PERSONAL INJURY CASES 101: THE ELEMENTS OF A PERSONAL INJURY CASE
Personal injury cases vary from case to case and the elements of a case that are necessary to be proven may differ as well. For instance, a case may require “gross” negligence as compared to simply the negligence standard. Recreational trails may have a much lower standard of care as compared to a sidewalk for example. This overview does not get hung up on the niceties of personal injury law but rather provides a general idea of what a plaintiff will need to prove to have a successful claim.
THE DEFENDANT MUST HAVE A DUTY OF CARE
A duty of care may become a contentious issue depending on the tort claim advanced. In some cases, it is a non issue as it is so clear a duty exists. In motor vehicle accidents for example, all drivers owe other drivers a duty of care and plaintiff and defense counsel will not be disputing such an assertion. A duty of care is an obligation which is imposed on an individual or entity requiring them to adhere to a specific standard of care that if not met, could result in a foreseeable harm. This element needs to be met to advance a plaintiff’s claim.
While a motorist clearly owes a duty to other motorists and pedestrians, a less obvious example may be whether a homeowner owes a duty of care to a trespasser to protect against an unsafe hazard such as a large ditch causing one to fall and break their leg. Depending on the intricacies of the facts, the law can cut both ways. The Doctrine of Allurement for instance, may hold homeowners liable for creating attractions that are dangerous for children albeit those minors were trespassing at the time.
THE DUTY OF CARE MUST HAVE BEEN BREACHED
When the duty is breached by an individual or entity causing harm, the defendant may be liable for the damages the negligence has caused to the victim. The defendant breaches the duty when they fail to exercise the required standard of care. Like the above, an example will illustrate best. If a homeowner has left their garden hose over the walkway to the front door, and a postman trips on it, it may be a contentious issue as to whether the homeowner breached the duty of care by leaving that trip hazard over the pathway. Various factors may influence a jury to sway one way or another such as the time of day or the visibility of the hose.
Regardless of the other elements, if you are unable to prove that you have been harmed in any way, than of course, there is no personal injury claim. A plaintiff must be able to prove some form of harm, whether physical, psychological, emotional or to property.
A SKILLED PERSONAL INJURY LAWYER CAN HELP MAKE A COMPELLING CASE
While you may feel like all of the elements of your case are met, the legal jurisprudence and legislation may affect your case in ways that the layman may not be aware of or understand. Contact our law firm for a free no-obligation evaluation of your case and we will provide our professional feedback of your claim.
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