The Most Important Determination to the Success of Your Car Wreck Case

The law does not demand compensation for every personal injury. Generally, there are two things you must prove to recover for your personal injury claim – negligence and damages. These two things must be proven regardless of the kind of case you have. Whether it is car accident, slip and fall, premises liability, wrongful death or medical malpractice, it makes no difference. You must prove BOTH of these things to recover.

The first thing you must prove is fault, in other words, that someone else was negligent or careless, and that it was this negligence or carelessness which caused your injury. If you have suffered an unfortunate accident that is no one else’s fault, if you were in a car accident that was your fault, or if you do not sue the right person, then the law says that you will not win your case.

In order to recover for personal injury, you must first prove that someone else was negligent and that this negligence caused you harm. This is also known as “establishing liability,” and it is the first and single most important step in your case. If you mess this up, your case and your ability to recover will go right out the window.

The second thing you must demonstrate is that you actually suffered bodily injury. This is also referred to as your “damages.” This is the factor that will determine the worth of your personal injury case. The less severe your injuries and lower your medical bills, the less your case is worth. The more severe your injuries and the greater your medical bills, the more your case is worth.

(By the way – it does you no good to run up high medical bills if you aren’t really hurt. You are only entitled to recover for medical expenses that are “reasonable and customary.” Each year insurance companies settle thousands and thousands of cases. They are well aware of what your medical bills should be based upon the injuries you sustained. If you go over this amount and your injuries don’t warrant the treatment you received, you will simply be out this money)

In Georgia there are two other factors that must be considered when determining liability. First, you cannot have been more than 50% at fault for your injury. This is known as “contributory negligence,” which simply means you cannot be the cause or the greatest cause of your own injuries.

Additionally you, as the plaintiff or claimant, are also required to exercise what is termed as “ordinary care” for your own safety in the operation of your motor vehicle. This is also referred to as the “avoidance doctrine” or the “last clear chance rule.” This doctrine is codified into a Georgia Statute which says that “if the plaintiff by ordinary care could have avoided the consequences to himself caused by the defendant’s negligence, he is not entitled to recover.” The avoidance doctrine is best illustrated by the following example:

Let’s say you are approaching an intersection controlled by a stop light. You have the green light. As you approach the intersection, you see that the car with the red light is not going to stop and is going to enter the intersection as well. If you could have stopped or otherwise avoided the accident yet you proceed into the intersection anyway and the wreck occurs, you will not be able to recover for your injuries. Even though you had the right of way, you can still be denied a recovery for your injuries if you had the “last clear chance” to avoid the collision.

Adjusters most frequently utilize this doctrine with regards to “reasonable lookout.” One of the Rules of the Road in Georgia (which I will discuss in more detail in a subsequent chapter) is called reasonable lookout. It simply means that when you are driving you need to be watching the road ahead. If an adjuster can show that you failed to keep a reasonable lookout and that failure caused or contributed to the accident, they can use that fact to deny liability. There are a thousand different ways adjusters can ask a question to determine if you were keeping a reasonable look out. Since almost every accident will involve how well you were keeping watch, this is an area with which you must be especially careful when talking to an adjuster.

There is another doctrine in Georgia that can serve to reduce your award. This doctrine is known as “comparative negligence.” In essence, this doctrine simply says that the jury should decide each parties “fault” and apportion the recovery accordingly. For example, if the jury says that the defendant caused 70% of the accident and your own negligence caused 30% of the accident, then your recovery should be reduced by 30%. The courts have also said that this is not the exclusive way that a jury can award damages. However a jury sees fit to award the damages is generally OK.

This is why I told you at the beginning of this chapter that establishing liability is the single most important step in your case. If this portion of the case is not handled properly it can literally cost you the case. As you can see, an unsuspecting claimant can quickly get into trouble with an experienced adjuster.