Most personal injury claims are based on negligence. At base, negligence is the failure to use reasonable care, which ends up hurting someone. There are some common examples, including a driver who is speeding or who gets behind the wheel while intoxicated.
Proving negligence in personal injury claims is complicated. You will need strong evidence that allows us to recreate what happened so that there is no doubt about who is to blame for the accident. Call Michael J. Lichner today to speak with a Will County personal injury lawyer in a free case evaluation.
Four Elements of Negligence
In Illinois, negligence has four elements. We need evidence to prove:
- Duty. To sue a defendant, they must owe you a duty to act carefully. Sometimes, this duty arises by contract, but in most cases, it arises due to physical proximity. A motorist must drive with sufficient care so that they don’t injure other motorists and pedestrians near them.
- Breach of the duty. A defendant breaches their duty of reasonable care when they act carelessly. They either perform an act without sufficient care or fail to do something that a reasonably careful person would do. Whether a defendant breached their duty is often in dispute. The standard is objective—how would a reasonably careful person in the community have acted in similar circumstances?
- Causation. The defendant’s breach must have caused whatever injuries or financial losses you are claiming. For example, someone could be tearing down the road at 100 miles per hour, but they never come anywhere near you or crash into you. Although they have acted dangerously, they didn’t directly cause any damage. We need to connect the breach to your damages.
- Damages. This is the final element. A victim needs to show they have suffered legally recognizable damages. Often, damages are financial. Medical care for bodily injuries or lost income as you recover are financial damages. Other damages include pain and suffering.
Proving negligence requires establishing all four elements. Our firm uses different pieces of evidence, depending on the facts.
Negligence “Per Se”
Illinois law also recognizes negligence “per se.” A defendant commits negligence per se when they violate a law or ordinance which is designed to protect people. A leash law is a classic example.
Cities require that dog owners put a leash on their dogs to protect the public. An animal that is leashed is easier to restrain.
If a dog owner lets their animal run free, then he has been negligent “per se” for violating the safety ordinance.
Not every violation of a law or ordinance will qualify as negligence per se. As the courts emphasize, the victim must be in the class of people the ordinance was designed to protect. And the defendant’s unexcused violation must have created a harm the ordinance was designed to reduce or eliminate.
Even if you establish negligence per se, you still need to prove the final two elements—causation and damages. Someone could break the law while driving but never hit you or force you off the road.
In that case, you will not have a successful negligence claim for failure to prove damages and causation.
What Evidence is Useful for Proving Negligence?
Proving negligence requires high-quality evidence. If everything is murky and no one knows what happened, then it’s hard to win a personal injury case. Our firm often looks to the following evidence when proving negligence:
- Your memories. You survived the accident and can tell us what happened. Of course, the other side will probably claim you are telling a story slanted to make you look like a victim. For that reason, it’s helpful to have additional evidence that backs up your story. But your memories serve as a useful starting point.
- Witness statements. Third-party witnesses are ideal. These people aren’t related to you but saw the accident. In a slip-and-fall case, the witnesses could be other shoppers.
- Video of the incident. The rise of cell phones has increased the likelihood an accident is recorded. Any accident in a store might have been recorded on security cameras. Dashcams also record many car wrecks. Video can often provide clear proof of who is at fault for your accident.
- The defendant’s statements. Any statement a defendant makes can be introduced later to prove fault. A negligent driver might admit they were looking at their phone or speeding.
- Medical records. A negligence victim also must prove their damages, including bodily injuries. We can gather medical records to establish the severity of your injuries following an accident.
- Proof of economic loss. We also collect evidence to show the economic losses you have suffered, including lost wages or medical bills.
Call our office to get started. Proving negligence requires gathering and keeping safe critical pieces of evidence.
Disproving Comparative Negligence
Sometimes, both sides in a personal injury claim were negligent. Think of a store that did not properly remove ice from the sidewalk in front of the entrance. The store has been negligent. At the same time, a customer with their nose in their phone does not see the ice, so they slip. In this example, both sides have been careless.
Illinois has a contributory negligence law, 735 ILCS 5/2-1116. The law is not very friendly to plaintiffs. If you are more than 50% at fault for the accident, then you are barred from receiving any compensation. That means $0, even if you were gravely injured.
And if your share of fault is 50% or less, then your compensation is reduced by a like percentage.
Someone who was 35% at fault will get 35% less.
Claims of comparative negligence are common. Our job as your personal injury lawyer is to push back on claims that your negligence contributed in any way to an accident.
Contact Us Today
A Joliet personal injury lawyer is standing by to help anyone hurt due to another person’s negligence. You can count on Michael J. Lichner to leave no stone unturned as we search for evidence to use in your case. Call us to schedule a free case evaluation.