In most Montana personal injury cases, the injured person (called the “plaintiff”) or their attorney uses the legal theory of “negligence” to establish that some other person or entity (called the “defendant”) is at fault for their injuries.
But what is negligence? How does a person establish it? And what happens if the injured person is partially responsible for their own injuries? Finally, does negligence apply to car accident and dog bite cases?
Let’s take a closer look at negligence as a basis for recovery in Montana personal injury cases.
Most accidents happen because someone was careless. In legal terms, this carelessness is called negligence.
A person can be negligent by doing something they shouldn’t have done (such as running a stop sign) or failing to do something they should have done (such as an owner failing to remove ice from the entryway of their business).
The plaintiff has the burden of establishing that the person who caused their injuries was negligent. In order to meet this burden, the plaintiff must prove the following 4 elements:
Let’s take a look at an example:
Say you walk into a grocery store and slip on a spilled soft drink that has been on the floor for 2 days. As a result you seriously injure your back and decide to sue the grocery store.
In this example, the grocery store (the defendant) owed a duty to you (and all other customers) to take reasonable steps to keep the premises safe. The defendant breached this duty by failing to clean up the spilled soft drink in a reasonable amount of time. If not for the defendant’s breach, you wouldn’t have slipped on the soft drink. Finally, you suffered actual damages (your back injury).
See below for a few common examples when there’s a clear duty. This is not a complete list; it’s merely a few scenarios. Every person has a legal obligation to avoid harm to others. Similarly, an employer always has a duty to protect their employees from harm.
|Doctor||... has a duty to...||treat a patient to the best of the doctor’s capabilities based on experience, knowledge, and information|
|Childcare provider||... has a duty to...||properly supervise children and protect them from harm while in their care|
|Accountant||... has a duty to...||protect and grow your finances based on their experience and knowledge of financial conditions, and prevent unnecessary losses|
|Dog owner||... has a duty to...||protect neighbors, visitors, and others in the community by ensuring that the dog is not able to bite or attack a person or animal by keeping it on a leash or otherwise restrained|
|Manufacturer||... has a duty to...||ensure that any product sent to market is safe when properly used|
|Home or property owner||... has a duty to...||ensure that walkways, driveways, or other grounds are safe for a visitor to walk or travel without risk of foreseeable injury|
|Driver||... has a duty to...||be responsible on the road, obey traffic rules, and operate their vehicle in a way that a reasonable person would|
How you go about proving the elements of negligence will vary depending on the specific circumstances of your case.
An experienced attorney can help you identify and gather the necessary evidence, which may include:
As discussed above, negligence requires you to prove that the defendant owed you a duty and that the defendant breached that duty.
Under the legal doctrine of negligence per se, the defendant’s law-breaking act serves to establish those first 2 elements automatically. In other words, if you can show that the defendant violated a statute, you don’t have to show that the defendant owed you a duty and breached that duty.
Negligence per se isn’t available in all cases. In Montana, negligence per se is only available in situations where:
For example, in Montana, there is a statute that requires landlords to repair and maintain the premises they are renting. The law is intended to protect renters from being harmed on the premises.
Let’s say that John (the landlord) fails to repair a broken smoke detector in a reasonable amount of time. In the middle of the night, a fire starts and burns Susan (the renter). In this hypothetical scenario, John is negligent per se because he violated a statute designed to protect a specific class of persons (renters). The person injured (Susan) is a member of that class, and the injury is the sort of injury intended to be prevented by the statute.
Keep in mind that Susan would still have to show causation (that the failure to repair the smoke alarm caused her injuries).
What happens if both you and the defendant are partially responsible for your injuries?
Montana follows the modified comparative fault theory. Under this theory, the amount of damages a plaintiff can recover is reduced by a percentage that reflects their own degree of fault – so long as the percentage doesn’t exceed 50%.
If the plaintiff’s percentage of fault exceeds 50%, the plaintiff can’t recover ANY damages.
For example, let’s say another driver fails to stop at a stop sign and crashes into you. But when this occurred you were driving at night with your headlights off. A judge or jury may find that you were 51% at fault for the accident and the defendant was 49% at fault. Under Montana’s modified comparative fault law, you wouldn’t be able to recover ANY damages from the defendant.
But, let’s say the judge or jury found you 30% at fault and the defendant 70% at fault instead. In this situation, you would be able to recover 70% of your total damages from the defendant.
In some states (like Florida), lawmakers have tried to cut down on the number of lawsuits by instituting a no-fault insurance system. In these states, each driver involved in a car accident pursues compensation through their own insurance provider regardless of who’s at fault for the accident. The process reduces the costs associated with litigation because any dispute about who caused the accident is irrelevant.
Other states have a fault-based insurance system. In these states, the at-fault driver (or their insurer) is responsible for paying the other parties damages. This means that the other driver and their insurer can (and often do) dispute liability.
Montana has a fault-based insurance system. This means that if you get into an auto accident in Montana, you’ll have to show that the other driver was negligent in order to receive compensation from an insurance company.
If the at-fault driver has no liability insurance, you can make a claim with your own insurance provider under the uninsured motorist provision. All car insurance policies in Montana include uninsured motorist coverage unless you specifically reject the coverage in writing.
In Montana, dog owners are strictly liable for any injuries that result from their dog biting someone else so long as the injured person didn’t provoke the dog and:
This means that the owner is liable for the injuries even if their dog has never bitten anyone before.
If you or a loved one has been injured due to someone else’s actions, consider using our free online directory to contact an experienced Montana attorney. Most attorney’s offer free initial consultations, which gives you an opportunity to find out if you have a legitimate case without spending any money.