Negligence is a legal concept, a subcategory of the larger legal concept of “torts.” Torts is one of the pillars of remedial law, along with criminal law and contracts, i.e., a law which lays out the process of securing a remedy for an alleged wrong. For example, in contract law, if a contracting party reneges on a promise, contract law provides a remedy for the aggrieved party. So too in tort law.
In tort law if a party is physically injured by another, tort law provides a remedy for the injured party.
If a party is physically injured by another, tort law provides a remedy for the injured party.
There are several types of torts including intentional and unintentional. Intentional torts include assaults of various varieties, defamation and so forth — wrongs which people intentionally commit. Then there are wrongs which people unintentionally commit. Negligence falls into the unintentional tort category.
When a person is negligent in the operation of a motor vehicle, and that negligence results in harm to another, then it is said that the negligent person is “liable” for the inflicted harm. This sounds very straightforward, right? Wrong. Judges, juries, and legal scholars have wrestled with the theoretical and practical meaning of negligence for centuries. It’s one of the beautiful and frustrating attributes of the law.
Negligence itself is divided into four major categories or “elements” — duty, breach, causation, and damages. Visit any first-year law school class around final exam time and you’ll likely encounter scores of zombie-like law students chanting the mantra of negligence — duty, breach, causation, damages.
Many of my clients think that merely because another driver has disregarded the rules of the road and collided with their vehicle, they are “owed” damages — i.e. money. In other words that the offender is “strictly liable.” This is not the case — even if the collision was so severe it “could have killed me.”
Understand that the client (which means you for the sake of this discussion) has the burden of proving the offender’ s negligence. It may not seem it, but right there is a mouthful. Some of my clients roll their eyes when I tell then this. They tell me: “why should I have to prove anything. After all, he hit me.
At law, this means that you — hopefully your lawyer — must prove each and every element of the alleged offender’ s negligence.
So let’s briefly examine the elements of negligence.
“Duty” means the obligation to take care in all of our dealings with others. For the purposes of this discussion, we’ll take duty for granted.
Let’s move on to breach. Breach is the heart of negligence — when a person breaches her duty of care to another person. In the context of an MVA (Motor Vehicle Accident), a breach can occur in any number of ways — traveling too fast for conditions, failure
to obey a traffic signal and so forth. It usually involves a traffic violation, but not necessarily so.
But, just because a police officer charges a driver with a traffic offense does not necessarily mean you have proven the element of breach. The police have been known to be wrong in their determination of liability. If that sounds like an understatement, it is.
Unless the responding officer actually sees an accident occur, his testimony about how the accident happened is irrelevant and inadmissible at trial. And unless he has been trained as an accident reconstruction expert, he cannot give his opinion as to who caused the accident and why.
This fact definitely comes as a shock to some clients. Moreover, what happens if there is evidence that you have also to acted negligently — what is called comparative negligence? We can take that issue up in another blog.
If you have a question based on this aspect, please give me a call at 864-233-2000 and book an appointment. I’ll be more than happy to meet with you for a free consultation.
For the moment let’s skip causation and talk about the last element of a negligence claim — damages. There are many types of damages, and one of the reasons you should seek counsel is to make sure you claim all the damages due you. An attorney also has the expertise to prove them. It is said that a lawyer’s stock in trade is his time. That’s true. But the real lawyer’s stack in trade is his expertise and the years of study and sacrifice that has gone into that expertise.
Now, damages include medical bills, pain, suffering, vehicle damage and so forth. Again, you, the victim, must shoulder the burden of proving your damages.
And finally, there’s causation. In a nutshell, causation links the breach to damages. In other words, you have to prove that because of the at-fault drivers’ negligence, you suffered property damage, bodily injury and so forth. Again this is easier said than done. Perhaps of all the elements we’ve discussed proving causation requires the services of a lawyer.
Good luck with your claim and don’t forget to call me should you have any questions!
Photo by Antonio Dicaterina on Unsplash
I was in a car wreck and the insurance company sent me some money for my property damage and pain and suffering, but I still have more medical bills, and my car still does not run right. What can I do?
This is a common question asked by prospective clients. The short answer is: it depends.
When you have been involved in a car accident which was not your fault, the two major type of potentially recoverable damages are property damages (PD) and bodily injury damages (BI).
When your car sustains damage after a wreck, the insurance company will send a trained adjuster out to estimate the damage (PD). If your vehicle is damaged beyond what it’s worth, the carrier will “total it out”, i.e., pay you the cost of replacing your car based on its make, model, year, pre-collision condition and comparables. “Bluebook” estimates are persuasive but not dispositive.
Many of my clients are unsatisfied with the estimate and disagree with it. In that case, there are a couple of things you can do. First, you can seek a second opinion and get a higher estimate and submit to the carrier. Of course, the second estimate may not be higher, and, indeed, it could be lower —- thereby weakening your argument for higher PD compensation.
Secondly, you can sue. If the car’s value is under $7500.00 you can sue in magistrate’s court in SC. Magistrate Court is a good option as the costs of bringing an action is low. You may not need an attorney (indeed, most attorneys will not work for this amount – one third or higher of $7,500.00), and the court costs are usually very reasonable – maybe less than one hundred dollars. If the dispute exceeds $7500.00, then you may have to sue in the circuit court which can become expensive.
My clients sometimes complain that the insurance company is not taking into account any special modifications they may have made to the vehicle, such as a sound system, special wheels, and so forth. Unfortunately, insurance companies will not usually pay for damaged modifications.
The most nettlesome problem arises if the client has already signed a release for their property damage. Basically, a release is an agreement between the client and the insurance company whereby the Client or the injured party agrees not to sue the person who caused the collision in exchange for a certain amount of money. Unless a third party has forged your signature and you can prove it or you were forced to the sign the release, or you can show that your signature was otherwise involuntary, a signed release is presumptively valid and very difficult to legally defeat. Signing a release may also extinguish your right to receive any further money for bodily injury, depending on the language of the release. So do not sign anything until you have seen an attorney.
I have seen an insurance company separately pay for medical bills and then issue a check for all other BI damages once the client finishes treatment. But the usual practice is to pay the client only once she has finished treating with her doctors. If you receive a large check accompanied by a release and you don’t have a lawyer, STOP RIGHT THERE, and call me at 233.2000, so I can at least explain your rights to you and try to give you an idea what your case may actually be worth. However, note that your case probably hasn’t been “worked up” to fairly represent your actual damages, but I can give you an idea.
Chances are the carrier is lowballing on her first offer to settle the BI. Insurance companies love to waylay clients before they retain legal representation hoping to pay as little as possible in the hope that the client does not know what she is doing, which, to be honest, she really doesn’t. Albeit, this may be hard medicine, but I prescribe it from concern, not animus. Laypersons are not trained in the law and usually miss vital information that can increase the value of their claim. Just as lawyers should not repair their own electrical problems, non-attorneys should leave the law to responsible lawyers.
Photo by Michael Jin on Unsplash
Workplace injuries are extremely common, so, first of all, don’t feel you’re “odd” or a “special case.” Employers know that workplace injuries are a business risk. That’s why most employers carry workers’ compensation insurance. Workers’ compensation insurance works pretty much the same way as other insurance policies. The employer, whether it’s a big corporation or a sole proprietorship, pays a premium to the insurance carrier, so that when one of his, or its, employees are injured, the employer is not out of pocket for the damages.
So what’s the catch? Insurance companies only pay “compensable” claims. Just because you think you have a compensable claim does not mean the insurance company will automatically start cutting you checks. There are many hurdles standing between you and your benefits.
This where a personal injury attorney comes in. A knowledgeable and experienced lawyer will help you navigate your claim through the legal and factual obstacle course that sinks many otherwise valid claims.
What do I have to do to get my workers’ compensation benefits?
The first thing you need to do when you are hurt at work is to report it to your immediate supervisor. This is called giving your employer “notice” of your injury. If you don’t carry anything else away from this blog, remember this: tell your employer how you were injured, where the accident happened, what body part or parts are injured, when you were injured, and then make sure you ask to see a doctor.
Upon receiving notice, your employer or his representative should fill out an incident report narrating the facts of your case. Make sure you get a copy of this report. Make several copies of it. After this, your employer may refer to an in-house doctor. In-house doctors are becoming more and more common in big corporations. If your employer has no in-house physician, he will probably refer you to a private group that customarily deals with that employer — usually what I call a “doc-in-a-box.” These are private emergency medical clinics. Some are quite good, others provide questionable services. In any event, if your employer refers you to a doctor, you must go. Don’t worry, you have the right to demand alternate care and get a second opinion. But at this stage, you need to give your employer the chance to provide medical treatment. Failing to go to your employer’s doctor could seriously jeopardize your case.
When you meet with your employee’s doctor, say as little as possible about the facts and circumstances of your case as anything you say can be used against you later on. But the same token, be careful filling out the doctor’s intake form. Again, you are essentially making a statement and any inconsistencies with what you report and what you later testify to will damage your credibility, and it’s not an overstatement to say that credibility is the single most important factor to consider in any litigation.
Should I go to my family doctor?
If your employer fails to refer you to “the company doctor,” by all means make an appointment to see your family physician. Also, this is another good time to call an experienced personal injury lawyer. Please feel free to call our firm at any time, day or night. If we are not available, leave a message with our answering service. We will get back to you as soon as possible.
Be careful what you say to your family doctor. Although she is “on your side”, she may report damaging statements you make, not knowing any better because she is not a lawyer. If you don’t have a family doctor, go the emergency room or ask your attorney to refer you to a doctor. He or she should have a network of generalists and specialists ready and willing to examine you, treat you, and if necessary, provide a medical opinion as to the seriousness of your injury, what treatment is necessary, and what, if any, future care you may need.
What if I am unable to return to work?
If your injury results in your being unable to return to work at full duty in a full duty, the insurance carrier should begin paying you what’s called “temporary total disability,” i.e., your weekly checks, as long as the authorized physician has written a note excusing you from work because of the nature of your injury. Make a copy of this and make sure it gets to your employer who should forward it to the carrier. If you are not receiving checks, call your lawyer and she should get on the phone with the carrier and raise a ruckus. Believe me, unless you are independently wealthy, you’ll need that money. Deliver a copy of the doctor’s excuse to your attorney as well as all other documentation pertaining to your case. Remember, giving your lawyer too much information is better than giving him too little.
There are many other pitfalls to avoid when trying to get your benefits. If you’ve been hurt at work, call us immediately at 864.233.2000 in Greenville and 591.1114 in a Spartanburg. We’ll safeguard the integrity of your case and get you the money you need and deserve.
Good luck and be careful out there. Remember, you are not alone. We’re only a phone call away.
Assuming that you are conscious and able to move about, you’re likely to be stunned and confused. If you smell smoke your vehicle may be on fire. In that case, you don’t have a lot of time. Check to see if your passengers are conscious and able to move. If so, exit the car and extract the passengers carefully as they may have suffered neck and spine injuries. You don’t want to aggravate any injuries, but it is necessary to get them to the safety before the car burns.
If you are certain that your car is not likely to catch fire, stay put and call 911. Tell the operator where you are. Do not tell them the facts of the case yet as chances are you may not know all the facts at this point, and you don’t want to make a mistake.
If the car is drivable and its position poses a hazard to yourself or other drivers and passengers, by all means, move it to a safe location – usually beside the road in the breakdown lane.
If your vehicle’s location does not pose a danger, say put and wait for help. Keep your phone on. If anyone is bleeding and you don’t have to move them, apply pressure with a piece of cloth or clothing.
If you are mobile and you don’t have to take care of anyone near you, check on the other driver and her passengers. Ask them if they are bleeding. If so, apply pressure. If not, do not move them. You do not want to make matters worse. On the other hand, you don’t want someone to expire if first aid could’ve saved her.
If the other driver and her passengers are able, and only if they are able, ask for their names and contact information. Don’t forget to get that information from your passengers as well as they are also witnesses to the accident. If there are any witnesses not involved in the accident, i.e., bystanders, do the same. This information could be very important if a question liability or other issues should arise.
Also, exchange insurance information. Make it a habit to keep paper and pens in your vehicle for this and other contingencies. When help arrives, direct them to the people who are injured.
After the injured are cared for, the police will probably want you to make a statement. If you have been drinking or taking drugs or both, politely state you refuse to answer any questions and that you want a lawyer. Even if you are not under arrest that should be enough to back the police off. Always be polite and say, “with all due respect,” to official personnel.
Refuse to take any field sobriety test, breathalyzer or blood test.
Then call our office call me at 233-2000 or 591-1114 immediately.
Even if DUI is not an issue, you still must be careful what you say because any statement you make could be used against you in any future proceeding. Have your license and registration ready.
After her investigation, the responding officer will give you what’s called a form FR – 10 – Notice of Requirement. Make several Xerox copies of this document when you get a chance. It contains important insurance information as well as the responding officer’s opinion as to who was at fault for the accident.
Note, however, that this is only the officer’s opinion. Unless she saw the wreck she’s really in no credible position to render an opinion. Also, remember that the responding officer is likely not an accident reconstruction expert. But the fact is that in most cases the officer’s opinion regarding liability is given weight.
If you retain a personal injury attorney he will also need the FR-10 for his file.
If you have been in a car accident, you should go to the emergency room, even if you don’t think you’ve been hurt. After a traumatic event, many people are hurt and don’t even know it. This is due to an influx of adrenaline which masks the pain your injury causes – a survivor response that facilitates your escaping dangerous situations. It’s when you feel safe that the adrenaline rush subsides, and the pain “blossoms” as it were.
A thorough examination by the ER staff should rule out any major injuries. If, however, you’re still feeling pain in any part of your body, schedule an appointment with your family doctor immediately, and if you don’t have a family doctor, call us, and we will get you the medical care that you need.
If you been have been injured as a result of a car wreck call us for a free consultation: we’ll explain your rights and what services we can provide.
In the meantime, remember to always drive defensively, and never drink and drive.