Personal injury claims are often referred to as “negligence actions” or “tort claims.” They are based on the acts or omissions of persons, or companies, generally in the course of their everyday activities – driving vehicles, operating machinery, maintaining properties in a safe condition, or running a business. Personal injury cases range from automobile or trucking accidents, to slip/falls or trip/falls in a store or restaurant, to the intentional infliction of injuries (often the result of a fight), to wrongful death claims.
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The question callers with potential personal injury claims ask most often is “Do I have a case?” The honest answer is, “It depends.” This article will briefly discuss the factors a lawyer weighs in evaluating the merits of a claim and deciding whether or not to accept a case. While the common conception is that the client interviews the attorney, the reality is that attorneys are also interviewing the prospective clients.
Predictably, the analysis of a personal injury claim begins with the initial interview, and lawyers are mentally checking the boxes on a list of things they know are necessary for asserting (and winning) a case. A viable personal injury case requires the following five elements:
A Duty
In order for one person (or company) to be liable to another for a personal injury, the party who has caused the injury must first have aduty to prevent the injury caused. The most common scenario is that of a car accident. Drivers have a duty to obey the rules of the road. This means using your turn signal before you turn or change lanes, stopping at stop lights and stop signs, observing the speed limit, and giving the vehicle in front of you enough space so that you don't rear-end them. Violating these rules can cause accidents and give rise to claims for personal injuries. Another example is that of a business or property owner.
Their duty to visitors or invitees is defined by law and may vary, depending upon the nature of the business or the character of the premises, e.g., a residence versus a commercial establishment. Failure to maintain their premises in a safe condition, to remedy potentially dangerous conditions, and to forewarn persons – even trespassers – of hazardous conditions, can give rise to liability for injuries sustained on their property.
A Breach of the Duty
The second requirement of a personal injury claim is that the defendant must have breached the duty owed. In the car accident scenario, maybe the person who caused the accident was speeding, made an illegal turn, or was following too closely. If a driver violates a traffic law and thereby causes an accident, they have breached their duty to observe traffic rules and to protect other drivers on the road. In the premises liability scenario, a store owner who has knowledge of a liquid spilled on his floor and fails to clean it up, or warn customers of the problem, has breached his duty to his customers and may be liable for damages to a person who slips and falls.
Causation (Cause in Fact)
Thirdly, a plaintiff must be able to show causation. In the context of a personal injury claim, causation means that one party's breach of duty in fact caused the other party's injuries. A mere negligent act or omission alone, without the element of causation, is insufficient to establish a claim. For example, if Driver 1 is traveling northbound and doesn't have his lights on, he may have beached his duty to other cars in the area.
If Drivers 2 and 3, traveling southbound on the same road, have an accident, but it is unrelated to the absence of Driver 1’s headlights, Driver 1 is not liable for damages. His breach of duty did not actually cause the accident; any claim against Driver 1 lacks the element of causation.
Forseeability
Another essential requirement in a personal injury case is the element of foreseeability, also referred to as “proximate cause.” If a driver runs a red light and hits a pedestrian walking across a cross walk, the driver will be liable to the pedestrian because they should have known that someone might be walking across the cross walk, even absent a walk signal.
On the other hand, if you're driving on an unlighted stretch of highway at night, and a pedestrian in dark clothing crosses the highway, you will probably not be liable for striking the pedestrian because there is no way you could have foreseen the pedestrian’s actions at that time and place. The recent pedestrian death of a woman in Arizona, struck by an autonomous Uber vehicle, is likely such a case.
Damages
Finally, to recover in a personal injury claim, you must have actual damages. Say someone rear-ends your car, but there is no damage to the car, you're not injured, and you didn't miss work as a result. Even though the other person is clearly at fault, you may not be able to recover any money because you have no damages. However, if there is damage to your vehicle, if you had to go to the hospital or the doctor, or if you missed work as a result, these things are compensable, and will influence how much money you can recover from the defendant or their insurance company.
The attorneys at Michael Moran & Associates, LLC have handled hundreds of personal injury claims in the 40-plus years of our practice. We recognize that each case and each client is different. With that in mind, we provide personalized care to our clients. Some examples of cases we’ve handled successfully in the past:
- A recent $500,000 settlement under the Ga. Tort Claims Act resulting from a client’s auto accident with a Georgia State Patrolman.
- A $400,000 settlement on a contested premises liability (swimming pool) case involving the death of a small child.
- A recent $50,000 settlement after mediation on another contested premises liability/elevator accident.
- A recent $18,500 settlement for soft tissue injuries sustained in a “side swipe” auto accident.
- Multiple settlements between $25,000 to $50,000 (usually for insurance policy limits) on a variety of automobile accidents.
If you, a family member, or friend have sustained personal injuries as the result of an automobile, work-related, or other type of accident, call us at (404) 205-8879. Our consultations are free. We can help you obtain the full monetary value of your case, including past and future medical bills, lost income, loss of consortium (for your spouse), pain and suffering and consequential damages. We welcome your calls and look forward to helping you with your claim.