Interviewer: Does someone else’s negligence automatically mean I have a good case?
Interviewee: That’s a great question, and the answer is no. There are various components that go into having a legitimate claim or, as you asked, a good case. Someone else’s negligence usually is a major factor, but that standing by itself is not enough. So, there has to be a significant injury or something like an injury that results from the other person’s negligence. So, I often have people that come to my office and say, “You know, this guy, just without looking, he slammed into the back of my car and, you know, is completely negligent on his part. Do I have a good case?” And I said, “Well, what are your injuries?” “Well, my neck hurt me for a couple of days, but I could have been killed. Don’t I get something for the fact that I could have been killed?” And I have to say, “You know, look, you get something for your minor whiplash. But the fact that you could have been badly hurt or killed because he was negligent doesn’t give you right to be compensated for what could have been.”
So, the negligence is a component, but then there has to be a significant injury, and you have to be able to show that that injury was a result. Sometimes I get people coming in here and saying, “Well, you know, I had a pretty bad back before, but this made it worse. What am I entitled to?” Well, let’s start with the other person was negligent, they caused the accident. If your back was made worse, you are entitled to the degree…to be compensated for the degree to which your back was made worse, but not the entire back injury. And this is usually where you get a lot of argument from the other side because if you claim an injury, one of the things they love to argue about is that you had the injury before or you would…had it anyway. It’s not because of the accident. So, you have to prove the injury and you have to prove what’s called causation.
And even though you didn’t ask it, it kind of gives rise to the flip side of that question. What if I have a serious injury? Do I have a case? For example, it’s surprising how many people will come to me and say, “You know, I fell down the stairs at my friend’s house. Isn’t he liable?” “Well, I have bad injury. I broke my ankle, I had to have surgery,” whatever it is. I said, “Well, what was wrong with the stairs?” “Well, I don’t know, but isn’t he responsible if I fell down and hurt myself at his place?” So, the question in that one is, “I can’t prove the other person was negligent? Do I have a case?” You need both. You need to show the negligence, the failure to live up to a reasonable standard of care, and that that failure was the cause, or a major factor, a substantial factor is the legal term, in causing the injury or condition that you’re complaining about.