Frequently Asked Questions
These FAQs are designed for personal injury victims of auto accidents, truck accidents, and victims of medical malpractice. Because truck accidents and medical malpractice litigation have issues that are unique to those types of personal injury cases, we have designed frequently asked questions that are specific to auto accident/personal injury.
What is Negligence?
Negligence is the failure to use ordinary care. Every person is required to use ordinary care to avoid injuring another person or another person’s property.
Ordinary care is the care that a reasonably cautious and careful person would use under the same or similar circumstances. The person may be required by law to do something or not to do something. Failure to do what is required by law is negligence, as is doing something the law prohibits.
The amount of care increases in proportion to the danger that reasonably should be foreseen. Ordinary care is a relative term. The test for a jury, though, is still ordinary care under the circumstances.
What is Foreseeability?
In deciding whether reasonable care was used, a juror will consider whether either party in question should have foreseen under the circumstances that the likely result of an act or failure to act would cause injury.
The test for foreseeability is not whether a person should have foreseen the injury exactly as it happened to a specific person. The test is whether under all the circumstances a reasonable careful person would have anticipated that an act or failure to act would likely result in some injury.
What is Proximate Cause?
A party who seeks to recover for injury must prove not only that the other party was negligent, but also that such negligence was a direct cause of injury. Proximate cause is an act or failure to act which in the natural and continuance sequence directly produces the injury, and without which it would not have occurred. Cause occurs when the injury is the natural and foreseeable result of the act or failure to act.
What is Burden of Proof?
A person who claims that certain facts exist must prove them by a preponderance of the evidence. This duty is known as the burden of proof. The burden of proof is on the Plaintiff, the person bringing the litigation, to prove the facts necessary for his/her case by preponderance of the evidence. If the Defendant claims the Plaintiff was negligent, this is an affirmative defense. The burden of proving an affirmative defense by preponderance of the evidence is on the Defendant.
What is Preponderance?
Preponderance of the evidence is the greater weight of the evidence; that is, evidence that a juror believes because it outweighs or overbalances in the juror’s mind the evidence opposed to it. A preponderance means evidence that is more probable, more persuasive, or of greater probative value. It is the quality of evidence that must be weighed. The quality may, or may not, be identical with quantity.
In determining whether an issue has been proven by a preponderance of the evidence, jurors should consider all the evidence, regardless of who produced it. If the weight of the evidence is equally balanced, or if a juror is unable to determine which side of an issue had the preponderance, the party who had the burden of proof has not established such issue by a preponderance of the evidence.
What is Evidence?
The evidence a juror should consider includes:
1. Testimony from witnesses on the witness stand.
2. Exhibits which the Judge admits in evidence and which will accompany the jurors in their deliberations.
3. Transcribed or recorded deposition testimony which the jurors hear and/or see in the Courtroom.
Jurors may consider direct evidence, circumstantial evidence, or both. Direct evidence is a witness’s testimony about an event he or she observed and Exhibits which were part of that event or given to the jury to consider. Circumstantial evidence uses direct evidence to infer or imply some other fact or conclusion. For example, if a witness testifies that he looked out a window and saw the ground was wet, you may reasonably infer that it had rained or you may conclude from other evidence that something else caused the ground to be wet. You may not solely rely on one inference to form another inference, because a reasonable inference must have some basis in direct evidence. However, a juror may draw more than one reasonable inference from the same facts or circumstances and may draw a reasonable inference from a combination of direct evidence and another inference.
Evidence does not include any attorney’s opening statements and closing arguments. Attorney’s opening statements and closing arguments may assist the jurors by explaining what the lawyers claim they will show or what they claim they have shown, but lawyer’s statements are not evidence. Evidence does not include a lawyer’s statement or question unless a witness agrees with it or uses it as part of an answer. In other words, attorneys are not witnessing, so answers to questions are evidence, but the questions are not.
When a lawyer objects to a question the lawyer is asking the Judge to decide whether the law permits the jury to consider and answer to that question. If the Judge sustains the objection, the Judge rules that the law does not permit that question, so the jury should disregard it. Similarly, if the Judge strikes anyone’s statement or answer or instructs the jury to disregard it, then that statement or answer is not evidence and the jury must not consider it. Jurors should not guess if something a lawyer says or suggests in a question is true or what a witness would have answered.
On the other hand, if the Judge overrules the objections, the Judge rules that the witness may answer, and the jury may give that answer whatever weight the jurors decide is appropriate. Jurors should not try to guess why a Judge sustained or overruled any objection to any questions. The Judge must follow legal rules regarding permissible evidence and may not have an opportunity to explain those rulings.
What is Evidence Excludes?
The evidence does not include the pleadings, or any statement of counsel made during the trial, unless such statement was an admission or agreement admitting certain facts. The opening statements and closing arguments of counsel are designed to assist the jury. They are not evidence.
Statements and answers ordered stricken or to which the Court sustained an objection or which the jury were instructed to disregard are not evidence and must be treated as though the jury never heard them.
Jurors must not guess on why the Court sustained an objection to any question or what the answer to such question may have been. Jurors must not consider as evidence any suggestion included in the question that was not answered.
Explain Insurance in Evidence
There’s a common concern among jurors as to the existence or non-existence of insurance. Some jurors may wish to know whether a party had insurance that paid the medical bills or whether the injured party had to pay those bills “out of their own pocket”. Some jurors may wish to know if the liable party had insurance that will pay any verdict that may be awarded or whether the liable party will have to pay such an award “out of their own pocket”.
Jurors are not to consider or discuss the issue of whether any party has or had any kind of insurance. Jurors are to decide the issue of a case based upon the evidence presented to them, not upon any considerations concerning insurance. Any presumption that a party to the litigation has or does not have insurance is, first, not relevant, and secondly, may be wrong.
Jurors are to resolve all issues presented to them based solely on the evidence that is admitted during the trial and the law that the Court provides. In no event may a jury add to or subtract from any award based upon whether any party to the lawsuit has or does not have insurance.
What is an Expert Witness?
Normally, a witness may not express an opinion. However, one who follows a profession or special line of work may express an opinion because of his/her education, knowledge, and experience. Such testimony is admitted for whatever assistance it may provide the jury.
As with other witnesses, the jury has the duty of deciding what weight to give to the opinion testimony of any expert. In deciding the weight to be given to the opinions of an expert, the jury is to consider the expert’s skill, experience, knowledge, truthfulness, candor, familiarity with the facts of the case, and the usual rules for testing the credibility of witnesses.
Questions may have been asked of an expert witness after the expert had received and reviewed some of the underlying evidence of the case prior to testifying. It is up to the jury to decide if the facts or data upon which the expert based his/her opinion is true, and the effect of errors, if any, in the material reviewed prior to testifying. If the data relied on had relatively minor or unimportant errors, the effect on the weight should be relatively minor. If the data relied upon had significant or major errors, the effect on weight should be significant. Considering these matters and the usual tests of credibility, you will decide the weight to be given such opinion testimony. It is up to the jury to evaluate all the evidence and give it what weight it deems appropriate.
Questions may be asked of an expert witness which the expert is permitted to assume that certain facts were true, and to give an expert opinion based upon one or more assumptions of fact. This is called a hypothetical question.
When the jury considers the answers and opinions to hypothetical questions, the jury must decide whether the assumed facts on which the expert based his/her opinion are true. If an assumed fact was not established by the greater weight of the evidence, the jury must decide how, if at all, that failure of proof affects the weight or value of the expert’s opinion. In doing so, the jury needs to decide how important the unproven fact was to the expert’s opinion. If the jury finds that the assumed but unproven fact was relatively minor or insignificant as a basis for the expert opinion, the effect on the weight or value of the opinion should likewise be relatively minor. On the other hand, if the jury decides that the assumed but unproven fact was major or significant as a basis for the expert opinion, the effect on the weight or value of the opinion should likewise be major or significant.
For example, a relatively minor difference in the facts might be the number of physical therapy sessions or the exact date of a hospital admission, while a major difference in the facts might be an undisclosed prior surgery in the same area of the body. It is up to the jury to evaluate all the evidence and give it what weight it deems appropriate.
What is Believability?
The jury is the judge of the facts, the believability of the witnesses, and the weight of the evidence. In determining the greater weight of the evidence, the jury must consider the believability of the witnesses. The jury will use the test of truthfulness which they use in their daily lives.
The truthfulness tests include the appearance of each witness on the witness stand; his or her manner of testifying; the reasonableness of the testimony; the opportunity the witness had to see, hear, or know the things concerning which they testified; the witness’s accuracy of memory; frankness or lack of it; intelligence, interest and bias, if any; together with all the facts and circumstances surrounding the testimony. Using these tests, the jury assigns to each witness’s testimony such weight as it believes proper.
Any juror is not required to believe the testimony of any witness simply because the witness was under oath. Any juror may believe or disbelieve all or any part of the testimony of any witnesses. It is the duty of the individual jurors to determine what testimony to believe and what testimony not to believe.
What is the Term Custom and Usage?
Since the activity of the liable party may involve a matter not within common knowledge, evidence may be introduced as to what the liable party and others customarily do under the circumstances. Evidence of customary methods of others similarly situated is not a test of negligence. A juror may consider the degree to which such methods have been customarily used and accepted and if the liable party had knowledge of them. If there is a commonly accepted custom or usage which the liable party knew or should have known, a juror may consider this along with all other facts and circumstances in the case in deciding whether ordinary care was used.
What is an Eggshell Plaintiff
In Ohio, as far as damages are concerned, a liable party who negligently inflicts injury upon another, takes the injured party as he finds them and is liable for the actual injury and damage suffered directly from the liable party’s negligence.
If a juror finds that an injured party had a predisposition which made them more susceptible to injury, nevertheless, a negligent wrongdoer is liable for the actual injury and the actual lack of recovery, if any, which the injured party sustained as a result of the liable party’s negligence.
It is no defense that some other person of greater strength or constitution or emotional makeup might have been injured less, or injured differently, or recovered faster or better.
Jurors are to consider all the evidence and make their findings with intelligence and impartiality without bias, sympathy and prejudice, so that both parties feel their case was fairly and impartially tried.
Jurors must not be influenced by any consideration of sympathy or prejudice. Sympathy is a common human experience and the law does not expect a juror to be free from such normal reactions. However, the law requires that jurors disregard sympathy and not permit it to influence their verdict. A juror must treat each party with equal consideration.
It is the duty of each juror to weigh the evidence carefully, to decide all the disputed questions of fact, and to apply the instructions of the judge to their findings and to render a verdict accordingly. In fulfilling their duty as a juror, a juror’s efforts must be to arrive at a fair and just verdict.
What is Duty to Look?
People are required to use ordinary care to discover and avoid danger. A person is negligent if they look but do not see that which would have been seen by a reasonably careful person under the same or similar circumstances. A person is negligent when they do not continue to look if, under the circumstances, a reasonably careful person would have continued to look.
What is Right of Way?
Right of way means the right of a driver of a vehicle to proceed without interruption in a lawful manner in the direction which he/she is moving in preference to another vehicle approaching from a different direction into his/her path. To continue to travel without interruption, the driver must operate his/her vehicle in a lawful manner. If he/she does not do so, he/she loses the right of way. If a driver loses the right of way by not proceeding in a lawful manner, each party then must use ordinary care under the circumstances. The driver of a vehicle who has the right of way has the right to travel without interruption in a lawful manner. The driver has the right to rely upon his right of way, in the absence of contrary knowledge that others may fail to obey the law by not yielding to his right of way, and by entering his path of travel.
The driver of a vehicle who does not have the right of way must permit the other driver to proceed without interruption. Such driver must not move into, or through, any part about to be occupied by the driver with the right of way, if such movement would interrupt or interfere with the progress of the driver with the right of way. The party who does not have the right of way must look at such times and places in a manner that will make his/her looking effective, and he/she must wait and travel at a speed slow enough to stop and avoid entering into the path of the approaching vehicle having the right of way.
If the jury finds that a driver was not traveling in a lawful manner, then he or she did not have or may have lost the right of way and is not entitled to any preference over the other driver. In that event, the parties have equal rights, and each must use ordinary care under the circumstances. If a juror finds that either driver was traveling in a lawful manner, then he or she has the right of way and the other driver is required to yield the right of way to him/her.
When two vehicle approach or enter an intersection from different streets or highways at approximately the same time, the driver of the vehicle on the left shall yield the right of way to the vehicle on the right. A failure to do so is negligence. A driver of a vehicle about to enter a street or highway from any place other than from another roadway must yield the right of way to all traffic lawfully approaching on the roadway before entering or crossing the street or highway. A failure to do so is negligence.