What is negligence in a personal injury case?
A personal injury case involves an individual that has been injured by another person or entity. In order for someone to prevail in a personal injury case for damages related to an injury or damages to property, a person must prove that the other party was at fault for the damages and injuries. Typically, in most personal injury cases such as car accidents, the injured person must prove that the injury was done due to negligence of another. If the injured person cannot prove that the other individual was negligent, then they cannot prevail.
So what is negligence? Negligence is deviating from the standard of care of a reasonable person. So if a person deviates on what a reasonable person would do in the same circumstance, then the injured person can prevail.
Breach of the standard of care
The deviation of the standard of care, is known as the breach of that duty. In a car accident case, negligence can be proven through a violation of a traffic law, such as running a red light, failing to yield or stop, failing to use a blinker and properly change lanes.
It can also include being distracted while on a cell phone, putting on makeup, talking to someone else in the car or falling asleep at the wheel. Also, if a person is rear-ended, that usually goes with following too closely and failing to maintain a safe distance between another vehicle. It can be the failure to put a slippery floor sign up in a grocery store.
Proximate cause of the breach
The breach of the duty of the standard of care also must be the proximate cause as to what led to the injuries. There must be factual and medical causation. Factual causation is where the failure to yield is what led to the accident and caused the injuries. This can be a contentious part during a personal injury case.
Negligence also must lead to a foreseeable accident. If the chain of events that led to the injury from an action of a person are too far disconnected, a person may not be able to prevail. The damages from that injury also must be foreseeable damages that was a reasonable consequence of that action.
Factually, a person may have hurt their neck in an accident, however, medically, what caused the neck injury could have been due to a pre-existing condition or from another unrelated incident that happened before or after.
Many personal injury defense attorneys always look at pre-existing conditions as a defense. You typically need a doctor to make a determination that the injury stemmed from the accident. This can come from your personal doctor that treated you or you made need an expert medical professional to review the evidence further to determine of the injuries were medically caused by the accident. However, one can still recover if a person has a pre-existing condition and the accident or injury aggravates that pre-existing condition.
What happens if both individuals had some fault in the injury?
Sometimes, both drivers or persons may have had something to do with the injury and could have at least been partly negligent. That doesn’t necessarily mean that one cannot recover from the other person. However, in Utah, in order to prevail against another driver, the other driver must be at least 51% at fault for the accident. Meaning, that 51% or more of what that person did caused the accident. If the person injured was 51% at fault, that person cannot recover. Also, if it is found that both parties were 50% at fault, no one can recover, because there was no person more at fault than the other.
This can make it for a tricky situation for injured persons and the insurance companies. For both insurance companies of the parties, this is a “win-win” situation. Since both people are at fault, they can’t recover, depending on the insurance plan, a person may not be able to recover from their own insurance company or the insurance company of the other person.
The insurance company will say you were not at fault. However, since the other person was at the same fault as you, 50 – 50, you cannot recover from that person and the other person was not at more fault than you, so you can’t recover from your own insurance company, depending on the coverage.
Other types of fault
There are also other types of fault in a personal injury case. If the injury was caused by a product, under a products liability case, instead of a negligence standard, the only question is whether or not the product was unreasonably dangerous to consumers. One would also have to prove the person intended the injury if they wanted to prove a case under assault and battery. There are also other cases, such as defamation, where a person just has to prove that a matter was spoken and published that was false regarding his or her character. Under a wrongful death claim, the standard of care would be the same as a regular personal injury case.
What happens when the insurance company makes a decision I don’t agree with?
This is where it is important to get a personal injury attorney to help you determine if you can obtain more than what the insurance company may determine. Insurance companies do their own arbitration to determine fault for both sides. However, if you are not happy with the outcome and the fault determination, you can still file a lawsuit against the other person to prove the other person was more at fault.
What can I recover from a personal injury case?
Typically, a person can recover for damages related to lost wages and benefits if a person had to take any time off of work due to the injury. A person can also recover medical wages and expenses past and future for treatment of the injury. A person can also recover any consequential damages such as out of pocket expenses related to the injury or damages to property.
There are also damages related to the physical pain and suffering from the injury which is a damage determination that does not have a clear equation on how those damages are calculated and is usually something in the eyes of a jury on how much those damages are worth, they are usually viewed on damages on a daily basis past and future. There can also be damages for emotional trauma suffered as well as loss of life functions and activities as well as loss relationship with a spouse which can include past and future damages as well.
It is best to get a Utah Personal Injury Attorney on board to better evaluate your case and know whether or not it is something that should be pursued further. Contact our firm today for a further case consultation.