What is a negligence claim?

Ohio State Bar Association

Ohio State Bar Association

Q: What is a negligence claim?

A: A negligence claim is a civil lawsuit that a person (the “plaintiff”) can file in court against a person (the “defendant”) who has caused harm by failing to take the degree of care that an ordinarily careful and reasonable person would take under the same or similar circumstances. Basically, negligence law compares the defendant to a “reasonable person.” It is up to the jury to determine what a “reasonable person” would do in a similar situation. If the defendant falls below this “reasonable person” standard, the plaintiff may recover damages for the defendant’s negligence.

Q: If someone hits my car while driving through a red light at an intersection, what does the law say about how long I can wait before I bring a lawsuit?

A: In Ohio, there is a four-year statute of limitations for negligence actions. This means you have four years from the date of the injury to sue in court.

Q: What must I prove to show negligence in court?

A: To recover on a negligence claim, you must prove that: 1) the defendant owed you a “duty of care”; 2) the defendant “breached” that duty, 3) the breach of the duty was the “proximate cause of your injury”; and 4) damages.

“Duty of care” is the “reasonable care” standard the defendant should have met when doing something that might possibly harm others.

“Breaching the duty” means the defendant failed to live up to the standard of care.

“Proximate cause” is a legal term meaning that the plaintiff’s injury resulted naturally and directly from the defendant’s action, and that injury would not have occurred without that action. Proximate cause is the primary cause of an injury, though not necessarily the closest cause in time or space, or even the first event leading to an injury. This is an issue when a chain of events results in an accident or injury. Whether or not the defendant is liable for negligence may depend on whether the defendant should have been aware of the risk that injury might result.

“Damages” may involve either personal injury or property damage or both.

Q: If someone sues me for negligence, how might my attorney defend me?

A: There are a number of defenses your attorney may use, including the following:

· Comparative Negligence: While you may have been negligent, the plaintiff may also have been negligen.t If the plaintiff was also negligent, your liability as the defendant is reduced. Ohio law says that, if a plaintiff is found to be more than 50 percent negligent, then the plaintiff cannot recover any damages from the defendant. If the plaintiff is less than 50 percent at fault for the incident, then the plaintiff’s recovery of money for damages is simply reduced by the “amount” (percentage) of fault. Let’s say, for example, that you failed to stop in time to prevent an accident because you were texting, but the other driver ran a red light and was injured. The jury might find you were partially negligent. If the jury found you were 40 percent at fault for the accident, the plaintiff (the injured driver) could recover only 60 percent of the potential damages.

· Assumption of risk: The plaintiff ”assumes risk“ when he or she is aware that there is risk associated with taking a particular action and appreciates the type of danger involved, but goes ahead and acts anyway. For example, if you slip and fall on ice while walking to your car in winter, you likely assumed the risk of falling because it is common sense that ice is slippery and accumulates in winter in Ohio. In Ohio, the assumption of risk defense works like comparative negligence. Let’s say a woman slipped on ice covering a sidewalk in front of a store you own, and you had not tried to shovel or melt the ice. A jury might find that the woman was 60 percent at fault for her injury because she assumed risk by walking on the ice, but that you were 40 percent at fault for not maintaining the sidewalk in front of your store. In such a case, the woman would be able to collect no more than 60 percent of her injury damages.

· Statute of limitations: As mentioned above, a negligence claim generally must be brought within a certain period of time—usually within two years of the injury.

This “Law You Can Use” column was provided by the Ohio State Bar Association. It was prepared by Andrew L. Smith, a senior associate attorney in the Cincinnati office of Smith, Rolfes & Skavdahl Company, LPA. Articles appearing in this column are intended to provide broad, general information about the law. Before applying this information to a specific legal problem, readers are urged to seek advice from an attorney.

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