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April 13, 2020
Following an accident that caused you a serious injury, it is not always immediately obvious that the accident victim has plenty of grounds for a successful personal injury claim. In many cases, even if your case has plenty of merit, there may exist weaknesses in your claim that the opposing party and their team of lawyers could exploit in a way that reduces your potential for financial recovery.
Many people suffer personal injuries every day, many of them horrible in every way. Whether you were injured in a car accident, a slip and fall accident, or a pedestrian, bicycle or motorcycle accident, or some other type of accident entirely, you have the right to pursue compensation for any injuries and damages that can be proven to have resulted from your accident. How much are your injuries worth? That depends on the circumstances and what you are able to prove. The best way to know how much your case is worth is by sitting down with an experienced personal injury attorney for a free consultation to discuss everything.
In most cases, personal injury claims are based on the negligence of the opposing party. However, presenting a strong negligence claim requires that certain elements are present in the case. If they are not all present and provable, you may not have a strong negligence claim. Those elements include:
The Opposing Party Owed You a Duty of Care
In order to prevail in a negligence claim, it must be shown that the defendant owed the victim a duty of care. With respect to car accidents, every driver generally owes every other driver a duty of reasonable care. If another driver makes a mistake that causes you injury, that other driver will generally have breached their duty of care to you.
On the other hand, if your friend happens to be a physician and you ask about some of your symptoms in passing, you won’t be able to file a medical malpractice lawsuit if her assessment turns out to be incorrect. That is because it is essential to prove that their duty of care has been established. If you can establish that duty of care, you will have achieved the first step toward establishing negligence in your case.
The Opposing Party Violated Their Duty of Care
Once you have established the defendant’s duty of care, you just have to prove they violated that duty. For example, if you were in a car accident and the driver of the other car was driving drunk, distracted or drowsy, or not paying attention to the road, you should be able to show negligence. Did you slip and fall on a spill that store employees or relevant office building personnel knew about but still failed to mop up? These scenarios could be considered a breach of the duty of care, which is a failure to exercise a level of care that a person of ordinary prudence would exercise under the same circumstances.
Your Injuries Were Incurred as a Direct Result of the Opposing Party’s Breach of Duty of Care
The primary purpose of a personal injury claim is to recover compensation for damages. The injured person has a right to pursue compensatory damages, including economic and non-economic losses. In some cases, punitive damages, intended to punish acts of gross negligence, can be pursued in a claim involving serious injuries. A successful personal injury case must prove the case led to damages, including injuries and other losses. Without these factors, there is no case. However, you must always show a causal connection between your damages (injuries) and the negligence of the bad actor.
The Incident Occurred Within the Past Few Years
Every state has a statute of limitations for personal injury lawsuits. In most cases, the limit is three years for negligence, but some states have longer or shorter limits. Knowing this limit is important, because, if you miss it, you lose your ability to file suit forever.
You Haven’t Made Any Mistakes That Would Harm Your Case
It is possible to do things that could hurt your case in the long run. For instance, if you put off getting medical care after your accident, you could make it difficult to prove that all of your injuries were caused by the accident, which is essential to proving your claims. You could also give the opposing party an opening if you fail to follow your doctor’s orders, or if you give your insurance adjuster a recorded statement and there is anything in there someone could misinterpret. It’s also a really good idea to stay off social media during your recovery because an experienced defense attorney can always find something in a post that can be misinterpreted to work against you.
If you know you can prove any of the above, you can be confident at the likelihood that you have a strong personal injury case going in. You should still speak to a personal injury lawyer to make sure that all elements of your case are the best they can be and that you have someone in your corner as you fight against the insurance companies and experienced defense trial lawyers whose job it is to pay you as little as possible.
Of course, if the accident was, for the most part, your fault, there is likely little you can do to win a case. Usually, those who are at-fault are cited by police. When this happens, one of your options is fighting the citation, if that is advisable. Especially in such circumstances, it is important to speak with a personal injury attorney before you decide to do anything. An experienced attorney will be able to determine whether fighting the citation is worth it. Those who are cited after an accident are often, for all practical purposes, considered liable for the damage they inflicted.
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