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Law School in Session: The Second Lesson about Personal Injury

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In the first lesson, we talked about how the technical name for personal injury law is "tort law," what a tort is, and the elements of negligence. (Negligence itself is defined as the failure of a person or company to use reasonable care regarding others' safety.)

In order to prove negligence, the plaintiff must show:

  1. that the defendant breached the duty of care;
  2. causation between the defendant's breach and the accident or mishap; and
  3. that the plaintiff was actually injured.

In short, these elements are known as breach, causation, and damages.

Unpacking the Element of Damages

Some things in law are at first blush counter-intuitive, but make sense when you dig a bit deeper. This is why law professors answer their students' questions with the seemingly noncommittal "it depends." Indeed, the answer to any given legal question - especially points of law that remain unsettled - is often gray rather than black and white.

Here's a hypothetical scenario:

Imagine that you're on the 405 when you're sideswiped by an out-of-control vehicle. You lose control. Your car spins around and around and ultimately jumps the guardrail, coming to rest some yards from the road. For all practical purposes, your car is totaled. From a bystander's perspective, the crash looked horrific, but you escape with bumps and bruises.

More Drama = Bigger Case?

The answer is it depends.

Some people believe that any form of negligence that results in a crash or accident - like the out-of-control driver who sideswiped you on the 405 - is a case worth hundreds of thousands (or more).

That is not necessarily true.

As we wrote above, you must show breach, causation, and damages. In this hypothetical, it's likely that you could prove all three elements, but you might be disappointed when you get to the third. Even in cases of high drama, where your car spins around and around and jumps the guardrail, bumps and bruises (absent other medical evidence, such as that indicating a concussion or traumatic brain injury) won't "count" for quite as much.

More drama does not necessarily mean a big case.

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