Putting Our Knowledge to the Test by Addressing Your Personal Injury Concerns
An injury in its own right can produce a lot of questions. Will you be okay? How long will it take to heal? How much will your recovery cost? No doubt as you pursue an injury claim, you’ll have even more concerns and questions. However, that’s where we come in. Come see how our extensive knowledge and dedication to helping our clients can help answer all of your legal questions…and then some.
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What if my accident was caused by a drowsy driver?
Life is busy and, as a result, many are burning the proverbial candle at both ends. Though driving while tired may not seem on par with driving under the influence of drugs or alcohol, research shows it can have the same impairing effects. Drugged, drowsy, and drunk drivers all experience slowed reactions, decreased focus, and impaired judgment and decision-making ability.
Drowsy driving is extremely prevalent and, yet, many people remain unaware of the danger it poses. According to research from the National Highway Traffic Safety Administration (NHTSA) and other federal agencies, more than 72,000 accidents involving drowsy drivers were reported to police each year from 2009 to 2013; annually, these crashes injured more than 41,000 people and killed more than 800.
Unfortunately, Delaware Isn't Immune to the Problem of Drowsy Driving
In 2013, the Centers for Disease Control and Prevention released an analysis of a Behavioral Risk Factor Surveillance System (BRFSS) telephone survey it conducted in 2009 and 2010. Of the more than 4,100 Delawareans who participated in the survey, more than 100 admitted to having fallen asleep while driving at least once in the past month.
Drivers or passengers who were severely injured in an accident caused by a drowsy driver may be entitled to compensation for medical expenses, property damage costs, lost wages, pain and suffering, and more. However, proving that an excessively fatigued driver caused an accident can be challenging, as many drivers may be reluctant to admit that their lack of adequate rest resulted in an accident, injury, or fatality. A knowledgeable personal injury attorney with experience handling motor vehicle accidents knows just what to look for when investigating a drowsy driving crash.
Were Your Injuries Caused by a Drowsy Driver?
If you were injured in an accident caused by a fatigued driver's negligence, attorneys with the Morris James Personal Injury Group can help you explore your legal rights and options. Contact us today to schedule an appointment for a free initial case analysis.
My workers' compensation claim was denied, what now?
For injured workers, having a workers' compensation claim denied can be confusing, frustrating, and maybe even a little bit scary. Fortunately, a denied claim is not the end of the road for workers seeking compensation for injuries sustained in the workplace. Delaware's workers' compensation laws give claimants multiple opportunities to appeal if their claim is denied.
My Workers' Compensation Claim Was Denied, What Do I Do Now?
The first step is to appeal the denial to the Industrial Affairs Board (IAB) through the Delaware Office of Workers' Compensation. Immediately after receiving notice that the claim was denied, the injured worker can start the appeals process by submitting a Petition to Determine Compensation Due to the Office of Workers' Compensation. State statute of limitation laws requires this petition to be filed within two years of the date of the injury.
After the petition is filed, the employer and injured employee file pre-trial memorandums, attend a pre-trial scheduling conference, and present their cases to the IAB. Once both sides have finished introducing evidence and calling witnesses, the IAB gives its decision in writing.
For many injured workers, this is the end of the journey. However, the IAB does not always reverse the initial claim denial and, when they don't, workers can feel like they are right back to square one. Though it may feel like it, that is not the case, as injured workers can press on and appeal their claim denial through the state court system.
After the worker receives the IAB's decision upholding the initial claim denial, they have 30 days to file an appeal with the Superior Court in the same county where the workplace injury took place. If the Superior Court also denies the claim, the final chance for appeal rests with the Delaware State Supreme Court. Injured workers must appeal to the state Supreme Court within 30 days of the Superior Court's claims denial.
Consult an Experienced Workers' Compensation Attorney
A denied workers' compensation claim does not mean that you are ineligible for benefits. A skilled workers' compensation attorney can help you appeal your denied claim to the IAB—and beyond. Contact the Morris James Personal Injury Group today to schedule an appointment for a free initial consultation for your workers' compensation case.
Is the driver of the rear vehicle always at fault in a rear-end car accident case?
When a car and the vehicle in front of it collide, resulting in a rear-end accident, the prevailing wisdom is that the driver of the second vehicle is almost always at fault, as they had a duty to follow at a safe distance and—had they done so—could have presumably prevented the crash. While this is often the case, the presumption that the second driver is always to blame doesn't hold true for every rear-end accident.
In fact, there are a number of rear-end collisions scenarios where the blame—and, more importantly, liability—may not rest solely on the driver of the second vehicle, including instances in which:
- The driver of the first vehicle reverses without warning
- The first driver's brake lights are not working
- The driver of the first vehicle stops suddenly to make a turn, but fails to actually execute the turn
- The first driver experiences a vehicle maintenance issue—such as a flat tire—but fails to safely pull over or turn on the hazard lights
In the above examples, the driver of the first vehicle may be considered negligent and, thus, at least partially responsible for the accident and subsequent damages.
Do You Need an Experienced Car Accident Attorney?
If you were injured or sustained significant property damages in a rear-end accident that wasn't your fault, the knowledgeable attorneys with the Morris James Personal Injury Group can help you explore your options for compensation. Contact us today to schedule an appointment for a free, no-obligation case consultation.
What happens to my workers' compensation claim if the company I was working for goes out of business in DE?
An on-the-job injury can temporarily—and sometimes, permanently—put construction workers out of commission. When this happens, workers often rely on workers' compensation benefits to help make ends meet.
For injured construction workers who are counting on workers' compensation benefits to cover their medical expenses, or provide temporary total or partial disability payments, learning that the construction company they worked for has gone out of business can be concerning. Many workers in this situation find themselves wondering what will happen to their workers' compensation claim and whether their benefits will suddenly stop.
Securing Workers’ Compensation Benefits Is Not Impossible in Delaware
While the closing of a business can cause some minor delays in the processing of new claims, it doesn't mean that securing workers' compensation benefits are impossible, or that workers already receiving benefits will see them eliminated. Workers' compensation benefits are administered by a company's insurance carrier, so even if the company goes out of business, benefits continue.
However, when a construction company goes out of business, it can create some issues for injured workers whose workers' compensation benefits are dependent on returning to work. If the worker's position at the company—and the company itself—no longer exist, it can be difficult to show compliance with the terms outlined in the workers' compensation benefits agreement and statute. Fortunately, a knowledgeable and experienced workers' compensation attorney can help clients navigate these and other potential issues with their claims.
Consult an Experienced Wilmington Workers' Compensation Attorney
If you were seriously injured in a construction accident or diagnosed with a work-related medical condition, and the company you worked for has suddenly gone out of business, it's important to consult a skilled workers' compensation attorney to ensure that your right to collect benefits is protected. The knowledgeable and experienced workers' compensation attorneys with the Morris James Personal Injury Group can review your case and help you explore your legal options. Contact us today to schedule an appointment for a free case analysis.
What do I do at the scene of a motorcycle accident?
Motorcycle accidents can have serious physical and financial consequences for motorcyclists. If you are injured in a motorcycle accident caused by someone else's negligence on the road, you may be entitled to compensation for your injuries and other damages.
Unfortunately, biases against motorcyclists can make it difficult for injured riders to receive a fair settlement offer or financial award. Experienced legal representation can help, as can your actions at the scene of the accident. If the injuries sustained in the crash do not prevent you from moving, taking photos and collecting other evidence at the scene can help strengthen your insurance claim or lawsuit, and increase your chances for a successful outcome.
After a motorcycle accident, here is what you can do on the scene to protect yourself and your ability to seek compensation.
Check for Injuries
Safety comes first. Assess yourself for injuries and, if able, check on the drivers and passengers in any vehicles involved in the accident. Call for an ambulance if anyone needs immediate medical attention.
Move Out of the Roadway
If your motorcycle is in the roadway obstructing traffic, move it if it is safe to do so. Snap a quick photo of the bike's placement first, if possible. Use flares or set up emergency triangles to alert oncoming vehicles of any remaining hazards in the roadway.
Exchange contact and insurance information with the drivers of any vehicles involved in the accident. Make sure to write down each driver's name, address, phone number, and license number. In addition to contact and insurance information, it is important to write down information about each vehicle, including car make, model, plate number, and description.
Report the Accident to the Police
If you had to call for an ambulance, the police should be on their way as well. Otherwise, you will need to call the police to report the accident. Delaware law requires drivers to report accidents that result in injury or death, cause more than $500 in property damage, or involve an intoxicated or drugged driver.
The officers who respond will talk to everyone involved and complete an accident report. These reports cannot be used to prove negligence in court, but they can provide valuable information for your personal injury attorney or insurance company, so be sure to request a copy for your records.
Speak to Witnesses
Eyewitness accounts that back up your own version of events can help your personal injury claim or lawsuit. After you have checked yourself and others for injuries, speak to any witnesses at the scene to find out what they saw. Write down contact information for each witness so that your attorney can contact them in the future, if necessary.
Gather Photo and Video Evidence
It is said that a picture is worth a thousand words but, in motorcycle accident personal injury cases, a picture could be worth thousands of dollars—or more—in compensation. Photos and videos taken at the scene of a motorcycle accident can paint a clearer picture for the insurance adjuster, judge or jury deciding your case. After a motorcycle accident, make sure to take video or photos of:
- Your injuries
- Damage to your motorcycle
- Relevant road or weather conditions at the accident scene
Notify Your Insurance Provider
While this step does not necessarily have to occur at the scene of the motorcycle accident, it is important not to let too much time pass before reporting the crash to your insurance provider. Many motorcycle insurance policies require motorcyclists to report their accident within a reasonable amount of time or risk having their claim denied. However, what the insurance company considers “reasonable” amount of time to report an accident could be as short as a day or two.
What to Avoid
The following things may harm your chances of recovering fair compensation:
- Reflexively apologizing or accepting blame for the accident
- Providing a recorded statement to an insurance company
- Accepting an on-the-spot settlement offer before the extent of injuries and property damage is known
- Taking cash instead of reporting the accident to the proper authorities
Consult an Experienced Motorcycle Accident Attorney
If you were injured in a motorcycle accident that wasn't your fault, the knowledgeable attorneys with the Morris James Personal Injury Group can help you pursue the compensation you deserve. Do you have questions about your case? Contact us today to arrange an appointment for a free initial case consultation.
How do I appeal a workers’ compensation decision that I do not agree with?
In Delaware, employees who are injured on the job are often entitled to workers' compensation benefits for medical expenses and wages lost by being unable to work during their recovery. However, in some cases, the injured worker's claim may be denied, or the employer and employee may be unable to reach an agreement on what benefits are owed.
For someone injured in the workplace, a workers' compensation claim denial can be confusing, frustrating, and maybe even a little frightening. Fortunately, a denied claim or inability to come to an agreement with an employer is not the end of the line. Injured employees can appeal a denied workers' compensation claim through the Delaware Office of Workers' Compensation if necessary.
If you are considering appealing a workers' compensation claim denial for a workplace, here's what you need to know.
Common Reasons for Workers' Comp Claim Denials
There are a number of reasons why an injured or ill employee's workers' compensation claim is denied. Some of the most common reasons for workers' compensation claim denials include:
- The injury occurred while the employee was off duty or not performing work-related tasks.
- The employee was under the influence of alcohol or illegal drugs when he was injured.
- The employer believes that the injury or illness was preexisting, or was caused by factors unrelated to the claimant's employment.
- The injury happened while the employee was roughhousing or engaged in a personal, non-work-related dispute with another worker.
- The employee failed to immediately report his injury to an employer.
While some of these factors may result in a legitimate denial of a workers' compensation claim, sometimes a claim is denied simply in the hope that the injured employee will not pursue it. Before accepting a workers' compensation claim denial, it is best to consult an experienced workers' compensation attorney.
Appealing a Decision Through the Delaware Office of Workers' Compensation
After receiving notification that a claim has been denied—or after being unable to reach an agreement with an employer regarding workers' compensation benefits—the injured worker can file a Petition to Determine Compensation Due with the Delaware Office of Workers' Compensation to begin the appeals process. This petition must be filed within two years of the on-the-job injury.
Next, both parties file a pre-trial memorandum with the Office of Workers' Compensation and attend a pre-trial scheduling conference. Finally, the parties present their cases during a hearing before the Industrial Affairs Board (IAB) in which both sides introduce evidence and question witnesses. The IAB will issue its final written decision, approving or denying the claim.
Appealing a Decision Through the Court System
Sometimes, the decision the IAB issues is not the one the injured worker was hoping to receive. Fortunately, the claimant's options are not yet exhausted. The employee, in certain circumstances, can still appeal the decision through the court system.
After receiving notice that the claim was denied by the IAB, the injured worker has 30 days to appeal the decision to the Superior Court located in the county where the injury occurred. If the Superior Court also denies the claim, the claimant has 30 days to file an appeal with the State Supreme Court. The injured worker must take into account that the court system reviews IAB decisions to determine if substantial evidence exists in the record to support the IAB’s findings of fact and to determine if the Board erred in its application of the law. Because of this heightened legal standard, an experienced workers’ compensation attorney can be particularly beneficial in analyzing the facts in an injured worker’s case and determine the likelihood of success of an appeal before incurring costly court fees.
Do You Need a Workers' Compensation Attorney?
If you were injured on the job, the experienced attorneys with the Morris James Personal Injury Group can help you fight for the workers' compensation benefits you deserve. Contact the Morris James Personal Injury Group today to schedule an appointment for a free initial consultation to discuss the details of your case, call 302.268.6918.
What might prevent me from being able to recover workers’ compensation benefits for a workplace injury?
People who were injured on the job often count on workers' compensation benefits to cover related medical bills and provide temporary total disability payments until they are well enough to return to work. Workers' compensation is a system, created by the Delaware legislature, which has become by law automatically part of your employment contract and provides benefits to workers who are injured while working. Employers with one or more employees are required to carry workers' compensation insurance. The workers' compensation statute prohibits an employer from firing or, in any other manner, discriminating against an employee for filing a claim for benefits.
Delaware Workers' Compensation Law
The Delaware Workers’ Compensation Law provides substantial protections and benefits to the injured worker. However, as with any law, it can be a very complicated process to muddle through. It is also an adversarial process, putting the injured worker in need of benefits against the workers’ compensation insurance carrier, which is interested in limiting benefits.
Workers' Compensation Benefits
Workers' compensation benefits are paid by the employer or the employer's workers’ compensation insurance carrier. The benefits are outlined in Title 19 of the Delaware Code and are administered by the Office of Workers’ Compensation (part of the Delaware Department of Labor). These benefits include lost wages, medical care, permanency, disfigurement, mileage reimbursement, and death benefits. The insurance company for your employer is not required to advocate for you or to even inform you of some of the various categories of benefits that you may be entitled to. In addition, some of the benefit categories may be best pursued on a timetable unique to your case that needs to be chosen with your maximum recovery and long-term interests in mind. Disputes between you and your employer regarding benefits are handled by the Industrial Accident Board or “IAB.” The IAB is basically the court of first resort for workers’ compensation disputes.
However, despite the workers' compensation statute, there are still things that could jeopardize an injured worker's ability to recover benefits. Here are some of the most common reasons insurance companies give for denying workers' compensation claims.
The Injured Employee Waited Too Long to Notify Their Employer
After an on-the-job injury, workers must notify their employer in accordance with deadlines known as statutes of limitations.
It is critically important to appreciate that action needs to be taken quickly after a work-related accident or injury in order to preserve and secure benefits available under the statute. Indeed there are several time limits that may apply to the facts of each individual case. It is important to remember these issues are applied and decided in an adversarial process. The various and sometimes complex time limitations can and will be used by the employer’s representative or carrier as a weapon to deny the injured worker benefits that otherwise would have been available.
Generally, the time period in which an employee has to file a case with the IAB is two years from the date of the original incident or five years from the payment of any benefit under the statute by the employer’s workers’ compensation insurance carrier. However, the limitations period is shortened to one year for occupational exposure cases. Occupational exposure cases include cases where the statutory definition of an “occupational disease” is met as a material component in the injury.
Avoid Problems with Workers' Compensation Deadlines
The best way to avoid having problems with deadlines is to make sure the claim is opened properly following your work incident. There are two documents which should be completed and filed with the IAB right away.
- Agreement as to Compensation
- First Report of Injury
- While it is the responsibility of the employer and its carrier to see that these documents are filed with the Board, the insured worker should make sure this has been done. One of the advantages of being represented by an experienced workers’ compensation attorney is that your attorney acts as your watchdog to make sure that the employer and its carrier do what they are supposed to do.
Workers who fail to notify their employer before the statutes of limitations have expired forfeit their right to receive workers' compensation benefits for their injuries.
The Injuries Were Caused by Misconduct
Workers' compensation programs generally do not provide benefits to employees who were injured while engaging in willful misconduct. As a result, employees may be disqualified from receiving workers' compensation benefits for injuries that were:
- Purposely self-inflicted
- Unrelated to work duties
- Sustained while under the influence of drugs or alcohol
- Suffered during a physical altercation with a co-worker that stemmed from a non-work-related dispute
If intentional misconduct is determined to have played a role in a workers' compensation case, the employer's insurance company will decide if it was significant enough to warrant a denial of benefits.
The Injuries Happened Off-Site or Were Preexisting
Insurance companies try to reduce their financial obligation to injured workers whenever possible. One way they do this is by disputing the worker's claims about how and where the injuries occurred. For example, an insurance adjuster may claim that the injuries happened while the employee was away from the workplace and not engaged in work-related duties.
Another common insurance company tactic is to try to attribute the worker's injuries to a previous accident. For example, if a worker injured his shoulder in a previous bicycle accident and went on to injure that same shoulder at work, the insurance adjuster may claim that the majority of the discomfort is due to the original injury in an attempt to minimize his benefits.
Do You Need a Workers' Compensation Attorney?
It is always a good idea to consult an attorney about your workers’ compensation claim. The elements of your claim which the attorney will evaluate in considering whether you need an attorney include:
- Did the incident occur while you were within the course and scope of your employment?
- Did the work incident result in injury?
- Was the injury verified by a Board Certified Physician?
- Is this an accepted or contested claim?
- If it is a contested claim, are there reliable witnesses to the work incident, and certified expert medical witnesses willing to testify in support of the claim?
- If it is an accepted claim, has the claimant been paid all applicable benefits outlined above pursuant to the Delaware Workers’ Compensation Statute?
- Is the claim within the applicable statute of limitations?
If you were injured at work or diagnosed with an illness caused by your job, an experienced workers' compensation attorney can help address any potential barriers to recovery and fight to ensure you receive the benefits to which you are entitled. Do you have questions or concerns about your workers' compensation claim? Contact the Morris James Personal Injury Group today to schedule a free initial consultation.
How much time do I have to file for workers' compensation?
After being injured on the job or diagnosed with a work-related illness, workers may also face financial challenges such as unexpected medical bills or wages lost by missing work while they recover. Fortunately, Delaware law requires most businesses with employees to carry workers' compensation insurance that offers a wide range of benefits to those injured in the workplace.
However, very strict laws—known as statutes of limitations—govern just how long an injured employee has to initiate the workers' compensation claims process or petition the Industrial Accident Board regarding a denied claim or disputed benefits.
Waiting too long to notify an employer of a workplace injury or occupational illness can put a worker's ability to collect workers' compensation benefits in jeopardy. If you suffered an on-the-job injury, here's what you need to know to protect your right to benefits.
Notifying an Employer
How long injured or ill employees have to notify their employers depends on whether they are seeking workers' compensation benefits for an on-the-job injury or occupational illness. Employees who sustain an injury in the workplace must notify their employer immediately and request medical services.
Employers are not required to begin providing workers' compensation benefits until they have received this notice.
Delaware Workers' Compensation Process Overview
The Delaware workers' compensation claims process can be both complex and confusing. This overview can help injured workers better understand what to expect:
- An employee is injured at work
- The employee reports the injury right away to the employer and requests medical treatment
- The employer files a First Report of Injury form with the Delaware Office of Workers' Compensation
- The insurance provider contacts the claimant or their attorney to let them know whether the claim was acknowledged or denied
- After the claim is acknowledged, the employer and employee sign an Agreement to benefits, and the employer files a copy of the agreement with the Delaware Industrial Accident Board.
When an Employer Denies a Claim or Won't Agree to Benefits
Unfortunately, not all workers' compensation claims resolve in an amicable agreement between employer and employee. When a claim is denied or an employer refuses to agree to benefits, the employee has two years from the date of a workplace injury to file a petition with the Delaware Industrial Accident Board.
The petition results in a hearing before the Industrial Affairs Board (IAB), which issues a final decision accepting or denying the claim. If the claim is denied, the worker has 30 days to appeal the decision to the Superior Court.
Seeking Additional Compensation for a Previously Approved Claim
When an on-the-job injury changes or worsens, the affected worker may require further workers' compensation benefits. Delaware's workers' compensation system allows employees whose cases were previously approved by the IAB to file claims for renewed or increased benefits within five years of the date the last compensation was paid.
Available Workers' Compensation Benefits
Injured workers can seek a variety of scheduled statutory benefits through their employer's workers' compensation insurance, including compensation for:
- Medical expenses, including treatments*, prescription medications, and mileage reimbursement
- Physical therapy *
- Chiropractic appointments*
- Temporary total or partial disability (lost wage) payments
- Permanent partial impairment benefits
- Death benefits in the event that a worker is killed in an on-the-job accident
- *The injured worker must treat with medical providers who are Certified by the Industrial Accident Board.
Do You Need Help Handling a Workers' Compensation Claim?
If you were injured in a workplace-related accident, the knowledgeable workers' compensation attorneys with the Morris James Personal Injury Group can help you ensure you receive all the benefits to which you are entitled. Contact us today to schedule a free initial review of your workers' compensation case.
Can I handle a no-doubt liability claim on my own?
There are many personal injury cases where the plaintiff may have a difficult time proving the other party's negligence or fault, but there are some cases where the defendant is responsible for the accident without question. Known as "no-doubt" liability cases, these cases may seem simple and straightforward. However, accident victims shouldn't let the seeming simplicity of no-doubt liability cases lull them into a false sense of security and trick them into thinking they can handle the case themselves. While these cases may not have the dramatic twists and turns seen in courtroom dramas, they can require a fair amount of legal maneuvering. Additionally, there are clear benefits to having an experienced personal injury attorney by your side for these cases, and going it alone can have unintended consequences.
Determining liability can be one of the more difficult aspects of car accident personal injury claims. No-doubt liability cases differ from regular car accident claims in that the nature of the accident itself provides almost definitive proof as to who was at fault. Examples of no-doubt liability car accidents include:
- DUI accidents. Driving under the influence of drugs or alcohol is illegal, as these substances can impair the driver's ability to think clearly and react appropriately. If a driver causes an accident while under the influence, they will, in most cases, be considered the liable party.
- Rear-end accidents. Drivers are required to leave sufficient room between themselves and the vehicle in front of them. When a driver fails to do this and slams into the car in front of him, he will most likely be found at fault. However, there may be an exception if the driver in the first vehicle had brake or tail lights that weren't functional.
- Left-turn accidents: Also known as “T-bone” accidents, left-turn crashes occur when a motorist makes a left-hand turn before the road is clear. When this happens, it is almost always the driver who was making the left-hand turn who is at fault. However, there may be rare exceptions where the “T-boned” driver is found to be at fault if they were committing a traffic violation at the time of the accident.
Benefits of Legal Representation
Even if you have a true no-doubt liability claim, hiring a knowledgeable and experienced personal injury attorney is crucial to the success of your case. Personal injury plaintiffs who have legal representation often receive settlements far larger than plaintiffs who chose to handle their own cases. In addition to fighting to help you win a more lucrative financial award, personal injury attorneys also help by:
- Providing valuable legal counsel
- Accurately filling out required paperwork
- Submitting completed paperwork in a timely fashion
- Handling any problems that come up during the case
Having quality legal representation also provides plaintiffs with peace of mind. After the case is tried, the court's judgment is binding. Losing plaintiffs aren't entitled to a do-over—even if they chose to represent themselves and were dissatisfied with the results.
Comparative Negligence in Delaware
Are you sure you have a true no-doubt liability case? If it turns out that you were somewhat responsible for the accident, Delaware's comparative negligence laws may come into play. Comparative negligence allows plaintiffs to file personal injury lawsuits, even if they were partially at fault for the accident that caused their injuries. It may also be used by the defense in an effort to reduce their financial obligation to the victim. If you were partially at fault for the accident, you'll need the representation of a seasoned legal professional.
Were You Injured in an Accident?
If you were injured in an accident—no-doubt liability or otherwise—the skilled legal team with the Morris James Personal Injury Group can help you fight for the compensation you deserve. Don't let your chance to take legal action slip through your fingers! Complete our online contact form today and we'll be in touch to schedule a free initial consultation to discuss your case.
What is negligence?
If another person's negligent actions led to an accident that resulted in you being injured, you may be eager to file a personal injury claim or lawsuit to pursue compensation for your injuries. However, before you start daydreaming about how you'll spend your settlement, you should determine whether your case—and the defendant's conduct—meets the legal definition of negligence. In order for a judge or jury to agree with your assessment that the defendant was negligent, you must be able to prove the following elements of negligence: that the defendant owed you a duty of care and breached that duty in a way that resulted in you being seriously injured.
Duty of Care
Before a defendant's actions can be considered negligent, you must be able to show that the defendant owed you a “duty of care.” First, the court must recognize that a relationship exists between the two parties and that, because of that relationship, the defendant had a duty to behave a certain way toward the plaintiff. In a personal injury case, this might mean that the defendant had a duty to ensure that conditions were reasonably safe for the plaintiff. For example, all motorists owe each other a duty of care to operate their vehicles safely. Other examples of duty of care include manufacturers who have a duty of care to ensure that their products are safe for their customers, and retail stores owners who have a duty of care to maintain their property for their customers' safety.
Breach of Duty
Once you've established that a duty of care exists between yourself and the defendant, the next step is proving that said duty of care was breached by the defendant. Duty of care is breached when a defendant fails to behave reasonably, endangering the plaintiff. Examples of breached duty of care include manufacturers who sell dangerously defective products, reckless drivers who cause motor vehicle accidents, and property owners who fail to maintain their flooring or clean up spills in a reasonably timely manner—causing tenants, visitors, or customers to slip and fall.
When trying to prove negligence in personal injury cases, it's not enough to show that a duty of care existed and that said duty of care was breached. In order to be eligible to pursue compensation for your injuries, you and your legal counsel must also show that the breach of duty of care is what caused your injuries. There are two types of causation that can apply here: proximate cause and actual cause. Proximate cause means that your injuries are reasonably related to the defendant's breached duty of care, while actual cause means that, were it not for the breach of duty of care, you would not have been injured.
This particular element of negligence is extremely important in personal injury cases. Even if a defendant was negligent, the plaintiff will not receive compensation unless that negligence caused real and verifiable injuries. It's up to the plaintiff and attorney to prove the type and extent of their injuries, usually with well-documented evidence, such as medical records and bills, repair estimates for property damage, and receipts for other out-of-pocket costs. A lack of documented evidence will make negotiating a settlement extremely difficult, if not impossible. An experienced personal injury attorney can advise clients on what types of documents and evidence will be most effective in their case.
Were You Injured in an Accident?
If you were injured in an accident that you believe was caused by another person's careless or negligent actions, you may be able to pursue compensation for damages if you can legally prove that the defendant's negligent behavior caused your injuries. Financial awards can help personal injury victims begin rebuilding their lives after an accident. Victims can seek a financial award to compensate them for past, current, and future medical treatment for their accident-related injuries, as well as any related property damages, lost wages and more. The Morris James Personal Injury Group can help you fight for the compensation you need and deserve. Call us today to schedule a free initial case consultation.