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personal injury case personal injury case What Do You Need to Win a Personal Injury Case Hyannis landry image 4In a personal injury case, the plaintiff, which is the person who sustained an injury, will rely on negligence on the side of the third party. This basically means that it is believed that the third party was responsible for causing the injury. However, negligence can be quite a complex concept to understand. In fact, it is made up of two specific elements, being first duty of care and, secondly, breaching this duty.

Three Elements of a Personal Injury Case

Duty of care is a legal reference that discusses the fact that every individual has to be responsible for avoiding being the cause of harm for someone else. Within personal injury lawsuits, step one towards proving negligence, therefore, is establishing that the third party had this legal duty of care in the specific instant that led to the injury taking place.

The second element, however, is that the plaintiff must demonstrate that the defendant breached that duty by his or her conduction, be that action or inaction. If it is established that the duty of care has been breached, there is still no guarantee of a successful personal injury claim. This is because the final thing the plaintiff must demonstrate is that breaching the duty of care actually resulted in an injury. Let’s review this in greater detail.

Duty of Care

Demonstrating that the legal duty of care has been breached can only be done if the plaintiff proves that the actions or inaction of the defendant failed to meet the level of care that can reasonably be expected in these circumstances. The big problem here is establishing what the reasonable standard of care actually is. Indeed, the facts surrounding each case individually will determine this.

Using a car traffic accident as an example, the standard of care is quite clear. A driver has to always be careful and has to take into consideration such things as weather, traffic conditions and visibility in operating the vehicle. Each state has codes and traffic codes in place that clearly state what the legal responsibility of a driver is. Additionally, it will highly the types of behaviors that are prohibited, such as driving under the influence of drugs and alcohol. In a car accident personal injury case, the plaintiff will therefore have to demonstrate that the defendant was not driving the way it should be. The defendant may have been speeding, have run a red light or got too close to the rear of the plaintiff’s car, and so on.

Other cases are less clear cut, however. For instance:

• Someone who slips and falls in an establishment will have to demonstrate that the business did not remedy present dangers on time, or kept hazards away.
• Someone who is the victim of medical malpractice will have to demonstrate that the medical personnel did not provide you with the right standard of care (usually, a medical expert witness is required for this).
• Someone who gets injured due to a defective product must show the seller, distributor and manufacturer did not uphold their legal duty to create products that are safe to use. There are exceptions, particularly in terms of the statute of limitations.

Establishing Fault

Once you have established that there is a duty of care, our personal injury lawyers at Kevin P Landry Law Offices always take it upon themselves to establish how this duty of care was breached. This is about demonstrating that the defendant did something, or failed to do something, that would mean that person’s conduct was unreasonable. Essentially, this is about establishing legal fault in the case.

Using the same car accident example, it must be demonstrated that some sort of traffic law was breached. This can be done through a police report, CCTV footage, eye witness testimony, testimony from the plaintiff, an examination of the scene of the accident and the vehicle itself.

There are cases in which the way the plaintiff behaved contributed to the injury as well. This means that there is negligence on the side of the defendant but, to some extent, also on the part of the plaintiff. For instance, again with the car accident example, if the defendant made an abrupt left turn, thereby causing the accident, but the plaintiff was also driving over the speed limit, the claim may have to be adjusted. In these cases, insurance companies (or the judge if the case goes to trial) will determine what the percentage of fault is on both sides. An award will then be calculated, but the percentage of responsibility on the side of the plaintiff will then be deducted from this amount. This is known as comparative negligence and most states have adopted this.

However, there are also states that follow a different system, which is called contributory negligence. In these cases, if the plaintiff had any negligence at all in the case, even if it is as little as 1%, no damages from the defendant will be awarded to the plaintiff at all.

Showing Harm

Finally, the plaintiff must demonstrate that an injury was actually suffered due to the breach in duty of care of the defendant. This is a very complicated issue, with different types of injuries leading to different types of awards. Different states also have different rules and regulations according to this. It is best to speak to a Hyannis personal injury lawyer in order to get an idea of what you can reasonably expect. Alternatively, you could study the damages compensation formula, although this is only designed to give you a general idea of what to expect.