I Was Injured. Can I File A Lawsuit Against The Party That Caused My Injury?

In general, when a person is injured as a result of another person's negligence, the injured party may pursue a claim against the party or parties that caused the injuries. You are entitled to compensation for your injuries if it is found that a defendant was negligent and that such negligence was a cause of your injury. Any personal injury case depends on liability, damages, and whether or not you can collect from the negligent party or parties. Hawaii has adopted the doctrine of modified comparative negligence. Under this doctrine, a claimant's action is barred if his negligence exceeds the combined negligence of all defendants. Otherwise, the claimant's recovery is diminished in proportion to his degree of negligence.

Personal injury law attempts to cover all areas and types of injuries suffered by individuals. Some of the most common areas are automobile accidents, premise liability, medical malpractice, and product liability, among others. Whether or not you are entitled to compensation may depend on the type of accident that caused the injury.

AUTOMOBILE ACCIDENTS

In Hawaii, the law provides for what is commonly referred to as no­fault law regarding automobile liability. This means that your motor vehicle insurance company will pay the bills for your injuries and your passenger's injuries up to the policy limits regardless of who was at fault for the accident. You are required to have a minimum of $10,000 personal injury protection (PIP) coverage for paying medical and rehabilitative costs. (This does not apply to motorcycles, however). Beginning in January of 1998, Hawaii does not require motor vehicle owners to purchase wage loss coverage, although it is optional under an income disability plan. No­fault coverage does not include property damage, so the driver at fault in the accident is responsible for your property damage under their liability insurance policy.

Hawaii's no fault law also means that people who are injured in motor vehicle accidents generally cannot sue the driver at fault for their damages such as pain and suffering, mental anguish, loss of enjoyment of life, wage loss in excess of that paid by no­fault and various other losses caused by the accident. There are, however, a few important exceptions to the no fault rule. For accidents occurring after January 1, 1998, people injured in motor vehicle accidents may be able to sue the driver who caused the accident, if: (1) the injured person accumulates $5,000 in medical or rehabilitative bills; (2) the accident results in scarring, disfigurement or other permanent loss of use of a body part or function; (3) the driver who caused the accident was involved in reckless or punitive conduct like driving under the influence; (4) the accident resulted in death; or (5) the no­fault benefits are exhausted.

Liability insurance coverage is also mandatory in Hawaii. The other driver's insurance company is the liability carrier and will pay you, as a victim of the other driver's negligence, for your out of pocket damages for bodily injury and property damage. The mandatory minimum liability coverage in Hawaii is $20,000 per person and $40,000 per accident bodily injury liability, and $10,000 property damage liability. If you are in an automobile accident with an uninsured driver who is at fault or a driver who does not have enough insurance to cover your damages, the uninsured or underinsured motorist provisions of your own policy will apply if you have purchased such coverage.

Liability claims are usually the subject of negotiation between your lawyer and the liability insurer for the negligent party. Lawsuits are generally filed when negotiations fail. If you file a lawsuit against a negligent driver, your attorney will need to prove that the other party was negligent and that the other party's negligence caused injuries that resulted in compensable damages.

PREMISE LIABILITY

If you were injured at someone else's home or at a commercial establishment, the person responsible for the premises may be found liable. This can cover a variety of situations including slip and falls, dog bites, assaults, among others. Unlike many states, in Hawaii the duty of a landowner to the injured person does not vary depending on the status of the person at the time of the injury. In other words, the same standard of care applies with respect to a business invitee, a licensee (social guest), or a trespasser.

It is the duty of an owner to exercise reasonable care in the maintenance of the premises and to warn a visitor of any dangerous conditions that are known, or should be known to him, if the conditions are not likely to be perceived by the visitor. The owner or operator of the property must have notice of the defect or circumstances that caused your injury prior to the injury having occurred. The notice can either be actual notice or implied notice, meaning the owner knew or should have known of the dangerous condition given all of the surrounding facts and circumstances. The person liable for your damages is the party in control of the property. That party is responsible for the care, maintenance and inspection of the property. For example, an owner may not be the responsible party if he or she has leased the property to another party who actually has control over the premises.

Before the law will permit liability to be imposed on a possessor of land, the plaintiff must prove the following, 1) the premises must have an unreasonable risk of harm; 2) the possessor of the land must have failed to take reasonable steps to eliminate that harm; 3) warnings of the condition must be absent and the condition must not be open and obvious; and 4) the possessor of land must have actual or constructive notice of the condition.

PRODUCT LIABILITY

Product Liability deals with recoveries for personal injury or property damage resulting from the use of a product. An action can be based on negligence, breach of implied or express warranty, or strict liability. A lawsuit can be brought against anyone participating in the chain of manufacture for that product, from the manufacturer, to the designer to the retail store. When a company designs and manufactures a product, they have a responsibility to ensure that anyone exercising reasonable care within the expected parameters of usage expected for the product will not be injured. Under the newest theory of strict liability, you do not have to prove the manufacturer or designer was negligent. You only have to prove that the product was defective due to faulty design, error in manufacturing, or that the manufacturer did not provide sufficient warning of potential risks or failed to provide adequate instructions. Be aware that there are limits to product liability law such as when the product is too old or the consumer was careless in using the product.

MEDICAL MALPRACTICE

When a health care provider causes injury due to his or her failure to meet the accepted standards of care for that particular field of expertise, you may have a claim for medical malpractice. A claim can be brought against physicians, dentists, nurses, therapists, hospitals, clinics, and pharmacists among others. Some examples of medical malpractice include incorrect diagnosis, failure to treat, improper treatment, delay in treatment, prescription errors, surgical errors, rendition of services without informed consent, etc. Medical malpractice claims are some of the most difficult to prevail in and are quite costly due to the need for qualified expert review and testimony.

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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