What is the Tort of Negligence in Alabama?

One of the most common torts we see litigated in Alabama, or the United States for that matter, is the tort of negligence. Negligence is defined the failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation. Effectively this just means that a person failed to use the proper amount of care or put very simply was careless in their conduct.

What are the elements of the Negligence in Alabama?

In Alabama the tort of negligence has four basic elements. Those elements are:

1. Duty

2. Breach of Duty

3. Causation

4. Damages

Let's walk through each of these elements and discuss what they mean and how you can prove them by evidence in Court. Duty is the obligation that you owe to others in society or to a specific person when you are in certain situations. As an example, if you are driving a vehicle on a public roadway then you have a duty to other drivers to operate your vehicle with reasonable care. This would include the duty to obey traffic laws and maintain control of your vehicle. Simply put you would merely need to prove that the person you have sued for negligence had some duty or obligation to you.

Breach of Duty is just as simple as it sounds. Once you have established that the duty exists you need to show evidence that the person breached that duty in the way that they conducted themselves. Going back to a car accident lawsuit, if the duty is to operate the vehicle with reasonable care then the breach could be that the other party ran a red-light.

Causation is a little more complex than the other elements of negligence. Causation can be broken down into two parts, there is factual cause and proximate cause. The causation element deals with did the breach of duty cause you to suffer damages. Factual cause is just that, and the test typically used to determine factual cause is the "but for" test. The "but for" test is, would the damages have occurred but for the breach of duty by the other person? If the answer is no, then you have but for causation. Proximate cause is more focused on the foreseeability of the breach causing the damages. This means that you would need to prove that the damages you suffered were a foreseeable consequence of the other person's breach of duty. Sticking with our car accident example, the defendant running the red-light and hitting your vehicle is the but for cause of you suffering a closed head injury and needing medical treatment. It is also a foreseeable consequence of his actions and therefore is also the proximate cause of your injuries. However, if after the accident you were transported by ambulance to the hospital and while on the way to the hospital the ambulance was struck by a stray bullet which hits you and causes further injuries. The Court would find that the other driver could not foresee that event and therefore would not be the proximate cause of the injuries from the bullet.

Finally, damages are the losses or injuries that you suffered as a result of the conduct. This can include things like: pain and suffering, mental anguish, lost wages, medical bills, property damage, or other similar losses.

What is Negligence Per Se?

There is a concept in the law known as negligence per se. Per se is a Latin term meaning by or in itself or themselves. So, negligence per se means that an action is found to be negligent without the need for further proof. This is typically accomplished by showing that someone violated a law. This can be a powerful method of proving your case because it does not require showing that someone did something so careless we would consider it beyond what a reasonable person would do.

What are the defenses to Negligence?

There are a multitude of defenses to negligence, with the most common being that the conduct committed by the defendant was not negligent because it did not breach a duty. That can be accomplished by arguing no duty existed or that the conduct did not actually breach the duty.

In Alabama, the next most common defense would be that the plaintiff was contributorily negligent. Contributory negligence is a complete bar on the plaintiff's recovery even if the defendant was negligent. Contributory negligence is a rule that states that if the plaintiff was even one percent at fault for the accident then they can not recover for their damages.

Some other common defenses are: assumption of the risk; last clear chance; open and obvious; lack of notice; act of god; and sudden emergency. There are other defenses to negligence out there depending on the specifics of the case, but those are some of the most commonly used.

Nelson Johnson, Alabama Auto Accident Attorney