Accident cases for attorneys are often regarded as bread and butter cases. So what are they all about and how are they handled? Accident cases involve the law of negligence. To prove someone negligent, you must prove four things: that the defendant had a duty; that the defendant breached that duty; that the defendant’s breach of duty was the proximate cause of resulting harm; and proof of the harm itself. Duty, breach, causation and harm – those are the four elements of an accident case.

Is there a duty of some sort? A duty is sometimes created by the common law. Other times, it is created by statute. Whether a duty exists or not is a question of law. It’s been said that the relation of the parties determines whether any duty to use due care is imposed by law upon one party for the benefit of another. Clearly, a motorist has a duty to use due care when operating their motor vehicle. Many of these duties are statutory. For example, there are statutes that prohibit driving too close to a car in the front; another regarding yielding the right of way in certain instances; and still another prohibiting unreasonable speed. There are many, many statutory duties. When one of these duties is breached and there is resulting harm – then there is liability. Before moving away from duty – a word needs to be said about foreseeability. It has been said that a breach of duty does not necessarily mean that a breach will be actionable – that is, it doesn’t mean you can necessarily sue on the breach. Risks of loss must be foreseeable before they can be actionable. Duty and foreseeability are concepts that are woven together.

“The risk reasonably to be perceived defines the duty to be obeyed.” A person is only liable to those “who are foreseeably endangered by (his) conduct and only with respect to those risks or hazards whose likelihood made the conduct unreasonably dangerous.” Duty is defined by the scope of the risk which negligent conduct creates. (My quotes are to a famous negligence case – Palsgraf v. Long Island Railroad.) Back to our car accident case – in most car accident cases, there is no question about duty. A duty exists to exercise reasonable care in a number of different ways. You have to keep your car under control. You must maintain a proper lookout. You must operate at a speed that is reasonable and prudent given the conditions then existing. Generally, the existence of a duty is not an issue in a routine car accident case. Let’s assume one of the many duties imposed on a motorist is breached and is the cause of resulting harm. What and how do you determine what can be recovered? When dealing with harm, an attorney looks at “special damages” and “other damages.”

Special damages have number signs attached. These are the medical bills, ambulance bills, lost wages and the like – anything that can be reduced to a fixed, liquidated amount of money. But what about the “other damages?” These other damages consist of pain, suffering, anxiety, depression, grief, worry and all the other psychological and emotional harm that is created by the breach of duty . How do you prove these damages? I have become very interested in these “other damages.” I have seen the “other damages” be the only damages in the case. There are times when these damages are significant because these damages can be proven to be intense; to have lasted a long time; and can be proven to be life altering.

To have a good accident claim, you need witnesses – lay witnesses and in the right case; expert witnesses. You need to bring the accident to life, so photographs of resulting damages are useful. Diagrams of accident scenes are useful as well. Demonstrative evidence often helps people explain what happened.

A good explanation goes a long way to getting a good verdict.