Before filing a lawsuit, consider the extent of the damages, the other person’s responsibility, and comparative liability.

If you have been injured in an accident and are considering litigation, the entire situation should be thoroughly examined before you take action. Factors to examine include the extent of the injury, whether the other person acted responsibly, and whether you contributed to the accident.

Were Damages Suffered?

In a personal injury case, damages refer to the amount of money awarded to the injured party who suffered harm due to the negligent, careless, or intentional conduct of another person. These damages are classified as either special or general damages:

  • Special damages financially compensate the plaintiff for out-of-pocket expenses that can be quantified by adding together all the injured person’s financial losses: medical expenses, property damage, lost wages and earning capacity. Special damages should be calculated not only for present losses, but also for those that may extend into the future, such as future medical expenses and loss of future earning capacity.
  • General damages provide a clear link between the defendant’s behavior and the plaintiff’s injury, but are often not as easy to calculate because an exact dollar amount cannot be assigned to these losses. Common general damages include pain and suffering, mental anguish, disfigurement, loss of companionship, and loss of enjoyment or quality of life.

Was a Duty Breached?

A breach of duty occurs when one person has a duty of care toward another but fails to live up to that standard and caused the other person to suffer injury. Some of the questions an injured person should ask regarding breach of duty include:

  • Did the person who caused the harm use the same reasonable care that an ordinary person would have used in the same circumstances to prevent the injury?
  • Was the risk of harm foreseeable, or should reasonably have been foreseen?
  • What might have prevented the harm from occurring?
  • What was the relationship between the injured person and the one that caused the harm — was it based on any type of professional liability, as in medical malpractice?

Because a yes to any one of these questions is typically not enough to establish whether a breach of duty did or did not happen, it is necessary that they be considered together when applied to the specific facts of a personal injury case.

Who Was Liable for the Harm?

Determining who was at fault, or liable, for an injury is a major issue in every personal injury case. Under Colorado law, a modified comparative fault rule requires that an injured person’s damages award be reduced by the amount of his relative fault. As long as his fault is less than 50 percent, the injured person will be able to collect a reduced damages award. But if his fault is calculated at 50 percent or more, the victim will be barred from collecting anything from the other party.

Colorado courts are required by law to apply this modified comparative fault rule in negligence cases, so if there is any question about relative fault, a consultation with an experienced Colorado personal injury attorney can help you decide whether filing a lawsuit is the best course of action to take.

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