How To Choose The Defendant For An Injury Case

Posted on: 28 July 2021


The idea that you might need to determine who the defendant would be in an injury case can sometimes seem a little odd. After all, a claimant often can point to the person or organization that most directly caused their injuries. However, it's wise to take some time to think about the issue. Here's how a personal injury attorney will decide who ought to be the defendant.

Never Jump to Conclusions

Legal liability is a different thing than direct responsibility. Never assume the most directly responsible person in a case has to be the legally liable party.

There are several legal theories for why someone else may be liable. The most common is vicarious liability. A personal injury lawyer may see a couple of cases involving negligent security, too. Premises liability can point to a less obvious party, also.

Vicarious Liability

For a personal injury attorney, this is the most likely reason to look past a directly responsible person. Vicarious liability usually arises from employment. Suppose a clerk at a local convenience store mopped the floor and forgot to put out a "Wet Floor" sign. You slip on the wet floor and crack several vertebrae in your neck and back.

Who is liable to pay damages? By virtue of vicarious liability, the business is liable. The employee is an extension of the business. That makes the store liable for the workers' negligence when they're on the clock or performing duties on behalf of the business.

Negligent Security

If a business or property owner knows a location has security problems, they have a duty to make it safe for others. Suppose you visit a friend at an apartment building where 6 muggings have happened in the last month.

You are injured in the course of a mugging at the building. Worse, the building's supervisor did nothing to add security in the form of cameras, access systems, or security personnel. According to the theory of negligent security, the building's owner may be liable for the lack of security after repeated attacks occurred.

Premises Liability

This is the general logic for most cases involving busted steps, icy sidewalks, and broken handrails. As is the case with security, a property owner has a duty to protect the public from predictable physical hazards at a location. Even if someone else caused the hazard, such as an incompetent handyman, the owner can't just ignore it once the problem is known. A person injured by a known hazard has the right to pursue a claim against the property's ownership.