Determining Fault in a Personal Injury Case

Fault (legal liability) for the underlying accident is a key issue in most personal injury claims. Here's how to prove your case.

By , J.D. · University of San Francisco School of Law

In any kind of personal injury case, one of the most important questions tends to be: Which party is at fault? Fault (or liability) is a key threshold issue because once it's established, the liable party is responsible for paying compensation (called "damages") to the injured party, whether via a negotiated settlement or court order. In this article, we'll look at how fault is typically shown in a personal injury case.

Who Makes the Liability Determination?

Who decides the fault question in a personal injury claim often depends on the circumstances of the case, but if you're represented by a personal injury attorney, they'll investigate the case, discover all potential at-fault parties, make a final liability determination, and present your case to the other side (or to a court).

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 parties cannot agree on liability, you and your lawyer may decide to file a personal injury lawsuit and give a civil court jury the ultimate say on who is at fault. Learn more about what happens when the other side denies liability in your injury case.

Using Negligence to Prove Fault

The 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. 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 looked down at their phone to compose a text message.
  • Causation. The defendant's negligence 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 in the above example, causation can't really be in question.
  • Damages. The plaintiff must incur actual damages (usually monetary) as a result of the incident. This includes medical bills, lost income, "pain and suffering," and property damage.

Learn more about proving negligence in a personal injury case.

Other Methods of Proving Fault

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

  • establishing intentional conduct
  • proving "negligence per se", and or
  • showing the case should be governed by the "strict liability" standard of proof.

Intentional conduct is something that's done voluntarily, and with a desired purpose or with substantial certainty of the consequences. Personal injury cases arising from assault, battery, and similar conduct can give rise to an intentional tort case.

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" means the injured person doesn't need to establish the defendant's negligence in order to recover damages. The most common claims involving strict liability are product liability cases, but this fault concept 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 your case can be a challenge. Attorneys and insurers will complete a thorough investigation of all details and circumstances of an injury claim in order to make an informed and legally sound liability decision. Such an investigation typically involves collecting evidence, interviewing involved parties and witnesses, and even hiring and consulting with experts. Common evidence used to prove fault in injury claims includes police reports, statements made by parties and witnesses, 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. But in a few states the plaintiff's own fault will bar any recovery. (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 typically can't recover damages for injuries sustained in the normal course of the game.
  • Respondeat superior (employer liability). An employee who causes an injury might not be personally liable for damages if the injury occurred while the employee was working at the time. In these situations, the employer is usually liable for paying damages.

To learn more about proving fault in your case, it might be time to talk with an attorney. Learn more about finding the right personal injury lawyer for you and your case.

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