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In its simplest terms, negligence is when someone fails to act in a careful, reasonable manner and, as a result, damages occur.  


It’s an objective measure, judged by the “reasonable person” standard, under the circumstances. 


The damages can include bodily harm like a broken arm, or property damages like a totaled vehicle. An individual who acts negligently does not intend to cause harm, but harm can result from their unreasonable actions.

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1)  What is negligence?

In Georgia, there are four elements that must be demonstrated in order for a claim for negligence to be established.  

  • Duty: This refers to an obligation or responsibility to act in a reasonable manner toward other individuals.  In short, just because you suffer an injury does not mean the negligent person can be held legally responsible.  It must first be shown that they owed you a duty of care to act reasonably, based on their relationship to you. 

  • Breach of Duty: The defendant acted in an irresponsible or unreasonable manner with regard to the status, or relationship, toward you. When a person breaches a duty, it is said they violated their duty of care. 

  • Causation: The actions of the negligent individual caused the car wreck, injury, accident, etc.  There are two types of legal causes:  actual and proximate.  Both must be met in order to hold a negligent individual responsible. 

  • Damages: You must prove injuries or damages arose from the defendant’s actions.  Hypothetical or potential injuries don’t count.

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2)  What are the elements of negligence?

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An individual’s duty arises primarily from their relationship, or status, towards the victim. 


For instance, a negligent driver who causes a car accident owed a duty to drive safely to the second driver (driver A) whose car was hit.  The negligent driver may also be responsible for causing an unrelated, third driver (driver B) to be late to work and miss out on an important promotion due to the traffic caused by the collision.  The negligent driver owed a legal duty to driver A – namely, not to drive carelessly and cause property damage and bodily injury to driver A.  But, no legal duty is recognized to driver B. 


Although driver B suffered “damages” caused by the collision, the negligent driver cannot be held legally responsible as accidents on the roadway happen and are foreseeable.

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3)  How is duty determined?

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Actual cause is the literal cause for one’s injury, also described as the cause-in-fact. 


It is determined by applying the “but for” test. 


For instance “but for” the negligent driver speeding, the collision would not have occurred.

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4)  What is an actual cause?

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Proximate cause is the legal cause for an injury that, as a matter of policy, the law is willing to recognize.   


Grounded in concepts of foreseeability, it is a way to set a limit on liability for damages or injuries that are tenuously related to the negligent act. 


The primary and most direct cause for an injury or damages is usually known as the proximate cause.  Proving proximate cause can be difficult because it does not have to be the first event to take place.

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5)  What is proximate cause?

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Foreseeability is used to determine whether the law is going to hold a negligent actor responsible for your injuries. 


Underlying this principle is the assumption that negligence is not based on hindsight.  Instead, it asks the question:  were your injuries a reasonably foreseeably consequence of the negligent acts?

So, remote or unusual consequences are not usually reasonably foreseeable.

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6)  What is meant by foreseeability?

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Yes, there can be more than one proximate cause of an injury. 

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7)  Can there be more than once proximate cause?

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A concurrent cause exists when two defendants act independently and negligently to contribute to an injury. 


Both defendants are considered the proximate cause of the injury.  In that case, the injured plaintiff may recover damages against both defendants.

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8)  What is a concurrent cause?

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An intervening cause, or intervening act, is one that breaks the chain of causation. 


When the defendant has carried out their negligent act, and then another, unrelated event occurs afterwards and intervenes to be the primary cause to a person’s injuries, it is an intervening cause. 


For example, if a negligent person (person A) leaves their keys in their unlocked vehicle in their driveway.  But, a second negligent person (person B) steals the vehicle and gets in a car accident.  Person B’s subsequent criminal and negligent actions are said to be an intervening cause, and Person A cannot be held responsible. 


Stated another way, an intervening cause can shield the original negligent person (person A) from legal liability.

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9)  What is an intervening cause?

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Negligence per se is when a person violates a statute or regulation designed for the safety of other individuals. 


If someone is injured as a result of the safety statute’s violation, the negligent individual is legally recognized as being “per se” negligent and no further proof need be shown. 


In other words, it is not necessary to question whether a reasonable person would have acted in the same manner under the circumstances.  Proximate cause must still be proven.

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10)  What is negligence per se?

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The egg shell plaintiff is used to describe the concept that a defendant takes the plaintiff in whatever condition he finds him. 


Meaning, the negligent party is responsible for the natural and responsible consequences of his actions.  Stated another way, a negligent party can be held responsible for an aggravation or exacerbation of a pre-existing injury to the plaintiff.

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11)  What is an egg shell plaintiff?

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Literally, res ipsa loquitor means that the transaction speaks for itself.

In layman terms, this is a legal rule of evidence, applied when there is no evidence showing negligence on the part of the defendant. 


It allows an inference of negligence when the plaintiff's injuries can only be explained by negligence of the defendant.

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12)  What is meant by the phrase "res ipsa loquitur?"

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Comparative negligence is a legal principle that takes in to consideration the plaintiff's negligence in causing their injury. 


The plaintiff's negligence worked concurrently with defendant's negligence as the proximate cause of plaintiff's injuries.


Comparative negligence reduces the amount of Plaintiff's recoverable damages in proportion to the plaintiff's own negligence.

So, if a plaintiff is 40% responsible for his injuries and his damages are worth $10,000, the defendant is only responsible for paying his proportionate share - i.e. $6,000.

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13)  What is comparative negligence?

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Assumption of the risk is a complete bar from recovery for an injured plaintiff. 


It comes in to play when a plaintiff has full knowledge of the dangers he/she is about to engage, yet freely chooses to engage those dangers.

A common example is when a person attends a baseball game, and is hit by a baseball.  It's common knowledge that baseballs are expected to be hit out of the field of play.  So, it's argued that the injured patron assumed that risk.

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14)  What is assumption of the risk?


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