Personal injury can occur in a variety of different scenarios and situations.
January 25th, 2018
There are different factors which need to be taken into consideration while assessing whether a personal injury creates a viable or sustainable cause of action and how it should progress.
First it needs to be determined if the personal injury occurs in a situation where somebody is responsible for it. Personal injury can occur in the workplace during normal work activities.
Under those circumstances, it can fall under a worker’s compensation scenario, which is different from a third-party liability personal injury scenario. As far as third-party liability scenario goes, it needs to be established for a personal injury case to be sustainable.
People get injured in a variety of situations, such as playing sports or simply by walking without paying attention. An injury can also occur in a situation where somebody else did something–or did not do something.
The first assessment is how the injury occurred, why it occurred, and who ultimately is responsible for it.
The most typical situation would involve an automobile accident. By the very nature of vehicles, the collision between vehicles (or collision between vehicles and pedestrians) frequently leads to a variety of injuries causing the people involved in the collision serious injuries, even death, loss of limb, prominent injuries, or minor injuries which are resolved after several weeks or months of treatment.
The determination where a car accident leading to an injury creates a cause of action which can be recovered is guided by how the accident happened.
So to determine how the accident happened, we usually need to listen to how the person involved in the accident describes it and then find supporting material. Supporting material can be in the form of police reports, witness statements, photographs showing the property damage, Google Maps street view (which is a valuable instrument in determining how the area where the particular accident happened looks like), and using the rules of the road.
Maryland, D.C. and Virginia have traffic rules–which are on the books and easy to obtain and forward. A typical situation is when somebody stopped at a red light, stop sign, or in traffic and they got hit from the back, i.e. a rear-end collision. Usually, with some exceptions, it is the fault of the driver in the back.
Another example is when somebody is entering an intersection and fails to yield the right of way. The way it works is the intersection either has traffic lights, stop signs, or yield signs (i.e. traffic control devices). You must determine who had the right of way based on these items. There is also something called the Boulevard Rule, which is a law in Maryland, D.C., and Virginia, where somebody entering a main road from a driveway or from a parking lot needs to yield the right of way from the traffic on the highway.
Next we assess what happens after being given a description of an accident—determining if our driver had the right of way. In some situations it’s unclear because of disputed situations involving traffic lights. People say that the traffic lights were in different configuration from each other, and it becomes a he-said, she-said situation, which can potentially lead to a problem of establishing liability.
The worst circumstance is when there were no third-party or independent witnesses to corroborate. Because again, in a civil case, like a personal injury, the standard of what can determine who is at fault is based on preponderance of evidence. To make the determination, if we have conflicting versions, we need to look at the layout of the intersection, where the property damage is, and where it happened in the intersection to see which version is more likely to be correct.
Once you describe the impact of an auto accident, you can then figure out where the property damage should be, and which parts of the car were hit. And if what you see in the photographs, or upon personal examination of the car is consistent with what the person, potential client, or opponent is telling you, then you know that this is more likely to be what happened.
The first step to determine in the personal injury case is to see whether we can determine which driver was at fault, and if it’s our client’s version which is more likely to be correct than the other driver’s version. Sometimes you have to keep in mind that people’s memories are not perfect–people tend to interpret the events in their own favor when discussing them. Always take a step back and look at all the available information to determine what really happened.
Another big item: it doesn’t necessarily need to happen the way the client is saying it happened. You can still prevail even if the real events are slightly different from what your client thinks happened, as long as your client (let’s say in a car accident) had the right of way. There are a lot of different factors there.
If you talk about rear-end collisions, usually it’s pretty straightforward. If you were in front, the person in the back who hit you would be at fault. But then there are situations where it’s not the case. There is something called a sudden stop doctrine where if somebody who’s stopped for no reason whatsoever and got rear-ended, it’s their fault because the other driver could not have reasonably anticipated them stopping.
Sometimes you get situations where someone is driving, then back up into a car behind them. It looks like a rear-end collision, but it really isn’t.
The way that you can determine what actually happened is by looking at the traffic pattern and where the lines are. This is because a lot of times people try to merge into another road, they go too far into the road, and they try to back up because they realize that they cannot do the merge. If you look at the position of the car after the accident, you might be able to determine that this is what actually happened–this is something which can stop the presumption in a rear-end collision that the rear vehicle was at fault.
The other situation is if somebody changed lanes. You can see if that’s true based on where the impact happened. It’s one thing if you have an impact square in the back of the car, and it’s another thing when it’s on the side of the car, on one side of the back, or on only one side of the front–all of these indicators can help to determine if an accident happened as a result of a lane switch. You then need to figure out which of the drivers was switching lanes, and whether they had a right of way to switch lanes at that point.
When in a car accident, the big question is to determine who is at fault. There are a variety of factors and situations to consider.
One situation that comes up is the issue of contributory negligence–Maryland and Virginia have a very rigid set of rules. Even if the injured victim is 1% at fault in a car accident case, then they cannot have any recovery. The driver might be 99% at fault, and the other driver was only 1% at fault, the 1% at-fault driver still takes nothing.
Even if a person had a right of way, it is necessary to ask the following:
One example would be somebody who is driving with no headlights on at night. Even though he would have the right of way, the other driver has no way of knowing that that car is there. The person who gets in the accident, even though he had the right of way, essentially forfeited that right by not having the headlights on, creating a contributory negligence issue.
Another example could be driving with the brake lights that are not working. Another one would be if someone is aware that there’s a car coming in. Not having the right of way, but knowing that the car is not going to stop, they still try to exercise their right of way. That can be considered contributor negligence. A lot of factors go into making that determination.