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prove fault for your injury prove fault for your injury How do You Prove Fault for Your Injury When Making an Insurance Claim? landry 6

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If you have been injured in an accident caused by someone else, there is a good chance that you will turn to the at-fault party’s insurance company for compensation. In order to obtain relief from the insurance company, however, it is necessary for you to prove that the other party was responsible for the accident and your injuries. This article addresses proving liability in an insurance claim.

Burden of Proof in an Injury Claim

In any injury lawsuit, the person seeking to recover compensation has the burden of proving that the defendant is at fault by a “preponderance of the evidence.”

The injured party, referred to as the plaintiff, must therefore establish that it is more likely than not that the defendant caused the accident and that the accident caused the injury. The plaintiff can meet his or her burden by presenting detailed evidence about the accident and subsequent injuries, and by showing how the facts of his or her case fit within the established rules governing negligence claims.

Almost all insurance claims will depend on the plaintiff establishing that the defendant was negligent. Negligence requires showing the existence of four elements: 1) the defendant owed a duty of care to the plaintiff, 2) the defendant breached that duty of care by acting unreasonably, 3) the defendant’s unreasonable conduct caused an injury, and 4) that the plaintiff was actually injured.

Establishing the Duty of Care

The “duty of care” refers to the defendant’s legal obligation to act with reasonable caution for the plaintiff’s safety. Sometimes the duty of care is easy to establish.

In car accident claims, for instance, the defendant owes a duty to exercise his motor vehicle safely at all times, which may include specific requirements such as following at a safe enough distance to avoid rear end collisions.

Other insurance claims, such as slip and fall cases, will deal with a different type of duty of care. For example, a department store is required to maintain reasonable safety precautions for its customers, but the store has no duty to clear its sidewalk of natural accumulations of ice and snow. The duty of care owed to a plaintiff might also depend on the plaintiff’s own legal status. For instance, a homeowner owes a different duty of care to a person who is trespassing on the homeowner’s property than the owner would toward a social guest.

The plaintiff can establish the duty of care owed by the defendant in different ways. In automobile insurance claims, the defendant’s duty may be established by statute requiring the use of turn signals or an “assured clear distance.” In slip and fall cases, the plaintiff might establish the duty owed by showing that he or she was a paying customer and therefore entitled to a heightened duty.

Showing Breach of Duty

After establishing that the defendant owed a duty of care, the plaintiff must offer evidence to prove that the defendant breached that duty.

This requires producing evidence that the defendant failed to act as a reasonably careful person would have acted in similar circumstances. In car accident claims, a plaintiff can show a breach of duty by producing a police report in which the defendant was cited for violating specific traffic safety laws. Other evidence that a car accident claimant might introduce would be the report of an accident reconstruction expert who can show that the defendant’s conduct was unreasonable and unsafe. The plaintiff might also present photographic evidence or the evidence of witnesses to the scene who may be able to testify that the defendant was operating his vehicle in an unsafe manner.

In a slip and fall case, the plaintiff may be able to prove breach by showing that the defendant knew of an unsafe condition on its premises, but failed to either warn the plaintiff or take steps to remedy the condition. This might be proved by presenting evidence of similar accidents that had occurred on the same property.

The Proximate Cause Link to the Injury

The plaintiff also must prove that the defendant’s unreasonable conduct caused the injury. The level of causation must be “proximate” — which essentially means proving that “but for” the defendant’s unsafe conduct, the plaintiff would not have been injured.

Proximate cause is not always easy to establish. For example, in situations where a plaintiff already had a bad knee, it is more difficult to show that the particular car accident was the but-for cause of the plaintiff requiring knee surgery. The plaintiff can overcome this type of causation issue by introducing medical records and testimony that differentiates the type of knee injury and surgery required after the accident from the injury as it existed before the accident. Medical practitioners can also provide reports and testimony stating that, in their medical opinion, the plaintiff’s injuries were a result of the accident and not some other cause.

The Injury and Damages

Finally, the plaintiff must prove injury and damages. This can be established through various types of evidence, including photographs, medical records, medical bills, and the testimony of treating and expert physicians.

The plaintiff can quantify the amount of damages sustained by introducing evidence of medical bills. Lost wages can also be damages and can be proven through tax returns or employer records. The plaintiff can also seek damages for pain and suffering. Plaintiff, and his or her family or friends, can testify as to the discomfort, inconvenience and other negative results that plaintiff endured as a result of the accident. Finally, many insurance claims involve property damage as well. Plaintiff can produce evidence of car repair costs and photographs showing the extent of damage to the vehicle or other property.