When To Sue For an Injury

Here's what to consider before filing a lawsuit or insurance claim when you've been injured in an accident.

From a car accident to a slip and fall, most people will be involved in an incident that leads to injury at some point in their lives. Of course, not every mishap gives rise to legal action. But when another person or entity is legally at fault for your harm, you may have a valid personal injury claim. Read on to learn more, including what you’ll need to prove.

Do You Have a Legal Claim?

A legal remedy for physical harm can come through the filing of a personal injury lawsuit in court, or via an insurance claim filed with the at-fault party's insurer (or in some cases, filed with your own insurer). Either kind of action lets you recover compensation for damages, which means all your losses arising from the accident and your resulting injuries. That includes your medical bills, lost income, "pain and suffering," and other kinds of losses. (Learn more about filing an injury claim.)

General Types of Incidents & Legal Claims

Type of Case

Typical Cause of Action

Usual Liable Party

Source of Compensation

Car Accident

Driver's Negligence

At-fault driver

Insurance Claim/Civil Lawsuit

Slip and Fall (Premises Liability)

Property Owner's Negligence

Property owner

Insurance Claim/Civil Lawsuit

Medical Malpractice

Medical Negligence

Doctor/medical professional, hospital/medical facility, or both

Insurance Claim/Civil Lawsuit

Workplace Accident

None usually required

Liability not usually at issue

Workers Compensation Claim (No Lawsuit Possible)

Defective Product

Strict Liability

Product manufacturer

Civil Lawsuit/Class Action Lawsuit

Assault and/or Battery

Intentional Tort

Aggressor/perpetrator

Civil Lawsuit (Insurance policies do not typically cover intentional acts)

Animal Attack/Dog Bite

Owner's Negligence (Strict Liability in Some States)

Animal owner

Civil Lawsuit/[Homeowners] Insurance Claim

What You Need to Make a Case

If you want to make an injury claim (either through an insurance claim or lawsuit), you usually need to be able to prove that the person you are making the claim against was somehow negligent, and that their negligence led to your injuries (your damages). Learn more about proving negligence.

Under personal injury law, the burden of proving these two main elements—fault and damages—is placed on the person making the claim. If your claim ever makes it all the way to trial, the legal standard by which you must prove your case is by a preponderance of the evidence, which means you must prove (to a judge or jury) that more likely than not, everything you are alleging is true, regarding the cause and extent of your injuries, and the defendant’s liability. In all likelihood, your case won’t make it to trial, let alone to the verdict stage, but in assessing the strength of your case, it helps to think in terms of whether you can successfully meet the burden of proof in a personal injury case.

Keep in mind that not every injury case will come down to the question of whether or not the other party was negligent (though most cases will). If your injury was caused by a defective product or a workplace accident, your claim will follow different rules (refer to the chart above). For example, if you suffered an injury while on the job, you’ll most likely need to file a workers’ compensation claim under the procedures in place in your state. In almost every workplace accident, the injured worker is barred by law from suing his or her employer.

Evidence Necessary To Prove Your Claim

So, assuming the kind of lawsuit you’re bringing requires you to establish that another party (the other driver in a car accident case, or the business owner in a slip and fall case, for example) was negligent, what kinds of evidence might you need in order to successfully prove your case? The possibilities include:

  • a police report documenting the circumstances and cause of a car accident
  • an incident report prepared by a store, restaurant, or other business where a slip and fall occurred
  • eyewitness statements attesting to the details of when, where, and how your injury occurred
  • photographs from the accident scene and any evidence that might help document the cause and circumstances of your injury
  • records of all medical treatment associated with your injury—including from emergency services, hospital visits, physicians, physical therapists, and chiropractors
  • documentation of time missed at work, and records showing your typical income, to support a lost wages claim, and
  • testimony from a doctor or medical expert regarding the cause of your injury. For instance, if you have a herniated disc, which can be caused by many factors (including the natural aging process), your doctor or another medical expert would need to testify that it was the impact from the car accident (or the fall, or whatever the incident that prompted your injury claim) that caused the herniated disc, and that it wasn't simply an existing or unrelated injury.

Should You Talk to a Lawyer?

Figuring out if you have sufficient evidence to bring a lawsuit can be tricky, especially if you're uncertain what type of evidence you need and how to get it. In most cases, it is best to seek advice from an experienced personal injury attorney, who can help you determine if you have a valid case and, if you do have a case, help you prove it.

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