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How Does a Personal Injury Lawyer Prove Negligence?


How does a personal injury lawyer prove negligence? Proving negligence is a basic prerequisite of any personal injury claim or lawsuit. In order to receive financial compensation, the claimant must prove that the other party acted in a negligent manner. If you guide yourself by the general meaning of the term, negligence can apply to an almost unlimited range of situations. However, if you want to build a strong case, you need to hire an experienced personal injury lawyer at Firouzbakht Law Firm to investigate the occurrence and give you reliable legal advice..

The main issue is that the legal meaning of "negligent" is not the same as the one you use in everyday conversations. For you, a person who forgot to turn off the light before leaving home was negligent. Someone who was watching TV while preparing dinner an dropped too much salt in the salad dressing was negligent. However, these instances do not mean that any of these persons is liable as per the law.

According to the Legal Information Institute, negligence represents the failure of acting with the level of care that any other reasonable person of ordinary prudence would use in a certain situation. According to the legal concept of negligence, it covers both action and omission of performing an act (for instance, failure to offer assistance to an injured person after a car accident.

In order to prove negligence, the law requires the existence of four elements at the same time:

How Does a Personal Injury Lawyer Prove Negligence?

The Existence of Duty of Care

Duty of care, also known as standard of care (especially in medical malpractice cases), represents the existence of an obligation to act with a certain level of caution, good faith and common sense. For example, a store manager owes customers the duty of care of keeping the floor clean and dry so that they may not slip and fall, suffering bodily injury.

In the case of motor vehicle accidents, the existence of this reasonable care is defined by traffic laws. In this case, the duty of care can be proven using the concept of negligence per se. According to laws in Colorado, if a person violates a legal rule or statute, they are negligent per se, thus, they are presumed to have acted with negligence, as the duty of care is enshrined in the rule or statute they broke.

The Breach of Duty

The fault party must be proven to have breached their duty of care in order to establish their negligence. In this case, the injured party must demonstrate that the personal injury incident occurred as a result of the other party's breach of duty. A wet floor not properly signaled, a dangerous area that is not fenced in and provided with warning signs, running a red light - all these represent breaches of the legal duty to protect other persons from harm.


The third mandatory element of negligence is causation - that is, proving that the incident caused your physical injuries and property damage. In order to prove this, a personal injury law firm will collect relevant evidence, and even rely on existing forensic medicine studies and expert witnesses in order to demonstrate the link between the accident you were involved in and the injuries you sustained.

The Existence of Damages

Once you managed to prove that someone's breach of duty caused your injuries, you need to prove that you suffered damages as a consequence. This may appear the easiest of the four elements of negligence, but it is not. You have to put together relevant documents and witness testimonies that support the monetary compensation you estimate as damages. An experienced personal injury attorney knows how to build a strong evidence file, with supporting documents adding up to the total amount of compensation they request on your behalf..

How Does Comparative Fault Influence Negligence?

While working to build a negligence claim in a personal injury matter, the lawyer will ask their client if they share a part of fault for the accident.. It is not a rare occurrence - a personal injury victim may be partly at fault for the accident that caused their physical injuries and property damage.

In some states, which apply the pure contributory negligence rule, even 1% of responsibility for the accident would bar a person from filing a claim for damage. In other states, that apply the pure comparative negligence rule, you may file a claim irrespective of your degree of fault.

The state of Colorado applies the modified comparative negligence rule. In this case, a person can file a claim only if the negligent party is more than 51% responsible for the accident.

What a Personal Injury Attorney Does in Order to Prove Negligence

An experienced injury attorney knows that no case is as simple as it appears at first. The first thing they will do is ask you to give a clear and detailed account of the accident. It is important to know that all lawyer-client communications are protected by confidentiality. Thus, you must be 100% honest and leave out no detail or circumstance, no matter how trivial they may appear to you. For instance, if you suffered a pedestrian accident and you stepped onto the zebra cross seconds before the light turned green, this is a relevant circumstance and you must mention it to your lawyer..

No matter how experienced and skilled your chosen legal counsel is, if they do not have all the relevant information they cannot offer you a clear legal option with chances of success. These being said, this is what personal injury attorneys generally do in order to prove negligence:

Collecting Evidence

Evidence is crucial irrespective of your decision: to file a personal injury claim with the responsible party's insurance company or a civil lawsuit against the negligent person. The most valuable types of evidence a lawyer relies on in proving all four elements of negligence are:

  • police report prepared at the accident scene by law enforcement officers called to investigate the event
  • evidence you collected at the accident scene (photos and videos)
  • eyewitness testimonies and the evidence they collected (photographic or video recordings)
  • initial report by the medical professional team that gave you the first aid and drove you to hospital in the ambulance
  • hospital records detailing the extent and type of injuries you suffered (common injury, severe injury, catastrophic injury)
  • you doctor's prognosis once you reach maximum medical improvement - whether the accident victim may be affected by permanent disability or impairment
  • Documents from your job demonstrating lost wages while you were absent from work, recovering after the accident.

Performing Their Own Investigation

Since, according to Colorado law, the plaintiff bears the burden to collect and present a "preponderance of evidence" indicating the defendant's negligence, your legal team will have to actively collect it. In some instances, this means hiring expert witnesses to reenact the event based on the information included in the accident report and your account.

dictionary of the word negligence

In some cases, medical specialists will get access to your medical records in order to give their expert testimony concerning the causation of your injuries by the accident.. The accident lawyer will do everything within their purview to establish the other party's negligence.

Types of Negligence and How They Influence Maximum Compensation Received by Claimants

The law recognizes two types of negligence:

  1. Vicarious negligence - in this case, a person fails to act in the way a prudent person would in order to prevent doing harm to someone else. For instance, when someone is texting and driving (distracted driving), they commit vicarious negligence.
  2. Gross negligence - in this instance, the person acts in a reckless manner, willfully disregarding their duty to protect other persons' safety. Aggressive driving, driving under influence of alcohol and drugs or tailgating may be interpreted as instances of gross negligence by a judge and jury.

Why is it important to establish the type of negligence involved in an auto accident, truck accident or other types of personal injury instances.? This differentiation will determine the types of damages you are eligible to receive from the at-fault party.

In case of vicarious negligence, you may collect two types of damages: economic damage and non-economic damage (for pain and suffering, emotional distress, loss of enjoyment of life, loss of consortium, etc.)

If the defendant is found to have acted in gross negligence, the court may award, apart from the two types of damages presented above, punitive damages (also known as exemplary damages).

Damage Caps in Force in the State of Colorado

One of the issues that hurts a personal injury case is asking for too much money. How do you know how much is too much? You need to know the personal injury law in Colorado, which specifies various caps on the maximum amount of damages awarded in different cases.

These are the current caps in force on various types of damages for personal injury cases:

  • Non-economic damages (Colorado Revised Statutes 13-21-102.5): $250,000 plus inflation or $500,000 if the plaintiff brings clear and convincing evidence to justify this increase; there is no cap if the injuries result in permanent impairment
  • Medical malpractice (Colorado Revised Statutes 13-64-302): $1,000,000, out of which maximum $300,000 for pain and suffering
  • Punitive damages (Colorado Revised Statutes 13-21-102): exemplary damages cannot exceed the total of the other damages awarded; in the case of wrongful death, the amount will be increased by 3 times under certain circumstances
  • Wrongful death (Colorado Revised Statutes 13-21-203): no cap for burial expenses and economic damage; $250,000 or $500,000 plus inflation for pain and suffering; if death was caused by felonious killing, there is no cap..

Reasons to Hire an Experienced Attorney to Prepare Your Negligent Action

As you can see, proving negligence and presenting evidence that justifies your claim for financial compensation are difficult matters, fraught with legal challenges. As an accident victim, it is beyond your powers to prepare your case on your own.

First of all, you may spend a long period of time in hospital, if you suffered very severe injuries, such as traumatic brain injury or spinal cord injury. Secondly, you will be face to face with an experienced adjuster hired by the other party's insurance provider. Insurance companies are for profit businesses, and their main goal is to limit the amount of claim settlements they have to pay.

In order to do so, they will use the legal statutes and provisions to their advantage. The insurance adjuster may try to convince you that:

  • you don't have any chance to get a better settlement than what they offer
  • you were more than 51% at fault for the accident, thus you may not file a claim
  • you cannot prove that their client acted with negligence.

As you lie on your hospital bed, in pain and worried about your chances of recovery, you are very vulnerable. And even if you refuse the offer the adjuster is making, you may still hurt your case by talking to them. Every word you say will be recorded and used against you once you decide to start a legal process to recover your expenses with the hospital bill, lost wages and other economic and non-economic damages.

Firouzbakht Personal Injury Law Firm Helps You Get Justice!

Our law firm believes in justice and in the right of every person to recover their financial losses and other damages allowed by law if someone's negligence caused them bodily injury and property damages. We are available 24/7, because we know that accidents happen at any moment, and you need reliable legal assistance as soon as possible.

We are not intimidated by large insurance companies and can build strong cases that allow us to win the maximum compensation allowed by law for our client. Only after we win your fair settlement we take our own fees - so you do not have to worry whether you afford to hire an experienced personal injury attorney in Colorado.

A dartboard with a post-it that says Negligence in a Denver office

Remember that you have only 2 years after the date of the accident to file a personal injury lawsuit (statute of limitations), so call us as soon as possible if you were hurt by someone else's negligent behavior: (720) 547-2211!

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