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

Tue, 29 May 2007 21:19:00 GMT

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. The Indiana Comparative Fault Act provides that recovery is barred if a claimant's fault exceeds 50 percent of the total fault. Otherwise, the claimant's recovery is diminished in proportion to his degree of fault. The Comparative Fault Act does not apply to medical malpractice claims against "qualified providers" or claims against governmental agencies or public employees. In those cases, any contributory negligence of the claimant will be a complete bar to recovery.

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

Indiana operates on a "fault" system, which determines liability based on a showing that one party was at fault because of negligence, which caused the accident. In other words, if the other driver is to blame for the accident, you can collect damages, and vice versa. Generally, people who operate motor vehicles must exercise reasonable care under the circumstances. Failure to use reasonable care is the basis for most lawsuits for damages caused by an automobile accident. In these cases, proof of fault is often contested and requires thorough investigation. A driver may also be liable for an accident caused by intentional or reckless conduct. A reckless driver is one who drives unsafely, with willful disregard for the probability that the driving may cause an accident.

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 and pain and suffering. The mandatory minimum liability coverage in Indiana is $25,000 per person and $50,000 per accident for personal injury, and $10,000 for property damage. If the person who caused your injury has automobile liability insurance, an insurance adjuster will gather the pertinent records including medical records, medical bills, wage loss verification and the like in an effort to verify your damages. The insurance company may make you an offer to settle the claim. You may find the offer acceptable and once you accept it, the claim process is over. If you do not receive an acceptable offer, you can proceed with filing a lawsuit. Be careful when dealing with the other party's insurance company because they may try to rush you into a settlement before you can adequately evaluate the extent of your damages. 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. This coverage would also apply if you were hit by a "hit and run" driver.

PREMISES 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. 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. 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.

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 have the highest responsibility to those who are invited onto their premises. They are obligated to inspect the premises to discover any dangerous conditions and warn the public of dangers upon the premises. A homeowner has a duty to exercise ordinary care in maintaining the premises in a reasonably safe condition to prevent injury. Possessors of land must take reasonable measures after an accumulation of ice and snow to diminish the risk of injuries. In general, the standard of care owed to a trespasser is usually less than that owed to a person who has permission to be on the property.

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 the newest theory of strict liability, you must show that the product was defective and unreasonably dangerous; the product was defective when it left the manufacturer; and the defect caused the injury. In general, a product is unreasonably dangerous or defective if it fails to perform in a manner reasonably to be expected in light of its nature and intended function. Indiana law states that a product is in a defective condition if, at the time it is conveyed by the seller to another party, it is in a condition not contemplated by reasonable persons among those considered expected users or consumers of the product; and that will be unreasonably dangerous to the expected user when used in reasonably expected ways. A product is defective if the seller fails to properly package or label the product to give reasonable warnings of danger about the product; or give reasonably complete instructions on proper use of the product; when the seller, by exercising reasonable diligence, could have made such warnings or instructions available.

Be aware that there are limits to product liability law such as when the product is too old, when the consumer was careless in using the product, when the consumer knew of the defect, or when the product was altered. An action based on strict liability may not be brought against a seller unless the seller is a manufacturer of the product as well or when the manufacturer cannot be sued in Indiana.

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 reaso

How Can I Determine How Much My Claim Is Worth?

Tue, 29 May 2007 21:19:00 GMT

Attorneys are prohibited from promising that they will obtain a certain amount of money for you. For purposes of settlement, a claim is valued upon an estimate of what a jury would likely believe the case to be worth, taking into account the severity of the injury, the effects of the injury on your life and the negligence of the other party. If you were partially at fault for the accident, the amount of damages will be reduced proportionately. Benefits received from collateral sources may be used to reduce your recoverable economic damages. Any settlement will be reduced if there appears to be a good chance that the claim will not be successful. Other factors that may reduce the damages include past medical history, preexisting injuries, and prior claims history.

Considerable compensation may be commanded if your injuries are severe requiring extensive medical treatment, absences from work and permanent injuries. This is especially true if you were a healthy, productive, young worker prior to the accident. That is because an important factor in the value of your claim is the difference between your quality of life before the accident as compared to after the accident.

How Do I Decide If I Need To Hire An Attorney?

Tue, 29 May 2007 21:19:00 GMT

There are situations where an attorney is unnecessary, such as very small cases. Small claims court in Indiana will handle claims up to $3000. If your injury is a minor one that will not result in any incapacity, or substantial medical care, then you may want to settle it yourself in small claims court.

An attorney should be consulted if you have been seriously injured or are unsure as to the outcome of your injury. These cases can get quite complicated. In such cases, an attorney will have the legal expertise, time and resources to effectively handle your claim. An experienced personal injury attorney will be able to accurately analyze the value of your case and will be able to meet all of the rules, requirements and deadlines that have to be met. Also of note is the fact that statistics show insurance companies pay more than twice as much compensation when an attorney is involved in your claim. The insurance company representing the party at fault is working against you and its goal is to pay you as little as possible to settle your claim.

How Long Do I Have To Hire An Attorney?

Tue, 29 May 2007 21:19:00 GMT

The law requires that you file a lawsuit within a specified period of time depending on the nature of the claim and the entity that caused your injury. This is referred to as the statute of limitations. Failure to file suit within this time frame prevents you from filing suit at all. In some instances, there are various exceptions to the statutes of limitation that may extend or limit the limitation periods. There may be special claims presentation requirements for claims against state and local government. For example, claims are barred unless notice is filed with the state within 270 days of the loss or with a political subdivision within 180 days of the loss. For these reasons, it is important to consult an attorney as early as possible to be sure you don't miss a crucial deadline.

In Indiana, an action for personal injury or death generally must be brought within two years from the date when the cause of action accrues. In most cases, the cause of action accrues on the date of the incident, but there may be exceptions when the injury could not have reasonably been discovered until a later date. If a person entitled to bring an action is under a legal disability when the cause of action accrues, then he or she may bring the action within two years after the disability is removed. A lawsuit for injury or death caused by medical malpractice must generally be filed within two years from the date of the alleged act or omission. A minor under the age of six has until his eighth birthday to file a lawsuit. Legal disability does not toll the medical malpractice statute of limitations.

How Much Will An Attorney Cost?

Tue, 29 May 2007 21:19:00 GMT

Most attorneys who believe a case has merit will take the case without payment up front. They will take the case on a contingency basis, which means they will receive a percentage of your award if and when you recover for your injuries. Contingency fees average between 25 and 40 percent. Most attorneys charge a smaller percentage if the case is settled before the attorney does all the work necessary to go to trial. For medical malpractice claims brought against "qualified providers", a claimant's attorney may not receive more than fifteen percent of any award from the Patient's Compensation Fund. If you and your attorney agree to a contingency fee, the attorney must put the agreement in writing and provide you with a signed copy. Some attorneys may charge an hourly fee or a flat fee for their services.

Out of pocket expenses include such things as filing fees, deposition fees, expert witness fees, and other similar expenses. The attorney's out of pocket costs are in many cases not included in the attorney's fees. You should be sure to pay attention to how an attorney will bill you for costs because they can amount to quite a significant sum.

How Will My Claim Be Processed?

Tue, 29 May 2007 21:19:00 GMT

Although most of us would prefer to avoid filing a lawsuit or going to court, it is sometimes necessary to pursue litigation to get full value for your claim. Lawsuits usually become necessary when there are disagreements with the other party's insurance company over who caused an accident or how serious the injuries are. You should be sure not to sign any documents without prior review by an attorney. You need to attend all scheduled doctor appointments in order to document your injuries. Accurate records should be kept of time you missed from work, medical bills, and property damage repairs. You can document your damages with photographs of your injuries or photos of property damage.

After a lawsuit has been filed, both parties will conduct discovery. Pretrial discovery usually takes about a full year during which time both parties investigate all aspects of the claim. This may include taking oral depositions, obtaining pertinent records, propounding interrogatories, and hiring expert witnesses to obtain more evidence about the claim. During this period of discovery and as the trial date approaches, the parties will exchange settlement offers/demands. A large majority of personal injury claims settle before trial. If you agree to accept a settlement, you will be required to sign an agreement stating you absolve the other party of all further liability in this case.

What Damages Can I Recover?

Tue, 29 May 2007 21:19:00 GMT

You are entitled to recover for any actual damages that were proximately caused by the wrongful conduct of the defendant. Actual damages refers to the amount of money it would take to fully compensate you and place you in the same position you would have been in had the injury never taken place. You can recover for losses such as costs of reasonable and necessary medical care, property damage, car rental expenses, costs of domestic services, and loss of earnings. The law allows compensation for future medical and care expenses that the claimant can prove will be reasonably necessary to treat the injury. The claim may include income the claimant can prove will probably be lost in the future because of the injuries. Loss of earning capacity is also allowed when the patient proves he or she is less able to earn a living as a result of the injuries

You are also entitled to noneconomic damages for physical pain and suffering, mental and emotional suffering, physical impairment, inconvenience, disfigurement, loss of enjoyment of life, loss of consortium (disruption of your personal relationship with your spouse), etc. There is no definite standard of calculating reasonable compensation for these types of damages other than being just and reasonable in light of the evidence.

In certain instances, damages may be awarded to families of injured claimants for loss of care, companionship, love and affection. Family members can be compensated for the wrongful death of a loved one. These damages may include medical and burial expenses, loss of income that would have supported the family members, emotional suffering, and loss of the pleasures of the family relationship.

Before a person may recover punitive damages in any civil action, that person must establish, by clear and convincing evidence, all of the facts that are relied upon by that person to support the recovery of punitive damages. A punitive damage award may not be more than the greater of three times the amount of compensatory damages awarded or $50,000. In most cases, the claimant only receives 25% of the punitive damage award. The remainder is deposited into the violent crime victims compensation fund.

The maximum combined liability of all governmental entities and all public employees acting within the scope of their employment for an injury or death arising out of a single occurrence is $300,000 per person and $5 million for all persons. For claims brought pursuant to the Medical Malpractice Act, there is a limit on the amount pf damages that may be awarded. The cap allows recovery up to $1,250,000.00 in damages for malpractice that occurred after June 30, 1999. The maximum recoverable award for malpractice that occurred on or before June 30, 1999 would be $750,000.

Who Is Responsible When A Person Is Injured?

Tue, 29 May 2007 21:19:00 GMT

The law of personal injury is concerned with determining who may be responsible for your injuries and how much they should be required to pay for your damages. Personal injury is part of the law of torts, the legal term that includes many types of injuries to people and their property. Every tort claim must include four basic elements including duty, breach of duty, damages, and proximate cause. The defendant must have a legal duty toward the plaintiff. The defendant must have violated that legal duty. The plaintiff must have suffered some harm for which the law allows an award of monetary damages. The defendant's breach of a legal duty must be related to the plaintiff's injury closely enough to be considered a proximate cause of the injury.

There are a number of principles that apply to the law of torts and personal injury. These principles recognize degrees of fault on the part of the person who causes the injury. In general, the degrees of fault can be described as negligence, intentional fault, and strict liability.

The term negligence is essential to tort law. Everyone is expected to take normal ordinary care to ensure that their action or the actions of others under their control, do not cause anyone harm. If they fall below that standard, and someone is injured or their property damaged, then they become negligent. Negligence does not mean that the person deliberately intended to cause harm; it only means that they did not take reasonable care or they did not act when any reasonable person would have. The degree of care varies with the circumstances of each case. A plaintiff likewise has a duty to exercise reasonable care under the circumstances on his own behalf.

Strict liability means that one does not have to prove negligence to recover damages. In the case of product liability, the law now holds that you do not have to prove the manufacturer was negligent if someone is injured while using a product. They only have to prove the product was defective when it left the hands of the particular seller and that was the proximate cause of the injuries. 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.

An "intentional tort" refers to a personal injury caused by a person who has the intent to cause harm. It may also refer to injury caused by willful or reckless conduct. Intentional torts include assault and battery, intentional infliction of emotional distress, libel and slander, etc.

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