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Comparative negligence and personal injury

Comparative negligence assigns liability for an injury or accident based on percentages of blame, instead of assigning one person or party full responsibility.

Jaime Enrique Suarez | May 2, 2019

Guide on Comparative Negligence in Florida

How is Negligence Defined in Florida? To establish negligence in Florida, a plaintiff must show that: (1) the defendant owed a duty to the plaintiff; (2) the defendant breached the duty; (3) the breach was the actual and proximate cause of the plaintiff’s injuries; and (4) as a result the plaintiff suffered damages. A duty is the obligation to protect another against unreasonable risk of injury. A duty is breached when the defendant fails to meet such obligation. There are 2 types of causation, which is a close causal connection between the action and the injury. Damages to the plaintiff are the loss suffered. How Does Comparitive Negligence Work in Florida? In Florida, law recognizes that every person has a duty to exercise due care for his own safety. Inherent in the duty of every person to exercise due care for his own safety is the essential element that the person knows and appreciate the probable consequences of his action or inaction. In other words, a person may be comparatively negligent if he should have known of the injurious consequences of his actions or inaction. Thus, the question is one of foreseeability. In Florida, courts examine foreseeability in the framework of comparative negligence as follows: Foreseeable consequences are those which a person by prudent human foresight can be expected to anticipate as likely to result from an act, because they happen so frequently from the commission of such act that in the field of human experience they may be expected to happen again. Although the actual harm that results may be seen as not foreseeable, it is not necessary that the tortfeasor be able to foresee the exact nature and extent of the injuries in the precise manner in which they occur; rather, all that is necessary is that the tortfeasor be able to foresee some injury as likely to result in some manner as a consequence of his negligence. When deciding the issue whether an individual has exercised due care for his own safety, his physical characteristics and all of the surrounding circumstances should be considered.

James Edward Leano | Dec 11, 2017

Florida – If I got the ticket, can I still sue for my car accident injuries?

Being issued a ticket is not the same as having been found liable. It is important to know that traffic tickets are not allowed to be entered as evidence in a Florida court of law. According to FL 316.066 - Accident Report Privilege - statements pursuant to an accident made to police are inadmissible in court, and this is typically what a police officer bases his decision on who to give a ticket to. The police officer essentially does his best estimate of what happened based on the available evidence at the time, but this report is not considered to be a concrete evaluation of the actual events that occurred unless the officer was a direct witness of the accident. It is up to the jury to determine who is at fault. Unless there's an independent and/or unbiased witness or camera, it will be difficult to determine exactly whose fault it was. As a result, liability would then be decided by a jury's determination of the facts. The events that occur at the scene of an accident all contribute towards a jury's decision, but nothing is completely determined. Despite how an accident may have been seen to occur at the time, there is no guarantee that a jury will see it in the same light. Therefore, even if you are unsure of who was at fault and/or who is entitled to compensation as a result of an accident, you should follow up with professional legal help to explore your options with a trained professional. Florida is comparative negligence state. In Florida, liability for an accident is assessed to the percentage you are found at fault. This means that while you may be partially at fault, other people could be at fault too. Comparative negligence can be the difference between being completely responsible for your medical bills and having someone else pay for at least a portion of them. Proper legal representation is critical for recognizing this, as your lawyer can work with the insurance companies, private investigators, and other resources not readily available to determine exactly how much you owe for your part in an accident. How to apply this information. The bottom-line of this information is that if you are hurt in a car accident and you got the ticket, you should still consult with a personal injury lawyer about your options. Having legal representation can provide you with options that may not be immediately apparent in the aftermath of an accident, especially if you were issued a ticket or citation. Many attorneys offer free consultations and will help you decide which path is best for your specific case.

Thomas Patrick Polacek | Mar 27, 2017

Comparative Fault in an Illinois Personal Injury Case

Introduction The State of Illinois has adopted modified comparative negligence as the standard for recovery of damages in a personal injury case. Specifically, the Illinois statute provides: In all actions on account of bodily injury or death or physical damage to property, based on negligence, or product liability based on strict tort liability, the plaintiff shall be barred from recovering damages if the trier of fact finds that the contributory fault on the part of the plaintiff is more than 50% of the proximate cause of the injury or damage for which recovery is sought. The plaintiff shall not be barred from recovering damages if the trier of fact finds that the contributory fault on the part of the plaintiff is not more than 50% of the proximate cause of the injury or damage for which recovery is sought, but any damages allowed shall be diminished in the proportion to the amount of fault attributable to the plaintiff. Comparative fault under Illinois Statute Simply put, if you are injured and file suit against another party, that party can make a claim in response that you were more than 50% at fault for your own injuries. If a jury believes that you were more than 50% at fault, you are prohibited under the statute from recovering any damages for your injuries. On the other hand, if a jury finds that you were 50% or less responsible for your injuries, any recovery awarded to you will be reduced by the amount of your own negligence. Example For example, if a jury were to find you 30% responsible for the auto accident resulting in your injuries, and the jury determined that you suffered $100,000.00 total in injuries, that jury is required by the statute to award you only $70,000.00, based upon your comparative fault in the accident ($100,000.00, less 30% = $70,000.00). Conclusion The concept of comparative fault requires an additional level of analysis and consideration of the personal injury claim. As a result, it is important for anyone injured due to someone else's negligence to review their claim with an attorney as soon as possible.

Sally A Roberts | Sep 9, 2016

Condominium Slip & Fall Cases

Tort Liability of Condominium Entities A condominium is a multi-unit dwelling structure in which each owner holds a fee simple title in his own unit, while retaining a proportionate undivided interest as a tenant in common, together with all other individual unit owners, in all common areas and facilities on the premises. Rules pertaining to the tort liability of owners and occupiers of condominiums differ somewhat from those relating to more traditional types of premises, due to the unique nature of this particular form of property ownership. Ordinarily, the management of a condominium is directed by a homeowner's association, which assumes the primary responsibility for the maintenance of the grounds and other common areas. If an accident or injury occurs within that portion of an individual condominium unit If an accident or injury occurs within that portion of an individual condominium unit over which the unit owner exercises complete control, liability is determined in much the same manner as with any other property owner. However, if the injury occurs on a portion of the condominium premises which is owned jointly by all of the individual unit owners, the potential liability of each unit owner is affected both by the language of the relevant enabling legislation, and by the particular manner in which the condominium association is organized. personal injury actions are permitted to be maintained directly against a condominium owner's association, If personal injury actions are permitted to be maintained directly against a condominium owner's association, the defendant's common law duty of care is much the same as that imposed on the owners of any other type of private residential property. Thus, liability may be imposed for injury-causing conditions that are actively created by the negligence of the owner's association, or merely passively permitted to exist on the premises. essential elements of a cause of action in negligence The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury. Duty is a legal conclusion about relationships between individuals, made after the fact, and imperative to a negligence cause of action. The nature of the duty, and the specific persons to whom it is owed, are determined by the circumstances surrounding the conduct of the individual. Where there is no duty, there can be no negligence. touchstone of liability for unsafe premises The touchstone of liability for unsafe premises is control over the area of danger which causes injury. Liability for an injury due to defective premises does not depend on title, but on possession and control. Under basic tenets of premises liability, the plaintiff must have evidence of control. Liability can be predicated upon negligence in the control and possession of premises, as opposed to mere ownership thereof. In general, to have "control" of the place is to have the authority to manage, direct, superintend, restrict or regulate. The word "control" has no legal or technical meaning distinct from that given in its popular acceptation, and refers to the power or authority to manage, superintend or oversee. In addition to the traditional common law theories, In addition to the traditional common law theories, tort liability may also be based on a special duty that had been contractually assumed by an association. For example, if the by-laws or other governing documents of an owners' association impose certain specific obligations on the owners' association, such as the removal of snow from common sidewalks on the premises, the association may be liable for failure to comply with its contractually expanded duties of care. Likewise, the by-laws of an owners' association can also be used to establish certain unique defenses to liability. duty to use care may arise from a contract A duty to use care may arise from a contract, from a statute, or from circumstances under which a reasonable person, knowing what he knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result from his act or failure to act. In Sevigny v. Dibble Hollow Condo. Ass'n, Inc., the Appellate Court considered the duty of a condominium association to be like that of a landlord. "In determining whether to impose a landlord's duty of care on a condominium owners association, regarding its members and their guests, courts may consider whether in the traditional landlord-tenant relationship, performing such business functions as maintaining and repairing common areas, providing security, obtaining insurance, and managing the property, generally." The test for a duty is whether the association, like a landlord, has control of the limited common elements. injured person fell on ice in the driveway In Ostrout v. Squire Hill Park III, the injured person fell on ice in the driveway of the condominium unit where she was a resident. The driveway was a common element of the unit, and the maintenance company was responsible for the upkeep and maintenance of all common elements. The court found that the owner had no duty to maintain the driveway. The icy conditions on the driveway were the result of water run-off from landscaping done on the common elements of the unit. Some of that run-off water traveled through the garage of the unit out onto the driveway. The injured person argued that since the runoff passed through the owner's garage before reaching its resting place upon the driveway, liability attached. The court found Conn. Gen. Stat. ? 47-253(c) controlling. Liability did not attach to the owner based on the fortuitous flow of water, the origins of which arose out of the landscaping of a common element. Conn. Gen. Stat. ? 47-253(c) provided clear immunity provided to the owner.

John F. Cordisco | Apr 18, 2016

How Comparative Negligence Works in Pennsylvania

Pennsylvania's Comparative Negligence Laws The majority of the states in the U.S. follow a comparative negligence model for liability, Pennsylvania included. Pennsylvania follows a modified version of comparative negligence known as the 51 percent bar rule. This rule states that a person cannot recover damages if an investigation finds him to be 51 percent or more at fault for the accident in which he sustained injuries. Why Your Degree of Fault Matters The higher the degree of fault, the more the insurer will reduce your settlement amount. For example, if an investigation finds that you were 20 percent at fault, you will only be able to collect 80 percent of your settlement. If the investigation found that you were 60 percent at fault, you will not be eligible to collect a settlement at all due to the modified comparative negligence laws in Pennsylvania. How to Prove the Other Driver's Degree of Fault You will need to provide evidence that shows your behaviors were not as negligent as the other person's involved in your accident, e.g., you were driving three miles over the speed limit but the other driver clearly ran a red light.Photographs of the accident scene can show things like tire marks or vehicle placement that identify a traffic violation by another party. In addition, witness testimony can back up your claim of negligence against another party. A police report can also be helpful, as it will include any citations officers issued against the other driver. Challenging a Denied Settlement Due to Fault It is possible to appeal a decision by the at-fault driver's insurance company if it finds you were more than 51 percent at fault for the accident and denies you a settlement. If this occurs, you have the right to take your injury claim to trial and have a judge or jury decide your degree of fault and potential compensation.

Gabrielle Denby | Feb 2, 2016

Negligence is Never Simply Just Negligence in a Personal Injury Claim

Contributory Negligence The concept of contributory negligence is used to characterize action that creates an unreasonable risk to another person. The idea is that an individual has a duty to act as a reasonable person. When a person does not act this way and injury or damages occurs, that person may be held entirely or partially responsible for the resulting injury or damage, even though another party was involved in the accident. After an injured person files a negligence claim, the defendant (the person alleged to have caused the injury or damage) may then assert a contributory negligence claim against the plaintiff (the person injured or damaged who initiated the lawsuit), effectively stating that the injury or damage occurred at least partially as a result of the plaintiff's own actions. This would be a contributory negligence counterclaim. If the defendant is able to prove the contributory negligence claim, the plaintiff may be totally barred from recovering damages or their damages may be reduced to reflect their role in the resulting injury or damage. For example, a pedestrian could be considered at least partially at fault (and therefore liable for contributory negligence) for carelessly crossing the street. Comparative Negligence Most states have now adopted a comparative negligence approach to contributory negligence, wherein each party's negligence for a given injury or damage is weighed when determining damages. Traditionally, the courts viewed contributory negligence as a total bar to the recovery of any injuries or damages. Under the traditional view, if a person had contributed to the accident in any way, the person was not entitled to compensation for their injuries or damages. In an attempt to reduce the harsh, oftentimes unfair outcomes resulting from this approach, most states have now adopted a comparative negligence approach. There are two approaches to comparative negligence: Pure Comparative Negligence: A plaintiff's injuries or damages are totaled and then reduced to reflect their contribution to the injury or damages. For example, if a plaintiff was awarded $10,000 and the judge or jury determined that the plaintiff was 25% responsible for her injury, she would be awarded $7,500. Modified Comparative Negligence: This is the most common approach. A plaintiff will not recover if they are found to be either equally responsible or more responsible for the resulting injury or damage. In other words, in order to recover damages, the plaintiff must not be more than 50% at fault for the resulting injury or damage. Massachusetts - "The Law" of Negligence The law of negligence is a complex, ever-changing code of conduct that our society expects individuals and business entities to conform their actions and behavior to. That standard is one of reasonableness. We expect safe and reasonable actions and behaviors in our interactions with other people and businesses. Unreasonable behavior that causes injury is not tolerated in our society and can subject one to civil liability for the injuries and damages caused by that action or behavior. There are very few bright lines that clearly divide what is reasonable from what is not. Each case is highly fact dependent on the particular circumstances involved. The law of negligence in Massachusetts has evolved over centuries into its present state and - as a reflection of our society's changing expectations of public conduct - the law continues to evolve. There are two general sources for the law of negligence: "common law" and "statutory law". The common law is judge-made law that comes from the Massachusetts appellate courts, which now include the Appeals Court and the Supreme Judicial Court. These are the courts that review lower court rulings and sometimes write decisions that have binding or precedential effects on future cases with similar circumstances. Our modern day common law principles originated from Great Britain and crossed the Atlantic along with the first English settlers of the Massachusetts Colony. Beginning with the first judicial session in the Western hemisphere, the Supreme Judicial Court's predecessor court heard cases and recorded its decisions as far back as 1693. Since then, our appellate courts have recognized and adapted the English common law through their own written decisions and precedents as applied to life in the New World and, through the centuries, to our modern post-industrial age. The common law of negligence, as developed over time, establishes a general code of conduct for individuals and businesses in Massachusetts. The common law of negligence is in fact nothing more than the aggregate of all judicial decisions pertaining to negligence. Those decisions are organized and published by official court reporters in case books. The statutory law of negligence is what we more traditionally think of as "the law" because these are the rules and regulations debated, drafted and enacted by our Legislature in the form of statutes. Through the years, the Legislature has also saw fit to alter, supplement and clarify the common law of negligence. By statute, the Legislature has also authorized various governmental agencies such as the Office of the Attorney General and the Department of Public Health to enact administrative safety regulations that also help define the law of negligence.

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