Mitchell Brewer Richardson

Negligence is the failure to exercise the reasonable degree of care that an ordinary, reasonable and prudent person would have exercised under the same or similar conditions. In other words, a person who is injured because another fails to act in a reasonable and prudent way, may have a claim against the negligent person for his or her failure to exercise due care.

Common types of negligence cases include: (1) Automobile Collisions (2) Pedestrians Hit by Vehicles (3) Other Motor Vehicle Wrecks (4) Boating Injuries or Drowning (5) Wrongful Death Claims (6) Falling (7) Malpractice (8) Nursing Home Negligence (9) Defective Products (10) dram shop/illegal alcohol sales (11) Truck collisions

A civil suit for negligence involves the filing of a document called a complaint which is delivered to the negligent person or corporation, who must, then, answer in court for the alleged negligence. The person claiming negligence and filing the complaint (the plaintiff) may, then recover damages (a sum of money determined by a jury) if the plaintiff can establish the elements necessary to prove a negligence claim.

A Common Example and Illustration of Proving the Elements of a Negligence Claim -- a motor vehicle case

In a motor vehicle automobile collision case, for example. . .

First, before an injured person can recover damages, the injured person must first prove that the injury was caused by the negligence of the at fault driver. Typically, negligent driving is established by proving that (1) the defendant failed to use ordinary care by failing to keep a reasonable lookout; (2) the defendant failed to use ordinary care by failing to keep his/her vehicle under proper control; (3) the defendant violated a motor vehicle safety statute such as the law requiring that a driver stop at a traffic control; device emitting a steady red ( that is, the defendant ran a red light), or the defendant turned the vehicle a his direct line of travel into the plaintiff without first determining that such movement could be made in safety (that is, the defendant made an unsafe movement), or the defendant failed to stop at a duly erected stop sign, or the defendant failed to yield to the plaintiff's vehicle, or that the defendant violated the speed laws, or followed too closely, or drove carelessly and recklessly, or drove while impaired by alcohol, or violated any other statute which the law says constitutes negligence; or (4) the defendant failed otherwise to exercise due care in the maintenance or operation of the motor vehicle.

For more information on automobile collision cases click here.

If negligence is established, then, secondly, the plaintiff (that is, the injured claimant) must prove causation of the injury and is entitled to bring a claim against the at fault party for the damages caused by the negligence. Negligence refers to a person's failure to follow a duty of conduct imposed by law.

The law requires that in order to recover money damages, the plaintiff prove causation as well as negligence. This requirement means that the plaintiff must prove, not merely that the defendant was negligent, but also that such negligence was a proximate cause of the plaintiff's injury.

Proximate cause is a cause which in a natural and continuous sequence produces the plaintiff's injury. Generally, in a motor vehicle collision case, in order to prove proximate cause, the plaintiff's expert (usually a doctor) must give an opinion that the collision caused the injuries for which the plaintiff seeks to recover damages.

Other than denying that the defendant was negligent, the most common defense which defendants in negligence cases assert is that of contributory negligence. North Carolina is one of the few remaining states still recognizing and allowing the affirmative defense of contributory negligence.

Contributory negligence is an assertion by the defendant that the plaintiff failed to exercise due care for the plaintiff's own safety and, thus, contributed to the plaintiffs own injury. If this defense is raised, the defendant has the burden of proving that the plaintiff was also negligent in order to defeat the plaintiff's recovery of damages. In essence, though, it becomes important for the plaintiff to be able to prove that the plaintiff exercised due care, that is, that the plaintiff was not contributorially negligent in order to recover damages.

Damages in negligence actions may include the cost of medical care, lost profits, lost wages, diminished earning capacity, and pain and suffering, depending on the facts of the case and the nature of the claims asserted. Compensation for the loss in value of damaged property can be awarded, and, depending on the facts and circumstances, punitive damages may be awarded in a lawsuit in which there is proof of gross misconduct or wanton and willful disregard for safety.

Similarly damages may be collected for the "wrongful death" of a spouse or family member. In a wrongful death tort suit, the administrator or executor of an estate of a deceased person who was killed as a result of negligence or other wrongful acts of another, sues to get compensation for the loss of financial and other damages concerning the deceased person. Wrongful death cases may involve automobile collisions, medical malpractice, product liability and any number of other claims.

These principles of negligence apply in other civil cases seeking to recover damages for a violation of the plaintiffs right to be free from harm negligently (or even intentionally or recklessly caused by the defendant). Among some of these cases, called tort cases, about which we have provided additional details on this web site are: automobile collisions, medical malpractice, product liability and wrongful death. For information, about other tort actions, including civil rights violations, slander, libel or other matters, please contact us.

We can be reached by telephone at (910) 678-8900 between 8:30 a.m. and 5:00 p.m. Monday through Friday. After hours, you may leave a message for us by dialing the extension of the attorney or staff member you wish to reach.

For a list of attorneys and staff members and their extensions : click here.

The offices of Mitchell, Brewer, Richardson are located at 308pPerson Street in Fayetteville, North Carolina.