Negligence

What must you prove to win your case?

In New Jersey, the mere happening of an accident that causes injuries is not, by itself, sufficient to allow a plaintiff to “infer” negligence – which is a fact which must be shown and not presumed. Hansen v. Eagle-Pitcher Lead Co., 8 N.J. 133, 139 (1951). There is, in fact, a presumption against inferring negligence. Id. This means, courts don’t do it.

In most personal injury lawsuits, the plaintiff has the burden of proof to establish that the defendant was negligent and that the defendant’s negligence was the direct cause of the plaintiff’s injuries. But, what is negligence?

The Model Civil Jury Charges for negligence and ordinary care defines negligence as, “a failure to exercise, in the given circumstances, that degree of care for the safety of others, which a person of ordinary prudence would exercise under similar circumstances. It may be the doing of an act which the ordinary prudent person would not have done, or the failure to do that which the ordinary prudent person would have done, under the circumstances then existing.” NJ CV JI 5.10A(1).

To prevail on a claim of negligence, a plaintiff must establish four elements:

• (1) that the defendant owed a duty of care;
• (2) that the defendant breached that duty;
• (3) actual and proximate causation; and
• (4) damages.

Fernandes v. DAR Dev. Corp., Inc., 222 N.J. 390, 403-404 (2015); Townsend v. Pierre, 221 N.J. 36, 51 (2015) (citing Polzo v. Cnty. of Essex, 196 N.J. 569, 584 (2008)).

A plaintiff must set for forth “competent proof” when meeting these elements. Townsend, 221 N.J. at 51; See Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 406 (2014) (citing Buckelew v. Grossbard, 87 N.J. 512, 525 (1981); Overby v. Union Laundry Co., 28 N.J. Super. 100, 104, (App.Div.1953), aff'd o.b., 14 N.J. 526, (1954)).

Determining the scope of tort liability has traditionally been the responsibility of the courts. Kelly v. Gwinnell, 96 N.J. 538, 552, 476 A.2d 1219 (1984). The actual imposition of a duty of care and the formulation of standards defining such a duty derive from whether the imposition of such a duty satisfies an abiding sense of basic fairness under all of the circumstances in light of considerations of public policy. Goldberg v. Housing Authority of Newark, 38 N.J. 578, 583, 186 A.2d 291 (1962). “The analysis leading to the imposition of a duty of reasonable care is “both fact-specific and principled….” Alloway v. Bradlees, Inc., 157 N.J. 221, 230, 723 A.2d 960; Id. This analysis must also “lead to solutions that properly and fairly resolve the specific case and generate intelligible and sensible rules to govern future conduct." Hopkins v. Fox and Lazo Realtors, 132 N.J. 426, 439, 625 A.2d 1110 (1993). The Courts will impose a duty where foreseeable events posing a risk of harm necessitate that a duty of due care be imposed on those able to prevent the harm.

In J.S. v. R.T.H., 155 N.J. 330 (1998), the New Jersey Supreme Court explained:

Foreseeability of the risk of harm is the foundational element in the determination of whether a duty exists. The ability to foresee injury to a potential plaintiff is crucial in determining whether a duty should be imposed. Id. at 337-38. (citations and quotations omitted).

The scope of the duty is "determined by the 'totality of the circumstances.'" Thorne v. Miller, 317 N.J. Super. 554, 560 (Law Div. 1998). "Factors used to determine the scope of a duty include the risk of harm and practicality of preventing it, and where the relevant behavior is easy to correct and the consequential harm serious, it is fair to impose a duty." Thorne, 317 N.J. Super at 560-61. In Siddons v. Cook, 382 N.J. Super. 1 (App. Div. 2005), the Court observed:

Duty is not a rigid concept; it adjusts to the changing social relations of society. To determine if a duty exists, we examine the totality of the circumstances. When the defendant's actions are relatively easily corrected and the harm sought to be prevented is serious, it is fair to impose a duty. Id. at 8. (citations and quotations omitted).

If you have been injured in an accident contact us for a consultation. We will sit down with you free of charge to review your case and help answer if another party owed you a duty of care to ensure your safety. And if so, whether that same party breached its duty and was negligent.

Can you be found responsible for your own accident?

Absolutely. A basic notion of our law is that, generally, a tortfeasor should be liable for only the harm she actually caused to the plaintiff. Scafidi v. Seiler, 119 N.J. 93, 112-113. In cases where a plaintiff is responsible, in whole or in part, for the harm or injury she suffers, the doctrines of comparative negligence, avoidable consequences, or superseding/intervening causation may serve to absolve a defendant of liability or limit her damages. See Ostrowski v. Azzara, 111 N.J. 429, 436-438 (discussing elements of comparative negligence and avoidable consequences); Cowan v. Doering, 111 N.J. 451, 465 (stating that defendant has no liability if there is intervening act that breaks chain of causation).