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Posted On December 3, 2013 Personal Injury

Determining and Proving Liability

Your success in recovering a fair settlement for your personal injury claim hinges on a concept called liability. Liability, in terms of personal injury, is the legal responsibility of a person or organization as it pertains to the obligation to act with the safety of others in mind. In the case of an accident, whether it’s a car crash or a safety hazard on a property, the party who is at fault for the accident is liable for the damage that they cause to others. Your job is to demonstrate to the insurance adjuster that the other party is liable and so their insurance policy covers your damages.

Though we talk about “proving” liability, the phrase isn’t quite accurate. In a personal injury claim you file against an insurance company, you don’t actually have to prove anything, at least not in the sense that most people outside the practice of law understand proof. In a criminal trial, prosecutors have to prove “beyond a shadow of a doubt” that a defendant is guilty and persuade jurors to reach a guilty verdict. Personal injury cases don’t work that way. In a claim that doesn’t proceed to trial, there is no jury, just you and an insurance adjuster. You don’t have to meet any strict standards of proof. All you really need to do is provide a suitable amount of evidence that supports your assertion that the other party is at fault for your injuries.

At this stage of your claim, proving liability is far simpler than a courtroom drama. Photo Credit: Eric ChanWikimedia Commons (Creative Commons license).

Laws and Liability

The first step to determining liability is understanding the law. In the case of a motor vehicle accident, there is a written code of traffic safety laws that all motorists must follow. As long as the other party truly is at fault, you can probably find a law the driver broke by perusing your state’s (and any local) traffic safety laws. You can get a copy of your state’s driver manual by visiting your local branch of the Motor Vehicle Commission or browsing a digital copy. In the case of unsafe properties, the other party’s negligence may not be as obvious. You may have to look at building code requirements to show that a structure was not properly constructed, or at municipal laws and rules regarding property maintenance. Fault in premises liability may not be as clear-cut and easy to demonstrate as in a motor vehicle accident.

Every person or organization has a legal obligation to take reasonable steps to avoid needlessly endangering others. A driver is not permitted to use the road recklessly, disobeying laws and putting everyone around him or her at risk. A property owner can’t allow unnecessary safety hazards to exist on his or her property. Commercial premises must be safe for customers (and other vendors) to use, providing that they do so in a normal, not exceptionally careless fashion. Determining what is reasonable behavior is not always a clear-cut process. To get the most out of your settlement, you want to make a compelling argument supported by evidence that convinces the insurance adjuster that you deserve compensation because their policyholder was at fault. Your argument may include specific concepts the related to different types of accidents.

Motor Vehicle Accidents

  • Right-of-way: who has the right-of-way, or the primary right to use the roadway at a given time, can play an important role in determining liability. Right-of-way is determined by road features such as traffic signals and signs as well as the direction of travel. Generally speaking, a person driving straight has the right-of-way, as long as no traffic sign or signal indicates otherwise. A driver who is turning must allow the driver who is going straight to proceed through an intersection first if their paths could cause a collision otherwise. For example, if a driver hit you while making a left turn across your path and you had the right-of-way, how the accident occurred supports your claim that the other party was at fault.
  • Safe following distance: When a driver is hit from behind, two facts are nearly always true: 1.) the driver who hit the other vehicle from behind did not follow laws requiring motorists to maintain a safe following distance, and 2.) that driver is the one primarily at fault for the accident. If your accident happened this way, the at-fault driver may try to claim that you contributed to the accident by stopping suddenly, but making sudden stops when necessary is not against the law. However, it is possible for certain circumstances to render you partially at fault for an accident like this. If your brake lights were nonfunctioning so that the driver behind you didn’t know you were stopping, or if you had to slam on your brakes because you were speeding, you might be found partially at fault, too.


Failing to maintain a safe following distance is also referred to as tailgating, driving to close to the other vehicle’s tail. Photo Credit: Flickr (Creative Commons license).

What happened immediately before the accident matters, too. Imagine that a driver (who does not have the right of way) is waiting at a stop sign on a side street to make a right-hand turn onto a more heavily trafficked road. If this driver makes the turn in front of a vehicle proceeding straight without taking sufficient care to avoid an accident and the other driver is unable to slow down quickly enough to avoid a collision, the first driver is at fault. Because the driver who has the right of way was not following the other driver, he or she had no responsibility to maintain a safe following distance from their vehicle. The driver who “cut off” another motorist should have waited until the lane was clear before making his or her turn.

Premises Liability

  • Assumed risk: One of the most common questions our office receives about premises liability accidents, like slip-and-falls, revolves around a concept called “assumed risk.” If a customer slips on a wet or slippery floor of a commercial property and falls, is the company or property owner at fault? The truth is, it depends.

Companies have the obligation to maintain their properties in ways that will not pose a safety risk to customers. This generally means that the danger is something staff or maintenance personnel knew or should have known about, but that they failed to rectify the problem. If you can demonstrate that the safety hazard existed for enough time that the employer could reasonably have been expected to know about and repair or block off the danger, then yes, you have a strong case for the company being at fault. If, on the other hand, you saw the person ahead of you in an aisle spill a drink or drop a glass bottle but then slipped on the mess anyway, you will have a harder time convincing the insurance adjuster that the company’s negligence, and not your own inattentiveness, caused the accident.

The same is true if you chose to walk through an aisle or walkway clearly marked with a “Caution” or “Wet Floor” sign. If company personnel place such a warning reasonably close to the safety hazard, they have fulfilled their responsibility to notify customers of a danger. By disregarding this warning, you take on the assumed risk of entering a potentially dangerous environment, and the insurance adjuster is unlikely to agree that you are not at fault for the accident.

It had just rained

Just because personnel put out a caution sign doesn’t mean the store is necessarily in the right. The sign must be reasonably close to the safety hazard – otherwise, it provided you no real warning of the danger. Photo Credit: Flickr (Creative Commons license).

  • Normal and lawful use: How you are behaving on the premises also affects liability. If you are lawfully on the property, as any customer or vendor would be, the owner or commercial renter of the premises is responsible for providing a safe environment for you. On the other hand, trespassers on a property – whether private or commercial – do not have the right to expect a safe environment, because they are not on the premises legally. You also have the responsibility to use the property in a normal way. You may be casually walking or browsing. While the company has a right to expect you not to be sliding down handrails on stairs or running through crowded areas, you also have the right to expect an environment where you don’t have to scrutinize every step.

Comparative Negligence

Not every accident is solely the fault of one party. Sometimes an insurance adjuster will try to get out of paying your claim by arguing that you share fault for the accident. This can be incredibly frustrating when you have done nothing wrong, or if the mistake on your part was minor but the carelessness on the part of the other party was significant. Try not to take this argument personally. Unfortunately, it’s very common for an insurance adjuster to tell a victim of a premises accident that they should have watched where they were going, even though the situation clearly posed a safety hazard. Remind the insurance adjuster that you are lawfully on the property and have a right to expect it to be safe for normal use. The same accusation may be used in the case of a car accident. Instead of arguing with the adjuster about whether or not you were at fault, calmly present your evidence showing how and why the other party is at fault.

If you actually are partially at fault, though, it doesn’t mean that you can’t pursue compensation. In New Jersey and Pennsylvania, you can still recover compensation as long as your actions are less than 50 percent at fault for the accident. We call this concept comparative negligence, or contributory negligence. Other states may have stricter laws, but here, you can be 49 percent responsible for the accident and still pursue compensation from a party who is 51 percent at fault. Your level of comparative negligence will influence your settlement. If the insurance adjuster decides that you are 25 percent at fault for the accident, he or she will reduce the amount of money you can recover accordingly.


Say you got hurt walking on this icy staircase, but you chose not to hold onto the railing. You might be comparatively negligent for failing to use the handrails, but that doesn’t excuse the property owner from having to keep the steps safe for travelers. Photo Credit: Flickr (Creative Commons license).

Determining comparative negligence is a subjective matter. There is unfortunately no equation to objectively show which party contributed what percentage to an accident. That’s why the strength of your evidence, and the way you present it, matters.

Gathering Evidence

To discover who is at fault for the accident, you had to do some digging within the law. The same resources you used to find out what the other party did to cause the accident (fail to yield to a driver who had the right of way, neglect to build a structure to meet standards, or fail to maintain a properly in a safe condition) can become valuable evidence to support your claim. Make copies of the official laws, rules, and building codes that relate to your case. Then back up your claim that the at-fault party violated these laws with evidence.

Witness testimony and a police report can substantiate your claim that the other driver violated traffic safety laws. Measurements of substandard constructions can validate your claim that a structure, like a staircase, isn’t up to code. Video surveillance footage, witness accounts, and company incident reports and maintenance logs can show that the business using the premises didn’t maintain the area safely.


If you suspect a building code violation, you’ll have to dig out a tape measure and do some work. Enlist a friend or family member to help, if your injuries inhibit your range of motion. Don’t feel weird about it – you need to do what’s best for your claim. Photo Credit: Flickr (Creative Commons license).

Keep in mind that how you present your evidence matters. An accident is an upsetting event, and it’s normal to feel frustrated not only by the effects of your injuries on your life, but by the stress of having to convince an insurance adjuster that you deserve compensation. Although it’s not fair to you, it is true that there are less-than-honest individuals out there who attempt to seek money for illegitimate claims – injuries that were clearly sustained in ways not related to an accident or even those that do not exist. Even if it wasn’t in the insurance company’s best interest to pay legitimate claims as little as possible (and it is), adjusters would still want to weed out the fraudulent claims by asking questions and requesting evidence.

Unfortunately, some insurance adjusters take this too far. They harass legitimate claimants like you to try to get you to settle for less money than you really deserve. Some may try to take advantage of you, thinking that because you don’t have a lawyer to represent you, you will be an easy target.

To counter this possibility, present your evidence as professionally as possible. Keep all of your records organized. Label pieces of evidence clearly when you submit them to the insurance adjuster. Make sure your written communications show that you know what you are talking about. Above all, stand up for yourself. Insurance adjusters may see themselves as authority figures, but in reality, they’re merely representatives. By doing everything right, just as a legal professional would, you’re showing them that they can’t intimidate you.