Brain Injury Attorney Blog

Negligence is the breach of duty of care owed to the plaintiff by the defendant. Generally, under common law, there is no duty to act. An affirmative duty to act exists only if created by statute, contract, relationship, status, property interest, or some other special circumstance.

In order to recover in any negligence action, the plaintiff must show: 1. a duty of care owed by the defendant to the plaintiff; 2. a breach of duty by a negligent act or omission; and 3. damages proximately resulting from the breach.

1. A duty of care is that standard of conduct the law requires of an actor in order to protect others against the risk of harm from his actions. It embodies the principle that the plaintiff should not be called to suffer a harm to his person or property which is foreseeable and which can be avoided by the defendant's exercise of reasonable care. The duty to act may rise from statute, contract, relationship, status, property interest, or some other special circumstance. In order for there to be a duty of care based on a statute, the plaintiff must show: 1. that the essential purpose of the statute is to protect from the kind of harm the plaintiff has suffered; and 2. that he/she is a member of the class of persons the statute is intended to protect. For example, dram shop liability is based on statutory duties imposed on establishments licensed to sell alcoholic beverages that prohibit them from serving minors or intoxicated persons. Other duties arise from the relationship between parties as in negligent misrepresentation where the defendant possesses expertise or special knowledge that would ordinarily make it reasonable for the plaintiff to rely on the defendant, and the defendant has a pecuniary interest in a transaction between the parties. Premises liability is a tort in which the duty is dependent on the status of the plaintiff. A defendant, for example, owes an invitee a duty of due care to discover risks and take safety precautions to warn or eliminate unreasonable risks within the area of invitation. The duty owed to a licensee is to use reasonable care to discover and avoid injury to him or her and to use reasonable care to warn against any concealed dangerous conditions or activities known to the possessor, or any change in the condition of the premises which may be dangerous, and which the licensee may reasonably be not expected to discover. A possessor of property owes no duty to a trespasser except to do no willful or wanton injury.

2. Generally in a negligence action the plaintiff must show the defendant did not use the amount of care on ordinarily would have under the circumstances. If the plaintiff shows a duty arising from a statute and that the defendant violated a statute, the element is met by proof of negligence per se. A violation of an administrative regulation may also constitute negligence per se. In a medical malpractice action, the plaintiff must show that the defendant departed from the recognized and generally accepted standards, practices and procedures. The defendant's failure to conform to that standard must generally be shown by expert testimony unless the subject matter is within common knowledge and experience.

For a plaintiff to recover for injuries caused by a dangerous or defective condition on the defendant's premises it must be shown that: 1. a specific act of the defendant created the condition; 2. the defendant had actual knowledge of the condition; or 3. the defendant had constructive knowledge of the condition.

In "slip and fall cases," which many premises liability actions are, constructive notice is shown by proving a foreign substance had been on the floor for a sufficient time to be discovered and removed in the exercise of ordinary care.

3. The plaintiff must show the breach of duty was the proximate cause of the injury. A plaintiff is not, however, required to prove that the defendant's negligence was the sole proximate cause of the injury. The South Carolina Supreme Court has said: Proximate cause requires proof of 1. causation in fact and 2. legal cause.

Unless the evidence shows reasonable persons could not disagree, the question of proximate cause is one for the jury.