About Personal Injury Law/Tort Law

Personal injury law covers a broad range of situations where a person has been injured, physically or psychologically, as a result of the negligence or wrongdoing of another person, company, or government agency. You’ll often hear personal injury law referred to as “tort” law. Tort means “harm” in French. And when someone harms another, you have a “tort.”

The person bringing the suit is called a plaintiff (or claimant) and the person who is alleged to have caused the harm is called the defendant. In a successful tort suit, the plaintiff recovers his damages from the defendant or defendants who caused the harm.

Personal injury suits are generally governed by state law. Occasionally, federal law may apply in certain circumstances. For example, harms suffered on federal property may fall under the Federal Tort Claims Act. Liabilities and injuries resulting from airplane crashes or injuries on cruise ships may be governed by federal and international laws (treaties).

Theories of Personal Injury Law

Personal injury lawsuits are usually based on one of three theories; negligence, strict liability or intentional misconduct. Each of the categories is comprised of different types of legal wrongs or “causes of action.” The law also provides different standards of care to these wrongs. The elements of a cause of action have emerged over time and have been set by case law, common law, statute, and in some cases combinations of these.

For example, negligence is an unintentional harm. A car accident is an example of an unintentional harm. Let’s say you’re stopped at a street light and the person driving the car behind you fails to stop and hits the back of your car. In California, you have a negligence claim.

 

Elements That Must Be Proved In a Negligence Lawsuit

The elements of negligence that one is required to show in a car accident are:

1. Duty of Care: The defendant (person who ran into you) has a duty of care towards you

Does the driver who hit you owe you a duty of care? All drivers owe a duty to each other to use reasonable care when operating their vehicles.

2. Breach of Duty: Defendant breached their duty

The defendant crashed into the back of your car. Was this unreasonable? The law will examine if this was a breach of care by comparing the conduct to the conduct expected of a “reasonable person.” The law would ask: How would a reasonable, prudent person have behaved in the same or similar circumstances? If the behavior falls short of what a reasonable person would do, the defendant has violated his duty of reasonable care. A reasonable driver would be expected to follow behind you at a safe distance and stop behind cars stopped at stop signs.

3. Factual Cause: Cause-and-effect between defendant’s behavior and the harm

The usual method of establishing factual causation is the but-for test.

 
But for the defendant’s act, would the harm have occurred? In our accident example, if the defendant did not drive his car into the back of the plaintiff’s car, would the plaintiff’s car and body have been harmed? The answer is no.

4. Legal Cause (Proximate Cause): The defendant’s actions or inactions are the “legal” cause of the harm

Proximate cause addresses the question of whether in logic, fairness, policy, and practicality, the defendant ought to be held legally accountable for the plaintiff’s harm. To answer this question, courts will generally ask the question, is it foreseeable that your actions would cause the harm? In our example, it is foreseeable that driving unsafely will lead to the accident that occurred.

5. Damages: Damages caused by the defendant’s actions

Accident victims are entitled to compensation for their damages. In the car example we’re using, you’re entitled to recover damages for your injuries. These generally include: lost wages or earning capacity, pain and suffering, property damage (e.g., car damage, property in your car), and hospital and medical expenses.

If there aren’t any damages, there is essentially no harm or injury. If your car isn’t damaged, if you don’t miss work, and if you have no physical injuries, then you have no case.

If you prove each of these elements, you have proven your case. In a jury trial, at the end of the trial, the judge will present the jury with a set of instructions. In an auto accident case, such as the one we’ve been describing, the instructions will frame each of the elements of the case. The instruction will inform the jury to find that each element has been proven by the plaintiff. If all elements are met, the plaintiff has proven his case and the jury can move on to the “amount” of damages.

What Damages Can Be Recovered In a Personal Injury Case

California courts separate damages into two categories: compensatory and punitive. Compensatory damages are meant to compensate the injured party for their harm. These damages include things like: past and future medical expenses; injuries to the body; past and future effects of injury; pain and suffering; past and future impaired earnings; loss of consortium; loss of household or domestic services; and property damage.

Punitive damages are not designed to compensate for losses, but to punish the person or organization that caused the injury. They are often referred to as punishment damages or “punitives.” They are not available in every case, and the entity that causes the harm generally must be shown to have done something egregious or bad. These types of damages also send a meaningful message to individuals, companies and industries that helps deter future bad acts.

Since 1999, The Law Offices of Scott Glovsky have been assisting the injured and their families. Our initial consultation is free. For personal injury cases, we often operate on a contingency basis – you pay no fee unless you recover.

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