Personal injury law covers situations in which a person’s body, mind, or emotions are hurt, usually due to someone else’s negligence or carelessness. It includes wrongful death, or situations where an injury proves fatal. Another term for personal injury law is tort law.
A personal injury lawyer, also known as a plaintiff lawyer or trial lawyer, is a type of civil litigator who provides legal representation to plaintiffs alleging a physical or psychological injury as a result of the negligent or careless acts of another person, entity or organization.
Usually, a personal injury case begins when the injured person, known as the plaintiff, sues a person or business, known as the defendant.A personal injury lawsuit claims that the defendant caused the plaintiff’s injury and demands compensation, usually in the form of a money payment known as damages.
Although personal injury law covers any kind of case where a person is injured, some kinds of personal injury cases are more common than others. Common personal injury cases include:
- Car accidents, including accidents with large trucks, motorcycles, or pedestrians
- Consumer product liability cases, including defective products, medications, and recalled products
- Injuries caused by animals, like dog bites
- Injuries from ultrahazardous activities, like the use of explosives or chemicals
- Slip and fall injuries and other premises liability cases
- Injuries to reputation caused by defamation or injuries to mental and emotional health caused by intentional infliction of emotional distress or caused by a physical injury
Personal injury law focuses on the injuries caused to individual people. Although property damage may be involved, such as when a car accident damages a car as well as injuring its driver, personal injury law addresses the injured people first and the damaged property second.
Most personal injury cases involve negligence. Negligence occurs when the defendant fails to meet her legal duty of care and the plaintiff is injured as a result. To win a personal injury case involving negligence, the plaintiff must prove the following things in court:
- The defendant(s) had a duty of care toward the plaintiff;
- The defendant(s) breached that duty, or failed to live up to it;
- The defendant(s) breach caused the plaintiff’s injuries; and
- The plaintiff has suffered damages as a result.
Usually, a defendant is required to use the same amount of care that a reasonable person would use in the same situation. In medical malpractice cases and other cases involving professionals, the defendant is held to the same duty of care as a reasonable member of his or her profession. Finally, statutory negligence occurs when a defendant fails to meet the standard of care required by state or national law.
In some cases, strict liability applies instead of negligence. Strict liability holds that a defendant who harms a plaintiff is responsible, no matter how careful the defendant was. Strict liability is limited to certain types of cases, such as consumer product liability claims or cases involving ultrahazardous activities like using explosives or keeping wild animals.
Once a plaintiff proves that a defendant has been negligent, the jury (or judge if there is no jury) must calculate the amount of money that would compensate the plaintiff. Compensation includes both things with specific dollar amounts, like medical bills and lost wages, and things that are harder to pin down, like pain and suffering. Under rules like comparative negligence and contributory negligence, the plaintiff might receive reduced damages or no damages at all if he was partly responsible for his own injury.
When a defendant is sued under personal injury law, she may raise a number of affirmative defensesto protect herself from liability. Affirmative defenses are arguments that state either that the defendant is not responsible for the plaintiff’s injury or that, even if the defendant is responsible, she should not have to pay for some other reason.
Comparative and contributory negligence are affirmative defenses that argue the plaintiff is partly responsible for his own injury. So are assumed risk and incurred risk, which argue that the plaintiff knew he might be injured in this way when he decided to do something. In some states, the statute of limitations on personal injury cases only gives plaintiffs a few months or years in which to sue after they discover an injury. If the plaintiff waits too long, his case may be dismissed.
Most personal injury cases do not go to trial. Instead, they are resolved in mediation or arbitration, where the plaintiff and defendant work out the issue and decide on a settlement, or an amount the defendant will pay to help compensate the plaintiff. Those personal injury cases that do go to trial may be heard by a jury or by the judge sitting alone. The jury or judge listens to both sides of the case and decides whether and how much each party is liable. The jury or judge also calculates the damages, or the amount of money a plaintiff should receive from each defendant for his injury.