Duty Breach Causation Damage

It’s time for a refresher on how personal injury claims work and what has to be proven in order to recover compensation. Think of this as your introductory class, only you don’t have to listen to boring lectures, participate in class discussions, or even receive a grade.

Let’s break down the way an injury claim or lawsuit works by looking at the elements of a claim. In order to recover compensation for your injury, you must be able to prove all elements: the existence of a duty of care, a breach of the duty, causation, and damages.

Duty

First, you need the person who is allegedly at fault for your injuries to have a duty to you. Someone blows a red light because they’re in a hurry? Yup, they’re liable; they have a duty to drive with reasonable care. A store knows of a hole in the walkway right in front of its door and it does nothing about it, causing you to trip on it and fall? The store knew there was a problem but didn’t barricade it, warn people, or repair it. Since they did not fulfill their duty of care, they would be responsible for your injuries.

What if a store employed someone as a sales clerk, trained them in how to perform their job, had in place policies and procedures on how to perform their role, and one day, they got frustrated and decided to punch you, the customer, in the jaw as you were checking out? The store would probably not have a duty of care to you in that instance..

Without some major red flags, like the employee having a criminal record for assault, or prior incidents of poor/criminal behavior toward customers, the store is likely not in a position where it owes you a duty to protect you from a rogue employee. Sure, you could argue they hired the person negligently, but, unless you had some proof they knew or reasonably should have known about some past behavior, it’s unlikely you’d win that argument.

Or, consider this scenario: One of your friends is angry at his ex. So he convinces you to go over to her house with him to “talk to her.” She refuses to let you in, and repeatedly tells you both to “leave immediately or I’ll call the police.” Your friend now decides to try kicking in her door while her father opens the door and emphatically tells you both to get lost “or else.” You start running away as fast as you can, but you trip on the garden hose across the front steps that you didn’t see before; your leg buckles, and it turns out you have a small fracture. Is the homeowner liable for your injuries?

Probably not. You were a trespasser, not welcome on those premises, so you are (generally) not able to recover against your friend’s ex or her family.

In the most basic sense, in order to prove an injury case, the person you are claiming is responsible for your injuries has to have some legal duty to you.

Breach

Breach just means failing to do what you had a duty to do, or doing something that your duty says you should not do.

One example is looking down at your phone while driving, causing you to rear-end the car in front of you.

Another is inviting people to your house, knowing you have extremely slippery tiles on the front steps. If you fail to barricade the steps, warn people, or otherwise make the situation safe, you have breached your duty to use reasonable care to protect your guests.

(I once lived in a house where the prior owner had used glazed indoor tile on his outside porch. On our first Halloween there, I remember warning kids, putting down towels, doing a lot of praying, and still spending a good portion of the evening catching sliding kids who were careening across the porch. It was a rainy night, and those tiles were slick like an ice rink. I would have been liable had anyone gotten hurt).

Dog bites are a special case, as you are “strictly liable” for any damage your dog does to someone, unless it is provoked. My dog is very sweet. Alas, she is easily startled. Before I had my shoulder surgically repaired, I was holding her tightly with my one good arm. But that wasn’t enough. She decided the woman running to catch the El didn’t need her dress anymore and promptly lunged and tore a piece of it off. After the shock of this event wore off, I politely apologized and asked the woman for her contact information and sent her the $204 for the new dress. My bad. My responsibility.

If you owe a duty of reasonable care, you are responsible if you fail to act reasonably.

Causation

Causal connection or proximate cause. This is where you need to prove your injuries were caused by this defendant’s conduct.

Dog bites dress? Easy. Dress was fine; dog bit it; dress was not fine.

Car crash. You never had neck problems before, you get rear-ended, and now your neck hurts.

But what if you had a back problem going back a decade and you went to get injections monthly? If you got in the same auto crash, you would need some proof that your injuries were different or worse as a result, and that would rely upon medical testimony. It is often very difficult for a doctor to parse through what injuries are caused by what events. You could have a difficult time proving your injury was caused by the other party’s conduct.

Or let’s say that you fall on a walkway with a hole you couldn’t see, but don’t report your fall, and get no medical treatment for three months. Good luck proving your injury was caused by that fall, because literally everything you’ve done the last three months is a potential cause, and no doctor can say definitively what happened.

Damages

To recover for your injury, you need actual damages. In legal terms, damages are losses you suffered as a result of someone else’s actions or inaction. In real terms, this means you have incurred medical bills, lost wages due to an inability to work, even pain and suffering.

To prove damages, you need to have seen an actual medical professional reasonably close to your incident. Not calling Uncle Lou the retired doctor in Iowa. Not “feeling sort of sore” and doing nothing about it. Not taking pain relievers and hoping “things calm down.”

If you missed work because you were hurt, make sure your lawyer has your employer complete a document attesting to this.

You need proof. The kind of proof insurers and jurors understand. Real medical treatment, started as close to the crash as possible.

Document everything. If you have a bruise on your knee where you fell, take photographs. If your finger is swollen where the air bag hit it, take a picture.

And do not delay; see a doctor, urgent care, the emergency room, someone, as soon as you can. Remember, it is very important to tell the doctor exactly what happened. Instead of saying “my knee hurts,” say “I got rear ended yesterday and my right knee hit the dashboard.”

As always, report any incident to authorities. A police report for a car crash. A store accident report if you slip in the grocery store. Report it to your auto insurance carrier too. And get in touch with a personal injury lawyer as soon as possible. Do not talk to the insurance company until you have (and then your lawyer will counsel you not to!).

Takeaways

Contact Chicago Personal Injury Lawyer Stephen Hoffman

If you have been injured, whether by an auto accident, bike or pedestrian crash, dog bite, work accident, or medical malpractice, seek medical attention immediately. Report accidents to the police and your own insurance company, or to your employer if you were injured at work. Then contact a lawyer with experience in your type of injury matter.

If you have been in an accident and have questions, contact Chicago personal injury attorney Stephen L. Hoffman for a free consultation at (773) 944-9737. Stephen has over 35 years of legal experience and gets results; he has collected millions of dollars for his satisfied clients. He is listed as a SuperLawyer, has a 10.0 rating on Avvo, and is BBB A+ accredited. Stephen is also an Executive Level Member of the Lincoln Square Ravenswood Chamber of Commerce.

Stephen handles injury cases on a contingency fee basis, which means you pay nothing up front, and Stephen only gets paid if you do. You have only a limited time to file a claim, so don’t wait another day; contact Stephen now to get started putting your life back together.