Negligence is a legal theory that is the basis for many car accident lawsuits.

If
you've been in a car accident and have been sued or are suing the other party,
there's a good chance you've heard the term "negligence" kicked around. But what
exactly is negligence and how do you prove it? Here's a primer on using negligence
as a basis for recovery in car accident cases.
What Is Negligence?
When a person is negligent, it means that he or she has behaved in a thoughtless or
careless manner, which has caused harm or injury to another person. A person can
be negligent by doing something that he or she should not have done (for example,
running a red light or speeding), or by failing to do something that he or she should
have done (for example, failing to yield, stop for a pedestrian, or turn on lights when
driving at night).
Negligence is a legal theory often used in car accident cases. A driver must use care
to avoid injuring other motorists, passengers, or pedestrians -- basically, anyone
that he or she encounters on the road. If a driver is not reasonably careful and
injures someone as a result, the driver is liable for injuring the accident victim.
Elements of a Negligence Claim
The person who brings the lawsuit (called the plaintiff) must show that the
defendant (the person being sued) was negligent. (For more on how to prove your
personal injury case, see Nolo's article Car Accidents: Proving Fault.) If you are the
plaintiff, you must show all of the following:
The law required the defendant to be reasonably careful. In car accident cases, the
law requires drivers to be careful when encountering anyone they meet on the road
-- passengers, persons in other vehicles, and pedestrians -- so this one is a given.
This is called the "duty of reasonable care."
The defendant was not careful. This is called "breaching" (or violating) the duty of
care. In determining whether a driver was sufficiently careful, the law compares the
driver's conduct with the conduct expected of a "reasonable person." The law asks:
How would a reasonable, prudent person have behaved in the same or similar
circumstances?
If the defendant's behavior falls short of how a reasonable person would have acted,
the defendant has violated the duty of reasonable care. Examples of conduct
expected of a reasonable driver include:
stopping at a red light
watching for crossing pedestrians, and
following the vehicle in front at a safe distance.
The defendant's conduct caused plaintiff's injuries . You must also show that the
defendant's conduct caused your injuries.
For example, Paula is suing Dan, claiming that she suffered whiplash when Dan rear-
ended her car. Paula must provide evidence that the whip lash was due to being
rear-ended by Dan and not due to some other accident or event. If Paula suffered
whiplash the day before the collision while playing golf, she'll have difficulty
establishing that Dan's conduct -- rear-ending Paula's car -- caused her injuries.
The plaintiff suffered losses and/or was injured. Car accident victims are entitled to
compensation for injuries, lost wages or earning capacity, pain and suffering, and
property damage (for example, damage to a car). If there aren't any monetary
losses or provable injuries, the plaintiff can't recover anything. For example, if Paula
in the above example doesn't suffer any physical injury, doesn't miss any work time
because of the accident, and her car sustains no damage, she cannot recover
compensation from Dan because there has been no injury or damage.
The plaintiff must show evidence of his or her injuries and other monetary losses to
be compensated. If you are the plaintiff, it's important to keep complete and
detailed records of all injuries, medical expenses, and property damage. (For more
information on documenting your damages, see Nolo's article Personal Injury
Accidents: Preserve Evidence.)
What Duties Does a Driver Have?
The law requires drivers to use reasonable care to avoid harming anyone
encountered on the road. But what exactly does this entail? Here are some
examples of specific requirements that the law has imposed. If a driver fails to meet
these requirements, he or she may be found to have violated the driver duty of
reasonable care.
Driving at a reasonable speed . Drivers have a duty to drive at a reasonable,
prudent speed. A person who drives at a speed that is unreasonable in light of the
existing traffic, road, visibility, and weather conditions may be negligent. Even
driving at the speed limit can be considered negligent if, for example, visibility is
low, the weather is bad, or the circumstances warrant particular caution (driving by
a school where you can expect children to be crossing, for example).
Vigilance and keeping a proper lookout. Drivers have a duty to be alert and to
maintain a careful lookout for other vehicles, pedestrians, and road hazards. Drivers
are expected to see the things that an ordinary, prudent person would see. A failure
to keep a proper lookout -- by, for example, failing to take care when driving by a
road construction site or a school crossing -- can constitute negligence.
Maintaining control of the car . Drivers are expected to keep their car under control
by, for example, being able to stop quickly. Negligence may be inferred if a car loses
control (such as overturning or leaving the road) for no apparent reason.
Maintaining and using the car's equipment. Drivers are expected to maintain their
vehicles in safe working order. For example, lights and brakes should be working
properly.
Driver Duties Imposed by State Law
Each state has motor vehicle laws governing how drivers are expected to behave on
the road. In certain circumstances, violating a motor vehicle law gives rise to a
"presumption" of negligence -- meaning that the defendant must present evidence
to prove that he or she was not negligent (rather than requiring the plaintiff to prove
that the defendant was negligent).
Examples of conduct that may give rise to a presumption of negligence include:
driving under the influence of drugs or alcohol
violating right-of-way rules, including a pedestrian's right of way, and
driving on the wrong side of the road.
Car Accident Defenses
There are a number of defenses available to a defendant in a car accident case
based on negligence. Using these defenses can lower or erase the defendant's
liability (that is, the amount of compensation the defendant must pay the plaintiff).
For example, if a pedestrian runs into the middle of the road and is hit by a car, the
driver may escape all liability or may only have to pay for a portion of the
pedestrian's injuries. (To learn about car accident defenses, see Nolo's article Car
Accident Defenses: Contributory and Comparative Negligence.)
Getting Help
Some small car accident cases are straightforward and can be handled without a
lawyer. If, however, your car accident case is complicated, involves severe or
permanent disability, or involves large damages, consider hiring a personal injury
attorney. (To learn more about when you may need a lawyer, read Nolo's articles
Personal Injury Claims: When You Need a Lawyer and Personal Injury Claims: When
You Can Handle Your Own.) If you decide to consult a lawyer, read Nolo's article
Finding a Personal Injury Lawyer or go straight to Nolo's Lawyer Directory.
For more information on representing yourself in a personal injury case, such as a
car accident case, get How to Win Your Personal Injury Claim, by Joseph L. Matthews
(Nolo).

What is Car Accident Law?

Car accident law refers to the legal rules that determine who is responsible for the personal and
property damage resulting from a traffic collision. This area of the law consists of the principles of
negligence, as applied to this particular category of personal injury cases. Like other cases in which
negligence law applies, car accident litigation is governed almost entirely by state law.

While nuances exist, car accident victims in every state must prove the same basic four elements in
order to recover compensation. These elements are: duty, breach, causation, and harm. With
respect to duty, drivers have a legal obligation to obey the rules of the road and to operate their
vehicles in a reasonable manner. This means driving a safe speed, maintaining control, exercising
awareness, observing traffic signals, using blinkers and headlights, etc.

The existence of a duty is typically accepted without much argument. By contrast, the plaintiff will
usually be required to offer evidence that the defendant breached that duty. Breach can be shown by
direct evidence, such as eyewitness testimony, traffic surveillance video, or an admission of fault. Or,
the plaintiff may need to resort to circumstantial evidence, such as skid marks, paint smudges, or
blood alcohol readings.

Just because the defendant had a duty to operate his or her vehicle in a certain manner, and it is
shown that the defendant breached that duty, the court will not assume those circumstances caused
the plaintiffs injuries. Rather, the plaintiff must prove the element of causation. In car accident cases,
this can be done through medical testimony demonstrating the injuries are consistent with the nature
of the crash, and that they did not exist beforehand.

Finally, the plaintiff must prove harm. No matter how egregious the other drivers conduct was
behind the wheel, the plaintiff cannot bring a negligence lawsuit unless the conduct produced
damage to the plaintiffs person or vehicle. Near miss cases will not qualify. Once harm is shown,
the plaintiff may be entitled to compensation for medical expenses, pain and grief, lost wages, and
more.

Steps to Take Following an Accident

The first thing to do after a car accident is to remain silent about who is to blame for the incident. As
simple as this may seem, admitting fault is by far the most common mistake potential litigants make
in the moments following a crash. Ordinarily, the rules of evidence do not allow out-of-court
statements (aka hearsay). But there is an exception for admissions. Even a simple apology can
potentially be used against you.

Conversely, it is important to make notes of any statements made by the other driver. A smart phone,
tablet, or other electronic device can be great for recording voice memos in the chaos of an accident
scene. By whatever means are available, gather as much detail about the accident as possible. To
begin with, take down the other drivers name and address, license number, and insurance
information.

Other evidence to preserve includes witness contact information, descriptions of the road, traffic, and
weather conditions, and photographs of the vehicles. If your cell phone or camera has the ability to
record video, use it. Make a video of the accident scene up close and from a distance, including the
location of traffic signs, crosswalks, and so forth. Also be sure to write down the names of police
officers so it will be easier to get copies of their reports.

Never overlook the importance of seeking immediate medical attention. The whiplash motion caused
by car accidents can produce injuries the victim may not notice at first, but that become more
pronounced as time passes. As a potential plaintiff in a negligence case, you do not want the other
drivers attorney to belittle the severity of your injuries, based on the fact that you did not feel it
necessary to seek treatment right away.

Of everything that can be done after a car accident to preserve a victims right to compensation,
contacting a personal injury lawyer will have the greatest impact. Without the assistance of counsel,
you will be alone and vulnerable to the tactics of the opposing sides insurance company. The
adjuster may pressure you to accept an unfair settlement, or to waive other rights. Before signing
anything, be sure to consult an attorney.