What Do I Have to Prove to Recover in a Personal Injury Claim?

Most personal injury claims involve four basic elements:

Duty

First, we must establish that the defendant owed you a legal duty. All motorists are under a duty to exercise reasonable care under the circumstances to avoid accidents that may cause injury to other motorists or pedestrians. Business owners are under a duty to exercise reasonable care to make sure their premises are safe for their customers. Medical professionals are under a duty to follow the accepted standards of care for practice in their profession.

Breach

Second, a personal injury claimant must show breach of the duty owed. In other words, that the defendant by either action or inaction failed to exercise the duty of care owed. Negligence is the combination of these first two elements: the breach of a duty of care owed by a defendant.

Proximate Cause

Third, the negligence of the defendant must be a proximate cause of an injury to the claimant. Most of us are negligent at some point in our lives. To recover on a personal injury claim, a claimant must show that the defendant’s negligence caused the claimant some injury. A personal injury claimant must establish all three of these elements in order to prove that the defendant is liable on his or her claim.

Damage

The fourth element the claimant must prove is the nature and extent of his or her injuries caused by the defendants’ negligence.

Comparative Negligence

A claimant may also be comparatively negligent. Comparative negligence is negligence of the claimant that contributes to his or her injuries from an accident. The defendant has the burden of proving comparative negligence. Washington is a pure comparative negligence state, meaning claimants may recover even if they are 99% at fault for their own injuries. Oregon is a modified comparative negligence state. In Oregon, a claimant cannot recover on a personal injury claim if found to be more at fault than the defendant.