Negligence - Smith Trial Group

Modified Comparative Negligence

How Do I File a Negligence Claim?

Negligence is failure to use reasonable care, resulting in damage or injury to another.

If you DO something a reasonable person would NOT do then you are guilty of negligence.

If you Don’t do something a reasonable person WOULD do then you are guilty of negligence. As long as you owe that person a duty of care according to the law.

Duty of Care

Under California law, most people owe a “duty of care” to others. This is created by the law to protect others. For example, if you drop your kids off at school the teachers have a duty of care to take care of and protect the students. If you are driving a car you have a duty of care to be aware of your surroundings and obey traffic laws.

Proving Negligence

There are three things you must have to prove negligence.

Duty of care was owed
The duty of care was breached because of negligence
The negligence was the substantial reason harm was caused

Common Defenses

Many defenses can arise from a negligence claim but some of the most common are the following:

Duty of care was not owed:

If the defendant can show there was no duty of care owed in that situation then there is no negligence.

The plaintiff caused the injury:

Many defendants will blame the plaintiff for the injuries. Though this is not the best argument because in some cases of comparative negligence they can still recover partial damages where the defendant is found partially at fault.

Assumption of Risk:

They argue the plaintiff assumed the risk of the injury. This can be the case when performing risky activities. Even though you may have signed a waiver of liability this does not mean you automatically assume all risk. They must still exercise reasonable care to prevent injuries.

Comparative Negligence

California’s comparative fault law allows someone who is only partially at fault in an accident to recover partial damages. The jury will rule what percentage at fault a party owes and that party will only be required to pay that percentage of damages.

This is part of the reason why negligence claims can be difficult. The judge or jurors must determine who is at fault and what percentage they are negligent in each situation.

Modified Comparative Negligence

In some states, like the state of Nevada they follow modified comparative negligence. if the plaintiff is 50% or more at fault for the accident they will not recover any damages.

How Do I File a Negligence Claim?

The wrongful death attorneys at Smith Trial Group have handled hundreds of negligence claims. Contact our attorneys today for a free consultation on your negligence claim.

Free Case Evaluation

Call us anytime at 855-202-2232 or fill out the form below to receive a free and confidential initial consultation.

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Free Case Evaluation

Call us anytime at 855-202-2232 or fill out the form below to receive a free and confidential initial consultation.

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Meet Your Attorneys

CARDON SMITH

Founding Attorney

Cardon Smith graduated from Georgetown University Law Center where he was a member of the nationally-ranked mock trial team. After Georgetown, Mr. Smith clerked for a federal district court judge and then litigated high-stakes business disputes for Fortune 500 companies at a law firm in Newport Beach, California.

JENNIFER SMITH

Attorney

Jennifer Smith has been a lawyer for over thirty years. During her extensive legal career, and prior to her personal injury practice, she worked as a prosecutor and a criminal defense attorney. Mrs. Smith is an award-winning personal injury lawyer and has obtained numerous seven and eight-figure verdicts and settlements for her personal injury clients, including a record-setting verdict in California.