Personal Injury Law

Most of us have seen ads for personal injury attorneys. Featured on smiling billboards and ubiquitous TV commercials, personal injury lawyers tend to be highly visible. From car accidents to slip and falls, personal injury cases occur every day in America.

Personal injury is the legal avenue for injured parties to pursue compensation for their losses. An injured party (the plaintiff) files a complaint against the accused (the defendant) seeking compensation for damages.

Personal injury cases involve torts (civil wrongs that result in injury or harm), and can divided into three general groups:

  • torts involving negligence; 
  • intentional torts; and
  • strict liability torts.

Plaintiffs in most civil cases must prove their cases by a preponderance of the evidence (i.e. it was more likely than not that the defendant caused the harm or is at fault). This is a considerably lower burden of proof than criminal cases, which require prosecutors to prove guilt beyond a reasonable doubt. 

Torts Involving Negligence

Many personal injury lawsuits involve allegations of negligence. The elements of a typical negligence case are:

  • the defendant owed the plaintiff a duty of care,  to protect the plaintiff against injuries;
  • the defendant failed to act reasonably under a given set of circumstances;
  • that failure actually caused the plaintiff's injury;
  • the resulting damage or injury was foreseeable; and
  • the plaintiff suffered actual harm due to defendant's breaching the duty of care.

Note that negligence cases do not necessarily require that a defendant intended for harm to result. Plaintiffs must prove that a duty of care existed and that the defendant's behavior was not how a reasonable person in the same circumstances would have behaved. Indeed, a defendant failing to exercise reasonable care isn't sufficient. The plaintiff needs to prove that the breach caused them actual injury or harm.

For defendants, a common negligence defense is that no duty of reasonable care existed. Another possible defense is that the plaintiff's own actions led to the resulting harm.

Intentional Torts

Unlike negligence cases, a plaintiff alleging an intentional tort must show that the defendant intended for harm to occur.

Some examples of intentional torts include battery, assault, false imprisonment, trespass, and intentional inflection of emotional distress. While some of these torts may also be prosecuted under criminal law, civil statutes also provide for civil remedies.

A good example is the O.J. Simpson civil case. While Simpson was acquitted in the highly-publicized criminal case, he was liable for civil damages in the subsequent civil trial. 

Strict Liability Torts

There are a few types of torts in which defendants may be held strictly liable if an injury occurs, even if they did not act negligently or intentionally. Strict liability cases usually involve those engaged in highly dangerous activities, such as storing hazardous substances or demolishing buildings. It also includes employers who are held liable for the negligent or wrongful actions of their employees. In some states, dog owners can also be held strictly liable for their pet's actions if their pet injures another person.

Damages

Most personal injury cases seek monetary compensation. Economic damages are meant to cover financial losses such as medical expenses, lost income, etc. Compensation for pain and suffering and the loss of companionship can also be recovered.

In some (often egregious) circumstances, the law may allow for the recovery of punitive damages. Punitive damages are meant to punish a losing party for willful or malicious misconduct. Sometimes called exemplary damages, punitive damages are an added punishment meant to discourage defendants from future wrongdoing.

An experienced personal injury lawyer will help injured parties pursue their legal remedies. They file civil complaints and negotiate with opposing counsel, defendants and/or insurance companies. Indeed, negotiations are often crucial, as many personal injury cases settle before going to trial.

The information on this page is meant to provide a general overview of the law. The laws in your state and/or city may deviate significantly from those described here. If you have specific questions related to your situation you should speak with a local attorney.

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