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Topics in Personal Injury Law

Who was at fault for the accident? How are you compensated for your injuries?

The law of torts, which is the first topic taught in law school, states that in order to hold the Defendant liable (responsible) for an accident, it is necessary to find that

  1. Defendant’s action was negligent or reckless.
  2. The action caused the accident. This concept is called “cause in fact”.
  3. The accident was a foreseeable result of the negligent act. This is also called “Proximate Cause”.
  4. The Plaintiff’s own action was not negligent and if it was, his negligence was less than the negligence of the Defendant. If the Plaintiff was also negligent, his or her compensation can be reduced by the percentage of his negligence.
  5. In additional, to be able to make a claim or to sue for negligence, the Plaintiff must suffer damages.

What does it mean when we say that someone acted negligently?

If the person violated a traffic law, such as running a red light or speeding or executing an unsafe lane change etc., his actions are considered “negligence per se”. Which means the very violation of the statute shows that the person was negligent or even careless.  If the law that was violated does not directly relate to preventing an accident, a violation of the law does not constitute negligent per se.  For example, driving without a driver’s license or insurance. If there is no violation of a specific statute or law, then we need to look at the facts and apply the “reasonable man” test to the facts in order to decide whether the Defendant breached the duty of due care. Did the Defendant’s action fall below the standard of care which a hypothetical “reasonable man” would have practiced under the circumstances? Here we should mention the concept of alteration of the standard of care due to an emergency.  When faced with an emergency, the standard of care applicable to a person changes.  For example, there is a well known Nevada case where a truck driver rear ended a car causing catastrophic injuries to the occupant of the car. The truck driver successfully argued that some bees entered the cab of the truck and as a result he could not see the car ahead.  So the standard of care changed or shifted because of the emergency.  Another example is when a driver changes his lane abruptly in an attempt to avoid a head on collision from a car coming at him.

What does it mean when we say the action caused the accident?

This is a question of “cause in fact”.  Usually it is a straight forward simple question.  But sometimes it is more complicated.  For example, if several negligent or careless drivers cause an accident, the law of joint and several liability comes into play.  This law says that each of the negligent drivers is liable to compensate the victim for 100% of the damages. Each of the negligent drivers can sue the other negligent drivers from “contribution”.  Another example is a very old case where three persons went hunting and one of the hunters (we will call him Hunter C) was shot by one of the another hunters.  This was before technology existed to show what rifle shot the bullet.  The Court held that because we cannot tell who shot the bullet, both persons where held responsible for the injury of Hunter C.

Proximate cause

The third question is whether the negligence was the “proximate cause” of the accident.  This concept is one of the most fascinating concepts in tort law. A negligent act of a person can be the cause in fact of an accident but not the proximate cause.  Why? Because if the accident was not a foreseeable result arising from  the negligent act, then the act did not proximately caused the accident.

Comparative negligence

When we discuss the negligence of the Plaintiff, we call it “comparative negligence”.  The amount of the comparative negligence is determined by comparing the negligence of the Plaintiff with the negligence of the Defendant.  The percentage of liability or negligence determines the percentage of damages that the person being sued has to pay.  In many states, if the percentage of negligence of the Plaintiff is higher than that of the Defendant, the case will be dismissed.


Damages suffered by the Plaintiff determine the value of the case. There are several elements of damages:

  1. Special damages
  2. Medical Expenses:
  3. Lost wages:
  4. General damages.
  5. Property damages:
  6. Punitive damages
  7. Loss of consortium

Special damages = Medical Expenses + Lost Wages

Special damages are the cost of past and future medical care, past and future loss of wages. Proving future costs of treatment is not easy but when properly done, it can significantly increase the value of the case. The Plaintiff is entitled to past lost wages as well as future lost wages . The typical way of proving the amount of the loss is by the tax returns of the Plaintiff which is used to show what the victim was earning prior to the accident. Things can get more complicated when you have a self employed person or a business owner. Proof of loss of income sometimes requires that testimony of financial experts such as business evaluators and accountant.

General damages.

General damages, also called “pain and suffering” includes physical pain as well as emotional pain. Pain and suffering includes pain suffered right after the accident as well as pain that will suffered in the future. It also includes emotional distress damages, i.e. damages to compensate for the psychological impact of an injury such as depression and anxiety. Loss of enjoinment of life is another component of damages. For example, when Plaintiff’s daily life has been impacted or his ability to engage in activities such as sports or hobbies.

Property damages:

Property damages covers the damage to property,like a vehicle in a car accident. This includes the cost of a rental car, repair to the vehicle and if the vehicle is a total loss, the replacement value of the vehicle.  The concept of total loss is both physical and economic.  If the cost to repair the vehicle is close to or exceeds the value of the car, the insurance company will declare the car to be a total loss. If the car is a total loss and you want to keep the car, the amount of the money the insurance company gives you will be reduced by the salvage value of the car.  There are other components of property damage claim such as personal property that was in the car and destroyed the accident.

Punitive damages

If the action of the Defendant is careless or outrageous, the jury can be asked to assess punitive damages against the Defendant in addition to the compensatory damages. Since punitive damages are designed to punish the wrongdoer, the amount of the punitive damages depends on the financial picture of the Defendant and can run in the millions.

Loss of consortium

This is a claim by the spouse of the victim and in some cases claims by parents for injuries to children. This claim is based on the fact that the intimate relationship have changed due to the accident, or that the injured person can no longer function in the family as before.

How does the action of the victim after the accident affect the amount of damages

This is the concept of “mitigation of damages”. It applies both to damages to the person and to property. For example: Plaintiff was injured in a car accident and suffered a deep cut to his leg. Let’s also assume that it was clear that such cut required urgent medical treatment and that Plaintiff had medical care available to him. Plaintiff did not seek medical attention for the cut  and therefore suffered an infection which required amputation of the leg. This means that Plaintiff failed to mitigate his damages. Another example from property damage: Defendant drove his car into plaintiff home causing a large hole in the livingroom wall. Plaintiff took no action to cover the hole and as a result the furniture and electronics in the livingroom sustained water damage from the rain.  Plaintiff failed to mitigate his damages.  Mitigation of damages is a duty that the law imposes on the victim. Failure to mitigate damages will result in reduction in the amount of damages that the Plaintiff can receive.

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