Written by attorney R. Michael Bomberger

How Liability is Determined in a Personal Injury Case

This legal guide explains how liability is determined in a personal injury or wrongful death claim. In any personal injury claim, liability must be established in order to recover damages (financial compensation).

What is Liability?

Liability arises in three types of situations: crimes, torts, and breach of contact. In personal injury (tort) cases, liability is a person or company's legal and financial obligation owed to another party as a result of an accident causing serious personal injury or the wrongful death of another. The victim has the responsibility of proving liability. The process of determining liability will vary depending on how an accident occurs, and who was at fault. For example, the process of determining liability in a slip and fall accident is much different than determining liability in a trucking accident. In some cases, numerous parties may be liable for an accident.

Liability for Negligent Acts

Negligence is the most common type of theory of liability in a personal injury claim. By definition, negligence is the failure to take reasonable care so as to prevent injury or harm to others. In car accident cases, if a person drives negligently (for examples, runs a red light), he may be liable for the injuries of people in a car accident that he causes. To prove negligence, the plaintiff (injured party) must establish that the defendant had a duty to act with reasonable care, that the defendant breached that duty, which resulted in the plaintiff's injuries. In some cases, proving negligence is simple and obvious. For example, when a surgeon amputates the wrong limb, negligence speaks for itself. More often however, proving that a defendant acted negligently is more complicated. Especially in situations where injuries are serious, and the defendant could be liable for potentially millions of dollars, defendants are willing to invest thousands of dollars in defending a claim, and may even present theories that suggest that a victim is responsible for an accident.

Why You Need an Attorney

The responsibility of establishing liability falls on the plaintiff, the injured party or the family of a victim of fatal accident. For a claim to be successful, the plaintiff will have to establish not just the extent of liability, but also the extent of damages. You must be able to refute defenses that could bar you from recovering damages or reduce the amount you may recover. An attorney who has proven experience in your type of accident can help you protect your legal rights and recover the maximum, full and fair compensation you are entitled to for your injuries, or the wrongful death of a family member. Choosing the right attorney to handle your case can mean the difference between a fair settlement or verdict, and no financial compensation at all.

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