When “Negligence” Isn’t Just Negligence

Most personal injury actions are based on theories of negligence — that is, allegations that the tortfeasor breached a duty to the plaintiff and the plaintiff suffered damages as a result of that breach. This is different from intentional conduct, in which the tortfeasor intends to cause harm to the plaintiff. But “negligence” is a broad category of litigation, and plaintiffs in negligence actions often craft unique theories on how the doctrine of negligence applies to the facts of their specific cases. As such, defendants in personal injury actions should familiarize themselves with the various negligence theories plaintiffs use, and a North Carolina personal injury defense attorney can help. 

Ordinary Negligence 

Ordinary negligence is, to put it simply, classic negligence. It refers to scenarios in which one party fails to exercise the degree of care that a reasonably prudent person would and unintentionally causes harm to another person. Generally, the most common types of personal injury actions, such as car accident and premises liability claims, are based on theories of ordinary negligence.

There are four elements of negligence: 

1. Duty: The defendant owed a duty of care to the plaintiff — either an obligation to act or refrain from acting — to avoid an unreasonable risk of harm. 
2. Breach: The defendant breached that duty by failing to act (or refrain from acting) as a reasonably prudent person would under the same or similar circumstances. 
3. Causation: The plaintiff’s harm would not have occurred but for the defendant’s act or omission (actual cause), and the harm was a reasonably foreseeable result of the defendant’s act or omission (proximate cause)
4. Damages: The plaintiff suffered harm (e.g., physical, financial, and/or emotional) as a result of the defendant’s breach. 

Readers should note that these four elements apply to all negligence theories, but find their clearest expression for the purposes of illustration in ordinary negligence claims. 

Gross Negligence 

Gross negligence is a more serious form of negligence than ordinary negligence, falling somewhere between ordinary negligence and intentional conduct. While it still requires the plaintiff to prove all four of the elements above, it also requires a showing that the defendant’s conduct was “willful or wanton” or evinced a reckless disregard for the rights and safety of others. The North Carolina Supreme Court has characterized it as “deliberate misconduct affecting the safety of others.” A defendant who causes injury by driving 60 miles per hour in a residential area is a good example of gross negligence. 

Allegations of gross negligence can be particularly serious for defendants for two reasons. First, gross negligence overrides the contributory negligence defense, under which plaintiffs are barred from recovering damages if they were also at fault for their injuries. The contributory negligence doctrine is one of the most effective defenses in personal injury claims in North Carolina. Second, a showing of gross negligence can expose the defendant to the risk of punitive damages, which go above and beyond those designed to compensate the plaintiff and are intended to punish the defendant. 

If you’re facing allegations of gross negligence, you should consider seeking the counsel of a North Carolina personal injury defense attorney. 

Negligence Per Se

As we’ve established, plaintiffs in personal injury cases must prove each and every element of negligence by a preponderance of the evidence to recover damages. Proving breach is often a challenge for plaintiffs, as reasonable minds can differ as to what constitutes “reasonably prudent” behavior in the same or similar circumstances and whether the defendant’s conduct was in line therewith. Proving breach becomes much easier where the plaintiff alleges negligence per se — a theory in which the plaintiff shows breach by demonstrating that the defendant violated a law or statute designed to protect the public. Under this theory, the violation of the law or statute itself is the breach. For example, a plaintiff might try to show negligence per se by presenting evidence that the defendant was driving on a suspended license. 

Professional Negligence 

Thus far, the types of negligence we’ve covered generally have applied to parties who are in relatively equal positions to each other. But what about situations in which the parties aren’t in equal positions — say, situations in which one party owes a fiduciary duty to the other, such as in doctor-patient and attorney-client relationships? In professional negligence claims, such as medical malpractice claims, the plaintiff argues that the defendant’s conduct fell below the accepted standard of care in the relevant field. This is a different (and higher) standard than the “reasonably prudent person” standard used in non-professional negligence claims. While proving the relevant standard of care and that the defendant’s conduct fell below it is a high bar for plaintiffs, professional negligence claims can have devastating consequences for their targets. If you’re facing a professional negligence claim, you should consider speaking to a North Carolina personal injury defense attorney. 

Inference of Negligence

The general rule is that plaintiffs must prove negligence by a preponderance of the evidence. But what about in situations where there is no direct evidence of wrongdoing, but it is still obvious that wrongdoing occurred? Can the plaintiff still recover? In some cases, yes, using the theory of res ipsa loquitur (“the thing speaks for itself”). A plaintiff can establish a rebuttable inference of negligence under the doctrine of res ipsa by showing: 

1. The incident is not the type that ordinarily occurs in the absence of negligence 
2. The instrumentality or condition was under the exclusive control of the defendant
3. The plaintiff did not contribute to the injury 

Common examples of situations in which a plaintiff might rely on res ipsa could include an elevator that drops due to mechanical failure, a foreign object found in food, or a surgical tool left inside a patient after surgery.

Mount an Effective Defense Against Negligence Claims With Help From a North Carolina Personal Injury Defense Attorney 

If you’re facing a personal injury claim, regardless of the type of negligence alleged, you should seek the counsel of an experienced attorney to protect your interests. To get started, please contact a North Carolina personal injury defense attorney at Harris, Creech, Ward & Blackerby by calling 252-638-6666 or using our online contact form.