Personal Injury and Negligence Demystified
Personal injury law is a complex field that encompasses a range of legal doctrines, each serving to prioritize safety and accountability in our communities. Central to most personal injury matters are the concepts of liability and negligence and their subsequent impact on an individual’s right to damages and/or compensation in a personal injury case.
Liability
In a general sense, "liability" refers to the responsibility of an individual to comply with the law and avoid causing harm to others. In terms of personal injury law, liability refers to a person’s legal responsibility for personal injury or damage to another person or their property. Not all incidents that cause injury or damage are actionable under personal injury law, particularly if liability is unclear. For the injured person to have a viable legal claim, liability must be specific to the incident in question.
Negligence
Negligence is a legal theory through which we can determine liability in personal injury cases. Put simply , negligence describes the scenario in which liability is assigned to an individual who does not exhibit the responsible behavior of a "reasonable person". Negligence can be evaluated through a variety of standards, depending on the context of the incident and the relationship between the parties. For example, negligence in the context of a property injury will be evaluated differently than a car accident. Some common personal injury standards include:
Although some injuries may occur as a result of seemingly careless behavior, it can be difficult to prove the element of negligence in order to hold the at-fault party liable. Specifically, if there is no reasonable way to determine that the at-fault party acted negligently in the given context, liability may not be possible. The challenging nature of negligence in personal injury law underscores the importance of booking a free consultation with a qualified and experienced personal injury attorney.
Negligence – Foundation of Personal Injury Law
Negligence is the legal doctrine that most personal injury cases are based upon. Recent legislation has made intentional torts like dog bites and a few others harder to bring, so it is even more common than ever. So what is it? The basic legal definition is the failure to exercise the degree of care that a reasonable person would exercise in the same or similar circumstances. We start with the first half, the duty to exercise the degree of care than a reasonable person would in the same or similar circumstances. This does not mean the defendant has to act perfectly. Accident, even negligence accidents, happen all the time. Especially when driving, people make mistakes. Cases like negligence cases can only succeed if the defendant acted unreasonably in relation to an ordinary person. Someone driving a car doesn’t need to drive the speed limit. They need to drive uncontrollably. Driving 19 miles per hour in a 55 mile per hour zone does not make them liable for any accident. The law does not require perfection, just reasonableness. The second part is the breach. That is the mistake. The law’s standard is that it is a mistake of a person of ordinary prudence. It is not cheerfully obnoxious. It is not trying to hurt someone. It is a mistake that we have all made under various circumstance. The mistake must be something that would be unreasonable for us to do. There is no liability for making a mistake. There is only liability if the mistake shatters the expectation we have a people to act responsibly. If you are speeding in a neighborhood and someone runs in front of you, that might not be on you. But if we are talking about an elderly woman and you are going 80 miles per hour, that is on you. The key to understanding all of this is the expectation we have in our society. Is what you did what everyone should do, or is it something that is unreasonable? Did you fail to do what an ordinary person would do? Did you allow something to happen? The second element is that the defendant has to be the direct cause of the accident. If you jump out of the way, but didn’t get out of the way in time, or that you are the wrong way, or that you were being chased by a knife wielding lunatic, the attack is not on the basis of the car accident. Instead it is on the attack itself. If, on the other hand, an investigation reveals that you were texting at 90 miles an hour with a cell phone in your hands, then the texting and driving may be the cause of the accident. It is the kind of decision that someone would expect that people would act rationally. And it is clear that people texting while driving create dangerous situation. So if the text message while driving creates the situation there is a liability. The third element is damages. No one is sued for causing an accident. You can accidentally back into your neighbor’s car all day long. But if you’re doing five miles per hour and you cause damages, it just means you’re expected to fix the car. It is insurance that pays for the first $3,000 of damages. And then after that, if it is over six months old, the medical bills come out of the settlement. That is why it is important for someone to speak with any injury attorney.
A Primer on Compensatory Damages
A major component of personal injury law is the awarding of damages to compensate the victim. There are various headings under which damages fall within a personal injury claim. Generally speaking, there are two main components to a claim for damages: first, those of an economic nature, and second, those of a non-economic nature. The most common examples would include loss of income and out-of-pocket medical expenses for the economic component and pain, suffering, and loss of enjoyment of life for the non-economic component. Both sets of damages are very important to maximizing the value of one’s claim.
In order for a claim for loss of income to be recovered oftentimes there is a need for the appropriate documentation to be provided in support thereof, namely Employer Records, Tax Returns and W-2s, in order to verify the income being claimed and that there has been a loss. The medical records, billing statements, insurance documentation will serve as itemized proof of the medical expenses being claimed.
Pain, suffering and loss of enjoyment of life losses are not easily quantifiable. Insurance companies and their adjusters want a formula that they can use to compensate a claimant for these losses. It’s human nature to want something that is easily definable, whether you’re hurt or you have a cold. Unfortunately, pain and suffering can’t readily be defined. Having a skilled personal injury lawyer will make all the difference in achieving a result that will make a significant impact on your quality of life.
The Function of Settlement in Personal Injury Cases
A settlement is an informal resolution to a personal injury case in which the parties agree not to proceed with litigation. Although settlements are often procured through negotiation, they may also be reached through mediation or even arbitration. If a case involves several distinct disputes, multiple settlements may be executed before all of the issues are resolved. The parties may seek settlement for a single dispute or for multiple disputes but cannot procure a settlement without waiving all other claims related to that dispute.
In contrast, a trial is a structured legal process. The procedure adheres to fixed rules derived from statutory and common law. Parties at trial have clearly defined roles, including judges and juries. The parties may or may not represent themselves or obtain representation through attorneys. All parties are expected to comply with the requirements within their roles, which are in turn defined by the law. In all cases, a court is responsible for imposing the verdict that concludes the entire legal process.
Settlements avoid several of the challenges associated with going to trial. For example, trial often takes considerable time, which may last weeks, months, or even years. Additionally, trial becomes a matter of public record that everyone can access. The jury’s verdict is open to scrutiny and may become an issue in itself. Finally, trials can become prohibitively expensive as attorney fees and verdict costs accrue.
When negotiating a settlement, parties avoid many of these challenges. They can remain in control of the proceedings by using a mediator or settling the case directly through negotiations. They also may do so in private rather than in front of a judge and jury. Furthermore, costs in both attorney fees and court-related expenses can remain low. Finally, each party can negotiate a settlement that meets their unique needs and allows them to move forward without the added concerns a trial may bring.
While avoiding the costs and inconveniences of trial may be alluring, settlements are not without their drawbacks. Parties who settle their cases often incur fees for negotiating the settlement agreement. Legal counsel can add additional costs if an attorney is involved. This can lead to protracted legal fees, which can approach, if not exceed, the costs of trial. Moreover, while parties can negotiate a settlement that meets their needs, they will have to give up all of their other legal claims and risk too high of a settlement offer.
Statute of Limitation – Timing Matters
In personal injury law, timing is crucial – particularly the lag period between the alleged injury and the plaintiff’s filing of a lawsuit. This gap is called the "statute of limitations." Each state has its own statute of limitations for different types of lawsuits. In New Jersey, for instance, the statute of limitations for personal injury claims is two years, while property damage claims have a statute of limitation of six years.
For any personal injury case, the statute of limitations runs from the injury date, rather than the date the plaintiff files the claim. That’s why the statute of limitations is crucial for personal injury claims. If the statute of limitations passes, the plaintiff can’t file a claim, no matter how convincing or compelling the case appears to be. There are some exemptions that may delay the statute of limitations, such as the plaintiff being mentally incompetent, being in a prison system, or the alleged injury occurs while the plaintiff is a minor (under 18 years old) .
The discovery rule is an exception to the statute of limitation rule. The discovery rule states that plaintiff’s filing of the personal injury claim can be delayed if the plaintiff can prove reasonable diligence that they couldn’t have discovered the alleged injury and the cause of the injury prior to the injury claim’s expiration of statute of limitations. For example, an occupational disease involving toxins may not show symptoms for several years, thus allowing a plaintiff (who file an injury claim before the symptoms occurred) file a claim within the statute of limitations of the disease. The obvious and most practical reason for a statute of limitation is to give defendants a sense of finality. Otherwise, cases may drag on for years with the plausible "maybe" that a case has been filed or a settlement agreed upon.
Identifying Medical Malpractice
The medical malpractice term refers to when a doctor, hospital, or any other individual responsible for your health or well-being provides you with inappropriate care resulting in additional injury, pain, suffering, and loss (physical and/or financial). Medical malpractice is most often seen within personal injury law. There are a number of situations that can be encompassed within medical malpractice. Medical malpractice may occur due to prescribing the wrong drugs, failing to diagnose an illness or disease, or obviously messing up in surgery.
There is more than one variable that must be proven in order for a medical malpractice claim to prevail. First, it has to be proven that the doctor’s care fell below the standard level that is expected. Then it must be proven that the improper and unexpected care caused additional harm and damages. Sometimes the damages are permanent or life-threatening and sometimes they can be temporary. The courts are strict on proving that all four elements of medical malpractice exist before awarding any financial recovery.
Comparative and Contributory Negligence – What It Means?
Comparative and contributory negligence refer to the way that fault is apportioned among people in personal injury cases. The basic premise is that if a plaintiff has been negligent (and thus contracts some of the liability for an accident) but the defendant has also been negligent, the key question is whether the plaintiff’s carelessness was greater than that of the defendant and, if so, what percentage the plaintiff bears of the total negligence. How the court decides what percentage of the negligence a defendant bears is important in deciding how much the defendant is accountable for the plaintiff’s injuries. If the court finds that the plaintiff is responsible for, let’s say, 20 percent of the negligence, then the defendant is only responsible for his or her portion (80 percent) of the plaintiff’s injuries. If the defendant is then found responsible for $100,000 in an injury case, then the plaintiff would only receive $80,000 (the defendant’s 80 percent of $100K), since the plaintiff already bore 20 percent of the fault (which amounts to $20,000). Depending upon the percentage of comparative negligence, the plaintiff may receive no money at all for the injuries suffered. At the other end of the spectrum — if plaintiff’s contribution to the accident is more than the defendant’s — plaintiff is then considered to be contributorily negligent and barred from recovering anything from the defendant’s negligence (and any other parties found responsible). Many states follow the rule of comparative negligence, which only applies if all parties to an accident are negligent.
The Need to Hire an Attorney
Even with a general understanding of the personal injury legal process, regardless of the strength of your injury claim, it is incredibly important to have legal representation. Your attorney can protect your interests and fight for you to get more compensation than you would receive if you represented yourself in your case. When pressing a personal injury claim, there are many legal terms, documents , and insurance issues to consider. Having an experienced personal injury lawyer on your side makes it easy to avoid costly mistakes.
Your personal injury lawyer will be able to: A personal injury lawyer will represent you after the accident and protect your interests in every way applicable. They will protect you from the other party’s insurance company so you are not victimized twice. Your personal injury claim needs to be thoroughly investigated, documented, and prepared. A personal injury attorney will be well-versed in all aspects of personal injury cases and help secure a "win" for you and your family.