Request a Free Consultation

Negligence & Personal Injuries in Pennsylvania

Posted on May 10, 2022

To hold another party legally liable for a personal injury, you must be able to prove their negligence caused it. Negligence is a term that refers to a party’s failure to exercise the reasonable care expected of them in a particular situation. To hold them accountable and recover compensation, you must be able to establish the four elements of negligence: duty of care, breach of care, causation, and damages. 

What Is The Duty of Care in a Personal Injury Case?

A personal injury case can only exist if the defendant (at-fault party) owed the victim a duty of care when they contributed to or caused their injury. A duty of care refers to a person’s legal obligation to exercise the reasonable care that another person would under the circumstances to prevent harm to others. Duty of care distinguishes an unavoidable accident from a preventable accident. 

The duty of care a defendant owes is unique to each case. For example: 

  • Car Accident Case: Drivers owe others on the road a duty of care to drive their vehicle safely and follow traffic laws.
  • Medical Malpractice Case: Healthcare providers owe a duty of care to patients to possess and extend the same training and skills as a similar healthcare provider in their community, etc. 
  • Premises Liability Case: Property owners owe visitors a duty to keep their premises reasonably safe from hazards. 


How Do Attorneys Show a Breach of Duty Occurred?

A breach of duty of care is a defendant’s failure to demonstrate the reasonable care expected of them. A breach of duty can be a lack of action to prevent injury or a wrongful action that resulted in an injury.

Each case will call for a higher or lower standard of care. As a result, whether or not the defendant behaved “reasonably” or violated their duty in a given situation is often the most contested issue in a personal injury claim. 

To show whether a duty of care was breached, a Philadelphia personal injury attorney will have to establish the duty owed by the defendant and then how it was violated. Some examples of cases and the evidence that shows a duty is breached include: 

  • Car Accident Case: Cell phone records that show the at-fault driver was texting while driving before the crash. 
  • Medical Malpractice Case: Eyewitness confirmation that a surgeon failed to check a patient’s chart, leading them to operate on the wrong patient. 
  • Premises Liability Case: Video surveillance footage shows a grocery store manager was aware of a spill and failed to clean it up within a reasonable amount of time, leading to a slip and fall. 

Proximate Cause

Proximate cause is the third element of negligence that a plaintiff must prove. Doing so involves providing evidence that the defendant’s negligence directly caused your injury. In other words, you would not have been injured but for the defendant’s actions or lack thereof.

In some cases, causation is straightforward, such as medical records that detail your transport from a car accident scene to the hospital where you were treated and the injuries you sustained. However, in other cases, proving proximate cause can be more complicated.

For instance, linking your illness to a physician’s failure to diagnose it early on can be considerably complex and will often require expert medical testimony to prove. 


The final element to prove negligence in a personal injury case is damages. Damages is the legal term referring to the losses you suffered as a result of the accident caused by the defendant. For example, that may include medical bills, lost income, pain and suffering, emotional distress, and more. If you did not suffer any losses that require reimbursement, the court cannot award damages.  

Are There Different Types of Negligence?

There are several types of negligence that may be relevant in a Pennsylvania personal injury case:

Modified Comparative Negligence

Pennsylvania follows a modified comparative negligence law in personal injury cases. Under this legal principle, an injured party’s opportunity to recover compensation is determined based on the degree of their own fault or negligence in the incident.

Specifically, Pennsylvania uses a modified version of comparative negligence known as the “51% rule.” According to this rule, an injured party can recover damages as long as their own negligence is not greater than the combined negligence of the other parties involved. However, if the injured party’s negligence is found to be 51% or more, they are barred from recovering any compensation.

This law means that if you suffer an injury, for example, in a car accident, and file an insurance claim, your compensation may be reduced if your own actions contributed to the crash. As long as your negligence is less than 51%, you can still recover compensation, but the amount will be adjusted based on the degree of your fault. For instance, if you are awarded $100,000 and found 30% to blame, you will receive 70% of your award or $70,000.

Gross Negligence

Gross negligence refers to a reckless or willful disregard for the safety of others. It involves a higher degree of carelessness than ordinary negligence and may result in more severe consequences and potential punitive damages. Punitive damages are a form of compensation awarded in certain legal cases to punish the defendant for egregious misconduct or intentional wrongdoing.

Vicarious Negligence

Vicarious negligence can apply to a personal injury case when one party is held responsible for the negligent actions of another.

This often arises in situations involving employer-employee relationships, where employers can be held vicariously liable for the negligent conduct of their employees while performing job-related tasks.

For example, if an employee causes a car accident while driving a company vehicle for work, the employer may be held vicariously responsible for the employee’s negligence.

Similarly, vicarious liability may apply in cases of negligent supervision, where an individual or entity is responsible for overseeing another party’s actions, such as parents being held responsible for the negligent conduct of their minor children.


Medical malpractice occurs when a healthcare professional, such as a doctor, nurse, or hospital, deviates from the accepted standard of care, leading to harm or injury to a patient.

This form of negligence can apply to a personal injury case when a healthcare provider fails to meet the expected standard of skill and care in diagnosing or treating a medical condition.

Negligence Per Se

Negligence per se is a legal doctrine that applies when an individual violates a statute or regulation, and as a result, their actions are considered inherently negligent.

What is the Difference Between Negligence and Negligence Per Se?

In personal injury cases, negligence per se comes into play when the defendant’s violation of a law designed to protect a specific group of people leads to harm or injury to a member of that group.

Rather than proving the standard elements of negligence, such as duty, breach, causation, and damages, negligence per se establishes negligence based on the violation of a statute. For example, if a driver violates a traffic law and causes an accident, they may be deemed negligent per se.

The key conditions for negligence per se to apply include the existence of a relevant statute, the violation of that statute by the at-fault party, and the resulting harm being the type the statute was designed to prevent.