Who Is at Fault for an Injury? An Introduction to Liability
By Louthian Law Firm, PA, South Carolina
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You might think it’s pretty simple. Car A went through an intersection, against the red light and hit Car B, injuring its driver, so Car A’s driver is at fault. Right? It’s not always as simple as it sounds. In a personal injury case there may be any number of causes and multiple parties who may be at fault for causing an injury.
In the case of Cars A and B, if we tweak the facts, any number of parties might be liable. What if Car A’s driver couldn’t stop at the red light because…
• The driver was drunk after being served alcohol several times in a bar, even after it was clear he was intoxicated.
• A recent brake job was done incorrectly, and the brakes didn’t work.
• He was asleep at the wheel because of the side effects of medication that he wasn’t warned about by his doctor or pharmacist and there was no such warning with the medication.
• The intersection was on a curve and, even though the driver was going the posted speed limit, he couldn’t stop in time.
Fault means there’s a logical, factual connection between what one party did do, but shouldn’t have, or failed to do, but should’ve done, which caused an accident and resulting injuries. In these instances, the parties at fault could be:
• The driver
• The owner of the bar, whose employees supplied drinks to a drunk customer
• The owner of the repair shop whose employee failed to use reasonable care in the brake work
• The doctor, pharmacist and maker, seller and distributor of the medication
• The government entity responsible for the section of the road.
In most personal injury cases, the plaintiff (the party filing the lawsuit) uses a negligence theory to show the defendant (the party being sued, normally represented by an insurance company, which may pay for the legal defense and financial losses caused by the accident) made a mistake, caused the accident and is financially liable for it.
In negligence cases, the plaintiff has the burden of showing that it’s more likely than not the defendant, in some way, caused the accident and should be held financially liable for the harm done.
• The defendant had a legal duty or obligation, under the circumstances, to the plaintiff to do or not do something (act as a reasonable person in that situation and exercise due care), and
• The defendant failed to do or not do what was required, violating or breaching that legal duty, and
• That breach of duty was the factual cause of the accident, and
• The defendant’s breach of duty, under the laws of the jurisdiction, was the legal cause of the accident, and
• The accident caused the plaintiff’s injuries, and,
• Damages and harm caused by the injuries should be, under the laws of the jurisdiction, compensated for by the defendant (though in most cases it’s the insurance company that will actually pay).
A plaintiff, in most states, can recover damages for injuries even if he shares the fault. There are some jurisdictions which ban any recovery if the plaintiff has any fault, but most allow recovery, to one degree or another, if the plaintiff is partially at fault.
Other states allow recovery if the defendant is to blame in some way; some states allow recovery as long as the plaintiff is no more than 50 percent at fault for the accident; and others allow recovery when the defendant is more at fault than the plaintiff. In these states, plaintiffs can recover the percentage of the damage for which the defendant is to blame.
These distinctions are important when you’re considering your legal options. For example, if you’re considering filing an injury claim in South Carolina, then it’s helpful to know that it’s a modified comparative negligence state, which means that if they share more responsibility for an accident than the defendants.
Negligence laws go back hundreds of years, to the British courts long before there was a United States. They evolved over time, and currently it’s rare that there is a truly ground-breaking court decision, or state statute (federal law normally doesn’t play a role personal injury cases), that substantially changes the law. What normally establishes fault and liability are the facts of the case, which often are disputed by the parties.
Because personal injury cases are so fact intensive and driven by what facts each side can establish, an investigation into the accident, the discovery process during litigation (when parties exchange information, documents and information in writing and verbally under oath) as well as reports by expert witnesses are critical.
• An investigation into a vehicle accident often starts with a police report. Photos and videos by the accident victim or nearby security cameras can be used. The scene could also be looked at by professional investigators. The wreckage of vehicles may be thoroughly examined.
• Those involved in the accident may be deposed, or asked questions by both attorneys under oath. Explanations of the accident may be given; questions about the vehicle may be asked; the parties may be asked about prior accidents or lawsuits.
Once a full picture of the accident is obtained, an expert may reconstruct the accident. Often both sides have their own experts who give conflicting conclusions. In close cases, a judge or jury may or may not find liability, based on how well an expert does his or her job in explaining what happened and the credibility of the expert on the witness stand.
Facts are normally the basis of finding fault and liability in a personal injury case. Given the importance of facts, a person seriously injured by an accident should contact an attorney sooner rather than later. It makes it easier to interview witnesses whose memories may fade, gather evidence before it’s lost and get a clear picture of the case so both the accident victim and the attorney will know what kind of case they have, its chances of success, its settlement value and the best ways to move forward.
ABOUT THE AUTHOR: Bert Louthian
Bert Louthian has been practicing law in Columbia with his father, Herb, since 1985. After receiving his Juris Doctorate from the University of South Carolina, Bert launched his legal career in his father’s firm. With 80 years of legal experience between them, Louthian Law, P.A. remains Family-Owned and Family-Focused.
Bert’s commitment to family extends beyond his immediate family, including wife and three children, to include an ongoing dedication to the families of Columbia and all of South Carolina.
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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.