If you have been involved in a car accident, how do you know if you have a case?
Under South Carolina law, the driver who is at fault in an auto accident is liable for all damages that were proximately caused by their negligence. Auto accident lawyers often look at this as the three-legged chair or three-legged stool approach to whether you have a case.
You must be able to prove:
- Liability: The other driver breached a duty of care that they have to you as a motorist,
- Damages: You were injured and there are sufficient damages to justify filing suit, and
- A source of recovery: Is there a way to collect the compensation that is owed from the defendant?
If any one of the three chair legs is missing, the chair will fall over, and you do not have a case. When all three are present, you have a case, and you should be able to recover full compensation for your injuries.
Can You Prove Liability?
Negligence is where a person:
1) Has a duty to another person or people, and
2) They breach that duty.
All of us have a duty to exercise reasonable care when we are driving a motor vehicle on the highways, and, when we breach that duty by not following the rules of the road, we are responsible for any damage that we have caused through our negligent actions.
The additional requirement of proximate cause says that the defendant is only responsible for damages that were proximately caused by the defendant’s negligence. You can recover medical expenses, lost wages, pain and suffering, and any other compensable losses that you suffered because of the defendant’s negligence, but you cannot recover for any losses that were not caused by the accident.
How Do You Prove Liability?
You must be able to prove the other driver’s liability through admissible evidence that could include:
- Witness testimony, including your testimony,
- Incident reports,
- Expert testimony, or
- Any other evidence that shows the other driver was at fault for the collision.
You may be able to establish liability by proving:
- Negligence – “simple negligence” is enough in most cases,
- Gross negligence – when the other driver’s conduct showed a reckless disregard for the safety of others, you may be entitled to punitive damages,
- Intentional conduct – if the other driver’s conduct was intentional, you may be entitled to punitive damages with no cap on the amount of punitive damages you can recover, or
- Strict liability – defective auto parts, for example, may result in strict liability against the manufacturer, distributor, or seller of the parts.
Even if the accident was partially your fault, South Carolina’s comparative negligence rule says that you may still recover in an auto accident lawsuit if you were no more than 50% at fault.
If you are found to be negligent in the accident but it is 50% or less, your recovery will be discounted by the percentage of fault that the jurors have attributed to you. If you are found to be more than 50% at fault, you will be barred from recovering anything at all.
Remember that the insurance company will try to use this rule whenever possible to deny or decrease the amount of your recovery, and this is one reason why you should not give any statements to insurance company representatives until you have spoken with your personal injury attorney at Axelrod & Associates, P.A.
Per se negligence occurs when the defendant violates a law that was intended to protect the public. Most traffic laws will fall into this category.
When the other driver violated traffic laws such as failure to yield or disregarding a traffic signal, the focus in your lawsuit will shift from whether they were negligent to whether their negligence caused your damages and how much your recovery will be.
Can You Prove Damages?
It is not enough to prove that the other driver was at fault. You must also prove that you suffered damages – a compensable loss.
This could include:
- Economic damages,
- Non-economic damages,
- Property damage,
- Medical expenses,
- Future medical expenses,
- Lost wages,
- Future loss of income,
- Pain and suffering,
- Mental anguish,
- Disfigurement or scarring,
- Loss of consortium or loss of companionship,
- Wrongful death damages,
- Any other financial loss caused by the defendant’s negligence, and
- Punitive damages.
How Do You Prove Damages?
You will need to prove your damages to the insurance company before they will agree to pay your claim, or you will need to prove your damages to a jury before they will force the insurance company to pay your claim…
Some examples of common types of evidence used to prove damages include:
- Medical records or medical testimony,
- Billing records and invoices,
- Photos or video of your injuries or property damage,
- Expert testimony,
- Your testimony, and
- Testimony of other witnesses.
Is There a Source of Recovery?
Finally, there must be a source of recovery for you to have a valid case. You can file a lawsuit against anyone, prove their liability, and prove the damages that they are entitled to, but, if there is no source of recovery, you don’t get paid (and neither does your attorney).
Possible sources of recovery might include:
- The at-fault driver’s insurance policies, business assets, or personal assets,
- Other responsible parties’ insurance policies, business assets, or personal assets,
- Your own uninsured, underinsured, PIP, Medpay, or umbrella policies, or
- A municipality when an accident is caused by poor road conditions.
Once liability is established, there must be a way to collect sufficient damages to justify the costs of filing your lawsuit – including your recovery, the costs of expert witnesses, court costs, deposition costs, and attorney fees.
If you or someone you know has been injured in an auto accident, and you believe that you have a valid case or you are not sure whether you have a valid case, schedule a free consultation with a Myrtle Beach personal injury lawyer on the Axelrod team now. Call us at 843-353-3449 or fill out our contact form today.