A lot of people believe that if they are injured because of someone’s else’s actions they are automatically entitled to compensation for their injuries. While this may seem like it makes sense, it’s not that easy. In Florida, as is the case in all states, the claimant (or Plaintiff in a lawsuit) has the burden to prove certain elements in order to recover. Those elements are 1) liability, 2) causation, and 3) damages. If you fail to prove any one of these elements, you cannot recover on your claim. Below is a discussion of each of the elements needed for a successful personal injury claim.
Simply put, liability is who is at fault for your accident. In many cases, this is easy to determine. For example, assume that you were rear-ended by another car while sitting at a stoplight. It’s pretty easy to see in this scenario that 100% of the fault would lie with the driver that rear-ended you. However, not every case is easy.
Let’s look at another example. Let’s say you are in a store shopping. As you are walking down an aisle (for the third time) looking for your merchandise, you slip and fall on a wet substance on the floor and are your injured. Assuming that you can prove notice on the part of the store, the mere fact that you fell inside the store does not mean that the store is 100% at fault. The store will certainly argue that you should have been watching where you are walking, and that you should have seen the spill before you fell as you had previously walked past it. Don’t worry though, not all is lost.
What is Comparative Fault?
Florida is a comparative fault state. This means that more than one person (or entity) can be judged to have been at fault for causing an accident. So, even if you think you are at fault, this does not mean that you don’t have a claim or that you can’t recover. The question will be how to divide the fault between the parties. If 50/50, and your claim has a value of $100,000, then your recovery will be reduced by your percentage of fault. You would then recover $50,000 for your damages.
These comparative fault scenarios often arise in intersection accidents, and definitely in most slip/trip and fall accidents.
In order to succeed in your personal injury claim, you have to suffer some type of injury. As a result of the injury, and the treatment you receive or will need in the future, you may then be entitled to recover damages for your injury.
In the State of Florida, the damages you can recover in a personal injury claim include:
Past Medical Bills
Past Lost Wages
Past Pain and Suffering
Future Medical Bills
Loss of Future Earning Capacity
Future Pain and Suffering
While most of these are self-explanatory, several things should be noted. First, to recover future medical bills, you will need your doctor/surgeon to give his/her opinion as to what the estimated future costs will be. For example, will you need surgery in the future? If so, what is the cost of the procedure, including anesthesia and the surgical facility. If your injury is permanent, your doctor may also estimate the average cost of treatment on a yearly basis. This will allow your attorney to compute the full amount of future medical bills by referencing an actuarial life table.
As for the recovery of future wages, Florida only allows recovery for “loss of future earning capacity.” For example, if you are a surgeon and are injured and can no longer be a surgeon, your recovery would be limited to the difference between what your earnings would have been as a surgeon for your career versus what your earnings will be in any new position you can perform. This will involve an expert opinion as well.
Finally, pain and suffering damages are for human losses. Things such as emotional distress, disability, disfigurement, inconvenience, etc. There are many components, both physical and mental, that qualify under this category. Insurance companies typically do not appreciate this category of damages. As such, they are not, if at all, reflected in most settlement offers. A jury is usually required to truly recover for these types of damages.
Causation is the link between the accident and your injury. It is often the most contested element in a personal injury case. This is especially true if you have had any prior injuries or treatment to the same area of the body. For example, if you are claiming a back injury from an accident, any prior chiropractic treatment, massage treatment, or any prior complaints of back pain will be used by the insurance company to try and break the link.
In order to prove causation, you will need your doctor/surgeon to give an opinion that your injury is causally related to the accident. This is often done by what is called “clinical correlation.” This is simply a doctor ruling out all other causes for injury based on what you tell him/her, or by what the doctor may have read in any prior medical records. Therefore, you must be honest with your doctor.
The most important evidence to prove causation is your medical records. They can also be used against you to destroy your case. Here are some tips to remember:
Seek medical attention quickly;
Tell your doctor how you were injured;
Be honest with your doctor;
Follow up on your doctor’s advice; and
Follow up on your medical treatment
If you have questions about your Florida accident case, you can download our Free Reports:
which are available at our website, or you can click the link provided. You can also contact us at (813)419-3866 to talk directly to a Ruskin personal injury attorney.