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. Kansas has adopted the doctrine of modified comparative negligence meaning a claimant's action is barred if his negligence is equal to or greater than the combined negligence of all defendants. Otherwise, the claimant's recovery is diminished in proportion to his degree of fault.
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.
In Kansas, the law provides for mandatory nofault automobile liability insurance coverage. 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. Your carrier must pay medical expenses up to $4500 unless you purchased additional coverage. It will pay 85% of your lost earnings up to $900 per month for up to one year; up to $4500 for rehabilitation; up to $25 per day for substitution benefits such as domestic help. If an injured person dies as a result of the accident, disability benefits and substitution benefits are available to survivors and the insurer must pay up to $2000 towards funeral expenses.
Kansas' 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. People injured in motor vehicle accidents may be able to sue the driver who caused the accident if the injured person accumulates $2,000 in medical bills, suffered permanent disfigurement, or a fracture of a weight bearing bone, a compound, comminuted, displaced or compressed fracture, loss of a body member, permanent injury, permanent loss of bodily function, or death.
Liability insurance coverage is also mandatory in Kansas. 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 Kansas is $25,000 per person and $50,000 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.
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.
If you were injured at someone else's home or a commercial establishment, the person or entity responsible for the premises may be found liable. This can cover a variety of situations including slip and falls, dog bites, assaults, among others. 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.
In general, 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. Factors used to determine whether the owner exercised reasonable care in maintaining the property includes (a) the foreseeability of harm to others; (b) the magnitude of the risks of injury to others if the property is kept in its current condition; (c) the benefit to an individual or to society of maintaining the property in its current condition; and (d) the cost and inconvenience of providing adequate protection.
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. When the owner actually created the dangerous condition, then notice is presumed. If a hazard cannot be eliminated, the owner has a duty to warn of the hazards he is aware of or should be aware of.
The duty of a possessor of land to the injured person may vary depending on the status of the person at the time of the injury. Business owners typically have the highest responsibility to those who are invited onto their premises. Homeowners also have a duty to their guests. The standard of care owed to an adult trespasser is less than that owed to a person who has permission to be on the property. The duties are to refrain from willfully, wantonly, or recklessly injuring him. In the case of children who trespass, the owner may be liable if he maintains a condition that causes injury to a child. The owner will be judged on the reasonableness of his conduct under the existing conditions.
Product Liability deals with recoveries for personal injury or property damage resulting from the use of a product. 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. An action can be based on negligence, breach of implied or express warranty, or strict liability.
Under a negligence theory, the claimant must prove the elements of duty, breach of duty, damages, and proximate cause. As for the breach of warranty theory, a warranty is like a promise. An implied warranty exists whether or not you have a written "warranty". An implied warranty of merchantability means that the product sold conforms to the ordinary standards of care and are comparable to similar goods sold under similar circumstances. An implied warranty of fitness for a particular purpose exists when the retailer, distributor, or manufacturer has reason to know the particular purpose for which the goods are required, and that the buyer is relying on the skill and judgment of the seller to select and furnish suitable goods. If the warranties of merchantability and fitness for a particular purpose are breached, or the promise is broken, then the manufacturer, distributor, and/or seller of the product are liable or responsible for the consequences.
Under the newest theory of strict liability, you do not have to prove the manufacturer or designer was negligent. You must show that the product was defective and unreasonably dangerous; the product was def
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.
Additional Personal Injury Articles
- Who Is Responsible When A Person Is Injured?
- How Do I Decide If I Need To Hire An Attorney?
- How Long Do I Have To Hire An Attorney?
- How Will My Claim Be Processed?
- How Much Will An Attorney Cost?
- How Can I Determine How Much My Claim Is Worth?
- What Damages Can I Recover?