Negligence Overview

There are two questions that most people who talk to me as a Boston Massachusetts personal injury attorney want to know: 1) Do I have a case? And 2) What exactly is negligence? The word "exactly" in that second question is important, because while a lot of people think they know what negligence really means, they don't. (This is understandable, because you'd need to graduate law school to answer the question.)

"Negligence" has to do with the law of torts While you can click on the preceding link to learn a little briefly about what a tort is and the law of torts, for our purposes here we'll define it even more briefly as "a civil wrong committed by one party against another." Tort law concerns itself with the civil duties that are owed by persons between each other, and the legal responsibilities between them if harm results due to the conduct of one or more parties in a given situation. A tort is not a crime or a criminal act. Nor are there any findings of "guilt" in tort law, but rather civil liability. There are many different types of torts under Massachusetts law, including:

• Car Accidents/Motor Vehicle Accidents
• Slip and Fall/Premises Liability Accidents
• Construction Site Accidents
• Workplace Injuries/Workers Compensation Accidents
• Nursing Home Abuse and Neglect Cases
• Medical Malpractice Cases
• Product Liability Cases
• Wrongful Death Cases
• Dog Bite Cases

Negligence is not a tort in itself, rather it is a legal concept within the law of torts. In the briefest manner possible, to say that a person was "negligent" is to say that that person did not use "reasonable care" in the circumstances surrounding an injury or harm of some kind that a plaintiff suffered. In the practice of tort law, the party bringing the action and claiming damages is the plaintiff, and the party being sued is the defendant. (As stated above, though, the term "defendant" in a civil trial or a tort claim does not mean the same thing as does "defendant" in a criminal trial, and there are no findings of "guilt" or "innocence" in a civil action or tort suit, only liability.) In general, in order for a plaintiff to prevail against a defendant in a tort action, and receive some type of compensation from the defendant for damages that may have been incurred or suffered as part of the event complained of, the plaintiff must first demonstrate to a jury or judge that the defendant was negligent.

Negligence is comprised of four legal elements, and the plaintiff must prove these elements before a defendant can be found liable for the specific harm alleged. Briefly, let's look at the required legal elements of negligence. In order to prevail (be successful) in a Massachusetts personal injury case a plaintiff must first prove to a jury or judge that:

• The defendant that you are suing owed you a specific legal duty
• The defendant breached (broke; failed to carry out) that legal duty
• The defendant's breach of his/her legal duty caused some type of event to occur
• That you as the plaintiff suffered harm as a result of that event

Without first proving these four legal elements, a plaintiff will be unable to prevail in a tort action, and hence be unable to obtain compensation in the form of damages from the defendant. Let's talk a little more about these four important elements.

First, what does it mean to say that someone had a "legal duty" to another person? Usually, it means that the defendant in the lawsuit was required to act in a reasonable manner under the circumstances present, to prevent the harm that occurred to the plaintiff. A classic example is a Massachusetts car accident, where the defendant operated his car in an unreasonable manner, which caused the accident. He could have been talking on a cell phone, speeding, or simply not paying attention. Regardless, the defendant would have been under a legal duty to refrain from acting in an unreasonable manner so as to create harm of the type that resulted from his conduct. While the precise definition of duty is flexible, in almost each type of Massachusetts injury lawsuit, the defendant will be held to the standard that a reasonable person in his position would be held to, under the particular circumstances presented in the lawsuit. When the defendant is a licensed professional such as a doctor or similar, the standard of care that he or she would be held to is that of an equal professional acting with equal training, qualifications and experience, and acting under the same or similar circumstances.

Second, what does it mean to say that the defendant "breached" the legal duty that was owed to the plaintiff? Very briefly, it means that a reasonable person, acting under the same or similar circumstances, would not have acted in the manner that the defendant did. Again, if the defendant is a licensed professional, it means that the defendant did not meet the standard of care applicable to his profession under the circumstances present.

Third, exactly what does it mean to say that the defendant "caused" the plaintiff's harm? Legally, "causation" usually refers to what is known as "proximate cause." To say that a defendant's actions (or inactions) were the proximate cause of a plaintiff's injuries, is to say that the defendant either knew or should have known that his actions would cause harm of the type that the plaintiff suffered. As an example, let's assume that someone hit your car in an accident, causing your car to be in a repair shop for a week. During that week, you walk to work (when you normally would have driven your car.) One day while walking to work, you fall in an open manhole cover. While you could likely recover against the person who hit and damaged your car for the costs to repair it, you would almost certainly not recover for the injuries you suffered walking over and open manhole cover on your way to work. That is because almost no judge or jury would find that it was reasonably foreseeable to the person who hit your car, that you would walk into an open manhole cover while walking instead of driving your car. Proximate cause would be lacking in this example. Hence, a plaintiff in a Massachusetts negligence action must prove that the defendant reasonably knew or reasonably should have known that his actions would cause harm of the type that the plaintiff suffered. There is another type of causation known as "cause in fact", which is used when the harm that the plaintiff suffered is due much more directly to the defendant's actions. In the example above, the "cause in fact" of the damage to the plaintiff's car, would be the actions of the driver of the car who hit the car.

Fourth, what kind of "harm" must a plaintiff show, in order to prevail and recover damages? This answer can be very broad, but in general, as a Boston injury attorney, the harm consists of medical bills, lost wages, and pain and suffering. Of course, any harm that is alleged by the plaintiff must be proven, and is demonstrated through documentary evidence (medical bills, medical & medical reports, related expenses,) testimonial evidence and expert witnesses, if needed.

In circumstances where both the defendant and the plaintiff contributed to the accident or injury, the legal doctrines of comparative negligence and contributory negligence will be used to determine the parties' respective share of liability for damages. The doctrine of contributory negligence - which Massachusetts, thankfully, does not use, completely bars a plaintiff from any recovery at all if his actions in any way contributed to the harm that resulted. This is a very severe doctrine, and only Washington, D.C. and four states use it. The majority of states, including Massachusetts, apply the doctrine of comparative negligence. Specifically, Massachusetts uses something called "modified comparative negligence," which states that liability will be determined by which party was responsible for 51% or more of the accident or event that caused the harm. If the plaintiff is determined by a jury or judge to be 51% or more at fault in the accident, then he or she cannot recover damages, at all. If the plaintiff is determined to be 50 % or less at fault, then he or she can recover for any damages claimed in the lawsuit. After that determination however, if it is also determined that the plaintiff's actions in any way contributed to the accident, then the plaintiff's damages will be reduced by any amount of contributory negligence they are deemed responsible for in the accident.

Sometimes more than one defendant is named in a suit. In the event that more than one party caused your injuries, each defendant will be liable for the percentage of damages that each is assessed by the jury or judge, based on their respective degrees of fault. However, under what is known as the rule of joint and several liability, each defendant is held to be responsible all the damages involved. This means that if one defendant has no assets or insurance to pay for his percentage of liability, the other defendant (s) may be ordered to pay all the damages that a plaintiff is awarded, and the rule was developed to prevent an injustice to the plaintiff if one defendant could not pay his apportionment of damages. The rule has its fair side, though: If one defendant pays more than his liability has been apportioned as, that defendant can bring an action against the other defendant for reimbursement. This type of suit is known as an "action for contribution."

You might be wondering what level of proof a plaintiff has to reach, in order to prove his case and therefore win. If you're thinking that it's "beyond a reasonable doubt," you're wrong. That is the standard of evidence used in criminal cases only, and it is the highest and strictest standard of evidence in the law. In Massachusetts negligence cases, the standard of proof is known as "Clear and convincing evidence." Translated, this means that in order to prevail (win,) a plaintiff must prove to a jury or judge that it is more probable than not that the defendant caused the plaintiff's injuries. This is considered a middle-tier standard of evidence, and is used in most civil actions.

This answer can be broad, but in general a plaintiff in a Massachusetts injury suit can recover for:

• Medical bills and expenses
• Lost wages and salary
• Physical Pain and Suffering
• Disfigurement and/or disability
• Psychological, Mental and Emotional Distress
• Damage to Tangible Property
• Loss of Future Earnings
• Loss of Consortium (for married persons only)

In the majority of Massachusetts personal injury actions, a plaintiff has three years from the date of the accident or injury to commence a lawsuit against a defendant. There are some exceptions to this rule, depending on the nature of the case, so be sure to contact us and we can provide you with a free initial consultation to answer those and other questions you may have,

If you or someone you know has been injured and is considering a Massachusetts negligence lawsuit, that person is going to need to retain a talented and experienced Massachusetts negligence attorney - one who can demonstrate a proven track record of success in winning these cases in Massachusetts. To choose an attorney who only handles these cases "now and again" is a foolish decision, and anyone who does so is inevitably going to be sorry. In the legal profession as in any profession, "experience and proven results" means everything.

Don't make that kind of mistake. We know how to try and wing these cases, and our talent is among the highest. Call us 24 hours a day, seven days a week at Ph.: (781) 320-0062, or contact us online for a free initial consultation, and we'd be glad to let you know what your legal options are, and what we can do for you.

Westwood and Boston, Massachusetts negligence lawyer William D. Kickham has appeared as a legal analyst on a variety of respected media, including Court TV (now In Session on HLN), Fox News TV-25/Boston, The Boston Herald, WBZ-AM Radio 1030, WCVB-TV5/Boston, Nightside With Dan Rea, Greater Boston With Emily Rooney, Money Matters Radio/Boston, and The Metro Newspaper/Boston. Attorney William D. Kickham is turned to by respected reporters and media organizations in Massachusetts as an authoritative expert in the field of Massachusetts personal injury law, and the case results he produces for his clients attest to this Call us today at office number (781) 320-0062, or Atty. Kickham's cell phone number at (617) 285-3600, to arrange for a free initial consultation of your case. If the matter is not an emergency, you can email us here and we will respond to you very promptly.