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Negligence Lawyer in Pottstown, PA

Negligence is a key term in the success of a personal injury civil lawsuit. Without showing negligence was the cause of the plaintiff's injury, it is unlikely that a monetary award will be awarded. Additionally, understanding exactly what negligence is can help identify whether or not your case has merit and who will be responsible to compensate you for your injuries.

To succeed in a personal injury lawsuit you must prove the following negligence elements.

  • Duty
  • Breach
  • Causation
  • Damages


In most cases, a person must behave as a reasonably prudent person under similar circumstances. This means that people have a duty to not act in a way that is likely to cause harm to others. "Reasonable" can mean different things depending upon the context of the action.

For example, at a NASCAR race Driver C accidentally runs into Driver D as he was attempting to get out in front of the pack of cars. Because Driver C was racing on a track and was within the rules of the sport, it is likely that he was acting reasonably and that negligence did not occur.

However, if Driver C was upset at Driver D for winning the race and attempted to buzz his car to scare Driver D as he was parked and celebrating victory but he accidentally hit Driver D, it is more likely that this behavior would be deemed unreasonable as Driver C's actions were outside the purview of the race and were in no way within NASCAR's rules. Attempting to scare another driver is not a reasonable part of the sport, Driver C would likely be liable for any injury sustained by Driver D.

Breach of Duty

You must generally prove that the defendant violated the aforementioned duty of care through some action or inaction. For example, in a situation where a run-of-the-mill car accident occurred because Driver A was speeding in excess of 20 miles per hour above the posted limit, Driver A may have breached their duty of care to drive as a reasonably prudent person under similar circumstances.

When using the reasonably prudent person standard, most courts determine whether a person created an unreasonable risk of harm by using some form of a risk-utility balancing test. The balancing approach “rests on and expresses a simple idea. Conduct is negligent if its disadvantages outweigh its advantages, while the conduct is not negligent if its advantages outweigh its disadvantages.”

Using the car accident example, it is safe to say that the disadvantage of a car accident and subsequent injury does not outweigh the advantage of the driver arriving at their destination a bit earlier due to their increase in speed.


You must prove both “cause in fact” and “proximate cause.” Cause, in fact, requires you to connect the defendant's breach of duty to your injury. In most cases, you must show that you would not have suffered an injury but for the defendant's conduct. So, in the above example, had Driver A not been speeding, your vehicle would not have been struck and you would not have suffered injury.

Proximate cause requires you to establish a sufficiently close connection between the breach of duty and the harm. In most cases, the concept of foreseeability drives the determination of a proximate cause. For example, Driver A should have foreseen that their act of speeding would increase the probability of an accident occurring. Proximate cause is used in the court's decision making because it has long been held that it is unfair to hold a defendant responsible for things that were not able to be remotely predicted or foreseen.


You cannot have a personal injury claim without an injury. Even if you are able to prove that the defendant had a duty and breached that duty, there is no case if damages did not occur. For example, if Driver A was speeding, they breached their duty of care to other drivers and pedestrians but if an accident did not occur, a civil claim for personal injury damages would not be possible. Therefore, to win a personal injury case predicated upon negligence, you must prove that the defendant's breach caused you to suffer actual harm. 

Proof of injury often comes in the form of medical bills, doctor's notes, and testimony. If the court finds that you were able to prove that the defendant's negligence was the cause of your injury, you will likely be granted a monetary award in the form of compensatory damages.

Compensatory damages are awarded by a Court to compensate you for injuries suffered as a result of the negligence of the defendant(s). The award is meant to restore you – as much as possible – to the condition you were in before the occurring injury.

Compensatory damages include reasonable expenses necessary for medical care, hospitalization and treatment, economic loss from loss of income (both past and future), pain and suffering, disability, disfigurement, and mental anguish.

If the act that led to your injuries were above and beyond egregious, the court may make an additional award in an attempt to prevent the defendant from acting out in the future. This award type is known as "punitive damages." Punitive damages are meant to punish a defendant rather than to compensate you.

In seeking punitive damages, the court will permit evidence to be shown that a negligent defendant's actions went beyond a mere lack of care and into the realm of intentional and outrageous conduct. Therefore, punitive damages may be awarded only when the defendant deliberately proceeded to act in conscious disregard of, or indifference to, a high degree of risk of physical harm to another.


However, while you may well prove all of the requisite elements in your personal injury lawsuit, there may be a number of possible legal defenses. Some potential defenses include the following.

Assumption of Risk

Pennsylvania allows the assumption of risk doctrine to be used as a defense in a negligence action. For the assumption of risk doctrine to be a valid defense, the plaintiff must have had an understanding of the dangers associated with the activity to which they took part. Further, the plaintiff must have voluntarily chosen to accept the risk of danger.

However, a plaintiff that expressly agrees to absolve the defendant of liability by and through a waiver does not waive the ability to hold the defendant liable if an unexpected danger occurs during the activity. Rather, the danger must have been obvious to a reasonable person for an express agreement to absolve liability and stand as a valid defense.

The assumption of risk is implied when although no agreement has been made, a person knew that there was a risk and chose to expose themselves to it. The assumption of risk is express when a person has acknowledged, before the injury, that they are aware of the risk. This is usually proven via contract or some other type of legal agreement.

Modified Comparative Negligence

The law in Pennsylvania states that a plaintiff is able to recover for a personal injury caused by the negligent actions of another as long as the plaintiff was 50% or less at fault for the injury. If this is the case, the plaintiff's damage award will be reduced in proportion to the percentage of fault assigned by the court.

For example, if a court issued a damage award in favor of the plaintiff in the amount of $100,000 but attributed 20% of fault to the plaintiff for their injury, the plaintiff would be able to recover $80,000 of the $100,000 award.

If the plaintiff is found to have been 51% or more at fault, the plaintiff will be barred from recovery. Therefore, it is possible that the defendant may try to prove that you were at least 51% responsible for your injuries.

Hiring the Right Legal Counsel

If you have been injured because of the negligence of another, there is no decision more important than who you hire to represent you in court. You deserved an experienced and relentless Pottstown area lawyer that will put your needs first. The David J. Cohen law firm prides itself on providing clients with top-tier service that put clients in the best possible position for success. Contact David J. Cohen Law Firm, LLC today.


The David J. Cohen Law Firm provides the Ultimate Service to all clients, responding to inquiries responsively and before the day is over. I am the friendly, approachable, down to earth, attorney, who will fearlessly defend your interests through formidable representation. "There is no substitute for victory." Gen Douglas MacArthur

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