In order to recover compensation after a personal injury case, you must be able to prove negligence. The Kansas negligence laws are complex in that Kansas is a contributory negligence state. That means even if you are partially at fault, you might recover compensation. Some people hesitate to contact a Topeka, KS, personal injury attorney because they believe they might be partially at fault for the accident or incident. Because of the state’s contributory negligence laws, you should always contact a personal injury lawyer to help determine if you can, in fact, recover compensation when you think you cannot.
Determining Fault: Contributory Negligence
Kansas Statute §60-258a states that you must compare your negligence to the defendant’s negligence. If it is less than the defendant’s, you can recover compensation. For example, if you are 20 percent at fault for the accident and the defendant is 80 percent at fault, you can recover compensation, but it will be 80 percent of the compensation.
Contributory negligence is one of the reasons why it’s always better to have an attorney represent you during settlement negotiations. Not only will the insurance company do everything in its power to deny your claim, but barring that, it will try to put as much blame for the accident on your shoulders as possible.
The assigned fault – negligence – in your case must be below 50 percent for you to recover compensation. Thus, even if you think an accident is wholly or partially your fault, you should contact a Topeka, KS, personal injury lawyer to make that determination. The attorney can look at the laws and apply them to your circumstances to determine whether you were negligent and, if you were, whether the defendant’s actions or inactions were more negligent than your actions or inactions.
How to Determine Negligence
You might wonder whether you contributed to an accident or incident. The best way to determine that is to retain a Topeka, KS, personal injury attorney to review your case. While it might seem easy to determine negligence, it is sometimes difficult. A personal injury attorney looks at several factors to determine whether you have a case, including the facts of the case and the defendant’s actions and inactions to compare with the elements of negligence.
To determine negligence, the actions or inactions of the negligent person or entity must meet five elements:
- The defendant owes a duty of care to others. In the case of those on the road, drivers owe it to others to drive in a safe manner and to obey traffic laws.
- The defendant breached his or her duty of care. For example, the defendant was speeding.
- The breach caused your injuries. Because of the defendant’s speed, he lost control of his vehicle in a curve and hit you head-on.
- The defendant knew or should have known that his actions could cause an accident with injuries or death.
- You suffered damages because of the defendant’s actions or inactions, such as medical expenses, traumatic brain damage, lost wages, etc.
Because it could be difficult for a layperson to apply the facts of the case to the elements of negligence, you should always seek the advice of a personal injury attorney.
If the defendant’s negligent actions caused you injury, you can recover two types of damages: Compensatory damages and punitive damages. The court orders compensatory damages in an attempt to make you financially whole.
Compensatory damages come in two forms: Economic damages and non-economic damages. Most people who suffer injuries in an accident or incident recover economic damages, which have a monetary value.
Economic damages include medical expenses, lost wages, loss of future earning capacity, replacement or repair of destroyed or damaged personal property, and death-related expenses, such as funeral and burial expenses and probate attorney’s fees and costs.
Non-economic damages do not have a monetary value and include compensation for pain and suffering, emotional distress, loss of companionship and/or consortium, inconvenience, and extra compensation for amputations, excessive scarring, and/or disfigurement.
Generally, to recover non-economic damages, you must have suffered catastrophic injuries or lost a loved one due to another person’s or entity’s negligence.
Punitive Damages: Gross Negligence
In cases where you can prove gross negligence, you could recover punitive damages. It is often difficult to recover punitive damages; however, if you suffer catastrophic injuries that prevent you from working for the rest of your life, it is worth the extra time and effort it takes to recover punitive damages.
Unlike compensatory damages, this money is not to make you whole again. Instead, the court orders a defendant to pay punitive damages if the court agrees with you that the defendant’s actions or inactions were willful conduct, fraud, wanton conduct, or malice.
The Role of a Topeka, KS, Personal Injury Attorney
In addition to determining whether you and/or the defendant are negligent, an attorney could handle settlement negotiations for you. In the event that settlement negotiations fail because the insurance company refuses to offer a fair and reasonable amount, your Topeka, KS, attorney will have a lot of information required to go to trial.
After successful settlements or jury trial wins, your attorney still has a significant part to play in your case. The attorney must close the case. Part of closing a case involves ensuring everyone is paid for their services.
When your attorney negotiates a figure on your behalf, the attorney includes money for attorney’s fees and costs. Once the attorney receives the check from the defendant’s attorney, your attorney takes additional steps, including:
- Deposits the check into an escrow account. Your attorney cannot take the next steps until the check clears the bank. It could take up to 14 days to clear the bank, depending on the amount.
- Pays any outstanding medical expenses you have and reimburses your auto and/or health insurance companies if you used them to cover medical expenses from the accident or incident. Always be sure to submit any medical bills you have.
- Deducts the firm’s costs and fees.
- Forwards a check to you for the balance.
You can deposit the check and use it as you see fit.
Contact a Topeka, KS, Personal Injury Lawyer
If you suffered injuries or lost a loved one in a personal injury accident or incident, contact a Topeka, KS, personal injury lawyer for a free case evaluation.