Negligence Defined in Kansas & Missouri
To recover compensation for an injury in Missouri and Kansas, you usually must prove that your injuries were caused by the negligence, recklessness or intentional misconduct of another party. As a personal injury lawyer in Kansas City, I'm often asked to define what constitutes negligence. This is a very important concept for any injured party to understand.
Negligence is a legal term that in layman's terms is similar to "carelessness". Negligence is generally defined acting in way that falls below the standard of how a reasonable person would act in the same or similar circumstances. As a result, what constitutes negligence will depend on the particular circumstances of how the accident occurred. If the other party was breaking the law when you were injured, your lawyer may argue that this constitutes negligence "per se" because the law sets the standard of how one should act.
For example, a driver may be negligent in rear-ending another car because the driver was not paying attention to the road and failed to keep a proper distance. By comparison, a driver may be negligent per se if the driver causes the accident while drinking and driving, which is a against the law.
Other examples of negligence include a store owner who knew about and failed to fix leak in the roof which causes a customer to slip and fall. A nursing home may be negligent in failing to hire and train enough staff to properly care for its elderly residents.
Proving negligence is a vital step in recovering compensation for a personal injury claim. However, there are defenses to negligence in Kansas and Missouri injury cases that can mitigate or avoid liability for a defendant. Below are several examples of defenses to negligence used by defendants and their lawyers to avoid liability in personal injury cases in Missouri and Kansas.
Defenses to Negligence in Missouri and Kansas
Comparative fault is defense to negligence used by many insurance companies and defense lawyers. If a party can prove that your actions contributed to the cause of your injuries, any compensation you receive can be reduced by the percentage of fault assigned to you for the accidental injury.
Kansas and Missouri have slightly different comparative fault laws. Missouri operates under the theory of pure comparative fault. Under pure comparative fault, you could be 99 percent responsible for the cause of your injury, but still recover one percent of the value of your personal injury claim.
Kansas operates under a modified comparative fault rule. Under Kansas law, your compensation is reduced by the percentage of fault assigned to you for the accident. However, if you are more than one-half responsible for the cause of the accident, Kansas law bars you from receiving any compensation from the other party. This negligence rule is known as the 50% Bar Rule.
Assumption of Risk
Assumption of risk is used as a negligence defense in some cases, especially cases involving injuries sustained while participating in sports, recreational activities, and riding amusement rides. It is a negligence defense based on the fact that you knew you were doing something dangerous that could result in harm to yourself or others, but you willingly choose to participate even though you were aware of the risks. In other words, you voluntarily accepted the risk.
Even though this defense is popular in some cases, especially when the victim signed a waiver of liability, it is not always successful. If the defendant was grossly negligent or committed intentional wrongdoing, the defense may not apply.
Failing to Prove Elements of Your Case
In general, there are four basic elements you must prove to win a personal injury case — duty, breach of duty, causation, and damages. Failing to prove any of the four legal elements can result in losing your personal injury case. For example, if a defendant acted with reasonable care, the defendant may not have breached the duty of care owed to you. This situation might arise if a store owner placed rugs and warning signs around a spill on the floor.
Another example would be failing to prove that the accident caused your injuries. You might prove that the owner breached the duty of care by failing to take reasonable measures to prevent an accident, but if you cannot prove the fall caused your injury, you are not entitled to compensation.
Technical Errors in the Case
Some defenses to negligence are based on laws or statutes that govern personal injury claims. For example, that statute of limitations restricts the time you have to file a personal injury lawsuit. If you fail to file your lawsuit before the deadline, the defense can argue that your claim is barred because of the statute of limitations. Failing to follow court rules and prescribed civil processes can also result in a denial of a claim.
Working with an experienced Kansas City personal injury attorney who understands the laws and rules governing injury claims can help avoid legal issues that can hurt your chance of recovering compensation for your injury.
Discuss Your Case with a Kansas City Personal Injury Lawyer
When you are injured, you need an attorney who understands how to investigate an injury claim and build a strong case for fault and liability against the party who caused your injury. You need a personal injury attorney who has a strong understanding of the various defense strategies and arguments used to avoid negligence and liability. You need The Law Office of Kevin J. McManus.
We handle personal injury cases in Missouri and Kansas. Our legal team aggressively pursues all avenues of investigation to uncover the evidence we need to prove negligence. Our Kansas City personal injury attorneys use their experience and knowledge to build a case that addresses each possible argument and defense the other party might raise to avoid liability for negligence acts, errors, and wrongdoing.
Call 816-203-0143 for a free consultation with a Kansas City personal injury lawyer. We want to help you fight for justice after being injured through the negligent or reckless acts of another party.