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Articles Posted in Negligence

Most Cape Cod personal injury cases are pursued on a theory of negligence. To prove that a defendant was negligent, the plaintiff must show that the defendant owed the plaintiff a legal duty, that the defendant’s conduct breached this duty, and that, as a proximate result, the plaintiff suffered legally compensable damages.

Sometimes, however, a defendant may be accused of conduct that surpassed that of simple negligence in terms of its culpability. This is called gross negligence or recklessness by the courts.

An example of simple negligence might be a defendant slightly exceeding the speed limit and causing a collision. Gross negligence, by contrast, might occur if a defendant was driving while intoxicated and exceeding the speed limit not just by a few miles per hour but perhaps 30 or 40 miles per hour.

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As important as it is in a Cape Cod personal injury lawsuit to be able to prove that the defendant’s negligence was the proximate cause of the plaintiff’s injuries, this is only one of several steps in pursuing fair compensation. Additionally, it is important that the plaintiff understand, to the fullest extent possible under the law, the insurance coverage that may be available to the various parties to the lawsuit.

Sometimes, insurance coverage issues become part of the plaintiff’s suit. They may, however, be the source of a separately filed case.

Such was the case in a recent matter arising from an accident at a trade show. Fortunately for the injured individual, the court found that liability coverage was available for the injured man’s accident.

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Cape Cod car accident cases require the plaintiff to prove, by a preponderance of the evidence, that the defendant breached the applicable duty of care and that this breach of care was the proximate cause of the damages for which the plaintiff seeks compensation. Generally speaking, a defendant who crashes her car into an innocent motorist will probably be found to have violated the duty to keep a proper lookout.

However, there are exceptions to this rule. The defendant’s liability hinges on whether he or she failed to act in a reasonably prudent manner, hence causing the accident. There are several factors that can come into play in determining whether the defendant’s actions were reasonable.

Although the issue does not come up very often, it is possible that the defendant may be able to avoid liability by proving that he or she was incapable of acting in a reasonably prudent manner. An example would be a motorist who experiences a sudden medical emergency that causes him or her to lose control of his or her vehicle. While such an event will not always relieve the defendant of responsibility for an accident, there is a good chance that it could. After all, the purpose of negligence law is to encourage individuals to act reasonably. When a medical emergency arises, this may not be possible.

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In a typical Cape Cod personal injury lawsuit, the plaintiff seeks to recover monetary compensation for damages by asserting a claim of negligence. There are four basic elements to the tort of negligence (duty, breach of duty, damages, and proximate causation).

The plaintiff has the duty to prove each element by a preponderance of the evidence. This requires him or her to convince the jury that the evidence weighs more in his or her favor than in the opponent’s (visualize a tipping of the scales of justice, if you will).

There are other possible remedies that can arise from an alleged act of negligence, including what was described by an appellate court as “a seldom used equitable remedy” in a case filed by a nursing home resident in 2018. The appellate court has now weighed in on the dismissal of the woman’s “complaint for discovery.”

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When a patient is dissatisfied with treatment received from a doctor, hospital, or other medical provider, he or she may have a claim for medical malpractice. An experienced Cape Cod medical malpractice attorney can explain the process of asserting such a claim.

In some instances, there may be the possibility of some other type of legal course, as well. However, such situations are the exception rather the rule.

In a medical malpractice lawsuit, the burden of proof rests on the plaintiff. In order to prevail on a claim for malpractice against an allegedly negligent health care provider, the plaintiff must be able to present proof that the defendant breached the applicable standard of care and that this was the proximate cause of the damages for which the plaintiff seeks monetary compensation.

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In order for a Cape Cod medical malpractice case to be filed in a particular court, there must be subject matter jurisdiction. Most such cases are filed in state court, but sometimes there may be jurisdiction in federal court.

One such situation arises when the person who injured the plaintiff was an employee of the federal government. Generally speaking, the government is immune from lawsuits, but there are special exceptions in these types of cases.

Of course, the government has teams of attorneys whose job is to make sure that only qualifying cases are allowed to proceed. Just like other defendants, the government has a right to defend itself in court, even at the pre-trial stage with regard to jurisdictional issues.

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The concept of negligence law is born of the idea that we each owe certain duties to one another. This includes not only individuals and businesses but also branches of the government. It can also include non-profit organizations and, as was the situation in a recent case, colleges and universities.

Some duties are general in nature, such as the duty that motorists owe one another to keep a proper lookout while driving. Duties can sometimes be more specific, depending on special knowledge or control by one party or the other.

One thing that is sure, however, is that no one owes anyone else the duty to prevent any and all harm that might befall him or her. Such a notion would be very unfair, of course. Instead, the question of duty is more often resolved based on an inquiry into whether the harm was foreseeable and whether the defendant could have prevented such with reasonable efforts.

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One of the first considerations in a personal injury lawsuit in Massachusetts, such as a negligence claim arising from a Cape Cod boating accident, is the forum in which the plaintiff’s claim will be filed. Often, there is but a single possibility for the filing of such a case, so the inquiry is a relatively simple one.

However, some situations lend themselves to the possibility of jurisdiction in more than one court – a state court or a federal court, perhaps. Sometimes, two states may arguably both have jurisdiction over a given case.

Rarely – but sometimes – two different nations may have jurisdiction of a particular lawsuit. In such a situation, it is up to the court system to decide which nation’s court will provide the more convenient forum based on the situation at hand.

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When it comes to the ultimate outcome of a Cape Cod personal injury case, the availability of liability insurance is one of the most important factors to be considered. Assuming that there is a policy of insurance that covers the occurrence at issue, another important consideration is the policy limits of such coverage.

In the absence of adequate liability insurance, the plaintiff’s options for recovering a judgment against the defendant are limited. While the plaintiff may have a right to execute the judgment against any property owned by the defendant and/or any wages that he or she earns in the future, it may take a very, very long time to satisfy a judgment – if it is ever satisfied.

Of course these issues are meaningless if the plaintiff is unable to prove his or her case in court, so it is important that someone who has suffered personal injuries due to another person’s careless or reckless conduct consult an attorney who can help him or her build a case that will convince the jury of his or her right to money damages. Without evidence that preponderates in the plaintiff’s favor, the defendant’s liability insurance is irrelevant.

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The first question that must be answered in any Cape Cod wrongful death or personal injury lawsuit is, “Did the defendant owe a duty of care to the plaintiff?” The answer to this inquiry can be impacted by state statutes, existing case law, local ordinances, the particular facts of the case, the relationship between the parties, and various other matters.

If the defendant did owe a duty of care to the plaintiff, the next step is to determine whether the duty was breached. If it was, then the issue turns to the question of causation and, then, damages. Only if the defendant owed the plaintiff a duty of care, breached that duty, and thereby proximately caused legal damages to him or her may the case be resolved in the plaintiff’s favor.

If the answer to the duty question is “no,” the case ends there – unless the trial court’s judgment is appealed, of course. Then, a higher court may take a look at the case to determine whether a mistake was made in the lower tribunal. Only if the appealing party can convince the appellate court that a reversible error was made will there be a reversal of the lower court’s decision and a reinstatement of the plaintiff’s complaint.

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