Negligence: Failing to Look Out for Others Victims of personal injuries know that they’ve been hurt, and they usually know who it was who they believe caused the accident. Common sense might lead you to believe that your case is basically complete. But just like we don’t throw people in jail without proving guilt, we do not award compensation to accident victims unless we can prove the person who caused the accident was at fault. The “fault” in accident cases is referred to as “negligence.” There is no law written by a legislature or local government board defining in detail what “negligence” is, but courts generally define negligence as “failing to abide by the standards of a reasonable person in a similar circumstance.” Confused? In part, that’s because since there is no way to foresee every single circumstance in which an accident can happen and legislate accordingly, we have a catch-all term the allows victims to sue someone or a company when they’ve behaved badly. Think about it this way. Imagine yourself a lawmaker charged with writing laws to protect the citizens of your state. The laws have to be specific enough so that normal people can understand them and follow them. You could write laws for a thousand years and never come up with laws prohibiting exactly each scenario that could come about. That’s why we have negligence. In this article, we’re going to discuss what “negligence” actually is, how it’s applied in Texas personal injury claims—and, by extension, wrongful death claims. “But I didn’t mean to hurt that person!” From the time we were children, we’ve all known deep-down the difference between intentional acts and “thoughtless mistakes.” An intentional act that results in harm requires some sort of malice, whereas a thoughtless mistake involves ignoring a potential outcome. The difference between the intentional separate from the negligent is essentially the dividing line between criminal and negligent conduct. If a store employee and customer become argumentative and the customer if shoved down the stairs, you can reasonably infer from the action that the employee wanted to hurt the customer. That’s a criminal act we often refer to as “assault” and will likely result in jail time. If, however, a careless store employee leaves a puddle of water on the store’s steps and the customer falls down the stairs, that’s obviously very different. We’re not happy with the employee and his puddle of water, but we don’t think he should go to jail. He simply ignored a problem, and even if he’s very upset that the accident happened, the fact remains that he ignored something that created a dangerous circumstance. Sadly, as with the above example, regardless of the responsible party’s intention, the same results occur. Some examples are useful to illuminate the difference between a criminal act and a negligent act. Criminal: A thief is robbing a local convenience store and a Good Samaritan intervenes to protect the storeowner. The thief is irritated, pulls out a gun, and shoots and kills the Good Samaritan. This is murder, plain and simple. The thief knew he would likely kill the man and pulled the trigger anyhow. Negligent: Intending on cleaning it the next day, a homeowner leaves his hunting rifle in the kitchen rather than lock it up. He invites his neighbor over that night to watch a ballgame, and at some point the rifle falls from the kitchen table, discharges, and kills the neighbor. See the difference?This is an easy example because the distinction between the two is obvious. The thief was committing a criminal act and used his gun with clear malice against the Good Samaritan. The homeowner didn’t want his neighbor dead, but made a (deadly) mistake in not securing his hunting rifle. Criminal:A man sees his ex-girlfriend walking down the street. Heartbroken and angry because she left him, he guns the engine and runs into her. She’s killed in the accident. Negligent:A man loses his girlfriend to another guy and spends an evening getting intoxicated at a downtown bar. Thoroughly drunk, he decides to drive home anyway. A block away from the bar, he passes out, his car swerves onto a curve, and hits a man walking home from work. The pedestrian is killed. See the difference?: This one is a little trickier. The man who killed his girlfriend is plainly a murderer, but what of the drunk driver? Everyone knows it’s illegal to drive intoxicated, and the drunk driver caused the man’s death while committing a crime! The difference is that while his intentional act of drunk driving is a crime, he didn’t intend to kill the pedestrian. The drunk driver will be simultaneously a criminal (for drunk driving and unintentional vehicular manslaughter) and civilly negligent in causing the death of the pedestrian. By now, you see that negligence is a thoughtless—often profoundly stupid—decision that resulted in the death or injury of another. Was the person who caused your accident “negligent”? If you or a loved one have been hurt, it’s tempting to simply assume that the individual or company who hurt you was therefore “negligent.” This may well be true. But defendants in these cases will argue that they weren’t at fault, that the accident was some kind of fluke, or that even you were responsible. The bottom line is that proving negligence in court is 1) not an easy task; 2) it takes a lot of courtroom-level evidence; and 3) it must actually convince a jury that the perpetrator must be held to account. This process of getting from accident to proved-up case takes a lawyer with years of experience. A story—no matter how sad—is not enough.