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. Massachusetts 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, premises 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 Massachusetts, the law provides for mandatory nofault automobile liability insurance coverage, also referred to as Personal Injury Protection (PIP), for every car and truck (not motorcycle) registered in Massachusetts. This means that your own insurance carrier will provide coverage of all reasonable expenses incurred within two years from the date of the accident regardless of who was at fault for the accident. Benefits extend to the named insured; members of the insured's household; any authorized operator or passenger of the insured's vehicle; and any pedestrian struck by the vehicle, unless any of these persons would otherwise be covered under worker's compensation insurance for the same accident. You will be reimbursed for 100% of your medical bills, 75% of your average weekly wages, and replacement services (such as domestic help) up to a combined limit of $8000 per covered person. If you are covered by commercial health insurance, PIP will cover the first $2000 of medical bills and the health carrier usually pays the rest. Amounts not covered by the health carrier go back to PIP for secondary payment up to the $8000 limit. If you have optional medical payments coverage, it entitles you to an additional $10,000 for payment of your medical bills when the $8000 nofault limit is exhausted.

Liability insurance coverage is also mandatory in Massachusetts. The mandatory minimum liability coverage in Massachusetts is $20,000 per person and $40,000 per accident bodily injury liability, and $5,000 property damage liability. You are entitled to payment from the bodily injury portion of the atfault driver's liability insurance policy for all of your medical expenses and wage loss not already paid by PIP. You are also entitled to compensation for pain and suffering when you suffer an injury that meets one of the following criteria: 1) $2,000 in medical bills 2) causes death; 3) causes loss of a body member; 4) causes permanent and serious disfigurement; 5) results in loss of sight or hearing; or 6) consists of a fracture. 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. This coverage would also apply if you were hit by a "hit and run" driver.

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. 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. 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.

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 less than that owed to a person who has permission to be on the property. In the case of children who trespass, the owner may be liable for injury to a child if (a) the land owner knows or has reason to know that children are likely to trespass, (b) the condition is one of which the land owner knows or has reason to know will involve an unreasonable risk of death or serious bodily harm to such children, (c) the children because of their youth do not discover the condition or realize the risk, (d) the utility to the land owner of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and (e) the land owner fails to exercise reasonable care to eliminate the danger or otherwise to protect the children.

PRODUCT LIABILITY

Product Liability deals with recoveries for personal injury or property damage resulting from the use of a product. Product liability cases may involve dangerous toys, automobile design, seat belt failures, improperly designed household products, industrial machinery, products causing explosions or burns, aviation products, among others. A lawsuit can be brought against anyone participating in the chain of manufacture for that product, from

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 Massachusetts will handle claims up to $2000. 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, prior to suing a public entity, a claimant must provide written notice of the claim within two years from the time the cause of action accrued. 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 Massachusetts, an action for personal injury or death generally must be brought within three 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 the claimant is a minor, or is incapacitated by reason of mental illness when a right to bring an action first accrues, the action may be commenced within the time limited after the disability is removed. If a person liable to a personal action fraudulently conceals the cause of such action from the knowledge of the person entitled to bring it, the period prior to the discovery of his cause of action shall be excluded in determining the time limited for the commencement of the action.

A medical malpractice action must be brought within three years from the date when a plaintiff learns or reasonably should have learned that he has been harmed as a result of the defendant's negligence. In no event, however, may a medical malpractice action be brought more than seven years following the alleged wrongful act, except in foreign object actions. The statute of limitations for minors is the same as that for adults, except that a claim accruing on behalf of a child under six can always be brought before the child's ninth birthday.

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. 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.

The amount of the contingent fee for an attorney representing a claimant in an action for medical malpractice cannot be in excess of the following: (1) 40 percent of the first $150,000 recovered, (2) 33 1/3 percent of the next $150,000 recovered, (3) 30 percent of the next $200,000 recovered, and (4) 25 percent of any amount by which the recovery exceeds $500,000

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. Punitive damages are intended to punish a defendant for reckless or malicious behavior and are only awarded in rare cases.

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.

In Massachusetts, there is a limitation of damages for pain and suffering that a plaintiff may receive in a medical malpractice case. The jury may not award more than $500,000 noneconomic damages unless the jury determines that there is a substantial or permanent loss or impairment of a bodily function or substantial disfigurement or other special circumstances in the case which warrant a finding that imposition of such a limitation would deprive the plaintiff of just compensation for the injuries sustained.

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.

There may be more than one cause of an injury. Massachusetts follows the doctrine of joint and several liability. This means that even when the negligent conduct of two or more parties contributes as causes of an injury, each party is liable for the entire judgment

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