STEP 3 - DETERMINING YOUR CLAIM TYPE
After being retained, one of the attorney’s first tasks is identifying what type of personal injury claim the client has. Identifying what type of personal injury claim will establish what must be proven to succeed at trial and what type of evidence will be required to prove the elements. Examples of instances when the type of claim is obvious include: when a distracted driver hits a pedestrian, a cell phone batter exploded, or an individual slips on a puddle of water in a grocery store. Other instances are not so obvious. For example, visualize a car collision where a driver hits a stopped vehicle. The driver at-fault might be suspected of distracted driving but claims that his brakes failed. Depending on what actually happened, the claim may be a negligence claim against the at-fault driver or a product liability claim against the brake manufactures. The following explores a few of the most common types of personal injury.
The most common type of personal injury claims are negligence claims. Negligence claims come in many forms, including truck crashes and auto accidents. In Williamson v. City of Hays, the court outlined four elements required for a successful negligence claim: (1) a duty owed to the plaintiff; (2) a breach of that duty; (3) injury to the plaintiff; and (4) the injury was caused by the defendant’s breach. Individuals likely notice “incomplete” instances of negligence when they occur, such as a dangerous lane change that does not end in an accident. Incomplete negligence is defined as a negligent act that does not result in an accident.
All citizens owe certain duties to another in Kansas and these duties include: obeying all laws, driving safely and performing daily tasks in a responsible, safe way. Unfortunately, it is very common for these duties to be breached. An individual is breaching his or her duty whenever they drive aggressively and dangerously on the road. Furthermore, if an individual breaches a duty by violating a law, the individual could be found guilty of negligence per se. Nevertheless, the Kansas Supreme Court held in Pullen v. West that not every violation of a law resulted in a breach of duty capable of supporting a negligence claim.
A successful negligence claim also requires an injury and causation. Therefore, an injury must be present in order for an individual to be punished for a breach of duty. As stated earlier, if a driver drives aggressively and dangerously on the road and no one gets hurt, there is no liability. Further, an injury alone does not support a negligence claim against a defendant. The defendant must have caused the injury. For example, a driver who causes a pileup collision that causes many drivers to be injured would be responsible for all of the injuries because he or she is the cause.
A specific type of negligence is premises liability, which is based upon the duty a property owner owes to guests on his or her land. In South ex rel. South v. McCarter, the court held that property owners should maintain their land using reasonable care to prevent harming guests. Premises liability is most commonly seen in stores open to the public and common areas of apartments. Additionally, physical defects most commonly create premises liability claims. Also, a property owner can breach his or her duty by failing to warn about a hidden danger. In Siebert v. Vic Regnier Builders, Inc., the court found that a shopping center breached its duty by failing to provide security measures after a number of robberies in the shopping center’s parking lot. Lastly, a property owner can be held liable for the criminal acts of others on his or her property.
A manufacture of a defective product is liable for any injuries caused by that defective product. While a product may suffer from a manufacturing defect (error in manufacturing process that results in product not conforming to design), the most common product liability claim alleges the product was defectively designed or that the product lacked safety features, considerations or warnings that would have made the product safer. Un-crashworthy vehicles are the most common occurrence where design defects are alleged. For example, in Wallis v. Ford Motor Co., a vehicle was prone to rollovers when involved in low-speed accidents. As a result, the court determined this was a defect in the vehicle’s design and the vehicle failed to conform to what consumers expected.