If you have been in a car accident, slipped and fell in a store, been bitten by a dog, had a botched medical procedure, you may have a personal injury claim; but how do you know for sure?
In order to have a valid personal injury claim you must prove that the negligence of another party led to you sustaining an injury and damages. To determine whether you may have a viable personal injury case, you should start by asking yourself these three questions:
- Did the negligence of someone else cause my injuries?
- Did I indeed suffer an injury, and not just property damage?
- Did I incur damages?
1. Can You Prove Negligence?
In a personal injury claim you must prove that your injury occurred because of the other party’s negligence. In D. Houston, Inc v. Love, the court ruled to prove negligence the following three factors must exist:
- The other party owed a legal duty to you;
- The other party breached that duty; and
- The breach was a proximate cause of your personal injury or property damages.
In El Chico Corp. v. Poole, the court ruled that there is a general common law duty for everyone to exercise reasonable care to avoid foreseeable injury of others. Texas is a comparative negligence state, meaning in Texas the injured party may be partially to blame and still recover damages. According to Texas statute, however, the injured party cannot collect damages if their percentage of responsibility for the injury is greater than 50 percent.
Evidence can be collected to help prove another party’s negligence. Some things that may help prove negligence include:
- Photographs from the scene of the accident. If you are in a car accident, pictures of the damage to the vehicles, location of the road debris, the street conditions at the time of the accident, and any relevant signs or lights can help prove fault and negligence. If you slipped and fell at the negligent party’s residence or business, take a picture of what caused you to fall.
- Eyewitness testimony can also help prove negligence. It is important to get the names and contact information of any eyewitnesses at the scene of the accident.
- Police report from the accident.
2. Did you Suffer an Injury (or several)?
A party must prove an actual injury occurred in order to collect damages in a personal injury case. It is important after an accident occurs to seek immediate medical attention. By seeking immediate medical help you improve your chances of proving injuries during settlement negotiations with an insurance company or during a lawsuit.
If you do not seek medical treatment for your injuries, an insurance adjuster, judge, or jury may have a hard time believing that you were truly injured in the accident. If there is a delay in getting medical treatment the other party may argue that the injury was not caused by the negligent act of the other party, but by a separate later occurring event.
It is important to keep accurate medical records of the dates medical treatment was sought and the type of medical treatment received. It may be helpful to keep a daily journal and record how the injury affects you and a list of any medical visits. Expert medical testimony at trial may also help prove injury.
3. Do you Have Recoverable Damages?
Proving damages caused by the injury is required for a valid personal injury claim. Damages that can be recovered in a personal injury case include:
- Medical expenses, which can be proven with accurate medical records.
- Lost earning capacity or wages. Lost wages are the actual lost wages up to the date of trial or settlement. Keeping track of time off work is important to prove lost wages. Lost earning capacity is the lost potential future income because of the sustained injury. Four factors are considered when determining lost earning capacity, including stamina, weakness and degenerative injury resulting from the injury, ability to work with pain, and efficiency. Evidence that can be used to prove lost earning capacity is a list of jobs held in the past and amount earned, tax records, education and training, fringe benefits, and realistic advancement and promotion opportunities. Experts may be used at trial to testify to lost earning capacity from the injury showing that because of the injury, completing certain tasks required by a job are not possible or realistic.
- Physical pain and suffering. It is important to keep records evidencing your pain and suffering. Keeping detailed medical records can help prove damages. Also, keeping a daily journal of the pain and how your injury is affecting you can help prove pain and suffering. Expert medical witness testimony at a trial can help show physical pain and suffering.
- Mental anguish. To prove mental anguish, a party must prove direct evidence of the nature, duration, and severity of their mental anguish establishing a substantial disruption in the party’s daily routine.
- Physical impairment. This is another reason why it is important to keep accurate medical records and another thing a daily journal can help prove. Expert medical witness testimony can also be used at a trial to evidence a physical impairment.
- Disfigurement or scarring.
- Punitive damages, if the other party acted with malice, which is an intent to injure or a conscious disregard for the health and safety of others.
Some states place caps on the amount that can be awarded in personal injury cases. Under Texas Statute, caps are only placed on medical malpractice awards.
If you have been injured and believe that you may have a personal injury case a personal injury attorney can discuss the facts of the case with you to determine your options. In order to have a successful case you must prove negligence on behalf of the other party that led to an actual injury and damages caused by that injury. It is important to collect as much evidence as you can to prove these elements. Seeking medical treatment immediately after the injury occurs is the first step to establishing a chain of evidence that can be used to show negligence, injury, and damages for a valid personal injury claim.
To speak with an attorney at Sutliff & Stout about your case, please call 512-616-2222 or fill out the short form below. We look forward to serving you.