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. Kentucky is a pure comparative negligence state, meaning a claimant's negligence does not bar recovery. 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.

AUTOMOBILE ACCIDENTS

In Kentucky, the law provides for no­fault automobile liability insurance coverage. You are covered under the no­fault law unless you have rejected the coverage in writing and filed it with the Commonwealth of Kentucky. If you are covered, your insurance company will pay the bills for your injuries up to the policy limits regardless of who was at fault for the accident. Standard coverage provides $10,000 in benefits to each person, although additional coverage can be purchased. This will cover economic loss consisting of payment of medical bills, work loss, and replacement services (such as domestic help) up to a total of $200 per week. If injury causes death, survivor's economic loss and replacement services are covered up to the same limit and there is a $1000 benefit towards burial expenses.

Kentucky' no fault law also means that owners and operators of motor vehicles who receive no­fault benefits 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. The driver who caused the accident can be sued if the injured person accumulates $1,000 in medical bills; suffered permanent disfigurement; a fracture to a bone; a compound, comminuted, displaced or compressed fracture; loss of a body member; permanent injury; permanent loss of bodily function; or death. Tort liability is not limited for injury to a person who is not an owner, operator, maintainer or user of the automobile, nor for injury to a passenger of a motorcycle.

Liability insurance coverage is mandatory in Kentucky. 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 Kentucky is $25,000 per person and $50,000 per accident bodily injury liability, and $10,000 property damage liability. If your insurance company paid no­fault benefits for damage incurred in an accident that was not your fault, they will recover the money from the at­fault driver's carrier. 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.

PREMISES LIABILITY

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 only to refrain from intentionally injuring the trespasser. An owner may be liable, however, if he maintains a condition that causes injury to a trespassing child.

PRODUCT LIABILITY

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 prod

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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