Personal injury is a very broad area of the law that encompasses all the ways in which you can sustain injury to your person. Some of these include the following:
- Bodily injury
- Intentional infliction of emotional distress
- False imprisonment, detention or arrest
- Malicious prosecution
- Invasion of privacy
When attorneys describe themselves as being personal injury firms, however, they usually mean that they represent clients who have sustained some sort of bodily injury.
Bodily injuries arise from numerous events, including the following:
- Motor vehicle accidents
- Slips, trips, falls and other premises liability accidents
- On-the-job accidents
- Medical malpractice
- Nursing home abuse and neglect
- Product liability accidents
- Toxic torts
If you’ve never before come across the word “tort,” that’s not surprising. This word only arises in legal settings, where it is defined as “an act or omission that gives rise to injury or harm to another and amounts to a civil wrong for which courts impose liability.”
Oftentimes, a tort can also be a crime as well as a civil wrong. Assault is a good example. If someone assaults you, you can sue him or her in civil court for the personal injuries his or her assault caused you. Your state or municipality may likewise choose to prosecute him or her criminally. If so, the government does not need to obtain a conviction for you to win your civil suit.
Toxic torts are a special subcategory of torts. As their name implies, toxic torts are defined as “injuries to plaintiffs caused by toxic substances.”
Many times, these types of personal injury cases are brought as class actions, meaning lawsuits brought by a single person or a small group of people on behalf of all people, e.g., the class, who suffered the same or very similar injuries by virtue of the same defendant.
Examples of class action lawsuits for toxic torts include such cases as the following:
- Suits against tobacco companies
- Suits against pharmaceutical companies
- Suits against automobile manufacturers
- Suits against employers whose employees were exposed to asbestos
- Suits against companies that allegedly produce and distribute toxic products, like the suits against baby powder companies and insecticide companies
When you sustain some type of injury in some type of accident, you have the right to file suit against the person or entity that caused your accident. In most situations, you and your lawyer likely will proceed under the theory of negligence. In other words, you do not claim that the defendant intentionally injured you, rather that something he or she did or failed to do caused the accident that resulted in your injuries.
Burden of Proof
To win your negligence-based personal injury lawsuit, you will need to present clear and convincing evidence of the following:
- That the person or entity you’re suing owed you a certain duty of care
- That he or she breached this duty in some way
- That his or her breach was the proximate cause of your injuries, that is, but for the defendant’s breach of duty, the accident would not have occurred and you would not have been injured
- That you suffered actual harm as a result of the defendant’s breach and are therefore entitled to receive compensable damages from him or her
Duty of Care
The duty of care that the defendant owed you will vary according to the type of accident that occurred and the defendant or defendants you are suing. For instance, in a case arising from a motor vehicle accident, the other driver owed you the duty to drive safely and not cause accidents. In a medical malpractice suit, on the other hand, your primary care physician, surgeon, pharmacist and others on the health care team all owed you various duties of care based on their respective occupations.
- Medical expenses
- Post-hospitalization rehabilitation and physical therapy expenses
- Prescription drug costs
- Medical equipment costs, such as for a wheelchair, prosthesis, etc.
- Travel expenses to follow-up doctor appointments, etc.
- Loss of wages or salary due to your injuries
Keep in mind that your economic damages include not only the costs and expenses you have accumulated to date, but also those that you can be expected to incur in the future.
Your noneconomic damages include such things as the following:
- Pain and suffering, both physical and emotional
- Mental distress
- Disfiguring scars
- Loss of your ability to perform your daily functions or engage in the activities you enjoyed prior to your accident
- Loss of your overall enjoyment of your life
In a personal injury lawsuit, determining fault becomes all-important. In this context, fault means legal responsibility for causing the accident. Depending on the state in which you live, your own fault, if any, in helping to cause your accident can directly affect the amount of damages you can recover.
Fault categories include the following:
- Pure comparative negligence: Also called pure comparative fault, the states that follow this theory of fault allow you to recover damages even if you were 99% at fault for the accident.
- Modified comparative negligence – 50% bar: In these jurisdictions, you cannot recover any damages whatsoever if you were more than 50% at fault.
- Modified comparative negligence – 51% bar: In these jurisdictions, you cannot recover any damages whatsoever if you were more than 51% at fault.
- Slight/gross comparative negligence: South Dakota is the only state that follows this unique rule that allows you to recover damages only if a court determines that you were “slightly” negligent and the defendant was “grossly” negligent.
- Contributory negligence: In these jurisdictions, you cannot recover damages if you were even minimally at fault; 1% fault on your part will bar all recovery. (Only five jurisdictions, Alabama, Maryland, North Carolina, Virginia and the District of Columbia, follow the contributory negligence rule.)
In all the comparative negligence jurisdictions, the court reduces the amount of damages you can receive by the percentage of your fault.
The Legal Help You Need and Deserve
Now that you have a good idea of what personal injury and negligence are all about, you need to meet the Judd Shaw Injury Law™ team. We handle all types of injury cases for clients across New York and New Jersey. Our first and foremost core value is to become your knight in shining armor any time you become injured. To this end, we promise you the experienced, empathetic, zealous and personalized representation that you deserve as a unique individual. Call us today.