Throughout life, individuals encounter many hurdles that prove challenging. Most people, whether it be in the personal, professional, or financial realms of their lives, try to minimize risk to themselves while maximizing the benefit that they receive to achieve their goals. Despite these intentions, some risks cannot be avoided, and often, life may throw us a curveball that derails our plans. One of these curveballs may, unfortunately, come as a personal injury due to the unreasonableness of another individual by way of a personal injury.
Personal injuries can arise in an infinite number of ways – the most common types of incidents include automobile accidents and what are known as “premises liability” cases (e.g. slipping and falling on a wet floor at a restaurant or store). The range of injuries that one may experience can vary widely. Someone injured may undergo medical treatment and make a full recovery while others, unfortunately, may suffer chronic or incapacitating conditions or even pass away from their injuries. Regardless of the circumstances and the nature of the injury, it is important for an injured party to navigate through a personal injury claim, whether pre-suit or in a lawsuit, with skilled and experienced attorneys. This blog explores the four elements necessary to succeed on a personal injury claim and many of the issues which may arise with respect to those elements.
Duty: The first element of a personal injury matter is whether the person(s) or entity who you think did something wrong actually owed a duty to you. In general, a person must exercise due care to avoid injury to others.1 In a more specific context with which you may be more familiar (as a driver), “[a]ll operators of motor vehicles have a general duty to use ordinary care to avoid injuries to other motorists.”2 In most common personal injury cases, the issue of duty is one that usually is apparent at the outset; however, it can arise and be the subject of litigation. For example, if you slip and fall on a public sidewalk outside of your neighbor’s house, your personal injury action against him or her may be quickly dismissed, because under Indiana law, generally, an owner or occupant of property abutting a public street or sidewalk has no duty to clear those streets and sidewalks of ice and snow.3
Breach: The second element of a personal injury case is whether the person(s) or entity actually breached their duty. As opposed to the question of whether a duty exists at all, the question of whether a breach occurred is usually one for a trier of fact (e.g. a jury). This means, generally, that whether a breach occurred is specific to what actually happened in your case. Sometimes, the element of breach is one that is strongly contested in a personal injury case. For example, in a motor vehicle accident case, the drivers and the witnesses may disagree strongly about the color of a traffic light or who had the right-of-way. In a slip-and-fall case, the breach question may turn on whether a property owner knew or should have known whether a dangerous condition (like water on the floor) existed. It is important for one who suffers a personal injury to amass as much evidence as possible in a prompt manner – examples include the names and addresses of any eyewitnesses, photographs of an accident scene, and notes of anything that was said by anyone involved in a personal injury accident. Evidence on this crucial point may be the most important aspect of your case, as Indiana’s Comparative Fault Act reduces the amount of an amount by the proportion at which the plaintiff may be at fault. If a plaintiff’s fault is greater than the defendant’s or defendants’, then the plaintiff is barred from recovery.4
Causation: Causation is often another element that is a source of litigation in a personal injury matter. For a plaintiff to succeed in his or her case, he or she must prove that the breach of duty proximately caused the damages of which you are experiencing. A common challenge in a personal injury case is when a defendant argues that an injury was “pre-existing.” For example, if you are one whose job requires physical labor and have sought treatment for a herniated disc in the past, it is very likely that a defendant in a lawsuit may argue that the injuries about which you are complaining were present before the accident. Another example that often comes into play if when plaintiffs are involved in an accident but do not seek treatment for several months. This allows a defendant to argue that a personal injury plaintiff “must not have been hurt” because it was not severe enough to seek medical treatment. The best way to combat these challenges is to seek reasonable and necessary medical treatment if you are injured and to ensure that all your medical records, both those from before and after the incident giving rise to your injury, are available for your attorney.
Damages: The final element of a successful personal injury case is proving damages. This, in its simplest terms, is the amount that is fair to compensate you for your injuries. Some possible damages in a personal injury case include:
- Medical expenses: actual medical expenses for treatment that was reasonable and necessary to treat the medical conditions caused by the incident.
- Pain and suffering: a more subjective measure of damages. Critical evidence on this portion of damages includes exact detail as to how the injury has affected your life, including specific examples of limitations that you now experience.
- Temporary or permanent impairment: this often requires expert medical testimony.
- Lost wages: amounts of income that you have lost because of time off work. Useful evidence includes tax returns, pay stubs, medical notes restricting work/lifting, etc.
- Loss of future earning capacity: amounts that you may not be able to earn in the future because of physical or mental limitations brought on by the incident/injury. Often, this requires expert medical and/or occupational testimony.
- Emotional/mental distress: this often includes more than the stress associated with having an accident and injury. To be compensated on these types of damages, it is often necessary that a plaintiff actually sought counseling or some other type of treatment.
- Loss of services: this is a companion claim that is often brought by a spouse. Loss of services may include an injured partner’s inability to contribute to the household.
We hope you find this blog post useful in providing information about personal injury cases and some of the issues that arise in these matters. Ciyou & Dixon, P.C. attorneys handle personal injury matters throughout Indiana. This blog post is written as general information and is not legal advice or a solicitation for services. It is an advertisement.
- Sandberg Trucking, Inc. v. Johnson, 76 N.E.3d 178, 814 (Ind. Ct. App. 2017).
- Wilkerson v. Harvey, 814 N.E.2d 686, 693 (Ind. Ct. App. 2004).
- Hirschauer v. C & E Shoe Jobbers, Inc., 436 N.E.2d 107, 110–11 (Ind. Ct. App. 1982).
- Ind. Code §§ 34-51-2-5-5 through 8 (generally speaking, if a plaintiff is greater than fifty (50) percent at fault, he or she cannot recover).