What is the Burden of Proof for Negligence Lawsuits?
The Plaintiff Bears the Burden of Proving All Elements of the Negligence Tort by a Preponderance of the Evidence
Holding the defendant liable (legally responsible) for damages caused by their negligence requires that you meet a specific burden of proof: a preponderance of the evidence.
This standard of proof means you must show that more likely than not (more probable), the defendant was obligated to protect you from harm but acted carelessly and that carelessness caused you bodily injury or property damage.
Keep reading to learn more about the burden of proof for negligence for the plaintiff and defendant and how to satisfy it by producing evidence that convinces the factfinder (judge or jury) that you should win and receive money from the defendant.
Then call us at 804-251-1620 or 757-810-5614 if you have questions about car accident laws.
Our personal injury attorneys represent auto accident victims, injured workers (the preponderance of the evidence standard applies in many workers compensation cases), and disabled adults in Virginia and Maryland.
And we want to fight for you and scare the insurance adjuster into offering a better motor vehicle crash settlement.
Definition of Burden of Proof
The term “burden of proof” refers to a party’s obligation to prove factual allegations in the complaint supporting its legal claims (causes of action) or affirmative defenses.
Many courts, including the Court of Appeals of Virginia and the Workers Compensation Commission, divide the burden of proof into two separate obligations: production and persuasion.
The burden of production refers to a party’s need to introduce evidence at the hearing or trial, also called the burden of going forward with evidence.
In contrast, the burden of persuasion refers to how convincing a party’s evidence must be to win a claim or succeed with an affirmative defense.
Burden of Producing Evidence
The burden of production is also called the “burden of going forward with the evidence” and “the risk of nonproduction.”
This concept refers to a party’s obligation to offer evidence that a reasonable mind could accept as proof of an issue.
The burden of producing evidence may shift from one party to another (and back) during a hearing or trial.
Failing to meet the burden of production has severe consequences. For example, an injured plaintiff may have their case thrown out of court with a directed verdict or a motion to strike the evidence. Alternatively, a defendant may fail to receive a jury instruction on an affirmative defense such as contributory negligence or statute of limitations.
Burden of Persuasion
The burden of persuasion, sometimes called the standard of proof or the risk of non-persuasion, refers to how convincing the evidence offered must be to prove a cause of action or an affirmative defense.
Legislatures and courts allocate the burden of persuasion based on public policy, probabilities, and other considerations.
The three most common standards of proof include:
- “Beyond a reasonable doubt,” which is the highest standard.
- “Clear and convincing evidence” is the middle standard and still high in mathematical terms.
- “Preponderance of the evidence,” which is the lowest burden.
Unlike the burden of production, the burden of persuasion never shifts. It stays with the same party for the entire hearing or trial.
Who Has the Burden of Proof for Negligence Claims?
The general rule in tort law is that the plaintiff bears the burden of proof in nearly every civil lawsuit.
Therefore, the burden of proof is on the injured person in negligence claims because they are trying to persuade the court to force the defendant to pay them for bodily injury or property damage caused by the defendant’s negligence.
This burden falls on you (the injured party) regardless of the negligence type alleged (ordinary, gross, or willful and wanton).
In addition, you must offer proof to meet your burden for each element of the negligence tort: duty, breach of duty, causation, and harm.
Preponderance of the Evidence Standard Applies in Negligence Tort Cases
The plaintiff must prove by a preponderance of the evidence that the defendant’s negligence caused the plaintiff’s harm or loss.
This category is the least strict standard of proof.
Different courts use different definitions of preponderance of the evidence.
For example, the Virginia Model Jury instructions define a preponderance of the evidence as:
The greater weight of all the evidence is sometimes called the preponderance of the evidence. It is that evidence which you find more persuasive, when evaluated against all of the evidence that has been admitted in this case. The testimony of one witness whom you believe can be the greater weight of the evidence.
While the federal regulations for the Merit Systems Protection Board define preponderance of the evidence as:
The degree of relevant evidence that a reasonable person, considering the record as a whole, would accept as sufficient to find that a contested fact is more likely to be true than untrue.
In summary: A preponderance of the evidence in negligence cases means you prove that something is more likely than not. In mathematical terms, you satisfy your burden of proof for an element of the claim when the judge or jury finds at least a 51 percent chance that the weight of the evidence supports your position.
How Can I Meet the Negligence Burden of Proof?
The case law is clear: you cannot rely on the occurrence of an accident or injury to win a negligence claim. Instead, you must present evidence to prove each part of the cause of action.
Your proof of negligence may consist of direct and circumstantial evidence.
For example, in most injury cases involving auto accidents, you should present the following types of evidence to prove negligence and the extent of your injuries and losses:
- Testimony (your own and that of witnesses)
- Medical records (including bills)
- Letters addressing causation and disability (such as permanent impairment ratings, permanent partial disability, and work restrictions)
- Expert witness reports (such as papers from orthopedic surgeons, physical therapists, chiropractors, life care planners, accident reconstruction engineers, etc.)
Does the Defendant Have the Burden of Proof on Any Issue in Negligence Actions?
No.
The defendant does not have to prove they acted as a reasonable person would have in a situation similar to the facts presented by the lawsuit.
Like the defendant in a criminal case, a defendant accused of negligence has no obligation to introduce evidence.
However, skilled insurance defense attorneys will develop evidence to undermine your proof of liability and damages to minimize the impact of an unfavorable verdict.
For example, most defense attorneys ask the plaintiff to undergo an independent medical examination (IME) to create adverse evidence the defendant can use to attack the injured person’s claim or accuse them of malingering.
This general rule that the defendant has no responsibility to produce evidence or persuade the factfinder has an exception.
The defendant bears the burden of proof (producing evidence and persuading the judge or jury) when it raises an affirmative defense, demurrer, or plea in bar.
Helping Accident Injury Victims Meet Their Burden of Proof and Show the Defendant’s Negligence More Likely Than Not Caused Harm
You have the burden of presenting the more convincing evidence in a negligence case.
We can help.
Contact us today for help satisfying your burden of proof and recovering damages in a personal injury case.
- Will the Dollar Tree Store Closures Affect My Workers’ Compensation? - March 14, 2024
- Workplace Injuries in 2022: BLS Releases Statistics - December 15, 2023
- SSA Proposes a Rule Change to Work History Evaluation - November 1, 2023
