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A General Overview of Negligence

In most personal injury lawsuits, negligence is often presented as a probable cause of the unfortunate incident. In definition, negligence refers to any conduct that causes an unreasonable risk of injury to other individuals. As a result of a negligent action, harm befalls a party. This party then seeks legal redress in damages. Negligence can be a challenging aspect of the law. The complexity is because the various elements of negligence relate differently to the facts of an individual case. However, such complexities could be addressed if you seek the services of an experienced personal injury attorney. To help you better understand this concept in law, here is a look at what contributes to negligence.

Elements of a Negligence Claim

To better figure out what constitutes a negligence claim, there are two principal parties to consider. The plaintiff, who is the victim and the defendant, who is the party allegedly at fault. Proof of a negligent act is evidenced through the following elements.

1. Duty

It has to be established that the defendant owed a legal duty of care to the plaintiff.

2. Breach of Duty

The courts then assess whether there was a breach of duty. If the actions of the defendant, or the lack thereof, were within what a reasonably prudent individual would do, then there is a breach of the legal duty of care.

3. Causation

Under this, the plaintiff must prove that the injury they suffered was a consequence of the defendant’s negligence.

4. Damages

Damages refer to the compensation sought after by the plaintiff. The amounts pursued are a total of medical expenses incurred due to the accident, and any loss of income because of the injuries sustained. The courts may further allow for any other costs to be included if they are satisfied that they resulted from the injury.

Defenses to Negligent Claims

Damage awards are substantial. At other times, the courts have been known to include punitive damages over and above the sums sought after by the plaintiff. It is only natural for the defense to use legal means to avoid paying the amounts. The law provides for the following as possible defenses that could be employed by the defendant.

Contributory Negligence

Under this aspect, the negligent actions are as a result of conducts by both the defendant and the plaintiff. This concept, however, puts more focus on the plaintiff. It would be a case of contributory negligence only if the claimant’s actions resulted in an injury, whether partially or entirely.

If the defense proves that the plaintiff’s actions partially or wholly caused their injury, the plaintiff loses the case. Damages are, therefore, not paid to the plaintiff.

Comparative Negligence

Comparative negligence is adopted by several states including New York. It is considered as a solution to the harsh and unfair outcomes of the contributory negligence defense. In comparative negligence, each party’s negligence is weighed. The underlying principle is that each party’s actions, or lack thereof, contributed to the injury. It, therefore, follows that the value of the damages sought is subjected to the contribution each party had to the injury. There are two ways to look at comparative negligence:

1. Pure Comparative Negligence

Damages sought after by the plaintiff are summed up. The amount is then reduced to reflect the plaintiff’s contribution to the injury.

2. Modified Comparative Negligence

It is the most common approach in injury cases. A plaintiff loses the case if it is established that they were more responsible or equally responsible for the injury. The threshold set is fifty percent. Therefore, the plaintiff should not be more than fifty percent culpable for the injury.

Having an personal injury attorney could determine the outcome of your case. It is advised to seek the attorney’s input. Upon reviewing the matter, the attorney is then able to advise you accordingly.

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