Life comes with bumps and bruises. The more you live it, the more likely you are to have injured yourself somewhere along the line. And while those past pains often make for interesting stories, they can also be used against you when you are injured later. If you’ve had a personal injury claim denied by an insurance company because of a prior injury, you should speak with a personal injury lawyer. You can still receive fair compensation if the new injury exacerbated (made worse) your pre-existing condition.
Step One: Proving Negligence
Proving negligence requires proof of four elements – (1) duty, (2) breach, (3) causation, and (4) damages.
A. Duty and Breach
If someone owes you a duty of care, they have a responsibility to act toward you with vigilance, caution and prudence. For instance, everyone has a duty to exercise ordinary care while operating a vehicle. A driver who runs a red light breaches his or her duty of ordinary care to other motorists. If running the red light causes a crash, and the crash causes injury to an occupant of the other vehicle, then the injured person has a claim for negligence against the red-light runner.
Other times, however, the “duty of care” is not so simple. For instance, say you are injured because you are at a neighbor’s barbecue when you get injured by a falling tree branch. Was the tree healthy or dead and rotting? If the owner of the property was “on notice” that the branch was likely to fall, it is likely that your neighbor breached his or her duty of care to you as an invited guest.
Acting negligently means failing to act toward others the way a reasonable or prudent person would in the same circumstances, or taking an action that a reasonable person would not take. A reasonable person, knowing that a particular tree branch posed a danger to those underneath, would not invite people over for a barbecue without removing the dangerous tree branch first.
B. Causation and Damages
The direct and proximate cause of an injury is sometimes called the “but for” cause: but for the negligence of the tree owner, you would not have been injured. In other words, you can draw a direct connection between your injuries and the tree owner’s negligence – that is, failing to remove the rotting tree branch. The longer the chain between the negligent act and your injury, however, the more difficult it will be to say the negligence was the proximate cause of your injury.
This is typically discussed in terms of “foreseeability.” Imagine the falling tree branch knocks over a mosquito torch-candle that starts a small fire by the propane grill, and the propane tank explodes and causes you severe burns. Was it “reasonably foreseeable” that your neighbor’s failure to saw off the tree branch before the barbecue would end with you being severely burned by an exploding propane tank? A personal injury lawyer can help you figure out the facts and circumstances of your case to answer the questions specific to your situation and determine whether the other person’s negligence was a proximate cause of your injuries.
And of course, in order to establish negligence, a person has to have suffered actual damages (for example – medical bills, scarring, permanent injury, physical pain and mental suffering, lost wages, loss of earning capacity). A negligence claim is made so that an injured person can “be made whole.” That is, since injuries can’t be undone, how much money will it take to “balance the scales” for the harm caused?
Step 2: Contributory Negligence
In North Carolina, if you are 1 percent at fault for your injuries/damages, you can’t recover at all from the person who was 99 percent at fault. An intersection collision between two vehicles is a common scenario for insurance companies to deny a claim based on contributory negligence: If driver #1 has the green light and driver #2 has the red light, driver #1’s personal injury claim can be denied because driver #1 could have avoided the collision by seeing and reacting to driver #2 running the red light.
Many variables can factor into whether driver #1 was contributorily negligent (for example, the intersection’s layout, surrounding traffic, visual obstructions, speed of the vehicles, environmental conditions, reaction times). An experienced personal injury lawyer can help navigate your personal injury claim through this complicated and difficult area of law.
Step Three: New or Exacerbated Injury
The insurance company has denied your claim because of a previous injury. To overcome this determination and receive compensation for your current injury, you need to show that the injury you are suffering from is either new or a worsening of a prior injury. Much like proving liability, this is another fact-intensive inquiry. If you injured your back in the past and your new injury was also to your back, you want to show that either the injuries are not connected – the old injury was to your lower back and the new injury is to your upper back – or that the new injury made the old injury worse. The best way to do this is with medical records for both the old and the new injuries. X-rays, MRIs and other diagnostic tests can help prove when and where the new injury occurred or show that the old injury was made worse.
Proving the four elements of negligence and fighting off allegations that you were contributorily negligent can be complicated and will depend on the specific facts of your case. If you need an experienced personal injury lawyer because you’ve had a denied personal injury claim, the lawyers at Wilson, Reives & Silverman know your rights and are ready to help you receive the compensation you deserve. They will provide you with trusted, effective legal counsel to prepare your case and advise the best next steps for you to get the benefits you deserve if you have been injured due to the actions of another person.