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Accidents are part of life.  As the expression goes, accidents happen.  Not everything that goes wrong in life gives rise to a lawsuit.  But many do.  How can you tell the difference?  It is easy, once you know the basics.


Negligence has four elements:  Duty, breach of duty, causation and damages.  The "duty" aspect is a legal issue - does the law assign someone a duty?  Some people have immunity granted by law.  Some people are just not liable.  Some people have a duty but were properly doing their duty when an accident took place.  And some people breached the duty given them by law but it was not the cause of the damage.  And finally, sometimes there is duty and breach of duty and causation, but no damages.  So, if you are missing any of these elements, you may not have a case.  Let's discuss some examples.

Car Accidents...

Let's pick an easy example:  Someone drives drunk.  There, the law imposed a duty on the driver -- to not operate a vehicle while under the influence.  And he breached that duty.  But what if the drunk driver was driving fine and only got into an accident because someone else hit him and pushed his car into a third car?  There you have breach of duty but no causation.  No case against the drunk driver for negligence.

Slip and Fall...

Let's say someone is over a friend's house, spills water on the floor and then, before the friend knows anything happened, he slips and falls in the mess he made and breaks his arm.  The law on slip and fall is complex and it distinguishes between "invitees" and "licensees."  But regardless, a premises owner can only be liable for what he knew or reasonable should have known.  There may be no duty in this case, for the landowner to clean up that mess.  He didn't have a reasonable chance to do it yet. The mere fact of falling does not equal a big payout.  

Dog bite...

While walking home, you take a shortcut through a neighbors yard, not realizing that his dog is there.  The dog jumps on you and knocks you down and you break your wrist in the fall!  That is not a case - the dog owner had no duty to keep his dog from attacking a trespasser...

Defamation of Character...

An employee steals from an employer.  While seeking another job, the employee includes this prior employer on his lift of references and the prospective employer calls the old boss and asks "should I hire this guy?"  The old employer says "he stole from me when he worked for me - that is why I fired him."   He doesn't get the job.  Is this a lawsuit?  It is not - truth is a complete defense to defamation of character, also known as slander.  This is a close relative to libel - the difference is that slander is spoken and libel is spoken.

Or, also in the libel/slander area, people frequently ask me if they can sue someone for saying all kinds of bad things about them.  They usually can not point to a way in which they lost money from the bad things said.  That is a key element.  No loss?  No case.


And a word about Contingency Fees

A contingent fee is a fee that depends on something.  In the context of hiring a lawyer, it means that the lawyer charges a percentage of money he recovers for you. These arrangements are popular because often, the client does not have money to hire a lawyer.  With a contingent fee agreement, all he has to do it sign away his right.  In Michigan, 1/3 is a common fee for injury cases but it is also the maximum allowed by law.   The thing to understand about contingent fees is that lawyers generally only enter into them when payment is certain.  The only risk the lawyer assumes is that your case has value and that he will do a good job handling it. But at the end, the is usually an insurance company or other well-heeled entity writing a check.  Therefore, you will not likely find a lawyer to sue your brother in law for the $5,000.00 he owes you.  The reason is that even though you are right, if your brother in law has no money, the attorney will quickly recognize the unlikelihood that he will ever get paid for his efforts.

Another important thing to realize about contingent fees is that they are often the most expensive way to go.  Take the example you may see on TV - someone is in an accident and then gets a $1 million settlement.  Those are uncommon but it is a good example.  The attorney gets 1/3, or $333,333.33.  The average attorney hourly rate in this part of Michigan is $300.00.  And we all know there are 40 working hours in a week.  If it takes 333 attorney hours to achieve this settlement, that is still $1,000.00/hour.  And most cases take much less time than that.  The point is that is someone has money, it is often much cheaper to pay an attorney by the hour than on a percentage.  But, there is some value in his accepting the risk of loss - if the jury comes back with $0, you don't owe a fee if the agreement is contingent. 

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