By: Karen Piso Nadeau, Esq.
When you or a loved one unexpectantly is involved in an accident in Massachusetts, your typical life and plans are disrupted, and you turn your attention to dealing with the fallout from the accident. If it is a car accident, you focus on the exchange of information with the other driver, contacting your insurance company, dealing with property damage, filling out forms and completing an operator’s report. In previous blogs, we have addressed the importance of securing crucial information from an accident scene whether it is a car crash, and you are a driver, passenger, pedestrian, bicyclist or motorcyclist or a victim of a trip and fall accident on someone else’s property. Moreover, the most important thing to do after any type of accident is to make sure you get the medical attention you need as soon as possible. Once the dust settles, many people involved in an accident turn their attention to the question of whether they have a personal injury case to pursue. This is usually when our phone rings at Nadeau Harkavy LLC for legal guidance.
This blog will explore some of the factors we consider to determine if you have a personal injury case worth pursuing. Most accident cases lead us to analyze two things: 1.) liability and 2.) damages.
Liability is Needed to Pursue the Majority of Personal Injury Cases in Massachusetts.
The first thing we look at and analyze is liability. This means looking at who is at fault for the accident. Who caused the accident? Who is responsible for the accident? If you are the sole cause of the accident, then you do not have a legal right to recover in a personal injury case. For example, if the car accident was caused by you running a stop sign or a red light, then you can’t pursue an injury claim. You need to find someone that is at fault for the accident in order to pursue a case. For example, a driver rear-ended you while you were stopped in traffic. The other driver is at fault, and you can establish liability against that other driver.
Looking at a trip and fall case, we get calls from victims hurt in trip and fall accidents, but they have no information regarding why they fell or what caused them to fall. They may say they tripped at a retail store or in a parking lot, but they have no information as to what caused them to fall. Without identifying the cause of your fall, you cannot establish liability that is necessary to pursue an injury claim. When a victim falls and suffers serious injuries such as broken bones or loss of consciousness, the last thing they or a loved one is thinking about is establishing liability and trying to figure out why they fell. No one is thinking about taking cell phone photographs or getting the names of witnesses. However, the most successful trip and fall cases have two things that make their personal injury cases strong to prove someone is at fault: 1.) Photographs of the defect or dangerous condition that caused them to fall and 2.) Eyewitnesses who can speak about their observations of the dangerous condition and or their observations of the victim’s trip and fall.
One example of a successful trip and fall case involves a woman falling in a dark parking garage in Boston, Massachusetts. She was able to secure photographs of what she tripped over consisting of broken cement and steel rods sticking up from the ground in an area where those people parking in the garage would walk to the elevators. In addition, there was a witness who could speak about the dangerous conditions and the length of time it was there and the poor lighting in the area. This helped to identify the unsafe tripping hazard that caused our client to fall, and this established the liability needed to proceed with the case against the parking garage.
In addition to finding fault for your accident and who or what caused your accident, the person or entity needs to be identified that caused your harm. In a car accident case, it would be the driver that failed to drive safely and perhaps switched lanes without looking on a highway. In a trip and fall, it would be the store, the landlord, the business, or property owner for example that allowed a dangerous condition to exist that caused you to trip and fall. The at fault party must be identified so that you may bring a claim against them, which is usually a claim with their insurance company.
In a motor vehicle accident case, if the person and or vehicle that caused the accident can’t be identified (usually because they fled the scene of the accident before making themselves known), you may have another avenue of recovery for your personal injury claim through your own auto insurance policy under uninsured motorist benefits. For example, a pedestrian struck while crossing the street in a crosswalk by a car that leaves the scene may pursue an uninsured motorist claim on their own auto policy. Likewise for a bicyclist struck by a car that veers off the road into his bike lane and hits him on his bicycle and then flees the accident scene and does not stop. The bicyclist may pursue uninsured motorist coverage on his own auto policy for his loss.
Damages Are Needed to Pursue a Personal Injury Cases in Massachusetts.
So far, we examined part 1 of what is needed to pursue a personal injury case in Massachusetts. Once we can establish fault with someone else, the next thing we look at is part 2: damages. Damages means harm suffered. What are your injuries? What is your medical treatment? Is there any permanency related to your injuries? Did the injuries suffered prevent you from working? What time did you lose from work? Will you need more medical care in your future? Will you be unable to work in your future?
If you were not injured, then you will not meet the criteria to make a claim for personal injuries due to an accident. This may seem obvious. However, we get calls from potential clients that involve someone almost being hurt or “I almost died” or “someone could have been injured”. If there is no injury, then there is no personal injury case. The law does not compensate for what might have happened to someone. If a car almost hit you, and you jumped out of the way and have no injuries, then you have no personal injury claim.
As to part 2: damages, our first question to a client is a variation of: what injuries did you suffer in the accident? This ranges from soft tissue neck and back pain to a fractured hip or shoulder requiring surgery or maybe a head injury with loss of consciousness and concussion. Some clients may have facial injuries and scars or a crushed foot. Sometimes clients have multiple injuries to multiple parts of their bodies. Some clients have been hospitalized for days or weeks or months. Once your injuries are identified, the next issue to address as part of damages is your medical care. Did you take an ambulance from the scene? Did you go to the hospital? Did you follow up with a primary care doctor? Did you have x-rays, CT scans? MRI’s or other imaging? Did you or will you see a specialist such as neurologist or orthopedic surgeon or neurosurgeon?
We have spoken to potential clients who were injured in an accident but did not seek medical attention. Some clients have told us that they had a friend or family doctor examine them or treat their injuries at their home with no bills or medical notes. This is not acceptable for a personal injury case. For an auto accident in Massachusetts, an injured party must have over $2,000.00 in reasonable and necessary medical expenses in order to pursue a claim for personal injury or meet some other criteria regarding your injuries such as a broken bone. For any injury claim, the medical documentation is the number one factor considered in evaluating how much to pay you on your case. If you are injured in an accident, the most important thing you can do is make sure you seek the medical attention you need and follow your doctor’s advice on what you should do to get better.
A real-life example of getting the medical care needed involves a schoolteacher who slipped and fell on ice on someone’s property and injured his shoulder. He was literally holding his injured arm up to write on the chalk board at school. He argued with his wife about going to the hospital or doctor. He just thought it would get better on its own and did not want to deal with medical treatment. He finally went to the hospital, had x-rays, and was diagnosed with a fractured shoulder requiring surgery, physical therapy, and had a long recovery. He would not have received such a favorable settlement without the medical attention he needed that led to the diagnosis and need for surgery.
Some Final Words on Whether You Have a Personal Injury Case
As to part 1: liability, establishing that another individual, business or entity is at fault for the accident is needed to pursue a personal injury case. As detailed in other blog posts on this subject, having strong evidence of another’s wrongdoing is important to set up your case for success. We make sure everything is done to protect your interests in this regard. However, sometimes evidence disappears. In a car accident, having scene photographs, the identity of witnesses and a favorable police report are some of the best ways to establish the fault of the other party. Some of our clients haver Dashcams that have proven to be invaluable on their cases to show someone else was at fault when sometimes people choose to not be truthful about their wrongdoing to avoid being held accountable. Other times, we can secure surveillance video of an accident as some streets and businesses have surveillance cameras. On cases involving trip and falls, photographs of the accident scene and what caused you to fall as well as the identity of witnesses also go a long way to establishing the fault of another party.
As to part 2, damages, establishing the nature and extent of your injuries, the treatment needed, your pain and suffering and loss of earnings are all factors in evaluating your personal injury claim. We help guide our clients through this process to make sure their case is in the best possible position for them to recover the money they deserve. This is usually done by holding the at fault party accountable by making a claim with their insurance company who ultimately pays the compensation for the harm caused by their insured, the at fault party.
In summary, if you are injured in an accident, the most important thing to do is to get the medical attention you need. Then, make sure you secure whatever information you can including photographs and witness information. Before speaking to anyone who may not really have your best interest in mind, contact an experienced personal injury attorney for a free consultation. We will review your case and evaluate whether you have a personal injury case worthy of pursuit, and we will guide you every step of the way as your attorneys.
At Nadeau Harkavy LLC, we have over 60 years combined experience representing injured people and their families when they have been involved in an accident. We have recovered millions of dollars in compensation for our clients over the years to help them get on with their lives after suffering the consequences of a serious accident. We make sure everything is done to protect your interests while you and your family concentrate on getting better. We handle all types of accident cases including wrongful death, brain injury, car accidents, bicycle accidents, pedestrian accidents, trip and fall, slip and fall, dog bite, construction site, and catastrophic injury accidents. If you or a loved one has been harmed through no fault of your own, call us today for a free consultation about your legal rights at 617-674-7640.