What happens when you suffer an injury? Sometimes an injury can result from our own actions. Sometimes an injury can result from the actions of someone else. Personal Injury law is a tool to apportion responsibility for an injury and, when an injury is proximally caused by another, to compensate you for that injury. This sounds simple, but personal injury is far from simple.
Personal injury law grew out of case law or what is called “common law” in some jurisdictions. These cases arose before judges and magistrates over time and as these judges and magistrates made decisions regarding who should be compensated for their injuries and who should not, a body of law came into being. Judges still refer to case law to help guide them, although many jurisdictions have taken the rule of law gleaned from these cases and have codified them into state law.
Personal Injury Cases and When They Are Compensable
Personal injury is based on two compatible concepts: duty and legal responsibility. We all have a duty to act reasonably in relation to others around us. When we drive a car, we have a duty to drive safely, unimpaired, and free of distraction. We fail in that duty when we drive too fast, or while texting, or while intoxicated.
Personal injury law attempts to apportion legal responsibility for an injury. Legal responsibility is different than physical responsibility. The term for legal responsibility is sometimes called “proximate cause.” Proximate cause refers to the proximity in time and events between the action taken by the culpable person and the injury to the victim. The closer in proximity, the more likely that the person will be held legally responsible for your injuries. The greater the distance in time and the chain of events separating the action from your injuries, the less likely they are to be held liable. For example, if you are texting while driving and you hit a pedestrian in a crosswalk, the chain of events between texting and the accident is quite close, and thus, there is likely to be a finding of proximate cause. If you were texting while you were driving, but saw the pedestrian and stopped before you hit the pedestrian and another car hit yours from the rear and pushed your car into the victim, the chair of events is longer and it is likely that you will be found to be legally liable.
To be compensable, the culpable person, or defendant, must have a duty, must have failed in that duty, and that failure must be the proximate cause of your injuries. These are the basic tenets of negligence.
Negligence and Other Torts
Most personal injury cases are grounded in the law of negligence. While negligence law varies a bit from jurisdiction to jurisdiction, the basic elements are similar from jurisdiction. They are:
- breach of duty;
- proximate cause; and
All these elements must be pled and proven.
Negligence is one type of tort. Other torts include such things as strict liability or product liability, and intentional torts. Strict liability includes cases where the injuries result from a product that is defectively made or defectively designed. Intentional torts include such things as assault and battery, false imprisonment and intentional infliction of emotional distress. These causes of action are less common than is basic negligence.
Damages and Compensation
In order to be compensable, the damages suffered must be a result of the conduct of the defendant which caused the injury. Damages can be a complicated issue, but as an example of compensable damages in a typical personal injury case, you might have suffered physical injury including: medical bills for examinations and treatment; you might have some lost wages if you were unable to work as a result of your injuries; you may have suffered property damages if your injuries are a result of a car accident; and you have most likely suffered pain and injury which is often compensable.
Whatever the case, sometimes legal help is needed to resolve a case. Cases can be resolved in different ways: settlement, trial, mediation, and arbitration. Settlement is often the first point of resolution. This can happen in an automobile accident case when an insurance company makes an offer to resolve the case early on in the litigation process. Sometimes the offer is a good one, often it is not. You may want to consult a personal injury attorney to get a good idea of what your case might be worth before accepting an offer.
Trial is a complex process, best left to an experienced personal injury lawyer whom you trust. Arbitration and mediation are considered to be alternative dispute resolution mechanisms that often occur after the initial settlement phase and before trial. A mediation is somewhat like a negotiated settlement and arbitration is like a very informal trial. In all these cases, it is wise to get help when you need to understand the issues involved, the value of your case, and how best to resolve your case.