This page provides information about the
general tort of negligence. While
negligence applies to automobile accident claims, the scope of this page is
much broader than that. If you are
looking for information specifically about car accident claims, you should
When a person files a negligence claim in
court, they are alleging that the defendant has failed to abide by some
standard of conduct and that the defendant has breached a duty of care that has
injured the plaintiff in some way. The
most typical form of a negligence claim arises when there is an automobile
accident. Negligence claims can arise
from many different factual scenarios.
In bringing a lawsuit for negligence, the
plaintiff must plead and prove the following elements:
1. That the defendant owed a duty of care to
2. That the defendant took some action, or
failed to take some action resulting in a breach of that duty of care.
3. That as a result of the defendant’s
breach of the duty of care that the plaintiff has been injured or has suffered
monetary loss; and
4. That the loss or injury that the plaintiff
has incurred is proximately caused by the action or inaction of the defendant.
In evaluating a potential negligence
action, the first thing that the plaintiff must consider is what duty is owed
to him by the defendant. The duty that
is owed to the plaintiff depends on the relationship, if any, between the
parties. Generally, there are two things
to consider when evaluating whether a duty exists: (1) the nature of the harm
that is likely to result from a failure to exercise due care; and (2) the relationship
that exists between the parties.
For a duty to arise, there must be some
close or direct effect between the defendant’s behavior and the injured
party. A person is required to take
reasonable care to avoid acts which would injure others. The existence of a duty depends on whether
the harm that might result is foreseeable as well as what is in the public
interest. A duty exists where a person
knows or should know that certain conduct imposes an unreasonable risk of harm
Generally, a person does not owe any duty
to render aid to a person in distress or to intervene to protect another person
from a criminal act. Whether a duty is
owed can also depend on the nature of the relationship between the
If there is a duty, then the next
consideration is defining that duty. For
adults, the standard of care is ordinary and reasonable care. For children, the duty is that care
ordinarily exercised by children of the same age, capacity, discretion and
experience under similar circumstances.
There are various circumstances in which a
standard of care higher than ordinary and reasonable care applies. An public bus driver, for instance, owes his
passengers the highest degree of care to provide safe means and methods for
Negligence often arises in the context of
premises liability. This may occur for
instance where here is a slip and fall on a wet floor, or a displaced floor
tile. The owner of real property
generally owes some duty to those coming on his property. The extent of that duty, however, depends on
the nature of the relationship.
Invitee. An invitee is an individual who is on the property for a purpose related to the landowner’s business. A patron in a store is an invitee. A landowner or tenant has a duty to use reasonable and ordinary care to keep the property safe for invitees to protect the invitee from injury caused by any unreasonable risk that the invitee,
exercising ordinary care, would not discover
Licensee. A licensee is an individual who is a social
guest. The owner owes a licensee a duty
to exercise reasonable care to warn the licensee of any dangerous conditions
that are known to the owner, but not readily discoverable.
Licensee. A bare licensee is a person
that is on the property, but for his or her own purposes. For a bare licensee, the duty on the
landowner is only to refrain from willfully and wantonly injuring the bare
licensee and refrain from creating new, undisclosed sources of danger without
warning the licensee.
Trespasser. A trespasser is a person on the property
without permission. A landowner owes no
duty, except to refrain from willfully or wantonly injuring him.
The owner of a business is not
automatically legally liable because someone gets hurt on the premises. In fact, there is not even a presumption of
negligence. The duty is on the injured
party to show that a breach of duty occurred.
Where, however, the owner, or an agent of the owner, such as an
employee, has knowledge of a danger, that employee has a duty to take action to
protect the invitees against the danger.
Maryland law does not recognize “dram shop
liability.” A “dram shop” claim allows
an individual injured as a result of someone’s consumption of excessive alcohol
to recover against the establishment that served the alcohol. Dram shop laws would provide an additional
source of relief from the victim of a drunk driving accident, for
There are various defenses to a negligence
claim under Maryland law.
Assumption of Risk. A plaintiff cannot recover if the plaintiff has assumed the risk of the injury. A person assumes the risk of an injury if that person knows and understands, or must have known and understood, the risk of an existing danger, and voluntarily chooses to encounter the risk. When a person engages in an activity such as a sport, they assume the normal risks incident to the activity, but not any enhanced risk, unless they have specific knowledge of the enhanced risk.
Negligence. A plaintiff cannot recover
if the plaintiff’s negligence is a cause of the injury. The defendant has the burden of proving by a
preponderance of the evidence that the plaintiff’s negligence was a cause of
the plaintiff’s injury. It does not
matter, under Maryland law, how much the plaintiff’s negligence contributed to
the loss. If the plaintiff’s negligence
contributed, even a little bit, Maryland law completely bars recovery by the
plaintiff. Contributory negligence can
be avoided in some circumstances where the defendant had an opportunity to
avoid the injury after the plaintiff’s negligence occurred and fails to do so.
Cause. Proximate cause means that the
injury sustained is the natural and logical result of the defendant’s negligent
action. There must be a nexus between
the defendant’s action and the plaintiff’s injury. In the absence of a causal link, the
defendant, even though negligent, is not legally liable for the plaintiff’s
injury. An important question here is
whether the injury was a naturally foreseeable result of the defendant’s
A person who is the victim of negligence
must prove damages to obtain a verdict.
There are a number of things that the plaintiff in a negligence action
can recover. These include:
expenses incurred as a result of the injury
expenses that will be incurred in the future
of past earnings
of future earnings
damages, including compensation for pain and suffering, inconvenience, physical
disfigurement and loss of consortium
out of pocket expenses incurred as a result of the negligent act
Generally, the plaintiff in a negligence
action does not recover punitive damages.
However, there is a possibility of recovery of punitive damages where
the defendant’s conduct is characterized by evil motive, intent to injury, ill
will, or fraud.
contained on this page is provided as general information and does not
constitute legal advice. The experienced
attorneys at Baldwin, Briscoe & Steinmetz, P.C. can assist you if you are the victim
another person’s negligence. We’d be
happy to sit down with you and review your situation and provide appropriate
advice. Call today for a no-obligation
consultation. There is no consultation
fee for cases involving personal injury.
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