Thursday, February 16, 2017

How Much Evidence Do You Need for a Personal Injury Case?

Originally published by Bob Kraft.

There is a great deal of misinformation and assumptions that pertain to personal injury cases in the United States. While few people would consider the compensation involved to be worth the long-term health and wellness risks and impact on income and lifestyle, the media enjoys reporting class action suits and litigation cases that garner five, six, and sometimes seven-figure sums. The sensational reporting of liability case settlements has provided confusion for citizens about their right to compensation in the event of a personal injury incident.

What do consumers need to know if they have been involved in a personal injury case? In this article, we’ll discuss what legal experts call “the burden of proof” for the injured, and what criteria are required to demonstrate willful negligence or lack of due diligence by an employer, business owner, or organization. We will also look at some of the personal injury statistics to understand how often they occur, and under what circumstances, to help reduce and prevent mild to catastrophic injuries in the United States.

Defining a Personal Injury Case

Despite misconceptions, a personal injury case is not inherently possible for every single instance of injury. There are several factors that define and qualify when a citizen can pursue legal action, and how much settlement they are eligible to receive. The onus, however, is on the victim to demonstrate that there was deliberate or accidental negligence that contributed to the injury sustained.

It is important to note that a personal injury claim may not include damages sustained to property. For instance, if an individual is involved in a motor vehicle collision, the cost of repairing or replacing the vehicle cannot be included in a personal injury suit. In other cases, one or more individuals may be injured by a facet within their home, including electrical appliances, roofing, or flooring. While the injured may claim for costs and losses incurred because of the injury, he or she may not include costs of replacement for any material good, including belongings, residence, vehicles, pets, furnishings, or other goods.

There may be several steps and participants in a personal injury claim, depending on the nature of the accident. The “Defendant” or “At-Fault-Party” indicates the individual or business that is being pursued for damages, negligence, and liability. An adjuster is assigned to the case to represent the insurer for a business or private individual who will participate in the court proceedings and be responsible for negotiating the injury settlement (if any) that is offered. First party insurance refers to the injured person’s insurance coverage (common in motor vehicle collision injuries), and third party insurance refers to the business owner or defendant’s insurance company. Personal injury cases are assisted by attorneys who represent the injured.

How Personal Injury Settlements Are Determined

The amount of compensation that is awarded to an individual in a personal injury case is determined by a judge or jury, who hears a summary of loss and considerations that vary on a case-by-case basis. The purpose of a settlement is to adequately compensate an individual for their medical costs, rehabilitation, long-term recovery needs, income loss (if unable to return to work), and pain and suffering.

Determining the correct amount in a settlement starts with a compensation for expenses, which include medical emergency care, possibly legal fees, and court costs.

One of the most important aspects of any personal injury case is to identify whether the business owner or defendant was required to perform a duty, or whether the business owed a duty that was not fulfilled to the injured.

A personal injury case will conclusively prove:

  • That the defendant owed a duty to the injured. This can be as a customer in a retail establishment, or as an employee, or even as a guest in a hotel. If there was an expectation of service and safety that the defendant did not fulfill, the defendant may be legally liable.
  • That the expected duty was breached. This means that the owner, business, or individual failed to provide a ‘safe’ experience within reasonable measures through negligent behavior. It is important to mention that negligence is not always intentional or deliberate, but that accidental negligence by definition does not exist in American law. Error and omission to perform duties (including operating a safe environment) constitute civil liability for damages.
  • That the defendant’s negligence directly contributed to the injury and loss. There must be a clear “cause and effect” determination between the failure to perform a duty, and an injury that created pain, medical expense, or other financial loss.
  • That the injuries resulted from the negligence of the defendant can be quantified and measured, so that an estimate of damages can be made.

Legal estimation of compensation in personal injury cases, the financial compensation for expenses, lost income, and other tangible financial losses are straightforward; however, there is one aspect that is more subjective: Pain and suffering. For short term injuries that were resolved in less than three years, pain and suffering can be calculated by a per diem amount, based on the number of days the injured was experiencing significant (and documented) pain and discomfort directly related to the injury.

For long-term or catastrophic injuries that result in long-term or permanent disabilities, the per diem method is not used to calculate pain and suffering as part of a personal injury lawsuit; rather, previous state precedents may be used to place a value and compensation amount. It is also important to note that many states have established a monetary cap on the amount that can be asked for in personal injury cases. While this cap varies according to the state, the average limit is $250,000.

At every step in a personal injury case is the opportunity for the defendant’s insurer to step in and offer a settlement, through arbitration, to resolve the matter. It is important for citizens to know that a legal counsel with experience in personal injury cases can negotiate on behalf of the injured to get the best possible compensation and provisions, which is a critically important aspect – particularly in catastrophic injury cases or wrongful death suits.

Author information: Nicky Gomez is an administrative support at Kilroy Law Firm. She has experience assisting lawyers in personal injury cases, & criminal as well as family law.

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