Thousands of people are injured every day because of others’ negligence, yet no one expects it to happen to them. If you are injured in an accident, you may feel uncertain about whether you should — or can — take legal action against someone else.
When I was starting out in a plaintiff’s personal injury practice over 37 years ago, Bernard Cohen, the senior partner, and a very well-regarded trial lawyer used the analogy that a successful personal injury case is similar to a three-legged piano stool. Seeing my dazed look, he explained a piano stool needs all three legs to stand. Like a three-legged stool, a successful personal injury claim needs three legs to stand: liability, damages, and insurance (i.e. collectability). Without any one of the three legs, the claim or case will not stand, and the client and lawyer will both be wasting their time, energy, and money.
At the root of every personal injury claim is liability, which is the legal term for holding at-fault parties responsible for the damages they cause. To prove that a person or business is at-fault for your injury, you will have to prove that they were negligent. Negligence is the failure to act as a reasonable person would have acted under the circumstances then existing. If another party is negligent, then they are liable for the injuries that their negligence caused.
Before you are legally entitled to receive compensation from the at-fault party or their insurance company, however, their liability must be established. In other words, you need to prove that the other party was responsible for causing your injuries before you can obtain any compensation for your damages.
When determining liability, the key question is, “did that person act reasonably given the circumstances then existing?” In an auto accident, a motorist may be found negligent for an accident if it is determined that they violated a rule of the road, (i.e., disregarded a red light or ran a stop sign). Individuals that are driving are expected to follow the rules of the road. If an individual violates a rule of the road, then they did not act reasonably and are negligent.
In cases of a slip-and-fall or trip-and-fall on someone’s property, liability depends on whether the property owner failed to provide a reasonably safe premise given the circumstances. Safety hazards like uncleared walkways, poor lighting, or uneven flooring can prove negligence because a reasonable property owner or property manager would fix or warn of the hazard.
Local and state laws can make proving liability even more complicated. Virginia is one of just four states (plus Washington, D.C.) that recognizes the Pure Contributory Negligence Rule. This rule mandates if the plaintiff (the individual bringing the claim) is even 1% at fault, then the plaintiff is 100% barred from recovering. In other words, if it is determined that you contributed to the accident or your injury in any way, even if a vast majority of the fault falls on the other party, you cannot receive monetary damages.
The second leg or component needed to entitle one to legal compensation (i.e. a personal injury case having merit) is damages. Damages, after all, are what you are seeking compensation for. The calculation of damages depends on the losses you suffered as an injured party due to the negligence of the other party– and this doesn’t just mean the money needed to treat the injury itself.
If you are injured due to another person’s negligence, you are entitled to be compensated for the full amount of your medical bills, your physical injuries according to their degree and duration, your physical pain, your mental anguish, your lost wages, and your inconvenience. The other person’s negligence must cause every element of your damages. If the negligent party’s action is heinous, punitive damages can also be awarded to a plaintiff as a way to punish the defendant for their role in causing the accident and to send a message to the community at large that such outrageous conduct will not be tolerated.
In summary, liability and damages must both be present to file a personal injury claim. In a broad sense, this is how the two components come together:
At a very practical level in determining whether you have a personal injury claim that will be successful, is the question of whether there is insurance available to compensate you for your injuries. Liability insurance is discussed in detail on this website and also at the Northern Virginia Legal Examiner.
There’s no need to try to determine whether you have a personal injury claim on your own. Experienced personal injury attorneys such as Tom Curcio, Justin Curcio, and Rakin Hamad can review your case in an initial free consultation and help you to determine whether legal action is the right course of action.
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