One of the main elements of winning a big car accident settlement is to show that the other driver was at fault for your accident and injuries. In other words, you have to show that the other person was negligent.
Proving someone is negligent may sound complicated but in reality there are four basic elements that insurance adjusters look at:
1st Element Of Negligence - There is a Duty of Care
2nd Element of Negligence - The Duty of Care is Breached
3rd Element of Negligence - The Breach Caused the Accident
4th Element of Negligence - The Breach Caused Documented Damages
Before we jump into the details, it is important to know that “negligence” exists in many different forms, but despite this, its definition stays roughly the same.
Every driver has a fundamental legal duty to operate a motor vehicle in a non-negligent manner.
From the very start of driver's ed, this is taught to everyone, and it’s not rocket science.
Put simply, if you’re driving a car you have the duty to do so in a manner that avoids injury or damage to other persons or property.
A big part of making sure that you follow this duty of care is that you follow the traffic and driving laws.
When considering fault in regards to duty of care, the main questions insurance companies ask are:
A breach of duty is when someone fails to uphold the basic responsibility towards others in terms of driving (as discussed previously).
Building off the previous examples of duty of care, a breach happens when you for example:
Let’s be honest we’ve all been guilty of one of these breaches at one point or another. Driving slightly over the speed limit seems like a minor infraction and it’s easy to simply say “everyone does it”.
However, once an accident occurs, everything changes. Your minor infraction will be examined more thoroughly to establish your fault and see if there was a breach of duty.
Taking things a step further -- some breaches of duty (such as drunk driving) can lead to catastrophic injuries and/or death. In these serious cases, where breaches can be proven to be intentional, criminal charges can be filed as well as civil ones.
This element is sometimes referred to as “causation”. It’s where an insurance adjuster will try to establish if the breach of duty directly lead to an accident.
If a drivers breach of duty can clearly be linked to the accident, the odds of finding them negligent or at-fault is extremely high.
Causation comes in two forms:
Closely related to 3rd element of negligence, the fourth aspect of establishing fault is proving that injury or damage has occurred.
Think of it process like this:
These damages can be a bodily injury, physical damage to your vehicle, lost wages due to time off of work or the more abstract pain and suffering.
Damages are usually categorized into “economic” and “non-economic” groups and from a claims perspective requires documentation such as:
All of these documents are used in the insurance claims process to further substantiate your injuries and calculate your pain and suffering.
Identifying who is at fault in a car accident plays a major part in determining how much your settlement is worth.
Just remember these basic points about showing who is at fault:
Now that you understand the 4 basic elements of negligence you are prepared to properly negotiate your claim settlement.
One final thing to note is that some of these issues around negligence may not be relevant if you live in a no fault state. In these states, your accident must meet a certain threshold before a lawsuit can be file.
You can learn if this applies to you by reading our no fault states article. Drive safe.
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