Wheels squeal in disagreement as the brakes are applied suddenly, too late to prevent the crunch of metal on metal. A young man goes head over handlebars as a distracted driver fails to see a bicyclist and turns right at a controlled intersection. Incidents like these do not always lend themselves to documenting how the incident occurred and what the conditions were like at the time, yet these factors can make or break a personal injury case, impacting both liability and the quantum of damages.
In a motor vehicle accident case where a known injury occurs, it is very likely the Virginia State Police or local sheriff's office will conduct an investigation and create a report. The report is typically three to four pages long, longer if there are more than two parties involved, and includes bubble options for the conditions and circumstances of the incident. The bubbles correspond to different codes on the bottom key of each page, allowing for a quick decipher of the facts law enforcement needs to know: driver distractions, drugs or alcohol, driver error, conditions of the roadway, and many more. What it does not do is create a vivid picture of the accident scene for a fact-finder or claims adjuster to decipher. The final page of the report has a brief diagram, often stick figure cars and arrows representing the intended direction of travel, point of impact, and final resting spot of each vehicle. Again, not very descriptive.
Thus, it is important for the injured party to assist his own interests and document to the best of his abilities. This is not always possible, as the seriously injured will need immediate medical attention and should be more concerned with their own well-being than a potential claim. However, I encourage an injured person to communicate to a family member or friend as soon as possible after an injury and to send them to the scene to take pictures.
If the documentation cannot be done as soon as possible, every effort should be made to recreate the conditions at the time of the incident. That first heavy rain after a dry week, twilight where it's not quite dark enough for headlights to be helpful, that special darkness when there is no moon...all of these things are vivid and descriptive, and none will ever appear on a police report. I encourage all drivers to keep that blast from the past, a disposable camera, in their vehicles for just such an occasion. If the vehicle is going to be towed from the scene, contacting the towing company operator and requesting their assistance via pictures or a brief statement can be an invaluable resource as well.
For the slip and fall, trip and fall, and dangerous premises cases, documentation is not just helpful, it is practically required as a matter of law. In Virginia, the burden of proof is on the injured party, the plaintiff, to prove notice in premises liability cases. Notice can be established a number of ways, but businesses, building operators, and construction companies are also aware that the law favors them and thus they are less inclined to create reports when an injury occurs. Recent cases in both Virginia state courts and local United States District Courts applying Virginia law have consistently held that the plaintiff cannot survive a motion for summary judgment unless notice is properly plead and proven in their prima facie case.
Early recognition and documentation is the key to proving notice. Demanding that the party responsible for the premises creates an incident report, taking pictures, and getting contact information for reliable witness who saw the incident are all invaluable in assisting a Virginia personal injury attorney in proving notice. While a Virginia car accident attorney is trained to find evidence, dig through the information, and introduce it to the fact-finder, the injured person can greatly assist the attorney in documenting the scene. And that cooperative partnership at the very onset of the case will lead to a successful attorney-client relationship and, likely, a more positive outcome.
