves three basic factual elements:

1. The defendant was negligent.

2. The plaintiff was harmed.

3. The defendant’s negligence was a substantial factor in causing the plaintiff’s harm.

The trial will determine if the facts prove the above three points. The plaintiff’s attorney proves its case when it satisfies the four elements of a personal injury case, which are:

1. The defendant(s) owed duty of care to the plaintiff (at a minimum – the standard of care is an ordinary duty of care – as referenced in § 1714 of the California Civil Code).

2. The duty of care was breached, which is typically the defendant’s negligence.

3. The breach was the direct and proximate cause of the plaintiff’s injury.

4. The injury resulted in monetary damages (e.g., medical expenses, lost earnings, pain and suffering).

Medical standard of care

Medical professionals have a higher standard of care based on their medical knowledge and position in society. Patients rely on medical professionals to do their jobs, but that doesn’t always happen. Mistakes are made. Negligent acts happen or omissions to act occur. When they do and you are injured or suffer because of it, you may have a medical malpractice claim.

The standard of care for medical professionals is different based on what capacity or position the professionals possess. Generally, health care professionals are negligent if they fail to use the level of knowledge, skill, and care in diagnosis and treatment that the same medical professionals in the same position would reasonably use under similar circumstances. The jury will determine the necessary standard of care based on expert testimony and evidence.

Professional standard of care

Professional standard of care is also higher than ordinary standard of care based on the profession. A professional is negligent if he or she failed to use the skill, knowledge, and care that another professional in the same position would have reasonably used under similar circumstances. Again, a jury will decide the level of skill based on expert testimony and other evidence.

Standard of care owed to children

Adults owe a certain and different standard of care to children. This standard of care must take into consideration the ordinary behavior of a child, which is different than that of other adults.

Standard of care for minors

When a child is a defendant, the standard of care must reflect the child’s age at the time of the incident. So, if the personal injury case does not go to trial until two or three years after the injury occurred, it’s not the child’s current age that matters but his or her age at the time of the incident. The standard of care must reflect the amount of care children of the same age, intelligence, knowledge, and experience would use under the same circumstances.

Standard of care for physically disabled persons.

A person with a disability must only use a standard of care that another reasonably prudent person with the same disability would use under similar circumstances. The disability does not have to be exact, but the disability of the plaintiff and the disability of the reasonably prudent person with whom the plaintiff is compared must produce the same effect.