What is Negligence?
By Adam J. Langino, Esq.
Many personal injury lawsuits are based on the concept of negligence. In an injury lawsuit, an injured person, the plaintiff, attempts to prove that another person or corporation’s negligence, the defendant, caused them harm. This article discusses the concept of negligence and the types of damages available to a person harmed by the negligence of another.
What is Negligence?
In North Carolina, negligence refers to a person's failure to follow a duty of conduct imposed by law. Every person is under a duty to use ordinary care to protect himself and others from injury.[i] The law imposes upon every person who enters an active course of conduct the positive obligation to exercise ordinary care to protect others from harm and calls a violation of that duty negligence.[ii]
In Florida, negligence is defined as the failure to use reasonable care, which is the care that a reasonably careful person would use under like circumstances.[iii] Negligence is doing something that a reasonably careful person would not do under like circumstances or failing to do something that a reasonably careful person would do under like circumstances.[iv]
In a lawsuit, the injured party is called a Plaintiff. The person or corporation that Plaintiff is suing is called Defendant. Plaintiff argues that Defendant did not exercise reasonable or ordinary care and caused them injury. A jury decides if it agrees with Plaintiff that Defendant was negligent.
What is Legal Cause?
Even if the jury agrees with Plaintiff that Defendant did not exercise ordinary or reasonable care, Plaintiff must also prove that Defendant’s negligence caused their injury. In the law, this concept is often referred to as “proximate cause” or “legal cause.”
In North Carolina, proximate cause is a cause that produces a person's injury in a natural and continuous sequence and is a cause that a reasonable and prudent person could have foreseen would probably produce such injury or some similar injurious result.[v]
In Florida, negligence is a legal cause of Plaintiff’s injury if it directly and in natural and continuous sequence produces or contributes substantially to making the Plaintiff’s injury so that it can reasonably be said that, but for the negligence, the injury would not have occurred.[vi]
There may be more than one proximate cause or legal cause of an injury. Therefore, the plaintiff need not prove that the defendant's negligence was the sole proximate cause of the injury. By the greater weight of the evidence, the plaintiff must prove only that the defendant's negligence was a proximate cause.[vii]
For example, let’s say Plaintiff proved that Defendant was negligent in constructing a roof by using too few nails. A roof builder exercising ordinary or reasonable care would have used many more. On a windy day, the roof collapsed and injured Plaintiff. The cause of the roof collapse was the wind and the lack of nails. In this scenario, Defendant’s negligence would be considered a proximate cause of Plaintiff’s injury (even though the wind played a role), and Defendant could be held accountable for Plaintiff’s harm.
Who has the Burden of Proof?
In any lawsuit, including injury lawsuits, the Plaintiff has the burden of proof. In North Carolina and Florida, a Plaintiff must prove their claim by the “greater weight of the evidence.”[viii][ix] In other words, a Plaintiff must prove they are a little more right than wrong that a defendant was negligent and that such negligence was a proximate cause of the plaintiff's injury.
What Types of Damages are Available to an Injured Person?
If a Plaintiff successfully proves the Defendant’s conduct was negligent and a legal cause of their injury, then the law requires a jury to make Plaintiff whole for the harms and losses they suffered.
In North Carolina, a judge instructs the jury that the plaintiff must prove, by the greater weight of the evidence, the amount of “actual damages” caused by the defendant’s negligence.[x] “Actual damages” are “the fair compensation to be awarded to a person for any past, present, or future injury proximately caused by the negligence of another.[xi] The judge next instructs the jury on the elements of actual damages and lists them as medical expenses, loss of earnings, pain, and suffering, scars or disfigurement, partial loss of use of part of the body, permanent injury, or any other type of damage supported by the evidence.[xii]
In North Carolina, concerning medical expenses, the judge instructs the jury that medical expenses include all “hospital, doctor, drug, or other bills reasonably incurred or to be incurred in the future by the plaintiff as a proximate result of the negligence of the defendant.[xiii] The medical treatment does not need to be successful to make the expense recoverable.[xiv]
Next, in North Carolina, the judge will instruct the jury to evaluate the Plaintiff’s loss of earnings. The judge tells the jury that “damages for personal injury also include fair compensation for the past, present, and future loss of time from employment, loss from inability to perform ordinary labor, or the reduced capacity to earn money experienced by the plaintiff as a proximate result of the negligence of the defendant.”[xv] In determining the amount, the jury considers the plaintiff's age and occupation, the nature and extent of the plaintiff's employment, the value of the plaintiff's services, the amount of the plaintiff's income, at the time of his injury, from salary, wages or other compensation, the effect of the plaintiff's disability or disfigurement on his earning capacity, the plaintiff's loss of profits from his business or profession, the loss of ability to earn money and any other factor supported by the evidence.[xvi]
The judge will also request the jury to evaluate Plaintiff’s pain and suffering. In doing so, the Judge tells the jury that “damages for personal injury also include fair compensation for the actual past, present, and future physical pain and mental suffering experienced by the plaintiff as a proximate result of the negligence of the defendant.”[xvii] The jury determines what is fair compensation “by applying logic and common sense to the evidence.”[xviii]
In Florida, a judge instructs the jury it should award the Plaintiff an amount of money that the greater weight of the evidence shows will fairly and adequately compensate her for her injury, including any damage the Plaintiff is reasonably sure to experience in the future.[xix]
In Florida, the judge next instructs the jury on the elements of personal injury damages it must consider. The first element the jury considers is the Plaintiff’s injury, pain, disability, disfigurement, and loss of capacity for the enjoyment of life. [xx] In considering this element, the Judge instructs the jury that in deciding damages, the jury must evaluate any bodily injury sustained by the Plaintiff and any resulting pain and suffering, disability, physical impairment, disfigurement, mental anguish, inconvenience, or loss of capacity for the enjoyment of life experienced in the past or to be experienced in the future.
The next element the judge instructs the jury to consider is medical expenses for the Plaintiff’s care and treatment. The judge instructs the jury to evaluate the reasonable cost of hospitalization and medical and nursing care and treatment necessarily or reasonably obtained by Plaintiff in the past or to be so obtained in the future.[xxi] Finally, the Judge will instruct the jury to consider Plaintiff’s lost earnings, lost time, and lost earning capacity. In doing so, the jury must examine “any earnings lost in the past and any loss of ability to earn money in the future.”[xxii]
I am sorry if you are reading this because you or someone your love was killed or catastrophically injured by the negligent acts of another. Over my career, I have handled many wrongful death and catastrophic injury claims. I am licensed to practice law in Florida and North Carolina and co-counsel claims in other states. If you would like to learn more about me or my practice, click here. If you want to request a free consultation, click here. As always, stay safe and stay well.
N.C.P.I 102.11 NEGLIGENCE ISSUE—DEFINITION OF COMMON LAW NEGLIGENCE
See Williamson v. Clay, 243 N.C. 337, 343, 90 S.E.2d 727, 731 (1956), quoting Council v. Dickerson's, Inc., 233 N.C. 472, 474, 64 S.E.2d 551, 553 (1951).
Fla. J. Inst. 401.4 NEGLIGENCE
N.C.P.I.-Civil 102.19 PROXIMATE CAUSE-DEFINITION; MULTIPLE CAUSES.
Fla J. Inst. 401.12 LEGAL CAUSE
N.C.P.I.-Civil 102.19 PROXIMATE CAUSE-DEFINITION; MULTIPLE CAUSES.
Fla. J. Inst. 401.21 BURDEN OF PROOF ON MAIN CLAIM
N.C.P.I.-Civil 102.10 NEGLIGENCE ISSUE-BURDEN OF PROOF.
N.C.P.I.-Civil 810.00 PERSONAL INJURY DAMAGES-ISSUE AND BURDEN OF PROOF.
N.C.P.I.-Civil 810.02 PERSONAL INJURY DAMAGES-IN GENERAL.
N.C.P.I.-Civil 810.04 PERSONAL INJURY DAMAGES-DAMAGES-MEDICAL EXPENSES.
See Heath v. Kirkman, 240 N.C. 303, 310, 82 S.E.2d 104, 109 (1954).
N.C.P.I.-Civil 810.06 PERSONAL INJURY DAMAGES-LOSS OF EARNINGS.
N.C.P.I.-Civil 810.08 PERSONAL INJURY DAMAGES-PAIN AND SUFFERING.
FLA J. INST. 501.1 PERSONAL INJURY AND PROPERTY DAMAGES: INTRODUCTION
FLA J. INST. 501.2 PERSONAL INJURY AND PROPERTY DAMAGES: ELEMENTS