Establishing A Personal Injury Case
In order to prevail on your personal injury claim, you must be able to prove to the court (or the insurance company in negotiations) that the defendant (responsible party) is responsible for your injuries. In most cases, this is done by showing the defendant's negligence or carelessness. To do this, the elements of negligence must be established based on the facts of your case. The elements of negligence are as follows:
- Duty of care - The defendant must have a legally recognized duty to act with reasonable care toward the victim, or to prevent harm to the victim by his or her actions or inactions.
- Breach of duty - A defendant breaches this duty by failing to meet the legal standard of reasonable care. Depending upon the circumstances, this could mean a failure to warn, failure to keep the plaintiff safe or by acting in way that causes the plaintiff's injury.
- Causation - Causation is often the most difficult element to prove. The defendant's actions (or inactions) must have been the legal cause of the plaintiff's injuries.
- Damages - The plaintiff must show that he or she was harmed or incurred loss caused by the defendant's breach of the duty to act with reasonable care.
Damages In A Personal Injury Case
If each element is established in the plaintiff's case, the jury (or court) may award monetary damages for the plaintiff's losses or a settlement may be reached with the insurance company. Most damages awarded are compensatory in nature. That is, they are to "compensate" the plaintiff for actual losses incurred or suffered.
These may include pain and suffering (physical and/or emotional), lost wages, reduction in future earning capacity, medical expenses, future medical treatment, loss of consortium, inability to perform household duties, loss of enjoyment of life, disfigurement, disability, loss of parental guidance, loss of ability to enjoy hobbies or time with family and friends.
To summarize, a plaintiff may seek damages for ANY change in the quality of his or her life caused by the defendant's careless conduct. These are the items of damage that we, as your lawyers, are allowed to present to the jury and thus, it is very important that you make us aware of every change in your life due to your accident. We also need this information so we can make the insurance company aware of what we intend to prove your damages are so that you can be compensated for them in the out-of-court settlement that we will seek on your behalf.
Finally, the court may award punitive damages, in addition to compensatory damages. The judge or jury may award the plaintiff punitive damages to punish the defendant for his or her conduct. Usually, the conduct must have been especially atrocious or shocking. These types of damages are also intended to discourage the defendant or others from the same behavior. The type and availability of damages may depend on the facts of your case and the applicable law in your state.
Ellis Law will advise you in detail about all of the damages they will seek on your behalf.