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What Is Negligence?—Part Three

Demonstrating Actual Loss

As we discussed in the first and second parts of this series, the initial requirements in a lawsuit alleging negligence are:

  • Evidence that would lead the jury to conclude that the defendant did not act reasonably under the circumstances (the conduct breached the duty of care)
  • The failure to act reasonably caused an accident

However, you can demonstrate conclusively that the at-fault party behaved unreasonably and that his or her actions caused an accident, but still be precluded from recovering any compensation in a personal injury lawsuit—you must also show that you suffered some actual loss.

Actual Loss in a Personal Injury Lawsuit

As a general rule, most damages paid in a personal injury suit are “compensatory,” i.e., intended to compensate the injured party for losses suffered. If, however, you haven’t suffered any loss, there’s nothing for which you need to be compensated. For example, assume that you were a motor vehicle accident and suffered bodily injury, incurring significant medical expenses. If those expenses are covered by your health or auto insurance policy, you won’t be able to recover any damages for medical expenses, as you haven’t had any out-of-pocket expense for medical care.

That’s not to say that the defendant won’t be responsible to someone for his or her negligence. In most instances, when an insurance company covers losses that you’ve suffered because of someone else’s carelessness, they have a right to seek reimbursement from the defendant for any amounts they’ve paid on your behalf.

It’s also important to understand that there’s another category of damages that are available in a personal injury action. These so-called “non-compensatory” or “non-economic” damages include payment for pain and suffering, loss of consortium or companionship and loss of enjoyment of life. Accordingly, you may not be able to recover damages for injuries covered by insurance, but you can still seek compensation for those non-economic losses.

Contact the Law Offices of David J. Karbasian, PC

Send us an e-mail today or call us at 856-667-4666 to schedule an appointment.

Evening and weekend meetings can be arranged upon request. We’ll come to your home or the hospital to meet with you, if necessary.

What Is Negligence—Part Two

Establishing Who Caused the Accident

As we explained in part one of this series, when you’ve been injured in any type of accident and have filed a lawsuit alleging negligence, the first element you’ll have to prove is that the wrongdoer (known as the “defendant”) failed to meet the recognized standard of care—that he or she acted unreasonably under the circumstances. But it’s not enough to show that the defendant breached the duty of care—you must then show a causal link between the breach of the duty of care and an accident.

The Different Types of Cause in a Personal Injury Claim

In any lawsuit alleging negligence, you must prove two different types of cause: actual cause and proximate cause.

Actual cause, also known as “but for” cause, is typically pretty straightforward. It simply asks whether the accident would have happened “but for” or in the absence of the wrongful conduct. Actual cause can become an issue when there are two or more parties who acted wrongfully. For example, if you are rear-ended at a stop sign and it pushes you out into an intersection, where you are t-boned by another driver who has just run a stop sign, there are two ways to look at actual cause:

  • Would you have been t-boned if you hadn’t been rear-ended first?
  • Would you have been t-boned if the second driver hadn’t run the stop sign?

It’s not enough, though, to demonstrate actual cause—you must also show proximate cause. Proximate cause asks whether the accident and its consequences were reasonably foreseeable, based on the careless act. For example, if you run a red light, it may be reasonably foreseeable that you will collide with another driver. However, if that driver loses control of his vehicle, careens into a gas station, hits a pump and causes a fire that burns an entire city block, you may not be liable for damages caused by the fire, as a jury may not consider that to be reasonably foreseeable.

Contact Attorney David J. Karbasian

Contact our office online or call us at 856-667-4666 to schedule an appointment. Your first consultation is without cost or obligation. The sooner you call, the sooner you can move forward with your claim. We can accommodate evening or weekend meeting requests and will come to your home, if necessary.

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