The Importance of Establishing Negligence in Personal Injury Cases

If someone’s irresponsible actions caused you harm, it’s only natural to demand justice. After all, why should you have to pay just because another person acted negligently?

Here, you’ll learn about establishing negligence in personal injury cases and why it’s smart to enlist the help of an experienced personal injury lawyer.

What Is Negligence?

Negligence refers to a failure to use reasonable care to prevent injuries to someone. A court may find someone negligent if they:

  • Failed to do something that a reasonable person would do in a certain situation
  • Did something that a reasonable person would not do in a certain situation

If the court finds either of these to be true, it may award you compensation for your injuries.

What Is Negligence Per Se?

Negligence per se presumes negligence if a person’s violation of the law caused your injuries. It’s a bit easier to prove negligence with this method because violating the law is fairly clear-cut. For example, if a driver crashed into you because they were speeding or they ran a red light, you can prove damages through negligence per se.

The Elements of Negligence

To prove negligence, you can’t simply say that the at-fault person’s actions led to your injuries. This may be true, but the court will consider a few other elements when establishing negligence in personal injury cases.

Duty of Care

“Duty of care” means that a person has a responsibility to protect others from harm. Some examples include:

  • Drivers have a duty to obey traffic laws
  • Employers have a duty to maintain a safe working environment
  • Schools have a duty to look after children in their care
  • Homeowners have a duty to keep their property free of hazards
  • Store owners have a duty to remove slipping and tripping hazards from the store

Breach of Duty

The next step in establishing negligence is to prove that the defendant breached their duty of care. Using the prior examples, a person may have breached their duty of care if:

  • They were speeding, intoxicated, distracted by their phone, or driving while fatigued
  • They failed to maintain work equipment and that equipment injured someone
  • They failed to properly watch children in their care and a child was injured
  • A homeowner’s dog attacked a visitor
  • They failed to clean up a spill and someone slipped and fell


Causation proves the relationship between someone’s breach of care and the damages that this breach caused. Your lawyer must be able to prove that a breach of care directly led to your injuries.


Finally, a personal injury lawyer must establish the damages resulting from the defendant’s breach of care. Damages can include economic losses, such as medical bills, property damage, lost wages, diminished earning capacity, and others.

Damages may include non-economic losses too. For instance, if you feel depressed or anxious after your accident, you may want to sue for pain and suffering. You can also recover compensation for loss of companionship or a lowered quality of life.

The Elements of Negligence Per Se

Negligence per se involves establishing that the defendant broke the law. If they did not break any laws, a lawyer cannot establish negligence with this method.

If the defendant did break the law, the next step is to establish that the violation caused your injuries. Your lawyer must also prove that the harm you suffered was harm that the law intended to prevent.

Lastly, your lawyer must establish that you’re a member of the class that the law was designed to protect.

When proving causation under negligence per se, your lawyer must consider both the actual cause and the proximate cause. The actual cause identifies the action that directly led to your injuries. The proximate cause includes significant factors that contributed to your harm.

When proving that someone’s violation of the law caused your injuries, the court may ask:

  • Did the defendant know that their behavior might cause an accident?
  • Was the defendant’s violation of the law a significant factor in the accident?
  • Would the accident have happened if the defendant did not break the law?

Common Defenses Against Negligence

In court, defendants will sometimes try to argue that they bear no responsibility for your injuries. Here are a few common defenses against negligence that may affect the outcome of your case.

Assumption of Risk

A defendant might try to argue that you assumed a risk of injury when you performed certain actions. This doctrine establishes that you knew your actions might lead to injuries yet chose to participate anyway. For instance, someone assumes a risk of injury if they choose to play a high-impact sport.

Some businesses will ask customers to sign a waiver of liability to protect them from lawsuits if a customer suffers injuries. But even with this waiver, a business may still be liable for your injuries in some cases.

No Duty of Care

Sometimes, a defendant may say that they had no duty of care to protect you. If true, your personal injury lawyer may be unable to prove that the defendant acted negligently.

Comparative Negligence

It’s common for a defendant to argue that you hold responsibility for your own injuries. For example, a store owner might say that you slipped and fell because you were running in the store. To illustrate further, a driver could argue that they wouldn’t have hit you if you hadn’t been texting on your phone at the time of the accident.

However, California follows pure comparative negligence rules. This means that even if you were partially to blame for an accident, you can still recover a percentage of your damages award.

Contact an Experienced Attorney for Help Establishing Negligence in Personal Injury Cases

Establishing negligence in personal injury cases involves many factors. If you’re unable to prove even one, the court may not award you any damages for your injuries.

A skilled attorney from Khalil Law Group knows what it takes to prove negligence in a personal injury case. Call us at (714) 617-7870 for a free consultation today.

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