Everyone has heard of the infamous McDonald's’ hot coffee case and Erin Brockovich. But most people still don’t know the four basic elements of negligence law, also called “personal injury law”. All four elements must be proven by the plaintiff (the injured person) to establish negligence against the defendant (the wrongdoer) to recover damages for the plaintiff’s harm. The basic concepts are straightforward, even though most people do not learn about them unless they go the law school.

Element One, Duty:

The first element of “duty”, simply put, means that the defendant had an obligation, standard of care, or “duty”, to act in a reasonable, prudent, and safe manner towards the Plaintiff and to not cause them harm. For example, a driver of a car owes a duty to other drivers and pedestrians on the roadway to operate their vehicle safely and to obey traffic laws.

Element Two, Breach:

A plaintiff must next show that the defendant violated or “breached” their duty to act in a reasonable, safe, and prudent manner. For example, a driver who speeds 90 miles per hour down the highway, with their headlights off, in the middle of the night has “breached” their duty to other drivers to safely operate their car.

Element Three, Causation:

The plaintiff must also show that they were harmed because of the Plaintiff’s breach of duty. California’s jury instructions phrases the requirement this way, “the defendant’s negligence was a substantial factor in causing plaintiff’s harm.” A rear-end car accident may easily “cause” whiplash, neck pain, and a broken bumper.

Element Four, Damages:

Lastly, the plaintiff must establish that they were harmed or “damaged” as a result of the defendant’s negligence. In personal injury law, damages include lost income, mental and physical pain and suffering, and medical expenses and care.

These four rules of negligence can be applied to any situation, such as car accidents, bike accidents, or a slip and fall at a store.

To illustrate the basic elements of negligence, take the case of Mike and his professional landscaper, Jared. Mike has persistent low-back pain and regularly hires Jared to mow his grass. On 4/20/2017, Jared arrives at Mike’s house in Santa Cruz under the influence of marijuana. Shortly afterwards, Jared runs over Mike with his ride-on lawn mower while Jared is distracted. As a result, Mike receives lacerations, misses one-week of work, has large medical bills, and has a new fear of heavy machinery. He continues to have low-back pain.

Mike has a nice case of negligence against his landscaper, Jared. Jared owed a duty and standard of care to his customers, including Mike, to safely operate his landscaping equipment. Jared breached that duty when he operated the mower while intoxicated. Mike received cuts and wounds in the accident which were clearly caused by being run over, resulting in medical bills and lost work. However, Mike had existing back pain before the accident occurred and therefore, Jared may successfully argue that he did not cause harm to Mike’s back. Mike may seek damages from Jared in the form of money for missed work, his medical bills, and importantly for the physical and mental pain and suffering caused by the trauma of being run over.

Don’t be fooled; in California, there are hundreds of nuances, exceptions, and special laws that apply to each of these four basic elements. Personal injury law is complex. However, the basic principles should be understood by the general public.

Have you been injured in Santa Cruz or Monterey County as a result of someone’s negligence? Contact the Law Office of Brian Mathias.

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After an auto accident, thankfully, most people know to stop, check for injuries, pull safely off the roadway, and exchange insurance information. Here are the top 5 overlooked things to do after an auto accident involving non-serious injuries.

1. Call the Cops and Get a Police Report

If you are involved in a small car accident, it may be tempting to simply move on and not call the cops, even if you are slightly injured. But think twice. Not calling the cops is a big mistake if you ever want to collect monetary damages for missed work, doctors bills, and pain and suffering.

A police officer, including the Highway Patrol, will make a police report, called a “Traffic Collision Report” if called to the scene. This police report will contain important contemporaneous observations and notes about the accident, including which driver caused the accident. A favorable police report will generally be given a great amount of credibility by insurance companies and generate a more favorable settlement.

If you fail to call the police and get a report, the only other witness to the accident will be the other driver. When this occurs insurance companies will make every attempt to contest liability and argue that you caused the accident. This is can be avoided by calling the cops after an accident.

2. Take Good Photos

You should always take high-quality photographs at the accident scene. These photos should accurately depict the damage done to both cars, the scene of the accident, and the weather and time of day. You don’t need a fancy camera; good photos taken with your iPhone/smartphone will do just fine.

Importantly, take the time to take a good quality photo that actually depicts the damage done to the cars. Adjust the zoom, hold still, use the flash if necessary. Take the time to capture a good photograph before you leave. It is difficult to capture the size of a dent—even a big dent—on a newer model car.

If you take bad photographs that downplay the level of damage done to your car, insurance companies will use them as evidence to argue the accident was minor and that you could not have possibly been injured.

3. Go to the Doctor Right Away if you are Injured

If you are injured, do not wait a long to go to the doctor. Go to a doctor, preferably your regular treating physician, if you are in pain.

Auto accident victims are often reluctant to go to the doctor even when they are in excruciating pain. This may be from a concern over cost or simply a belief that a doctor cannot fix their pain. However, if you do not go to the doctor after an auto accident, that fact will be used against you by insurance companies to argue that you were never actually injured.

Additionally, a doctor’s timely diagnosis of your pain, and linking that pain to the accident (called “causation”) is critical to obtaining a favorable personal injury settlement.

4. Be a Good Patient

Being a good patient is critical to obtaining a favorable personal injury settlement from any type of car accident or motorcycle accident. This means that you should listen to your doctors and medical providers and implement their instructions.

If you are prescribed physical therapy after a car accident, make sure you do any at-home exercises assigned by the physical therapist. If your treating physician tells you to come back for another appointment in two weeks if you are still in pain, do exactly that.

Also provide your medical providers with accurate information about your symptoms. Don’t report that you have a pain level of 4 on a scale of 1-to-10 if you actually are living in agony and actually experiencing an 8 out of 10.

Juries, judges, and insurance companies are more likely to give more money to good patients.

5. Don’t Wait Too Long to Take Action

As a general rule, personal injury cases, including car and motorcycle cases, have a legal deadline, called a “statute of limitations”, beginning from the date of the accident. (California Code of Civil Procedure 335.1.) This means that you have two years to file a lawsuit to preserve any legal claims against the responsible party.

Too often, self-represented car accident victims wait until the last minute to contact an attorney or to take legal action. Shopping for an attorney itself will take time. Additionally, most attorneys will want to conduct an informal investigation before officially signing up a client, which also takes time.

If you are at all interested in getting an attorney to help you, do so quickly after the accident.

Were you injured in an auto or motorcycle accident? Call the Law Office of Brian Mathias for a consultation.