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What do we have to Prove if Negligence is Obvious in a Personal Injury case?

Litigation actions for personal injury cases are brought as actions in tort. Generally, litigation occurs when the negotiation of a personal injury insurance claim fails. It may also occur when the legal issues and/or injuries are too complex to negotiate with the respective insurance adjusters; in that case, the filing of litigation may be required to preserve legal rights of the injured party.

In order to file a personal injury suit, the plaintiff or plaintiff's personal injury attorney will need to draft and file a Complaint. Within the four corners of that complaint, there must be an alleged prima facie case of negligence. Failure to do so may be grounds for dismissal of the action. However, there is one particular instance in which pleading the prima facie case is not essential: instances in which the doctine of res ipsa loquitor applies.

Res ipsa loquitor Is a Latin phrase meaning "the thing speaks for itself." Its use is very limited to circumstances where the likelihood of the defendant having been negligent is high. To prove this, the instruments causing personal injury at issue in the negligence case must have been completely within the control of the defendant at all relevant times.

The law school case most commonly referred to in teaching this lesson is one in which a pedestrian was walking down a sidewalk in front of a hotel. A chair was thrown out of the hotel window and landed on the pedestrian as the pedestrian walked by. The doctrine of res ipsa loquitur applied, because the chair and windows were all within the control of the hotel, meeting the initial threshold to bring the action.

Whether this doctrine applies is based on and objective standard--that is, it must be objectively clear that there was likely negligence by the defendant. It is simply human nature to feel that negligence has occurred when you don't fully understand the law and you or a loved one is the victim of the incident. This is largely due to the victim feeling that he or she has been wronged in the situation and is entitled to some sort of recovery. All the more reason to consult an experienced Boston personal injury lawyer to assess your case objectively. There been numerous instances in which cases it been dismissed for the attorney failing to properly plead the case and erroneously relying upon this doctrine. Have your case assessed properly.

The information on this website is for general information purposes only. Nothing on this site should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute, an attorney-client relationship.

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