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THE BASIC IDEA BEHIND THE LAW: Most people go about their everyday lives not giving a second thought to “lawsuits” or what to do if you are injured by someone else. It’s just not something we need to think about in our daily living. So, we see lawyer slogans on the billboards and on TV, but other than some catchy graphics, this kind of advertising simply does not “hit home” to the common person. No, it’s not until you are injured because someone else “messed up” that most people start to pay attention to our legal system (often for the first time) to help them out of a bind that was not their making. Further, when you are injured usually there is an very experienced insurance adjuster on the other side whose main purpose is to settle your claim for the least amount possible.
As American citizens, we all share a sense of “fairness” that if you hurt someone because you were not paying attention or doing the right thing, then you need to take responsibility for your actions (or lack of action). As part of taking responsibility, the goal of the person who caused injury by their “mess up” should be to do all they can to make the injured party “whole” again, as least as much as possible. Since we cannot travel back in time and stop the event which caused injury, the only thing really available to us is the payment of money to help ease the various burdens placed on the injured party.
So, the basic idea behind personal injury law, also known as “tort” law, is to protect you if you or your property is injured or harmed because of someone else’s act or failure to act. Most tort actions are based on one of three “paths” (or theories) which are (1) negligence, (2) strict liability or (3) intentional misconduct. Under all these “paths” to legal recovery, a successful result will be that the person who caused the injury or harm properly compensates the one who suffered the loss.
The most common types of personal injury “claims” are car wrecks, slip and fall, tripping, assault, dog attack, and product defect. The term personal injury also involves medical and dental mistakes and conditions that are often classified as industrial disease cases, such as asbestosis, mesothelioma, chest diseases (e.g., emphysema, pneumoconiosis, asthma, obstructive pulmonary disease, etc.). Personal injury cases may also include toxic torts such as poisoning placed in the water stream made famous by the Erin Brockovich movie.
SO WHAT IS “NEGLIGENCE?” In simple terms, negligence is the failure to take proper care in doing something and, as a result, you hurt someone else. In a legal case, four things must be proven to hold someone responsible for their “negligence” (which is explained using non-legal terms) as follows:
- The law recognizes that the person who caused the injury had an obligation (called “duty”) to act in a reasonable way given the “circumstances” of the case;
- The person failed to act reasonably (called “breach of duty”);
- The person’s failure to act reasonably caused another person to be hurt and/or their property damaged;
- The person hurt suffered monetary loss (called “damages”).
SO WHAT ARE “DAMAGES?” Damages are simply items for which you can recover money in a personal injury case. In the legal world, damages are labeled as either special or general. Special damages are readily computable costs which can be itemized, like medical expenses, lost wages, and property damages. On the other hand, general damages include things which are less definite and less capable of “itemization” such as “pain and suffering,” loss of the help and support of your spouse (called “loss of consortium”) and emotional pain. Personal injury cases can, and often do, result in both special and general damages. The amount one can recover for a personal injury often depends on the severity of the injury. Serious injuries (such as loss of an arm/leg, broken bones, brain injury) that cause intense physical pain and suffering will naturally receive the highest type of recovery (be it from a jury verdict or case settlement).
PERSONAL INJURY CASE EXAMPLE: Automobile wrecks are the most common example of a personal injury case and provide a good example of how the “tort system” works. In the State of Georgia, you may have a negligence claim if you are injured by a driver who failed to exercise reasonable care because drivers in the State of Georgia have a “duty” to exercise reasonable care anytime they are driving on a public road. When a driver in the State of Georgia fails to exercise reasonable care and that failure injures another, our personal injury law says that one should be able to recoup your losses. As you can imagine, however, negligence reaches far beyond claims stemming from car accidents and can take on all sorts of “shapes and sizes.”
SO WHAT IS “STRICT LIABILITY?” An important and growing area of personal injury or tort law is “strict liability.” The concept of strict liability is basically the law holds designers and manufacturers “strictly” responsible or liable for injuries which come from defective products. In these types of cases, the injured person does not prove any “negligence” by the manufacturer. Instead, the injured party need only demonstrate that the product was designed or manufactured in a manner that made it unreasonably dangerous when used as intended.
SO WHAT IS AN “INTENTIONAL TORT?” Finally, although seen much less frequently, claims for “intentional” acts which injure may be the basis for a tort claim. For example, if someone slaps you across the face (even as a practical joke), you may be able to recover a personal injury claim for “battery” (which is basically defined as an unwanted physical touching of the body). If, as another example, you are wrongly accused of shoplifting and detained against your will in a back room of a store, then you may very well have a case for “false imprisonment.” It should be noted that perpetrators of some of the intentional torts (such as “assault and battery”) can be held criminally liable for their actions as well as liable in a tort case (which is a civil proceeding that is totally separate from any criminal charges brought by the government).
SUMMARY: Regardless of the “path” taken, every “tort” claim (whether intentional, negligence, or strict liability) has two basic issues which is liability and damages. In turn, the critical questions are as follows: (1) was the person who caused the injury liable for the damages you sustained, and, if so, (2) what is the nature and extent of your damages? If you can prove liability and damages, our system of justice will award you compensation for your loss.
SO DO I HAVE A PERSONAL INJURY CASE? When assessing whether you have a case, you should ask some very basic and practical questions. First (and probably foremost), you must have suffered an injury to your person or property. Second, was your injury the result of someone else’s fault? However, it should be noted that it is not always necessary to have a physical injury to bring a personal injury lawsuit. A personal injury claim may be based on a variety of nonphysical losses and harms. For example, in the case of “assault,” you do not need to show that the person who hit you caused you actual physical harm. In fact, all that is necessary is that their actions caused a reasonable expectation that some harm would come to you. If someone has attacked your reputation, invaded your privacy or negligently or intentionally inflicted emotional distress upon you, then once again a physical harm is not necessary.
WE CAN HELP
Because personal injury cases follow a complex body of rules and often involve complicated medical questions and a fight against an experienced insurance adjuster, it is often essential to get advice or representation from a personal injury attorney. The attorneys at Jackel & Phillips are experienced and trained (with proven results) to handle personal injury cases and will be happy to provide a free consultation to help guide you through the complicated process of assessing your potential claim.