Life and Order: Personal Injury

 

To recover on any personal injury claim against a third party you have to prove negligence and that the at-fault party’s negligence caused your injuries. There are four basic elements of negligence, all of which must be proven if the claim is unable to be settled and goes to trial: presence of a duty of care; breach of that duty; that the breach of the duty directly caused the injuries; and proving the nature and extent of the injuries or damages.

The first step in any personal injury claim is to establish the presence of a duty of care by the at-fault party, which is generally shown by proof that an individual failed to act in a reasonable manner under the circumstances. In general, everyone owes a duty of care to not act in such a way as to cause injury or harm to someone else. However, the nature of an accident or injury has a bearing on the level of care or duty involved. Proving that the duty of care was breached and that the breach of the duty led to the injuries is usually the most complicated part of the analysis and in many cases requires expert testimony. The type and severity of the alleged injuries must be directly related to the party’s failure to act in a reasonable manner.

Documenting evidence of injuries and their related expenses is crucial for negotiating any settlement or obtaining a judgment against the at-fault party if you have to resort to the courts. Without the documentation, negotiating or proving the personal injury claim will be extremely difficult. Damages are primarily divided into two main categories: Special and General damages.

SPECIAL DAMAGES

Special damages are the financial losses caused by the accident or injury, and are generally easy to document and calculate. These damages include: medical costs, lost income, out-of-pocket expenses and personal property damage. Medical costs include all charges incurred for all necessary medical treatments, starting from the moment of the accident and continuing through the present and into the future, when applicable. It is important to keep copies of all bills and records from any medical providers that provide treatment, including any and all tests and exams.

Lost income includes all wages or earnings that are lost as a result of the accident or injury. One option for proving lost income is with a verified affidavit from your employer detailing pay rate, hours lost and total compensation. Of course pay stubs, W2s and tax returns also come into play.

Personal property damages include any personal items damaged as a result of the injury or accident. The typical example of this is the cost for repairs for a damaged vehicle or the fair market value of a totaled vehicle. However, this may also include damaged or destroyed laptops, cell phones, clothing, jewelry or other similar items.

GENERAL DAMAGES

General damages are usually subjective, open to interpretation and argument and are not always agreed to in settlements or awarded in court proceedings. Therefore, these damages are typically where much of the negotiation revolves in connection with any settlement. Examples of general damages include: pain and suffering, emotional distress, loss of enjoyment of life and loss of consortium.

Proving general damages is much more difficult than proving special damages since bills paid are not necessarily relevant or proof of the extent of injury or damage. General damages are reliant on subjective proof and emotional pleading by the victim or their attorney.

WHEN AND HOW TO HIRE AN ATTORNEY

Whether someone needs an attorney is dependent on multiple factors. Hiring an attorney is important when the liability for injuries, or the resulting damages, is less clear. An experienced attorney can also sometimes negotiate with your medical providers to try and reduce bills to account for the amount of a settlement. Most attorneys accept personal injury cases on a contingency fee basis, meaning they do not get paid unless there is a recovery. Contingency fee agreements generally provide that the attorney receives 30 to 40 percent of the amount recovered.

As with any other professional service, a great reference source is your family and friends. They may be familiar with good—or bad—attorneys from their own experiences, or through other friends and acquaintances. There are also many other sources, including the Internet, a state bar referral service and, of course, there is always the phone book. Ultimately, you have to work with someone you are comfortable with and trust because that person is representing your best interests and the relationship could cover a significant period of time. As with just about every other type of legal matter, resolving personal injury claims takes time and patience.

Robert C. Dills is an Associate with The Law Office of Dean B. Bell, LLC on Hilton Head Island. They are a general practice firm which has been serving its clients since 2001. Rob Dills can be reached at This email address is being protected from spambots. You need JavaScript enabled to view it. or by phone at 843-785-9772.”