Negligence is a word you may hear a lot in both criminal and personal injury cases. But, what exactly is negligence in legal terms? If you’ve been injured or incurred damages, it’s important to understand the different types of negligence and how responsibility may be assessed and determined.
Four Elements of Negligence
Negligence is a legal theory that’s implemented to judge liability in personal injury or criminal defense cases. A person, persons, or organizations could be found negligent if they fail to act or intentionally act in a way that causes injury, harm, or death.
When you file a personal injury lawsuit against a person or organization, you must prove that the defending party acted in negligence – whether passively or actively. Here are the four elements of negligence:
- Duty of Care: Duty of care is the responsibility a person has to someone else.
- Breach of Duty: Failing to uphold one’s duty of care, causing a negligent act.
- Direct Cause (or Causation): When a person’s actions directly lead to an accident or injury.
- Injuries or Damages: The accident must result in financial losses or injuries. It must be established that damages were suffered as a result of your injuries or accident. You might claim funds for medical expenses, lost wages, property damage, and/or emotional distress, among others.
Five Types of Negligence
There are four main types of negligence in Colorado:
The most common type of negligence. Ordinary negligence occurs when someone fails to act with a reasonable duty of care that would be expected in the situation. Another way to explain it is that if a person fails to take reasonable precautions and their actions or lack of action causes someone else harm, they could be found negligent.
In ordinary negligence, the at-fault party may not have meant for injuries or damages to occur, but because of carelessness – or lack of duty of care – they did cause harm and could be found legally responsible.
Here are a few examples of ordinary negligence:
- A driver fails to follow traffic laws and causes an accident.
- A store owner doesn’t set up a "Caution: Wet Floor" sign, and a customer slips and falls.
- A property owner doesn’t repair a faulty step, and a visitor or customer falls and is injured.
- A doctor fails to diagnose or misdiagnoses a patient's illness causing the patient to suffer further health issues.
- A construction manager fails to follow proper safety regulations, and a laborer is injured as a result.
Gross negligenceGross negligence is a more serious form of negligence because the party at fault has acted with reckless disregard or indifference for another person’s safety. Rather than careless negligence, gross negligence is considered willful behavior that dismisses the health and safety of others.
Here are a few examples of gross negligence:
- A person drives under the influence of alcohol or drugs and causes an accident.
- A doctor operates on the wrong patient or performs surgery incorrectly.
- A company fails to properly inspect its products, resulting in a defect that causes injury.
- A company fails to inspect and maintain its equipment, causing malfunction and injuries as a result.
- A landlord fails to repair a dangerous hazard like a faulty deck or staircase, causing injury to a tenant as a result.
Contributory (or Comparative) negligence
When the injured person's own negligence contributes to their injuries, the court may determine they are partially liable – that they contributed to the accident. You may still be awarded damages, but modified according to what the court determines is your percentage of liability compared to the defending party.
In Colorado, if you’re found to share 50% or more of the liability, you cannot claim any damages at all. So, if you are seeking $30,000 and share 25% of the fault, you will receive $22,500 (75% of the amount you were seeking). However, if you share 50% or more of the liability you will receive $0.
In cases where the defendant asserts comparative or contributory negligence, the burden of proof is on them to show that the plaintiff was responsible, in part, for their injuries.
Here are a few examples of contributory negligence:
- A pedestrian crosses the street without looking and gets hit by a car.
- A driver gets into an accident but was speeding at the time.
- A cyclist fails to stop at a stop sign and is injured in a car crash.
- A construction worker does not use the required safety equipment and gets injured on the job.
- A skier diverts from prepared ski runs and is injured in a fall or crash.
This occurs when one person is held responsible for another person’s negligence. For example, an employer may be held liable for the negligence of their employee if the employee was acting within the scope of their employment.
Here are a few examples of vicarious negligence:
- Parental liability: A parent can be found liable for the negligence of their minor children. For example, if a child runs into the street and is hit by a car, the parents may be liable for damages.
- A partnership is liable for the negligence of its partners. This is because each partner is considered an agent of the partnership. So, if a partner of a physician group commits malpractice, the entire firm could be held liable for damages.
- A corporation is also liable for the negligence of its employees, agents, and directors. This is because a corporation is considered to be a legal person. So, if a store clerk for a big box store is stocking items and negligently drops a heavy object on a customer, the corporation that owns the store may be liable for damages.
- Similarly, if a delivery driver causes an accident while delivering a package, the delivery company that employs the driver may be held liable for damages.
There can be some exceptions to this legal doctrine, such as when the employee is acting outside of the scope of their employment.
Negligence per se
This type of negligence occurs when the at-fault party violates a law or statute during your accident. In other words, if a person violates a law that’s designed to protect others from harm, they are considered ‘negligent per se’.
Some examples of negligence per se include:
- Driving under the influence of alcohol or drugs
- Failing to yield
- Failing to wear a seatbelt
- Operating a motor vehicle without a license
- Leaving a child unattended in a motor vehicle
- Selling alcohol to a minor
- Failing to maintain safe premises
- Failing to provide adequate training for employees
To show that negligence per se played a role in your case, you must prove that the at-fault party violated the law or statute, that the law or statute was intended to protect you from harm, and that the violation caused your specific injury.
If all of these requirements are met, then the plaintiff can establish negligence per se without having to prove that the defendant acted with a lack of reasonable care.
Note that in some cases, the defendant may be able to argue that they had a justifiable excuse for violating the statute. For example, a driver may prove that they were speeding because they were trying to get to the hospital to save a life.
In most cases, however, in order to prove negligence, the injured person must show that the defendant owed them a duty of care, that the defendant breached that duty, that the breach of duty caused the injury, and that the injury was foreseeable. The amount of damages that an injured person can recover will depend on the severity of their injuries, the cost of their medical expenses, and the lost wages they have incurred.
If you have been injured or incurred damages as a result of a person or corporation’s carelessness – whether intentional or not – it’s best to speak with a personal injury lawyer who can advise you on your rights and a prudent course of action.
Doehling Law offers free consultations and has over six decades of experience prosecuting all types of personal injury cases. We work relentlessly to help our clients recover physically, emotionally, and financially from accidents and injuries and hold the liable parties accountable.
With Doehling Law, you will receive compassionate, responsive support and service, you will receive direct access to an attorney, and we provide flexible appointments that are convenient for you.
With five offices in Western Colorado, we serve communities throughout the state as well as Eastern Utah.