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Negligence and Breach of Duty of Care

breach of duty legal conceptEvery year, Americans around the country experience personal injury from slip and fall accidents. While some take place in a shopping mall, they’re also common in and around the buildings of stores, banks, restaurants, dentist surgeries, and others. At The Injury Firm, we help slip and fall accident victims to recover compensation after such a personal injury accident. Quite often, whether or not compensation is obtainable comes down to two things:

  • Negligence
  • Breach of duty of care

What do these two phrases mean in law? How will it affect premises liability for an accident? In this guide, we’re going to learn all about negligence, the duty of care, breach of duty, how they differ, and how you prove both in a serious case after an accident.

The Four Keys of Any Legal Case

To start, it’s important to understand the four keys that underpin every single slip and fall accident. If you’re to obtain compensation for personal injuries, a slip and fall personal injury accident attorney will need to work towards proving the following:

1. There was a duty of care to you and all other visitors to the property. For example, a store has a duty of care to all people visiting the building. This means cleaning all spillages, fixing damaged carpets, providing appropriate lighting around the exterior of the building, and warning customers when hazards exist.

2. The owner of the property failed in providing this duty of care; in other words, they breached the duty. As an example, it could be that restaurant staff failed to notice a spilled liquid and somebody slipped a while later.

3. The victim was injured by the accident caused as a result of the breach of duty of care. In our example, it could be that the victim broke their arm or hit their head when falling.

4. Finally, the injuries must be a direct result of the accident. This is important because it prevents people from claiming for injuries they experienced before the accident in question.

Making a Claim

So far, we’ve been talking about property owners exclusively. However, not all premises liability for an accident is the fault of the property owner. In some cases, it could be that you litigate against the tenant leasing the building, a contractor, sub-contractor, specific employees, or another agent related to the business. Just because a party owns the building, we can’t assume that they’re liable for what takes place there. This is particularly true when a business leases the building from the owner.

What’s an Example of Breach of Duty?

We mentioned it earlier, but a breach of duty is any occasion where a responsible party fails to keep the property safe for intended visitors. In many cases, it’s a business with the responsibility whether this is a restaurant, supermarket, or another form entirely. Let’s say that a customer drops a carton of milk; if this milk sits on the floor with no warning and no cleaning for two hours, the business is liable for accidents that take place because it has failed in its duty of care.

As you have probably realized, the problem with duty of care is that it can be somewhat subjective. When is a property owner responsible and when are they not? If a customer drops a carton of milk and another customer slips and falls within eight seconds, it would be difficult to hold the business responsible. Could the employees have really spotted the problem and then dealt with it within eight seconds? No.

Also, the theme of duty of care is subjective because businesses often provide warnings of hazards even if they don’t deal with them. When does a ‘wet floor’ sign suffice as a warning? When is the warning insufficient for the hazard?

To establish whether or not a party breached the duty of care, we first need to decide the relationship between the property owner and the victim. In many states, victims are categorized into one of the following:

  • Invitee
  • Licensee
  • Entrant
  • Trespasser

Of course, the law is different for a contractor working on the property compared to a business customer. Likewise, more support is written into the law for customers compared to those trespassing on the land. When working with an attorney, like the professionals at The Injury Firm, it’s important to prove that you had a right to be on the property; this could be as a contractor, customer, employee, or even another type of visitor.

What’s the Difference Between Duty of Care and Breach of Duty?

If we assume the first step, duty of care, is proven, the next stage is all about proving a breach in this duty. In other words, they should have kept you safe while on the property and failed to do this. Every business has a duty of care towards all visitors to the property, and the problem comes when this business is negligent or simply fails to live up to expectations in this regard. As well as businesses, the same is true for all property owners. If somebody is trespassing, the laws are slightly different, but the property owner cannot purposely create a dangerous environment with the potential to cause injury.

Reasonable Action

Often, a premises liability case favors the claimants when the property owner failed to take ‘reasonable action’. What does this mean? Well, with regards to slip and fall accidents, it means that a property owner needs to act responsibly. If it’s deemed that a responsible property owner would have acted differently to the owner in your situation, you may have a case.

In truth, every single slip and fall case is different. When apportioning blame, it might be determined that the property owner either knew about the hazard or should have known about it. In either case, they have breached the duty of care and should be held accountable for this negligence.

Again, whether or not the owner took responsible action comes down to their reaction to the hazard. If you slip over some spilled food seconds after it happens, it would be harsh to assume the owner should have known about the hazard. Can we expect employees of the business to stand with a mop ready just in case something like that happens? We can’t. Alternatively, restauranteurs shouldn’t allow spillages to sit on the floor for many hours.

Foreseeable Dangers

We mentioned when an owner should have known about a hazard, and this is called a ‘foreseeable danger’. All good property and business owners should be aware of the hazards that can present themselves during business hours. Using the same examples, it’s reasonable to assume that a customer can spill their drink or drop a plate of food. Therefore, systems need to be in place to deal with such problems. At all times, property owners should take reasonable steps towards noticing hazards and dealing with them appropriately.

Of course, the buck doesn’t just stop with the property owner. In some cases, the CCTV footage may reveal the wait staff stepping over a hazard and not dealing with it. Employees are an extension of the property owner; the latter trust the former to follow their training and deal with hazards in the right way.

What’s the Difference Between Negligence and Breach of Duty?

There’s a common misconception that premises liability for an accident is all about deliberate or intentional actions. As we’ve seen with the slip and fall examples in this guide, this doesn’t have to be the case at all. As a result, we have the idea of negligence, where a company or individual is reckless or careless. It doesn’t mean they set out to injure somebody, but their lack of attention and care causes a hazard and possibly an accident too.

What’s the difference between negligence and breach of duty? Negligence is actually a form of breach of duty; it comes under the same umbrella. It might be that employees fail to spot a spillage, the owner fails to fix the broken railing in the entrance, or that there’s poor lighting in the parking lot. While the guilty party didn’t necessarily intend to injure anybody, they failed to act responsibly and were negligent in their role.

How Do You Prove a Breach of Duty of Care?

As the victim of a slip and fall accident, you want to know whether you can obtain compensation and hold the guilty party responsible for their negligence. To prove breach of duty, you first need to prove that the responsible party had a duty of care towards you. From here, you should prove that they breached this duty and that you were injured as a direct result. In some states, the blame is apportioned to different parties depending on the situation. With this, you could be 20% responsible but receive 80% of the claim.

Although you can claim premises liability for an accident yourself, we highly recommend working with professionals. At The Injury Firm, we deal with slip and fall accidents daily and have the expertise to help. We’ll protect your legal rights and ensure you have a fair shot at compensation where it’s deserved.

Steps to Take After a Slip and Fall Accident

Many victims believe the path to compensation begins by contacting a slip and fall accident attorney. However, what you do at the accident site is equally important. Here are some steps to follow after an accident:

  • Seek Medical Attention - First and foremost, get the medical attention you need for the injuries. This is important for two reasons; to start the recovery process and to have official documentation showing the seriousness of all injuries. Even if you see a doctor after leaving the property, getting no medical attention at all may dissuade a judge from granting compensation.
  • Ensure the Accident is Reported - Whether a business or another property owner, ensure that an accident report is filed. If possible, ask for a copy of this report. If not, it should reach their insurance company anyway. Again, this is a great way to document what happened and keep the blame away from yourself.
  • Gather Information - Next, you or somebody with you should ask for the insurance information of the property owner; try to get the name as well as pertinent contact details. Depending on the case, this could be a business liability insurer, homeowner’s insurance, or another type of insurance. In the meantime, you can also speak to all witnesses and gather their contact details (this has the potential to swing the case in your favor later in the process). Videos and photographs can also help to prove your case and help to get a settlement.
  • Keep Paperwork and Contact an Attorney - Finally, keep all paperwork in a file including police reports (if any), medical reports and bills, insurance documents, medicines, any conversations with the insurance company, and conversations with your employer. For example, the latter can prove lost wages and an inability to work. Once here, get in touch with an attorney because they will help with your case.

Unfortunately, insurance companies are a tricky obstacle to navigate. Why? Because the adjusters seem sympathetic and as though they want to help when their true intention is to reduce the amount of compensation the company needs to pay. Often, they will try to trip victims up into admitting fault just so they don’t have to pay as much in compensation. With this in mind, don’t deal with any insurance company employees until you have sought the help of The Injury Firm.

Why Contact The Injury Firm?

Slip and fall cases with value need a personal injury attorney because thousands before you have failed to obtain the compensation they deserve while going it alone. While you focus on recovery, we’ll gather evidence, protect your legal rights, deal with the insurance company, and build a strong claim. If no good settlement is offered, we then have the resources to take the case in front of a judge.

Get in touch for a free case evaluation; you won’t pay anything until the case is resolved!

The Injury Firm

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Ft. Lauderdale, FL 33334

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