Top Three Reasons That A Baltimore Personal Injury Case Can Be Lost.
There are no statistics kept on this, at least not to my knowledge, but I Attorney Eric T. Kirk would hazard a guess that the top 3 reasons a personal injury case is lost in court, are, in no certain order: contributory negligence; a finding of no negligence on the part of the defendant; failure of the plaintiff to prove an objectively verifiable injury.
Contributory negligence is an affirmative defense under Maryland law. It is an absolute defense. The ancient doctrine is harsh in its application. An injured person, even an undeniably injured person, who has contributed in even the slightest way to the injury-causing event, is precluded from any financial recovery whatsoever.
A finding of no negligence on the part of a defendant would of course be an absolute bar to recovery, for it is only where a person is at fault for an accident, rather than the happening of an accident standing alone, that the obligation to compensate for an injury, and the corresponding right to sue for or collect it, is triggered.
So, if the injury causing event is a true accident – i.e. an unavoidable incident with no causative human agency- the law does not recognize a right to financial compensation.
Such findings are rare in court. A much more common ruling is that the Plaintiff has “failed to prove their case”, or, the fact finder cannot “make up their mind” as to fault, so the Plaintiff has failed in satisfying their burden of proof.
A more troubling scenario is one in which facially injured person has not convinced the finder of fact that they are, indeed, injured, or injured seriously enough to warrant compensation. This situation frequently manifests in a ruling that, although there is testimony from the injured person that they were injured and suffered consequences, and although there are medical records in which a licensed physician has made a diagnosis of injury, certifying to a reasonable degree of medical certainty that the injuries are caused by the subject accident, there simply is no “proof” the plaintiff was injured.
Such a ruling cannot be premised on the notion that a Plaintiff has failed in their burden of production, for they have produced evidence in the form of records and bills, as well as their own testimony. Such a ruling can only be premised on a notion that the Plaintiff has failed in their burden of persuasion, i.e. convincing the finder of fact of the injury. This presents troubling options. Implicit in such a ruling is a determination that the Plaintiff, or the doctor providing treatment, are either lying – or excessively exaggerating- or are wrong. The tacit determination here is that either the Plaintiff, or doctors, or both, are just mistaken in their physical sensations, or diagnosis, or, more ominously, that they have attempted to mislead the court.
