In today's blog post, I discuss how you prove your claim as a plaintiff
when you lose your memory due to injuries that you sustained. It happens
more often than you think, particularly when a person suffers traumatic
brain injury in a car or motorcycle accident.
People will often suffer a loss of memory as to how an accident occurs
when they suffer a head injury which may result in a traumatic brain injury.
What do the Court's do with this situation when a person cannot describe
how an accident occurred ? In short, the Plaintiff in this circumstance
has a lower burden of proof.
What is the burden of proof you may ask ? The burden of proof is what a
plaintiff has to sustain to prove a case. Every claim that a party asserts
in a case before the Courts has material elements. In a negligence claim
material elements are a duty to perform or not perform an act that could
reasonably be foreseen to cause a risk or harm to another person, the
plaintiff much show a breach of this duty, the plaintiff must show damages
and that the damages were caused by the breach of this duty. In very simply
terms, the duty and the breach are often times established through the
Plaintiff's testimony. The damages and the causation are normally
proven through medical testimony and records and this is why we almost
always need a doctor to testify in a personal injury case. But what do
we do in a case where the plaintiff suffered a head injury and cannot
remember how the accident occurred ?
Well, the Court's will provide an instruction to a jury that the Plaintiff
has the burden of proving the negligence of a Defendant and that the Defendant's
negligence was a substantial factor in causing the accident or occurrence.
This means that, considering all the evidence in the case, the plaintiff's
claims on these issues must be established by a fair preponderance of
the credible evidence. The credible evidence means that testimony or exhibits
that you find worthy of belief. A preponderance of the evidence means
that greater part of such evidence. This does not mean the greater number
of witnesses or the greater length of time taken by either side. The words
fair preponderance of the credible evidence refers to the quality of the
evidence considering the weight and effect it has on the jury's mind.
The law requires that in order for the Plaintiff to prove his or her claim
on an issue, the evidence that supports his or her claim on that issue
must appeal to the jurors as more nearly representing what happened than
that opposed to his or her claim. If the evidence does not, or it if weighs
so evenly that the jurors are unable to say that there is a preponderance
on either side, the jury must resolve the issue in favor of the Defendant.
In cases where a Plaintiff claims that there is a loss of memory as a result
of injuries he or she sustained in the accident, the Plaintiff has the
burden to prove by clear and convincing evidence that he or she is suffering
from the memory loss caused by the accident. Plaintiff's claim must
be supported by the nature and extent of the injuries to the Plaintiff,
and the jury must be satisfied from the evidence that the Plaintiff's
loss of memory was caused by the accident. If the jury is satisfied that
Plaintiff's memory loss was caused by the accident, the Plaintiff
is not held to as high a degree of proof as a Plaintiff who could describe
what happened. As a result, the jury is permitted greater latitude in
inferring negligence on the part of the Defendant from all of the evidence
in the case. If the jury decides, from all of the evidence, including
any evidence introduced by the Defendant, that it is more probably than
not that the Defendant was negligent and that his or her negligence was
a substantial factor in causing the accident, the jury should find that
the Defendant was at fault.
This instruction is called the "Noseworthy" rule from the case of
Noseworthy v. New York, 298 N.Y. 76. In short, a Plaintiff trying to use this lesser standard
of proof must put medical evidence into the record that his or her memory
loss was caused by the accident. A Plaintiff, while given a break in this
circumstance, still has to set forth prima facie evidence of a defendant's
negligence. What does this mean ? Prima facie evidence means that a Plaintiff
has set forth some direct evidence on each of the four material elements
that I referenced above.
As always, I hope our readers do not have to think about these issues,
unless they are attorneys, and I sincerely hope that no one ever has to
call you the Plaintiff. However, I know this does and will continue to
happen and the Courts will continue to be busy. As a result, I would urge
anyone that thinks they need the services of a trial lawyer to call us
for a free consultation and a free case evaluation at 1.888.900.6204.
We have over 150 combined years of litigation experience and we will fight for you.