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Personal Injury FAQ

How can I prove that the defendant acted negligently?
What is the duty to use reasonable care?
Are there different standards of care for different people?
What is causation?
If I am partially at fault for causing my own injuries, can I still recover damages?
What are some common defenses in personal injury cases?
What is the Statute of Limitations for personal injury claims?
What is the Burden of Proof in personal injury cases?

How can I prove that the defendant acted negligently?

In order to prove that a defendant acted negligently, and is therefore responsible for your damages, our attorneys must demonstrate all of the following:

  1. Duty: The defendant had a duty to use reasonable care towards you.
  2. Breach of Duty: The defendant breached that duty by acting unreasonably.
  3. Causation: The defendant\’s breach of duty caused your injury.
  4. Damages: You suffered damages as a result of your injury.

Each and every one of the above 4 elements must be proven in order to recover damages in a personal injury case. Once we prove that the defendant was negligent, you have the right to be compensated for your injuries.

What is the duty to use reasonable care?

Every person has a duty to use reasonable care when engaging in conduct that might pose a foreseeable risk of harm to others. Generally, this means that a person must behave with the care that would be exercised by a reasonable person under the same or similar circumstances. To determine whether a defendant has acted negligently in a personal injury case, the judge or jury must decide if he or she exercised reasonable care under the particular circumstances of the case. They do this by asking how a person of average intelligence and judgment would have acted under the same or similar circumstances. For example, a reasonable driver preparing to make a left turn would first check to make sure that there was no oncoming traffic before turning. A driver who did not exercise this reasonable care before making the turn would be negligent.

Are there different standards of care for different people?

What is considered a “reasonable” standard of care varies depending on whether a person is an adult, a child, or a professional. The following are the differing standards of care that apply in negligence cases:

  • Reasonable Person Standard: An adult will be deemed negligent if he or she fails to act in the manner as a person of ordinary intelligence and judgment would have acted in the same or similar circumstances.
  • Reasonable Child Standard: Children are held to a lower level of care than adults. To determine whether a child acted negligently, the child\’s conduct is measured against what would be expected from a child of similar age, intelligence, and experience under the same or similar circumstances. Children of very young ages, however, generally cannot be held liable for negligence.
  • Reasonable Professional Standard: Professionals, such as lawyers, doctors, and psychiatrists, are held to a higher standard of care than the average person due to their specialized training and experience. Professionals act negligently if they fail to exercise the same degree of skill and knowledge typically exercised by other competent members of their profession within the same geographical area.

What is causation?

In order to seek damages from a person for negligencea, you must first prove that his or her negligence was the actual cause of your injury. The defendant\’s negligence does not have to be the only cause of the accident in order for you to recover damages. Rather, you can seek damages from all parties whose negligence contributed to causing your injuries. If you cannot prove that a particular defendant\’s negligence was a contributing cause of your injuries, you will be unable to recover damages from that defendant.

The following example will help to illustrate causation: Imagine an SUV is speeding when it suddenly approaches an abandoned car in the middle of the road. In order to avoid crashing into the car, the driver of the SUV slams on the brakes. However, a mechanic, who recently repaired the brakes, neglected to replace the worn out brake pads. As a result, the brakes fail and the SUV crashes into the abandoned car, causing it to collide with you as you are crossing the street in an area that is not a designated crosswalk. Your injury had many causes:

  • The SUV driver\’s negligence in driving at an unsafe speed;
  • The brake repairman\’s negligence in failing to replace the brake pads;
  • The car driver\’s negligence in abandoning a car in the middle of the road; and
  • Your own negligence in failing to cross the street in a marked crosswalk.

If I am partially at fault for causing my own injuries, can I still recover damages?

In personal injury cases, the judge or jury must determine the degree of fault for each party that is responsible for causing the accident and assign to each party a portion of the total damages suffered based on his or her percentage of fault. This process is called comparative negligence. Under pure comparative negligence, the amount of damages awarded to the plaintiff will be reduced in direct proportion to the plaintiff\’s percentage of fault in causing his or her own injuries. For instance, if you are 30 percent at fault for causing an accident, you could recover 70 percent of your damages. However, if you are 70 percent at fault for causing an accident, you could recover only 30 percent of your damages. All of the other parties alleged to be at fault would then be responsible for paying 30 percent of your total damages, apportioned between them in proportion to the amount of fault assigned to each.

What are some common defenses in personal injury cases?

There are defenses to personal injury claims which may limit or even deny your recovery of damages. The first is the statute of limitations, which bars recovery to plaintiffs who do not file suit within the time limit set by law. Other common defenses include lack of causation and contributory negligence. These and other defenses are briefly discussed below.

  • Lack of Causation: In order to prove causation in personal injury cases, you must demonstrate that the defendant’s conduct was the cause of your injuries. To satisfy this requirement, you do not have to show that the defendant was the only responsible party, but only that there is a connection between the defendant’s conduct and the injury such that the injury would not have occurred without the defendant’s actions. If there is no causal connection, the defendant will not be held responsible for your injuries.
  • Contributory Negligence: In some instances, you may be contributorily negligent in causing your own injuries. Typically, your recovery will be reduced by the percentage you are at fault for causing your own injuries.
  • Assumption of Risk: If you engage in inherently risky or dangerous activities and suffer injury as a result, you may be deemed to have “assumed the risk” of injury associated with that activity. For legal purposes, assumption of risk may be either express – per written or oral agreement – or implied.
  • Open and Obvious Danger: Another defense that is similar to assumption of risk arises when you engage in an activity that poses an open and obvious danger. Whereas assumption of risk focuses on an array of dangers that are inherently possible, open and obvious conditions deal with one’s knowledge of a specific known threat, such as a guard dog.

What is the Statute of Limitations for personal injury claims?

As with all lawsuits, a statute of limitations restricts the time in which you can file a lawsuit for negligence. If you miss the deadline, you have no legal recourse. The statute of limitations in personal injury cases is typically two years. Note that this time is much shorter if you are alleging negligence against a public entity, municipality, or public employee, in which case a notice of claim must be filed within six months from the date of the accident.

What is the Burden of Proof in personal injury cases?

The burden of proof in personal injury cases is called “preponderance of the evidence.” This burden of proof is much less strict than the standard in criminal cases of proof “beyond a reasonable doubt.” A preponderance of the evidence requires the plaintiff to prove that there is greater than 50 percent likelihood that the defendant was negligent, that the defendant\’s negligence caused the accident, and that the plaintiff\’s injuries resulted from the accident.

Preponderance of the evidence can be illustrated for juries by comparing it to the scale of justice. If one party\’s evidence is placed on one side of the scale and the other party\’s evidence is placed on the other side of the scale, the slightest tipping in favor of the party bearing the burden of proof on an issue means that that party has prevailed on the particular issue. If the scale remains evenly balanced, then the party who bears the burden of proof on an issue has failed to sustain the burden. Each party who has the burden of proof on a particular issue, in order to prevail on that issue, must sustain their burden of proof based upon a preponderance of the evidence.