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Personal Injury Elements

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Elements of Personal Injury

Personal injury law deals with civil law liability of actions which causes physical injury or loss of property to another. Personal injury can be divided into three types of claims: intentional torts, negligence, and strict liability.

Intentional Tort

Each of these elements must be present in order for you to recover for an intentional tort. Intentional torts are actions which are harmful and done with either purpose or knowledge. Note that “harm” in law covers damage to property as well as damages to persons. Intentional torts cover assault, battery, trespass, and false imprisonment.

  • Intention: An act is intentional when it is done with either purpose to cause harm or knowledge that the act would cause harm. Intention is measured against a “reasonable person.” In other words, what would a reasonable person believe the defendant’s purpose is in performing this act? What would a reasonable person believe the defendant knows based on the circumstances? A defendant only has to have purpose or intention, but not both, in order to have intention. Examples:
    • Gun users who deliberately shoot at an object do so with purpose and knowledge.
    • A person who does a practical joke, such as puling a chair from behind another person when that person is about to sit down.
    • A store owner who places a person under arrest for theft.
  • Causation: There must be a causal link between the defendant’s intentional act and the injury. Proving causation is usually easier for intentional torts than for negligence since intentional torts have fewer causation requirements. It is usually enough for recovery if the plaintiff can show that he or she would not have suffered the harm if not for the defendant’s intentional actions. Unlike negligence, the cause of the harm in an intentional tort does not have to be direct or foreseeable. 
  • Damages: There must be injury. This can include physical injury, property damage, or emotional distress. Unlike other personal injury claims, emotional distress has a higher chance of recovery under intentional torts.
  • Statute of Limitations: All states have limited the amount of time that can pass between the incident and the filing of your claim. This time limit, called a statute of limitations will vary by type of injury and by state.  Your legal counsel will be able to tell you if any statutes of limitation apply to your case.

Negligence

Each of these elements must be present in order for you to recover on a negligence claim. Negligence includes malpractice (medical as well as others) and most types of vehicle accidents.

  • Duty: A duty is responsibility one has for the safety of another.  A duty may be created by a law, or it may result from a "standard of reasonable care" that the law holds we all owe toward each other. Here are some examples:
    • Drivers have a duty to not cause danger to the other cars on the road
    • The owner of a store has a duty to provide a safe place to shop
    • Dog owners have a duty to make sure their dogs don’t hurt people
    • Toy companies have a duty not to make dangerous toys
      • Where there is no duty, there is no liability.  For example, while a store may have a duty to protect you from danger in their parking lot, they don't have a duty to protect you once you are on your way home.
  • Breach of Duty: You must also show that that duty was breached.   In a car accident, you must show that the way the other person was driving put you in danger.  In a slip and fall, you must show that the store owner did not maintain a safe floor.  Sometimes this is easy, because the duty is also a law, like the duty not to run a red light.  But it might also be common sense, like a driver should make sure no one is walking in front of them when they are driving forward.  It might not always be very clear, for example where a store keeps their floors so clean and free of debris, that it is actually too slippery.
  • Causation: There must be a causal link between the breach and the damages.  It is not enough that you were in an accident that caused damages and that it was someone else's fault. You must be able to show that the damage you incurred was caused by the other person's act.  For example, let's say that you bring a claim against a mug maker for making a mug with a faulty handle.  You show that the handle is faulty (breach of duty), and you show that you were injured when your hot tea burned you. But it turns out that your friend broke and glued back together the mug and that is actually why the handle fell off, you can't recover.
  • Damage: There must actually be an injury.  If you are in a car accident, but the accident does not damage your car or your person, there will be no way to collect money for the fault of the other person. Keep in mind, however, injury doesn't always have to be a physical injury. Emotional distress and financial injuries are also grounds for a personal injury claim.
  • Statute of Limitations: All states have limited the amount of time that can pass between the incident and the filing of your claim. This time limit, called a statute of limitations will vary by type of injury and by state.  Your legal counsel will be able to tell you if any statutes of limitation apply to your case.

Strict Liability

Each of these elements must be present for you to recover in a strict liability case. Strict liability means that the owner or manufacturer is automatically responsible for accidents which occur because of the activity or product, regardless of the owner or manufacturer’s intentions or carefulness. 

  • Specific Activity: Strict liability applies only to certain activities, such as the use of explosives. An activity is held to strict liability when specific statutes (laws) say so. Examples include:
    • Transportation or storage of hazardous chemicals
    • Possession of wild animals
    • Possession of a domestic animal known to attack humans
    • Product defects
    • Warning defects about products
    • Use of explosives
  • Causation: A plaintiff can only recover for strict liability if the regulated activity is the cause of injury. Although causation can be easy to prove if the plaintiff was attacked by a lion or hit by debris from an explosion, many states will require that the cause of injury be direct or foreseeable. For example, an explosion which causes your dog to panic and run away is neither a direct nor a foreseeable consequence of explosions.
  • Damage: There must be an injury. If a new toy stops working as soon as you get it home, you may be able to get your money back for the toy, but you won't be able to recover for product liability unless you can show that you suffered an injury because of the broken toy. Emotional distress and financial injuries are also grounds for a personal injury claim.
  • Statute of Limitations: All states have limited the amount of time that can pass between the incident and the filing of your claim. This time limit, called a statute of limitations will vary by type of injury and by state.  Your legal counsel will be able to tell you if any statutes of limitation apply to your case.

Do You Need a Lawyer?

If you or a loved one have been injured, you should speak to an experienced personal injury attorney immediately to learn more about preserving your rights and remedies.

Photo of page author Ken LaMance

, LegalMatch Law Library Managing Editor and Attorney at Law

Last Modified: 09-02-2014 02:05 PM PDT

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