In Personal Injury

Negligence is an important concept that you’ll see mentioned everywhere on legal websites and blogs. We often talk about proving negligence and determining negligence through investigation, but we rarely go into detail about what negligence is — beyond being synonymous with fault. Negligence is a factor in every personal injury case — including motor vehicle accidents, product liability, medical malpractice, and premise liability.

In this article, we’ll provide detailed definitions and discuss the importance of understanding negligence when filing a personal injury claim.

The Basic Components of Negligence

Proving negligence is an extremely complicated and involved procedure that include three basic components.

  1. Duty of Care: The accused party had a legal responsibility to avoid causing the victim harm.
  2. Breach of Duty: They failed to act with reasonable care and did not uphold their duty of care.
  3. Injuries Sustained: The breach of duty resulted in the victim sustaining real injuries and damages.

Successful personal injury claims depend on establishing that the defendant failed to meet their duty of care — and that this breach directly resulted in real injury to the plaintiff.

For instance, let’s take a standard car crash scenario. While stopped at a light, another vehicle rear-ends you. The driver of the vehicle was not paying attention and did not realize the cars ahead were stopped. The driver had a responsibility to drive with reasonable care; their negligence lies in the fact that they weren’t paying attention. Their actions caused you significant back and neck injuries, and their negligence is clear.

CLIENT STORY: Passenger Vehicle Rear-Ended by 18-Wheeler — Joel’s Story

Specific Types of Negligence Claims

Negligence Per Se

The concept of negligence per se is a bit of an exception to the three basic components mentioned above. Rather than focusing on proving carelessness, a negligence per se claim involves actions that violated a law.

In our car crash example, if, rather than simply failing to pay adequate attention, you can prove that the driver behind you was texting or speeding, you may have a negligence per se claim.

Another common situation that involves negligence per se is when a truck driver violates the hours-of-service regulations. Not only do truck drivers have a duty to avoid driving long hours, it’s the law.

Gross Negligence

Gross negligence goes one step further than carelessness and crosses into willful, malicious, and reckless disregard for the health and safety of others. Often this type of negligence involves the intent to harm or actions that anyone could see would result in harm.

In our car crash example, you’d have to be rear-ended in a fit of road rage for the driver’s actions to qualify as willful gross negligence. Alternatively, if the reason the other driver didn’t realize you had stopped was because they were highly intoxicated, you may be able to claim both negligence per se and gross negligence.

Gross negligence is also often used in cases in which the victim signed a waiver. Unless the waiver specifically included that you were waiving your rights to claim gross negligence, you may be able to use gross negligence to get around an injury waiver. Of course, your situation must still meet the above conditions regulating gross negligence.


“Punitive damages are not technically compensation for your injuries, but more along the lines of a fine for the negligent party.”


How Negligence Affects Your Personal Injury Claim

Besides regulating whether you have a claim, negligence also plays a large role in determining how much compensation you are eligible to receive.

Negligence and the Calculation of Damages

“Damages” is the legal term for the compensation you are entitled to receive in a personal injury case. This compensation typically falls into two categories, economic and non-economic damages, and negligence does not play a substantial role in determining these original amounts. However, there is also a third category, punitive damages, which is directly dependent on negligence.

Punitive damages are not technically compensation for your injuries, but more along the lines of a fine for the negligent party. If their negligence is grievous enough, a judge may decide to further punish them by granting you punitive damages. These damages are most often awarded in cases involving gross negligence or large corporations that need to be further discouraged from future negligent behavior.

Texas’ Modified Comparative Negligence Law May Affect Your Settlement

Now, we said in the previous section that negligence does not affect the calculation of your compensatory damages. However, it does determine how much of your total damages you receive.

Texas follows a modified comparative negligence law, which states that victims may receive compensation from a personal injury lawsuit as long as they are less than 51% responsible for causing the incident. However, your compensation will be decreased according to your share of the blame.

RELATED ARTICLE: Can I Recover Damages If I Contributed To A Car Accident?

As an example, let’s revisit our car crash scenario. You’re approaching a light and it turns yellow, you hesitate, and then slam on your brakes. The driver behind you had every intention of following you through that light even if it was cherry red, and because they were driving way too close to your bumper, can’t react in time when you stop suddenly. The crash results in $100,000 in medical expenses and other damages.

The police cite the other driver for speeding and following too closely, but his lawyers make the case that you were also driving recklessly by stopping so suddenly. Your case goes to court, and the judge agrees that you are 20% responsible for the crash. Instead of getting your full compensation, you only get $80,000 because 20% was deducted.

Working with an experienced accident attorney is essential to getting the full compensation you deserve in a car crash.

Call Crosley Law Firm’s Personal Injury Attorneys Today

At Crosley Law Firm, our team of expert personal injury attorneys have years of experience working with and around negligence laws to get our clients the compensation they deserve. If you have any questions about whether you have a claim or who is negligent, please reach out today to schedule your free consultation.

Fill out our online contact form or call us at 210-LAW-3000 | 210-529-3000 today.

The content provided here is for informational purposes only and should not be construed as legal advice on any subject.

Recommended Posts
personal injury evidenceWhat Is the ELD Mandate?