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PART 1 TABLE OF CONTENTS

1. Determining Responsibility

2. What if you both were at fault?

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1. DETERMINING RESPONSIBILITY

A critical part of a successful personal injury case is proving the fault of the other person. Some cases fault-meter-283x300of responsibility (“liability”) for an accident are pretty clear. For instance, if you have been rear-ended in a traffic collision, 99.99 percent of the time it is the fault of the driver who hit you.

In many cases, it is necessary to bring in an expert witness to establish that the other party was at fault. In a traffic accident case, for example, an “accident reconstructionist” may be necessary to prove the fault of the other driver. In a medical malpractice case, a doctor familiar with the procedure and standard of care in the area is vital to proving your case. In a defective product case, engineers or metallurgists may be among the experts called to testify that the product was improperly designed or manufactured, making the product dangerous.

To win in a personal injury case, you must prove that the other person is responsible for your injuries. The standard of care that is used in civil cases such as personal injury is a “preponderance of the evidence”— you must prove that it is more likely than not that the other party was at fault and caused your injuries. This standard of proof is quite a bit lower than that required in criminal cases, where the District Attorney must prove the guilt of the accused beyond a reasonable doubt.

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2. WHAT IF YOU BOTH WERE AT FAULT?

What happens if you were partly to blame for the accident and are seriously injured? Does this mean that you can’t recover a dime from the other party? In the old days, the doctrine of “contributory negligence” applied to bar you from suing the other party, even if you were only one percent at fault! California now uses the “comparative negligence” rule, in which your percent of fault is compared to the other party’s percent of fault, and your damages are decreased accordingly.

California uses what is called the “pure” form of the comparative fault doctrine, which allows you to recover your percent of the damages regardless of the percentage of your fault. So if you were, say, 50 percent at fault for the accident, you can recover only 50 percent of the cost of your injuries, lost wages, pain and suffering, and other injuries and damages from the other party. If you were one-third at fault, then you would be entitled to receive only two-thirds of your damages and property damage from the other party. On the other hand, you would be liable for one-third of the other party’s personal injuries and property damage.

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Let’s use as an example a lawsuit arising from the collision between a motor vehicle and a bicycle in which the vehicle driver was primarily to blame (“at fault”) for the incident. The driver is nevertheless entitled to bring up any fault on the part of the bicyclist to reduce or nullify the bicyclist’s right to recover completely. For instance, say that the bicyclist had been riding on the wrong side of the road and a driver entering the road on a right turn from an intersection or driveway did not see the bicyclist approaching; the driver of the vehicle may assert the bicyclist’s act of riding the wrong way as a complete or partial bar to the bicyclist’s recovery.

fault-moneyThe doctrine of comparative fault reduces the amount of money (“damages”) the injured bicyclist is entitled to recover. So if a jury determined that the bicyclist’s riding the wrong way was 50 percent at fault for the injuries, then the bicyclist’s damages are cut in half. In fact, where the bicyclist was riding on the wrong side of the road, a jury may well determine that he was the prime or sole cause of the accident, in which case the motorist might be relieved from all liability for the accident. However, a driver making a right turn onto a road from an intersection or driveway generally has a duty to look both ways before proceeding onto the road to make sure there are no pedestrians or others who might cross his path. Other factors that could be used to reduce or defeat the bicyclist’s recovery are: (1) the bicyclist’s failure to wear a helmet; (2) the failure to have lights on the front and rear of the bicycle; or (3) not wearing a reflective vest while bike riding at night.

 

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