​Personal Injury Cases – Proving Fault

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Proving fault in a Motorcycle Accident ​Personal Injury Case.
Every state requires residents to conduct themselves in accordance with prevailing standards of behavior to avoid unnecessary harm to others.  When a person violates the state standards and injures another, that person may be required to compensate the injured for losses. On rare occasions, the theory of negligence requires a person(s) not to act. Negligence is the basis of nearly every personal injury attorney’s lawsuit.

Below are issues related to negligence theory:

  • ​Actual and Proximate Cause
  • Comparative & Contributory Negligence
  • Economic Damages
  • Negligence Per Se
  • Non-Economic Damages
  • Punitive Damages
  • Strict Liability
  • Third-Party Liability
  • Tort Reform
  • Vicarious Liability/Respondeat Superior

A victim taking legal action on the basis of negligence will need to show the defendant’s “duty of care” to the victim, the defendant’s “breach of duty”, “actual and proximate causation” linking the breach to the injury, and “actual losses or damages”. “Proximate causation” is proving the event has a causal connection to an injury or loss recognized by law.  An event too distant from the harm caused may not be accepted as a proximate cause.

Negligence can appear in any context, including car accidents or products liability.  As an example, a motorcycle rider that is injured in an 18-wheeler collision will need to show that the truck’s drive or a third party’s actions fell short of the standard of care.  An instance of actions that fall below the “standard of care” would be that the truck driver ran a red light.  Or, in product liability, a customer may need to show that the manufacturer’s design fell below a state’s “standard of care” to recover compensation for a defect that led to an injury.

Certain professions such as lawyers, physicians, and nurses must adhere to the “standard of care” required of a typical person in their profession or specialty. A professional who fails to meet the “standard of care” and acts negligently can be held liable for malpractice.

​​Defenses to a Negligence Lawsuit?

In a typical defense strategy, a defendant tries to remove an element of the plaintiff’s “cause of action” to fight a negligence lawsuit.  As an example, a defendant may try to prove they owed no duty to the victim, or that they “exercised reasonable care”, or that their actions were not the “actual or proximate cause” of the victim’s injuries.

In personal injury lawsuits in some states, a defendant may use one or more affirmative defenses.  In these defenses, the defendant’s attorney attempts to eliminate or limit liability through an attack on elements of the victim’s case. The most frequent affirmative defense in a personal injury lawsuit is contributory or comparative negligence.  While all states follow rules of comparative fault, some follow the rule of comparative negligence, and others the rule of contributory negligence. Under these doctrines, victims own negligent conduct may reduce the recovery award if their negligence contributed to the injury.

Comparative negligence reduces the victim’s compensation by the percentage of fault.  There are three forms of comparative negligence that states follow.  In “pure comparative negligence” states, a victim can recover damages excluding the amount for which he or she is responsible.  As an example, if a victim proves $200,000 of damages and is found 10% responsible, they will be able to recover up to $180,000. In states that follow “modified comparative negligence,” if the victim is found to be 50% (or above) responsible in negligence, the victim is barred from recovering damages. And in other states following the rule of “contributory negligence,” a victim is barred from recovery if any fault is found.  

Another negligence defense is the “assumption of risk.”  In claiming “assumption of risk” as an affirmative defense, the defendant argues that the victim assumed risk involved in an apparently dangerous activity. As an example, a victim involved in car races at a motor club could naturally assume some risk of injury. However, a victim on a ride at an amusement park does not “assume the risk” of a mechanical failure that causes a restraint to detach with the victim in the air.  The rule of “assumption of risk” does not apply to unknown hazards.

To speak with an experienced lawyer about your motorcycle accident, contact the personal injury attorneys in Lake Charles La, Lundy Lundy Soileau & South. 

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Lundy LLP successfully litigated on behalf of our client securing a $10 Million award in connection with an oil well blowout caused by pressure from the defendant’s salt dome cavern leaking into the adjoining oil and gas fault block.

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Lundy LLP filed a suit on behalf of our client for damages and lost profits resulting from the State of Louisiana’s failure to apply rules and regulations equally to all manufacturers of septic systems.