General Negligence Claims

General Negligence Claims

In broadest terms, negligence is the failure to use reasonable care in doing something. 

Legally speaking, if the failure to use reasonable care causes damage to someone’s body and/or property, the injured party has the right to seek compensation for such personal injury and/or property damage. 

General negligence can include many life situations such as car accidents, slip and fall accidents, premises injuries, etc. 

However, not all injury cases qualify for a general negligence claim.  Certain preconditions must be satisfied in order to prove a negligence claim against a defendant.  The plaintiff (or injured party) must prove that the defendant had a duty to use reasonable care.  Furthermore, it must be proven that the defendant breached that duty (to use reasonable care) by acting unreasonably.  In addition, it must be foreseeable that by behaving in such a manner, the defendant may cause harm to plaintiff or damage to plaintiff’s property.  Finally, the defendant’s actions (or lack of action) must have caused injury and/or damage to plaintiff and/or damage to plaintiff’s property.

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The fact finder, generally the jury in traditional litigation, must first decide how a person with average intelligence would act under similar circumstances. 

Additionally, it is necessary to prove causation.  That means determining whether the defendant’s negligent actions or omissions led to actual injury to plaintiff and/or damage to plaintiff’s property.  If there is no causal link between the defendant’s negligent behavior and the harm suffered by plaintiff and/or damages to plaintiff’s property, the plaintiff will not have a valid claim. 

Resolving general negligence claims through litigation can be costly and lengthy.  For that reason, the parties may choose, or be required by the court, to pursue one or more of the alternative dispute resolution procedures (such a mediation or arbitration) before a trial date will be scheduled by the court. 

Resolving General Negligence Claims Through Mediation

Mediation of general negligence claims is generally an effective and mutually beneficial method of settling general negligence claims.  Unlike litigation, which often takes years, mediation enables the parties to resolve a general negligence claim in a timely and cost-efficient process.

Mediation enables the parties to present their claims and defenses to the opposing party/ies through a neutral third person, called a mediator.  The mediator is generally chosen by the parties by signing a mediation engagement agreement.  The mediator is usually a retired judge or experienced attorney with experience in negligence issues. 

One of the significant features of the mediation procedure is its confidentiality.  General negligence claims discussions and negotiations remain within the confines of the mediation location, and nothing discussed at the mediation becomes a part of any public record.   

The mediator typically conducts a joint session in the presence of the parties and their lawyers, where all disputed issues are open for discussion.  After the joint session, the mediator will conduct a series of talks (caucuses) with each side separately.  During these private caucuses, the parties present their positions regarding the dispute, enabling the mediator to find common ground that leads hopefully to an agreement.  If the parties agree on a settlement, a binding agreement is signed by the parties. 

Arbitration – a trial without a court

Arbitration is an alternative dispute resolution procedure which is similar to traditional litigation.  But, unlike court litigation, there is no jury in arbitration.  The parties to the general negligence claim present their case to an arbitrator or panel of arbitrators who are usually former judges or experienced attorneys.  For arbitration to take place, the parties must agree to arbitrate or the parties may be ordered to arbitration by the presiding judge in the case filed by the injured party/ies. 

Unlike mediation, there is no settlement in arbitration.  The arbitrator(s) issue(s) a decision, and that ruling can either be accepted by, and thus be binding on the parties, or, one or more of the parties can file a motion for a trial de nova, after which the case will likely proceed to trial. 

However, arbitration is less formal than litigation because there are generally “relaxed” rules of evidence.  The flexible procedural and evidentiary rules of arbitration generally result in time-saving and cost-effective benefits in resolving a general negligence claim.   

Conclusion

Mediation and/or arbitration are generally required before the parties can get a trial date from the presiding judge.  Mediation and arbitration are typically informal and far less expensive than litigation.  These characteristics make them invaluable procedures for resolving general negligence claims.