Elements of a Personal Injury Claim
A personal injury claim may arise when you are injured, either physically or in some cases emotionally, by the negligence or the intentional act of another. Personal injuries are also referred to as "torts." Tort law is a branch of civil law. When a person has suffered a personal injury through the negligence of another person or company, they are generally entitled to recover monetary damages for their pain and suffering, medical expenses, lost wages and other economic losses. In certain limited circumstances, the person suffering the injury can also recover punitive damages.
In order to prove a personal injury claim, a plaintiff (the injured party) must establish the following in order to recover against the defendant (the at-fault party).
Duty. Personal injury claims arise from a duty of care owed to another. For example, all of us owe a duty of reasonable care to others as we drive a motor vehicle. The intended beneficiaries of this duty are all the other drivers, pedestrians or cyclists using the road. Property owners owe a duty to keep their premises safe. Business proprietors owe a duty to sell safe products. Professionals, such as doctors, owe a standard of care set by their profession.
Breach. In order to prove your claim, you must show that you were injured by another's failure to exercise ordinary care to you. In other words, the other person or company must be negligent.
Causation. Next, you must show that the breach of care was actually the immediate cause of your harm.
Damages. Finally, you must have been injured as a result of this breach of care. Generally, you must have suffered a physical injury, but in certain circumstances, an emotional injury is sufficient to allow a recovery of damages against the responsible party.
The burden of proving the personal injury claim falls on the plaintiff. Injury law provides a means to redress the wrong, but does not guarantee recovery. In order to recover, the plaintiff must prove each and every element of his or her claim.
Types of Personal Injury Claims
Your personal injury claim may fall into different categories based upon the type of accident involved.
Motor vehicle accidents: A common area of personal injury involves a car accident with an at fault driver. Typically, a claim for personal injuries (and property damage as well) arises when two cars collide and one driver is at fault for the accident. Claims are usually made against the at fault driver's liability insurance carrier. If the at fault driver does not have insurance or if the accident is caused by a hit and run driver, then a claim is made against your own uninsured motorist coverage provided you elected that as part of your automobile insurance coverage.
Premises Liability/Slip & Fall Accidents: A premises liability case arises when you are injured on another's property. Slip and fall accidents may happen while shopping at a store that had a wet spot on a slick tile floor; while walking up steps to a business that had a faulty handrail; or even while falling into a covered hole on a friend's property. The case law in premises liability cases, however, often puts a burden on the plaintiff to watch where he or she is going and not to walk through an open and obvious hazard. In these cases, the specific facts tend to determine the outcome.
Work related accidents: When you are injured on the job, you are typically covered by worker's compensation insurance. Worker's compensation is no-fault liability coverage. This means the worker merely has to prove the injury occurred on the job; and does not have to show the employer was negligent. Workers compensation benefits may also be available when a worker is not formally working, but is "on call."
Medical Malpractice: You have a medical malpractice claim when you have been injured by the professional negligence of a doctor or other healthcare provider. To prove a medical malpractice case you must have expert testimony of another doctor who practices in the same specialty. That expert witness must swear that the defendant doctor breached the standard of professional care common to that practice area. Tort reform legislation enacted in 2005 has greatly increased the burden on plaintiffs in filing these cases, and has reduced the plaintiff's ability to recover by capping pain and suffering damages.
Animal Attacks: Vicious dogs and other pets will sometimes bite others causing very serious injuries. Where the owner of the dog or pet does not keep the pet on a leash and the county has a leash law requirement, the owner may be liable for your injuries if they occurred as a result of the loose dog or pet. Also, if the owner knows the dog or other animal has a propensity to bite and does nothing to fence in the animal or keep it on a leash, then the owner may be liable for your injuries.
Wrongful Death: Wrongful death is a legal claim against a third party who may be held responsible for the death of an innocent party. The claim is often brought by close relatives, in a civil action against the third party who may be responsible as specified by statute. The victims survivors are often entitled to monetary damages as a result of the improper conduct. The Haley Legal Team will diligently review all details of your wrongful death claim in order to maximize your potential monetary recovery.
The damages recoverable in a personal injury action include all medical expenses and future medical expenses; pain and suffering and future pain and suffering; lost wages and future lost wages; and in some cases loss of consortium. Damages are paid in a lump sum at the end of the case either through settlement or jury verdict. Once the final amount is determined, you cannot seek additional amounts in the future for the same claim.
Medical Expenses: Medical expenses are based on actual medical bills incurred. Future medical expenses are based on testimony regarding the likely cost of long term care. Even if your own health care insurance has paid for your medical bills, you are entitled to be compensated for the full amount as if you had paid them yourself. However, your medical insurer may under certain circumstances seek reimbursement from you.
Pain and suffering: Pain and suffering is an intangible number meant to compensate you for your actual pain and suffering as a result of the injury. Future pain and suffering takes into account how long your condition will continue and its affect on your daily life.
Lost wages: When you are out of work due to an injury, you are entitled to be compensated for your lost wages. Even if you were compensated through sick leave or vacation leave, you are entitled to be compensated for that loss the same as if you were not paid. You are also entitled to be compensated for future lost wages, particularly when you are unable to return to the same type of work or to work at all.
Loss of consortium: If you were married at the time of the accident, then your spouse has a claim for his or her loss of consortium. This is an intangible amount based on your spouse's loss of marital help and affection during this period of injury. Children do not have claim for loss of consortium of a parent's affection.
Punitive Damages: Occasionally, the defendant's conduct will be so reckless and wanton that the jury is entitled to award damages to punish the defendant for his or her bad conduct. When a drunk driver injures you, then you usually have a claim for punitive damages. The standard for proving punitive damages is clear and convincing evidence.
Legal Representation is Critical
Because liability insurance carriers provide a legal defense to their insured, you will need legal representation to pursue a personal injury claim.
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