Negligence” is a legal term of art with a meaning similar to “carelessness.” It is the most common basis for civil lawsuits seeking money damages. Because it is a legal term, its implications are more complex than you might think. Following is a description of some of the ins and outs of negligence.

Ordinary Civil Negligence

Ordinary civil negligence, the kind that justifies most personal injury lawsuits, consists of two primary legal elements. “Elements” are facts that you must prove to win. These facts are:

  • The defendant owed you a duty of care. This is usually straightforward. In a car accident case, for example, every driver owes every other driver a duty of care while driving. This element might come into dispute, however, if you sue a doctor for medical malpractice and the doctor claims that no doctor-patient relationship had been established.
  • The defendant breached their duty of care. Going back to the car accident lawsuit example, perhaps the defendants cause the accident by following you too closely. Or maybe a doctor failed to order lab tests when they should have. Either way, the defendant failed to comply with their duty of care.

Once you establish duty of care and breach, you have established negligence. This still isn’t enough to qualify you for compensation, however. To establish liability, you must also prove:

  • Damages. In a personal injury case, you must establish that you suffered physical harm. A “bad scare” is not enough. If you suffered property damage, you can also tack that onto your claim.
  • Causation. Proving the defendant negligent is not enough. You must prove that the defendant’s negligence actually caused the accident. For example, a defendant driver’s drunkenness does not establish liability unless their drunkenness is what caused the accident. The relationship between cause and effect can’t be attenuated -– it must have been direct enough to allow a reasonable person to have foreseen the accident.

To win your negligence claim for damages, you must prove all four of the above elements by a “preponderance of the evidence.” This means you must prove each of them with a likelihood of at least 51%.

Negligence Per Se

Negligence per se” means something like “automatic negligence.” It is automatic because you commit negligence automatically if you violate a safety statute or regulation. If you cause an accident by following someone too closely on the road, you might take advantage of the ambiguity in the question “Exactly how close is ‘too close’?” to escape liability. 

However, if you ran a stop sign, you were automatically negligent (negligent per se) because running a stop sign is against the law. Negligence per se removes any ambiguity about whether the defendant was negligent once you prove they have violated a safety statute or regulation. 

Comparative Negligence

Under the Texas “comparative fault” or “comparative negligence” system, you can lose part or all of your compensation if you were also negligent. If you were 50% or less at fault, you will lose that percentage of your compensation corresponding to your exact fault percentage. If you were more than 50% at fault, however, your compensation will drop to zero. 

Gross Negligence

The term “gross negligence” means something like “extreme negligence.” Two primary legal consequences of a finding of gross negligence” are:

  • Many Texas courts will not enforce a waiver of liability for negligence if the defendant committed gross negligence. Texas courts are divided on this issue.
  • You need to prove gross negligence (or even more culpable misconduct such as an intentional act) to qualify for punitive damages. Courts award punitive damages to punish the defendant for outrageous behavior. However, even proving gross negligence does not automatically qualify you for punitive damages.

Acts or omissions that qualify as “gross negligence” might also qualify as “criminal negligence.” 

Criminal Negligence

Criminal negligence” is a different concept than any of the above-described forms of negligence because it applies in criminal court, not in a civil lawsuit. It is an extreme form of negligence that is similar to the gross negligence described above. The same conduct can qualify as both gross negligence and criminal negligence. 

Causing a car accident through careless repairs, for example, could qualify as both gross negligence and criminal negligence. Ultimately, however, the question is up to different courts. A civil court will decide gross negligence, while a criminal court will decide criminal negligence.  

Talk to a San Antonio Personal Injury Lawyer First

If you are looking into filing a negligence claim, talk to a personal injury lawyer first. Most offer free consultations, during which they will evaluate your claim and tell you what they think your chances are. Contact us at George Salinas Injury Lawyers (210) 225-0909 to schedule a free consultation. And since most San Antonio personal injury lawyers work on contingency, you won’t owe them any attorney’s fees unless they win or settle your claim.