Negligence: Duty, Breach, Causation, Damages
Arizona follows a pretty standard definition of negligence which is:
Duty: The defendant owed a duty of care to the injured party, and this duty is defined and imposed by law;
Breach of that duty: The defendant breached that duty of care, or, in other words, did not take the proper care in doing something
Causation: The breach of that duty caused the injuries that the injured person is complaining of. This can get quite complicated because there are two types of causation: factual and legal. For example, say I am at an intersection waiting to make a turn. I am struck from behind, pushed into the intersection and I hit an on-coming car with my car. While I am the one who, in fact, caused injury to the on-coming car, I would not be liable to that person because I am not the legal cause of the injury. The operator of the car who struck me is the legal cause of the injury to the on-coming vehicle.
Damages: Finally, even if you are injured in a Mesa automobile accident or collision you still have to prove damages. This means that I was actually injured and lost something of tangible value – it could be time at work, lost wages, medical bills, mental pain, or anguish. Except in rare cases the law does not presume damages – you must prove them!
The duty of care people owe to each other is complicated. Although complicated Arizona has a set of what are called “Jury Instructions” that I will quote below which explains to a jury exactly what duty is and how to think about duty during deliberations. Jury instructions are a great place to get easy to read definitions of what the law is in many different circumstances. As a Mesa personal injury lawyer, my cases consist mainly of automobile accidents and injury, duty usually comes in one of two forms:
NEGLIGENCE Type 1
Assume Laws Obeyed
(Duty to Observe)
Every driver of a automobile or under a duty to every other driver to watch out and take care for the safety of every other person on the road. Full time and attention is to be paid by every driver, for the safety of everyone. So, when someone is out there driving while talking on the phone or texting, or even just having an animated conversation with another passenger in the car, they are violating this duty to observe. Why? Because they are distracted.
The other interesting thing here is that your duty to proceed in a lawful manner and to obey all traffic laws ends when you notice that another driver is not operating his or her vehicle in a lawful manner – you can, for example, cross the yellow line to avoid getting hit and NOT be negligent, even if you run into another vehicle, even though the law says that you cannot cross a yellow line. Proving this may be difficult, though.
Duty is also be described by Arizona,City or County statutes or ordinances. Let’s say you are making a left hand turn into on-coming traffic. The law says you can only make that turn when you are sure it is safe to do so and if the light is green or yellow. Violating these types of laws is called negligence per se. That means if the jury finds that the at-fault driver violated one of many statutes, such as the left hand turn statute, that driver is AUTOMATICALLY assumed to be negligent and the jury can move onto determining causation and damages. This is what the jury would be instructed:
NEGLIGENCE Type 2
Violation of Statute
(Negligence Per Se)
As you can see, this is quite harsh and I look for violations in almost every Mesa personal injury case I have involving car or automobile collisions or ‘accidents.”
THIS INCLUDES DRUNK DRIVING! If you are injured by a drunk driver, he will be presumed to have been negligent operating the vehicle. Arizona juries, while notoriously conservative in their awards, HATE drunk drivers and settlement dollars are also larger than standard automobile accident/injury cases because of those verdicts.
Finally, although this does not have to do with an automobile accident, many of my clients are injured by someone else’s child and I get a lot of clients coming in looking for ways to obtain compensation for injuries caused by a child. The Arizona Jury Instructions also address duty in these types of cases:
NEGLIGENCE Type 3
Negligence of a Child
(Duty of Adult to Anticipate Behavior of Children)
As you can see, when we are dealing with the negligence of a child, the analysis of fault is different ordinary negligence analysis. First, a child only has to act as an ordinary child of the same age would be expected to act – A CHILD IS NOT EXPECTED TO ACT LIKE AN ADULT. Second, there is a duty on the injured adult to anticipate the way most children behave and to protect or guard themselves against that kind of behavior.
So, when little Johnny comes flying across the room, jumps in your arms and breaks your arm, chances are, you are not going to get any money from the parents homeowners insurance. Why? Because that is what children do and as the adult, you need to anticipate that behavior and protect yourself from harm.
As I go along in these blogs, we will go further into depth on these and many other subjects that my clients seem interested in.
Daniel Marco – Marco Injury Law
1166 E Warner Rd #101
Gilbert, AZ 85296
Email: [email protected]