• David Omer

Personal Injury: The Basics

A good friend and colleague once told me, "You've got to kiss a lot of frogs in Personal Injury." What he meant is that while the good cases are out there, our little PI universe has a lot of moving parts, and they all have to exist in order for the machine to work properly. If a part is missing or defective, it could render the entire claim worthless. I couldn't tell you the number of times I've sat in a consult and gotten excited about a really good claim, only to notice that one little detail, that one tiny little red flag that sinks the ship. It's frustrating, and it happens all the time. I'd say conservatively that the majority of the claims I look at are rendered non-compensable for one reason or another.

All those little red flags - things like overtreatment, overdisclosure, and contributory negligence - have been covered before, or will be soon (stay tuned!), but for now, let's focus on the things that do make your personal injury claim work.

The Personal Injury Stool.

I like to look at a good PI claim as a stool with three legs. You need all three for the stool to be useful for its intended purpose; if one of the legs is weak or missing, then all you have, really, is a heap of firewood. The three legs that you need are (i) liability, (ii) damages, and (iii) coverage. Let's take a closer look.


Your claim starts with liability. That means that you can assign fault for your personal injury to the negligence of another person. Remember my article on the Basics of Negligence? Well, negligence and liability go hand-in-hand. You can't claim liability unless you can prove negligence; a duty, a breach, damages, and causation. Remember that North Carolina has a couple of irregularities, like contributory negligence and the sudden emergency doctrine (which we'll cover soon), that can gum up the works. But generally, if you can prove the negligence of the at-fault party, then liability shouldn't be too much of a problem.


Even if you have clear liability, you still don't have a case if you lack damages. For our purposes, "damages" means any expense, loss, or injury that you've suffered or incurred as a direct and proximate result of the other party's negligence. If you'll recall, damages are already a requirement just to have actionable negligence. If Sally is doing her makeup in the mirror while she's driving, then she's technically negligent. But if she doesn't hit anybody or cause any actual harm, then her negligence isn't actionable. If people could drag other drivers into court for every single instance of negligence, everybody would be tearing their hair out and the judicial system would shut down completely. So in a personal injury setting, negligence/liability is just how you get in the door. You need damages once you get in; think medical expenses, pain and suffering, lost wages, et cetera.


The last (and often most frustrating) leg on the PI stool is coverage. Why is it so frustrating? Well, proving liability and damages is only the front end of the process. None of it matters if there isn't a source of funds from which you can recover. When insurance coverage isn't available, your only recourse is to recover from the individual defendant, right? But the average Joe doesn't have a ton of assets. The assets that he does have are probably subject to judgment exemptions (which I'll write about at some point down the road). You probably can't levy a judgment against his house, his car, his dog, or his TV, and I can pretty much guarantee you he doesn't have the kind of cash that you need to make you whole. Even if he does, enforcement of a judgment can very easily turn into a nightmare. While uninsured and underinsured motorist coverages really help to ameliorate against unrecoverable losses, I do run into situations every now and again where an otherwise solid claim fails because of a lack of coverage. It's frustrating and often heartbreaking, but it does happen.

I know that this is a very broad-strokes article. Check out Basics of Negligence for more detail on liability; I've got detailed posts on damages and coverage coming down the pipeline in the next couple weeks. Drive safe!

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