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.
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.
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:
See our overview article on negligence for more information.
Not all injury claims involve traditional negligence. A plaintiff can still prove fault in a variety of ways, including:
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.
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.
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: