Torts 101: Proving the 3rd and the 4th Elements
Always remember that any tort case requires you to prove both negligence and a proximate cause. These are the third and fourth elements of a civil lawsuit.
There are four parts to every negligence case. A negligence case is an action (a civil action lawsuit) for monetary damages. It is a civil case and not a criminal case. Criminal cases are about fines and punishment. Civil cases are about money damages. This is no small difference and if you have been watching Law & Order for direction about what will happen you are wrong and should turn maybe to another show. Today we have a question that raises this issue.
THE FOUR PARTS TO A NEGLIGENCE LAWSUIT:
- Breach of Duty
- Proximate Cause
Question: How do I hold the driver responsible after a person gets injured by a car, a truck, as a pedestrian, a motorcycles, a piece of farm equipment or someone's ATV's?
Answer: The answer is easy for me to think through, but very difficult for me to explain in a half page blog. For a society that is looking for easy answers this will not be a simple lesson of following the dots.
Duty - A duty is a standard of behavior. It could be a rule-of-the-road such as a speed limit or traffic light or stop sign. It could also be a general duty, such as one of acting with due care to not cause other people to be injured by your actions.
Breach of Duty - This element requires action of inaction on the part of the at-fault person in the accident or collision. If the posted speed limit is 35 and you drive 50 then you are breaching the duty you have to obey the speed limit. If you run a red light and cause and accident, you have breached your duty as a driver; that duty being to follow the driving rules.
Damages - How were you injured and damaged? Did you suffer a ruptured disc, a broken leg, an amputated arm, a torn minisucus or just injured muscles, tendons and ligaments? How much were your medical bills? Did you lose time from work and have a loss of earnings? Are your injuries permanent? Will you suffer a loss of a job and earning capacity in the future? Are you always in pain?
Proximate Cause - Can you tie together the injuries you suffered to the fault of a driver? It is not enough to just suffer an injury or to be physically or mentally impaired. Your injuries have to have been caused by what the other driver did. If your hand gets crushed and you say now I can't be a concert pianist, but you've never taken a single piano lesson, there is no proximate causation to you not being a grand pianist and earning $250,000 per year. While you may have become injured there has to be proof of what caused the injury. This is where a doctor's opinion comes into play. There are some issues in any case requiring expert testimony. Do you know how to hire a doctor and to obtain the proper supporting opinions? If not, you have no business representing yourself.
To understand proximate cause answer these two very different questions that to me are two sides of one coin.
- But for the accident would you have suffered the injury or loss?
- But for the accident would you have still had the impairment?
Steve Lombardi has represented over 2,000 in the past thirty plus years. Call Katrina and I if we can help you answer these questions in your case.
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