When Your Personal Injury Case Involves Negligence
Many personal injury claims occur because someone has been careless. When such carelessness causes a personal injury, accident lawyers call it “negligence.”
The law defines “negligence” as failure to behave with “reasonable care under the circumstances.” Understanding this definition is important, because your accident attorney may have to prove negligence in order to obtain recovery for your personal injury.
Proving Negligence in a Personal Injury Case
To prove negligence in a personal injury case, your accident lawyer must show four things:
- Duty. The person who caused your injury owed a duty to you to avoid acting carelessly under the circumstances.
- Breach of Duty. The person who owed this duty to you in fact acted carelessly under the circumstances.
- Causation. This person’s carelessness caused your injury.
- Damages. Because this person owed you a duty of care, acted carelessly, and caused your personal harm, you suffered damage. The law calls this harm, “damages.”
Your accident lawyer understands these legal concepts and how they can affect your personal injury recovery. For example, the first thing your accident attorney will have to prove is that the person responsible for your personal injury owed you a duty.
Sometimes the existence of this duty is very clear. People might owe you a duty of care by law, simply because of their relationship with you. In other cases, the existence of a duty to take due care, in order to prevent a personal injury, is less obvious.
Suppose, for instance, that while you are in a grocery store, a shopper accidentally drops a banana peel and fails to pick it up. You do not see the peel, and slip on it, suffering a personal injury. Did the shopper owe you a duty of care, and is he or she therefore responsible for your personal injury? The answer is not obvious.
Now suppose your injury lawyer learns that the shopper dropped the peel the night before. That banana peel stayed on the floor all night, and into the afternoon of the next day. Your injury lawyer will want to argue that the grocery store owner has a duty to ensure that your shopping experience is safe. Because the grocery store owner failed to notice and clean up the mess over the course of several hours, he or she has probably failed his duty, and would probably be liable for your personal injury.
Your injury lawyer must have considerable experience to figure out who might owe you a legal a duty of care, and could therefore be made to pay for your personal injury.
Besides “duty,” another issue that injury attorneys frequently fight is causation. It is not always easy for an accident attorney to prove that someone’s actions in fact caused your personal injury. Sometimes personal injuries are caused by a combination of events that come together, making it difficult to determine who was responsible.
For example, suppose a highway worker puts a construction sign in an awkward position on the freeway. As a result, someone swerves to avoid the sign. When that driver swerves, another driver moves into your lane. As a result, you suffer a personal injury.
Who caused the accident? Was it the highway worker, the person who initially swerved, or the driver who moved into your lane? Which one is responsible for your personal injury? Are all partially responsible, and how can you assign fault?
When causation is difficult to determine, your injury lawyer requires experience to decide who caused the accident, and which responsible party is the best one to sue for your personal injury. Some of the responsible parties may be insured and others not. Your accident lawyer may decide that it is best to concentrate settlement efforts on the party with the greatest insurance coverage.
Sometimes your accident lawyer may decide that it is best to sue several parties at once. By including all of them in the lawsuit, your accident attorney may let them sort out among themselves degrees of legal responsibility for your personal injury. If there are multiple parties who may have caused your personal injury, these strategic decisions about pursuing your personal injury case can be complex. Trust an experienced accident lawyer to come up with a litigation strategy that maximizes your chance for recovery from your personal injury.
Your Own Contribution to the Personal Injury
If you were careless and partly responsible for your personal injury, your accident lawyer can still obtain a recovery for your personal injury. However, in California, your verdict will be reduced by the extent the jury determines that you were at fault for your personal injury.
For example, if you were 40% at fault and the other person was 60% at fault for your personal injury, and the jury awards a total verdict of one million dollars, then you will recover 60% or $600,000. In other words, the million-dollar personal injury verdict your accident lawyer may obtain for you will be reduced by 40% or $400,000. Similarly, if you were 30% at fault and the other person was 70% at fault for your personal injury, then you would recover only $700,000 from your million-dollar personal injury verdict.
Injury lawyers call this rule, “comparative negligence.”
While comparative negligence can reduce your overall recovery for personal injury, it is a lenient legal rule compared to the law in some other states. In some states outside California, courts apply another rule, known as “contributory negligence.” Under the contributory negligence rule in some states, you cannot recover anything, if you are even a little bit responsible for your injury. Comparative negligence gives you a better chance of recovering for your personal injury than contributory negligence. The reason is that under comparative negligence, you can still recover for your personal injury even if you share some of the responsibility for your personal injury.
Even though the comparative negligence rule in California is better for you than the law in other states, the rule still leaves your personal injury recovery vulnerable to considerable reduction, unless you have an injury attorney with expertise in this area. For example, your accident lawyer still has to prove that your contribution to the personal injury was relatively small. Remember, the larger your contribution to your own personal injury, the more the court will deduct from your overall jury verdict. An experienced injury attorney understands the nuances of comparative negligence and prepares your case accordingly.
To help minimize your fault under comparative negligence, your accident lawyer will interview you about which of your actions during the accident contributed your personal injury. For example, you may have experienced personal injury from a collision in which both you and another driver drove carelessly. In this case, your accident attorney will want to know exactly what happened to cause you to lose focus while your were driving.
In addition to finding out how your own negligence may have contributed to your personal injury, your accident attorney will try to assess the amount of comparative negligence. For example, the accident lawyer will want to determine whether you were 10%, 25%, or 50% at fault, or more.
Your injury lawyer also will figure this estimate into settlement negotiations for your personal injury. Only an experienced injury attorney can properly guide you as how your own carelessness during the accident could affect your personal injury case.
Reducing the Damage from Your Personal Injury
If you have suffered a personal injury due to someone else’s negligence, you have an obligation to take reasonable steps to minimize losses related to your personal injury. Your accident attorney will advise you that such reasonable steps might include:
- Obtaining proper medical care for your personal injury.
- Using physical therapy, rehabilitation, or other forms of care to help minimize the debilitating effects of your accident.
- Seeking other employment if you can no longer work at your former job because of the accident.
The law calls the obligation to reduce losses from your personal injury, the “duty to mitigate.” If you violate duty to mitigate, then you will be financially responsible for losses you might have avoided by taking the reasonable steps required by law.
Your accident lawyer will advise you that the duty to mitigate your losses can include decisions about whether to:
- continue or discontinue a certain course of medical treatment
- undergo or forgo surgery for your personal injury
- see health care professionals such as physical therapists for additional treatment
- follow medical advice that involves major changes in personal habits, such as diet, exercise, lifestyle, and other habits
- seek alternative health care such as chiropractic treatment for your personal injury
- seek alternative employment that you can do, given your personal injury
Legal rules about the duty to mitigate are complicated. For example, your doctor may have recommended surgery to treat your injury, but the surgery might be dangerous. In general, someone who has suffered a personal injury has not violated his or her duty to mitigate by deciding to forgo a surgical operation that has an uncertain outcome and serious risks. But every situation is different. When looking at decisions related such as whether you should undergo or forego surgery, consult an experienced accident attorney to determine the effect of your choice on your possible recovery.