An accident can happen anytime at any place. However, it can be avoided. But because of a negligent act of a person who could have spared you out in the situation if he only acted with reasonable care, you are now suffering personal injury- a legal term for the injury in the body, mind and emotion of a person. This is personal injury law. A person who fails to act with reasonable care and do harm to another person is considered reliable while the victim of the incident can seek compensation for the losses he incurred because of the accident. However, when can you say that you have a personal injury case in California?
4 Elements of a Personal Injury Case
You can say that you have a case if the following elements are present:
a) A duty to care was established. This is the responsibility one has for the safety of another. It is created by a law or a result from a standard of reasonable care that the law holds that we all owe toward each other. Every personal injury case starts with an established from the defendant to the plaintiff. In a car accident, this duty can be as simple as driving safely.
b) Breach of duty to care. The plaintiff/the personal injury lawyer must be able to show that the duty to care was breached. Hence, the defendant acted irresponsibly that caused harm to the plaintiff/victim. It will create the potential for blame that be placed upon the defendant.
c) Damage or injury. The plaintiff/victim must have sustained actual damages or injuries that can be physical, emotional or financial. If in a car accident, there was no damage to your car or your person, you can’t collect money for the fault of the defendant. You also need to show evidence of the injury, if not, a lawsuit may not go forward.
d) Causation between the Breach of Duty and the Injury. The plaintiff must be able to demonstrate that the “breach of duty to care” caused the injury of the victim and not other external hazards.
It is also important that you understand the statute of limitations in your state. A case that has been dormant for many years may not be valid in the court of law. You have to consult a personal injury lawyer as soon as you can or even after the injury.
On the other hand, the defendant will try to fight the case through providing counter arguments that can substantially affect the compensation that will be earned by the plaintiff. An accident may happen not just because of the fault of the defendant but the victim has a certain amount of participation. The worth of a personal injury case can be affected by the following:
Legal Defenses of the Defendant
Comparative Negligence. This is a counter argument proving that the plaintiff is partially to be blamed for the accident. The weight of the participation will be deducted for the total amount of the compensation award.
Contributory negligence. This is a legal defense used by the defendant when the plaintiff is to be blamed for the accident. The basis for this defense is that a person has a duty to avoid an injury at the hands of the other. If you are not able to protect your safety, you may not be able to recover for your losses.
Failure to mitigate the damages: The law expects that a person has the duty to take responsible steps to mitigate the financial impact of a harm. However, if the plaintiff didn’t get necessary medical treatment after an accident that made the injuries worse, the compensation award will be significantly reduced.
A personal injury case is a battle between the plaintiff and the defendant. The first one trying to seek compensation for the losses he incurred while the other trying to reduce the amount of the compensation award. However, the final verdict will be given after a long process and proving both claims in the court of law. Hence, you have to consult a personal injury attorney who can provide sound advice and recommendation about the proper action and steps that you can take to earn the compensation you deserve.