Determining Fault in a Personal Injury Case

Fault (legal liability) is a key threshold issue in a personal injury claim. Here's how to prove your case.

In any personal injury lawsuit or insurance settlement, one of the most important questions is: Which party is at fault?  Determining fault in a personal injury claim is a key threshold issue because once it’s established, the at-fault party is responsible for paying compensation (called “damages”) to the injured party, whether via a negotiated settlement or court order.

Who Makes the Liability Determination?

Precisely who decides the fault question in an injury claim often depends on the circumstances of the case, but injured parties represented by an attorney should expect their attorney to investigate the case, discover all potential at-fault parties and make a final liability determination. Parties who might be liable in an injury claim often carry liability insurance, leaving the burden of satisfying a damages award to an insurance company. Insurance companies usually conduct their own investigation and make an independent liability decision. If the involved parties cannot agree on liability, they may be forced to file a personal injury lawsuit and give a civil court jury the ultimate say on who is at fault.

Using Negligence to Prove Fault

The large majority of injury claims arise because one or more parties acted negligently. Negligence is essentially conduct that 1) falls below the standard of care expected of a reasonable person, and 2) causes harm to another person. The legal elements of negligence that must be proven in order to hold a party liable for personal injury damages are:

  • Duty. A legal duty owed by the defendant to the plaintiff must exist in every successful injury claim. For example, all automobile drivers owe a duty of care to other motorists on the road.
  • Breach. The plaintiff must prove the defendant breached a legal duty. Using the above example, a breach would occur if, while driving, a motorist carelessly looked down at their cell phone to compose a text message.
  • Causation. The defendant must be the cause of the plaintiff’s harm or injuries. This element is usually pretty obvious in most injury cases. For example, if the defendant’s car rear-ends the plaintiff’s car, causation can’t really be in question.  
  • Damages. The plaintiff must incur actual damages --usually monetary --stemming from the incident. This means things like incurred medical bills, lost income from time missed at work, property damage, etc.

See our overview article on negligence for more information.

Other Methods of Proving Fault

Not all injury claims involve traditional negligence. A plaintiff can still prove fault in a variety of ways, including:

  • establishing intentional conduct;
  • proving negligence per se; or
  • showing the claim is subject to the “strict liability” standard of proof.

Intentional conduct is conduct undertaken voluntarily, and with a desired purpose or with substantial certainty of the consequences. An individual who targets a victim and punches that person in the face without excuse, will have engaged in intentional conduct and be guilty of battery. (See this article for more on intentional torts).

Negligence per se applies when there is an unexcused violation of a statute. In such a case, the defendant is automatically liable for damages if the plaintiff's injury is of the type the statute was intended to prevent, and the plaintiff belongs to the class of people the statute was intended to protect. For example, if reckless driving—almost always a vehicle code violation—results in injury to a pedestrian, liability will likely be established using negligence per se.  

Strict liability applies in a limited number of situations and does not require defendants to be negligent in order to be liable for damages. Generally, the only requirement in proving a strict liability offense is showing the plaintiff suffered a foreseeable injury while involved in a qualifying situation. The most common cases involving strict liability are product liability cases, but strict liability can also apply to incidents involving possession of wild animals and to abnormally dangerous activities.   

How to Prove Fault

The legal elements of negligence or strict liability are relatively straightforward, but proving each one of them can be more difficult. Simply put, fault is proven in every personal injury case using the facts and evidence of the particular case. Attorneys and other parties trying to establish liability should complete a thorough investigation of the details and circumstances of an injury claim in order to make an informed and legally sound liability decision. Such an investigation typically involves collecting physical evidence, interviewing involved parties, and even hiring and consulting with experts. Common evidence used to prove fault in injury claims includes police reports, statements made by the parties, and documents/records kept by the parties.

Legal Defenses in Personal Injury Claims

When a plaintiff alleges negligence against a defendant or attempts to hold a defendant liable for damages, there are several defenses that can reduce the defendant’s liability or even eliminate it entirely. The most common defenses are:

  • Comparative fault. In many cases, more than one party is at fault or each opposing party shares some of the blame. The law accounts for these scenarios by permitting differing percentages of liability to be attributed to different parties -- i.e., 75% fault to plaintiff and 25% to defendant. In most states, the law requires defendants to pay only a certain percentage -- usually the percentage of fault attributed to them -- of the plaintiff’s damages. (Learn more about Comparative and Contributory Fault.)  
  • Assumption of risk. Even if a defendant caused the plaintiff’s injuries, the plaintiff may be barred from recovery if the defendant successfully raises this defense. To prevail, the defendant must show the plaintiff had knowledge of and appreciated a risk of injury, but voluntarily confronted the risk anyway and was injured. A common example of assumption of risk arises during physical or inherently dangerous sporting events, such as football. Those participating may generally not recover damages for injuries sustained in the normal course of the game.
  • Respondeat superior (employer liability). An employee who causes an injury may not be personally liable for damages if the injury occurred while the employee was working. In these situations, the employer is usually liable for paying damages.
  • Trespasser defense. While the owner or occupier of land is liable for negligence that causes injury to social or business guests, landowners are not liable when their negligence injures an unknown trespasser.
  • Firefighter rule. A private party who negligently creates a hazard will not be held liable to a professional rescuer who sustains injuries on the job while combating the hazard.

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