As you learned in Torts 101, a personal injury case is based on the defendant’s negligence. The defendant failed to act with ordinary and reasonable care, which caused a foreseeable injury. In addition to foreseeability, in order to prevail in a lawsuit based on negligence, certain circumstances (known as “elements”) must be present. If you fail to prove the existence of any one element of the claim, you will lose your case.
Element One- Duty of Care: The first thing you must prove is that the defendant had a duty of care, which is a legal obligation to undertake reasonable care while performing any acts that could foreseeably harm others. A general duty of care is imposed by operation of law, which means that we are all required to behave in a responsible manner to ensure that our acts (or failures to act) do not harm anyone else. A simple example would be reckless driving. If you speed down a residential street, you may run into someone, and if you do, you’ll be liable for their injuries.
Element Two- Breach of Duty: In addition to proving that a duty of care exists, you must also show that the defendant breached that duty. Usually this is relatively simple, but not always. For example, your defendant has duty to drive carefully, and drove like a maniac down your street and caused an accident. But if his speed was due to a defect in his car’s acceleration pedal, then he did not breach that duty.
Element Three- Causation: You must also show that the defendants act or omission were the direct cause of the injury. Although the notion sounds simple, whether someone’s breach of duty caused the harm complained of can at times be very complicated. The basic test is to ask whether the injury would have occurred but for (or without) the defendant’s breach of his duty. If a defendant was speeding down your street and hit you and broke your leg, the connection is simple. But if he was storing toxic chemicals that leaked into your well and you were later diagnosed with cancer, proving that the leak caused the cancer can be very difficult.
Element Four- Harm: To prove the existence of this element, you must prove that you suffered a particular type of injury that entitles you to compensation. If you’re physically injured in an accident, you need to show that you were examined by a doctor and had to pay medical bills. If you weren’t physically harmed, you need to show that the defendant’s action caused you a monetary loss. For example, his speeding car nearly hit you and then smashed into your parked car. In that case, you were harmed because you had to pay to repair it, and may have lost money because you had to rent a replacement.
Your harm may not necessarily be physical or economic. For example, in a defamation case, a defendant might have harmed your reputation. In some cases, that is also an actionable injury Other types of torts include false imprisonment, defamation, product liability, copyright infringement, and environmental pollution (toxic torts).