Personal Injury:

Proving Fault

There are two types of fault in personal injury lawsuits that may need to be proven. The first is negligence; the second is related to the liability for dangerous products.

Law of Negligence

Personal injury claims arising from most accidents and injuries involve proving that a person or company was legally negligent for the harm that was caused. If someone acts in a careless manner and causes an injury to another person, under the legal principle of "negligence" the careless person can be held legally liable for that injury. This is the most common basis for determining fault in personal injury cases, from informal settlements to trials in court.

In negligence claims, the injured party (the plaintiff) attempts to show that the person allegedly at fault (the defendant):

  • Under the circumstances, owed a legal duty of care to the plaintiff
  • Breached that duty through conduct, action, or inaction
  • Caused an accident or injury that involved the plaintiff
  • As a result, the plaintiff was harmed or injured

Defective Product Cases

Injuries resulting from a defective or dangerous product often result in an easier recovery than injuries resulting from other causes because there are established rules and theories of recovery that have been set in the area of product liability law. The theories under which a person may recover damages in product liability cases include: strict liability, negligence, and breach of warranty, depending on the law in the applicable state; more than one may apply in any given case, but the most common is strict liability.

While in most personal injury cases, negligence must be proved, this is not the case when the theory of strict liability applies. This is because it would be almost impossible for one individual to have to prove how and when a manufacturer was negligent in making a particular product. The consumer cannot be expected to prove whether the seller or renter of a product had a proper system for checking for manufacturer's defects, or whether the seller caused the defect after receiving the product from the manufacturer. Furthermore, a consumer cannot be expected to inspect each product before using it to see if it is defective or dangerous.

Because of this, "strict liability" allows a person injured by a defective or dangerous product to recover compensation from the maker or seller of the product, without having to prove that the manufacturer or seller was actually careless.

Strict Liability Claims

In the event that you have been harmed by a consumer product, you have the right to compensation from the manufacturer or from the business that sold or rented the product to you. Strict liability operates against a non-manufacturer (seller or renter of a product) only if the business regularly sells or rents those particular kinds of products. In other words, strict liability probably does not apply to items purchased at thrift stores, garage sales, etc.

Regardless of the precautions taken by the manufacturer, seller, or renter, you can make a strict liability claim without proving negligence if you can prove the following three conditions:

  • The product had an "unreasonably dangerous" defect, resulting from the design, manufacture, handling or shipping of the product, that caused injury or harm to you as a user or consumer of the product.

  • The product was being used in a manner in which it was intended to be used when it caused the injury

  • The product was not substantially altered from the condition in which it was originally sold. "Substantially" means in a way that affects how the product performs.

It should be noted that you may not be able to claim strict liability if you knew about the defect but continued to use the product. If, from an inspection of the product or your description of your use of the product, it appears that you were aware of the defect before the accident occurred but used the product despite this knowledge, you may have given up your right to claim personal injury damages.

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