Before you can name a defendant in your personal injury lawsuit, you must understand the process of determining fault. The plaintiff is rarely the one who is in charge of establishing negligence, but it still helps to understand how your lawyer, the court, or an insurance company goes through the process of determining who is the negligent party.
In situations such as car accidents, determining who to sue is relatively easy. But in any personal injury case, determining who to sue is not part of establishing negligence. When you and your attorney decide who to bring to court, you are bringing in who you think was responsible for the accident. However, when the courts or the insurance company determine who the negligent party is, they do so with the evidence given and often times negligence is shared between the two parties.
What Is Negligence?
In general, negligence is behavior that is outside the expected standard set by the law and society and results in one or more parties being injured in some way. When a court or insurance company determines negligence, they are determining how much responsibility each party has for the accident or event that occurred. Establishing negligence requires an examination of four basic legal principles. Those principles are:
- Responsibility – One party must have responsibility for the reasonable safety of the other party. For example, skiers on a down slope are responsible for making sure they don’t hit each other, but no skier is responsible for rescuing another from a dangerous situation. For there to be any kind of personal injury case, there must be some sort of responsibility established.
- Neglect – If one party neglects their responsibility and causes an accident, then there is a good basis for a personal injury lawsuit.
- Direct Cause – It is not enough to prove neglect to win a personal injury lawsuit. The plaintiff must prove that the defendant was the direct cause of the plaintiff’s injuries due to their neglect.
- Damage – There must be some type of damage that caused financial discomfort for the plaintiff. In some cases, the only damage that is mentioned is mental anguish or some form of emotional trauma. Those types of cases can be very difficult to win.
Determining Negligence Leads To Establishing Fault
Who is at fault for the accident occurring? Once the negligence has been established, then it is time to determine who was at fault. In many states, the fault can be shared between both parties. If the plaintiff is found to be 20 percent at fault, then they will get only 80 percent of their compensation. Some states are all or nothing when it comes to fault, and establishing fault in those states is very important. When fault is discussed in this manner, it is usually referred to as liability and partial liability.
There are two major types of fault that are primarily used in personal injury lawsuits; direct and indirect fault. With direct fault, the defendant willfully engaged in actions that caused the accident to occur. Indirect fault means that the defendant engaged in activity that is outside the realm of accepted responsibility and caused the accident to happen. Direct fault is intentional, while indirect fault is not intentional.
When the case is obvious, lawyers tend to move past establishing fault and get right to determining a settlement. Remember that the insurance company could determine that the plaintiff was negligent in some way and take a chunk out of the final payment. For example, most attorneys prefer to settle car accident claims with insurance companies and focus on reducing their client’s negligence and getting the best settlement. In these instances, determining who was ultimately at fault is immaterial. If the case goes to a jury trial, then establishing fault could become very important.
Multiple Parties Involved In The Cases
In most personal injury cases, there is usually only one negligent party, but that does not mean that only one entity was at fault. For example, if a car gets out of control and hits a pedestrian then the driver of the car was negligent for not controlling their vehicle. But if it is proven that the brakes were improperly repaired recently, then the mechanic and the driver would be considered to be at fault.
When there are multiple parties at fault, most states allow the plaintiff to sue all of them and get a settlement that is spread out among the at fault entities. The payment of the settlement is usually determined between the at-fault parties and their insurance companies, and that could lead to another lawsuit.
To use the car hitting the pedestrian example again, there could be at least two lawsuits stemming from that one event. The pedestrian would sue the driver and the negligent mechanic, and then the driver would sue the mechanic to see how the final settlement to the pedestrian is to be paid. In some states, the plaintiff has to sue each at fault party separately, which could lead to multiple settlements. Needless to say, a personal injury lawsuit with several at fault parties can get extremely confusing.
Understanding Simultaneous Negligence
In some cases, a personal injury claim could lead to a situation of simultaneous negligence. For example, say Bob and Andrew were trying out Andrew’s new sports car on an open road and they were both acting irresponsibly. Andrew was not constantly paying attention to the road while driving, and Bob was constantly distracting Andrew in physical ways such as pulling on the steering wheel and waving items in front of Andrew’s face.
In this example, Bob could sue Andrew for injuries sustained when the car finally ran off the road and crashed into a ditch because Andrew was the responsible party behind the wheel. However, it is not reasonable behavior for the passenger to actively distract the driver, and that would allow Andrew to sue Bob for damages as well. If there had been a passenger at the back of the car, then that passenger could conceivably sue both Bob and Andrew for any injuries the passenger incurred.
It Is Always Smart To Hire A Lawyer
As you can see, determining fault in a personal injury lawsuit is not as straightforward as people think it may be. It takes an experienced personal injury attorney to negotiate with insurance companies to determine fault, and use negligence to help establish the way a settlement will be paid.
If you are ever involved in a personal injury accident, then you should never hesitate to hire an attorney. Most personal injury attorneys have policies that do not charge you anything unless they win you some sort of settlement. Since you don’t have to pay for your personal injury attorney up front, you should take advantage of this option to protect your rights.
An insurance company is going to try and contact you immediately after an accident to get you to settle on a claim that the insurance company feels is fair. The problem is that the insurance company is out to make a profit and your well-being is not the company’s primary concern. You need an experienced attorney to negotiate with the insurance companies and represent you in court if it comes to that. Never allow the insurance company to establish fault and negligence without having your side of the story heard.