Proving Liability and Damages in Personal Injury Lawsuit

Proving Liability in a Personal Injury Tort Claim

It is not enough to have been injured in order to successfully pursue a personal injury lawsuit and obtain financial recovery, however. The plaintiff must first prove that the defendant was liable for the accident. To do so, the plaintiff must prove the following four elements:

• The defendant owed the plaintiff a duty of care;
• The defendant breached his or her duty of care;
• The plaintiff suffered injuries; and
• The breach of the defendant’s duty of care was the proximate cause of the plaintiff’s injuries.

After the plaintiff has stated his or her claim, the defendant will have an opportunity to refute the plaintiff’s claim of liability through a number of defenses, such as:

• Comparative Negligence – Many jurisdictions, including Illinois, limit the amount that a plaintiff may recover based on the extent to which he or she was partially responsible for causing the accident. In these jurisdictions, the defendant may try to limit liability as much as possible by asserting that the plaintiff was also negligent.
• Contributory Negligence – A small number of jurisdictions (not Illinois) prohibit a plaintiff from recovering compensation in a personal injury lawsuit if he or she is more than 50% responsible for the accident. Accordingly, defendants in these jurisdictions may assert that the plaintiff was more than 50% responsible for the accident.
• Assumption of Risk – In some cases, a defendant may be able to avoid liability if the plaintiff created an inherently dangerous situation or assumed certain risk.
• Product Misuse – In Illinois, a defendant may not be liable for an accident that occurred as a result of an unforeseeable misuse of a product.
• Unrelated cause – If the injuries or deaths occurred as a result of an unrelated cause, the defendant may not be liable for the injuries or death.

Proving Damages in a Personal Injury Tort Case

Once liability is assessed, the plaintiff will then need to make a case regarding the appropriate amount of damages to which he or she is entitled. The amount of damages in a personal injury lawsuit depend on a number of factors, such as the specific legal claim, the circumstances of accident, the extent of the victim’s injuries, the impact of the victim’s injuries, and the laws of the jurisdiction. Personal injury damages may include compensatory damages, including:

• Medical expenses
• Lost wages
• Pain and suffering
• Disability
• Property damages
• Emotional distress

In some cases, punitive damages may also be awarded. Unlike compensatory damages, punitive damages are intended to punish the defendant and deter future wrongdoing.

ABOUT THE AUTHOR: Howard Ankin
Howard Ankin of Ankin Law Office LLC focuses on personal injury and workers’ compensation cases.

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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.