Liability, damages, and a source of recovery are the three essential ingredients of every viable personal injury case.
If you’ve been hurt, injured, wronged, taken advantage of, slandered, or damaged by the actions of another person or corporation, how do you know when you have a valid personal injury case?
You may be confident that you have a case – you know who caused the damage, you know what it cost you, and you know that they are responsible. On the other hand, you may not be sure if there is legal liability, even though someone clearly harmed you.
Either way, your first step should be to contact an experienced personal injury attorney who can review the facts of your case, investigate the accident or other events, and help you to determine 1) whether there is liability, 2) who is liable, and 3) how to make them pay…
Liability, Damages, and a Source of Recovery
Do I have a case? Attorneys will often answer this question by referring to “the three-legged chair.”
If you have 1) liability, 2) damages, and 3) a source of recovery, then you probably have a case. Like a three-legged chair, however, if you are missing any one of these elements, your case will likely fail.
Let’s take a look at each of these elements in turn.
Someone else must have been at fault – whether it is the other driver in an auto accident, a vendor who breached their contract, or a business that failed to correct an unsafe condition on their premises.
It’s not just that someone else must be at fault – we have to be able to prove that they were at fault with evidence like witness testimony, police reports, video, photographs, other documents, or expert testimony. Some examples of legal standards that will result in liability include:
- Negligence: if the other person 1) owed a duty of care to you, 2) breached that duty, and 3) what they did was the proximate cause of your injuries, then they are liable for the damage that they caused.
- Gross negligence: when the other person was not only negligent but their conduct showed a reckless disregard for your safety, they might also be subject to punitive damages.
- Intentional conduct: when the other person’s conduct goes beyond negligence and you can prove that they harmed you intentionally, they are subject to punitive damages and, if their conduct was criminal, SC’s caps on punitive damages may be increased or removed completely.
- Strict liability: in some situations, you may not have to prove negligence at all – for example, manufacturers, distributors, or sellers of a defective product may be subject to strict liability.
Even if you have been wronged and the other party is liable, you must still prove damages before you can recover in a lawsuit…
If you are hurt by someone, but there are no damages (no injuries, no medical bills, no lost wages, no financial loss), then you do not have a case.
If you are hurt by someone, but your damages are minimal (this could mean $1 or it could mean $50,000, depending on the type of case), you still may not have a case. Why?
First, most attorneys are not going to take on your case unless they know they are going to be compensated for their time and efforts – if your potential recovery is not enough to compensate you for your injuries and cover your attorney fees, it’s just not practical for an attorney to take your case and file suit.
Also, the potential recovery must be enough to cover the costs of the litigation. Depending on the type of case you have, and the issues involved, you might to need to pay for:
- Filing fees,
- Expert witnesses,
- Investigator fees, and
- Other court costs.
Most attorneys will not accept your case unless they know that 1) they are going to be compensated, and 2) you will be able to pay for the costs of litigating your claims (even if those expenses are paid out of your recovery, the anticipated recovery must be sufficient to cover the expenses).
Source of Recovery
If you can prove 1) liability and 2) damages, the next question is, who will pay?
In most auto accidents or claims against businesses, there will be one or more insurance policies that will cover some or all of your damages. But what if an individual caused the harm who does not have assets and who does not have an insurance policy to cover the damages?
A common example is where an individual spreads lies that damage your reputation or your business. They might be liable for defamation, and there might be substantial damages that you can prove. But you still do not have a case unless that individual has assets that can be tapped into or an insurance policy that covers defamation (which is not likely).
In some cases, we may be able to help you to find a source of recovery – there may be insurance policies, personal assets, corporate assets, or other means of recovery that you were not aware of.
But, when no source of recovery exists, the best possible outcome will be a piece of paper – a judgment – that we can then file with the clerk of court’s office. That will not pay your attorney fees or court costs…
So, how do you know?
If you think that you have a valid case against someone that caused you harm, whether it was an automobile accident, a slip and fall at the supermarket, or defamation that damaged your reputation, contact your personal injury lawyer and get a professional opinion as to whether you have a valid case.
Personal Injury Attorneys in Conway, SC
If you have been injured and believe you are entitled to compensation, you should consult with an experienced plaintiff’s attorney immediately who can help you to determine whether there are 1) liability, 2) damages, and 3) a source of recovery.
Call Johnny Gardner Law now at 843-248-7135 or send us an email through our website to find out how we can help.