Personal injury law (also known as tort law) allows an injured person to go to civil court and get a legal remedy (damages) for all losses stemming from an accident or other incident. The purpose of the personal injury system is to allow the injured person to be compensated financially or "made whole" after he or she has suffered harm due to someone else's carelessness or intentional conduct. In this article, we'll cover the basics of personal injury law.
There are a wide variety of different situations where personal injury rules apply:
Many personal injury laws date back to old "common law rules." Common law refers to law made by judges, as opposed to laws made by legislatures or passed in bills and statutes.
When a judge hears and decides a case, his decision on that issue of law becomes binding precedent on all other courts in the state that are "lower" than the deciding judge’s court. These other courts then have to apply what the first judge said, and eventually, all of this binding precedent creates a body of "common law."
Common law can and does differ from state to state, so the rules for personal injury law may not be uniform across the country. Much of the common law has been collected into something called the Restatement of Torts, which is sort of a guidebook that explains what the rules are, and a lot of states draw guidance from this on personal injury matters.
Common law is not the only source of personal injury law. Some legislatures have passed formal legislation or statutory law that touches on personal injury issues. For example, when legislatures passed worker's compensation laws, they essentially took all cases of work-related injuries outside of the realm of personal injury and made workers’ compensation the exclusive remedy for injured workers (in most cases precluding injury-related lawsuits against employers).
Another state law that comes into play in injury cases is the statute of limitations, which sets a limit on the amount of time you have to file an injury-related lawsuit in your state’s civil court system.
No two accidents are exactly the same, so no two personal injury cases will follow the same path. But there are some standard steps that most personal injury cases share, from a big picture standpoint.
Defendant Does Something to Injure Plaintiff. This can be almost any bad act on the part of the defendant, with the exception of contractual breaches, which are handled under a separate body of law known as "contract law."
Plaintiff Determines that Defendant Breached a Legal Duty. The specific legal duty is going to depend on the situation in which the injury occurred. For example, drivers have a duty to operate their vehicles with with the level of care that any reasonable person would exhibit while on the road. Doctors have a duty to provide medical care with a level of competence that a reasonably skilled health care professional would use under similar circumstances. Manufacturers and distributors have a duty not to put defective or unreasonably dangerous products on the market.
Settlement Talks Occur. If it is clear to all involved that the defendant breached a legal duty, then the defendant (or the insurance company representing him or her) may wish to settle outside of court. This would involve making an offer of monetary compensation to the injured person, in exchange for the injured person’s binding promise not to file a lawsuit over the injury.
If a plaintiff agrees to a settlement, the case ends. If not, the plaintiff may go to court and file a personal injury lawsuit over the matter. Settlement negotiations can also continue once the lawsuit is filed, and a settlement can be reached at any time prior to the civil case being handed over the jury for a finding as to the defendant’s liability.
First, you must have suffered an injury to your person or property. Second, you should consider whether your injury was someone else’s fault. It is not always necessary to have a physical injury to bring a personal injury lawsuit. Some personal injury claims could be based on a variety of nonphysical losses and harms. In the case of an assault, for example, you do not need to show that a person’s action caused you actual physical harm, but only that you expected some harm to come to you. You also may have a case if someone has attacked your reputation, invaded your privacy, or inflicted emotional distress upon you.
Every state has certain time limits, called “statutes of limitations,” which govern the amount of time you have to file a personal injury lawsuit. In some states, you may have as little as one year to file a lawsuit arising out of an automobile accident. If you miss the deadline for filing your case, you may lose your legal right to damages for your injury. Consequently, it is important to talk with a lawyer as soon as you suffer or discover an injury.
You should provide a lawyer with any documents that might be relevant to your case. Police reports, for example, contain eyewitness information and details about the conditions surrounding auto accidents, fires, and assaults. Copies of medical reports and bills from doctors and hospitals will help demonstrate the extent and nature of your injuries. Information about the insurer of the person who caused your injury is extremely helpful, as are any photographs you have of the accident scene, your property damage, and your injury. The more information you are able to give your lawyer, the easier it will be for him or her to determine if your claim will be successful. If you haven’t collected any documents at the time of your first meeting, however, don’t worry; your lawyer will be able to obtain them in his investigation of your claim.
It depends on whether the person died as a result of injuries from the accident or from unrelated causes. If a person injured in an accident subsequently dies because of those injuries, that person’s heirs may recover money through a lawsuit known as a wrongful death action. Also, even if a person with a personal injury claim dies from unrelated causes, the personal injury claim survives in most cases and may be brought by the executor or personal representative of the deceased person’s estate.
The critical issue in many personal injury cases is just how a reasonable person” was expected to act in the particular situation that caused the injury. A person is negligent when he or she fails to act like an “ordinary reasonable person” would have acted. The determination of whether a given person has met the “ordinary reasonable person” standard is often a matter that is resolved by a jury after presentation of evidence and argument at trial.