The strength or weakness of a personal injury case reflects the ability of the claimant to provide evidence of the element of blame. The injured victim of an accident has the legal right to blame someone that has been proven negligent.
In order to prove negligence, the claimant must demonstrate existence of a duty of care.
The legal system declares that each person has a duty to avoid harming others. That means that, when possible, each person should try to keep others from becoming subject to harm. The duty of care becomes most significant in cases where an injured party had been in proximity to the individual that has been blamed for the injury-causing accident. That same duty takes on added importance if the responsible party has control of an object that must be controlled, so that it does not harm others.
The second element that demonstrates negligence comes from evidence that a certain individual has breached his or her duty of care.
Sometimes that breach takes the form of an improper action. Talking to someone on a cell phone while at the wheel of a motored vehicle serves as one example of an improper action. That action can become a distraction, and, therefore, it can cause an accident.
At other times, the breach takes the form of a lack of needed action. For instance, a driver’s failure to signal before turning would qualify as a lack of needed action. That failure would demonstrate the driver’s readiness to engage in careless and neglectful behavior.
Can the blame be shared between the victim of an accident and the person that caused the same incident?
Yes, the blame can be shared. Sometimes an act performed or not performed by the victim allows for creation of a more serious injury. For instance, it might be found that the person injured in a car accident had failed to buckle his or her seat belt.
Can such a victim win any sort of compensation? In most states the answer is “yes.” A jury or judge would decide what percent of the victim’s behavior contributed to the serious nature of the reported injury. Once that percent had been established, then that would indicate the fraction of the compensation that ought to be deducted from the victim’s final award.
The above example applies in states that adhere to the comparative negligence rule. The few states that follow the contributory negligence rule would treat the same situation differently. In those states any victim that has been found partly to blame for an accident, or for accident-caused injuries has lost all rights to claim any amount of compensation. Does that seem unfair? No wonder few states use that rule.