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Elements of a Personal Injury Claim


Claudine Cloutier


By the second year of law school, every law student knows that in order to successfully pursue a personal injury claim based on negligence, the plaintiff must establish four elements: 1) duty of care; 2) breach of that duty of care; 3) damages; 4) a causal nexus between the breach and the damages.  But what do these mean if you’re the person injured? Although each of the elements has volumes of legal treatises attempting to interpret and explain it, a basic understanding is not difficult.

The first element, duty of care, is, in my view, the most technical.  But consider whether we, as a society, would expect someone to act, or refrain from acting in particular circumstances based on laws and common sense.  In many circumstances, recognizing a duty is easy.  For example, we have a duty to operate our vehicles responsibly.  In other circumstances, whether there is a duty may not be so clear or may evolve as societal attitudes and expectations evolve.  By way of illustration, for many years, Massachusetts courts held that a property owner had no duty of care to remove natural accumulations of snow and ice.  That meant you could leave piles of snow outside your home or on your walkways without fear of liability (although the town may have fined you for violating bylaws or ordinances).  In 2010, however, the court overruled that precedent and redefined a property owner’s duty with respect to such weather hazards to be that of reasonable care.  See Papadopoulos v. Target Corporation, 457 Mass. 368 (2010).  Whether a duty of care exists is typically considered a “question of law,” which means a judge rather than a jury would decide the issue.

The second element, breach, relates to whether the alleged tortfeasor (aka defendant) failed to act in accordance with that duty of care.  In legal parlance, we often say, did the defendant fail to exercise reasonable care in the discharge of his/her duty.  Using our motor vehicle example from above and simpler language: did the defendant operate his/her car in a way he/she shouldn’t have?

The third element, damages, reflects that you cannot sue someone whom you allege was negligent unless you sustained damage.  Damages can take different forms such as emotional harm in some circumstances, but the more common form is a bodily injury, eg whiplash, a fracture, death.  While even a small injury is technically enough to meet this element, if in fact damages are minor, the cost of pursuing a claim may outweigh the potential for recovery.

A claimant or plaintiff must also establish that the claimed damages were caused by the tortfeasor’s/defendant’s negligence.  For example, if after a slip and fall an MRI shows the plaintiff has a torn meniscus, can the plaintiff establish that the tear was caused by the fall?  Even if that cannot be established, the plaintiff/claimant may meet his/her burden on causation if he/she can establish that the symptoms associated with the tear were caused by the incident.  Causation issues often crop up in medical malpractice claims involving delayed diagnoses.  Although a doctor’s failure to diagnose a condition may constitute negligence, the next question is, what harm was caused by the delayed diagnosis (as opposed to the underlying condition itself).

Although each case has its own set of facts and must be analyzed on its own terms, understanding these basic elements may help claimants/plaintiffs see the potential strengths and weaknesses in their cases.

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