In personal injury cases, the victim, the person who acquired an injury, will depend on carelessness on the third party’s side. Essentially, this means that it’s though that the third party was liable for causing the injury.
On the other hand, negligence can be a rather complex concept to grasp. It is made up of elements – the duty of care and breach of duty.
A Personal Injury Case’ Three Elements
Duty of care
A legal reference that talks about the fact that each person needs to be liable for avoiding being the harm cause for somebody else. Personal injury cases, step one toward proving negligence, thus, is set the third party owe a duty of care in the particular instant that caused the injury to take place.
However, the second element is that the plaintiff should show that the defendant violated that duty by their conduction, be that inaction or action. If it’s set that duty of care is violated, there’s still no assurance that a personal injury claim will win.
This is the final thing that the plaintiff should show is that the breach of the duty of care, in fact, caused an injury. Let us look at this in detail.
Duty of Care
Showing the breach of the duty of care can be carried out if the plaintiff demonstrates that the defendant’s actions or inaction failed to meet the standard of care that’s reasonably expected in these cases.
The big issue here is demonstrating what the standard of care truly is. In fact, the facts surrounding every case individually will simply determine this.
For instance, in a car traffic accident, the standard of care is rather clear. A car driver needs to be careful constantly and needs to consider things such as traffic conditions, weather, and visibility in running the vehicle.
Every state has traffic codes and rules available that obviously state the responsibility of a driver. In addition, it’ll highlight the kinds of behaviors prohibited, like driving while drunk or on drugs.
In a personal injury case involving vehicle accident, the plaintiff will need to show that the defendant wasn’t driving the way it ought to be. And the defendant could’ve been speeding, or have run a stop light, or got way too near to the back of the plaintiff’s vehicle, and all that.
However, other cases are a lot less clear cut. For example:
- Somebody who slipped and fell in a particular establishment will need to show that the business didn’t remedy show dangers or risks on time, or prevented hazards away.
- Somebody who’s the medical malpractice victim will need to show that the medical staff didn’t give you the proper standard of care (particularly, a medical professional witness is necessary for this).
- Somebody who gets harmed because a defective product should demonstrate the seller, manufacturer and distributor didn’t uphold their duty to make products safe to utilize. There are exemptions, especially when it comes to the statute of limitations.
Once you’ve established that there’s a duty of care, then you or you lawyer will then need to show how the duty of care was violated.
This is about showing that the accused party carried out something, or failed to carry out something, that’d mean that the conduct of that person was unreasonable. Basically, this is about demonstrating a fault in a case.
Utilizing the same vehicle accident example, it should be established that a certain traffic law was violated. This can be carried out via a CCTV footage, police report, testimony from the plaintiff, eyewitness testimony, an accident scene examination and the car itself.
There are instances in which how the plaintiff acted contributed to his or her own injury too. Meaning that there’s negligence on the defendant’s side but, to some degree, on the plaintiff’s part as well.
For example, again with the vehicle accident sample, if the defendant turned left abruptly, thereby resulting in the accident, yet the plaintiff was driving too fast as well, perhaps, the claim will need to be adjusted.
In these instances, insurers (or even the judge) will determine the fault percentage is on both parties. They will then calculate an award, but the responsibility percentage the plaintiff’s side will then be taken from this amount.
Comparative negligence is the term and the majority of states have implemented this.
But, some states also follow a different legal system, called the contributory negligence. And in these instances, if the plaintiff was negligent in the situation, even though it’s as little as one percent, the plaintiff may not be rewarded with damages at all.
Ultimately, the plaintiff should show that an actual injury was suffered because breaching the duty of care. This is an extremely complicated matter, with various types of injuries causing different forms of awards.
Also, different states have various regulations and rules according to this. It’s best to talk to an attorney to get some knowledge of what you may reasonably have. On the other hand, you may study the formula for damages compensation, though this is just designed to provide you with a general notion of what should expect.