In order to successfully negotiate a full and fair settlement, you need to learn the process and terminology associated with personal injury claims. Otherwise, the insurance adjuster may use their expertise to intimidate or frustrate you into accepting a settlement much lower than your claim is worth. We’ve covered the basics below so you can empower yourself with the knowledge needed to aggressively negotiate your injury claim.
The five elements of a personal injury claim are as follows:
- Define the other party’s duty of care.
- Establish how he or she breached that duty.
- Determine negligence.
- Prove liability.
- Verify your damages.
Define Duty of Care
Duty of care is the responsibility or the legal obligation of a person or organization to avoid acts or oversights (which can be reasonably foreseen) to be likely to hurt others. It is the first element that must be established to proceed with an action in negligence.
Example: While driving, Ted isn’t checking his cellphone, eating, or being otherwise distracted. He is focused on the road and everyone – pedestrians, bicyclists, motorists, etc. – around him. He is obeying duty of care.
Establish Breach of Duty
When a person fails to exercise his legal duty of care, and that failure results in injuries to others, he has committed a breach of duty.
Example: There is a spill posing a slip-and-fall hazard in a grocery store. Although multiple customers have complained to the staff about the spill, the manager neither sends an employee to clean up the spill nor puts up warning signs within a reasonable period of time. Eventually, a customer slips and falls, injuring herself. The grocery store wholly breached their duty of care, and thus can be held liable for the customer’s injuries.
When a person hurts another through recklessness or carelessness, he is being negligent. This creates grounds for an injury claim.
Example: Sally is texting while driving. Because she is distracted, she fails to yield right-of-way at a stop sign, causing a collision. It was her being careless, or negligent, that resulted in the accident.
Liability is taking responsibility or legal obligation for one’s actions. In some cases, liability can be shared, in varying degrees, between multiple parties.
Example: Ralph, a speeding motorist, hits Pam, a pedestrian who was crossing the street outside of a crosswalk and without carefully checking traffic. Fault in this accident is likely to be shared since both parties were engaged in negligent behavior at the time of the incident.
Damages encompass the personal injuries and property damage caused by the accident. Damages can be verified through medical bills and reports, repair estimates, and other supporting documents or material evidence.
About the Author:
Bobby Saadian, Esq. is the Founding President and Managing Attorney at Wilshire Law Firm. Known as the “People’s Lawyer,” he primarily handles major accident and catastrophic injury cases of many varieties, including auto accidents, motorcycle accidents, truck accidents, pedestrian accidents, and wrongful death.