At the heart of many personal injury cases is the common law tort of “negligence.” To prove common law negligence, the following elements must be satisfied: duty, breach, causation, proximate cause, and damages. When examining a personal injury case for the first time, lawyers often simplify this analysis by focusing on two main areas: (1) causation; and (2) damages.

Causation

Causation is a two part analysis that determines who is responsible for causing the injury. The first part is referred to as “cause in fact” (also referred to as “but for” causation) and asks who is factually responsible for causing the injury. The second part is referred to as “proximate cause” and examines who can be held legally responsible. Both parts must be satisfied in order to prove the element of causation.

“Cause in fact” simply asks: “But for” the defendant’s actions, would the plaintiff have suffered injury? For example, “but for” the defendant running a red light, would the collision have occurred? If the answer to this question is no, then you have satisfied “but for” causation. See, that wasn’t so hard!

“Proximate cause” is a more difficult concept to understand, and asks whether the defendant’s actions are sufficiently related to the plaintiff’s injuries to hold the defendant legally responsible. Foreseeability is one way to determine this–the main inquiry being whether the defendant’s conduct created a foreseeable risk of harm to the plaintiff. For example, if the defendant is driving their vehicle while texting on their cell phone, does this create a foreseeable risk of harm to other drivers? Undoubtedly, the answer to this question is “yes” (particularly in the State of Washington, where it is illegal to text and operate a motor vehicle at the same time). However, let’s examine a situation in which the relationship between the defendant’s conduct and resulting injury is not quite as clear.

During law school, the case most professors use to illustrate the concept of proximate causation is Palsgraf v. Long Island Railroad Co., 248 N.Y. 339, 162 N.E. 99 (1928). In Palsgraf, the injured plaintiff (Mrs. Palsgraf) was standing on a railroad platform purchasing a ticket when a passenger hurried past her and attempted to board a moving train. While boarding the train, the passenger fell backward, but was prevented from falling by two guardsmen standing nearby. The two guardsmen pushed the passenger back onto the train, causing the passenger to drop the package he was carrying (which, unbeknownst to the two guardsmen, contained volatile fireworks). The resulting explosion caused widespread panic on the platform. Bystanders fled in all directions. One such fleeing bystander accidentally knocked over a pair of large freight scales that were standing at the end of the platform next to Mrs. Palsgraf. The scales fell over and struck Mrs. Palsgraf, causing her to suffer injuries.

Mrs. Palsgraf sued the railroad company, alleging negligence on the part of its two guardsmen employees. The court held that, while the two guardsmen indirectly caused Mrs. Palsgraf’s injuries (by pushing the passenger onto the train), their actions were not sufficiently related to the injury-causing event (the scales falling over), and Mrs. Palsgraf’s injuries were therefore not reasonably foreseeable. As a result, the railroad, through the actions of its employees (the guardsmen), was not held liable for Mrs. Palsgraf’s injuries, even though “but for” the two guardsmens’ actions, the fireworks would not have exploded and Mrs. Palsgraf would not have been injured. The connection between the two events was simply too attenuated.

Palsgraf is an interesting case for several reasons, but mainly because it limits the scope of liability for certain defendants when their actions, or the actions of their agents and employees, are not sufficiently related to the injury-causing event. Of course, no two cases are alike, and it is unlikely another case identical to the facts in Palsgraf will arise again. Because of this, proximate causation is a very fact-specific inquiry based on whether the defendant’s conduct created a foreseeable risk of harm to the plaintiff. It is also important to remember that there can be more than one proximate cause resulting in the plaintiff’s injuries. For these reasons, it is essential to have an experienced personal attorney review the facts in your case.

Damages

As a concept, damages are easy to understand. They include the various harms plaintiff has suffered as a result of another’s carelessness. However, properly identifying all the available damages in a personal injury case can be quite challenging, and if you cannot prove damages then you cannot establish the elements needed to prove negligence.

For example, let’s say you were stopped in traffic and rear-ended by an inattentive motorist. Your vehicle, which was less than a year old and in excellent condition, sustained more than $11,000 in property damage. The other driver’s insurance company has offered to inspect and repair your vehicle at one of their “pre-approved” auto body shops. They also offered to provide you with a rental car, and you have accepted their offer, but the rental car you received is smaller than the vehicle you own (which is in the repair shop for several weeks). When you finally get your car back from the repair shop, the exterior repairs look great, but your car now “pulls” to the right when driving.

As a result of the crash, you also suffered injuries to your neck and back. You were taken from the scene of the collision by ambulance to a local hospital where they took x-rays, prescribed pain and anti-inflammatory medication, and released you from care with instructions to follow-up as needed. During the next week, you missed several days from work. The pain in your neck and back persisted and you developed headaches. You also noticed there is a shooting pain down one of your legs whenever you sit or stand for prolonged periods. You wait another week and decide to schedule an appointment to see your primary care doctor, who prescribes additional medications and physical therapy, which you attend for nearly six months. Your neck pain resolves during this period, but you continue to suffer from low back pain that keeps you awake at night. Due to this ongoing low back pain, you return to see you primary care doctor and they send you to see a specialist who obtains an MRI and prescribes injections. Meanwhile, you receive notification from your insurer that your Personal Injury Protection (PIP) benefits have been exhausted and your medical bills are no longer being paid. You also receive notification from your employer that your sick time has been exhausted. The pain in your low back prevents you from doing many of the things you enjoy including exercising and gardening. The constant pain has also affected your mood, and for the first time you and your spouse are having marriage difficulties.

Under these facts, what are your total economic and non-economic damages? Did you spot all of the potential areas of recovery?

• Vehicle Repairs
• Diminished Value
• Rental Car
• Past Medical Care
• Future Medical Care
• Lost Wages
• Loss of Future Earning Capacity
• Household Services
• Pain and Suffering
• Loss of Consortium

To learn more about how Vancouver, WA personal injury attorney Colin Scott can assist you with an auto accident or other personal injury related matter in Southwest Washington, contact The Scott Law Firm, PLLC today and receive a free consultation!

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