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 What Are the Elements of a Personal Injury Claim?

In a personal injury claim, the plaintiff, or individual who was injured, claims that they sustained a mental injury, a physical injury, or both, due to the defendant’s act or failure to act. A court or a jury can award a plaintiff compensatory damages for their personal injury, also known as monetary damages.

Personal injury law is different from criminal law. When an individual files a personal injury lawsuit, it is a civil lawsuit.

In some cases, criminal actions may also be filed in addition to a civil lawsuit if the incident which led to the injury was criminal in nature.

Personal injuries may occur intentionally, when a defendant injures the plaintiff on purpose or intends to commit an act which results in injury to the plaintiff. Personal injuries can also occur unintentionally.

There are three main categories of personal injury actions, including:

Each of these categories of claims has distinct elements which must be proven in order for a plaintiff to prevail. When a plaintiff asserts a personal injury claim, they claim that the defendant owed them a duty of care and breached that duty, which caused injury.

In other words, the elements which a plaintiff must show in order to prevail in a personal injury claim include:

  • Duty;
  • Breach;
  • Causation; and
  • Damages.

How Can I Defend a Personal Injury Claim?

In order for an individual to be successful when defending against a personal injury claim, a defendant will attempt to show that one of the elements required to prove the plaintiff’s claim cannot be proven. A defendant may show one of the following:

  • They had no duty of care;
  • There was no breach; or
  • There was no injury to the plaintiff, or if the plaintiff was injured, that injury was not caused by a breach of duty.

For example, suppose an individual owns a home which sits adjacent to a public pathway. Suppose a tree from their yard grew into that pathway which caused a bicyclist to crash and sustain bodily injury.

If the cyclist tries to sue the homeowner, they will be required to show:

  • The homeowner had a duty to keep the tree out of the pathway;
  • The homeowner breached that duty by letting the tree grow into the pathway; and
  • That breach of duty caused the bicyclist to sustain injury.

In order for a defendant to defend the claim discussed above, they may attempt to show that:

  • The defendant did not have a duty to keep the tree off of the path;
  • Not trimming the tree was not a breach of their duty; or
  • The bicyclist’s injuries were not a result of failing to keep the tree trimmed.

In every state, there is a statute of limitations in personal injury lawsuits. A statute of limitations is a time limit on when an individual can bring a claim in court.

The majority of states have specific statutes of limitations for personal injury claims. The statute of limitations typically begins running on the day the individual was injured.

Depending on the state, the statute of limitations for personal injury cases typically ranges from one year to six years. This can be used as a defense because if the statute of limitations has run, or expired, the plaintiff may be barred from bringing their claim.

Who Else Could Be at Fault?

In personal injury cases, it is important to consider that a plaintiff or a third party may also be liable for the plaintiff’s injuries. Even if a defendant is partially at fault, it is important to identify if there are any other parties who may be at fault so that their liability can be proportioned pursuant to the theory of comparative negligence.

For example, in the hypothetical example discussed above, even if it was the defendant’s duty to keep the tree off of the path, the bicyclist may be partially at fault if they were talking on their cell phone and not paying attention to where they were going. In addition, a third party may be partially at fault if their dog ran in front of the bicyclist, which caused them to swerve and hit the tree.

In either scenario, the defendant’s liability would be reduced by the lability of the other party. In the alternative, there are some states which used a contributory negligence theory. In these states, if the plaintiff was at fault by any percentage, their claim may be barred.

How Much Does it Cost to Defend a Personal Injury Case?

In order to understand the cost to defend a personal injury case or the cost of hiring a personal injury defense lawyer, it may be helpful to examine what civil attorneys do and the types of cases they handle.

A civil lawyer is a type of attorney who specializes in one or more of the following areas of law:

It is important to note that this is not an exhaustive list of subcategories of civil law. In addition, many attorneys will handle multiple types of cases. In a broad sense, an individual hires a civil lawyer for cases which involve one individual suing another individual for nearly any non-criminal legal issue.

The cost of a civil attorney will vary widely because the cost is dependent upon numerous factors, which may include, but are not limited to:

  • The area or areas of law in which the lawyer practices;
  • The areas of law that an individual’s claim encompasses;
  • The lawyer’s level of experience in addition to their reputation;
  • The difficulty of the case;
  • The location in which the attorney practices, as different cities and states have different cost averages; and
  • The amount of time that is spent either pursuing or defending the lawsuit.

There are also different ways in which an attorney can charge a client for their services, including:

  • Flat rate fees;
  • Contingency fees; and
  • Hourly fees.

Typically, a flat rate fee is not used in a personal injury case. This type of fee is typically reserved for simpler types of cases, such as drafting a will.

It is common for personal injury cases to be paid by contingency fees. Under this type of fee arrangement, the client does not pay their attorney unless the attorney prevails in court, at which time they will receive a previously agreed-upon percentage of the monetary award.

If a personal injury case goes to trial, the attorney may charge between 45% and 50% of the award. If the case settles immediately, they may only charge 25% to 30%.

For example, if a plaintiff is awarded $100,000 in a settlement for their injuries and the attorney charges 30% of that amount, the first $30,000 of the award will be paid to the attorney. After this, their medical bills will be paid and the plaintiff will receive the remainder. In some cases, the plaintiff’s medical bills may be negotiated or reduced by the plaintiff’s attorney.

If an attorney charges an hourly fee, their payment will be based upon the number of hours it takes to resolve a case. In this fee arrangement, the attorney will often require a retainer at the outset of the case to cover up-front costs.

Should I Consult an Attorney?

It is essential to have the assistance of a personal injury lawyer for any personal injury issues you may have. Defending personal injury claims is a very serious and complex undertaking because these laws govern a broad range of situations and vary widely by state.

Your lawyer will review your case, advise you of the laws in your state, and represent you if you are required to appear in court. Your lawyer will work to protect your interests and do their best to protect you from a costly judgment if you are a defendant or do their best to get you the compensation you deserve if you are an injured plaintiff.

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