Accidents and injuries tend to go hand in hand. If you’re in an accident, chances are you’re going to have some injuries. You probably aren’t looking forward to covering the damages on your own. After all, why should you pay for someone else’s negligence?
However, before you can even think about filing an accident claim you need to be able to name the liable party. Sometimes, establishing liability in a Louisiana personal injury claim is a piece of cake. Other times, it turns into a complicated and confusing mess.
Negligence is Key in Personal Injury Claims
Regardless of the type of accident, it typically falls under the huge umbrella of personal injury law. Everything from car crashes and slip-and-fall accidents to medical malpractice and product injury claims is covered by this extremely broad law.
While some legal nuances can pop up depending on the type of accident claim, one aspect typically remains the same. You must establish negligence. This means showing the other party’s actions or lack of is responsible for causing the accident and your resulting damages. There can be an exception if you’re filing a strict liability product injury claim. Negligence tends to be implied in strict liability claims.
Establishing the Key Elements of Negligence
Negligence is defined as when a person’s actions and/or behavior isn’t considered that of a reasonable individual. What’s considered reasonable behavior? This can get a little murky since everyone’s idea of a reasonable person can differ. The law tends to look at average actions and behavior to define reasonable.
For example, a reasonable person will stop at a red light. An unreasonable person will treat the red light as a suggestion and barrel through the intersection. A reasonable person won’t ignore a spill on the floor that can result in a slip-and-fall accident.
So, once you can show the at-fault party’s actions and/or behavior isn’t considered reasonable, you should be good to go right? Not quite yet. Establishing negligence also means meeting the four key elements. Since the key elements of negligence tend to build off of each other kind of like links in a chain, once you get going they tend to fall into place.
Duty of Care
Every time you leave your house you probably owe someone a duty of care. This brings us back to negligence. Your duty of care to others is to act in a way that doesn’t place anyone at risk.
All motor vehicle operators owe others on the road a duty of care. Property owners have a duty to their visitors to ensure their premises are free of hazards. Retail store owners owe their customers a safe environment. You get the idea. To establish this element of negligence, you must prove the defendant owes you a duty of care.
Breach of Duty
Okay, you’ve taken care of establishing you’re owed a duty of care. Now, it’s time to prove the defendant breached this duty. Sometimes, this is relatively easy. Other times, it takes a little investigative work. You must prove the defendant’s actions aren’t those of a reasonable person.
So, if it’s an auto accident, you’re showing the at-fault driver wasn’t following all traffic laws. Running a red light is an example of a breach of duty. So is ignoring a known hazard like spilled liquid on the floor.
Breach of duty can also extend to hazards the defendant should be aware of. If a visitor falls into a hole on someone’s property, this can be considered a hazard the property owner should’ve known about. After all, if the property owner is paying attention they would’ve known about the large hole.
Causation
Now it’s getting a little easier to prove negligence. You’ve shown the defendant owes you a duty of care and they breached this duty. To show the third element of negligence, you must prove the breach of duty is directly responsible for causing your damages.
A fun trick is to use the ‘but for’ scenario. The traffic accident wouldn’t have happened but for the other driver running the red light. If the ‘but for’ phrase works in your sentence regarding the accident’s cause, you’re probably ready to move on to the final element of negligence.
Damages
The fourth and last element of negligence you need to prove to move forward with a personal injury claim is your damages. You must prove your damages are caused by the accident and not something else.
This is when your documentation comes in handy. Things like your official accident report, medical records, and property damage repair/replacement estimates, along with bills and receipts can help you establish your damages.
Getting Past Louisiana’s Comparative Negligence Rule
Like a few other states, Louisiana follows comparative negligence guidelines. This insurance rule lets more than one party be responsible for causing the accident. Fault is assigned to the involved parties. As long as your percentage of fault isn’t over 50%, you should be able to recover some compensation. However, your compensation amount is going to be reduced by your percentage of blame.
Who takes care of assigning fault in an accident? Typically, the responding authorities and insurance adjuster handle this part of the process. You aren’t going to have a lot of say in the matter, at least initially. If you believe you’re being unfairly assigned blame, your personal injury attorney can file an appeal in civil court. While there’s no guarantee the court is going to reduce your assigned percentage, it usually doesn’t hurt to try.
Don’t Miss the Filing Deadline Trying to Establish Negligence
Unlike the majority of states that give accident victims around two years to file a personal injury claim, the Pelican State is a little different. You only have one year from the date of the accident to start the claim process. If you miss the statute of limitations, there’s a good chance you aren’t going to be able to recover compensation.
You can up your chances of recovering compensation by partnering with an experienced Louisiana personal injury attorney. From establishing negligence to meeting the state’s statute of limitations, your attorney can help ensure you’re not left responsible for covering all of your damages.
