Claim Value – Variable # 3: Defendant’s Fault
Posted on behalf of RizkLaw on Apr 21, 2016 in Personal Injury
This is the third post in my blog series: Personal Injury Claim Value: Key Variables. This third post addresses injury value key variable #3: Defendant’s Fault
Decision makers are motivated to right wrongs brought about by very bad conduct. Injuries caused by a simple mistake (negligence), not so much. Jurors in a minor car accident injury case may excuse and even identify with a driver who makes an honest, especially when the mistake is admitted. Preventable injury caused by reckless or intentional conduct yield more that injury caused by an innocent, but harmful mistake.
Where the bad act violates a safety statute designed to protect the public, fault is presumed and awards rise. Jurors bend backwards to protect fellow community members from hazardous acts– especially when the juror is among the class of people who could be harmed by the prohibited conduct. When harm comes close to home, awards skyrocket.
Extreme, outrageous and intentional conduct justifies punitive damages (damage to punish). To justly amend for extreme and outrageous conduct, the punitive award should be large enough for the wrongdoer to feel pain.
For the plaintiff, two hurdles exist. First, most insurance policies do not cover intentional conduct. Secondly, in some states including Oregon, injury victims must share punitive damage awards with the state. In Oregon, for example, 70% of any punitive damage award is paid to the state of Oregon, not the injury victim. Before making a punitive damage claim based on intentional conduct, ask your attorney to consider collection challenges and settlement options.
Also many states have laws which cause an injured person’s damages reduce to be reduced by the percentage of the injured person’s own fault. Oregon is “modified comparative fault state” meaning that, in Oregon, a plaintiff must prove the defendant is at least 50% at fault threshold to be eligible for any recovery. Washington State, by contrast, is a “true comparative fault” state where plaintiff’s damages are reduced by his own fault regardless of who is primarily at fault.
Generally speaking, a criminal conviction prior to a civil trial helps the injury victim prove bad conduct in a later civil trial. However, some jurors take the view that persons convicted criminally who have served time should not be required to pay anything to the victim because he “served his time”. The challenge is convincing jurors that each crime involves wronged parties: 1.The public (for the crime); and, 2. The human who endured the consequences of the bad act. Each deserve compensation.