You’ve suffered an injury, and you believe it was someone else’s fault. Are you entitled to compensation in a personal injury suit? Quite possibly, but you’ll have to establish negligence in breach of a duty of care first.
We’ve talked before about strategies to increase your chances of winning a personal injury case. Today let’s look at 4 ways in which the success or failure of your case will turn on your ability to establish negligence in breach of a duty of care.
Point 1): The Duty of Care
Negligence is typically the legal foundation of personal injury cases.
Simplified, let’s say Party A suffers an injury, and they can show in court that it was because Party B was negligent. This should mean that Party B is liable for damages and should compensate A, right?
Here’s where we have to get into the weeds a little: whether Party B is liable will depend on whether they had a duty of care to Party A, meaning they were responsible for making sure that the thing that gave rise to Party A’s injury did not occur.
If they had a duty of care and they failed or “breached” that duty and Party A suffered as a result, Party A probably has a case.
Point 2): The Standard of Reasonable Care
How far does the duty of care extend? What defines the standards that determine whether someone was negligent toward someone else?
This is where the idea of reasonable care comes in. For a personal injury case to have merit, the defendant’s actions or inactions must be shown to have failed a standard of reasonable care that they should have taken.
Let’s take an easy example: the driver of a vehicle has a duty of reasonable care toward other people to operate their motor vehicle in a safe and legal manner, taking account of things like the weather, the position of other cars, presence of pedestrians or animals, etc.
If you have been injured by the driver of a motor vehicle and it can be established that this person broke one or more traffic laws – perhaps they drove drunk, or sped, or ran a red light or stop sign – they will most likely be guilty of negligence.
Point 3): Assumption of Risk
Of course, not every personal injury case is as cut and dried as the negligent motorist scenario referenced above. Reality contains numerous scenarios in which a person could experience injury, and the question as to whether another party was negligent would be much harder to answer.
This is where the assumption of risk comes in. If a plaintiff has signed a contract saying that they were aware of a particular risk, they are said to have expressly assumed a risk.
This may strengthen the defendant’s hand, but it is essential to establish whether the plaintiff agreed to assume the risk of the specific harm that actually occurred to them, and whether the thing that happened was so grossly negligent or intentional that the defendant is still in the wrong.
The assumption of risk is probably one of the most controversial areas in personal injury cases. For example, if you go to a baseball game, and it is generally common knowledge that the home team’s mascot throws free hot dogs to the crowd, do you have a case for personal injury if you suffer harm after a hot dog hits you in the eye? Missouri’s Supreme Court ruled in the affirmative.
Point 4): Establishing Fault
For a personal injury case to succeed, the plaintiff must establish how the actions or inactions of the defendant breached the standard of care. In other words, if you were hurt by someone else’s action or inaction, you need to establish what it was that they did that makes them at fault for what happened to you.
We’ve already seen some ways in which this could happen. It might be the case that they were driving and they violated a traffic law, which caused them to hit you and harm you.
Slip and fall cases provide plenty of other obvious examples. People who own businesses have a legal obligation to keep them free from known hazards, and have a duty to remedy such hazards when they find them.
When in doubt about this or any other aspect of a personal injury case, it’s always a good idea to talk to a personal injury lawyer, says The Barnes Firm of Oakland (to learn more, visit https://www.thebarnesfirm.com/contact-us/oakland-personal-injury-lawyers/). A good attorney can help you to evaluate the merits of your case, and to navigate the frequently complex, confusing, risky world of personal injury lawsuits in order to get your best chance of good compensation for your pain and suffering.