Personal Injury

Justice is the stated goal of American law. When someone is hurt or injured because of the acts of another, American justice holds that the person who caused the harm must take responsibility for the hurt they have caused.

Personal injury law covers a myriad of situations from attorneys representing injured victims and their families on one side; and on the other, defense attorneys whose fees are usually covered by insurance companies as a part of an insurance policy or contract.

Injuries occur from countless causes: Auto accidents; swimming accidents; train accidents; plane crashes; slip and falls in grocery stores; injuries from dangerous products or dangerous drugs; medical errors; slander; legal malpractice; assault; nursing home abuse; dog bite injuries; false imprisonment; and intentional infliction of emotional distress are all addressed in personal injury law.

Lawyers know injury law as “tort law,” a term with its history in the system’s British ancestry. Torts are civil wrongs recognized in either state or federal law as grounds for a legal claim worthy of judicial (usually monetary) compensation. The civil wrong, or “tort,” can involve harm to someone’s body, their property, or their legal rights. Sometimes, a tort will involve breaching a duty that has been specifically defined and imposed by a state or federal statute.

Torts aren’t crimes, but torts can overlap with crimes. For example, an angry fan starting a bar fight after the Super Bowl may be arrested by the police for the crime of assault and he can also be sued by the guy whose eye he blackened – for the civil wrong, or tort, of assault. “Assaults” are both crimes and torts.

There are four legal elements to negligence: a duty of care to another; a breach of that duty; this breach causing actual harm to another; and actual damages resulting from the breach. Here, there is a viable legal defense in the phrase, “no harm, no foul”. Fall at the grocery store on a wet floor, and you may have a suit for negligence: the store has a duty to keep you safe from harm on its premises. Not hurt? Then you have no damages, and no tort exists.

Intentional torts are acts: someone consciously undertakes an action that he can reasonably foresee will cause harm to someone, and it does: someone gets hurt. Intentional torts include assault and battery, intentional infliction of emotional distress, and fraud.

Since someone has made an active decision to harm another in these instances, the law of intentional torts provides that victims can obtain not only damages to compensate them for their actual harm, but also punitive (or “punishment”) damages.

Strict liability torts are violations of specific statutes, where both the action and its resulting damage assessment have been pre-defined by a legislative body. Strict liability does not assess the amount of care exercised by the defendant in a situation, or his intent: it is based solely on evidence that a particular action occurred. If it happened, and it is proven, then damages are due. One example of strict liability involves any for-profit venture involving something inherently dangerous: the owner of a roller coaster will be held strictly liable for any injury sustained on the ride.

Since the goals of tort law are to compensate victims of the harmful acts of another, and to deter the same type of injuries in the future, tort law recognizes a wide variety of recoverable damages. Lost wages, lost future earning capacity, pain and suffering, medical expenses, and rehabilitation expenses can all be awarded to injury victims. Courts may also enjoin the defendant from certain actions or activities to protect the public in the future, such as shutting down a dangerous roller coaster or legally forbidding future sales of a dangerous product. Not all tort remedies involve awards of money.

All personal injury lawsuits must be filed within a certain time, or the claim will be barred by law. Each state legislature sets its own deadlines: those living in Tennessee have only one year within which to file some injury lawsuits, while those living in North Dakota may have as many as six years in which to file the same type of claim.

Attorneys practicing personal injury law usually specialize in this area, devoting their practices exclusively to helping injured victims and their families. Sometimes, they focus upon a single personal injury area. For instance, some law firms handle exclusively medical malpractice cases; others handle only motor vehicle accident matters.

Contingent fee contracts are arrangements common to personal injury litigation. Here, the client is not required to pay attorneys’ fees until the case is resolved through settlement or trial; the attorney bears a portion of the risk. What risk? The attorney risks that he will not be paid if the claim is unsuccessful, and in recognition of that risk, a percentage of the award is assigned by the client to the attorney as his contingent fee.

The amount of that percentage can vary from a third to as much as a half of the amount recovered, depending upon the complexity of the case. Contingent fees must be reasonable; unconscionable percentage will be held illegal. Clients who feel that the contingent fee is excessive can sue the attorney for overreaching, and they can file a complaint with the state legal ethics commission.

WRONGFUL DEATH

Death may be inevitable, but it shouldn’t come before its time. When someone’s death is caused by the wrongful act of another, the law provides that the wrongdoer is liable for monetary damages in civil court.

In every state, legislatures have passed statutes providing for this legal remedy, defining not only which loved ones are able to bring the suit as party plaintiffs, but also the extent of damages available to be awarded. There is no federal wrongful death statute.

The wrongful death statutes of each state are unique, and loved ones are wise to seek the advice of experienced legal counsel in determining their application, as well as other possible causes of action that can be filed in tandem with the wrongful death case.

For example, a wrongful death claim can accompany a medical malpractice cause of action, or a claim for damages based on product liability. In many states, claims can also be concurrently made with victims’ assistance funds, which have been established to assist loved ones who have lost a family provider. Wrongful death claims can also accompany civil actions based upon intentional conduct that is being simultaneously pursued by criminal authorities:

  • the family of Ron Goldman successfully instituted a wrongful death case against O.J. Simpson and was awarded $38 million dollars, even though Mr. Simpson was found not guilty of murdering Mr. Goldman in the criminal proceedings; and
  • the family of Bonnie Lee Blakely was awarded $30 million in a wrongful death suit brought against actor Robert Blake, even though he was likewise found innocent of his wife’s murder.

Personal injury attorneys file lawsuits for families based on wrongful death claims. They seek a variety of damages, such as: lost income; loss of care, protection, and companionship; intentional infliction of emotional distress; pain and suffering; lost pension, health insurance and other benefits; and sometimes, punitive damages. Each state has its own statute of limitations applying to its wrongful death statute, which requires that claims be filed within a certain time or they will be barred. Some of these deadlines are short.

Most states allow punitive damages as part of the wrongful death claim. Punitive damages are “punishment” damages, designed not to compensate for actual damages of the victim but instead to send a message both to the defendant and others that the conduct at issue is unacceptable in our society. Punitive damages have resulted in safer working conditions and have established standards of care for professionals in a variety of areas, as well as helping to define product safety standards.

Another trend developing in state case law, outside of any statute, is the awarding of wrongful death damages when a pet is injured or killed by a person or another animal. These wrongful death cases are gaining respect across the country, with awards being given in the form of economic damages (involving purchase price or replacement value of the animal), as well as budgetary expenses (training costs, breeding costs) and other assorted actual damages. Emotional distress and loss of companionship are also being sought and awarded in significant amounts. Tennessee is already recognizing non-economic damages in these wrongful death cases and 11 state legislatures are considering statutory recognition of them.