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Do I have a personal injury claim?

One of the most common questions an injured party asks after an accident is, "Do I have a personal injury case?" Consider, however, just because you are injured and someone else is involved or it occurred on another person's property does not mean you can sue them and recover compensation for your loss.

State laws vary, and there are very specific requirements for an injury claim. Before filing an injury claim you should determine if the statute of limitations has expired, whether you were responsible for your own injuries, and whether you can prove another party was negligent and breached their duty towards you.

Winning a personal injury claim

To win a personal injury claim you will first have to prove very specific elements of your case: duty of care, breach of duty, causation and loss or injury.

  1. Duty of Care-
    Before filing an injury claim you will need to prove the defendant owed you, the injured party, a duty of care not to cause you injury. For instance, a driver has the legal obligation to drive the speed limit, obey traffic signs, and operate their motor vehicle safely.
  2. Breach of Duty-
    Next, you must prove the defendant breached their duty towards you. For instance, if a driver ran a stop light and hit your car, they have breached their duty towards you. Medical doctors may also breach their duty of care when they perform an action which is different than what another doctor would have done in a similar situation.
  3. Causation-
    Not only do you have to prove duty and breach of duty, you must also prove that the defendant's breach of duty was the "proximate cause of your injuries." For instance, if another driver runs a red light and you run into a tree, you must prove their breach of duty caused your accident.
  4. Injury-
    Finally, you must prove you have suffered loss or injury from the defendant's breach of duty. If you do not have loss, you do not have a personal injury claim, regardless of whether or not a claimant was negligent. For instance, if you are walking through Kmart and you slip on ketchup which the store knew was in the aisle and failed to clean up for a substantial amount of time you might be able to prove they had a duty, they breached that duty, and the breach was the proximate cause of your fall, but if you have not suffered loss you do not have an injury claim.

    In addition to deciding whether you can prove the elements of your case you will also need to verify the statute of limitations has not passed. The statute of limitations varies by state and by type of case.

    Additionally, you will also need to talk to an injury lawyer about whether your state uses comparative negligence, contributory negligence or modified comparative negligence to allocate compensation.

    In certain states which use modified comparative negligence, an injured party may recover damages only if he is less than 50% at fault for his own injury or damages. Other states may decide to award damages according to fault, and others will not allow recovery if the injured party contributed at all to their injuries. Whether or not you have a personal injury claim may vary based on your state's laws.