Burden of Proof

If you are considering filing a claim for personal injury you should be familiar with a legal concept known as the burden of proof. The burden of proof is the threshold that a party seeking to prove a fact in court must reach in order to have that fact legally established. Parties to a claim prove facts in court by presenting evidence, such as witness evidence and documents like medical records and expense receipts. There are different burdens of proof (sometimes called “standards of proof”) for different types of cases.

Most people are familiar with the burden of proof applied in criminal cases. In a criminal case, the prosecution must prove the defendant’s guilt beyond a reasonable doubt, in other words, the prosecutor must establish that there is no reasonable conclusion to reach other than that the defendant is guilty of the crime charged. This burden of proof is very high. Fortunately for injured people, it does not apply in personal injury claims.

The burden of proof applied to most civil cases, including personal injury claims, is much lower and is not as challenging to satisfy. In a personal injury claim, the plaintiff (or his or her lawyer) must prove his or her case by a preponderance of the evidence. Proving a proposition by a preponderance of the evidence requires demonstrating that the proposition is more likely true than not true. If you bring a personal injury claim, you or your lawyer must prove that the events in your version of the case “more likely than not” occurred the way you claim they did.

Most personal injury claims involve the legal concept known as negligence. In order to win a personal injury claim, you must establish each of the four elements of negligence by a preponderance of the evidence. There are four elements of negligence; that the defendant owed you (the plaintiff) a duty; that the defendant breached that duty; that the breach caused your injuries and any other losses; and that money damages will compensate you for your injuries and any other losses. If you cannot prove that each of the following elements more likely occurred, you cannot win your personal injury claim in court. 

Duty of Care

Generally, you must first prove that the defendant owed you a duty to exercise reasonable care and caution with respect to your personal safety. Typically, the duty of care is obvious and it is not difficult to establish that a duty of care existed by a preponderance of the evidence. For example, there is little question that anyone who operates a motor vehicle must do so with caution in order to ensure the safety of others on the road. Similarly, property owners are generally understood to have a duty to keep visitors to their property safe and free from unreasonable harm. 

Breach of Duty

You must next prove that the defendant breached the duty of care. Generally, this means that you must prove by a preponderance of the evidence that the defendant failed to act the way a reasonably careful person or entity would have acted in the same situation. Sometimes, it is very easy to prove that a defendant breached the duty of care. For example, someone who drives drunk and causes a car accident has obviously breached his or her duty to operate his or her vehicle safely and keep other people on the road free from unreasonable harm.

In other cases, it may be much more difficult to prove that the defendant breached the duty of care by a preponderance of the evidence. For example, expert witnesses in a personal injury case arising from a slip-and-fall accident in a grocery store may disagree about whether or not a reasonable store employee would have been able to identify the slick surface that caused the fall and clean it up in enough time to prevent the accident. But remember, the preponderance of the evidence standard is relatively low and you can present other evidence, such as eyewitness evidence and photographs of the accident scene. In this scenario, you would only need to prove that a reasonable person would have more likely than not been able to identify the slick surface in the store and clean it up in time to prevent your accident. 


Next, you must prove that the defendant’s breach of duty was the legal cause (or at least a partial cause) of your injury. That is, you must prove that but for the defendant’s conduct, your injuries would not have occurred. In many cases, causation is obvious. If the defendant drove over your foot in a parking lot and you suffered broken bones, then it is clear that but for the defendant’s careless driving, you would still have a healthy foot. In other cases, it may be more difficult to prove causation. For example, if you have a preexisting back problem, you may have a more difficult time that being rear-ended by the defendant’s vehicle caused your current back pain. 


Finally, you must prove that you suffered injuries or other losses that can be remedied by money damages. Generally, proof of injury is made through photographic and demonstrative evidence, medical records, and evidence of your medical providers. The amount of money damages that you seek must also be supported by evidence. Examples of evidence that might support the amount of money damages you seek include medical treatment records, medical bills, and payroll information from your employer to establish lost income. You may also testify about the pain and suffering you experienced after your accident or an overall reduction in the quality of your life.

Sue Chauhan

New Claims Team Leader

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