If you have a personal injury claim, the amounts and kinds of damages you can receive depends on the type of injury you’ve suffered, the seriousness of the injury, what your losses have been (financial, physical or emotional) and what jurisdiction you live in. The court may also consider additional factors based on your situation. Generally, there are two types of damages you may receive for a personal injury claim, compensatory and punitive.
Compensatory damages are the most common kind and are available to compensate the victim for losses they may have suffered. The losses are not limited to physical injuries, although physical injuries may be included in compensatory damages. Other losses may include medical costs, loss of earnings (past and future), loss of the ability to work, loss of household services, emotional distress suffered by the injured party, loss of quality of life and other damages specific to the victim.
Individuals other than the injured or deceased party may also bring claims for compensatory damages for themselves or on behalf of the victim.
Punitive damages are intended to punish the defendant for their negligence or wrongdoing. They are not available in all jurisdictions. The facts of the case, state law, jurisdiction and the fact finder determine whether punitive damages are warranted in a specific case. It’s important to know the law in your state and court’s treatment of punitive damages when considering your litigation expectations.
Liability insurance is a contract between an individual and an insurance company. This agreement is carried by an individual (policyholder) to pay any losses or damages that a third party may suffer due to the action of the policyholder. Automobile owners are required to have liability insurance on their auto policies in most states. Once damage occurs, whether property damage, bodily injury or something else, a claim must be filed with the insurance company. If the claim is approved, the insurance company will pay damages to the third party on behalf of the policyholder.
Most people have comprehensive general-liability insurance (CGL). This type of insurance covers a broad range of liability, such as property damage and personal injury. Similarly, some individuals may carry accident-based insurance, or occurrence-based liability insurance. This type of insurance policy also covers property damage and/or personal injuries. The policy goes into effect if an accident occurs.
It’s important to read all of your insurance policies carefully, as policies can vary significantly, and exclusions and restrictions may apply. You may be expecting your insurance policy to cover something but later find out it doesn’t because you didn’t read the fine print.
Who (and What) is Usually Covered by Automobile Liability Insurance?
Generally, automobile liability insurance covers a motor vehicle accident that occurs during the operation or upkeep of the vehicle listed in the policy. The insurance company agrees to pay for any of the policyholder’s liabilities that arise from an accident that meet the criteria in the insurance contract. Generally, the criteria will be use or maintenance of the vehicle.
Depending on the type of liability insurance you have and the specific wording in your policy, the criteria could vary. If the automobile is in an accident and it is not during the operation of the vehicle or during maintenance, the accident will usually be covered under the policy if you can show that there is a connection between the automobile and the accident. If the vehicle had not been present, the accident would not have occurred. For example, if the car had not been parked in the parking lot the other car would not have been able to hit it and cause damage to the vehicle.
There should be a “covered persons” section of your liability insurance policy. Look at that section to determine who will be covered under your policy. In general, the vehicle’s owner will be covered, as well as the owner’s family members, employees, guests and passengers of the insured. However, if the passenger in the vehicle is not a guest — meaning present in the car without permission — they may not be covered for injuries under the owner’s liability insurance. The purpose of liability insurance is also to protect the insured against claims from third parties. Therefore, the insurance policy should cover claims from insured third-parties against the policyholder. Such claims may be from an accident causing property damage or personal injury arising out of use or maintenance of the vehicle covered by the insured’s automobile liability insurance policy.
If you’ve been injured in an accident of some kind you may have a claim for the personal injuries you’ve suffered. You may bring the claim on the grounds of negligence, or failing to provide reasonable care for the safety of yourself or others. The court considers the level of care a “reasonably prudent person” would have employed in the same circumstances. If an individual fails to act as a reasonably prudent person would, he or she may be determined negligent.
Can I Get Compensation for My Injuries if an Accident Might Have Been Partly My Fault?
If you may be partly to blame for your injuries, you may or may not be able to recover damages. It depends on the jurisdiction you’re in.
A minority of jurisdictions follow “contributory negligence.” Under this rule, if your own negligence caused your injury, or played a part in causing your injury, you may not be able to recover for your injuries. But the majority of jurisdictions follow “comparative negligence.” In comparative negligence, you may still recover damages for your injuries if your own negligence was a partial cause of those injuries. The amount of damages you may receive will be lessened in comparison to the amount of your own negligence. You will still be able to recover for your injuries, but the sum is contingent on your amount of fault.
Can I Get Compensation for My Accident Injuries if I Have a Preexisting Medical Condition?
Generally, if an individual has a preexisting condition, he or she may not recover damages for injuries related to that condition. However, the preexisting condition does not bar an injured person from recovering damages that were caused by the accident and not the preexisting condition.
For example, if a person has a permanent back injury and is hit by a car while crossing the street, that person may recover damages from injuries sustained from being hit by the car, but not for the previous permanent back injury. Likewise, if a person already has a condition that is worsened by an accident, he or she may be able to recover damages for the injuries sustained by the worsened condition and medical treatment for the worsened condition, but not the original condition that they already had. In some jurisdictions, there may also be a separate claim for aggravating a preexisting disease, illness or condition. It’s important to speak to an attorney to find out how preexisting conditions are treated by the court in your area.
Workers’ compensation benefits must be available to all employees under the Workers’ Compensation Act. Most states have their own workers’ compensation statutes that require employers to have workers’ compensation insurance coverage for their employees. This type of insurance is liability insurance to cover employers in case one of their employees is injured or killed during the course of his or her employment. Workers’ compensation benefits may cover payment for injuries sustained by the employee, emergency and/or future medical treatments, therapy, lost earnings and death benefits for family members. Also, in the insurance policy contract, employers must pay the premium for each employee. The premium per employee is usually based on the gross amount of wages that employee earns on an annual basis.
When a workers’ compensation claim occurs, the insurance pays the employee from the company’s policy. The company may be insured in a few different ways; the source of the insurance depends on the jurisdiction you’re in and the specific statutory conditions in that state. The insurance mandated by statute may be a fund managed by the government, a private insurance company or the employer may be self-insured (meaning, the company has no outside insurance and is held responsible for their own financial liabilities). Along these lines, in some states, self-insured companies may have an insurance contract that limits their financial liability to an employee up to a specific amount. This is to protect the company from detrimental losses, or total loss of the company’s finances. This type of contract may not be permitted by statute in some states, it depends on the statutory conditions for workers’ compensation insurance in the jurisdiction in which you are located.
Do Workers’ Compensation Benefits Cover Only Injuries, or Also Long-term Problems and Illnesses?
All employees are entitled to workers’ compensation benefits if they are injured while working in the United States. The injury may be due to an accident that occurred at the workplace or an illness related to the employee’s occupation.
Workers’ compensation benefits covers more than treatment for physical injuries that occur while working. Other benefits included may be:
- Lost wages (up to 90% in most states) that may include permanent or temporary wage replacement or payment of lost earnings to survivors in the case of the employee’s death.
- Healthcare, medical treatment, therapy services rehabilitation and any medical devices (such as prosthetics) that may be deemed medically necessary. This includes immediate treatment and future treatments.
- Disability benefits, for temporary or permanent disabilities.
- Death benefits to the deceased employee’s survivors.
The amount of benefits, types of injuries that receive benefits and length of time that the benefits may be paid will be specified by state law. In general, most statutes will provide benefits for medical treatments as long as the care received is for improvement, or rehabilitation. Once an injury is classified as permanent and static (progress is at a standstill), some jurisdictions will not extend benefits for employees. It is important to speak to an attorney familiar with the workers’ compensation statute in your area to discuss your situation and options.
Unfortunately, not all medications available on the market are safe. Prescription drugs that don’t act as intended can cause serious harm to the user. If you or a loved once has been injured by using a prescription drug, you may have a claim for the injuries you have suffered. It is important to seek an attorney to discuss any potential personal injury claims you may have.
What Type of Claim Can I Bring If I’m Injured by a Prescription Drug?
Victims of dangerous prescription medications usually have a personal injury claim. Additional claims may also be appropriate depending on the facts of your case, like medical negligence or wrongful death. If you have an action for personal injuries caused by using a harmful medication, there are a few legal claims that may be possible. You may have a claim against the manufacturer of the drug, the doctor who prescribed you the drug and/or the pharmacist who dispensed the drug.
If you have a claim against the manufacturer of the dangerous drug, you may have a claim of warranty fraud or a failure to warn claim. In a failure to warn action, the plaintiff (injured party or family member of an injured party) must show that the company knew about the harmful side effects and/or injuries that could occur when taking the drug. The company then failed to warn potential victims or doctors of the probable injuries. The manufacturer may also have issued warnings listing possible risks of taking the medication, however these warnings may have minimized the dangers or not described the dangers adequately, these actions may also fall under a failure to warn. Either by failing to warn potential victims or falsifying information, the company placed the harmful drug on the market.
Additionally, injured persons may have a claim against their doctor for prescribing them the dangerous medication that caused their injury. In some cases the physician may have ignored warnings about possible risks and likewise failed to warn patients of these risks. The doctor may also have failed to act as a reasonable doctor would in a similar situation by not monitoring the party using the drug and/or not recognizing symptoms of injuries until it was too late. These actions may be for professional negligence.
What Type of Damages Can I Seek in a Personal Injury Claim?
If a medication has caused you injury, you will most likely be seeking financial compensation (damages) for your injuries. In order for the court to award damages, you will have to prove the four elements of a personal injury tort case. The four elements are that the defendant owed a duty to you (the plaintiff), that duty was breached by the defendant, the breach caused the injury you sustained and that you were, in fact, injured as a result of taking the dangerous medication. If you have proved your case, the court will look at the amount of loss you have incurred, such as costs of medical care and treatment, loss of earnings, the severity of the injuries suffered, the amount of future assistance you may need and other factors depending on the facts of your case. In some cases, the court or jury may also award punitive damages (in addition to compensatory damages). Punitive damages will often consider the amount of pain and suffering the victim experienced. These types of damages are intended to punish the defendants for their wrongdoing, as pain and suffering can never be sufficiently compensated.
Based on the facts of your case, the property owner may be liable for the injuries you have sustained. It doesn’t matter if the property is public or private; the owners may still be held accountable for injuries on their property. The owner may be a private citizen, a corporation or business or even a government entity.
If you are entering slip and fall litigation, you will have to prove four elements of personal injury to the court. The elements necessary to prove personal injury are as follows:
- Duty-The injured party (or someone on their behalf) must show that the property owner had a legal duty to do everything possible (based on a reasonable person standard) to prevent the injury from occurring on his or her property. For example, business owners have a duty to prevent foreseeable harm that may injure their patrons.
- Breach of Duty-If the defendant’s duty has been proven, the injured party must also show that the defendant breached his or her legal duty. That is, that the defendant, by action or inaction, did not prevent the foreseeable harm that injured the plaintiff while on the defendant’s property.
- Causation-To prove causation, the claimant (plaintiff) must prove to the court that the defendant’s (property owner’s) breach of duty is what caused his or her injury. For example, the defendant knew of a dangerous condition on his or her property, failed to rectify it and this condition injured the victim.
- Injury-The plaintiff must show that there was an actual injury. This may be proven by testimony from the doctor that treated him or her, medical records and the victim’s own testimony.
What May the Defendant Do?
If you’ve proven the four elements of personal injury to the court, the defendant (property owner) will have a chance to present his or her defenses to the court. The defendant will try to show the court that he or she was not negligent and keeping the property safe of foreseeable harm and did exercise due diligence in discovering any dangerous conditions on their property. To prove there was not negligence on the defendant’s part, he or she must provide evidence that the same level of care was applied as any other reasonable property owner would in a similar conditions.
The defendant’s defense may be that the victim’s injury was self-inflicted or caused by the victim’s own negligence. The property owner had a duty to keep the property safe from hazardous conditions. However, there are situations that may be outside of the defendant’s control. If the injured person did not look out for his or her own safety, or deliberately engaged in a dangerous action, or created a risky condition, while on the defendant’s property, the defendant may not be held liable.
A catastrophic injury is a physical injury or illness that is regarded as extreme or particularly serious, has a considerable impact on the victim of the injury or illness and needs a considerable amount of medical treatment. Catastrophic injuries may not always be permanent, but they may take months or years to heal. In some cases, the full extent of the injuries may not be known for an extended period of time. The effects of such injuries may be long lasting, both physically and emotionally.
The types of catastrophic injuries are wide ranging. Some examples of such injuries are extensive burns, loss of a limb, or severe brain or spinal cord injuries. These injuries may affect many body systems, such as the central nervous system, gastrointestinal, urinary, respiratory, circulatory, excretory and reproductive.
There is no limit to the type of event or circumstances that may cause a catastrophic injury. Because of this, there are no specific classifications regarding accident types to determine if an injury may be classified as catastrophic. The severity of the injury itself makes that determination. Some examples of accidents may be automobile or motorcycle accidents, accidents in the workplace, defective products, toxic substances, birth injuries and injuries due to fire or other disasters.
What Type of Damages Can I Receive for Catastrophic Injuries?
A person who has suffered a catastrophic injury may be awarded damages for the losses incurred. The amount and type of loss depends on the injury and the situation that caused the injury. Damages for catastrophic injuries may include medical costs (at the time of injury and future medical treatment), lost wages, loss of future income (if the injured party will not be able to work for a period of time, even permanently), loss of household services, costs of additional care, loss of quality of life, pain and suffering, shortened life span and others.
In addition to these types of damages, courts in some jurisdictions will also award punitive damages. Punitive damages are awarded by the fact finder (judge or jury) in addition to compensatory damages. The goal of punitive damages is to punish the responsible party for the injuries the victim has suffered. Not all jurisdictions will award punitive damages and not all cases will warrant such an award, it depends on the jurisdiction and the facts of your case.
Who is Responsible for a Catastrophic Injury?
If the injury suffered by the victim was caused by an intentional act, negligence or a defective product, there may be a cause of action for personal injury. When determining who is responsible for your catastrophic injury, it is important to look at the specific facts of your case. There may be more than one person who played a role in the sustained injuries. Depending on your case, the responsible party may be your doctor, nurse, hospital or other medical personnel, the owner of the motor vehicle that caused your accident, your employer or the manufacturer of a defective drug or product. It is important to seek an attorney, in your area, experienced in catastrophic injury cases to help investigate your case and determine the appropriate parties who may be responsible for your injuries.
If you’ve been injured due to an assault and battery, there may be two different types of claims against the person who injured you, criminal and civil.
In a criminal case, the assailant may be prosecuted by the government. If the party is found guilty of assault and battery, he or she may be punished with imprisonment, probation, restitution to the victim or other types of punishment as determined by the court.
In a civil claim for assault and battery, the goal is to obtain compensation for the victim’s injuries, not punishment for the assailant. As a victim, you may have a civil claim against the person who harmed you for damages sustained due to your injuries. If you succeed in your civil case, you may be awarded compensatory damages from the defendant.
Compensatory damages are intended to reimburse the plaintiff for wrongs done to him or her by the defendant. The court will consider the amount of medical costs, treatments costs, lost wages, loss of household services, the severity of the injury, pain and sufferings and other factors, when determining the amount of compensation due to the victim. Additionally, in some jurisdictions, punitive damages may also be awarded by the judge or jury. The intent of punitive damages is to punish the defendant financially for wrongs perpetrated on the plaintiff, in addition to compensatory damages.
What is Assault and Battery?
Assault and battery are actually two separate legal claims. They commonly go together, but they don’t have to. Depending on the circumstances of your injuries, you may have a claim for assault, a claim for battery or both. Both claims require that the assailant intended to harm the victim. The harm may be actual physical injury, or it may be to induce fear in the victim.
Assault occurs when a victim is threatened with physical injury or violence. The victim must actually fear that physical harm to them will take place. A verbal threat may not be enough to show assault. Additionally, the fear of immediate harm, that the victim felt, must be reasonable for the situation. The court may determine what was reasonable in the situation based on the facts of the case presented to the court.
Battery is when the injury takes place. Battery is most often the result of an assault. When battery takes place, the assailant does not have to be the person who came in direct contact with the victim. However, the physical injuries sustained must have been caused by the defendant’s actions. It’s enough that the defendant’s actions created a situation that caused the victim’s injuries. An example may be if the defendant was playing a practical joke on the plaintiff and as a result of the joke, the plaintiff was physically injured. The defendant did not intend for the plaintiff to be hurt, but did intend the joke, which resulted in circumstances that caused injury to the victim.
Commercial litigation is a broad term used to describe disputes that arise in a business setting. If the parties cannot settle their dispute on their own, they may turn to litigation to solve it.
Examples of types of commercial litigation include disputes over employment issues, business dissolutions, antitrust and antitrade proceedings, corporate fraud claims, breach of contract actions and debt collection issues. The scope of commercial litigation is very broad and can encompass simple business-related disputes, complex transactional matters and everything in between.
Should I Consider Litigation in a Business Dispute?
If you have a business dispute and are thinking about litigation, there are factors you should consider before filing a claim with the court. It is important to speak to an attorney to discuss your possible claim and evaluate your options prior to imitigating the litigation process. Some factors to consider include; are the parties (or individuals) implicated in your business dispute and the sum of money at issue.
If the other party involved in the dispute is someone you would like to have a future business relationship with, litigation may not be the most prudent choice. Prior to entering into a lawsuit, you may want to try to resolve your issues amicably. In some situations, mediation or arbitration might be the appropriate tool to resolve the business dispute and also save your business relationship. You will also want to consider the amount of money involved in the dispute and if the other party has the means to compensate you if you do go forward with litigation and succeed in your claim.. Typically, in a commercial litigation lawsuit, each party will be responsible to pay their own legal fees and costs throughout the process, including attorney’s fees. Litigation can be time consuming and costly, so make sure that the end result is worth the expense.
Alternatively, you may have other (non-monetary) reasons for pursuing a commercial litigation claim. Perhaps your dispute involves an important legal issue that must be resolved for the benefit of continuing your business, or your business’s reputation is at stake. These types of factors may outweigh the legal costs you may face and are important to consider when deciding if litigation is the best option for you and your business.
If I Have a Business Dispute, is Litigation the Only Option?
If you have a business dispute, you may weigh the pros and cons and conclude that litigation is not the most beneficial choice for you. Other options may be less time consuming and less costly. The most commonly used alternative to litigation is Alternative Dispute Resolution (ADR). Some courts are starting to require parties go through ADR before pursuing litigation for their business issues. There are two ADR processes, mediation or arbitration. Mediation is a process where the parties meet with a trained neutral third party (licensed mediator) to resolve their issues and reach a settlement agreement. This process is non-binding on the parties and the agreement is reached solely by the parties, not decided on by the mediator. If an agreement cannot be reached, the mediation concludes.
Similarly, arbitration involves a meeting between the parties and a neutral third party (arbitrator). However, in arbitration, both parties present their sides to the arbitrator and he or she makes a decision based on the evidence the parties have presented. The arbitrator’s decision is binding on both parties and may be enforced by the court. This process is similar to litigation, but it’s less costly and less time consuming. If you have an ADR clause in your business contract or are considering options alternative to litigation, speak to an attorney to answer your questions and help you determine your best option.
Two types of people may be injured while aboard a cruise ship, paying passengers or crew members (the staff of the cruise ship). Both types of injured persons may have different legal claims. The claims depend on the injuries sustained, the persons who may be liable for the injuries and the law applicable to the claims. Some examples of possible claims are negligence, medical negligence or assault. Generally, the ship owners will be liable for any injuries of passengers or crew members, since the owners have a duty to provide a safe environment and protect persons aboard their ship from known (or foreseeable) dangers.
Injury to Cruise Ship Passengers
If the injured person is a passenger on the ship, he or she may have a personal injury claim against the ship owner for compensation for injuries sustained. The legal claim will usually be for negligence. The injured person (or family members on his or her behalf) must be able to prove the elements of negligence to the court. The elements of negligence are as follows:
- The ship owner had a legal duty to the passenger
- The duty was breached by the ship owner
- As a result of that breach, the passenger was injured
- The passenger sustained damages as a result of his or her injuries
Injury to Cruise Ship Crew Members
If the injured person was a crew member of the cruise ship, he or she may have a legal claim under the Federal Jones Act for compensation. His or her claim will also be against the ship owner (employer). The Jones Act provides legal remedies for injured workers who are seamen. It is similar to the Federal Employers Liability Act that gives injured workers legal rights to compensation against their employers. Under the Jones Act, the crew member must be able to prove the elements of negligence (by the employer/ship owner) in court; the elements of negligence are the same as for paying passengers.
Causes of Injuries on Cruise Ships
There may be situations where the injury was not caused by a dangerous condition on the ship, but by another person aboard the ship. These situations may be of assault or a medical negligence. If assault of a passenger was committed by a crew member, the ship owners may be held liable for the acts of their employee, in some jurisdictions. In other jurisdictions, the ship owner will not be held liable for employee actions unless the plaintiff (injured person) can show that the owner (employer) was negligent in hiring a dangerous crew member, or knew of the crew members propensity for violence and did nothing to stop it, or continued to employ the crew member.
Similarly, jurisdictions may hold ship owners liable for hiring incompetent doctors and medical staff, but not hold them liable for actions of their medical staff when treating passengers. Other courts may hold a ship owner liable for any actions of employees, whether they are a crew member, medical doctor or other medical staff member. The possible claims and liable parties will depend on the situation, the law that applies and the court (jurisdiction) that hears the claim. Since there may be many variables that affect what type of claim the injured party may have, what jurisdiction the claim may be in and what law apples, it is important to speak to an attorney about your situation and to answer any questions you may before pursuing your claim.
The drunk driver who caused the motor vehicle accident in question is responsible to the persons injured in the accident. However, in some cases, the injured party (or his or her family members) may also file an action against a third party for damages arising from that drunk driving accident. A third party claim in such an accident may be against a variety of persons or even businesses. Those held liable for injuries stemming from the accident may be a police officer, employer, passenger, social host or a bar or restaurant.
Situations where such third parties may be liable for a drunk driver’s impaired state can include:
- If a police officer has knowledge that a driver is intoxicated and lets them continue to drive
- If an employer provides alcohol at a work function
- If a passenger gives an intoxicated driver alcohol
Social hosts and business establishments may be held statutorily liable for the actions of a drunk driver according to the law in the jurisdiction where the accident took place.
Some states have Alcoholic Beverage Control (ABC) statutes that may hold a social host responsible for actions of their guests. A minority of states will extend this statute to cover hosts of social gatherings. If it is applied, a social host is a private individual (not licensed to sell alcohol) who has provided alcohol free of charge to persons at some sort of social event, gathering or party. Under the ABC statute, the host would be held responsible for actions of intoxicated guests once they left the party. This law applies to guests who are under age, visibly intoxicated or have a negative history with alcohol. However, a majority of courts will not extend the ABC statute that far. Instead, other states may hold a social host liable of guest’s actions under a legal theory of negligence. The host should have known that the actions of an intoxicated guest may have been dangerous to others. On the other hand, a majority of jurisdictions will not hold a social host responsible for the actions of inebriated guests at all.
Similarly, some businesses may be held liable for the actions of intoxicated patrons under the state’s Dram Shop Act. Under this act, the alcohol vendors (licensed sellers of alcohol) may be held liable to a person injured by a drunk driver who became intoxicated while in their establishment. The law places a legal duty on alcohol vendors to protect innocent third parties from harm due to a drunk patron; a noticeably intoxicated patron may be considered a probable danger to others. If your state has a Dram Shop Act, you will have to be able to prove that the licensed alcohol seller continued to sell alcohol to an individual who was clearly drunk. In order for a person to be considered intoxicated under this statute, their behavior must be obvious to others. This may refer to impaired speech, inability to walk or a strong smell of alcohol. Furthermore, you must be able to show that the vendor was aware, or should have been aware, that the drunk individual was going to drive his or her automobile. Not all jurisdictions have a Dram Shop Act.
Medical procedures do not always have the desired outcome; unfortunately, sometimes unexpected or unpreventable results occur and are not the consequence of medical malpractice.
In order to have a claim for medical malpractice, your injury (or undesired/harmful result of a medical procedure or treatment) must have been caused by negligence by a healthcare professional. Medical professionals must meet the industry’s standard of care when treating patients. This standard of care is determined by the level of care other medical professionals or workers would provide to an individual under the same or similar circumstances. Healthcare workers that are held to this standard may include doctors, nurses, hospital staff members, dentists, other medical related workers or the hospital itself.
If the standard of care is not met and the patient is injured as a result of this failure, the injured party may have a claim for medical malpractice. To determine if the facts of your case merit a medical malpractice claim, it is important to speak to an injury attorney knowledgeable in this area of law.
How a Medical Malpractice Claim Works
If you do have a claim for medical malpractice, you must be able to prove certain elements of your case to the judge or jury. There are four elements to prove.
- The defendant (medical professional or hospital) had a duty to the plaintiff.
- The defendant breached this legal duty.
- The breach caused the plaintiff’s injury.
- The defendant’s failure to meet the industry’s standard of care caused harm to the plaintiff.
The third element, causation, is often the most difficult to prove in a medical malpractice case. The plaintiff must show that the defendant caused his or her injury due to negligence; that the injury was not a typical result of the plaintiff’s illness or medical condition that could not be prevented.
Accordingly, the cause of the plaintiff’s injury may be actual or proximate. If the causation is shown to be actual, the plaintiff’s injury was directly caused by an action (or inaction) by the defendant. If the defendant had not been negligent, the plaintiff would not have suffered injury. Thus, proving actual causation uses what is called the “but for” test; the injury would not have occurred “but for” the defendant’s action (or inaction).
Likewise, the cause of the plaintiff’s injury may be proximate if it can be shown that the defendant’s negligence was the legal cause of the plaintiff’s injury. The proximate cause set forth a sequence of events that caused the plaintiff’s legal injury. Since actual and proximate causation may be difficult to prove, it may be necessary to rely on the testimony of an expert witness to show causation in your case. The facts of your case and kind of injury will help determine the type of medical expert you should have. Additionally, an attorney knowledgeable in medical malpractice litigation will be able to assist you in deciding if expert testimony is in your best interests to prove causation in your case.
The terms “assault” and “battery” are often used interchangeably, but they are not the same thing. An assault can be defined as the threat to use unlawful force to inflict bodily injury upon another. The threat, which must be believed to be imminent, must cause reasonable apprehension in the plaintiff. Where the defendant has threatened some use of force, creating an apprehension in the plaintiff, an assault has occurred. The focus, for the purpose of determining whether a particular act is an assault, must be upon the reasonableness of the plaintiff’s reaction.
If the defendant threatens to use force against the plaintiff, but clearly states that the use of force will not be imminent, and will instead occur at some point in the future, then the plaintiff is unlikely to prevail on a claim of assault. If the threat is imminent, and the defendant appears capable and intent on carrying it out, the plaintiff will likely succeed in proving an assault occurred.
Battery is the intentional and unpermitted contact with another person. A battery, for practical purposes, is the end product of an assault. A plaintiff in a battery claim does not need to prove an actual injury, as long as the plaintiff proves unlawful and unpermitted contact with his or her person or property. For example, plaintiffs have successfully proven a battery where the defendant grabbed onto the plaintiff’s coat. In addition, it is not necessary for the contact to be with an object in the possession of the plaintiff or the plaintiff’s body. An unpermitted contact with property of the plaintiff, located within the plaintiff’s proximity, may also constitute a battery.
An owner of a dog, or any animal for that matter, may be held liable for injuries the animal inflicts on others. However, the ease with which a plaintiff can win a “dog bite” lawsuit differs from jurisdiction to jurisdiction depending on the legal theory of recovery available in the plaintiff’s location. Some jurisdictions require the plaintiff to show that the animal owner knew, or should have known, that the animal was inclined to attack or bite. In other jurisdictions, the plaintiff may only need to show negligence on the part of the owner in order to recover money for his injuries. If a wild animal, such as a lion, bear or monkey, injures the plaintiff, the animal’s owner may be held accountable under a theory of strict liability for plaintiff’s injuries regardless of the plaintiff’s conduct.
DOG BITE STATUTES
Some states have “dog bite” statutes designed to address these matters. Additionally, some municipalities may also have their own statutes that address the responsibility of pet owners to answer for the actions of their pets.
If the plaintiff is an adult, the owner of an animal may offer as a defense to the plaintiff’s claim that the injured party provoked the animal. Where the plaintiff has been given clear warning that an animal should not be approached, petted or talked to, and still proceeds with that action, the owner may be able to avoid responsibility if the animal thereafter attacks the plaintiff. This defense is not available, however, if the plaintiff is a child.
Once the plaintiff has established that the animal owner is liable for his injuries, the plaintiff must also establish the amount of his or her damages. The plaintiff should introduce evidence of how much it has cost to treat the injury, such as doctor and hospital bills. In addition, the plaintiff may be able to recover lost wages if the injury kept the plaintiff out of work. The plaintiff is entitled to compensation for any permanent disability caused by the injury, as well as compensation for pain and suffering.
Defamation includes both slander and libel. Generally, slander occurs when the reputation or good name of someone is damaged as a result of false statements that are made orally. Libel, on the other hand, occurs when false statements regarding another are put in writing.
Whether a particular statement, oral or written, constitutes defamation in the nature of slander or libel will depend upon the particular circumstances and the identity of the parties. To prevail in a defamation lawsuit, a plaintiff must prove that the defendant made a false and defamatory statement about the plaintiff that was communicated to a third party. Thus, a false and objectionable statement sent in an email to the plaintiff’s co-worker may be libelous. The plaintiff can usually succeed by showing the communication was either intentional or negligent. Finally, it is also possible for the plaintiff to bring a libel suit where the plaintiff repeats the alleged defamatory statement. This is called self-publication. This can occur, for example, when an individual applies for a job and has to tell the prospective employer about something the previous employer said that was false.
HOW A LIBEL OR SLANDER CASE PROCEEDS
Before beginning a libel or slander lawsuit, the plaintiff must determine whether or not the objectionable statement is true. No matter how damaging, insensitive, rude or inappropriate a statement may be, the plaintiff will lose if the statement is true.
The “public” plaintiff has additional hurdles to overcome to recover for libel or slander. An example of a public figure is a politician. Along with establishing all of the regular elements of the tort, a plaintiff who is a public figure must also show that the defendant knew the false statement was false, or at least acted with reckless disregard as to its truthfulness. Newspapers may escape liability for libel when they merely report false statements as long as the paper had no particular reason to doubt the statement at the time it was printed.
Finally, the plaintiff often has to prove economic harm in order to recover on a defamation suit, i.e., the plaintiff may need to be able to demonstrate a loss of business as a result of the defamation in order to establish a right to the recovery of money. However, some types of statements are so damaging that the plaintiff does not have to prove any economic loss. These statements tend to be those that accuse the plaintiff of sexual impropriety or criminal conduct.
Yes. The average member of the public is entitled to privacy protections, although the strength of those protections will vary depending upon the particular factual circumstances. Generally, there are four different actions that an injured plaintiff can allege to recover for an unlawful invasion of his privacy.
1. Unlawful Appropriation of another’s image.
In this type of invasion of privacy, the plaintiff could make the claim, for example, if the defendant uses the plaintiff’s picture in a commercial or advertisement without his/her permission.
2. Nature of Intrusion (this might need a new title)
Another type of wrongful invasion of privacy considers the nature of the intrusion. If the plaintiff can prove that the defendant intruded into his or her solitude, seclusion or private life in a manner that would be considered highly offensive to a reasonable person, the plaintiff is entitled to recover damages from the defendant. The issue of what actions are considered highly offensive depends greatly upon the factual circumstances under examination.
3. Public Disclosure of Private Facts
This cause of action requires that the defendant disseminated facts having no link to a legitimate public concern and that dissemination resulted in embarrassment, humiliation or offense to the plaintiff. Whether the public has a legitimate concern in otherwise private facts about the plaintiff is always dependent upon the particular circumstances.
4. Projected in False Light in Public Eye (might need new title)
The final type of privacy right is the right to be free from being placed in a false light in the public eye. This cause of action is very similar to a defamation action. In short, the plaintiff alleges that a communication about the plaintiff was made by defendant, it is untrue, and it was made to the public. The main difference between this cause of action and defamation is that for the invasion of privacy tort, the communication need not be defamatory; it need only be false and highly offensive to a reasonable person.
An owner of property has a duty to protect members of the public from injury that may occur upon his or her property. The injured person may be able to recover money for those injuries if he or she can prove that the property owner failed to meet that duty. The hurdle plaintiffs face is that the nature and extent of the property owner’s duty will vary depending upon the facts of the situation and the jurisdiction in question.
Some states focus on the status of the injured visitor to the property. These states divide the potential status into three separate categories: invitee, licensee and trespasser. An invitee is someone who has been invited onto the land because that person will confer some advantage to the property owner, such as a store patron. An owner of property is required to exercise reasonable care for the safety of the invitee. A licensee is someone who enters upon the land for his or her own purpose, and is present at the consent, but not the invitation, of the owner. The owner’s duty to a licensee is only to warn of hidden dangers. A trespasser is an individual who enters onto the property without the knowledge or consent of the owner and who remains there without any right or permission. Trespassers have difficulty suing property owners. In some cases, the owner must also warn trespassers of the hazards if they are unlikely to be discovered by the trespasser and could cause serious injury or death.
Other states focus upon the condition of the property and the activities of both the visitor and owner, rather than considering only the status of the visitor. In these states, a uniform standard that requires the owner of the property to exercise reasonable care to ensure the safety of invitees and licensees is generally applied. The plaintiff must prove that the duty of care has not been met, through an examination of the circumstances surrounding the entry on the property, the use to which the property is put, the foreseeability of the plaintiff’s injury, and the reasonableness of placing a warning or repairing the condition. Obviously, whether reasonable care has been rendered depends greatly upon the particular circumstances.
The property owner’s duty of care toward children is greater than the duty owed to adults. Even if the children are trespassers or engage in dangerous behavior, the property owner must still take precautions to prevent foreseeable harm to children. The classic example of a property owner’s greater duty of care to children arises in the context of backyard swimming pools. Owners must fence, gate, and lock their pools in a manner that keeps children out, and if they fail to do so, they will be found liable for injuries to children, even if the children were trespassers that were warned to stay off the property.
Generally speaking, an owner of property may not use deadly force to defend the property. Society values human life and bodily integrity much more than property. The life, health and safety of an individual, even an intruder, is considered to be more valuable than the fine china or stereo that an individual is trying to steal.
An owner of property is entitled, however, to use reasonable force to prevent someone, or something, from entering onto his of her property or to remove something. What, under normal circumstances, may constitute a battery, assault or other intentional tort will not be considered unlawful in situations where it is performed as a reasonable use of self-help in defense of property. However, the use of force calculated to do great bodily harm, or cause death, is not permitted.
There is one narrow limitation upon the use of deadly force, where it is allowed. Where an intruder threatens personal safety, as well as a threat to property, or where the intruder is committing a forcible felony, deadly force may be appropriate.
Most individuals who are injured at work are prohibited from filing ordinary personal injury lawsuits against their employers. Instead, injured workers are generally required to file a claim under the state’s workers’ compensation system. An injured railroad worker must bring a claim for benefits under the Federal Employer’s Liability Act (FELA) for compensation for his injuries. FELA is similar to many state workers’ compensation systems with the exception that a railroad employee must be able to prove some level of employer negligence in order to make a recovery. In comparison, most state systems are based upon no-fault theories of recovery where neither the negligence of the employer or the employee is examined.
Laws, rules and regulations require a railroad to furnish a reasonably safe workplace for the benefit and protection of its employees. In keeping with this requirement, a railroad has a duty to inspect and discover defects that may result in injury. In some circumstances, this may include the duty to uncover defects that should be obvious to a railroad employee. A railroad also has a duty to warn its employees of any hazardous or unsafe conditions of which it is aware, or should be aware. A railroad is also required to take other steps to ensure the safety of its workers, including providing adequate training and supervision, appropriate tools and safe equipment and enforcing only reasonable work quotas.
No. Generally, most states that recognize a wrongful death cause of action limit the number of potential plaintiffs. Some states limit this group to the deceased’s primary beneficiaries, defined as the surviving spouse and the deceased’s children. Other states allow the parents of the deceased individual to bring a wrongful death claim. In addition to these individuals, some states recognize the rights of any dependent, whether closely related or not, to bring a wrongful death claim provided the person actually depended on the deceased for economic support.
Some states require any recovery gained in a wrongful death action to be divided amongst the deceased’s heirs at law or to be distributed to the deceased’s heirs at law as it would be in any normal probate proceeding. In these situations, distant relatives may receive some “trickle down” of damages, even though they were not financially dependent upon the deceased during his life. In addition, if more than one plaintiff is entitled to recover, all plaintiffs will share in the award. The manner in which the award is divided can be confusing and will depend upon the laws in the particular jurisdiction where the matter is brought.
A slip and fall action is a type of personal injury lawsuit filed by a plaintiff who has been injured by a slip and fall, usually on the defendant’s property. The plaintiff in slip and fall cases must usually show that the owner of the property had notice or knowledge of the condition that caused the accident but failed to rectify it within a reasonable amount of time. Additionally, if the plaintiff has knowingly encountered a hazard, then he or she may have trouble holding the defendant liable.
Personal injury actions require, by their very nature, that someone be injured. The requisite injury can either by physical or, in some cases, emotional. The general goal of personal injury actions is to place the blame for the injury on the party who caused it and to require them to compensate the injured person for the losses sustained.
Not every injured plaintiff is entitled to recover damages for the injury he or she has sustained. Besides an injury, the plaintiff must establish, through evidence, that the defendant is legally liable for his or her injuries. This requires proof of causation both in terms of actual, factual causation and legal causation. Whether legal causation is established depends on the facts and circumstances of the particular matter in question. The defendant can be held liable as a result of either the actions he or she took, or the actions he or she had a duty and failed to take.
Some personal injury actions revolve around intentional conduct, which means that if an individual intentionally harms another, or knows that the conduct he or she is engaged in has a substantial likelihood of harm, he or she may be liable for the resulting harm. Other personal injury actions are based on negligence. Under a negligence theory, an individual is liable for the injuries caused by his or her own actions, or inaction. Still other types of personal injury actions are based on strict liability, a no-fault system where liability may attach regardless of the fault of the various parties, including the plaintiff.
In some situations, the defendant’s conduct, while questionable, does not rise to a level that entitles the plaintiff to a recovery. For example, if a plaintiff knowingly and willfully chooses to encounter a known hazard, the law holds that he or she has “assumed the risk of injury” and therefore the defendant is not liable. Plaintiffs are denied recovery in other cases if their subjective belief about a situation does not match an objective “reasonable person” standard.
• Personal injury law can involve many different types of claims, theories and principles. Some of the more common types of personal injury actions:
• Animal bites can result in the animal owner’s liability to the person who is bitten or who is injured while trying to avoid a bite.
• Assault and battery are two intentional torts that involve improper contact with another, without permission or consent or the threat of such contact.
• Aviation accidents often result in serious injury or death.
• Defamation and privacy are two separate areas that concern the rights of individuals to have their names and reputations protected, and also to have their privacy preserved.
• Motor vehicle accidents, such as car accidents or semi truck accidents, raise numerous questions as to the liability of one participant to another and also raise interesting questions regarding who should be responsible for covering the losses.
• Premises liability concerns the responsibilities of owners of property to safeguard others from dangerous conditions or hazards on their property and to prevent others from being injured while on their property.
• Property damage causes of action concern the rights of owners of property to protect their property from damage, theft or intrusion.
• Railroad accidents may result in personal injury or death and may subject the railroad to liability.
• Slip and fall cases relate closely to the duty of an owner or possessor of land to maintain their property in a safe manner for the benefit of others lawfully entering upon the land.
• Wrongful death actions may be brought by the dependents or beneficiaries of a deceased individual against the party whose action or inaction caused the death of their loved one.