Sometimes bad things happen to good people, even through no fault of their own. Among the most common variety is the car accident, there are occasional instances of medical malpractice, slip and falls, dog bites, assaults, and numerous others.
If you are injured through someone else’s negligence or intentional misconduct, you are lawfully entitled to be put back into the position you would be in if it had never happened. This could include compensation for pain and suffering, medical bills, lost wages, property damage and other incidental expenses. A good attorney can help you identify and obtain adequate compensation for these losses.
Negligence is among the most common claims. To succeed in a claim of negligence, the complaining party must prove the four elements of negligence: 1) duty, 2) breach of that duty, 3) damages, and 4) that the breach of the duty was the proximate cause of the damages. If any element is missing, the claim will not be successful.
The law gets more complicated where both parties were negligent. In Nebraska, a plaintiff who directly contributes to his own injury cannot recover, even if the defendant was also negligent, unless his contributory negligence was less than 50% of total negligence of all parties.
Further, even when a plaintiff has established his right to recover by proving his own negligence was less than 50% of the total negligence from all parties, his potential recovery will be reduced in proportion to the amount of negligence he bears compared to the total negligence from all parties.
Finally, even if an individual breaches a duty owed to another person (such as backing into a vehicle in a parking lot), there cannot be a valid claim against him unless the plaintiff can prove damages as a result of the breach. What does that mean if the other car was already full of dings and scratches? This may be a determination for the finder of fact, such as a judge or jury.
Medical malpractice claims are similar to negligence claims. In medical malpractice claims a good attorney will use credible expert witnesses to demonstrate the medical provider failed to meet his or her duty of care. This requires more than just a negative health outcome.
Intentional torts, such as assault or slander, all have separate elements unique to each cause of action. It is not uncommon to bring forward several causes of action in a single complaint.
Sometimes damages are very difficult to calculate. Lawyers may solicit the assistance of experts, such as appraisers, economists, occupational therapists, forensic accountants, or even accident reconstructionists, among others. Damages must also be proven by a preponderance of the evidence (at least 51% sure).
Note, it is a much lower standard to find someone liable for a tort such as negligence – a simple preponderance of the evidence for each element – than to convict someone of a crime – which requires proof beyond a reasonable doubt. As a result, even someone who was found not guilty of a crime may still be civilly liable to a victim. O.J. Simpson is a famous example of a person being found not guilty in a criminal trial, but liable for damages in a civil proceeding.
Insurance companies stay in business by taking in more in premiums than they pay in claims. To accomplish this, there is a strong incentive to deny claims, or pay the least possible amount. A good attorney will more than earn his fee by ensuring you are paid the full amount warranted by your damages.
by Perry Pirsch, Esq.
Berry Law Firm, PC
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