Hamstead, Williams & Shook

Free Consultation


(1-888-298-2529) or 304-296-3636
The most common tort — and the one most difficult to define — is negligence. Negligence is defined as the failure to use reasonable due care to avoid a foreseeable harm to a person, place, or thing. If you are negligent and your negligence causes injury to another person to whom you have a "duty of care," you may be liable to pay any damages resulting from the injury caused by your carelessness. A person may be considered "careless" or "negligent" if they do not use the kind of "due care" that is appropriate to the particular situation in question. For example, a higher level of care is called for if you are pouring boiling coffee into a friend's cup over his lap than is called for if you are pouring cold lemonade over the kitchen sink. Generally, the law requires that individuals exercise the same kind of "due care" that a reasonable person would exercise under the same circumstances. This is called the "reasonable person" standard.

Some Common Negligence Claims Involve the Following:

  • Slip and fall accidents (a person slips, falls and is injured on someone else's property)
  • Alcoholic beverage liability (a provider of alcohol - either a social host or bartender - serves too many drinks to an underage or noticeably intoxicated individual who is then involved in an accident that causes injury to a third person)
  • Motor vehicle accidents (accidents caused by reckless or careless driving)
  • Medical malpractice (when a doctor doesn't maintain the level of skill and knowledge commonly exercised by other doctors)

Types of Negligence

When a lawsuit is brought for damages caused by an accident, the judge or jury must decide who caused the accident, since more than one person may have been negligent, including the person who is bringing the lawsuit. Once the amount or percentage of negligence has been determined for each person, damages are awarded as determined by what system of fault the state follows. There are four predominant systems used throughout the United States: "contributory negligence," "pure comparative fault," and "modified comparative fault," which has two different modification options. There are also a handful of states that have their own unique systems of determining damage awards. West Virginia follows the doctrine of 50 percent fault.

    Contributory negligence bars any recovery by the person bringing the lawsuit if he or she was responsible for the accident in any way. Thus, if the judge or jury decides the person who is bringing the lawsuit is even 1% at fault for causing his or her own injuries, recovery is barred.

    In a pure comparative negligence system, the judge or jury decides how much fault should be allocated to each person responsible for an accident, and then apportions the amount of damages accordingly. For example, if a person is found to be 40% at fault for causing his or her own injuries, then the other party or parties responsible will only have to pay 60% of the plaintiff's damages. This is based on the percentage of fault assigned to each of them.

    There are also states that use a modified comparative fault system. Just like a pure comparative negligence system, a judge or jury decides how much fault should be allocated to each person responsible for an accident and apportions the amount of damages accordingly. But unlike a pure comparative negligence system, a limit is placed on the percentage of fault of the person bringing the lawsuit. There are two different limits used: the 50 percent fault rule and the 51 percent fault rule.

    If the 50 percent fault rule is used, the person bringing the lawsuit cannot recover if he or she is 50 percent or more at fault, but if 49 percent or less at fault, he or she can recover, though recovery is reduced by his or her degree of fault. Thus, a person who is found to be 50 percent at fault recovers nothing, but if found to be 49 percent at fault he or she can recover 51 percent of damages.

    If the 51 percent fault rule is used, the person bringing the lawsuit cannot recover if he or she is 51 percent or more at fault. This follows the principle that a plaintiff who is more negligent than a defendant should not be able to recover anything. Here, if the person bringing the lawsuit is 50 percent at fault, he or she can recover 50 percent of the damages, but cannot recover anything if found to be 51 percent or more at fault.

Negligence FAQ


    In order for us to prove that a defendant was negligent, and therefore responsible for damages to you, we must show:

    • the defendant had a duty to use reasonable care towards you
    • the defendant breached that duty by acting unreasonably
    • it was foreseeable that by acting unreasonably, the defendant would cause injury to you
    • the defendant's actions or inactions caused your injury

    Once we prove that the defendant was negligent, you have the right to be compensated for your damages.

    Generally, a person owes everyone else with whom he comes in contact a general "duty of care." Normally, you don't have to worry about this duty - it is the same in all instances, the duty to behave with the care that would be shown by a reasonable person. But there are several situations in which courts hold that people owe one another less than this regular duty. The most important of these situations are: 1) one generally has no duty to take affirmative action to help another; and 2) one generally has no duty to avoid causing unintended mental suffering to another.

    A person generally cannot be liable in tort solely on the grounds that she has failed to act. This means that if you see that another person is in danger, and you fail to render assistance (even though you could do so easily and safely), you are not liable for refusing to assist.

    Example: Sam, passing by, sees Mike drowning in a pond. Sam could easily pull Mike to safety without risk to Sam, but instead, Sam walks on by. Sam is not liable to Mike for any harm sustained by Mike.

    There are a number of commonly-recognized exceptions to the "no duty to act" rule. In the above example, if the danger or injury to Mike is due to Sam's own conduct, or to an instrument under Sam's control, Sam has the duty of assistance. Similarly, in the event Sam started to give Mike assistance, once Sam voluntarily begins to render assistance to Mike (even if he was under no legal obligation to do so), Sam must now proceed with reasonable care.

    The key to determining whether someone is negligent is to define what constitutes "reasonable" care in any given set of circumstances. Since there is no clear definition of what is reasonable in any given situation, what is reasonable to one person may not be reasonable to another.

    Courts often decide whether someone has exercised reasonable care by asking what a person of average intelligence and judgment would have done under similar circumstances. For example, a "reasonable" driver preparing to make a left hand turn across oncoming traffic would not do so without first checking to make sure that there was ample time to safely make the turn. It would be negligence if a driver failed to check to make sure there was time to make the turn, made the turn anyway, and caused an accident.

    The level of reasonable care required varies, depending on whether you are an adult, child or professional.

    Reasonable person standard - An adult is guilty of negligence if he or she fails to act the way a person of ordinary intelligence and judgment would have acted in similar circumstances.

    Reasonable child standard - Both a child and his or her parents can be held liable for a child's wrongful conduct. Children, however, are not held to the same level of care as adults. A child's conduct is measured against what would be expected from a similar child of like age, intelligence and experience under similar circumstances. Because a child does not have the same mental capacity or life experience as an adult, the courts recognize that in some instances a child should not be held responsible for otherwise "negligent" behavior. For this reason, children of very young ages generally cannot be held liable for negligence. The judge will decide a child's capacity for negligence. If the child is deemed capable of negligence, then the issue of whether or not the child actually was negligent will be decided by a jury.

    One major exception to the rule is that a minor will generally be held to an adult standard of reasonableness if the child is engaging in "adult" activities. For the most part, a child will only be held to this standard in situations in which the child is operating a motorized vehicle.

    Professional community standard - Professionals (lawyers, doctors, architects, engineers, psychiatrists, etc.) are held to a higher standard of care due to their specialized training and experience. Professionals and individuals who practice "skilled trades" (plumbers, carpenters, electricians, beauticians, etc.) may be found to be negligent if they do not exercise the same degree of skill and knowledge normally exercised by other qualified and competent members of their professions working in their communities.

    In order for a person who is negligent to be liable to you for damages suffered from an accident, it must be proven that the negligence actually caused your injury. The negligent person's action or inaction can be the sole cause or your injury or one of a number of causes.

    Example: Suppose a truck is speeding too fast along the road when it suddenly approaches a car left abandoned in the middle of the road. To avoid a collision, the driver of the truck attempts to apply the brakes. A local mechanic recently repaired the brakes, but forgot to change the old, worn out brake pads. As a result, the brakes fail and the truck barrels into the parked car, which in turn collides with you as you try to cross the street in an area that is not a designated crosswalk. The resulting injury you received had many causes, including the trucker's negligent driving, the negligent repair of the truck's brakes, the car negligently left in the middle of the road, and your own failure to cross the street in a safe manner.

    Comparative Negligence

    In the above example, the judge or jury determines the degree of the each party's negligence and apportions to each party a portion of the total damages you suffered.based on each party's percentage of fault for causing your injury. This process is called "comparative negligence," and is the method by which damages are awarded in West Virginia. In "pure" comparative negligence, the award of damages awarded to the plaintiff will be reduced in direct proportion to the plaintiff's percentage of fault, no matter what the ratio. For instance, if you are 30 percent at fault for an accident, you could recover 70 percent of your damages. If you are 70 percent at fault for an accident, you could recover only 30 percent of your damages. All of the other parties alleged to be at fault would then be responsible for paying you 30% of your total damages, apportioned between them in proportion to the amount of fault assigned to each of them.

    Violation of a Statute

    In some circumstances, proof that an individual violated a statute or law is enough to prove that the individual is negligent. Under the doctrine of "negligence per se," an individual is negligent if he or she violates a legislative statute, regulation, or ordinance and causes an injury or loss.

    Example: Suppose an ordinance prohibits people from making U-turns at a particular intersection. If an individual makes an illegal U-turn and injures someone while making the turn, the person who made the illegal turn can automatically be held responsible for the injuries, regardless of whether they used reasonable care when making the U-turn. The fact that he or she violated the ordinance makes the person negligent per se.

    The doctrine of negligence per se applies only if the accident is the type of accident the statute or ordinance was designed to prevent and the injured party is within the class of people that the statute or ordinance was meant to protect.

    Example: A U-turn law is normally enacted to protect other drivers passing through the intersection. If a driver passing through the intersection is injured by someone making an illegal U-turn, the doctrine of negligence per se is applicable.

    In certain situations an individual's violation of a statute or ordinance is excusable in certain circumstances. For the most part, these permissible excuses include physical circumstances beyond the individual's control, sudden emergency situations not created by the individual, and/or situations in which compliance with the law would create a greater danger to those involved than would a violation of the law.

    Assumption of Risk

    If you participate in activities that you know are risky or dangerous, and are injured as a result, it may be determined that you "assumed the risk" of injury associated with that activity. For example, if you are a skier who knowingly skis down a steep mountain containing large moguls, you assume the risk of harm inherent in such an activity. Your claim for damages would most likely fail, unless the injury resulted from a condition unrelated to those for which you were fully able to appreciate and assess the risk. For example, you may have realized that skiing can be hazardous and have a full understanding of the dangers involved. However, you would not have anticipated that a ski-lift cable would break and fall in your path, causing you to fall and sustain an injury. Assumption of risk does not protect the defendant in this type of situation.

    Open and Obvious Danger

    Another defense that is similar to assumption of risk arises when you engage in an activity that poses an open and obvious danger. Whereas assumption of risk focuses on an array of dangers that are inherently possible, open and obvious conditions deal with one's knowledge of a specific known threat. For example, suppose you enter your neighbor's yard knowing that it contains an angry pit bull, and despite the posted warning, "Danger! Attack dog, do not enter." Your neighbor could use the open and obvious danger defense to argue that you clearly understood the danger of being bitten by the dog, but decided to enter the property nonetheless.

    As with all lawsuits, a statute of limitations restricts the time in which you can file a lawsuit for negligence. In West Virginia, the statute of limitations for negligence is two years. If you miss the deadline, you have no legal recourse. If you are injured, it is essential that you contact an attorney immediately so as be sure to preserve all of your legal rights before they are barred by law.

    The burden of proof in all negligence claims, including automobile accident claims, is on the plaintiff. This means that the plaintiff must go forward first with the evidence at the trial and must present evidence from which a fact finder (judge or jury) could reasonably conclude that the defendant was negligent, that the defendant's negligence proximately caused the accident and that the plaintiff's injuries are causally related to the accident. The standard which plaintiffs are held to in civil cases, including automobile accident cases, is called the "preponderance of the evidence" standard. It is much less strict than the standard in criminal cases of proof "beyond a reasonable doubt." The preponderance of the evidence standard has been defined to mean that the evidence presented by plaintiffs must be more likely to be true or accurate than not true. In essence this means that plaintiff's evidence must convince a fact-finder that the facts alleged by the plaintiff are over 50% likely to be true.

    This can be illustrated for juries by comparing it to the scale of justice. If one party's evidence is placed on one side of the scale and the other party's evidence is placed on the other side of the scale, the slightest tipping in favor of the party bearing the burden of proof on an issue means that that party has prevailed on the particular issue. If the scale remains evenly balanced, then the party who bears the burden of proof on an issue has failed to sustain the burden. Each party who has the burden of proof on a particular issue, in order to prevail on that issue, must sustain his or her burden of proof based upon a "preponderance of the evidence."

Related Content

In all matters involving personal injury it is essential that measures be taken promptly to preserve evidence, investigate the accident in question, and file a lawsuit prior to the deadline imposed by the Statute of Limitations. If you or a loved one is a victim of personal injuries, call Hamstead, Williams & Shook P.L.L.C. now at 888 – 298 – 2529. The initial consultation is free of charge, and if we agree to accept your case, we will work on a Contingent Fee basis, which means we get paid for our services only if there is a monetary award or recovery of funds. Don’t delay! You may have a valid claim and be entitled to compensation for your injuries, but a lawsuit must be filed before the statute of limitations expires. 

The above is not legal advice. That can only come from a qualified attorney who is familiar with all the facts and circumstances of a particular, specific case and the relevant law. See Terms of Use