TheLawFirm.com Law 101: Personal Injury Law
Personal injury law is one of those concepts with which many of us possess a passing familiarity but which, when we really stop to think about it, we don’t know all that much about. We see advertisements for personal injury lawyers on TV, we hear them on the radio, and we pass billboards featuring easy-to-remember phone numbers in oversized font. The portrayals are so commonplace that to satirize them has become a comedic cliché. Yet still, most of us really don’t give a second thought to personal injury law until we find ourselves injured.
So what exactly does personal injury law cover, when might an injured person actually have a legitimate claim, and how does the legal process play out if one does file a lawsuit? Take out those notepads, because it’s time again for TheLawFirm.com Law 101.
What Is Personal Injury Law?
Personal injury law is very much what it sounds like: an area of law involving injuries—be they physical or psychological—to individuals in situations where another person, group, or entity may be legally liable, in whole or in part, for the harm suffered.
Much like our common law system in general, personal injury law has evolved over the centuries—first in England then in United States—largely through individual legal decisions in which courts have grappled to balance oftentimes competing notions of justice, economics, and public policy to arrive—in theory at least—at a system that will hold accountable those who have harmed others through for their misdeeds or negligence and which will deter others for engaging in similar conduct.
TheLawFirm.com Sidebar: Negligence – An “Inadvertent Imperfection”
The word “negligence” frequently is tossed about in everyday discourse, but in the legal context it has a precise and important meaning. Black’s Law Dictionary defines “negligence” as:
“The omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.”
Or, if one prefers, Black’s also includes a definition attributed to Wiart:
“Negligence, in its civil relation, is such an inadvertent imperfection, by a responsible human agent, In [sic.] the discharge of a legal duty, as immediately produces, in an ordinary and natural sequence, a damage to another.”
These two definitions describe negligence in different ways, but what they share is the core concept that a person is legally held to a certain standard of care and conduct. Should a person violate this standard, then that person is said to have acted negligently. Should such negligence result in harm to another, then the negligent party may be held liable for the injuries caused.
The standards for negligence vary with context, and a determination of negligence typically involves evaluating the circumstances surrounding a case. The first definition above references the so-called “reasonable man standard”, which applies generally. However, a doctor, for example, acting in her or his capacity as a trained and licensed medical professional, is held to a different standard in treating an injured patient than would be the average person on the street encountering a random victim.
One of the most important points to remember about negligence is that a person (or entity, such as a corporation or government agency) need not have acted intentionally in causing harm to be held legally responsible for it. They need only to have failed to act as a reasonably prudent person in their position would have.
What are the different kinds of Personal Injury Lawsuits?
Personal injury cases come in a variety of forms, but they all share the common elements of a plaintiff suing a defendant who allegedly caused the plaintiff harm. These cases often involve situations such as:
• Automobile / trucking accidents
• Trip-and-fall incidents
• Product liability / Product defect claims
• Workplace injuries / Industrial diseases
Automobile / Trucking Accidents
Automobile and trucking accidents form the basis for a large proportion of personal injury lawsuits, and they often draw off several different areas of personal injury law. For example, if two vehicles are in an accident, and the driver who is not at fault suffers injury, he may bring a personal injury claim against the driver of the other vehicle to recover damages such as medical expenses, pain and suffering, and lost income.
If, however, the accident was caused by the blowout of a defective tire, then the personal injury case might involve a product liability claim against the manufacturer of the defective tire.
The attorneys at TheLawFirm.com have a great deal of experience winning settlements for the victims of automobile and trucking accidents. If you or a loved one is injured on the roadways, contact the attorneys at TheLawFirm.com right away for a free consultation.
Property owners, businesses, and government entities owe a duty to keep their premises free of certain hazards. If a property owner or business owner fails to uphold this duty, and someone suffers injury as a result, the property and/or business owner might be liable, in whole or in part, for the injuries.
Product Liability / Product Defect Claims
The manufacturers and sellers of consumer products—from kitchen appliances to medical devices—are held to a certain standard with regards to the products they put into the stream of commerce, standards covering both intended uses and foreseeable misuses of those products. Product liability is an entire discipline of law unto itself. For more information, see TheLawFirm.com Law 101: Product Liability.
Workplace Injuries / Industrial Diseases
Workplace injuries and industrial diseases caused by workplace exposures also constitute a form of personal injury. Employers have a legal obligation to provide a safe workplace for their employees, and when injuries result from an employer’s failure to uphold those standards, they can be held liable for the harms caused.
If one person intentionally assaults another, resulting in physical injury, the victim may sue the perpetrator in civil court seeking compensation for the harm caused.
This brings up another important point in personal injury law: a defendant who is tried in criminal court can also be sued by her or his victim in civil court. And, while a criminal conviction might provide additional evidence in support of a personal injury claim, it is by no means required. Just think of the infamous example of O.J. Simpson, who was found not guilty of murder in a criminal case but—based on largely the same evidence—was found liable in a wrongful death lawsuit brought in civil court by the families of his alleged victims.
How was this outcome possible? Recall from earlier that criminal cases and civil cases require different standards of proof. A criminal conviction requires a finding that the defendant is guilty beyond a reasonable doubt, a very high standard. For a defendant to be held liable in civil court, by contrast, a plaintiff must only demonstrate that a preponderance of the evidence supports her or his claim.
TheLawFirm.com Sidebar: How does one prove negligence?
In general, the law requires that a plaintiff seeking to prove negligence on the part of a defendant must satisfy four main elements:
The plaintiff must prove that the defendant had a duty to act in a certain way. In some cases, this can be as simple as showing that the defendant had the duty to behave as a reasonable person would under the circumstances.
• Breach of Duty
The plaintiff must prove that the defendant breached the duty in some way.
• The Breach of Duty Caused the Harm
The plaintiff must prove that the defendant’s breach of the duty caused the specific harm alleged by the plaintiff.
The plaintiff must prove that the harm caused by the defendant’s breach of duty (i.e. negligence) entitles the plaintiff to some form of damages paid by the defendant.
First of all, a common misconception among the public is that most cases go to trial. This could not be further from the truth of how our actual legal system works. In reality, the vast majority of cases are settled before reaching trial. This is largely due to the fact that certain kinds of cases are—unfortunately—fairly common, and the “value” of such cases has been set by similar cases that came before it. Litigating a full trial can be an expensive prospect, so it often benefits both sides to reach an agreement without going to trial.
Personal injury cases belong to a class known as “civil” cases, as opposed to criminal ones (See: The LawFirm.com Dictionary: A Guide to Courtroom Lingo). In most civil trials (certain areas of law, such as family law, can be somewhat different), a plaintiff sues a defendant alleging that the defendant has violated some law or other legal standard and that this violation has resulted in some harm befalling the plaintiff. At the conclusion of a personal injury trial—should one take place—the defendant is found either liable or not liable for the harms alleged. This determination is made by the so-called “finder of fact”—either a jury or a judge—and is delivered in the court’s verdict. If a defendant is held liable, the plaintiff might be awarded damages, which can come in several forms.
TheLawFirm.com Dictionary: A Guide to Courtroom Lingo
Many aspects of the legal system can seem confusing and overwhelming for those unfamiliar with its sometimes-archaic procedures. One of the major hurdles can be the language alone, which to the uninitiated can sometimes seem like a foreign tongue. Many of the concepts aren’t really all that complicated, but keeping up with the lingo can sometimes be a challenge. Here’s a quick cheat sheet to help you keep things straight:
Answer – The official legal document filed with the court by the defendant in response to the complaint.
Bench Trial – In a bench trial, there is no jury, and the verdict is determined solely by the judge.
Civil Trial – A civil trial—as opposed to a criminal trial—involves a plaintiff suing a defendant. Personal injury lawsuits are an example of the kind of lawsuits brought in civil court. In order for a defendant to be held liable at the conclusion of a civil trial, the finder of fact—either a judge (in a bench trial) or a jury (in a jury trial)—must determine that a preponderance of the evidence supports that determination. Basically, a “preponderance of the evidence” means that the weight of the evidence presented tilts in the favor of one of the two parties.
Criminal Trial – In a criminal trial, a government entity represented by a prosecutor attempts to prove that the defendant is guilty of a crime. Because a criminal trial can result in a person losing his or her liberty—not just money—the standard for guilt is much higher than the standard for liability in a civil case. In order for the government to prove that a defendant is guilty of a crime, they must demonstrate to the finder of fact—either a judge (in a bench trial) or a jury (in a jury trial)—that the defendant is guilty beyond a reasonable doubt.
Complaint – The official legal document filed with the court by the plaintiff to initiate the lawsuit. The complaint outlines the plaintiff’s various allegations against the defendant, citing relevant law and supporting evidence.
Defendant – The person (or entity) being sued by the plaintiff. The defendant responds to the complaint with the answer.
Jury Trial – In a jury trial, a group consisting of members of the public—commonly 12, along with a couple of alternates—observes the entire trial and then votes as to whether the defendant is liable or not liable (in a civil trial) or guilty or not guilty (in a criminal trial).
Liable / Liability – Unlike in a criminal trial, at the conclusion of which a defendant is found either guilty or not guilty of the crimes charged, in a civil trial, a defendant is found either liable or not liable. Liability essentially means legal responsibility. When a verdict holds the defendant liable, the finder of fact—either the jury or the judge—has determined that the defendant is legally responsible, either in whole or in part, for the plaintiff’s injuries.
Party / Parties – In a legal context, a party is simply a person (or entity) that is a part of the lawsuit, specifically either a plaintiff or a defendant.
Plaintiff – The person (or entity) suing the defendant. The plaintiff brings the lawsuit by filing a complaint.
Verdict – The final decision reached by the court at the end of a trial. In a bench trial, the verdict is decided by a judge. In a jury trial, the verdict is decided by the jury.
What are the different kinds of compensation a plaintiff can be awarded if the defendant is found liable?
When a defendant is found liable, the court may choose to impose on the defendant certain requirements intended to make the plaintiff whole and/or punish the defendant for its acts. What these requirements are depends on a number of factors including the egregiousness of the defendant’s acts, the level of intent involved, the degree of harm to have befallen the plaintiff, and the relationship between the parties (such as employer/employee).
Often, the court will require that the liable defendant pay the plaintiff money as compensation for the injuries the plaintiff has incurred. These court-ordered monetary awards are referred to as “damages” and they come in several different forms. In theory, after the awarding of damages, the plaintiff should be made whole, that is, it should be as if she or he had never suffered the harm in the first place. In some cases—such as those involving purely financial injury—this aspiration is more attainable than others, for, as one judge put it in an early 20th century decision, “No rational being would change places with the injured man for an amount of gold that would fill the room of the court.” [Zibbell v. Southern Pacific Co., 116 P. 513, 520 (Cal. 1911).]
In most personal injury cases, the level of damages comes down to three central factors: pain and suffering, medical expenses, and lost earnings. In fact, the issue argued most rigorously in some cases is not the matter of liability itself—which in some instances is clear-cut—but rather the level of damages. Some cases—especially those involving enormous sums totaling in the tens or hundreds of millions of dollars—can go through years of appeals after the conclusion of the original trial over the issue of damages alone.
On top of the inherent difficulty of placing a dollar value on something so hard to quantify as, for example, “pain and suffering”, the challenge is made even more difficult by the need to calculate not only past damages but future ones, as well. In many personal injury cases, plaintiffs suffer physical or emotional harms that, tragically, will stay with them for the remainder of their lives. Calculating future suffering or future lost earnings can be—and often seemingly is—the subject of endless debate.
In addition to so-called “compensatory damages”—those damages intended to compensate a plaintiff for her or his losses—a court will sometimes award what are known as “punitive damages”, or damages intended to punish a defendant for particularly egregious conduct. (See: TheLawFirm.com Sidebar: Compensatory Damages v. Punitive Damages.)
TheLawFirm.com Sidebar: Compensatory Damages v. Punitive Damages
When a court finds a defendant liable for harms caused to the plaintiff, the court may award the plaintiff monetary compensation in the form of damages. These damages fall under one of two general categories: compensatory damages and punitive damages.
Compensatory damages—as the name implies—are intended to compensate a plaintiff for harms caused by the defendant. In personal injury cases, compensatory damages might include damages for:
• Pain and suffering
• Economic losses (such as lost earnings)
• Medical expenses
Punitive damages, on the other hand, are intended to punish the defendant for their wrongdoing. Therefore, punitive damages typically are reserved for particularly egregious instances of defendant misconduct. Punitive damages are sometimes awarded in cases where the defendant has exhibited:
• Callous recklessness
• Extreme negligence
• Wanton disregard for the well-being of others
• Noncompliance with an established rule, regulation, or law
How do I know when I need a Personal Injury Lawyer?
It sometimes can be difficult to know when you need a lawyer, but the bottom line is that it is better to be safe than sorry. If you suffer an injury, your first call should be for medical assistance, and your second call should be to an experienced attorney! You have nothing to lose and everything to gain by having quality legal representation on your side. The team of experienced lawyers at TheLawFirm.com, for example, offer free consultations with actual attorneys, meaning you can explain your situation to them, and they’ll let you know whether you might have a possible claim. It’s as simple as that. And, in most cases, TheLawFirm.com’s attorneys work on a contingency basis—so they only get paid if and when you do.
It's an unfortunate fact that for many companies in America today paying out settlements is factored into the bottom line as a standard cost of doing business. Additionally, insurance companies employ armies of attorneys whose main mission is to pay out as little money as possible while settling in the shortest amount of time possible (also to keep costs at a minimum). Don’t fall for their games! You need an experienced attorney on your side who understands their tactics and how to counter them to get you the settlement you deserve. When you need a lawyer, think TheLawFirm.com!
TheLawFirm.com Sidebar: The false stigma against legitimate lawsuits is a corporate creation
“Ambulance Chasers.” “The Trial Lawyers.” The phrases have become instilled into our cultural consciousness, and not by accident. Negative characterizations of the lawyers who defend the rights of society’s wrongfully injured—and the victims themselves—persist across the media landscape because personal injury and product liability lawsuits are a threat to the mega corporations that own major media outlets and the other mega corporations that support those media outlets by pumping millions of advertising dollars into them.
Nefarious as it may be, painting victims and the lawyers who represent them as greedy and unscrupulous makes strategic sense for large companies. If the public—thanks to media portrayals—come to see personal injury attorneys and their clients as sleazy seekers of an undeserved payday, there will be less outcry from constituents when corporate-backed politicians pass laws limiting the rights of injured individuals to hold accountable those responsible for their harms and to seek from them some measure of restitution.
Many people come to hold quite a different view of personal injury law and personal injury lawyers once they or a loved one find themselves the victim of serious harm caused by another. Many personal injury attorneys—like those on the dedicated team at TheLawFirm.com—are passionate, talented professionals who believe firmly in their mission of bringing justice to innocent victims. And many personal injury attorneys—including those at TheLawFirm.com—work on a contingency basis, meaning that their clients only pay for their services if they win.
Should you or a loved one ever find yourself suffering from an injury caused by another, contact the experienced attorneys at TheLawFirm.com right away for a free consultation.
When is the right time to file a lawsuit?
The timing of when a lawsuit is filed can be critical to its success. File a lawsuit too early or too late, and the case might be thrown out based on that factor alone, regardless of the merits of the claim itself. It might seem unfair, but that’s the way the law works, and it’s another reason why it is important to consult an experienced and knowledgeable attorney—like the ones at TheLawFirm.com—as soon as possible.
In terms of filing a lawsuit too early, within the law there is a concept known as “ripeness”. A lawsuit may be brought before the court only when it has become “ripe”, meaning that the basis for the claim has fully developed. Ripeness is rarely an issue in personal injury law because as soon as a person suffers an injury, that claim essentially has become ripe. However, in some cases where a personal injury is slow developing—for example, where a factory worker develops an illness as a result of years of exposure to a dangerous substance—the claim may not be ripe until the worker actually has suffered some provable harm (i.e. the worker shows physical signs of impaired health as a result of the exposure).
Of much more frequent relevance in personal injury cases is the so-called “statute of limitations”. A statute of limitations is essentially a time limit on one’s ability to file a claim. These limits vary widely by jurisdiction and type of claim, but many are as short as a just a few years. No matter how legitimate a claim might be, if the statutory time has run, the court will not even consider the claim, except under a few extremely rare exceptions.
Should you ever suffer an injury due to the negligence or recklessness of another, a knowledgeable attorney like the ones at TheLawFirm.com will help you navigate the ins and outs of the legal process, of which timing is only the beginning. Don’t make the common mistake of thinking you can go up against experienced pros on your own. Get the law on your side with an experienced attorney from the team at TheLawFirm.com.
“Ripeness” and “Statutes of Limitations”
A lawsuit must be filed after it is ripe but before the statute of limitations has expired.
The Ripeness Doctrine – “a supreme court doctrine dictating that a case shouldn’t be decided before the necessity has arisen for it to be decided” (Black’s Law Dictionary)
Statute of Limitations – “time frame set by legislation where affected parties need to take action to enforce rights or seek redress after injury or damage” (Black’s Law Dictionary)
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Sources: US National Library of Medicine, MedlinePlus, “Canagliflozin” Invokana Website US FDA Center for Drug Evaluation and Research – Summary Review, “Invokana” Invokana – March 2013 FDA-Approved Label Invokana—September 2015 FDA-Approved Label Invokana – December 2015 FDA-Approved Label Invokana – May 2016 FDA-Approved Label Invokana – July 2017 FDA-Approved Label