In personal injury cases, you will often hear that the injury in question was either caused by negligence or an intentional tort. An intentional tort is a purposeful act intended to cause harm to an individual. Negligence is an intentional or unintentional act that was not intended to cause harm to an individual, but that results in injury.
Under the umbrella of negligence, there are four levels that are used to explain the degree of negligence on the part of the defendant. These are negligence, negligence per se, gross negligence, and recklessness. The degree depends on how negligent the defendant’s act was and whether or not it was intentional. It is important to know which degree of negligence you will need to prove in your case and how it could affect the outcome.
Standard negligence refers to an unintentional act that a reasonable person would not have performed under the same circumstances, and that leads to personal injury or property damage. An unintentional act as stated in this definition is any action (or inaction) that the defendant performs with the belief that no harm will be caused. The term “reasonable” as used in this definition simply means, how do the defendant’s actions compare to what the average person’s? Would the average person have considered that this action could cause harm?
An example of negligence in action is if you are walking down an old, wooden staircase and one of the steps breaks, causing you to fall and suffer an injury. The property owner may not have known that the particular step was fragile or otherwise believed that the stairs were safe — thus making the injury unintentional. However, if a reasonable person would have looked at the stairs and recognized that they were hazardous and should be replaced, then the defendant could be negligent.
Other details to keep in mind are that there must be a breach of a duty of care and the injuries you have suffered must be directly caused by that breach and the defendant’s negligence. In the example above, the property owner would have owed you a duty of care regarding the safety of the property, and your injury was directly caused by their failure to uphold that duty by not repairing the staircase.
Negligence Per Se
Negligence per se is a subset of negligence in which the defendant’s breach of a duty of care is pre-determined due to a safety rule or law being broken. If a safety rule or law is broken and someone is injured as a result, it can be assumed that the act is negligent because a reasonable person would not have broken the rule. However, acts that are negligent per se are still considered to be unintentional because although the defendant broke a rule, they did not believe that an injury was likely to occur as a result.
An example of negligence per se is if someone makes a right turn on red at an intersection where it is prohibited and causes an accident. Since they broke a law, this act would be negligent per se rather than just negligent. The law is in place specifically to prevent this type of accident from occurring and to protect other motorists, so a reasonable person would assume that breaking the law could result in injury.
Gross negligence is a more serious degree of negligence that applies to extremely unreasonable actions that result in injury. It is the borderline between negligence and recklessness. The tipping point into recklessness may be something as simple as the mindset of the defendant at the time the injury was caused. If they did not foresee that an injury was likely to occur, then gross negligence is generally going to apply over recklessness.
If a motorist runs a red light at a busy intersection and causes a crash because they believed that the other vehicles would stop for them if they honked, that would be gross negligence. Not only have they knowingly broken a law, but the act was so likely to cause serious injury or death that there is no way a reasonable person would have done the same thing. But, if the defendant truly believed their actions were not likely to cause injury, it would probably be considered gross negligence.
The only real difference between gross negligence and recklessness is the state of mind of the defendant. If in the gross negligence example the defendant knew that their actions were likely to cause serious injury or death and yet they did it anyway, then it would be considered reckless. Recklessness is when negligence crosses into the realm of intentional acts. But it is still not an intentional tort because the defendant did not intend to cause harm — they simply knew it was likely to happen and did not care.
You may also be familiar with people being charged with reckless endangerment in situations of excessive speeding. These people knew that excessive speeding causes crashes resulting in serious injury, but they chose to speed anyway. Recklessness is the same concept on the civil side of the law but also requires that an injury occurs as a result of the intentional and dangerous action.
When it comes to your personal injury case, you will generally need to show that the defendant’s negligence directly resulted in your injury. And depending on the degree of negligence, it may be easier or more difficult to prove. Negligence per se can be easier to prove than standard negligence because a rule or law was broken that can be used to bolster your claim. However, when it comes to gross negligence and recklessness, it can be much more difficult to prove the state of mind of the defendant at the time.
Donaghue & Labrum Trial Lawyers
If you have been injured due to someone else’s negligence, you may be entitled to compensation for medical bills, loss of wages, and more. Contact us today for a free consultation regarding the specifics of your case. Our attorneys have decades of experience fighting for the rights of our clients, and we’ll put that experience to work for you.