LEGAL UPDATE ARCHIVE
WHO IS LEGALLY RESPONSIBLE FOR YOUR INJURY?
When determining who is responsible for an accident-related injury, some cases are fairly clear cut. For instance, motorists who get rear-ended by other vehicles need only look in their rearview mirrors to find the person to sue for any resulting injuries. However, there are all manner of injury-producing accidents that do not lend themselves so easily to finding the legally responsible party. In some cases, it must be determined whether someone had a “duty of care” to protect against injuries for someone not expected to be where the accident happened. In others, negligence can be determined by examining whether the party in question took “reasonable care” to avoid injury to others. A lawyer can help make matters clear.
HINT: “Strict liability” entitles those injured by defective products to compensation from the manufacturer whether or not the manufacturer sold or rented the product to them directly.
THE CASE AGAINST NEGLIGENT PROFESSIONALS
Professional malpractice involves carelessness or negligence by medical personnel and other professionals (including accountants, brokers, architects, engineers, and attorneys), who are held to a higher standard of care and may be sued for failing to meet the expected degree of attention. If an injury were to occur as a result of their inability or lack of care, it would ordinarily be cause for that professional to be liable for malpractice. The general principle underlying the determination of malpractice is what constitutes reasonable care, skill, and diligence where the professional practices. If that community standard has not been met (and other defenses do not apply), then the professional is liable for negligence, and malpractice is established.
HINT: Broker malpractice may result from a failure to disclose risk, churning, or self-dealing.
If you are considering consulting a lawyer, please call our office right away. Our experienced attorneys have spent years dealing with a wide variety of cases, including fall down accidents, as well as car crashes and malpractice suits. We will work with you to determine your best course of action, taking into account any statues of limitations that may be involved. If you have any questions, or would like to discuss the merits of your case with an attorney, please call to make an appointment today. Celebrating 28 years of service to the community.
A MATTER OF INTENTION
Plaintiffs would find it difficult to collect a jury award for intentional injuries even if they thought they could win their personal injury case. The problem is that most insurance policies provide exclusions for coverage for intentional injuries. They reason that if people could insure themselves against assaulting others, the threat of a financially ruinous lawsuit would not prevent them from carrying out their destructive intentions. Thus, the insurance company will not have to pay the judgment returned against its insured. This is rightfully considered to be contrary to the best interests of the common good. For this reason, attorneys usually do not try to prove that the injury was caused intentionally unless the defendant is wealthy.
HINT: A defendant or his or her insurer must be able to pay damages for a lawsuit to be worth pursuing.
According to the most recent data available from the Centers for Disease Control and Prevention, there are 4.5 million dog-bite victims in the United States each year, and almost one out of every five dog bites are serious enough to require medical attention. In a good many of these cases, a serious dog attack involves the dog of a family member or friend, in which case victims and their families may be reluctant to pursue legal action. However, dog-bite victims should know that any damages that they might recover from the dog’s owner are not likely to come out of his or her pocket. In fact, the damages are usually paid by the dog owner’s homeowners or renters insurance.
HINT: When the victim of a dog attack is a small child, there is a 75 percent chance that the dog’s owner is a family member, neighbor, or friend.
PROFESSIONALS ACTING NEGLIGENTLY
Clients should be able to expect that any professionals with whom they are dealing will conduct themselves on a professional level that abides by the standards commonly held by those in their line of work. Unfortunately, however, this is not always the case, and “medical malpractice” is not the only form of “professional negligence.” Aside from doctors, professionals such as engineers, architects, contractors, financial advisers, caterers, and other skilled individuals may also conduct their work in such a negligent manner that it results in loss or injury to their clients. With this in mind, consumers should be aware that there is a legal remedy available to them in the event that they encounter professional malpractice.
HINT: The law stipulates that professionals have a “duty of care” to the people who hire them because their clients are relying on their skills and expecting them to exercise reasonable caution.
DON’T SETTLE FOR ANYTHING LESS
When drivers find themselves in automobile crashes that leave little doubt as to who caused their injuries, they may get a settlement offer from the other party’s insurance company. When suffering an injury by this or any other means, injured individuals are strongly urged to consult with an attorney. At this point, it may only take a well-worded letter from a lawyer to get the monetary compensation that the injured person is entitled to. Insurance adjusters generally do not like the prospect of a lawsuit, which means that their costs will likely go up. Similarly, those who could find themselves as the defendants in a personal injury lawsuit may be even more nervous and upset by the prospect.
HINT: In the initial stages of a personal injury lawsuit, the plaintiff’s attorney may be able to introduce a new idea or legal theory into the negotiations that compels the insurance adjuster to make a serious settlement offer.
SPEAKING IN YOUR DEFENSE
Victims of negligence and other wrongdoing are constantly being advised that they may have legal recourse to seek compensation in a civil court for damages due to injury. In each case that plaintiffs bring suit for negligence or an intentional tort, there is a defendant. Have you ever thought of yourself in terms of being a defendant rather than a plaintiff? Do you have an attorney in place to defend your legal interests? If not, it would make sense to become acquainted with an attorney with whom you feel comfortable and whom you can trust. It has often been said that we live in a litigious society. Recognition of this fact necessitates that you have a lawyer on your side.
HINT: If you do not respond within 30 days of being served with a complaint, the plaintiff can file a “Request for Default,” after which the Court can enter a judgment against you, and the plaintiff will win the case.
“Common law,” the ancient law that England handed down to us, holds every person responsible for his or her wrongdoing. Also known as “case law” or “precedent,” it was developed by judges through court decisions. It provides a person whose rights are violated in such a way that the violation causes injury to a person and his or her property with a way to remedy the violation, either by entering into a mutually agreed upon settlement or by bringing a lawsuit against the person who caused the damage. Victims can recover damages for harms caused by negligence, intentional acts, or products and goods that have entered the marketplace. Victims of wrongdoing have a way to be made whole again.
HINT: “Civil law,” a legal system that originated in Europe, is based on late Roman law whose core principles are codified into a referable system that serves as the primary source of law.
WHO IS RESPONSIBLE?
The notion of liability revolves around the simple fact that most accidents happen because someone was careless or negligent. As far as carelessness is concerned, the law applies the basic rule that the person who is less careful than the other involved in an accident must pay damages. However, even those who might be considered careless in what they do (or how they maintain their property) may not necessarily be liable to someone injured by their carelessness. The law says there is no duty to be careful toward those who put themselves where they are not supposed to be. For instance, those who disregard warnings to stay away from unsafe areas may not hold others liable for their injuries.
HINT: The “assumption of risk” defense seeks to lead the court to determine that the injured party engaged in a dangerous activity and find that he or she assumed the risks associated with the dangerous activity and is therefore responsible for the injury.
JUSTICE AFTER DEATH
It may seem inherently just that when a person dies due to the legal fault of another, the victim’s survivors should be entitled to monetary damages stemming from the improper conduct. However, under “common law,” which consists of general legal principles that have passed from England to the United States over the centuries, it was not possible to make a “wrongful death” claim. At that time, it was thought that the claim perished along with the deceased victim. However, wrongful death statutes passed by states in subsequent years have corrected this injustice. In effect, a wrongful death lawsuit filed in civil court ensures that negligence victims’ right to be compensated for their injuries do not expire along with them.
HINT: A wrongful death claim must be filed by a representative (usually the executor of the decedent’s estate) on behalf of the survivors (the “real parties in interest”) who suffer damage from the decedent’s death.
POINTING FINGERS AT WORK
Workers’ compensation is a system that enables injured employees and employers to settle their potential differences over money and liability privately and quickly. While injured workers receive compensation for the costs of workplace injuries and illnesses, employers can focus on business matters without the threat of negligence lawsuits filed by employees. However, there are cases in which workers do have the option of filing lawsuits against those responsible for their injuries other than their employers. For instance, in addition to filing a claim for workers’ compensation, an injured employee might sue the manufacturer of a machine that caused the injury for negligence. Those injured at work might want to explore this possible option with an experienced attorney.
HINT: Employees injured at work may sue employers who failed to maintain the workers’ compensation coverage required by the state or who otherwise violate the laws of the workers’ compensation system.
IS A LAWSUIT WARRANTED?
If you have suffered injury and are considering filing a lawsuit, it is time to consult with an attorney who can tell you if the facts of your case warrant legal action. In order to determine if prospective plaintiffs have valid claims, important questions must be answered including whether or not the negligence or conduct of someone else resulted in an injury to the would-be plaintiff. Next, there is the issue of whether the person considering the suit has standing, which means he or she must have been sufficiently affected by the matter at hand. Once this cause-and-effect relationship is established, suit must be brought within a certain period of time after the injury. Time is of the essence.
HINT: Once the “statute of limitations” (the law that restricts the maximum time after an event that legal proceedings may be initiated) runs out, a claim is no longer valid.
When an automobile is hit from behind, the driver of the rear-ended vehicle can virtually always hold the other driver liable. This placement of liability is based on the basic rule of the road that requires drivers to be able to stop their vehicles safely if the car in front of them stops. Those who cannot stop without hitting the car in front of them are not driving in a responsible manner. When a third car hits the car in front of it and pushes it into the lead car, it is the driver of the third car who is at fault and against whose liability insurance the drivers of the front two cars would file their claims.
HINT: Tailgating is an inherently dangerous driving behavior that guarantees tailgater liability in the event that the driver is involved in a crash with the car ahead of it.
The intentional tort known as “false imprisonment” is a term that may bring to mind an image of a person being thrown behind bars against his or her will. However, it actually encompasses unlawful restraint of a person against his or her will by someone without legal authority or justification. It may not be enough that a person can sue for false imprisonment over having his or her path blocked from proceeding in an intended direction, but it may be sufficient that a person who is prevented from leaving a given area (a room, vehicle, or a building) may have cause to bring suit. This act violates a basic personal interest—the right to be free from wrongful confinement.
HINT: Aside from being an intentional tort, false imprisonment is a crime.
CHILDREN INJURED ON NEIGHBOR’S PROPERTY
Children are less likely than adults to respect boundaries, which can lead to serious injury on a neighbor’s property. With this in mind, property owners with inviting and dangerous features have the legal responsibility to protect children from these “attractive nuisances.” Because children cannot be expected to fully realize the danger posed by deep holes, dangerous machinery, or stacks of building material, it is incumbent upon property owners to protect them, even if the children happen to trespass. If the child cannot understand the danger and the property owner fails to protect the child, the owner will usually be held liable for the child’s injuries. Thus, in some situations, neighbors are responsible for the safety of other people’s children.
HINT: The attractive nuisance doctrine does not require that neighbors completely childproof their properties, but simply be alert to potential dangers on their property and take the necessary precautions and post warnings.
PROTECTING CONSUMERS FROM DANGEROUS PRODUCTS
Product liability law provides the victims of dangerous products with legal recourse for any injuries suffered. Generally, a product is required to meet the ordinary consumer expectations and be free of unexpected defect or danger. Prior to product liability laws, in order to recover damages, injured parties had to sue the product’s manufacturer on the basis of negligence. That is, the consumer had to prove that the manufacturer knew, or should have known, that the product was going to cause injury. Now, product liability laws hold manufacturers strictly liable if the product was defective or unreasonably dangerous and caused injury or death. This latter standard is easier to prove because it does not involve the manufacturer’s state of the mind.
HINT: Even a well-designed product can pose a danger to consumers when it is improperly manufactured and departs from its intended design.
PROTECTING THE ELDERLY
The National Center for Elder Abuse defines “elder abuse” as “any knowing, intended, or careless act that causes harm or serious risk of harm to an older person whether physically, mentally, emotionally, or financially.” Institutional abuse is a category of elder abuse that occurs in residential facilities such as nursing homes, group homes, and varieties of care facilities where the abuse is usually perpetrated by individuals who have a contractual obligation to provide for elders. This kind of abuse is immoral as well as illegal. If you think a family member has been abused (emotionally, financially, sexually); neglected; or deserted in a nursing home or assisted living facility, contact an attorney who can help protect an elderly person’s legal rights.
HINT: Most experts believe that the majority of elder abuse (perhaps as much as 80 percent) goes unreported.
Tort laws that are applied by courts in civil proceedings offer remedies to individuals harmed by the unreasonable actions of others. The word “tort” comes from a Latin word that means “twisted,” meaning that it is an act that has deviated from the standard or proper code of conduct. In short, a tort is a wrongful act that is recognized by law as grounds for a lawsuit. However, the primary goal of tort law is to provide relief for the damages incurred by the injured party and dissuade others from committing the same harm. Torts fall into three general categories: negligent torts (accidents), intentional torts (such as hitting someone), and strict liability torts (liability for producing and selling defective products).
HINT: Some torts are also crimes and are subject to the punishment of imprisonment.
WHAT’S THE HARM?
If the driver of another vehicle ran a stop sign and forced you off the road without any injury to you, it is unlikely that you have the legal basis to sue. Without question, the other driver was negligent, which means that he or she failed to meet a certain duty or standard required for all drivers; yet, the mere fact that someone was negligent does not automatically give you the right to sue. In order to win a legal action, aside from showing that the negligent person failed to meet an accepted standard of care, you must show that you had measurable injuries and that the other person’s negligence was a substantial cause of those injuries.
HINT: Even if you are involved in a traffic accident and seem to sustain no immediate injury, ask for a police officer to come to the scene and write up a report that may aid you in any lawsuit. Soft-tissue injuries do not always manifest themselves immediately.
Property owners have a responsibility to maintain a relatively safe environment so that people entering the property have a reasonable expectation of not getting injured. While there is certainly a reasonable expectation to protect customers and social guests, trespassers may not be owed such duty. However, if property owners discover trespassers, they may be held liable for injuries. The property owners may be shown to be negligent if they knew or had reason to know that trespassers regularly used the property and no steps were taken to inform the trespassers of any hidden danger or peril.
HINT: Under the “attractive nuisance doctrine,” property owners have the duty to inspect their property to make sure that there are no dangerous conditions that might attract children and, if there are, to remedy the unsafe condition.
WILLFUL AND WANTON CONDUCT
There are times when people act in such conscious disregard for the safety of others that their recklessness leads to injuries for which they can be held liable. While recklessness may not involve the intent to do harm, it may rise above simple negligence. Negligence involves a person unknowingly taking a risk of which he or she should have been aware, but recklessness involves knowingly taking a risk. For instance, drinking and driving or drag racing in a residential neighborhood may be considered reckless behaviors because they place other people’s safety at risk. Those who suffer injury as the result of the recklessness of another may recover compensation for any resulting medical expenses, lost wages, rehabilitation, pain, and suffering.
HINT: A person who goes through a stop sign because his or her attention was diverted is negligent. Someone who intentionally goes through a stop sign and crosses a highway full of oncoming traffic is reckless.
When workers get injured at work and their employers challenge their claims for workers’ compensation, the workers must prove they have injuries that were at least partly caused by their jobs. In such cases, it is best to enlist the services of a lawyer experienced in workers’ compensation law. After that, the next step will likely involve seeing a doctor who can verify the worker’s injury. It may also be necessary to seek second, and even third, opinions. If the employer ultimately denies the claim, then the injured worker and his or her lawyer will likely file an appeal with the local state agency. Little time should be lost in filing the claim and, if necessary, a subsequent appeal.
HINT: Many workers’ compensation claims are denied on the basis of medical issues, such as questioning whether an injury was caused by a preexisting injury or condition.
A SIMPLE APOLOGY GOES A LONG WAY
In a surprising number of instances, plaintiffs in personal injury cases say that a simple apology goes a long way toward remedying the situation. While attorneys often give their clients advice not to admit to guilt, research indicates that, when defendants admit to their guilt with full apologies, they are more likely to settle their lawsuits quickly. This finding comes from a study in which participants were presented with the hypothetical situation where the subject had been injured in a collision with a bicyclist and had been offered a settlement that covered only medical costs. Without an apology, only 52 percent accepted the limited settlement offer, but the percentage jumped to 73 percent when a full apology was presented.
HINT: Despite the potential effectiveness that an apology might have, defendants are strongly urged not to apologize or admit fault to an accident. If the case goes to court, the defendant’s lawyer will discuss beforehand a defense or settlement strategy.
The term “damages” refers to the financial, physical, and emotional harm (expressed in dollar amounts) that plaintiffs have endured due to their injuries. In the vast majority of such cases, there are two grounds for damages: “Special damages” may imply the extraordinary, but they merely refer to items that can be documented, or “specially” proved. They include such things as income losses and medical expenses. “General damages” are relatively difficult to quantify in dollar amounts because they encompass such things as the pain and suffering that arise from an injury. In either case, those who think they may have suffered injury due to the negligence or wrongful intentions of another should consult with an attorney.
HINT: A plaintiff can recover all reasonable and necessary expenses brought about by an injury caused by the wrongful acts of a defendant.
WHO IS AT FAULT?
When an accident occurs that results in injury or property damage, one of the first questions that is typically asked is “Who is at fault?” In accordance with traditional tort law, even if the defendant is negligent, the plaintiff’s “contributory negligence” prevents any recovery. However, in an effort to distance themselves from this all-or-nothing interpretation, many states, including New Jersey, have abandoned contributory negligence in favor of “comparative negligence.” This law maintains that the plaintiff’s fault reduces, but does not entirely eliminate, the defendant’s liability for the plaintiff’s injury. The jury is assigned the task of quantifying the degree of fault, and the damages are then based on the percentages arrived at by the jury. In New Jersey, we have “comparative negligence” which allows parties to collect if they are 50% or less to blame for the incident.
If you were to suffer injury as the result of a doctor’s negligence, he or she may not be the only defendant in a medical malpractice suit. Under the theory of “respondeat superior,” the hospital for which the doctor worked as a member of its staff can also be held vicariously liable for the doctor’s negligence. The term “respondeat superior” (Latin for “let the master answer”) is a legal principle that holds an employer liable for the negligence of its employees in certain circumstances. In order for this tenet to apply, the negligent act must have occurred within the course of their employment. If you have questions about applying this legal concept to your own circumstances, schedule a professional consultation.
CAUSE AND EFFECT
In order for a plaintiff to prove negligence, he or she must prove that the defendant was the actual cause of the injury as well as the “proximate” (legal) cause. In some cases, proving legal cause may not be as simple a matter as a plaintiff might think. If so, he or she would want to consult with an attorney, who must sift through the evidence to find relevant facts that support his or her client’s case. On top of that, in order to recover damages for personal injury, the plaintiff must prove that the defendant owed him or her a legal duty of care, that the defendant acted unreasonably, and that the plaintiff suffered a loss as a result.
HINT: Proximate cause refers to the “foreseeability” of the injuries, meaning that the plaintiff’s injuries must be a foreseeable result of the defendant’s conduct.
SETTLING OUT OF COURT
The vast majority of civil cases end with both parties agreeing to resolve the issues out of court without a trial. The decision to “settle” their cases demands that plaintiffs emotionally detach themselves from their disputes in order to make objective assessments of their position. One thing to consider is how much time and money would be involved in preparing and trying a case, both of which could be saved in a settlement. Plaintiffs should also take a clear-eyed look at their chances of winning in court. An experienced lawyer will be able to lend considerable knowledge and experience when it comes to helping clients analyze the strengths and weaknesses of their (and their adversaries’) cases.
HINT: When a case is settled out of court, most of the details are kept out of the court documents, meaning that they are kept out of the public record.
AFTER THE FALL
It was recently reported that a renowned professor from Harvard Law School was suing a Boston arena for injuries suffered from a slip-and-fall incident on the wet floor of the men’s room. Property owners are generally responsible for unsafe conditions, but we all also have an obligation to avoid slips and falls. Thus, there is no one-size-fits-all rule that applies to every slip-and-fall case. It’s up to the judge or jury to decide whether the property owner acted with sufficient care to avoid accidents, as well as whether the plaintiff was careless by virtue of not seeing or avoiding obstructions or slippery surfaces. Whether you are a Harvard law professor or a high school teacher, each case is decided individually.
HINT: In a slip-and-fall accident, if a person were to be injured while acting in an unexpected, unauthorized, or dangerously careless way, the property owner or occupier is not responsible.
PROPERTY OWNER’S LIABILITY
Property owners’ liability largely hinges on why the person injured on their property was there. For instance, if the injured person is a customer, or “business invitee,” property owners may be liable if they did not act reasonably to protect that person even if they were unaware of the danger. If the person was a social guest or door-to-door salesperson, a “licensee,” property owners most probably would be liable only if they did not protect that person from a danger that they knew existed. However, because “trespassers” are on other people’s property without permission, property owners would probably not be held responsible because a duty of care is not owed to a trespasser.
HINT: Under the “attractive nuisance doctrine,” landowners must take reasonable steps to protect children who may come in contact with dangerous man-made objects (such as swimming pools).
DOWN TO BUSINESS
Anyone who has suffered injury due to the neglect or carelessness of another is likely to want to be compensated by the injuring party. However, the decision to sue someone in civil court should not be based on emotion. The choice to litigate should be made in consultation with an attorney, who can evaluate a case on its merits and point out the legal hurdles that must be crossed. Going to trial can be a lengthy and emotionally draining experience. Even plaintiffs who win their cases and get judgments against the other party may find that they cannot collect without filling out more forms and having them served. In the final analysis, the decision to sue is a business decision.
HINT: It is important to sit down with an experienced lawyer to engage in a clearheaded discussion of the facts of any case when making the decision whether or not to sue.
Once a civil case is completely over (including an appeal), successful plaintiffs have the right to execute on the defendant’s assets if he or she does not pay. This means that an officer of the law can take any of the defendant’s assets that can be found and sell them to satisfy the judgment. If this search proves insufficient to satisfy the judgment, the plaintiff can subpoena the defendant’s records and take his or her deposition in an effort to discover assets. Plaintiffs who follow this course of action are entitled to take everything of the defendant’s that is necessary to get the money owed, subject to exemptions that allow the defendant to keep some of his or her property.
HINT: If the judgment debtor owns real estate, the judgment creditor can record the execution to “freeze” the title until the execution is satisfied.
GETTING IN ON THE ACTION
A “class-action” lawsuit enables those who have been similarly injured by a common defendant to band together and sue on behalf of the larger group (“class”). These cases, which often allege product defects or fraud, are undertaken when the issues in dispute are common to all members of the class and the numbers of those affected are so great as to make it impractical for all to bring their cases before a court. By the same token, the number of plaintiffs in the class may be so numerous that only a very significant settlement brings an appreciable damage award to each class member. Still, according to one international economic consulting firm, class-action settlements have averaged $56.5 million in recent years.
HINT: A class-action lawsuit is often the only way individuals are able to remedy injustices committed by powerful corporations and institutions.
ONE OR THE OTHER, OR BOTH
Generally speaking, criminal law is separate from civil law. While the former is designed to maintain peace and security among the general public, and those guilty of violating criminal laws are punished by society, the latter regulates relationships between individuals, families, and corporations, and successful legal action usually results in monetary remedies. Yet, there are instances in which criminal and civil law intersect. For instance, those charged with assault and battery will likely be criminally charged. At the same time, attacking an individual may be a “tort” (wrongdoing) that may ultimately involve payment of personal injury damages to the victim. Even if an injurious action involves criminal arrest, those suffering injury due to another’s wrongdoing should consult with an attorney.
HINT: While prosecutors must prove their cases “beyond a reasonable doubt,” lawyers for plaintiffs in civil cases need only show by a “preponderance of the evidence” (anything greater than 50 percent) that defendants are responsible.
“Res ipsa loquitur” is Latin for “the thing speaks for itself.” When this doctrine is applied in a civil case, it indicates that the facts of the case are sufficient to find liability and that there is no need to provide any further detail. To prove a case, the plaintiff must show that the defendant owed a duty of care and then breached that duty of care. If an accident occurs, it may be that the property owner breached the duty of care. However, with res ipsa loquitur, the breach is so apparent that there is a presumption of the breach of duty and the plaintiff doesn’t need to provide extensive evidence of the breach. The negligence speaks for itself.
HINT: A sponge left inside a surgery patient’s body is an example of res ipsa loquitur.
COMPENSATION FOR WORK-RELATED INJURY
Those injured in the course of employment are entitled to compensation for lost wages and medical costs. In return for this form of insurance, known as “workers’ compensation,” injured workers relinquish their right to sue their employers. If, for any reason, an accident is not covered by workers’ compensation insurance (for instance, due to independent contractor status), injured workers are free to file a claim against their employers just as they would against anyone else responsible for their injuries. In addition, if anyone other than an employer or co-worker were even partly responsible for the injury, workers are free to file their own liability insurance claims against that person or business with the help of their lawyers.
HINT: An injured worker need not necessarily be injured in the workplace in order to qualify for workers’ compensation. As long as the injury is work-related, it is covered.
When someone intentionally inflicts emotional distress on another person, the injured party can file suit for “intentional infliction of emotional distress.” The behavior in question is often defined as “extreme and outrageous conduct that intentionally or recklessly causes severe emotional distress to another.” Perpetrators of such actions are liable for the emotional distress and any bodily harm that results from it. Thus, if a defendant intentionally acts in an appalling manner toward a plaintiff, the plaintiff can sue for intentional infliction of emotional distress and recover damages simply for his or her emotional pain and suffering. If the severe emotional distress also makes the plaintiff ill or causes other physical injury, the plaintiff can also recover damages for that harm.
HINT: A fired employee may not sue an employer for intentional infliction of emotional distress because even if it is wrong or without cause, it is not extreme and outrageous conduct.
MAKING YOUR CASE
Before you even have the opportunity to prove your civil case to a judge or jury, you are going to have to prove to your lawyer that your case has merit. Any discussion of this matter should include an assessment of your ability to prove your case, as well as an examination of the defendant’s interest in settling out of court to avert protracted litigation. Analysis should also be conducted as to whether the defendant has sufficient insurance to pay damages in the event that you win your case. There is no sense in pursuing a case if the defendant, or the defendant’s insurance carrier, is not able to pay damages. Careful analysis of the strengths and weaknesses of any case is critically important.
HINT: The right to “trial by jury” applies to civil cases, which will be conducted before a judge. Cases often resolve without the need for trial by way of arbitration or mediation.
FILING A COUNTERCLAIM
When defendants feel that the allegations being made against them in a civil lawsuit are either frivolous or unfounded, they may file a “counterclaim.” This essentially reverses the roles of the two parties and puts the defendant on the offensive. In order for this strategy to be effective, the defendant in the original case must have a sound cause of action against the plaintiff. Whomever is sued in the countersuit, including the original plaintiff, becomes a “cross-defendant.” While the countersuit is treated as a completely new complaint, it becomes connected to the original complaint, and all proceedings include both the original suit and the countersuit. All facts developed in the litigation may be used to prove or disprove either case.
HINT: If a plaintiff were to sue you for damages resulting from an automobile accident, you might file a counterclaim against the plaintiff if you thought that the plaintiff was the one at fault.
“Product liability law,” is the law concerning who is responsible for defective or dangerous products. It is different from ordinary law in that it makes it easier for those injured by defective products to recover damages. Liability may be established if a manufacturing defect in the product caused the injury or if a design defect in the product led to injury. Moreover, “inadequate warning” may form the basis of a case. For instance, the product may have been known by the manufacturer to be potentially dangerous, yet it was still sold without a proper warning to the consumer. If you have suffered injury due to a product defect, consult with an attorney about your legal rights.
HINT: Responsibility for a product defect that causes injury may rest with all sellers of the product who are in the distribution chain.
You may have heard of the many injuries that occur in professional baseball parks as a result of foul balls and flying bats. Each of the people injured by these inherent risks in a sense agrees to waive liability by accepting a ticket that outlines the dangers of attending a game. Waivers of liability are quite common, especially with respect to recreational activities, because some sports have been found to be inherently dangerous. In such instances, participants in the sport are said to have voluntarily waived their right to recover damages in the event that they were to suffer personal injury. However, the validity and binding effects of a release or waiver of liability may be challenged when circumstances warrant.
HINT: Waiver law is based on state law.
IT’S NO ACCIDENT
Because the word “accident” infers a lack of responsibility, it is fast disappearing from the legal lexicon. The term “car crashes” now largely replaces the term “car accident.” The word “accident” implies that the event “just happened” and no one is at fault, but car crashes and similar occurrences are very often the result of someone’s negligence, carelessness, or recklessness. Thus, when a crash or other incident that causes injury (either bodily or property) occurs, there should be a determination of who is at fault (and liable). This process begins with a consultation with a lawyer and the injured party. Under no circumstances should those involved in an “accident” discuss blame with other people involved in the incident.
HINT: Automobile crashes give rise to the majority of personal injury claims in the United States.
Survivors of someone who died due to the negligence or intentional actions of another can bring a “wrongful death” suit against the wrongdoer. Damages (compensation) in this type of civil litigation are generally defined in terms of time. The first category allows the recovery of damages suffered by the deceased from the moment of the negligent act causing the death until the time of the person’s death. These damages typically include medical expenses, the deceased person’s mental and physical pain and suffering, the deceased’s lost wages, and funeral and burial expenses. The second category covers losses experienced by the deceased’s family and generally includes enough to compensate for money the deceased would have earned if not for the untimely death.
HINT: When “loss of consortium” claims are allowed in wrongful death suits, the surviving spouse or immediate family members who are deprived of the deceased’s love and companionship may seek compensation for their loss.
INJURED ON THE JOB
Individuals who are injured on the job can recover compensation from their employers only through workers’ compensation, meaning they cannot file a regular lawsuit for damages related to a workplace injury or illness (with some exceptions). This “exclusive remedy” has the advantages of avoiding the unpredictability of a lengthy lawsuit and of allowing injured workers to begin receiving monetary and medical benefits for a work-related accident, cumulative trauma injury, or occupational disease. However, there are circumstances that allow injured workers to sue their employers in civil court, such as when the employer intentionally harmed a worker, or the employer has insufficient or no workers’ compensation insurance. In these cases, injured workers should consult with an attorney.
HINT: Injured workers who are eligible to file a lawsuit against their employers in civil court will not be limited to the amounts provided by workers’ compensation benefits.
MAKING YOUR CASE
When a personal injury case goes to court, the burden is on the plaintiff to prove four required elements of the claim that he or she is alleging. First, did the defendant owe you a duty of care? Next, did the defendant breach that duty through a negligent act or omission? Were you injured? Lastly, was the negligent act or omission the proximate cause of your injury? “Proximate cause” means that there is a sequential connection between the defendant’s negligent act or omission and the plaintiff’s injury. If, on the basis of the facts of the case, the four questions can be answered in the affirmative, then the defendant committed a negligent tort and is liable for damages.
HINT: A plaintiff who is suing a defendant usually must prove “beyond a preponderance” of the evidence (more likely than not) that the defendant did what is being asserted.
ON EQUAL FOOTING
When a civil lawsuit is in the pre-trial stage, each party must respond to the other side’s requests for information concerning the case. Doing so puts both sides on even ground and removes the possibility that one side will surprise the other with withheld information. This makes “discovery” one of the most important stages of a personal injury lawsuit. Because the “discovery deposition” (witness testimony taken under oath) gives the attorney an opportunity to determine the facts of the case, those deposed must take extreme care to accurately describe what they know. Otherwise, by confronting an individual at trial with clearly erroneous deposition testimony, an attorney can devastate that person’s credibility in the eyes of the judge and jury.
HINT: With the proliferation of computer-stored information, nearly all courts now allow a form of discovery that is often referred to as “e-discovery.”
PUT TIME ON YOUR SIDE
Civil lawsuits must be brought in a timely manner, and each state has its own rules concerning the maximum amount of time a civil litigant can wait before filing a lawsuit (“statute of limitations”). Thus, it’s a good idea for potential litigants to seek a lawyer’s counsel immediately after an accident or dispute in order to find out what options are available. In some cases, the statute of limitations can be extended. For instance, the “discovery rule” will extend the deadline to the extent that the clock will not start running until the time that the injured person has reasonably determined that he or she has suffered injury. An example involves those suffering the delayed effects of toxic exposure.
HINT: The statute of limitations may be extended for adults who experienced sexual abuse as minors and wish to sue in civil court.
THE CHARGE OF BATTERY
The intentional offenses known as “assault” and “battery” are closely related, but they are distinct claims in a civil case. As exemplified by the threatening act of raising a fist, assault occurs when one person acts intentionally in a way that causes another person to reasonably fear an immediate harmful or offensive contact. Battery takes place when the defendant’s intentional act actually causes offensive or harmful contact with the plaintiff. The harmful contact need not be painful, such as when the defendant puts a dangerous substance in the plaintiff’s food. It is up to the police to bring criminal action against someone who commits assault or battery, while those who are threatened or physically harmed may bring civil action.
HINT: “Aggravated assault” is a felony that may involve an assault committed with a weapon or with the intent to commit a serious crime, such as rape.
SETTLING OUT OF COURT
Litigation is a time-consuming and expensive proposition, which is why parties to civil lawsuits should take more than monetary amounts into consideration when weighing the decision to settle the lawsuit out of court. Lawsuits tend to disrupt normal activities and everyday life, as well as drain emotions. Settling out of court enables litigants to avoid these disruptions, which is why the vast majority of civil lawsuits are settled before reaching trial. While there is no precise formula for calculating settlement amounts, plaintiffs usually settle for less than they want and defendants usually end up paying more than they feel they should. Thus, a good settlement can be said to be one that does not leave anyone entirely happy.
HINT: A settlement is much more predictable than a jury decision.
MUST BE SEEN TO BE BELIEVED
After their involvement in motor vehicle crashes, nearly 4 million individuals seek care in hospital emergency rooms. According to the first large study to evaluate musculoskeletal pain after car crashes, 90% of these individuals are discharged after undergoing an evaluation. However, researchers found that, six weeks after their accidents, more than 70% of the individuals studied reported experiencing persistent musculoskeletal pain in one or more body parts. More than a third of the crash victims reported pain in four or more body regions; however, most were not believed by doctors. Only 17% planned litigation six weeks after their accidents. In order to have their claims taken more seriously, all accident victims experiencing pain are urged to contact an experienced lawyer.
HINT: It is quite common for crash victims to experience delayed pain and limited mobility in bones, muscles, ligaments, tendons, and joints days, weeks, and even months after experiencing the physical trauma of a crash.
Diagnostic errors are among the most common mistakes made by U.S. doctors, causing between 80,000 and 160,000 deaths annually, according to Johns Hopkins researchers. Data from over 350,000 malpractice claims made in this country over the last 25 years shows that the majority of the claims were related to diagnostic errors. Medical malpractice law provides patients with a way to recover compensation for any harm, injury, or death that results from substandard treatment. The error may occur as a result of nothing having been done (an act of omission) or a negligent act. Physicians are legally responsible for harm or injuries resulting from deviations from the quality of care that a competent doctor would normally provide in a similar situation.
HINT: Blood thinners account for about seven percent of all medication errors in hospitalized patients.
INJURY ON YOUR PREMISES
Property owners have a responsibility to maintain a relatively safe environment that gives visitors a reasonable expectation of not getting injured. “Premises liability,” established by state laws, often focuses on the status of the visitor when determining liability for injury. For instance, if the injured person were a customer or “business invitee,” a property owner is liable if he or she did not act reasonably to protect that person, even if he or she did not know about the danger. If the person were a social guest or door-to-door salesperson (a “licensee”), the property owner most probably would be liable only if he or she did not protect that person from a known existing danger.
HINT: Property owners generally do not owe a duty of care to a “trespasser” who knowingly enters property without permission.
OFF THE HOOK?
Some businesses require visitors to sign a “waiver of liability,” which is a document that attempts to relieve a party of responsibility for another person’s injury. These waivers are quite common, especially with respect to recreational activities. Some sports, such as skydiving, have been found by courts to be inherently dangerous. If so, the participants in that sport are said to have voluntarily waived their right to recover damages in the event of a personal injury. “Assumption of the risk” has been used to prevent the owners of golf courses from being held responsible for injury from a stray ball. However, under certain circumstances, a waiver of liability does not bar an injured party from collecting damages for injury.
HINT: Despite a waiver of liability, the owner of the property where the plaintiff has been injured may be held liable if the property owner engaged in some type of negligence.
INJURED BY A PRODUCT?
Ordinarily, for plaintiffs to hold someone liable for their injuries, they must prove that the defendant was careless. However, because it’s very difficult for consumers to prove that a manufacturer or seller of a product was careless, the law developed a doctrine known as “strict liability.” It allows a person who is injured by a defective or dangerous product to recover compensation from the manufacturer or seller of the product if three conditions exist: The product had an “unreasonably dangerous” defect that injured the consumer of the product. The defect must also have caused an injury while being used in its prescribed manner. Lastly, the product must not have been substantially changed from the condition in which it was originally sold.
HINT: Strict liability is a way of holding someone accountable for behavior, regardless of fault. It only applies to civil, not criminal, law.
In the event that employees believe they have been discriminated against, harassed, or unjustly terminated because they filed a workers’ compensation benefit claim, they may bring civil actions against their employers for the tort of “retaliatory discharge.” When state law allows this type of lawsuit to be initiated, employees must prove to a judge or jury that it was more likely than not that they were wrongfully terminated. However, it is not necessary to prove that the workers’ compensation claim was the sole reason for the discharge. Employees who believe that their employers are not living up to their workers’ comp responsibilities should consult with a lawyer about asserting their rights through legal action.
HINT: Employer retaliation against employees who file workers’ compensation claims might also take the form of salary reduction or demotion.
Laws determining liability for dog bites vary according to state and are of two general types: The “one bite rule” focuses on whether the dog’s owner knew (or should have known) that his or her dog would bite and whether the necessary steps were taken to prevent the animal from biting. The recipient of the bite (plaintiff) must provide sufficient evidence to convince the jury that it was “more likely than not” that the defendant knew or should have known the dog might bite. States that have adopted the “strict liability” statute such as New Jersey hold the defendant liable if a biting event occurs regardless of whether the defendant could have done anything to prevent it.
HINT: A dog owner in New Jersey is strictly liable for damages caused as a result of a dog bite. There is no “one bite rule” that applies to a dog owner.
REPORTING YOUR ACCIDENT
While a “fender bender” accident may seem to be a minor incident, those involved shouldn’t hesitate to report these accidents to the police. Failure to do so, usually as part of a mutual agreement with the other driver to keep the incident among yourselves, leaves you vulnerable to being deceived. That is, the other driver may later decide to file an accident report, which afterwards contends that he or she was injured despite claiming not to be injured at the time of the accident. Without a police report, there is no official documentation to counter the other driver’s claims that his or her injuries were your fault or that any damage found on either vehicle was caused by the accident.
HINT: Use your smartphone to take pictures and document the damage caused by an auto accident. Also, be sure to collect the contact information of any eyewitnesses.
NURSING HOME ABUSE
It’s difficult enough to make the decision to place a loved one in a nursing home without learning that he or she has endured either verbal or physical abuse. Worse yet, the majority of violations are never reported, either because the abused have no practical way of reporting their complaint or they fear retribution. Thus, it is incumbent on visiting family and friends to look for any outward signs of physical abuse (including bruises and lacerations); neglect (significant weight loss, bed sores, dehydration, and unsanitary personal hygiene); or emotional or sexual abuse (depression, anxiety, or withdrawal behavior). If a direct discussion with the nursing home administration does not satisfactorily resolve concerns that the resident’s family has, an attorney should be consulted.
HINT: The most effective form of legal recourse that victims of nursing home abuse have is a negligence lawsuit.
As the plaintiffs in a personal injury case, those who have suffered an injury, property damage, or any other kind of loss may seek compensation from whomever caused or contributed to those losses. The legal term for this kind of compensation is “damages,” which are divided into a number of categories. “Compensatory damages” are designed to make a person “whole again,” that is, returned to the position which existed before the harm or loss occurred. One of the two main categories of compensatory damages is “general damages,” the amount needed to restore the fair market value of the property to its owner. The other is “special damages,” which include the cost of services and out-of-pocket items that can be documented.
HINT: “Punitive damages” are only awarded to an injured plaintiff when the wrongful behavior of the defendant was intentional.
Before a defendant can be held legally responsible for harm caused by his or her negligence, the plaintiff must prove four elements. The first is that the defendant owed the plaintiff a legal “duty” to follow an accepted standard of care. Next, the plaintiff must prove that the defendant “breached” that legal duty by acting or failing to act in the way that a “reasonably prudent person” would under similar circumstances. The third element requires that the plaintiff prove that the defendant’s negligence “caused” his or her injury. Lastly, the plaintiff must prove that the harm or injury sustained caused calculable and compensable damages. The plaintiff’s attorney must determine if all these elements apply.
HINT: If a defendant in a negligence case could not have reasonably foreseen that his or her actions would cause injury to the plaintiff, the defendant will not likely be held liable.
BREAKING DOWN A CASE
When prospective clients first consider filing a civil lawsuit, they may be most concerned about the worth of their cases. Experienced lawyers, on the other hand, are more interested in reviewing all the relevant information of the case before they venture an opinion. Even then, there is no way to attach a number to any expected recovery without knowing the full extent to which a person has been injured. Full analysis requires a comprehensive medical evaluation of injuries, along with any long-range prognoses. One of the most valuable services that an attorney can perform for prospective clients is to inform them of the proper procedures for evaluating, documenting, and treating injuries sustained in accidents. Every case must be evaluated individually.
HINT: While it may be relatively easy to quantify such compensatory damages as reimbursement for property damage and medical bills, it is more difficult to place a dollar figure on the pain and suffering caused by lingering accident-related injuries.
When a person dies as a result of another person’s negligence or wrongdoing, the surviving members of the victim’s family may sue for “wrongful death.” A wrongful death lawsuit alleges that the decedent was killed as the result of negligence on the part of the defendant. Under wrongful death statutes, the surviving family members or beneficiaries are entitled to monetary damages as a result of the defendant’s conduct. This includes damages for pain and suffering, as well as for reasonable burial expenses. The surviving spouse, child, or parent could also look to the wrongdoer for damages in the amount that would be commensurate with what the deceased would have provided in the way of economic support.
HINT: In some situations, government agencies and employees might be immune from a wrongful death lawsuit.
HOW MUCH TIME DO YOU HAVE?
Every state enforces strict time limits for filing a civil action, known as the “statute of limitations.” With few exceptions, if a lawsuit is not filed within the legally prescribed limit, then a plaintiff will be legally barred from suing. Thus, those who have been injured due to negligence or intentional wrongdoing have good reason to meet with an attorney as soon as possible. Statutes of limitation are generally set by state or federal legislatures and may vary with respect to the type of claim and who is the respondent in the suit. The longest statutes of limitation are generally those regarding the recovery of judgments after a lawsuit, which involve losing parties who fail to pay their judgments.
HINT: The general purpose of statutes of limitation is to make sure that legal decisions are arrived at on the basis of evidence (physical or eyewitness) that has not deteriorated with time.
If you were to be injured on the job, workers’ compensation laws are designed to handle your claims. These laws are strict liability, which means that you need not establish fault and/or negligence on the part of your employer in order to collect benefits, as long as the injury/illness was incurred in the course of employment. Because workers’ compensation law imposes strict liability on employers, it is the exclusive remedy for an employee’s injuries/illnesses arising out of the course of employment. However, if a third party (such as a delivery service) were to be responsible for a condition that caused you to slip, you might have a claim against that company. An experienced attorney can help you pursue a third-party lawsuit.
HINT: If a delivery person were to be struck and seriously injured by a drunk driver, on his work route, the delivery person is entitled to collect worker’s compensation benefits and pursue a personal injury claim against the drunk driver and his insurance company.
PRODUCT LIABILITY LAW
Many years ago, the operative phrase for those purchasing goods was “caveat emptor” (buyer beware). It was the purchaser’s responsibility to check the safety of the product before buying. A consumer could only sue a manufacturer if he or she could prove either negligence or that the product did not live up to its warranties. Today, it is not reasonable to expect that consumers should be able to check products such as electronic goods for defects. Thus, the law has evolved to the point where the consumer is protected against manufacturer negligence by “product liability law,” which allows a consumer to recover damages from a manufacturer or seller on the basis of strict liability, negligence, and breach of warranty.
HINT: Strict product liability means that the manufacturer of a product is liable for selling any defective product that is deemed “unreasonably dangerous” and results in injury to the buyer or to anyone who uses it.
Have you ever asked yourself what you would do if you were to find yourself on the receiving end of a civil complaint? If not, you should know that defendants in civil suits typically have no more than 35 days after receiving the complaint to file a response. Unless the plaintiff’s lawyer provides extra time to respond (“extension of time”), defendants should proceed quickly. Failure to file a response within the allotted time can result in serious consequences such as having the court deem the plaintiff as winner by default. The simplest response to a complaint is called an “answer,” which denies the most important factual allegations and legal theories of the complaint.
HINT: In their answers to complaints, defendants in civil cases must respond to every claim the plaintiff makes.
While we may find the classic banana-peel pratfall performed on stage to be comical, there’s nothing funny about a real-life “slip-and-fall” accident. These mishaps can be more than just minor incidents for those who land on hard surfaces and suffer fractures, herniated discs or torn ligaments. Once these injuries are medically addressed, a consultation with an attorney may be warranted to explore the legal concept of “premises liability.” This legal theory holds property owners liable for accidents and injuries that occur on that property. The fundamental question surrounding a slip-and-fall accident involves whether the conditions were unreasonably dangerous. It may also have to be determined what duty or responsibility a property owner owes to another on the basis of that person’s status.
HINT: Under premises liability law, it is necessary to determine if the plaintiff was an “invitee,” a “licensee,” or a “trespasser.”
WHAT IS YOUR CASE WORTH?
If you have suffered injury due to the (in)action(s) of someone else, it is in your best interests to rebuff any offer to settle the claim before consulting with a lawyer. This advice is predicated on the fact that you may not be aware of the full extent of your injuries or what treatment you might eventually need. Nor are you likely to fully appreciate the long-term impact of your injury. You may also need to be compensated for the “pain and suffering” that you experience as a result of your injury. Moreover, you cannot know with any certainty how much income you might stand to lose. It’s never a good idea to begin negotiating a settlement without knowing all the facts.
HINT: The extent to which a person is at fault and the nature, extent and permanency of the injuries are the primary factors determining how much an insurance company is willing to pay the injured party.
Lawyers usually take on personal injury cases on a “contingent fee” basis, which means that the attorney handling the case receives a percentage of any money recovered on the client’s behalf. So when the attorney wins, the client wins. Thus, attorneys have every incentive to win their clients’ cases. Generally, if no money is recovered, the client is not responsible for any attorney fees. Contingent fee arrangements are most beneficial to those injured parties who could not otherwise afford an attorney to protect their legal interests. Therefore, those injured as a result of another person’s negligence need not feel that they are not able to file a suit in civil court to recover damages for the injuries suffered.
HINT: Other cases that lawyers will commonly take on a contingency fee are those involving employment discrimination, sexual harassment, and malpractice.
STEPPING INTO THE INSURED’S SHOES
If you were injured due to another party’s negligence, review your insurance coverage even if you plan to sue for damages. If the other party is responsible for your injuries and you expect to win a lawsuit and collect damages, you may still collect on your own insurance policy. For instance, if you were in a car crash where the other party was at fault, your insurer has an obligation to reimburse you based on any coverage you had in place for medical bills and auto repairs. Some policies then have a “right of subrogation” clause, which entitles them to recoup some or all that they paid out on your behalf should you later collect a settlement or award from the responsible party.
HINT: A “waiver of subrogation” is an agreement between two parties in which one party agrees to waive subrogation rights against another in the event of a loss.
WHO WILL DECIDE YOUR CASE?
Civil cases involving personal injury, breach of contract, professional malpractice, libel, slander, etc., call for a jury trial. When selecting the jury, lawyers from both sides have the right to review prospective jurors in a questioning process (“voir dire”), with the goal of selecting an impartial jury. During this process, jurors may be challenged and excused in one of two ways: A challenge “for cause” asks the judge to excuse a prospective juror on the basis that a legal impediment to that person’s service as a juror exists. For instance, something in the person’s answers to questions may indicate that he or she is not fair and impartial. A “peremptory” challenge can be exercised for any reason whatsoever.
HINT: There is no limit to the amount of challenges for cause, while the number of peremptory challenges is limited.
YOU, THE DEFENDANT
Defendants in personal injury cases should know there are four elements to consider: duty of care, breach of duty, causation, and damages. In most civil cases, it is the plaintiff’s burden to convince a judge or jury that the facts are true “by a preponderance of the evidence,” which means that the plaintiff must establish that the chances are better than 50 percent that his or her facts are true. One way a defendant’s lawyer might argue that the plaintiff’s case fails to establish one of the essential elements is to challenge the causation claim. If the plaintiff’s case does not show a clear link between the defendant’s actions and the plaintiff’s injuries, the defendant will not be found liable.
HINT: A personal injury complaint is the first official document in a civil case, laying out in very broad detail what the plaintiff claims the defendant did.
While plaintiffs in personal injury cases may easily point to their physical injuries, psychological injury is more difficult to prove. Judges, juries, and insurance companies tend to view psychological injury claims with suspicion because they feel that the claims are either invalid or exaggerated. This does not mean that psychological injuries are not real and cannot be proven. For instance, “posttraumatic stress disorder” (PTSD) is a provable phenomenon that manifests itself in depression, irrational fears, and an inability to concentrate. PTSD can affect those who personally experience trauma or witness a catastrophic event. Claims involving this psychological problem and others can and should be pursued. If you have suffered psychological harm, you may have the basis for a personal injury case.
HINT: Symptoms of “posttraumatic stress disorder” (PTSD) include anger, irritability, mood swings, shock, confusion, difficulty concentrating, anxiety, fear, sadness, hopelessness, guilt, shame, and reliving the event that caused these symptoms.
COMPENSATING INJURED WORKERS
While workers’ compensation laws cover only work-related injury and illness, the injury or illness need not necessarily have occurred in the workplace. This means that, if a worker were to suffer an injury or illness while traveling on business, going on a work-related errand, or participating in a work-related function, he or she would be covered. With regard to the timing of the injury or illness, it can occur suddenly (as would be the case with a fall) or can happen over time (such as developing a repetitive stress injury). Workers may also seek compensation for conditions that develop as a result of exposure to workplace chemicals/radiation/air pollution or illnesses that gradually develop as a result of working conditions.
HINT: If an employer does not have the workers’ compensation coverage required by law, employees may seek compensation for work-related injuries or illnesses by filing a lawsuit in civil court.
LAW OF ATTRACTION
The attractive nuisance doctrine holds that landowners may be liable for injuries to children trespassing on their land if the injury is caused by an object on the land that is likely to attract children. Homeowners have an obligation to place fences and gates around backyard swimming pools, as well as warn and protect against other potential dangers. If the property owner does not take the proper measures to ensure the safety of children from an attractive condition, and a child should suffer an injury due to the condition, the property owner may be held liable if it can be shown that the property owner knew that the condition was both alluring and dangerous.
HINT: Many courts require that an attractive nuisance be man-made, and many require that landowners “maintain” the nuisance in order to be liable. Therefore, while pools may qualify under this definition, ponds and lakes may not.
THE “BUT FOR” TEST
In order for plaintiffs’ personal-injury suits to be valid, they must establish that the defendant owed them a duty of care and breached that duty. Plaintiffs must also show that as a consequence of that breached duty, they suffered harm, and the burden of proof does not stop there. In addition, the test of causation requires the defendant to show that the loss or damage sustained by the claimant was not too “remote.” The claimant must prove that harm would not have occurred “but for” the negligence of the defendant. If a plaintiff’s harm could not reasonably be foreseen to be a consequence of the plaintiff’s actions, the law limits the amount of compensatory damages available for the wrong.
HINT: In some cases, it may be sufficient for a plaintiff in a tort case to show that the defendant’s breach of duty made the risk of injury more probable.
WHEN PETS BITE
In some states, like New Jersey, strict liability laws may hold a dog owner legally responsible for an animal bite regardless of whether the owner did anything wrong with respect to protecting others from attack. In other states, the owner of an animal can be held liable for the injuries it inflicts as long as the owner knew (or had reason to know) that the animal had “dangerous propensities.” Thus, those who have been injured by an animal may base their claims of liability on the animal’s past behavior when providing evidence that the owner should have known of the danger presented by his or her pet. However, it may be difficult to determine whether an owner knew of an animal’s dangerous inclinations.
HINT: If an animal owner warned others that the animal was dangerous and a person ignored these warnings, it may be difficult for the injured party to successfully sue the owner.
COLLECTING THE JUDGMENT
After a plaintiff wins a civil case in court, he or she may be faced with the possibility that the losing party (debtor) may either refuse the court order or cannot afford to pay the amount of the judgment. Plaintiffs should take this matter into consideration when deciding to pursue a personal-injury case. As a practical matter, possibilities for the recovery of damages are limited if the defendant is not insured. Even if a plaintiff were to obtain a substantial verdict against an uninsured defendant of limited means, it may not be worth the effort. The reality of many civil cases is that damages are limited to insurance proceeds, one factor attorneys are sure to discuss with potential clients.
HINT: Those holding a judgment against another individual can garnish that individual’s wages to collect the judgment.
CRIMINAL ACT, CIVIL SUIT
Even though sexual assault can give rise to criminal prosecution that results in incarceration, victims may want to file civil lawsuits for compensation for the harm they have suffered. Because there is no cause of action called “sexual assault,” the plaintiff’s attorney must find another legal theory under which the perpetrator can be held liable, such as assault and battery or intentional infliction of emotional distress. Once the legal theory of the case is established, the plaintiff can seek damages for the physical and emotional harm that was suffered and continues to be endured as a result of the abuse. However, damages may be difficult to collect because most liability insurance policies usually exclude coverage for intentional acts.
HINT: A legal rule known as “collateral estoppel” may entitle the plaintiff in a civil lawsuit to bring in evidence that a jury in a criminal case has already found the defendant guilty of committing the crime.
UTTER DISREGARD FOR OTHERS’ SAFETY
While most civil lawsuits involve either negligence or intentional misconduct, there is a middle ground that may be termed “willful and wanton,” otherwise known as “reckless” conduct. This behavior is generally defined as unreasonable conduct committed under circumstances in which the person knew that his or her actions created an unreasonable risk of physical harm and that the probability was relatively high that harm would occur. Thus, the person who commits the willful and wanton tort is aware of the danger but is indifferent to it. In a sense, reckless conduct has some attributes of both negligence and intentional torts. Those who suffer injury as a consequence are advised to consult with an attorney.
HINT: Driving while drunk, drag racing in a residential area, and having unprotected sex while knowingly having a sexually transmitted disease are examples of reckless behaviors that could harm others.
INJURED BY A DEFECTIVE PRODUCT?
If a consumer suffers injury due to a defective or unexpectedly dangerous product, the legal doctrine of “strict liability” enables the injured party to recover compensation from the manufacturer or seller of the product, whether or not the maker or seller of the product was actually negligent. Under this doctrine, the plaintiff is not required to show that the manufacturer or seller was actually negligent.
HINT: Would-be plaintiffs may not be able to claim strict liability if they knew about the defect but continued to use the product.
When the defendant in a civil lawsuit does not respond to a summons or fails to appear in court, the plaintiff may win the case by default. Prior to entering a “default judgment,” the judge will ascertain whether the defendant was properly served with the summons and complaint and notified of the trial’s correct time, date, and place. If the defendant was properly served, the judge may ask the plaintiff to summarize his or her case and justify the amount of damages being claimed. After that, the judge may enter a default judgment, which means the plaintiff may collect damages from the defendant in the same manner as if the defendant had appeared in court, fought the case, and lost.
HINT: A defendant can have a default judgment “vacated” (set aside) by filing a motion in which the defendant explains why he or she failed to answer the summons and/or any other reasons why the default judgment should be vacated.
DON’T BE DENIED
Workers who have been injured on the job and find themselves confronted with a workers’ compensation carrier’s denial of their legitimate claim should not let the matter rest. The insurer may claim that a worker has not been injured at all or that his or her injury is not serious enough to qualify for disability. The insurer may issue these denials on the basis of the findings of its own private investigation. As aggressive as their stance may be, if an injured worker’s legitimate benefits are denied, he or she should immediately file an appeal with the state appeals agency. It is also probably in a worker’s best interests to hire an attorney to help pursue the claim.
HINT: Because of the complexities associated with appealing a workers’ compensation decision, it is extremely important to work with an attorney who knows workers’ compensation laws.
STICKS AND STONES
Being subjected to bad manners is one thing, but being intentionally inflicted with emotional distress is something else again. In fact, perpetrators of such actions can be held liable. To be actionable, the defendant’s conduct must go beyond the reasonable bounds of decency to the point of being extreme and outrageous. Thus, transgressions such as name-calling and subjecting a person to verbal abuse may not be reasons enough for a person to seek legal judgment. However, if the defendant’s actions may be characterized as shocking and indecent according to the standards of the community, those who are subjected to such behavior may be compensated for the distress they engender.
HINT: The negligent infliction of emotional distress requires no proof of intent to inflict distress. Even an accidental infliction of emotional distress, if negligent, is sufficient to support a claim.
BEYOND CRIMINAL PROSECUTION
Whether or not a criminal act results in injuring a person, the government will prosecute the person responsible since it is believed that any violation of the criminal laws harms society as well. Criminal prosecution is thus conducted not only to punish those who commit crimes, but also to deter others from acting similarly. As for the victim of a criminal act, he or she may file a civil lawsuit against the wrongdoer. In doing so, the plaintiff seeks compensation for his or her injuries or vindication of his or her rights. Any defendant found guilty in a civil case and found liable for harming the plaintiff will instead be ordered to pay compensation or to desist from some action.
HINT: It is more difficult to convict someone of a crime than to obtain a civil judgment against that person.
MAKING YOUR CASE
In most civil cases, the plaintiff’s ability to meet his or her “burden of proof” is measured by whether a reasonable person would have concluded that it was “more likely than not” that the defendant caused (and was liable for) the plaintiff’s injury or loss. According to this “preponderance of the evidence” standard, the defendant is entitled to a not guilty verdict if the evidence favors him or her by even the slightest amount. Prosecution of a criminal case must demonstrate the defendant’s guilt “beyond a reasonable doubt.” Anyone who entertains the idea of filing a civil suit should be mindful of this distinction regarding the burden of proof and not be deterred by any mistaken notion about what it takes to prove his or her case.
HINT: While criminal cases almost always allow for a trial by jury, many civil cases will be decided by a judge.
A WINNING STRATEGY
Nearly all attorneys take on personal injury cases on a “contingent fee” basis. Under this payment agreement, the lawyer receives a percentage of the judgment as a fee if his or her client wins. If the plaintiff loses, the lawyer receives no fee. Thus, would-be plaintiffs can be fairly certain that entering into a contingency fee arrangement fairly ensures that the lawyer taking the case thinks that it is winnable and fairly easy to prove. In addition, the lawyer will also want to ascertain that there is a fund from which any judgment would come. Because insurance companies usually have the money to pay a judgment or a settlement, it is preferable that the defendant be insured.
HINT: Regardless of whether they win or lose, plaintiffs in personal injury cases will likely have to pay court filing fees, the costs related to deposing witnesses, and other charges.
SUING FOR MALPRACTICE
Patients who suffer harm as a consequence of a negligent act or omission by a physician and are contemplating initiating a “malpractice suit” against that doctor should understand the negligence standard that applies in these cases. Physicians owe a legal duty of care to their patients. Any injury emanating from an inability or lack of care will ordinarily cause the doctor to be liable for malpractice. The general rule that is employed to determine malpractice is what constitutes reasonable care, skill, and diligence in the community where the professional practices. In the event that community standard has not been met (and other defenses do not apply), the physician is liable for negligence, and malpractice is established.
HINT: One common type of medical malpractice is the “failure to diagnose” in which a competent doctor would have discovered the patient’s illness or made a different diagnosis, leading to a better outcome than the one actually achieved.
When minors are involved in wrongdoing that results in injury to another person, their parents may be held responsible, depending on the child’s age. The term “parental liability” refers to parents’ obligation to compensate those who have suffered damage caused by negligent, intentional, or criminal acts committed by their child. Parental liability usually applies when the child reaches eight to ten years of age; it does not end until the child reaches the age of majority. Most states currently have laws relating to parental liability in various applications. Minors can be held responsible for having committed a tort because being underage does not allow one to harm other people or their property. So-called youthful indiscretions may have consequences.
HINT: The age of “majority” is the age at which a minor, in the eyes of state law, becomes an adult. This age is 18 in most states.
SETTLING YOUR WORKERS’ COMP CLAIM
If you were injured at work resulting in a lasting impairment, you may be able to negotiate a settlement. For instance, if the state allows injured workers to negotiate a lump sum settlement, you may prefer that over continuing to receive permanent weekly disability payments. You may also be able to settle any disputed amounts, past-due temporary disability payments, and unreimbursed medical expenses. In addition, it may be possible to negotiate an agreement for a structured settlement. However, by accepting a settlement, you may be giving up your right to receive compensation for future medical treatment. Because the wording of the settlement can be critical, it pays to have an experienced attorney on your side.
HINT: Estimating the value of a workers’ comp settlement is more complicated if you are on permanent total disability because the settlement value has to take into account the present value of your future entitlement to benefits.
OVER BEFORE IT STARTS
The vast majority of civil cases never go to trial either because both sides reach a settlement beforehand or cases are dismissed. A “motion to dismiss” may be filed by a defendant who asserts that the plaintiff has failed to state a viable cause of action. In short, the plaintiff has no case, or has missed the statute of limitations. Another way to avoid a lawsuit going to trial involves filing a “motion for summary judgment,” typically filed after discovery is completed. This motion is granted when a party can get the court to determine that there is no issue of material fact and the undisputed facts indicate that one party should win the case as a matter of law.
HINT: If a plaintiff in a malpractice suit fails to retain a qualified expert to testify that the defendant committed malpractice, the defense can bring a motion for summary judgment because the plaintiff cannot prove the case without an expert.
ARE YOU LIABLE FOR INJURIES ON YOUR PROPERTY?
Property owners have a responsibility to maintain a relatively safe environment that ensures that those entering the property have a reasonable expectation of not getting injured. This legal concept, known as “premises liability,” comes into play when an injury is caused by an unsafe or defective condition on someone’s property. Regardless of whether the accident takes place in a store or residence, or on public property, two basic rules determine who is legally responsible. First, the owner of the property has a legal duty not to expose those who enter to unreasonable risk due to faulty design, construction, or condition. However, property owners are not held liable for those entering the property in an unexpected, unauthorized, or dangerously careless manner.
HINT: If you are a guest or tenant who is injured in an accident on rental property, the party responsible for maintaining the area or condition that caused your accident is liable.
THE MAKE WHOLE DOCTRINE
When individuals are physically harmed as the result of the negligence of others, the “make whole doctrine” seeks to place the damaged parties back into the position they would have been in before the injury caused by another. Both economic (out-of-pocket) and non-economic (loss of physical and mental well-being) losses are restored through monetary compensation. The term “general damages” refers to non-economic losses such as “pain and suffering.” The valuation of such loss is left largely to the jury’s discretion. “Special damages” are those awarded for compensable harms such as medical expenses and lost wages. These can easily be quantified with the help of bills, pay stubs, and the like. Plaintiffs should give a full accounting of their losses.
HINT: “Nominal damages” is the term used to describe a damage award issued by a court when a legal wrong has occurred, but where there was no actual financial loss as a result of that legal wrong.
ARE YOU ENTITLED TO SEVERANCE PAY?
It is a common workplace misconception that workers are legally entitled to severance pay when they are discharged from a job. Whether it is given varies among employers, regions, and industry custom. However, an employer may be legally obligated to pay a worker some severance pay if there is a written contract stating that it would be paid. Otherwise, there may be a promise that employees would receive severance pay as documented in an employee handbook. In addition, although it may be difficult to prove, there may have been an oral promise that an employer would pay a worker severance. If so, the employer who reneged on a promise to pay severance may be sued for breach of contract.
HINT: Some companies demand that departing employees sign broad severance agreements, which typically include provisions requiring a former employee to waive the right to file a number of claims against the company before they receive any money.
In order for plaintiffs to win their negligence cases, they must prove that the defendant’s negligence caused their injuries. In some cases, the attempt to establish this link involves the presentation of “circumstantial” evidence. On the other hand, some negligence cases reveal the defendant’s negligence to be so inextricably linked to the plaintiff’s injuries that it is obvious to all. In such cases, the Latin phrase “res ipsa loquitur” (“the thing speaks for itself”) applies. That is, the court can assume that an accident occurred due to someone other than the plaintiff’s own negligence, the defendant owed the plaintiff a “duty of care,” and the defendant “breached” that duty by acting negligently or carelessly.
HINT: The “res ipsa loquitur” originally stems from a case in which a plaintiff suffered injuries from a falling barrel of flour while walking by a warehouse.
Strict liability is a special set of rules that allows people who are injured by defective or unexpectedly dangerous products to win compensation from the manufacturer or seller of the product. Strict liability applies whether or not the maker or seller of the product was actually negligent. The ruling is that those who have been injured by a consumer product are entitled to compensation from the manufacturer or from the business that sold or rented the product, whether or not they sold or rented it directly to the consumer. Strict liability operates against a non-manufacturer who rented or sold a product only if it is in the business of regularly renting or selling those particular kinds of products.
HINT: Strict liability wrongs do not depend on the degree of carefulness by the defendant.
COMING TO A RESOLUTION
Civil lawsuits that arise from accidents and injuries are often resolved early in the litigation process through a negotiated settlement between the plaintiff and defendant, when parties agree to settle the case. This resolution between opposing parties can take place from the time the lawsuit is filed up to when the case has been tried but before the jury reaches a verdict. A settlement consists of an agreement by the plaintiff to give up the right to pursue any further legal action in connection with the accident or injury in return for monetary compensation from the defendant or insurance company. The final decision of whether or not to accept a settlement offer rests solely with the plaintiff.
HINT: The ability of a plaintiff to successfully negotiate a settlement to a civil case involving accident or injury is directly related to the strength of his or her case.
Anyone who suffers injuries as the result of another person’s negligence should take the time to document his or her injuries and treatment history in a journal. Relying on memory for such information jeopardizes a plaintiff’s ability to receive full compensation if he or she should win a personal injury lawsuit for the injuries sustained. Keeping a detailed record of injury and treatment is especially important in cases where the injured person suffers pain, anxiety, or loss of sleep, which cannot be detected by visual examination. Taking note of injuries may help health care professionals to diagnose delayed symptoms. Personal accounts become part of the medical records that will later provide evidence in any case that may be brought.
HINT: Those keeping personal injury journals should note in detail how the injury has changed their lives, affected their work, and disrupted their ability to normally conduct their daily lives.
SUING FOR MALPRACTICE
When a patient has reason to believe that he or she was harmed by a doctor or other medical professional who failed to competently perform his or her medical duties, there may be grounds for filing a medical malpractice lawsuit. To prove such a case, the patient must first establish that a doctor-patient relationship existed. In order to hold the physician liable for medical malpractice, the patient must also show that the doctor deviated from the appropriate medical standard of care. In addition, the patient must show that it is “more likely than not” that the doctor’s incompetence directly caused the injury. Finally, the patient must show that the injury caused by the doctor’s negligence led to specific damages.
HINT: In accordance with the “duty of informed consent,” physicians have a duty to warn patients of known risks of a procedure or course of treatment.
Would-be plaintiffs in personal injury cases who point to the negligence of others as the cause of their injury might want to examine their own behavior before they initiate legal action. The notion of liability revolves around the simple fact that most accidents happen because someone was careless or negligent. To this carelessness the law applies the basic rule that the person who is less careful than the other involved in an accident must pay damages. However, even careless individuals may not necessarily be liable to someone injured by their carelessness. The concept of “contributory negligence,” which refers to conduct that creates an unreasonable risk to oneself, may be used as a defense to a negligence claim.
HINT: “Comparative negligence approach” weighs each party’s negligence when determining damages.
HOLDING CHILDREN TO A REASONABLE STANDARD
When a child commits a negligent act that leads to significant injury or property damage, some may wonder if the child can be held to the same legal standard that applies to adults. When differentiating an accident from a negligent act, adults are held to a “standard of care” that is required in a given situation. That is, if a person acts in a manner other than how a “reasonable person” would act in the same situation, the individual would be held liable for any resultant injuries. However, children are not expected to act as a reasonable adult would act. Instead, a child’s actions are compared with the conduct of other children of the same age, experience, and intelligence.
HINT: The exception to this altered duty of care for minors involves situations in which the child is carrying out an adult activity, such as driving a vehicle.
CAUSE AND EFFECT
In civil law cases, the plaintiff must prove that a defendant is liable for his or her injuries by showing that the plaintiff’s action or inaction was the “proximate cause” of the injuries. This means that that plaintiff must show that the defendant set events in motion that led to the plaintiff’s injury. For proximate cause to exist, the injury must only be proven to be the likely consequence or outcome of the wrongdoer’s negligence. Quite often, those injured by others fail to make this legal connection between their injuries and the actions of others. The value of consulting with a lawyer is making a proper determination that a lawsuit can be won on the facts of the case.
HINT: One way to look at proximate cause involves recognition that, without the act, no injury would have resulted.
BLOOD FROM A STONE
One of the most important aspects to be discussed with an attorney when contemplating filing a civil lawsuit is the matter of collection. Even if a plaintiff’s case ticks all the boxes (meeting the standards of proving that a defendant had a duty to the plaintiff, that the defendant breached that duty with regard to the plaintiff, that the defendant caused the plaintiff’s injury, and that the injury can be remedied by money damages), the question still remains as to whether the plaintiff can collect if he or she wins. While most reputable individuals and businesses will pay any damages they owe, those that are insolvent, go bankrupt, or disappear will be of no value to a winning plaintiff.
HINT: The court will not collect money from defendants who owe damages to plaintiffs.
NOT SO CLEAR-CUT CASE
At the scene of a vehicular crash, it may seem obvious to an injured party that the other driver was at fault, but the other driver’s insurance company may not see things quite the same way. The insurance company is likely to firmly deny the liability of the insured because it stands to lose the most. By saying that the policyholder was not to blame for the accident, the insurance company may hope that the accident victim takes its word at face value or will drop his or her claim in frustration. At this point, those harmed as the result of vehicular accidents should realize that they need an experienced lawyer on their side to evaluate their cases.
HINT: It is never a good idea for those involved in crashes with other vehicles to talk about who was at fault. Instead, the police should be summoned to write up a report of the accident.
DETERMINING CAUSE OF DEATH
When the cause of a person’s death is unknown or suspicious, the family of the deceased may want to request an “autopsy” in an effort to help establish the cause of death. An autopsy, which means “see for yourself,” is a medical procedure that involves a thorough examination of the corpse by a pathologist. While the prospect of having this procedure performed on the deceased may be abhorrent to surviving family members, it may prove beneficial to them and society. Even if the autopsy is not required by law as part of a criminal investigation, the deceased’s family may order one performed as part of an effort to establish a direct line of causation in a wrongful death lawsuit.
HINT: An autopsy can often prove helpful in answering the outstanding questions about how a defendant’s negligence caused the death (or failed to prevent it), depending on the circumstances.
When those who are injured as a result of someone else’s actions go to court, they must prove that the person they deem to be responsible for their injuries failed to act with “reasonable care.” That is, each of us has a legal responsibility to act with a judicious amount of care in order to avoid injuring others. This concept is based on the “reasonable person” standard, which a judge or jury must apply when deciding what a “reasonable prudent person” would have done by way of exercising “ordinary care” under the same circumstances. A person who fails to use reasonable care under the circumstances, either by action or inaction, is considered to be negligent.
HINT: In a personal injury lawsuit, the first step toward proving that another person was negligent involves establishing that he or she had a “duty of care” (the responsibility one person has to avoid causing harm to another) in the situation that gave rise to the injury.
WHOM ARE YOU TRYING TO FOOL?
Although the old adage “A man who is his own lawyer has a fool for his client” needs little explanation, it’s helpful to point out that the law allows an individual to represent him- or herself in most judicial proceedings. This is called acting “pro se” (Latin meaning “for oneself”). However, as much as many books and websites may seem to distill procedures revolving around wills, divorce, and other legal matters down to a simple, easy-to-follow formula, legal rules can be complex and arcane. All it takes is a single oversight or mistake by a person who is more interested in saving money than getting a desired legal outcome for an important legal matter to go wrong.
HINT: In most civil cases, a lawyer will represent a plaintiff on a “contingent fee” basis, meaning the attorney agrees to get paid by taking a percentage of the award as a fee for services. If the client loses, the attorney receives nothing.
INTENTIONAL OR NEGLIGENT BEHAVIOR?
When someone is injured as a consequence of someone else’s behavior, it is important that the would-be plaintiff carefully examine the facts with an attorney before filing a civil lawsuit. Because liability for intentional torts (wrongdoings) is not covered by insurance policies, it must be determined whether or not the tort was intentional. If the defendant intentionally inflicted harm that caused injury, the damages would come from the defendant’s own pocket if he or she were to be found guilty. If the court finds that the defendant’s carelessness or negligence was responsible for the plaintiff’s injuries, the defendant’s insurance policy would be more likely to cover the damages. The deeper the pockets, the higher the likelihood of payment.
HINT: Many insurance companies specifically exclude intentional torts from their liability insurance policies because the possibility of being indemnified (compensated) for paying for damages is close to zero.
Personal Injury Information Center
Personal Injury Practice Areas
- Auto Accidents
- Truck Accidents
- Motorcycle Accidents
- Bicycle & Pedestrian Accidents
- Unsafe Property Accidents
- Dog Bite Injuries
- Injuries Resulting from Inadequate Security
- Work Site Accidents
- Nursing Home Abuse
- Medical Malpractice
- Injuries Caused by Defective Products
- Fatal Accidents
- Serious & Catastrophic Injuries
- Brain Injuries
- Neck & Back Injuries