Personal injury law is the body of law that determines when and how a person may seek compensation for injuries suffered due to the negligent conduct of another person. All members of society are expected to act with a certain degree of care that is appropriate for the circumstances. When they fail to do so and someone is harmed, they have the right to ask the courts to award them just compensation for the harm caused.
What Must You Prove in a Personal Injury Case?
In order to win a personal injury case, you must prove that the accused or “defendant” owed a duty of care, that he breached the duty of care, that there were damages to someone as a result of the breach, and that the breach was a proximate cause of the damages. These are the four requirements or “elements” of every personal injury claim or “tort.”
What Types of Cases Are Personal Injury Lawsuits?
In general, a personal injury lawsuit may be based on negligence, strict liability, or intentional conduct. Examples of intentional torts include:
- Assault
- Sexual Assault
- Slander/Defamation
Some examples of cases that are based in strict liability include:
- Certain product liability claims
- Dog bite cases (Some states hold owners strictly liable in all situations while others require a showing that the dog had acted aggressively towards a human in the past before strict liability kicks in.)
Some examples of personal injury cases based on negligence include:
Who May Bring a Personal Injury Lawsuit?
If the plaintiff is injured but not fatally, then any adult (18 and older may bring a personal injury claim on their own behalf or they may hire a personal injury lawyer to pursue the claim. If the party is under the age of 18, then an adult “next of friend” must file the lawsuit on their behalf. The next of friend is typically a guardian of the minor child.
In the event the tort causes the death of the injured party, then each state has its own wrongful death statute that designates which relatives are granted a recognized cause of action. The parents of the deceased, spouse of the deceased, children of the deceased, and the representative of the decedent’s estate are granted a cause of action by all states in the United States. Some states allow the siblings of the deceased to bring a cause of action which others, like Texas, do not.
Where are Personal Injury Lawsuits Filed?
The majority of personal injury lawsuits are filed in state District or County Courts depending upon the amount in controversy. County Courts limit the amount you can recover to smaller amounts in controversy so District Courts get the bigger cases.
When Can You File a Personal Injury Case in Federal Court?
In order to file a personal injury lawsuit in federal court you have to have federal question jurisdiction or diversity jurisdiction. Federal question jurisdiction arises when there is an issue of federal law central to the case. Diversity jurisdiction arises when all of the plaintiffs are domiciled in different states than all of the defendants and the amount in controversy exceeds $75,000.00. If a corporation is a party to the case, its domicile is generally the state in which it is incorporated.
Who Decides the Outcome of a Personal Injury Case?
When a lawsuit is filed, either the plaintiff or the defendant has the right to request a jury hear the case. If neither side requests a jury, then the case is decided by the judge.
What Damages Can You Seek in a Personal Injury Case?
In a personal injury case, you have the right to attempt to prove both economic and non-economic damages. Economic damages are losses that are typically easy to identify and calculate such as medical expenses, lost wages due to missed work, and property damage (such as damage to your car in a wreck). Non-economic damages are the harms you often cannot see but typically accompany an injury such as physical pain, mental anguish, physical impairment, scarring and disfigurement. Non-economic damages in the case of a fatality include loss of society, loss of companionship, and other losses affecting the loved ones who have a wrongful death claim.
How Often Do Personal Injury Cases Go To Trial?
While there are many personal injury trials that take place every year, these represent only a very small portion of the number of cases that actually have to go to trial. The majority of personal injury cases settle without a lawsuit even being filed. Of those that require a lawsuit, still, 80% or more of those settle before going to court.
Why Do So Many Personal Injury Cases Settle?
Personal injury cases often settle out of court due to the risks and rewards of going to trial. When a personal injury attorney takes your case, he typically does so on a contingency fee. Part of that agreement is that the lawyer fronts all the costs. Most successful lawyers are not going to file a lawsuit and incur thousands of dollars in costs on a case they do not believe they can win. So generally, the bad cases are culled out in the selection process. Second, since the case has some merit, it ultimately becomes a business decision for the other side. How much will they spend to defend it vs what will the judgment cost them? At some price, there is a benefit to settling vs risking losing more.
What to Do If You Have a Case
If you believe you have a personal injury case against someone for a harm they did to you, talk to a personal injury attorney to determine what your rights are. While this guide can provide general information, there is no substitute for talking to a lawyer about the facts of your case. Simmons and Fletcher, P.C. have been helping injury victims since 1979. Call us for a free consultation at 800-298-0111.
Related Reading: How do I find the best personal injury lawyer?
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