Archives for May 2013

Negligence of one party causing personal injury to another is one of the most common and leading causes of accident. Here is my take on an explanation of negligence and how it leads to personal injury lawsuits, which I hope you will understand and appreciate in terms of what your rights may be and whether you need help from an attorney.  I write this because I face these common questions and issues when a new client contacts me about an accident or injury that he/she may have sustained and want(s) to know what their rights are and if and what they can recover.

What is negligence and how is the defendant found to be at fault ? In short, negligence occurs in several ways.  First, you need to accept the fact that we live in a world of rules and regulations as to how we are supposed to interact or “play” with each other.  Negligence occurs when one person does not follow a rule of the game (i.e. legal duty) at all, or they perform the rule or duty improperly and this failure results in an accident to somebody, which in turn gives rise to a claim or lawsuit.    The law holds the person who did not follow the rule to be responsible to the injured party or “Plaintiff” for all injuries, losses or damages  caused by the failure to meet the rule.

Not Criminal; I did not mean to hurt you: In cases of negligence the conduct of the wrong-doer is not intentional.  The wrong-doer usually does not intend to break the rule or hurt anyone, as in criminal cases where the defendant wants to hurt or do harm.  In a negligence case, the defendant usually just did not know the rule, was mistaken about it, or was not paying attention with the level of detail that the rule requires, and as a result did not live up to the standard of action required. That’s why we use the word accident when discussing negligence and personal accident cases.

How do we know if there is negligence:  We live in a society where there are certain laws, rules or regulations, and essentially “codes” of acceptable behavior or conduct that create standards of care which serve as a measuring stick as to how we should act, or not, in almost every situation or activity.     Driving is great example. How often do we drive by the scene of a car accident on the way to work and pause to think about what happened?  The driver of one of the cars had a duty either imposed by the law, an unwritten rule of the road, or common sense to drive his car in a certain manner or standard, but failed to, which resulted in the auto-accident and possibly personal injuries to the other driver.    That duty or obligation may be to stop at the stop–sign, drive at a certain rate of speed, follow at a certain safe distance, keep the car brakes in good working order, or obey some other traffic signal or rule of the road, but due to some reason, which is or is not excusable, the driver failed to live up to this standard or rule, and bang, causes an auto-accident, injuring somebody else .  This same concept that applies to the auto-accident applies to more complicated matters such as a medical malpractice case, where the doctor did not meet the rule/standard e.g. missed something during the patient examination or made a mistake performing a surgical procedure, that is determined, based upon a rule or practice in medicine, to be something he/she should have seen or done.  This failure then leads to some injury to the patient.

Instructions on the back of the lawnmower box or in the owner’s manual can also be evidence of the proper standard of care to use, as can common sense, e.g. don’t touch a stove when it’s hot.

Laws, regulations or common practices are usually a good benchmark in determining negligence:      In many cases we look first to see if there are laws or written rules that apply to the situation in order to determine how we are supposed to conduct ourselves. Staying with the auto-accident example, the proper standard of conduct may come from the traffic laws e.g. the speed limit sign posted where the accident occurred.  In a truck accident, the trucking company’s own driving policies and procedures may be proof a standard and the appropriate conduct.   Finally, if there is no fixed law or standard, we look to what reasonable people would deem appropriate conduct in the situation. This is based upon our everyday experience and common sense.  This is called the “reasonable-man” standard.

Also, there may be different levels of duty for identical situations. For example, there will be different level of duty between the driver of a passenger car and the driver of a tractor-trailer carrying dangerous cargo.  We know that the laws of physics do not apply in the same way as to how such vehicles react under the same conditions (e.g. braking on wet roads), so the driver of the tractor-trailer, because it is harder to maneuver and presents a greater danger if driven improperly, will have to be better skilled and perform with a higher level of precaution when driving.  That’s why he/she must have a special license and training. For example, he will have to apply his brakes a further distance back from the red light in order to stop his truck in time on a highway versus the Honda mini-car.

Second, even though there may not be a particular law that spells out word-for-word what is required of the other driver or the doctor, years of experience and human behavior can also provide guidance as to what the proper standard of behavior or duty in a particular situation should be. We don’t need a law to tell us that ice is slippery, and thus in turn creates a duty on a landlord or property owner to clear the ice or take some precaution to make his sidewalk or parking lot safer when there is ice on it. This is common sense based upon experience (slippery ice leads to falls).  We simply know many things or actions are do’s and don’ts, which can create a danger, based upon experience, and as a result it may trigger a duty to protect against them even when there is no formal law or rule on point.

Assuming I have been injured due to negligence; now what. Is there a case! First, keep in mind that there are exceptions to every rule, including the rules of negligence.  These will be discussed in more detail in future writings, but here are some basics.  Contributory Negligence:  First, your attorney must examine the other side of the coin. There are always two sides to a story.  A key one is, did you have any role in causing the accident that has harmed you.  If you did, you will likely not win your claim.  The law calls this defense or bar, contributory negligence.  Contributory negligence is a harsh and even unfair to injured Plaintiffs because it is not a “majority wins” rule.  For example, in the auto-accident case above, we learn that the driver who was hit in the rear stopped short possibly not giving the other driver sufficient notice or distance to slow down, or the victim changed lanes in front of the Defendant right before the impact.  It is possible that a jury could find that the act of stopping short was not only improper but it too was negligent and contributed to the accident.  The Plaintiff loses!

If you see the ice, you too have to be more careful. The rule is so harsh that it holds that the Defendant can be 99% at fault, and the victim only 1%, but that is enough to defeat the case. Maryland, the District of Columbia and Virginia are several of many states that apply this all or nothing approach to negligence claims.

What if there is no contributory negligence or fault on my part; then do I win?  Well maybe; it depends: In any claim there are two parts the we as lawyers and our clients must examine; who is responsibile (negligence—see above); and what are the injuries or damages caused, if any.  Let’s assume the Plaintiff (Car #1) who is hit from behind was not negligent in any way, so they will win on negligence, the next part of the evaluation becomes are there losses or injuries worth pursuing, and if so, do we any have other issues.  If you just stubbed your toe, well then a lawyer is not likely to take your case because it has no value, whereas if you were severely injured, the value is much greater.  This is the Catch-22.  Would you rather have little or no damage and get little or no recovery, or be able to get a large settlement, but only  because you have been severely injured!  I would hope the first situation, where you are okay and good as new in a few days or weeks.

The world of causation:  Assuming you do have an accident or loss that has some value attached to it, the next question is what we call one of causation.  Did the accident cause your injury or did something else?  Example:  John has had back problems for the last 5 years.  He has had a surgery and is still under the care of doctors for his back at the time of his accident where he is clearly the victim.  He claims an injury to same part of his back that has bothered him for many years.  This is a causation problem.  We have to be able to separate the two injuries, the one from the accident and the one from John’s previous/ongoing back issues. If we cannot, it is an uphill, difficult battle for John because there is another reasonable explanation for his back damage.  Thus, the closer the overlap in time and location between the one accident and the other, the harder the case. Separate body-part: Now on the other hand, if John was under care for his lower back at the time of the accident, and now has problems in his neck (upper back) and left arm, then there is a clearly separate injury caused by the accident. Aggravation of prior injuries:  Let’s use John and his auto-accident again.  If John did have a prior back problem, but it was 10 years ago and there is no treatment or complaints from John for 10 years, and then the accident causes his damage to flare-up all over again, then the law holds the negligent party potentially for what is called an aggravation of a preexisting injury i.e. John was doing just fine until you hit him.  The important factor here is we have a gap in time between John’s past damage and the flare-up.  We can show separation and two distinct timeframes.

I hope this helps. If you have suffered a personal injury due to negligence, or if you need our help with an employment discrimination claim, please contact the Law Offices of Stuart L. Plotnick, LLC today to schedule a free case evaluation with one of our experienced Maryland personal injury attorneys. We look forward to meeting you.