Case Types We Handle
Personal Injuries
Car Accidents
Truck Accidents
Motorcycle Accidents
Bicycle Accidents
Construction Accidents
Nursing Home Abuse
Wrongful Death
Slip and Fall Accidents
Daycare Injury & Abuse
Case Types We Handle
Personal Injuries
Car Accidents
Truck Accidents
Motorcycle Accidents
Bicycle Accidents
Nursing Home Abuse
Wrongful Death
Slip and Fall Accidents
Daycare Injury & Abuse
Premises Liability
St. Louis
Case Types We Handle
Personal Injuries
Car Accidents
Truck Accidents
Motorcycle Accidents
Bicycle Accidents
Construction Accidents
Nursing Home Abuse
Wrongful Death
Slip and Fall Accidents
Daycare Injury & Abuse
Dangerous Drugs
Defective Products
Chemical Exposure

Determining Personal Injury Liability: An Overview [2024 Guide]

Written By:
Tor Hoerman
Tor Hoerman

Attorney Tor Hoerman, admitted to the Illinois State Bar Association since 1995 and The Missouri Bar since 2009, specializes nationally in mass tort litigations. Locally, Tor specializes in auto accidents and a wide variety of personal injury incidents occuring in Illinois and Missouri.

This article has been written and reviewed for legal accuracy and clarity by the team of writers and attorneys at TorHoerman Law and is as accurate as possible. This content should not be taken as legal advice from an attorney. If you would like to learn more about our owner and experienced injury lawyer, Tor Hoerman, you can do so here.

TorHoerman Law does everything possible to make sure the information in this article is up to date and accurate. If you need specific legal advice about your case, contact us. This article should not be taken as advice from an attorney.

Determining Liability in Personal Injury Claims

On this page, we’ll discuss the concept of Personal Injury Liability, how liability is determined in a personal injury case, the process of proving negligence and filing a personal injury claim, the role of a personal injury lawyer, and much more.

Steps To Prove Negligence and Liability in Personal Injury Claims

Negligence and liability are intertwined in tort law.

You can’t hold someone liable for your injuries or the accident that caused them without first proving that they were negligent in some way.

Determining Personal Injury Liability An Overview

While it may seem like a relatively straightforward process, it’s actually more complicated than it looks.

Several legal theories and regulations could clash and twist your case in numerous ways.

Understanding how to prove negligence and liability can help you obtain a better outcome in your personal injury case.

With the help of a competent and experienced legal representative, you can navigate the complexities of personal injury law flawlessly.

At TorHoerman Law, we have a team of experienced personal injury lawyers who can help you understand liability and negligence in your case.

Call us now for a free case consultation, or use the chatbot here to see if you instantly qualify for a lawsuit.

Table of Contents

What Is Liability in Personal Injury Law?

In tort or personal injury law, liability pertains to the defendant’s responsibility to the plaintiff or the victim.

This fundamental legal theory determines whether the defendant should be held accountable for the victim’s injuries.

Establishing liability can be complicated, depending on the nature of the case or accident.

Proving negligence is necessary to establish personal liability.

Negligence is the failure to exercise reasonable care that harms or injures another person.

Various accidents could stem from negligence, and establishing the defendant’s carelessness is crucial to prove liability.

What Makes an Action Negligent?

As mentioned above, negligence is directly related to personal liability.

Establishing negligence isn’t as easy as it seems; it takes more than words to prove it.

To establish the defendant’s lack of due care, the plaintiff must prove the existence of the different elements of negligence.

Different aspects of negligence include:

  • Duty of care
  • Breach of duty
  • Causation
  • Damages

Duty of Care

The duty of care refers to the defendant’s legal obligation to the victim or plaintiff to create and maintain a reasonably safe environment.

To prove that the defendant owed a duty of care, the plaintiff must show that there was a relationship between them and the defendant at the time of the accident.

An example of this would be a doctor’s duty to provide proper medical care to their patients.

In this case, if the doctor fails to provide reasonable care, they may be held liable for any resulting injuries.

Another example is the driver’s responsibility to promote a safe driving environment for other drivers and pedestrians on the road.

If a driver is texting while driving and causes an accident, they have breached their duty of care and may be held liable for any injuries caused.

Breach of Duty

Breach of duty occurs when a person fails to meet the standard of care expected in a given situation.

This breach can be a negligent action or a failure to act when there was a duty to do so.

In several jurisdictions, authorities conduct a “reasonable person test.”

This test evaluates how a reasonable person would behave under the same circumstances.

Proving that the defendant breached their duty of care would require tangible evidence.

If a toy manufacturer fails to include proper warning labels on their products, they can be held liable for any injuries caused by the product.


Causation establishes the link between the defendant’s breach of duty and the plaintiff’s damages.

There are two aspects of causation: actual or proximate.

In actual cause, the plaintiff must prove that the defendant’s actions or omissions directly caused their bodily injury.

In proximate cause, the plaintiff must show that the defendant’s breach influenced the accident that caused their injury.

An example of an actual cause would be a driver looking at his phone and crashing into another car, resulting in physical injuries to the other driver.

A proximate cause would be a person slipping and falling on a wet floor inside a store because the employees failed to put up warning signs.


After the defendant’s legal responsibility is proved and the plaintiff’s injuries are established, the last element to verify is the damages.

This element refers to any injuries or financial losses the plaintiff suffered because of the accident.

To prove sustained or suffered damages, the plaintiff must provide evidence demonstrating the severity of their injuries.

This proof could include medical reports, bills, lost wages, and other related documentation.

What Are the Different Legal Theories About Negligence and Liability?

Negligence is a broad legal concept that covers various scenarios and exceptions.

Some of the different legal theories that revolve around this concept include:

  • Comparative negligence
  • Contributory negligence
  • Negligence per se
  • Strict liability
  • Vicarious liability

Comparative Negligence

Comparative negligence is a legal doctrine used in personal injury cases where the plaintiff and the defendant may have contributed to the injury or damages.

Under comparative negligence, the responsibility for the injury is apportioned between both parties.

The difference lies in their degrees of fault.

The different types of comparative negligence can include:

  • Pure Comparative Negligence: In this system, each party’s damages are reduced by their percentage of fault, regardless of how much they’re at fault.
  • Modified Comparative Negligence: This system bars recovery if the plaintiff’s fault exceeds a certain percentage (e.g., 50%). If the plaintiff’s fault is less than the threshold, their recovery is reduced proportionally to their degree of fault.
  • Slight/Gross Negligence: This doctrine applies when the defendant’s actions were either “slightly” or “grossly” negligent. The slight or gross standards are more subjective.

Contributory Negligence

Many people are confused between comparative and contributory negligence.

While they both deal with shared fault, they operate differently regarding how they affect the outcome of a personal injury case.

In contributory negligence, the plaintiff won’t recover any damages if they are found to have contributed in any way, even minimally, to their injury.

This doctrine is considered harsh and can result in unjust outcomes where a plaintiff with minor fault may be denied any recovery.

Negligence Per Se

In most personal injury cases, the plaintiff must prove the defendant’s negligence.

Certain circumstances could shift this responsibility to the defendant, which is called negligence per se.

In negligence per se cases, the violation of the statute or regulation is considered evidence of negligence.

If a driver runs a stop sign and causes an accident, the traffic law violation can be used as evidence of negligence per se.

In this situation, the defendant must prove that they’re innocent or not negligent in their actions.

Like the plaintiff’s process, they must produce tangible evidence to justify their actions.

Strict Liability

Strict liability imposes legal responsibility on the defendant for harm or damages caused by their actions or conduct, regardless of fault or intent.

Unlike negligence per se, which automatically shifts the fault to the defendant because of exercising evident carelessness, negligence isn’t necessary to prove the defendant’s legal responsibility in strict liability.

Strict liability usually applies in cases involving dangerous activities or products, such as manufacturing and pharmaceuticals.

In these scenarios, the plaintiff only needs to show that they suffered harm or damages due to the defendant’s actions or product without having to prove negligence on their part.

Vicarious Liability

Vicarious liability holds one party (the “principal”) legally responsible for the actions of another party (the “agent” or “employee”).

This doctrine is often applied in employer-employee relationships or situations involving an agency.

Vicarious liability is based on the principle that an agent’s or employee’s actions are considered those of the principal or employer within the scope of employment.

An employer may be held vicariously liable for a car accident caused by an employee while driving a company vehicle during work hours.

Common Scenarios in Personal Injury Cases

Personal injury cases arise from a variety of scenarios, each presenting unique challenges and requiring specific legal approaches to address the harm suffered by individuals.

Common scenarios can include:

  • Car accidents
  • Slip and fall accidents
  • Workplace accidents
  • Nursing home abuse and daycare abuse
  • Dangerous drugs and medical devices
  • Chemical exposure
  • Product liability

Car Accidents

Motor or car accidents are the most common types of personal injury cases.

In these situations, one driver’s negligence or carelessness causes an accident that physically injures the other driver, passengers, or pedestrians.

Let’s take this scenario: A car runs a red light and collides with your vehicle, injuring you and your family members.

Since the driver consciously violated traffic laws, this case could qualify for negligence per se.

As the plaintiff, you’ll only need to show proof that the defendant ran the red light.

Your attorney could help you gather CCTV footage, eyewitness accounts, and other evidence to prove the defendant’s negligence.

Slip and Fall Accidents

Slip and fall accidents are another common type of personal injury case.

These incidents usually occur on someone else’s property, such as a grocery store, restaurant, or office building.

This type of case falls under premises liability, which means the property owner or manager is responsible for keeping the premises safe and free from hazards.

For example, if a grocery store fails to clean up a spill on an aisle floor and you slip and fall as a result, they could be held liable for your injuries.

Proving the duty of care in this scenario is easy since the property owner is responsible for maintaining a safe customer environment.

Your attorney could help you gather evidence, such as surveillance footage or witness statements, to prove that the store managers or staff members breached their duty.

Workplace Accidents

Accidents in the workplace are often challenging and complex cases.

An injured employee can pursue a personal injury lawsuit or seek workers’ compensation benefits, depending on the jurisdiction.

Injured employees usually file for workers’ compensation benefits first before pursuing a personal injury case because it’s more streamlined and doesn’t require proving fault.

In some situations where a third party is involved (e.g., an equipment manufacturer), the employee may have the option to sue for damages.

For example, an employee may operate a crane as he learned in training, but the crane malfunctions and injures him.

In this scenario, the employee may have grounds for a product liability case against the crane manufacturer.

Nursing Home Abuse and Daycare Abuse

Abuse cases in nursing homes or daycare centers are sensitive and unfortunate situations.

These cases often involve physical, emotional, or financial harm to vulnerable members of society.

In these cases, the facility or individuals responsible for caring for the victim could be held liable for damages due to their negligence in providing appropriate care.

For example, the facility could be liable for damages if a nursing home resident suffers from bedsores due to staff neglect.

Medical records, eyewitness accounts, and expert testimony can prove the institution’s breach of duty.

Dangerous Drugs and Medical Devices

Dangerous drugs and medical devices aren’t often discussed enough in personal injury cases, but they can have devastating consequences.

In these situations, the manufacturer or other parties involved in the production and distribution of the drug or device could be held liable for any resulting harm or damages.

For example, say a woman who had a transvaginal mesh implant a few years back suddenly feels severe pain and learns that the implant ruptured.

She could file a product liability lawsuit against the manufacturer for their negligence in producing or distributing a faulty product.

Chemical Exposure

Exposure to noxious chemicals, such as PFAS or asbestos, can cause serious health problems and even death.

In these cases, the company or parties responsible for exposing individuals to hazardous materials could be held strictly liable for any resulting harm.

For example, if an employee developed lung cancer due to long-term asbestos exposure at their workplace, they may have grounds for a lawsuit against their employer.

Several federal and state standards are established to ensure the safety of workers working around asbestos.

If the employee can prove that their employer blatantly disregarded these regulations, they may be able to receive compensation for damages.

In most cases, employers are strictly liable for their employees’ safety, and violating these regulations could result in a favorable personal injury lawsuit.

Product Liability

Any product that causes harm or injury due to its design, manufacturing, or labeling defects could be subject to a product liability lawsuit.

For example, if a person gets injured while using a blender with faulty blades, they may file a claim against the manufacturer.

The plaintiff must prove that the product defect existed when it left the manufacturer’s control and caused their injury.

In some cases, manufacturers may also be held liable for failing to warn consumers about potential hazards associated with their products.

For instance, if a company knowingly sells a toy that poses choking hazards to young children without adequate warning labels, they could be held responsible for any resulting injuries.

The Complexities of Determining Liability

Proving liability in personal injury cases possesses various complexities.

Some challenges you might have to deal with when pursuing a personal injury lawsuit include:

  • Multiple Liable Parties: In some accidents, more than one party may share responsibility for the injury.
    • This scenario could include multiple drivers in a car collision, multiple companies in a product liability case, or an employer and a third-party contractor in a workplace accident.
  • Contributory or Comparative Negligence: The state’s comparative or contributory negligence rule could interfere with the plaintiff’s right to compensation.
    • This rule could make it impossible for the plaintiff to acquire the compensation they deserve or not get it at all.
  • Complex Discovery Processes: Discovery in personal injury cases involves gathering evidence from various sources.
    • Complex cases may require extensive discovery efforts, such as depositions, interrogatories, and requests for the production of documents, to uncover critical information relevant to proving liability.
  • Dealing with Government Entities: Cases involving government entities, such as accidents on public roads or injuries caused by government employees, often involve additional legal complexities.
    • Sovereign immunity laws may limit the liability of government entities and the plaintiff’s compensation.

The Important Role of Personal Injury Lawyers

Personal injury lawyers play a crucial and multifaceted role in establishing liability and advocating for their clients throughout the personal injury claims process.

Key responsibilities and contributions of lawyers include:

  • Thorough Investigations: Lawyers investigate the accident scene to gather physical evidence and identify potential witnesses. These professionals review medical records, police reports, and other relevant documents to understand the circumstances of the injury.
  • Gathering Evidence: Lawyers could interview witnesses to obtain firsthand accounts of what happened or collect their contact information. Lawyers also preserve and analyze critical evidence such as CCTV footage, vehicle damage, digital evidence, or defective products.
  • Negotiating With Insurance Companies: Experienced lawyers are proficient negotiators who can deal with insurance adjusters to secure fair compensation for their client’s medical expenses and other damages.
  • Advocating in Court: If the opposing party limits the personal injury coverage or refuses to compensate justly, experienced trial lawyers prepare for trial by developing a solid litigation strategy. These experts represent their clients in court, presenting evidence, examining witnesses, and arguing legal points to establish liability.

TorHoerman Law: Speak With an Experienced Personal Injury Attorney Today

Personal injury cases might seem like a one-way road, but they involve many twists and turns.

Securing competent legal representation early on can help you maximize your chances of obtaining justice.

At TorHoerman Law, our experienced team of personal injury lawyers is committed to fighting for the rights of injured individuals and holding responsible parties accountable.

Contact us today for a free consultation.

You can also use the chatbot on this page to get a quick case evaluation.

Frequently Asked Questions

  • What elements are required to prove negligence in a personal injury case?

    To establish negligence in a personal injury case, plaintiffs must convincingly demonstrate four critical elements.

    These elements include:

    • Duty of Care: Establish that the defendant owed a legal duty to the plaintiff under the circumstances.
    • Breach of Duty: Show that the defendant breached that duty by acting or failing to act in a way a reasonable person would in the same or similar situation.
    • Causation: Prove that the defendant’s breach directly caused the plaintiff’s injuries.
    • Damages: Demonstrate that the plaintiff suffered actual damages, such as bodily injury, emotional distress, or property damage.

    Successfully proving these elements can lead to compensation for the plaintiff and forms the foundation of the personal injury legal process.

  • How is liability determined in a personal injury claim?

    Determining liability in a personal injury claim involves a detailed analysis of facts and evidence related to the incident.

    Ways liability is determined include:

    • Evidence of Negligence: Assessing if the defendant acted negligently or failed to act in a way that a prudent person would under similar circumstances.
    • Contributory and Comparative Negligence: Evaluating if the plaintiff had any role in causing their own injuries and how that impacts the liability and compensation.
    • Strict Liability Cases: In certain cases, such as those involving defective products or certain types of workplace accidents, liability may be established without proving negligence.

    Understanding these factors is crucial for accurately determining who is at fault and to what extent they are liable for the damages incurred.

  • What role does a personal injury lawyer play in establishing liability?

    A personal injury lawyer’s role is instrumental in navigating the complexities of liability in personal injury cases.

    Roles of a lawyer can include:

    • Gathering Evidence: Collecting all necessary documentation such as medical records, eyewitness statements, and accident reports to support the claim.
    • Legal Guidance: Advising on the legal standards and how they apply to the specifics of the case.
    • Representation: Advocating for the plaintiff’s interests in negotiations or court proceedings, aiming to prove the defendant’s liability.

    With their expertise, personal injury lawyers ensure that all aspects of liability are thoroughly addressed, maximizing the potential for a successful outcome.

  • Can multiple parties be liable in a personal injury case?

    Yes, multiple parties can be held liable if their combined actions contributed to the accident.

    This includes direct actors like other drivers in a traffic accident, or indirect contributors such as manufacturers in product liability cases.

    Identifying all liable parties is crucial as it ensures that all potential sources of compensation are considered, providing a comprehensive approach to obtaining just reparation for the injured party.

  • How does proving liability affect the outcome of a personal injury claim?

    Proving liability is pivotal in determining the outcome and compensation in a personal injury claim.

    Outcomes can include:

    • Compensation Calculation: The degree of liability affects the amount of compensation the plaintiff can receive for medical expenses, lost wages, pain and suffering, and other non-economic damages.
    • Insurance Settlements: Proving liability influences negotiations with insurance companies, potentially leading to fairer settlements.
    • Legal Outcome: Successful establishment of liability can lead to a favorable court decision, granting the plaintiff recovery for damages sustained due to the defendant’s actions.

    The ability to effectively prove liability not only impacts the immediate financial compensation but also sets a precedent for accountability and deterrence of future negligent behaviors.

Written By:
Tor Hoerman

Tor Hoerman

Owner & Attorney - TorHoerman Law

Do You
Have A Case?

Here, at TorHoerman Law, we’re committed to helping victims get the justice they deserve.

Since 2009, we have successfully collected over $4 Billion in verdicts and settlements on behalf of injured individuals.

Would you like our help?

About TorHoerman Law

At TorHoerman Law, we believe that if we continue to focus on the people that we represent, and continue to be true to the people that we are – justice will always be served.

Do you believe you’re entitled to compensation?

Use our Instant Case Evaluator to find out in as little as 60 seconds!

$20 Million
Toxic Tort Injury

In this case, we were able to successfully recover $20 Million for our client after they suffered a Toxic Tort Injury due to chemical exposure.

$103.8 Million
COX-2 Inhibitors Injury

In this case, we were able to successfully recover $103.8 Million for our client after they suffered a COX-2 Inhibitors Injury.

$4 Million
Traumatic Brain Injury

In this case, we were able to successfully recover $4 Million for our client after they suffered a Traumatic Brain Injury while at daycare.

$2.8 Million
Defective Heart Device

In this case, we were able to successfully recover $2.8 Million for our client after they suffered an injury due to a Defective Heart Device.

Guides & Resources
Do You
Have A Case?

Here, at TorHoerman Law, we’re committed to helping victims get the justice they deserve.

Since 2009, we have successfully collected over $4 Billion in verdicts and settlements on behalf of injured individuals.

Would you like our help?


Related Guides

What Our Clients Have To Say