August 21, 2019

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Personal Injury Law

“Personal injury law” is a broad term used to describe any legal dispute arising where someone is physically injured by another person. The injury could be caused by the carelessness, or negligence, of the person who causes the injury, where he/she does so through their own breach of the duty to exercise reasonable care for the safety of other people. Others may be held strictly liable for injuries caused by their domestic animals or the maintenance of dangerous conditions.

Common types of Personal Injury Lawsuits include:

  • Motor Vehicle Accident or Vehicular Injury suits
  • Medical Malpractice suits (for injuries caused by a medical provider or hospital)
  • Premises Liability (for injuries caused by a dangerous condition on the Defendant’s property)
  • Products Liability suits (for a defective product or one with a dangerous design)
  • Work-Related Injuries (victim is injured in the course and scope of employment)

The Parties (terminology)

In a personal injury lawsuit, a Plaintiff (the injured person) sues the Defendant (the person at fault) or Defendants (there can be one or more) in a civil court for an award of money (called damages). Most personal injury actions name more than one Defendant. For example, in an automobile accident case, the lawsuit will name the driver and his insurance company (or the Plaintiff’s insurance company, if the driver was uninsured or underinsured). In a medical malpractice case, the lawsuit may name a nurse who did something wrong, the doctors who supervised her, the hospital, and all of their respective insurance companies, as Defendants.

The Court

Personal injury law is almost entirely a matter of state law, although there are some federal statutes addressed to it, like the Federal Tort Claims Act. The great mass of personal injury litigation is filed in a state civil court. However, they may be filed in the Federal District Court where multiple defendants reside in different states AND damages exceed the jurisdictional amount of $75,000. Cases originally filed in state court may also be removed by any one of the Defendants to Federal District Court under the same circumstances. Personal injury suits are filed in a court in the location where the accident occurred or where the Defendant resides.

Causes of Action


“Negligence” is the most common legal cause of action or grounds for the civil lawsuit filed in a personal injury case, and it requires that a defendant have caused injury, or “damage,” to the plaintiff by breaching a duty of care owed to the plaintiff. The four elements of duty, breach, causation, and damage must all be present in order for a Plaintiff to acquire the right to recover any money from the Defendant.

The duty of care owed by a Defendant in negligence is the duty to exercise reasonable care. Reasonable care is usually defined as that degree of care that a reasonable person of the Defendant’s age and experience would exercise under the circumstances that were known by the Defendant at the time of the accident.

  • If the Defendant breaches a duty to exercise reasonable care, but the plaintiff is not injured by it, then the plaintiff’s lawsuit against the Defendant will be dismissed by a personal injury court judge.
  • For example, where the Defendant comes driving down the wrong side of the road toward the Plaintiff, who manages to swerve out of the way and suffers no harm, he has no viable civil lawsuit against the Defendant.
  • If the plaintiff was injured, but the defendant owed no legal duty of care to the plaintiff, he cannot maintain a private lawsuit against the Defendant.
  • For example, with minor exceptions, a person owes no duty to make his private property safe for trespassers, so where an adult plaintiff trespasses on the defendant’s private property, trips and breaks his ankle, the defendant will not be held accountable.

Strict Liability

Another, less common, cause of action is Strict Liability. As the name suggests, the Defendant may be held strictly liable, meaning that the Plaintiff need not prove that he breached a duty of care in causing injuries, under certain circumstances. This cause of action is most often used in certain products liability cases, or in cases where the Defendant is maintaining an unreasonably dangerous condition or engaging in abnormally dangerous activity, although it is also used with certain domestic animals, and the law makes that Defendant an insurer of others’ safety.

Examples would include:

  • a law that makes a dog owner strictly liable for personal injury caused by his dog’s bite
  • the common-law imposition of strict liability for carrying explosives on a public way.

The Statute of Limitations

A statute of limitations requires that personal injury suits must be filed within a certain period of time from the date when the injury occurred. In most cases, the limitations period is one year, but there are exceptions. For example, statutes regulating automobile injury lawsuits may extend the limitations period to two or even three years, in order to allow adequate time for the parties to settle the suit. In addition, the limitations period may be tolled (the time does not run), in various situations, including these:

  • Where the Plaintiff is a minor, the limitations period may be tolled until he reaches the age of majority;
  • Where the Plaintiff is incarcerated, hospitalized, or institutionalized, the period may be tolled until release;
  • Where the Plaintiff is incapacitated from making decisions, the period may be tolled until he regains his mental capacity;
  • In medical malpractice cases, the statute may be tolled until the Plaintiff changes medical providers.
  • The limitations period may not begin to run until a latent, or non-obvious, injury is discovered.
  • Defenses

Traditional defenses that could partially or completely preclude the Plaintiff from any recovery include contributory negligence (where the Plaintiff contributed in any part to his own injury), assumption of the risk (where a Plaintiff stepped into a situation realizing that it was dangerous), and intervening/superseding cause (where some other cause from a third party contributed to the Plaintiff’s injury).

However, the modern rule, adopted by most states, is one of comparative fault, also called apportionment of fault, under which the judge or jury determines, or apportions, all of the actors’ relative percentages of fault in causing Plaintiff’s injury, and allows the Plaintiff to recover from each Defendant only the portion of his damages that were caused by that Defendant.

Items of Damage

Items of damage for which a Plaintiff may seek compensation in a personal injury lawsuit might include any, or all, of the following:

  • Current and Future Medical Expenses arising from the injury
  • Present and Future Pain and Suffering
  • Loss of Consortium (the ability to enjoy married life with one’s spouse)
  • Emotional Distress
  • Actual Lost Wages
  • Future Lost Earnings, calculated with Life Expectancy Tables
  • Attorneys Fees
  • Costs of Litigation, like Court Filing Fees, Court Reporter Fees, etc.
  • Punitive Damages, against a Defendant who acted in reckless or wanton disregard of the Plaintiff’s safety.

Settlement Negotiations and Agreements

Personal injury actions are often settled by agreement between the parties (usually involving monetary compensation). If so, the parties who have agreed will execute a formal settlement agreement in writing. These usually require the Plaintiff to sign a release of his right to sue a settling Defendant. Often, they require the Plaintiff to maintain confidentiality about the terms of the settlement. Settlements can occur either before or after the lawsuit is filed, and some suits are even settled after a jury verdict, where the Defendant has insufficient resources to pay the verdict. Information about settlement negotiations is not admissible in court, and cannot be mentioned in front of a jury.

Pretrial settlement negotiations may be entered into directly by the parties and their attorneys. Other options include mediation, where an unbiased, third-party mediator goes back and forth between the parties, carrying settlement offers and attempting to bring the parties voluntarily closer together by giving a non-binding opinion on the validity of their claims. Parties desiring to avoid a trial can also opt for arbitration, in which both sides submit their best cases to an unbiased, third-party arbitrator, who issues a binding decision which effectively settles all claims.

Insurance and Personal Injury

Liability insurance often limits the amount that the Defendant has to pay from his own personal assets in many personal injury suits, but the Defendant remains personally liable for any deficit – an amount owed and not covered by his insurance. A jury is rarely allowed to hear evidence that a Defendant has insurance. The presumption being that the jurors might be inclined to award excessive damages in light of the assumed insurance coverage. The courts restrict anyone from mentioning insurance coverage issues in the presence of the jury. A judge could declare a mistrial, meaning that the trial ends incomplete and another one must be conducted all over again.

Where insurance is involved, the insurance company has a duty to defend its insured, and it will typically provide a defense attorney for the Defendant. Some common types of personal injury insurance include:

  • Automobile Insurance, which may pay for both the Plaintiff’s personal injury damages and also his/her property damage in a car crash;
  • Property owners insurance may pay damages in Premises Liability cases, such as slip and fall cases caused by food or water left on the floor of a place of public accommodation;
  • Medical malpractice insurance may pay damages where a Plaintiff is injured by medical treatment.

However, if the insurance company settles early-on, up to its full policy limits, it will not provide a legal defense if the Plaintiff sues the Defendant to recover any additional damages he/she incurred. A Plaintiff rarely chooses to do this unless the Defendant is wealthy or is a commercial entity. For example, in products liability cases, where the plaintiff was injured by a product that was either defective or dangerously designed, the plaintiff may seek to have his damages paid directly out of a company’s assets.

Workers Compensation

In the case of Work-Related Injuries, most states have a workers compensation statute, also sometimes called workmans compensation, that usually covers medical expenses and pays fixed damages, like a percentage of regular wages, to an injured employee on a periodic basis, like weekly, bi-weekly, or monthly, without any need for the injured person to prove that his employer was at fault. In return for these assured payments, the employee accepts limitations on his right to sue. Typically, an employee can only sue under such schemes if he can prove that an agent of his employer acted willfully or recklessly to injure him, and he often foregoes any ability to request punitive damages.

Contingency Fee Agreements (FREE legal representation for most plaintiffs (victims)

Most personal injury lawyers do not require an injured person to pay money in advance, instead the lawyer takes their fee through a contingency fee contract that awards them some percentage (typically, anywhere from 30 to 40%) of the amount they win for the Plaintiff, and charging their costs, as well, against amounts paid to the Plaintiff from the Defendants or their insurers. A personal injury victim (plaintiff) benefits greatly from consulting a personal injury attorney in this complex area of law. Statistically, victims who settle their claims without hiring an attorney receive significantly lower damage awards than plaintiffs even after all the lawyer fees are deducted from the final payout. Hiring a lawyer will usually immediately double or even triple the initial settlement offers from the defendant (or their insurer). For a plaintiff willing to go to trial, the gain can be millions against a defendant or their insurance company.