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Proving a Personal Injury Means Proving Negligence?

Michael Ehline U.S. Supreme Court.
Attorney Michael Ehline. The Motorcycle Rider's friend.

Another FAQ we are asked, is how do you prove your case to a court? Well, in a nutshell, when a person acts carelessly, and another person becomes harmed, the law calls this the tort of "negligence." So you basically have to prove that the elements of negligence exist. Getting this so far? Modernly, when bodily harm is suffered, lawyers will bring a claim for the victim under "personal injury law."

IMPORTANT: ELFPI helps personal injury victims, so this tutorial is focused more on negligence involving bodily harm as opposed to negligence causing property damage, for example. But the same principles apply.

Here, when a victim suffers emotional or personal harm, he or she can recover money damages for their loss in a settlement demand or lawsuit. The prevailing party or "plaintiff" to the suit is also known as the injured party.

  • To win, you the plaintiff, must demonstrate that actions or lack of action by the defendant legally caused recognizable harm.


Below we will break down the tort of negligence, define it and discuss it for your benefit.

  • Of note, visible physical injuries are not the only conduit required for an actionable personal injury case.
  • A bodily injury could include the emotional distress of a fraud or defamation claim, for example.
  • Even the expectation of harm from an assault is enough to bring on a PTSD claim.
So it's not just tangible, obvious bruises, sprains or cuts from bicycle or motorcycle accidents that harm us. Even emotional hardships can also form the basis of your compensatory damages amount. 
After all, this likely was the basis of lost wages, medical bills, etc. Assuming this happened, you have a personal injury claim created under CA law.

So your legal injuries might include emotional, reputational or economic injuries. In fact, privacy, property, or constitutional rights violations can also be torts.

Torts may also encompass:

Modernly, environmental pollution cases (also known as toxic torts) are also torts tried under negligence law. Of course, many torts are the result of negligence. But California tort law includes intentional torts as separate and distinct from negligent torts.

Intentional torts occur when a person intentionally acts in a way that harms another. Beyond this are product and common carrier liability claims falling under "strict liability."

Are Negligence Damages Ever Presumed?

Yes. Under negligence per se principles there is a rebuttable presumption that plaintiff was negligent. So under these cases, damages are presumed as a matter of law.

  • What are Some Differences Between Negligence Law and Criminal Law?

Tort law differs from the criminal law, because:

  • Torts include negligent as well as intentional or criminal actions with no jail time.
  • Tort lawsuits have a lower burden of proof. In a tort case, the lower preponderance of evidence standard is used. (Read more about Preponderance of Evidence Here.)
  • In a criminal case, the more difficult beyond a reasonable doubt standard is utilized.

EXAMPLE: There may still be criminal repercussions for a tort defendant who wins a tort case. A DUI hit and run case is a good example. There are crimes and torts here.

  • Criminal Penalty Distinguished from Civil Liability:

In a civil case, money and maybe injunctive relief if your general remedy. But a crime's penalties can include:

  • Restitution
  • Time behind bars
  • MADD meetings
  • Probation
  • Caltrans trash pick up, etc.

Also, a party can still win their civil personal injury case against a defendant who wins in criminal court. A recent example would be the O. J. Simpson case. O.J. was acquitted in his criminal trial of double murder. But he lost his wrongful death tort lawsuit. See how it is distinguished now?

How Do You Prove the Tort of Negligence?

In law school, lawyers are trained that negligence is comprised of several elements. These include duty, breach of duty, actual cause, proximate cause, and damages. (United States Liab. Ins. Co. v. Haidinger-Hayes, Inc. (1970) 1 Cal.3d 586, 594; Romito v. Red Plastic Co. (1995) 38 Cal.App.4th 59.) But under Civil Code Section 1714, actual cause and proximate cause are the same thing. This is called the "substantial factor" test.

  • Premises Liability Legal Standard Distinguished

Ordinary care is the duty to be proven in a case like this, unless there is a waiver or some exception like assumption of the risk. But here, even a criminal trespasser has legal standing to sue.

“Everyone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself or herself.” (Civil Code Section 1714; See also CACI Section 400).

So “‘The elements of a cause of action for negligence are well-established. They are “(a) a legal duty to use due care; (b) a breach of such legal duty; [and] (c) the breach as the proximate or legal cause of the resulting injury.”’ (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917 [50 Cal.Rptr.2d 309, 911 P.2d 496].)

Let's break these elements down to help the adjuster, you and the jury understand.

  • Legal Duty: A legal duty has to do with everyone's duty as a citizen to act reasonably towards any potential plaintiff. Some people owe a special duty, and others owe a regular duty of care.

Examples of those owing a special duty are:

  • Common carriers
  • Doctors
  • Lawyers and licensed experts such as psychologists

A motor vehicle operator of a passenger car owes a:

  • General duty. But if he or she hires out with Uber or Lyft, they owe a special duty. Making sense so far?
    • In a general duty situation, no personal relationship is required. So if a defendant accidentally discharges a gun, and someone dies far away, the shooter remains liable for the death or injuries under ordinary negligence principles. There was no special duty unless for example, your firearms instructor gives you bad training and you shoot yourself. Then you may have been owed a special duty. Get it?

  • Breach of Duty: California law makes clear that if someone is harmed after a person fails to act with "want of ordinary care," there is a breach of duty. Think about liquid on the floor at the vegetable and fruit aisle of a grocery store. Ordinary care would require the grocer to assume the floor would be wet. So if reasonable inspections were not conducted, someone would likely slip and fall. Getting this?

Substantial Factor Test (Actual and Proximate Cause):

Modernly, in California, actual and proximate cause is merged to simply mean was the conduct, or failure to act a substantial factor plaintiff’s harm?

Basically, with few exceptions, an inattentive driver who veers into the bike lane and runs over a bicyclist caused an unsafe event. So clearly, it was a substantial factor in maiming or killing the cyclist.

  • Actual Damages - Damages interestingly enough can mean two things. First, it means the harm. But most personal injury lawyers and courts also refer to the damages award, as "damages" too. So I am calling this "actual damages" so as not to blur the lines. Simply put, any emotional, physical harm/death is the actual damages. General damages include intangible losses like pain and suffering, not just a cut or broken bone.

When this is present, an adjuster, jury or court may award compensatory damages to a plaintiff, or the survivors of the negligent act. Obviously, money can't solve what happened in the past. But there is no "pound of flesh" available to personal injury victims these days.

Under English Common law it was different. Now, it's all about money. But a financial award helps the suffering person manage their bills and stay afloat as they heal up and achieve some improvement. This includes the enormous impact of financial costs like getting food on the table as people recover.

Last but not least, a damages award holds those responsible accountable for the life-changing consequences of sustaining the injury. Once paid, the defendant has compensated the claimant, and the civil matter is settled as a matter of law.

  • Who is the Plaintiff?

The injured party is the plaintiff.

  • How Do You Distinguish Intentional Torts?

Intentional torts are when someone hits you, or runs you over on purpose with a car, for example. These torts completely differ and virtually act as the antonym of intentional torts. Intentional torts are distinguishable because the defendant has the knowledge and intention of what he’s doing.

But sometimes, the person may have accidentally punched you due to sleepwalking or not being aware, for example. So in this type of tort, the defendant might not have had any intentions of violating their duty. But negligence might still result. But lawyers must prove the following elements as evidence against the accused at trial.

Standard Of Care

The standard of care is the expectation from a party regarding care that the party must show so to stay away from the liability of negligence. The defendant should act within these boundaries. That is what a normal and sane person does in these circumstances.

Standard of care is not considered as strict liability. Whatever the defendant has done is compared to what a prudent person would do in normal circumstances.

Duty Of Care

This is the duty on the defendant who must prevent unreasonable risks and harm to the plaintiff. The effect of the transaction on the plaintiff, future prevention policy, suffering and injury of the plaintiff, expected harm are considered. So it the conduct of the defendant and its connection with the harm caused. Also looked at is moral liability of the defendant. So these are all factors looked at as your duty of reasonable care.

Breach Of Duty

When the conduct of the defendant shows that he breached the standards of care and duty, breach of duty is proved. It too is compared with how a reasonable person would have acted and behaved if he was in the same situation.

  • How unreasonable the conduct of the defendant was at the time of the happening gives a measure of the risks that must have been forestalled or foreseen.
  • What happened after and what risk was that the plaintiff exposed to after the conduct of the defendant, are generally not to be considered.

Cause In Fact

It is most important for the plaintiff to prove that the harm caused were due to the conduct of the defendant. There must be a connection, or the cause in fact is not proven.

Proof of Breach

This is a method used in order to prove that the harm caused by the conduct of the defendant was against or in conflict with the established customs. This is not that hard to prove if other elements are present.

Proximate Cause

When the injury is not considered remote, it is said that the injury could have been foreseen by the defendant’s actions. This is called the "proximate cause."

  • The main factor in question here is foreseeability.
  • The defendant is held responsible/liable for the harm potentially foreseen at the time of the neglectful conduct as the cognitive effects of the breach.


Even if all the above elements are present, unless there is appreciable, viable harm to a victim, there is no case.  Damages are reduced to monetary payments, as opposed to jail or violent retribution.  They must be foreseeable, certain and unavoidable.

Negligence damages fall into several categories as follows:

  1. Special damages are economic damages, such as medical bills, like ambulance or hospital bills.
  2. General Damages.
  3. Punitive or "Punishment" Damages.

Special Damages

Special damages also include damages for future nursing care and prescription drugs to name a few. Special damages also include property damage for a total loss of a vehicle and for lost past wages, and lost future wages. Special damages also include past, present and future lost wages.

General Damages

General damages include money damages for physical and mental pain and suffering.

Punitive Damages

Punitive damages are sometimes available for reckless and intentional conduct to punish the evil-doer. These damages must be deemed reasonable and necessary.

Other Damages Issues

  • Mitigation of Damages

A car accident victim cannot be unreasonable and mustn't overtreat and cause more medical bills. This is especially a hotly contested issue in soft tissue cases.

This is because an injury victim suffers primarily subjective injuries. Even though soft tissue cases can be significant, they may not be seen as objective injuries such as those that could be seen in an MRI, cat-scan or x-ray.

Above we discussed the tort of negligence takes place when a party has to act according to his duty of care. But then he or she violates the obligation by either doing an action or not doing one.

When the duty is not performed or is violated, and another party harmed you, their duty was breached. We also broke down the elements for a layperson to understand. The good news for those suffering, is that there is a legislative scheme in place to protect people harmed from negligence.

California negligence law enables people to garner compensatory damages for the losses stated above. If you have more questions, call us at (213) 596-9642.

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