stroke.gif)
Basic Issues of Negligence Law
Maryland, Virginia and the District of Columbia have some of the most difficult laws in the United States for winning a negligence case. For you to recover damages from the defendant we have the burden of proving that:
- The defendant owed you a duty;
- That the defendant failed to fulfill his duty to you;
- That you did not contribute to the injury in any way;
- That the other defendant's negligence was the cause of your the accident and your injuries; and
- You had damages as a result
Duty Owed - Primary Negligence
Negligence may be defined as the failure to act as a reasonable person would in a similar situation. It may be either be the act of doing something wrong or the failure to do something right. For example, every operator of a vehicle has a duty to operate their vehicle in a manner that a reasonably prudent person would under similar circumstances. When a driver fails to do so by going too fast, goes through a red light, follows too close, etc. then they have failed to fulfill their duty to you and are considered negligent. Frequently, the mere violation of a law will be considered negligence.
Contributory Negligence
The next step is to prove that you were free from negligence. Unfortunately, Maryland, Virginia and the District of Columbia are the few remaining jurisdictions that have a contributory negligence rule . This means that even if the other defendant was the main cause of the accident, if you were at all at fault, then you may not recover any damages! This is why it is crucial that you do not speak to any insurance company before you speak with us. Innocent statements such as, "I didn't see him coming" can be taken out of context and used to prove that you were negligent as well.
The Plaintiff, even if they were contributorily negligent, may argue that the defendant had the "last clear chance" to avoid the accident. The argument boils down to whether or not the defendant had a fresh new opportunity to avoid the accident, but was negligent in failing to do so. "Last Clear Chance" arguments are always difficult.
Assumption of the Risk
A close cousin of contributory negligence is "assumption of the risk". This means that the injured plaintiff voluntarily placed himself in the zone of danger and knew, or should have known, of the risk to do so. Examples of this doctrine is when a plaintiff sees that the sidewalk has ice on it but tries to walk on it anyway. If successfully raised by the defense, this doctrine is a complete bar to any recovery by the injured plaintiff.
Proximate Cause
The next step is to prove that the incident that has injured you was caused by the negligent act of the defendant. Frequently, injuries are caused by more than one negligent act by multiple people. Frequently, in those situations, all of the negligent actors may have responsibility for your injuries. On the other hand, a defendant can argue that their negligence played no role in causing the incident or your injury. In essence, their argument is that the accident would have happened whether or not the defendant acted improperly.
Damages
You must prove that your damages were caused by your accident. THerefore, it is important to see a physician as soon as possible after the accident if we you are suffering any physical discomfort. Insurance companies will frequently defend claims by arguing that there was too much time between the accident and the first medical treatment to believe that the injury was caused by the accident. If you have ever had any prior medical treatment to the area of the body that is now hurting you or the accident was a low speed collision their argument is enhanced. Therefore, it is vital that you see a physician immediately.
The types of damages that you can recover are:
- Past and future physical and mental pain and suffering
- Past and future lost wages and lost other income
- Past and future medical bills
- Permanent physical and emotional impairment and disfigurement
- Loss of Consortium - This is a joint claim by both spouses for the injury's effect on the marital relationship. It includes the loss of love, companionship, sexual relations, maintenance of the home, and all other factors that are positive elements of a marital relationship.