The laws of personal injury are governed by the laws of tort. Tort law is a body of law that deals with people that have been the victim of a civil wrong – arising out of something other than a contractual relationship – and allows for those that have been wronged to receive compensation for their damages. Tort laws deals with situations wherein someone has been wronged, or harmed, accidentally or intentionally. In order to receive compensation for an accidental tort claim, the plaintiff (the person that has been injured) must prove that the defendant (person that did the harm) was negligent. At this point, this may all sound like a bunch of legal jargon that doesn’t really explain anything right? Well let’s see if we can break it down so that it makes more sense.
Negligence is composed of four elements, according to personal injury attorney Emery Ledger of Ledger & Associates. Those four elements are: duty, breach, causation and damages. Occasionally a fifth element is added – proximate cause – but for purposes of this explanation we will stick with the standard four elements. Your personal injury attorney knows that he must prove all four elements in order to win your case and ultimately receive compensation for your injuries. So what must your personal injury attorney prove for each element?
Duty: Duty is sometimes referred to by the more formal “duty of care”. The duty of care is somewhat like the biblical concept of “do no harm to thy neighbor”. First, the plaintiff and the defendant must have been in a relationship wherein the obligation to use care was required. This is often called the “proximity” prong. Additionally, the harm that happened must have been reasonably foreseeable. Lastly, the courts impose a fairness prong which basically provides a catchall escape if the judge feels that it simply wouldn’t be “fair” to impose liability. As your personal injury attorney can explain to you, driving an automobile on a public road will generally satisfy the proximity test. A resulting accident is something that may have been foreseeable if the driver was doing something that contributed to the accident – like talking on a telephone or speeding. The fairness prong is rarely an issue in an auto accident.
Breach of Duty: In order to prove the breach of duty element, your personal injury attorney must prove that the defendant did not fulfill his duty of care to the plaintiff. Sometimes, it can be shown that the defendant knowingly exposed the plaintiff to a substantial risk. This is considered the subjective test for breach of duty. Think in terms of a pharmaceutical company that knowing sells a product that has been proven to have dangerous side effects. On the other hand, many times the breach was not done knowingly. In that case, your personal injury attorney must prove that any reasonable person in the same situation would have realized that he was exposing the plaintiff to a substantial risk of harm. This is more common in an auto accident case. Your personal injury attorney may be able to show that the other driver should have known that he was placing you in harm. This is considered the objective test for breach of duty.
Causation: Your personal injury attorney must prove that the injuries that you suffered were directly caused by the Defendant’s actions or omissions. This may seem obvious, but it is not always as clear as it seems. If you think about that old “slippery slope” comment that your mother or one of your teachers always made you will understand the need for the causation element. Once a ball has starting rolling down a slope, it keeps rolling and may start a chain reaction. The point of causation is that if what actually happened was so far remote from what could have been foreseen, then no one could have taken care to prevent it. Take the ball rolling down the hill. If someone was supposed to watch the ball, but let the ball go… and the ball then hit a car… and the car started rolling… and the car eventually hit a house… and inside the house a light fixture fell on your head…well you probably have not met the causation element if you are trying to prove that the person that originally let the ball go was negligent!
Damages: Finally, your personal injury attorney must prove that you suffered damages. Damages can be economic or non-economic. Your personal injury attorney can give you a complete list of what is included in each category, but in general economic damages are something for which you have proof of its dollar amount (ie: medical bill ) and non-economic damages are things that don’t have a quantifiable dollar amount (ie: emotional suffering).
If you would like additional information, or have any questions about what your personal injury attorney must prove to win your accident case, please feel free to contact Ledger & Associates at 1-800-300-0001 or online at www.ledgerlaw.com
