Determining What Type Of Personal Injury Claim Exists
Once an attorney has been retained, one of the first tasks will be determining what type of personal injury claim an individual has. The answer to this question will determine what must be proven to succeed at trial and what type of evidence will be necessary to prove these elements. In some cases, the type of claims will be obvious. These instances include when a distracted driver hits a pedestrian, an individual slips on a puddle of water in a grocery store, or a cell phone battery exploded. In other instances, the type of claim won’t be as obvious. Imagine an automobile collision occurs, in which a driver collides with a stopped vehicle. The at-fault driver might be suspected of distracted driving by the police, but claim that his brakes completely failed. Depending on what truly happened, the claim may be a negligence claim against the driver or a product liability claim against the manufacturer of the brakes. A few of the most common types of personal injury claims are explored below.
Negligence claims are the most common type of personal injury claim. Negligence can come in many forms, such as auto accidents and truck crashes. Williamson v. City of Hays laid out the four elements required for a successful negligence claim: (1) a duty owed to the plaintiff; (2) a breach of that duty; (3) injury to the plaintiff; (4) the injury was caused by the defendant’s breach. Though this way of discussing negligence might seem a bit lofty, it is actually something individuals experience every day. Individuals likely even notice “incomplete” instances of negligence when they occur, such as a dangerous lane change that doesn’t result in an accident—a negligent act that doesn’t cause any injury.
Though individuals do not think about everyday life in such a way, citizens of Kansas owe multiple duties to one another. These include driving safely, obeying all laws, and performing daily tasks in a safe, responsible way. It is also very common for these duties to be breached. For example, every time an individual drives aggressively she likely violates her duty to others on the road. Additionally, when a duty is breached by violating a law, it is known as negligence per se. However, in Pullen v. West, the Kansas Supreme Court made clear that not every violation of a law results in a breach of a duty capable of supporting a negligence claim.
Injury and causation are also required for a successful negligence claim. A frustrating aspect of the law for some is the requirement of injury to punish a breach of a duty. This means a driver may dangerous weave in front of a car, but so long as the driver is able to avoid colliding with the reckless driver, no liability exists. Additionally, the injury sustained must be caused by the defendant’s actions. A pileup collision is a good example of this: one driver’s actions set off a chain reaction of wrecks. The original driver’s breach would be the root of the injuries, and thus that driver may be responsible for all the injuries that result.
Premises liability is a specific type of negligence. It is based upon the duty a property owner owes to guests on his or her land. As noted in South ex rel. South v. McCarter, this includes maintaining the land using reasonable care to prevent harming guests. Though each property owner owes this duty, it is most commonly seen in either common areas of apartments or stores open to the public. Physical defects are the most common type of breaches that create premise liability claims. However, the breach can be something other than a defect, such as a failure to warn about a hidden danger. For example, a shopping center was held to have breached its duty by failing to provide security measures following several robberies in its parking lot in Siebert v. Vic Regnier Builders, Inc. A landowner can be held responsible for the criminal acts of others on their property.
A manufacturer that sells a defective product is responsible for injuries caused by that product. A product may suffer from a manufacturing defect, where an error in the manufacturing process results in a product that does not conform to its design. More commonly, a product liability claim alleges the product was defectively designed; the product lacked safety features, considerations, or warnings that would have made the product safer for consumers. A common scenario in which design defects are alleged are un-crashworthy vehicles. In Wallis v. Ford Motor Co., a vehicle, due to a defective design, was prone to rollovers when involved in even low-speed accidents. The court found that the vehicle failed to conform to what consumers expect from a vehicle involved in a low-speed collision, and this was considered a defect in the vehicle’s design.
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