The Plaintiff’s Burden Of Proof In Injury Claims

ambulance6-resized-600On a daily basis, people are injured, sometimes due to their own fault or often due to the negligence of another.  But, just because one believes that the other party is at fault, the burden remains on the Plaintiff to establish certain elements in order to prevail in a personal injury action.

These elements include: duty, breach of duty, causation and damages.  These same elements are applied to the auto accident/trucking accident case, slip and fall, nursing home negligence, medical malpractice, wrongful death, products liability, defective drugs, etc.

First, the Plaintiff must establish by law that the Defendant had a “duty” to crash5prevent the harm suffered by the Plaintiff.  If, for example, the injury is related to an auto accident, the “Rules of the Road” may establish that duty, for example, failure to yield while turning left, following too closely, etc.

Another example could be a prescription drug where there were insufficient warnings of the potential side effects.

Second, the Plaintiff must establish that the Defendant “breached that duty”.  Again, a simple example would be the driver who ran the stop sign.  He had a duty to stop at the stop sign; however, he failed to do so.

Third, “causation”.  The Plaintiff must establish that the injury suffered was caused by the Defendant’s breach of duty to protect the Plaintiff from the harm suffered (or, the Defendant’s negligence/breach of duty was the “proximate cause” of the Plaintiff’s injuries).

car-accidentFor example, in a rear-end collision, the Plaintiff complains of headaches.  The Plaintiff must establish that those headaches are, in fact, the result of the rear-end collision.  Further investigation may indicate that the headaches were, in fact, a pre-existing condition.  If this is the case, the next question will be whether the rear-end collision aggravated the pre-existing condition.

And there may be herniated discs or other injures that may or may not have been caused by or aggravated by the vehicle collision.  Accordingly, medical records will have to be obtained and produced to establish the medical history of the Plaintiff.

Also, consider this example: The Plaintiff is injured in an accident but fails to obtain adequate treatment for the injuries.  Then, a year later, the Plaintiff, still in pain, finally decides to consult an Attorney.  The Attorney’s initial response will be to inquire about the treatment the Plaintiff received from the date of the injury.  If the Plaintiff  has not received proper treatment, it will likely be very difficult to establish that the pain the Plaintiff is now experiencing was a result of the accident, and not some subsequent event.

Another note here, it is vitally important that adequate treatment is received if injured.  If the Plaintiff fails to keep all treatment appointments or simply stops going for treatment prior to being released by the Chiropractor, Physician, Physical Therapists, this will be an indication that the Plaintiff was not seriously injured.

Fourth, “damages”.  Let’s assume that the Plaintiff established “duty”, surgery-resized-600“breach of duty” and “causation”.  Now the Plaintiff wants $500,000.00 for the injury suffered.  In order to get to the $500,000.00 amount, whether by settlement or jury verdict, the Plaintiff will have the burden of proving damages (for example, medical bills, medical records supporting the necessity of the medical bills, testimony from Physicians, Physical Therapists and/or Chiropractors, documentation supporting “lost wages”, testimonial evidence about deprivation of right to enjoy life, loss of consortium, etc. )

Another example is the Plaintiff who contacts the Attorney and says, “I went to XYZ Restaurant and I bit into a shrimp, and there was a piece of glass in the shrimp.”  The Plaintiff wants to sue the restaurant for $100,000.00.  Can the Plaintiff establish “duty”, “breach of duty”, and “causation”?  Probably, if a report was made immediately along with witness statements and preservation of the evidence.

So, the next question would be, “How were you damaged as a result of biting into the shrimp containing a piece of glass?”  Was the Plaintiff injured?  Did the Plaintiff receive medical treatment?  Those are pertinent questions.

Now, there are psychological injuries which may be recoverable in some cases in which the incident was of such a magnitude that the Plaintiff required psychological counseling and/or treatment.  However, the testimony of the psychologist/psychiatrist, as well as, well documented records would be required to support the alleged psychological injury.

Accordingly, although one may be injured due to the negligence of another, the elements of duty, breach of duty, causation and damages must be established by the Plaintiff in order to prevail on an injury claim.  Should you need a consultation about an injury matter, contact Anthony Overton Van Johnson & Associates, P.C. at 678-882-7355, or e-mail: for a free consultation.