Personal injury is an injury to a person’s body or mind. Personal injury litigation is based on the legal theory of civil tort law, which covers wrongdoing by one individual (or business) against another person. The person or entity that commits the wrong can be held liable for the loss or damage they cause.
“Litigation” is one means of conflict resolution. It refers to the process of taking legal action through the court system – suing someone or some business entity. Other types of conflict resolution include mediation, arbitration, and negotiation. Personal injury litigation involves legal action in court to seek monetary damages for losses or damage.
Some examples of the most common personal injury cases are:
What is the Goal of Personal Injury Litigation?
In general, the goal of personal injury litigation is to compensate the injured party for losses resulting from an accident or negligent or reckless conduct on the defendant’s part. The compensation is typically in the form of a monetary damages award.
The basic form of damages in a personal injury lawsuit is compensatory damages, which compensate the plaintiff for financial setbacks due to the defendant’s behavior. Compensatory damages will include:
- Medical expenses
- Hospital bills
- Lost wages, such as those lost due to missing work because of the injury
- Damage to physical property, such as in a car accident
Other forms of damages may be available in a particular case. These include:
- An award for pain and suffering caused by the defendant’s actions
- An award of punitive damages. Punitive damages are large monetary awards that punish the defendant when their action or failure to act is particularly egregious.
- A third form of damages is an injunction, a court order instructing the defendant to cease the troublesome conduct or order them to do something specific. For example, in a case involving toxic waste, in addition to a monetary damages award to the plaintiff for medical costs, the court might order the company to cease doing whatever is causing the toxic waste.
What Legal Theories Can Be Used in a Personal Injury Lawsuit?
Personal injury claims can be divided into three different types. These claims are negligence, intentional torts, and strict liability. Each type of claim comes with elements that must be proven to recover damages.
- Negligence requires that the plaintiff prove by a preponderance of the evidence (more than 50/50 likelihood) the following elements:
- The defendant owed the plaintiff a duty of care to act safely
- The defendant breached the duty – the level of care taken by the defendant was insufficient to prevent harm
- The defendant’s actions must have been the cause of the injury. Courts usually measure this by the “but for” test: “but for” the defendant’s actions, an injury would not have occurred
- Damages. The plaintiff must be able to show some economic, physical, or mental damage occurred because of the incident
- Intentional torts are violations resulting from intentional misconduct on the defendant’s part. However, although intentional torts claims are grounded in an intention to perform the action that caused the injury, the defendant may be held liable whether they intended any harm or not.
- An example of this would be jumping out to surprise someone with a physical stability problem. If that surprise results in them falling and incurring a serious injury, an intentional tort has been committed, although no harm was intended. Proving an intentional tort is much like proving negligence, with the additional requirement that the plaintiff prove the defendant’s state of mind
- Strict liability is a legal doctrine that holds a party responsible for their actions without the plaintiff having to prove negligence or fault. When someone partakes in ultrahazardous activities, they will be held liable even if they exercised reasonable care for safety concerns. This is because, due to the nature of the activity, the defendant should have been able to foresee that a person could be harmed by it. Examples of ultrahazardous activities include:
- Using, transporting, storing, or handling hazardous chemicals
- Keeping wild animals
- Using or storing explosives
- Controlled burning of buildings or fields
- Making certain inherently dangerous products
What are Some Common Difficulties Faced During Personal Injury Litigation?
Determining fault is one of the most common difficulties faced during personal injury litigation. For the court to find the defendant at fault, the plaintiff is responsible for proving that the defendant was the cause of their injury. This must be done through the utilization of evidence. The plaintiff may use medical documentation, eyewitness testimony, statements made by the defendant, video surveillance, and expert testimony in order to meet this element.
The plaintiff may also rely on a legal concept called res ipsa loquitur (“the thing speaks for itself.”) This means that the damage or injury could not have occurred without some fault on the part of the defendant.
Determining fault is particularly difficult in cases involving medical malpractice or defective products. In medicine, it can be difficult to determine whether it was the doctor’s fault that the injury or death occurred, and if so, what exactly the doctor did wrong. With defective products, a product can pass through many hands, which may make it difficult to discover who exactly is at fault.
Calculating damages is another common difficulty that may be faced during personal injury litigation. Especially tricky is the calculation of non-economic damages – damages with no monetary value intended to reimburse the injured person for intangible losses such as bodily pain, mental distress, and loss of pleasure in life.
Non-economic losses are more subjective and difficult to assess than economic damages such as medical expenditures, missed earnings, and property damage. The latter are computed using well-established principles and methods, and their value is often estimated with great precision.
On the other hand, non-monetary damages are more difficult to quantify since they are dependent on subjective elements such as the severity of the injury, the individual’s age, and their general quality of life before the accident. They are intended to reimburse the aggrieved party for intangible damages that cannot be measured in monetary terms.
Additionally complicating the calculation, state laws can vary regarding damages, with some states limiting the amount of money that may be received. Some states, for example, have set limits on the amount of non-economic damages that may be awarded in personal injury lawsuits, regardless of the severity of the injuries or the effect on the plaintiff’s life.
Finally, a plaintiff’s awarded damages may be reduced or limited if the plaintiff somehow contributed to their own injury. This is known as “comparative negligence,” and the plaintiff’s award will be lessened by subtracting the percentage of damages that are determined to have been caused by the plaintiff’s actions. For instance, if a plaintiff sues someone for $100,000 but is found to be seventy percent at fault, they will only be permitted to recover $30,000 in damages. In some states, the fact that the plaintiff was even partially at fault can bar them from receiving anything.
Should I Hire an Attorney If I’ve Been Injured?
Because personal injury is a complex field of law, and personal injury litigation requires a high level of knowledge on the subject, it is in your best interest to consult a skilled and knowledgeable personal injury attorney.
The attorney will provide legal advice and information regarding your state’s specific personal injury and compensatory damages laws. Additionally, they can assess your case and inform you of what types of compensation may be available. Finally, they can file your claim and represent you in court.