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Guide to Personal Injury
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Personal Injury Guides
- Introduction to Personal Injury Law
- Determining Liability for Injury
- Negligence and Compensation
- Time Limit for Filing an Injury Case
- Options for Pursuing Compensation
- Specific Types of Claims
- Getting Your Case Ready
- Personal Injury Insurance Issues
- How Much is Your Claim Worth?
- Filing your Claim and Starting Negotiations
- How to Negotiate a Settlement
- Accepting a Personal Injury Settlement
- Getting Legal Advice
Determining liability is a major factor in any personal injury case. It is essential to the success of any lawsuit and the primary focus of the attorney representing the injured victim. It is the duty of your legal counsel to establish negligence. Negligence is a legal term describing the actions of a party who did something they shouldn't have done, or when someone doesn't do something they were required to do.
Liability changes in each situation. The process of proving liability involves carefully investigating the circumstances surrounding the accident. A number of personal injury and product liability laws may come into play. The question of liability is one of the most important considerations in a personal injury case. Quite often, it is not cut and dried and requires significant technical analysis.
Duty of Care
In any negligence claim, duty of care must be proven first. The plaintiff must establish that the defendant had a relationship and that the defendant owed them a duty of care. This can best be described as the relationship between a doctor and patient, or between a consumer and manufacturer of the product the consumer purchased. Other examples may include a driver and passenger or an attendee at an amusement park and the corresponding owner/operator.
Breach of Duty
A breach of duty occurs when the plaintiff establishes that the defendant knew they were putting the plaintiff at risk for injury or damage. If the defendant failed to take action to rectify the situation, then a breach has occurred. Secondly, if the defendant did not realize they were putting someone else at risk, but a prudent and reasonable person or provider of goods and services could foresee risk of injury, this is also a breach of care.
In order to claim negligence, the plaintiff must prove the following four points:
The duty of care was owed to the plaintiff by the defendant
The defendant breached the duty of care
The plaintiff suffered a loss, damage or injury
The injury was caused by the breach and damages need to be awarded
Causation
The burden to establish the cause of the accident or injury remains on the plaintiff. They must prove by a preponderance of the evidence that the defendant was the cause of the plaintiff's injury. Simply put, the plaintiff must prove it was more likely than not that the defendant's actions caused the plaintiff's injury. For example, if a tire manufacturer has internal documentation which shows through testing, tread separation has occurred with their tires, they may foresee blowouts which could cause harm or even death to drivers and passengers. Another example might be that a doctor prescribes medication to a pregnant patient that may cause harm to an unborn fetus. There have been reports in the news regarding the toy safety and which toys are safe for what age. If the manufacturer fails to properly warn consumers that a particular toy is not safe for children under a certain age, and the parent purchases the toy and the child is injured, the manufacturer can be held liable. By not providing a proper warning label, their negligence caused the injury to the child.
Even adults need to be warned about existing hazards before operating certain products such as a snow blower, a generator, power tools, and sporting goods equipment.
Damages
After the question of liability has been answered, the next step is to determine damages. This can best be defined as the amount of money that can compensate for the injuries that were caused by the negligent conduct. The type and amount of damages depends on a variety of factors such as the victim's injuries, the circumstances surrounding the accident and how the case is settled.
Monetary losses may include the following:
- Medical expenses
- Future medical expenses
- Lost Wages
- Projected loss of income (if plaintiff is unable to work due to their injuries)
- Household services (cost of hiring someone to maintain or run the household)
Physical and mental pain may include:
- Pain and suffering
- Permanent disability
- Disfigurement
- Mental anguish (this can also include emotional and psychological distress)
- Loss of enjoyment of life
- Loss of consortium (benefits lost due to a relationship loss due to accident or injury)
All damages require evidence. Injuries can be documented through medical records outlining the treatment you received from a medical professional. Employment and school records may prove to be helpful as well.
Strict Liability Cases
If someone has committed an unintentional wrong against you, because of negligence or recklessness, there are different standards of liability that they may be held responsible for. If it can be clearly shown that the wrongdoer could have prevented the harm, but failed to do so, they may be held strictly liable for your harm. For example, in the case of dog bites, you may have a claim against the owner if their dog bites you regardless if there was malice or intent involved.
Strict liability often applies to cases, which involve dangerous activities such as excavating, blasting, or demolishing a building. This standard is often used in product liability cases involving defective products.
If the doctrine of strict liability applies to your case, you may only need to show you were caused harm, and that the defendant was responsible. For this reason, strict liability is sometimes referred to as absolute liability.
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