A personal injury case, or a personal injury claim, is a valid legal demand for compensation from a person who is legally responsible for another person’s bodily injury. Typically, the defendant is someone who injured you through their own misconduct (a drunk driver, for example).
What are the Elements of a Typical Personal Injury Claim?
The typical personal injury claim includes four elements:
- Duty of care. This could mean a duty of ordinary care, such as the duty to drive safely. Alternatively, it could mean a professional duty of care, such as the duty of care of someone driving a commercial truck.
- Breach of duty. This simply means that the defendant failed to meet their duty of care. Duty of care plus breach of duty equals negligence.
- Damages. For a personal injury claim, you must show that you suffered some sort of bodily injury. Once you do this, you can claim compensation for resulting emotional distress as well.
- Causation. You must show that the accident caused your injuries. You must show that the accident would not have happened but for the defendant’s misconduct, and you must show that the accident was a reasonably foreseeable consequence of that misconduct.
The elements of certain types of personal injury claims, such as product liability claims, differ from the above-described elements.
What Types of Misconduct Can Generate a Personal Injury Claim?
Several types of misconduct can generate a personal injury claim, including:
- Negligence (as described above).
- Gross negligence An extreme form of negligence that might justify punitive damages.
- Intentional misconduct such as an assault or a road rage incident.,
Some defendants are held liable on a strict liability theory, meaning that you don’t have to prove misconduct to win a lawsuit against them. Defective product liability is one example.
How Long Do I Have to File a Personal Injury Lawsuit?
It varies from state to state. In Florida, you usually have four years from the date of the accident.
If the victim dies in the accident, the personal representative of the victim’s probate estate usually has two years from the date of death to bring a lawsuit.
What are the Main Defenses Against a Personal Injury Claim?
The defendant might assert the following defenses against a personal injury claim:
- The statute of limitations has already expired.
- The accident was your fault. Even if the defendant can show that the accident was only partly your fault, they can reduce the amount of damages they must pay.
- Assumption of the risk. The activity that injured you was obviously dangerous (boxing, for example), and you assumed responsibility for the risk when you agreed to participate. This defense would not apply to a motorcycle accident. For example,
- Failure to mitigate damages. You didn’t do all you could to ensure your own safety, and thus you were partly responsible for your own injuries (you were not wearing a seatbelt, for example),
- You signed a waiver of liability before you engaged in the activity. Even a liability waiver will not protect the defendant against liability for gross negligence or intentional misconduct.
- Pre-existing injury. If you already had back problems before an accident (for example), you might have trouble collecting compensation for these because the defendant will say that the accident didn’t cause them.
There are many other possible defenses against a personal injury claim, depending on the circumstances.
What Types of Compensation are Available?
Two main types of compensation are available economic damages and non-economic damages:
Economic damages include losses such as:
- Medical expenses;
- Lost income;
- Incidental expenses such as child care and housekeeping expenses that you can no longer perform because of your injuries.
You can also claim any other out-of-pocket expenses you might incur as a consequence of your injuries.
Non-economic damages include compensation for intangible losses such as:
- Physical pain and suffering;
- Emotional distress (provided there was physical injury)l
- Loss of sexual relations and emotional intimacy;
- Loss of enjoyment of life;
- Physical disfigurement;
- Mental anguish; and
- Damage to your reputation.
You might qualify for some or all of these damages.
Courts award punitive damages in rare cases when the defendant’s conduct was so outrageous that it shocks the conscience. The primary purpose of punitive damage is to punish the defendant and to deter similar behavior, rather than to compensate the victim. Nevertheless, punitive damages go to the victim, not to the court. Courts award punitive damage in addition to compensatory damages.
What are Some of the Practical Limits of the Value of a Personal Injury Claim?
The following factors can place practical limitations on your ability to recover full compensation:
- Comparative fault can reduce the amount of your competition if you were partly responsible for your own injuries.
- Insurance coverage limits can reduce the amount you can actually recover.
- Florida’s no-fault auto accident insurance system can severely reduce the amount of compensation available to you in a car accident.
Many other factors can come into play as well.
How Do I Pay My Lawyer?
Almost every personal injury lawyer uses the contingency fee system. Under this system, the lawyer takes a pre-agreed percentage of your total compensation from a verdict or settlement. Since any percentage of zero is still zero, you pay nothing in legal fees unless your lawyer wins at least some compensation for you.
Do I Even Need a Lawyer?
If your claim is small (a few hundred dollars, for example), you might not need a lawyer. Even then, you should schedule a free consultation with a personal injury lawyer. After all, your claim might be worth a lot more than you think it is.