Injury claims and injury lawsuits frequently involve accidents. It could be a car collision, a defective product you bought, or you slipped on a slick surface at a store. Whatever the accident is, there is no lawsuit without a responsible party. This would be the driver whose car slammed into yours, the manufacturer of the product, or the owner of the slick-floored store.
In order for your case to be deemed worthy of paying out a settlement – whether awarded by the court or agreed upon as an out-of-court settlement – you have to prove that the responsible party was negligent. Negligence, in legal terms, is “a failure to use reasonable care under the circumstances.”
There are four elements of negligence, under the law. Your lawsuit or claim must be able to prove all four of these to be successful.
They are:
You need to prove that the responsible party’s actions (or lack of action) caused you harm. Or, that their action or inaction caused damage to your property or self.
You must also show that the damage or injury could have been reasonably foreseeable at the moment of the injury. This is also pursued situation by situation – did the specifics of the circumstance indicate that the responsible party could have and should have prevented what happened?
- DUTY
You have to prove that the responsible party had a duty to you. Duty can mean many different things depending on the type of case. If it was a car accident, the person had a duty to not run into your car with theirs; they had a duty to you that they would operate their motor vehicle cautiously. If it was a toy manufacturer, they had a duty to you to warn you about potential choking hazards in the toy’s smaller pieces. If it was a restaurant owner, he or she had a duty to have clearly marked fire exits, for example.
The lists go on and on. People in business have explicit duties to their customers. People using heavy machinery have a duty to the people surrounding them, and to those peoples’ vehicles.
- BREACH OF DUTY
You must also prove that the responsible party breached its duty to you. You must to be able to explain precisely how this party breached their duty.
In cases of medical malpractice, for example, you must show that the medical professional breached his or her duty to you as a care provider by carrying out the functions of their job improperly.
- DAMAGES
Lastly, you must show the extent and the nature of your property damage or personal injuries. These are damages.
These damages could include all of your medical bills, including ambulance rides, visits to specialists, and hospital visits. They could include money you lost from being unable to work. They could include child care you had to pay for when you were incapacitated and unable to watch and feed your kids.
They could also include pain and suffering, which is often a challenging part of the case to quantify. In many cases, the question of who is liable is easy to answer – e.g., the driver rear-ended your car. However, the nature and extent of the whiplash you suffered is open to debate and challenge.
The best personal injury attorney in your area will be able to ascertain quickly whether he or she can prove all four elements necessary to establish negligence. This determination will be vital to their decision as to whether or not they should represent you in your lawsuit. This determination will also be of central importance to the responsible party’s attorney, as it will indicate whether they should offer a settlement pre-trial, or whether they should let the case go to court.