The Basis of A Successful Negligence Claim

I had the opportunity recently to speak with a woman who was like many of you, a person who had been injured and did not know how things worked from there. She had been damaged and could explain those damages pretty well. She had been injured, she was in pain, and she had been forced to adjust her conduct in her home, work and social situations. She had medical bills, co-pays, uninsured items and concern about her future.

As we discussed her situation, I brought her back to the accident itself and asked her to explain it to me again. When she finished I asked her what she thought the target of her claim had done wrong. Her answer was that she did not know if he had done anything wrong. I explained that it is understandable that the injured person does not know if the target of their claim did anything wrong. This firm and others like us often have to enlist the assistance of experts in many different fields to aid us in determining if someone's conduct was wrongful in some manner. But, in this instance there did not appear much hope of finding anything having been done negligently by the target. I then discussed with her the possibility that the tool that the target was using at the time of the injury might have been defective. Again, we often retain experts to assist us in determining that. But, here again it did not seem likely to me that the tool was defective and I told her that.

The potential client's reaction was that the target's insurance carrier should still pay her because of all of her damages. This is where she separated herself from many of you who already understand that our judicial system is not designed that way; it is not simply having suffered damages that create a cause of action. For a person to be liable for your damages due to their negligence they have to have done something wrong and that wrongful action must be found to have caused your injury. The elements of a wrongful act (or omission) and causation are central to any successful negligence claim.

If you have been injured and you want to discuss a claim with a lawyer, you should be prepared to discuss both of these elements with him or her. Your lawyer will need to understand the facts sufficiently to make a determination not only regarding your injuries and damages but also the facts relevant to the allegedly wrongful act (or omission) and causation.

Timothy G. Kerrigan is the director of Kerrigan Law PLLC. His present practice focuses on civil legal matters including insurance, , personal injury, family law, commercial transactional issues, litigation, mediation and arbitration  Mr. Kerrigan is also certified by the State Office of Mediation and Arbitration both as a mediator and as an arbitrator. You can contact Attorney Kerrigan at 603-943-5555

Personal Injury Damages... Liability To Employer

When someone is injured in an accident they often need an attorney to find out if they have a claim. If the injuries were caused by someone acting in their work capacity, there is most often a claim possible against that person’s employer. This is because the employee’s negligence is assigned or “imputed” to the employer if the person was on the employer’s business at the time of the accident. This is how we come to bring claims against national and multinational corporations for personal injury claims. If you were injured because of Joe Smith’s failure to use due care when Joe was driving, then you have a claim for compensation for those injuries from Joe Smith. But if Joe Smith was driving a FedEx truck or an IBM car, you may have a claim against that business if he was driving the employer’s vehicle because he was working for the company at the time of the accident.

In certain instances these claims can go a step further. If Joe has a dubious driving record or an expired commercial license and his employer knew or should have known about those facts, you probably have a separate, independent claim against the employer for its failure to properly hire, train and/or supervise its employees. This is not the type of vicarious liability mentioned above where the blame is imputed to the employer due to the nature of the employment relationship.  It is a direct claim against the employer for its own negligence in failing to properly hire, train or supervise an employee. This has long been the approach towards the law, as stated in legal treatises such as the Restatement (Second) of Agency.

This independent, second type of claim was stated as the law in New Hampshire even prior to 1985, but it was then that the New Hampshire Supreme Court affirmed a jury verdict finding that a municipality was liable for its negligent hiring, training and supervision of a police officer where it issued a set of handcuffs and a service revolver to a newly hired but entirely untrained police officer. Not surprisingly, a citizen was injured as a result of that town’s negligence in doing so. Where an employer improperly furnishes an employee with a dangerous instrumentality, whether it is a vehicle, a service revolver or a set of handcuffs, that employer can be held directly liable for the damages that flow from that negligent act. Likewise, if the employer hires an inappropriate person or fails to adequately train that person where a reasonable person would do so, the employer likewise faces the prospect of a lawsuit should you be injured as a result of that negligence.

Timothy G. Kerrigan is the director of Kerrigan Law PLLC. His present practice focuses on civil legal matters including insurance, , personal injury, family law, commercial transactional issues, litigation, mediation and arbitration  Mr. Kerrigan is also certified by the State Office of Mediation and Arbitration both as a mediator and as an arbitrator. You can contact Attorney Kerrigan at 603-943-5555