Personal Injury Law Handbook
What is a Personal Injury case and what to do if it occurs
Ankin Law Office LLC
Chicago, Illinois 60654
Howard Ankin is a Personal Injury lawyer who prides himself in representing his clients as their friend and attorney, providing quality referrals for legal matters outside of his practice areas. His investment in the Ankin Law Office LLC is evidenced every day as families throughout the Chicago area and Illinois return to the firm for legal guidance at all stages of their lives.
When Does a Personal Injury Case Arise?
A personal injury case may arise when a person sustains an injury in such a manner that another person or entity may be legally responsible for it.
Personal injury cases may be formalized by filing a civil lawsuit against the responsible party. In other cases, it consists of a claim that is filed with an insurance company or is settled before a lawsuit is filed in exchange for the accident victim agreeing not to pursue the case in court. Settlement may also occur at any point in the process before a verdict is reached.
What Are the Legal Theories Involved in Personal Injury Cases?
The most common legal theory regarding a personal injury case is negligence. This legal theory is based on the idea that a person acted in an unreasonable manner which resulted in the victim suffering harm. However, some personal injury cases are based on the intentional actions of another person or entity, such as assault and battery.
Another legal theory that may be involved in personal injury cases is strict liability. This type of legal theory is only involved with certain types of cases, such as dog bites or product liability cases. It does not require the victim to show that the defendant acted in a careless manner.
What Are the Legal Elements of a Negligence Claim?
A negligence claim is based on the four following legal elements. In order to win a personal injury case, a victim must be able to show all four of the following by at least a preponderance of the evidence, meaning that the facts are more likely than not the ones that the plaintiff presents.
The first element of a personal injury case is a duty. Some people have a duty toward specific other individuals based on a special relationship between them, such as parent and child, employer and employee or business owner and customer. Additionally, individuals may have certain duties imposed on them by law, such as the duty to act as a reasonably prudent driver when operating a motor vehicle. People generally owe each other the duty not to cause injury to others and are expected to take reasonable care to avoid causing injury to others. Generally speaking, negligence claims are framed in the question of “What is the duty of care that the defendant had to the plaintiff?”
Once duty is established, the person bringing the claim, the plaintiff, must show how the defendant breached this duty of care. In motor vehicle cases, this breach may occur because the defendant chose to violate traffic laws or was drinking and driving.
The plaintiff then has the burden of proof of establishing that the defendant’s actions actually caused the defendant to suffer the harm that he or she suffered. In legal terms, this if often phrased as “the plaintiff would not have suffered harm but not for the defendant’s actions.”
The final element of a negligence claim is damages. It is not enough for a person to be involved in an accident in order for legal liability to arise. The plaintiff must have suffered some injury. For example, he or she may have a physical injury or property damage.
The damages that a person is able to receive through a personal injury law suit vary based on the circumstances of the case. However, they generally include:
·Past medical expenses
·Future medical expenses
·Compensation for lost earning capacity
·Pain and suffering
Other damages may be available that are specific to the case. Punitive damages are sometimes awarded when the defendant’s actions are particularly egregious. A wrongful death lawsuit may compensate the surviving family members for the economic and emotional losses caused by the early death of the loved one.
What Is Strict Liability?
Strict liability is a legal theory that requires that certain members of society be held up to a higher standard. If someone who is subject to strict liability is responsible for causing injury to another person, the plaintiff does not have to show that this party was negligent or otherwise careless.
What Are the Most Common Types of Personal Injury Cases?
One of the most common personal injury cases involves individuals who are injured in motor vehicle accidents. However, some of the other common types of personal injury cases include the following:
Premises liability refers to the legal concept that a landowner owes a certain duty of care to individuals on his or her land. This case may pertain to customers who slip and fall in businesses or to guests who are injured while on private property. States have different laws pertaining to this standard of care. Some states base the standard of care owed to the plaintiff in relationship to his or her relationship to the defendant, such as the following:
An invitee is someone who is on the property usually for the pecuniary gain of the landowner. In these situations, the landowner usually owes invitees the highest standard of care which consists of warning the invitee of any known dangers and inspecting the property to uncover and repair any unknown dangers.
A licensee is someone who has permission to be on the land. The landowner must usually warn this individual of any known dangers that are not apparent.
The landowner generally owes no duty to a trespasser. However, he or she cannot lay traps for trespassers. Additionally, trespassers may be entitled to a higher standard of care if their presence is known or if the trespasser is a child.
A specialized type of negligence claim that concerns defendants in the healthcare industry is medical malpractice. While this is still a personal injury case, it usually requires showing that the doctor or other healthcare professional deviated from the accepted standard of care. This usually requires that a medical expert testify as to how a doctor in a similar location in the same specialization would have acted under similar circumstances.
Workplace injuries represent another significant aspect of personal injury cases. However, they often intersect with workers’ compensation laws. If an employee is injured in a manner and consistent with the rules related to workers’ compensation, he or she may only be entitled to those damages included in the worker’s compensation statute, which usually preclude punitive damages. Worker’s compensation rules may not apply if the employee was injured due to the intentional acts of another, if he or she was considered an independent contractor or injured by someone other than his
employer, or if the employer did not have workers’ compensation insurance.
Another common type of personal injury case is based on defective products. This type of case may be argued under a strict liability or a negligence legal theory depending on the circumstances of the case. However, product liability cases are often based on some type of defect. A design defect occurs when the product was designed in such a way that it causes unnecessary injury. A manufacturing defect is one in which one or a sample of the products that were manufactured did not conform to the design and caused injury. A warning defect can arise when a product did not have warnings that properly advised customers of the risks associated with the product.
Who Is to Blame for the Accident?
Before determining how to proceed with a case, there must be at least one person or entity that is legally responsible for the damages that you suffered. Some possible defendants include:
·The person who caused the accident
·That person’s employer
·Owner of item involved in accident
What Happens if Multiple Parties Are at Fault?
In some situations, more than one party may be to blame for an accident. Two or more drivers may cause your injuries. A governmental entity may have contributed to the accident, along with the actions of another party. In most states, you can pursue compensation from just one of these parties if you so choose. If a judgment or settlement is imposed against one of the parties, this party can decide to pursue the other responsible parties for their respective share. Your personal injury lawyer may make recommendations regarding which party or parties you should actively pursue.
What if I Was Partially at Fault?
Even if you were partially at fault for an accident, you may still be entitled to some recovery. The answer to this question depends on whether the state where the lawsuit is filed uses a contributory negligence, comparative negligence or modified comparative negligence scheme. In a pure contributory negligence claim, you are barred from receiving any compensation if you were at all responsible for the accident. In a comparative negligence state, your award is adjusted to make up for your own negligence. In a modified comparative negligence state, you are only permitted to recover if you
were less than 50 percent at fault for the accident.
In many cases, the proportion of the accident that you were responsible for will be deducted from your award. For example, if your damages are $10,000 and you were 10 percent responsible for your injury, your award would be reduced to $9,000. Talk to a personal injury lawyer in your state to determine how your actions may affect the value of your claim.
How Do I Know if My Case is Worth the Fight?
Personal injury cases are often complicated and may take years to resolve if they go all the way through trial. However, many of them can be settled earlier in the process. To determine whether your case has merit and is worth the fight, talk to a personal injury lawyer in your area. He or she can advise you as to your legal options, the probability of success and possibly the value of your claim. Each claim is evaluated on a case-by-case basis. A solid assessment requires a deeper understanding of the legal issues involved in the case and relevant court rulings.
What Should I Do if I Suffer a Personal Injury?
If you were injured in an accident caused by another person or entity’s negligence, begin documenting your injuries. Receive all necessary medical treatment to substantiate your injuries and the link between them and the accident. Keep track of all important records, including statements and reports regarding the accident, medical records, medical expenses and employment records that show the time you missed from work. Talk to a personal injury lawyer early in the process to protect your legal rights and to avoid doing anything that can adversely affect your claim.
How Do I Start a Personal Injury Case in Court?
Talk to your personal injury lawyer about how you should proceed with your case. He or she can inform you of the statute of limitations that is applicable to your case. This is the timeline in which you must file a lawsuit in court or face a bar in bringing forth your case. He or she may file a civil complaint on your behalf that alleges that the defendant acted in a careless manner that caused your harm. Every state has different statutes of limitations, and not all claims are the same.
For example, a medical malpractice case may have a different statute of limitations than a motor vehicle accident case. Some states have longer statutes of limitations such as six years while others have only one year. Additionally, lawsuits filed against governmental entities may have a shorter statute of limitations than a lawsuit filed against a private citizen or business.