Basics of Negligence Law in Washington
Every day people are injured, crippled, and killed by boats, trains, planes, and automobiles. Whether the victim has a case in Washington State almost always boils down to the question of negligence. Washington State law defines negligence as failure to use ordinary care. Then, ordinary care is defined as the type of care that a reasonably prudent person would use under like or similar circumstances, but you have to prove more than just that to prevail. To win a case of negligence, you have to show that the defendant (1) owed you a duty of care, (2) that he failed to use ordinary care, (3) that your suffered damages, (4) that were caused by defendant, (5) that injury was foreseeable. Lets look as some examples.
Duty: Suppose a Drunken Driver gets in his care after downing several beers. He drives down the road, and runs into you and breaks your arm. Can you prevail if you sue him? First, did he owe you a duty? Duty is a question usually answered by judges looking over the law. Its not normally a question put to juries. Judges look at facts and the law, and reason whether law imposes a duty on drivers. Early on, when cars were first being used, judges determined yes that you do owe a duty to drive with reasonable care.
Questions of duty may get more complex in other cases. Suppose a mining company left an open mine shaft deep in the dessert on their own property. Fifty years later while sky diving, you fall into the shaft when the wind blows you way off your course, and you get hurt. In this case, a judge would probably say no duty to protect sky divers from falling into mind shafts. If there is no duty, then there is no requirement for them to act with reasonable care. Courts usually look at three things to determine if there is a duty: (1) whether it was foreseeable, or predictable, that this type of harm would happen, (2) whether there is a close proximity between the victim and the defendant, and (3) whether it would be fair, just, and reasonable to impose liability.
In the Drunken Driver case, it is foreseeable that if you drive carelessly, someone is likely to get hurt, so clearly there is a duty. The issue would probably not even come up as court after court has looked at car cases and determined that all drivers owe a duty of ordinary care toward others when driving. However, as in our sky diving example, when the injury and the cause are far separated and when the facts are bizarre, its unlike that a court will impose a duty of care.
Ordinary Care: The next thing you would have to prove in order to prevail is that Dumb Drunk breached his duty of ordinary care, or failed to use ordinary care. Obviously, he got in his car drunk, so that should not be a problem, but what if he was sober? You would have to prove that he did something else that ordinary prudent driver would not normally do. You could show that he was not keeping a proper look out, or failed to properly steer his car, or apply the brakes. Many courts allow the use of facts and circumstances, or circumstantial evidence, to prove this.
Injury: You have probably heard where there is a wrong there is a remedy. It’s not true. “Where there’s a wrong, there may be a remedy,” would be more accurate. Very few laws allow you a right to sue without an injury or damages. Negligence law requires you to prove damage, whether to yourself, or your property. Normally, mental anguish damages also require that you show you have suffered a physical injury before you can recover mental anguish or pain and suffering damages.
Let’s look at our Dumb Drunken Driver example. Dumb Drunken Driver gets behind the wheel. He’s driving down the road, when you are walking on the side walk. You hear screeching tires. You look up, to see Dumb’s car coming straight toward you. You start to run. He bears down, you jump, and within inches, he nearly kills you. But, fortunately for you, he misses, and plows into a closed shop doing thousands of dollars in damages to merchandise.
You may have been scared out of your wits. You may be too terrified to walk the streets any longer, but in most states, you would have no case. Negligence law usually requires that you actually be physically injured. Thus, if the only thing that happened to you was being scared. There would be no case to prove.
(Note: there is a tort called negligent infliction of emotional distress that
Washington State allows. Under this theory, you usually have to prove
that the distress suffered was severe, or that it can be medically
diagnosed. These cases often come up when one sees a loved one, such as
a spouse, parent, or child, hurt or killed in an accident. If you
started having post traumatic stress disorder, you probably would have a
claim. Please don not determine on your own if you have a case or not
just because what you have read about it here. Consult a lawyer, and you
can always contact us.)
Causation: It is not enough just to prove that you have suffered damages. To recover, you have to prove that the damages were caused by the defendant's negligence. In many case, this may not be difficult. If you have suffered prior injuries, you may have to put on medical testimony that proves the injuries you suffered were caused by this case and have a doctor explain what was pre-existing. This again does not mean you have no claim because of the prior case, it means that your lawyer will have to show what was and was not caused by the accident.
The real test applied to most cases is usally explained as the "but for" test. So if you can say that your injury would not have happened "but for" the acts of the defendant, then you have met the test. Going back to the Drunken Driver example, if you could show that you suffered a broken arm because the drunken driver's negligence, then you prevail.
Proximate Cause: whether the event was Foreseeable: The final thing you have to prove in a neligence case in Washington State is Proximate Cause, and no this is in addition to causation. This issue usually isn’t a real issue in most cases. It usually comes up when the negligent acts are really remote from the injury. Its similar to the duty issue previously discussed. In a classic case, a train conductor dropped a bag containing fireworks. The conductor apparently did not know it had fireworks. The fireworks went off and caused a far away set of scales to fall on someone’s head. The court was divided. Some judges, including the famous Judge Cardozo, said that the conductor’s company was not liable because no duty was owed to plaintiff who were not foreseeable. Another judge, said that they did not owe a duty, but because the event was not foreseeable, the company was not liable. In other words, the event was not the “proximate” cause. Good lawyers and judges have problems defining this part of the law, so if you don’t understand, don’t feel bad. Just realize that remoteness between the injury and the event means its likely that a court may say there is not “proximate cause.” It’s also just a likely that a jury may not see a causal connection either.
Besides negligence, there are many other causes that can be brought in a case. Please do not use this article alone to determine whether you have a case under Washington State law. Instead, consult a lawyer, and of course we would be delighted if you called us at 425-296-9025.
Successful Representation in Washington
We represent clients all over Washington State. Although we office in Redmond, we will be glad to come meet you any where in Washington State. We have clients in Vancouver, Tacoma, Seattle, Redmond, Edmonds, Everett, Bellevue, Federal Way, Monroe, Duvalle, the Olympic Pensula, Issaquah, North Bend, and even out of state clients who have cases in Washington. We are willing to work with clients over internet, phone, and email, though we do request an initial meeting in person if at all possible.