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Home » Negligence Lawsuits: What the…

Negligence Lawsuits: What the Plaintiff Must Prove

February 18th, 2021
Posted By
Patrick Hamilton
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Negligence occurs when a party fails to exercise proper care and, as a result, damages occur. Laws surrounding negligence and liability vary from state to state, so it’s important to contact a Kansas and Missouri injury attorney to represent your case. Although the definition of negligence is relatively simple, proving negligence as defined by law is a little more complex. In order to prove negligence, a plaintiff must prove four things.

First, the plaintiff must prove that it was the defendant’s duty to exercise caution in a given situation. When there is a doctor-patient relationship, for example, the physician clearly has a duty to use proper care when treating the patient. On the roadways, drivers have a duty to their fellow citizens on the roadways to drive carefully.

The second element the plaintiff must prove is a breach of duty. In other words, the plaintiff has to prove that the defendant did not exercise a reasonably acceptable level of caution or care while performing their duty. For example, a physician might have breached their duty if they accidentally prescribed the wrong medication or left a sponge inside a patient during surgery. A driver may have breached their duty if they did not stop for a red traffic light.

The third element that must be proved is causation. The plaintiff must be able to show that the negligent actions of the defendant directly caused the injuries to the plaintiff. The defendant is not necessarily responsible for the injuries of the defendant just because they were in breach of duty. For example, suppose a woman receives an operation and, prior to that operation, a nurse fails to scrub up properly. During the surgery, a sponge is left inside the woman and she develops an infection. In this case, both the surgeon and the nurse were in breach of dut02/18/2021y, but the injuries are not due to the nurse’s breach of duty. Causation can only be shown in the case of the surgeon’s breach of duty, therefore, even though the nurse did not meet minimal standards of behavior, she did not cause the injuries to occur and cannot be held negligent in this case.

Finally, the plaintiff must be able to prove damages. Most times, the plaintiff has a stack of medical bills and records that clearly indicate that they were injured. It is important, however, that the physician notes the nature of the injury. A note saying you have a chronic back condition is going to carry far less weight than one saying you have a spinal hernia due to damage sustained in a car accident.

What is comparative or contributive negligence and how might that affect my case?

Missouri’s comparative negligence law addresses the fact that multiple parties may be negligent. In fact, sometimes even the plaintiff bears some responsibility for the accident. The law states that the plaintiff can only seek a level of damages that corresponds with the defendant’s level of responsibility. In other words, even if the plaintiff was 80 percent liable for an auto accident, they can still seek compensation for 20 percent of the value of their damages from the defendant, who was deemed 20 percent responsible.

Kansas modified comparative fault law is different. In Kansas, if a plaintiff is found to be 50 percent or more liable for an accident, they cannot recover anything.

The legal process can be overwhelming, so it’s critical to have an experienced Kansas personal injury attorney on your side. At the Hamilton Law Firm, LLC, we seek to educate our clients as we develop their case. We will help you understand what we do to build your case, so that you can contribute your knowledge and understanding of the events that led to your injury. If you have suffered due to the negligence of another, contact the Kansas and Missouri personal injury attorneys at the Hamilton Law Firm, LLC today.

Categories: Legal News

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Legal Malpractice
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Representative Work

$170,000 Jury Verdict in Negligent Misrepresenation Case
On April 24, 2018, attorney Patrick Hamilton obtained a $170,000 jury verdict in the United States District Court for the District of Kansas in a negligent misrepresentation case. Hamilton Law Firm’s client purchased a house in Kansas City, Missouri. Defendant Kathryn Sylvia was the seller’s real estate agent and an employee of defendant Platinum Realty. The sale was a “cash sale” in which payment was to be wired. The plaintiff received wiring instructions via email from Sylvia’s email account. Plaintiff forwarded the wiring instructions to his bank, which wired his money in accordance with the instructions. In actuality, the wiring instructions were prepared by a criminal hacker which caused plaintiff’s funds to be misdirected to Citi Bank in New York City. When the loss was discovered, plaintiff sued Sylvia and Platinum for negligent misrepresentation. The defendants claimed they did not email the wiring instructions to plaintiff and that plaintiff was comparatively negligent by not reviewing the wiring instructions before sending them to his bank. After a two day jury trial, the jury assigned defendants 85% of the fault and attributed 15% of the fault to plaintiff. Total damages were $196,622.67 with a net recovery to plaintiff of $167,129.27. Bain v. Platinum Realty LLC et al., Case No. 16-CV-02326-JWL. Read More
$280,000 Jury Verdict in Legal Malpractice Case (January 18, 2017)
On January 18, 2017, Hamilton Law Firm LLC obtained a $280,000.00 jury verdict in a legal malpractice lawsuit for Power Control Devices, Inc., an Olathe company specializing in the manufacture of electronic devices. The underlying litigation involved a breach of contract lawsuit against Orchid Engineering, Technologies and Consulting in the Boston, Massachusetts area. After PCD’s case had been pending for almost two years, Orchid filed a motion for summary judgment contending the lawsuit was not filed before the statutes of limitation expired. The United States District Court for the District of Massachusetts agreed, dismissing Power Control’s claims as untimely. Hamilton Law firm sued Power Control’s attorney in the underlying litigation, Michael “Mick” Lerner, for legal malpractice. After a seven day jury trial in Johnson County Kansas District Court, the jury returned a verdict in favor of Power Control. PCD Verdict Form 2617 Read More

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