Personal Injury-Admitting Liability

Brien Roche

In any personal injury case you basically have to prove two things.  The first of those two things is liability.  Liability means fault or some substandard behavior.  More often it is simply referred to as negligence.

The second thing that needs to be proved is causation.  That is, you have to prove what did that fault, negligence or substandard behavior cause. 

Frequently causation can be the more difficult thing to prove of the two.

On occasion a defendant may offer to admit liability.  At first blush that offer may seem very generous and attractive.

If you are on the plaintiff’s side of a case, you need to pin down exactly what the defense lawyer means by that.

In other words, is it simply an admission of fault, negligence or substandard behavior?  Or is it an admission of both fault and causation?  Is the defendant prepared to admit not only that they are at fault, are negligent and/or that their conduct was substandard but that conduct on their part then was the sole cause of damage to the plaintiff?  They typically are not going to admit the amount of damages, otherwise there would be no need for a trial.  

Personal Injury-Admitting Liability-Fault and Causation

If they are truly admitting liability i.e., both fault and causation, that is one thing.  If on the other hand, all they are prepared to admit is simply fault, negligence or substandard behavior, then that is a more limited type of admission.  

You may also want to look at the issue of why is the defendant making such an admission.  That is, do they have something to hide?  May there be some more egregious behavior that has been committed that you’re not aware of that might further inflame the jury?  Is there some basis for a punitive damage award that you’re not currently aware of?  Is there some other person that may be liable other than the one that you have currently focused on?  

On the other hand, through an admission of liability, is the defendant then setting the groundwork to attack the plaintiff and to focus the jury on that?  That is, is there a basis for claiming that there is a failure to mitigate damages by the plaintiff?  Is the defendant then going to focus on any overreaching by the plaintiff?

If those are legitimate concerns, then you need to look at the question of why is the defendant prepared to admit liability.  

Admitting Fault at the Last Minute

Sometimes what the defendant will do is admit fault at the last minute after they’ve consistently denied fault. If that occurs then take a look at the case of Lewis v. Lambert, 26 Va. Cir. 109 (1991).  In that case the judge imposed sanctions against defense counsel for that type of conduct.

Some other tactics to consider:

     (1)  Calling the defendant as an adverse witness. Show the defendant the answer denying liability. Then ask the defendant why liability was not admitted sooner. The defendant may well throw his defense counsel under the bus. 

     (2)  In rebuttal, address the evidence of the delay in admitting liability and how that harmed your client.

     (3)  Rather than employing either of the tactics set forth immediately above, it may be more prudent simply to argue to the jury about the necessity for pre-judgment interest. See the blog post on this site dealing with personal injury interest awards.

Other factors to consider where there is an admission of liability are:

• The defendant admitting that they have accepted responsibility or accepted liability for the case is only half of the picture. The full picture is that the defendant must admit liability and accept responsibility for the damages. If they have not done both, then their gesture is only a half gesture. If you make a mistake and break something, then the admission of a mistake is a hollow gesture. It must be followed up by making the victim whole. 
• In addition the timing of an admission of liability may be relevant as to pre-judgment interest.

Pretrial Admission

Under Va. Code § 8.01-418, if a party pleads guilty, pleads nolo, is guilty in absentia or suffers a forfeiture in a prosecution of a criminal case or traffic infraction which arises out of a civil case, then that disposition is admissible in the civil case. That can be very helpful in some cases. See also Virginia Code § 19.2-254.1 which states that tender of payment in a traffic case is deemed to be entry of a guilty plea. 

Call, or contact us for a free consult. Also for more info on liability insurance see the Wikipedia pages. Also see the post on this site dealing with contract issues.