Personal injury law, also known as tort law, is designed to protect you if you or your property is injured or harmed because of someone else’s act or failure to act. Every tort claim, regardless of its basis, whether intentional, negligence, or strict liability, has two basic issues — liability and damages. Was the defendant liable for the damages you sustained, and, if so, 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.
Q. How do I know if I have a personal injury case?
A. First and foremost you must have suffered an injury to your person or property. Second, was your injury the result of someone else’s fault? It is not always necessary to have a physical injury to bring a personal injury lawsuit, however. Suits may be based on a variety of nonphysical losses and harms. In the intentional tort of assault, for example, you do not need to show that a person’s action caused you actual physical harm but only that it caused an expectation that some harm would come to you.
Q. What does it mean to settle a case?
A. Settling a case means that you agree to accept money in return for dropping your action against the person who injured you. You’ll actually sign a release absolving the other side of any further liability. To help you decide whether to accept the settlement offer, your lawyer will be able to provide a realistic assessment of whether a lawsuit based on your claim will be successful. (Settlement also can take place at any point in a lawsuit once it is filed, including before trial or even after a case has been tried but before a jury reaches a verdict.) The decision to accept a settlement offer is yours, not the lawyer’s.
Q. What happens if I file a lawsuit?
A. You become the plaintiff in the case and the person who injured you becomes the defendant. Lawyers for each side (and for the insurer) typically begin gathering facts through exchange of documents, written questions (interrogatories) or depositions (questions that are asked in person and answered under oath). This process is called discovery. After discovery, many cases get settled before trial. Only a small percentage of personal injury actions ever go to trial. Of the cases that do go to trial, most plaintiffs ask for a jury to hear their case, but personal injury actions can be decided by judges as well.
Q. What if a person dies before bringing a personal injury lawsuit?
A. It depends on whether a person dies as a result of the injuries or from unrelated causes. If a person injured in an accident subsequently dies because of those injuries, that person’s heirs may recover money through a lawsuit. Every state has some law permitting an action when someone causes the wrongful death of another. And if a person with a claim dies from unrelated causes, the tort claim survives in most cases and may be brought by the executor or personal representative of the deceased person’s estate.
Q. If someone causes an accident and I am hurt, on what basis will that person be responsible (liable)?
A. A person is liable if he or she was negligent in causing the accident. Persons who act negligently never set out (intend) to cause a result like an injury to another person. Rather, their liability stems from careless or thoughtless conduct or a failure to act when a reasonable person would have acted. Conduct becomes “negligent” when it falls below a legally recognized standard of taking reasonable care under the circumstances to protect others from harm.
Q. Who determines whether a defendant has acted reasonably?
A. After being presented evidence by your lawyer, a judge or jury will decide what an “ordinary” or “reasonable person” would have done in similar circumstances. In the example of an automobile accident, a judge or jury is likely to find a driver negligent if his or her conduct departed from what an ordinary reasonable person would have done in similar circumstances. An example would be failing to stop at a stoplight or stop sign.
Q. A neighbor who rides with me to work was injured when I got into a car accident. Do I have to pay her medical bills?
A. In many states today, no-fault automobile insurance would protect you—and often passengers in your car–by compensating those injured up to a specified level, regardless of who was at fault in the accident. About half of the states currently have nofault insurance. Though there is a strong trend away from them, some states still have
automobile “guest statutes” that make drivers liable for injuries to nonpaying-or guest–passengers only if the drivers were “grossly negligent” by failing to use even slight care in their driving. In a guest statute state, if your neighbor can prove she was not a guest passenger–that both of you agreed to share expenses–then she possibly could recover from you under ordinary negligence principles. Cases have also held a driver liable for the negligent operation of a car and for harm caused by known defects, but not for injuries caused by defects in the vehicle about which the driver had no knowledge.
Q. I received an injury when the bus I ride to work was involved in an accident. Is the bus company at fault?
A. It’s likely. “Common carriers”–bus lines, airlines and railroads—transport people for a fee, owe their passengers “the highest degree of care” and are held to have a special responsibility to their passengers. Common carriers must exercise extra caution in protecting their riders and do everything they can to keep them safe. Whether you win your case will depend on the circumstances of the accident. Did the driver pull out in front
of a car and have to slam on the brakes? What were the road conditions? A jury will have to consider those factual circumstances to determine if your driver acted negligently. But as an employee of a common carrier, the driver must provide you with a high degree of care. (If the bus were hit by another car, the other driver may also be liable for your injuries.)
Q. I was in a car accident during my pregnancy and my baby was born with a deformity as a result of injuries from the accident. Does my child have any legal recourse?
A. Many states today will permit an action by a child for the consequences of such prenatal (before birth) injuries. (In states with no-fault automobile insurance, your right to sue often is limited.) Most courts also will allow a wrongful death action if the baby dies from the injuries after birth.
Q. Someone recently stole my car and then wrecked it, injuring passengers in another vehicle. Now one of those passengers is trying to sue me. Can they win? Am I responsible?
A. Probably not, since the thief did not have your permission to use the car, although a lot would depend on the law in your state. Suppose you left your car unlocked with the keys in it, making it easy for the thief to steal. This could be negligence. Even then, most courts generally will not hold you liable if the thief later injures someone by negligent driving. That is because courts hold that you could not foresee that your actions ultimately would result in such injuries. In a few cases, though, courts have looked at whether your actions caused an unreasonable risk of harm to someone else. If you left your car parked with the engine running, for example, you might be liable if the car thief then injures children playing nearby. In a no-fault state, on the other hand, it might be difficult–if not impossible–for the passenger to sue you.
Q. I was hit by a car driven by a drunk driver who was going home after a night out. What can I do, in addition to suing the drunk driver?
A. If you live in a state that has a Dram Shop Act, you may be able to recover from the tavern owner where the drunk driver was served the liquor. Such acts usually come into play when intoxicated people served by the bar later injure somebody while driving. Some of those laws also make tavern owners liable when drunk customers injure others on or off the premises. But some courts say a tavern owner will not be liable unless the sale of the liquor itself was illegal.
Injuries at Your Home and on Your Property
Q. A door-to-door salesperson tripped on our front steps, injuring himself. May he hold me responsible?
A. Perhaps. A door-to door salesperson may expect that you will warn him about dangerous conditions on your property that may not be obvious. If your steps were in perfect condition and he merely lost his footing, a court would not hold you responsible. However, if he tripped because one of the stairs was wobbly and you knew about it, you should have repaired it or posted a warning sign.
Q. What if a salesperson, or another passerby, falls on an icy sidewalk in front of my house?
A. In some places, ordinances say that landowners whose property is next to a public sidewalk are responsible for keeping the sidewalk in repair and clear of ice and snow. But elsewhere owners have no duty to remove natural accumulations of ice and snow that have collected on adjacent public sidewalks. In fact, they may be liable for negligence if they undertake such a job and do not make the sidewalks safe. If landowners fail to take reasonable action to correct a dangerous condition on the sidewalk, other than a natural accumulation of ice or snow, that they knew or should have known about, however, they can be held liable.
Q. A group of eight-year-old children has been playing in a vacant lot that I own. Could I be liable if one of them gets injured?
A. Yes, the law generally places a greater burden on landowners when injuries involve children. The reason is that children are too young to understand or appreciate danger in certain situations. Under a legal theory known as the attractive nuisance doctrine, owners who knew or should know about potentially dangerous artificial
conditions on their lot must warn children who are playing there, or must take reasonable precautions to protect them. If, for example, there is machinery or other equipment on your vacant lot that could present an unreasonable risk to children, you should remove it. If you don’t, you could very well be liable to the children for any injuries they suffer, even if they were trespassing. In some jurisdictions, the attractive nuisance doctrine is being replaced by a duty of reasonable care under the circumstances.
Injuries on Others’ Property
Q. What if I get injured while at the home of my neighbor, who invited me there for a party?
A. As a social guest, you might be able to recover from your neighbor, depending on how your injuries happened. Homeowners must tell their guests about–or make safe–any dangerous conditions that the guests are unlikely to recognize. Suppose, for example, that your injury was caused when you tripped on a throw rug. You may be able to recover if you can prove that your neighbor knew other people had tripped over it and you were
unlikely to realize its danger. Your neighbor probably should have warned you about it, removed it during the party, or secured it to the floor with tape or tacks.
Q. I was walking on a public sidewalk next to a construction site when I tripped and fell on a brick from the site, spraining my ankle. May I recover damages from the construction company?
A. In some circumstances, you will be able to recover damages from the construction company, which has a duty to take reasonable steps to keep sidewalks near its construction sites free from bricks and other debris. If the company fails to remove such obstructions and you trip and fall, the company may be liable for your injuries.
Construction companies should tell pedestrians that they could get injured if they stray from the sidewalk. But posting a sign is not enough. If a company fails to place barriers or warning lamps by a building pit, for example, it may be responsible if anyone falls into it and gets injured.
Q. I fell on a broken piece of a city sidewalk and injured my ankle. Do I have a case against the city?
A. In many states, municipal immunity statutes prohibit recovery in many kinds of cases against a city or town. If there is not such a statute or ordinance, however, you may have a case. Municipalities have a duty to keep streets and sidewalks in repair. You might have a successful case against the city if you can show that it failed to maintain the sidewalk properly.
Q. My daughter, who plays on the local park’s basketball team, brought home a note asking us to sign a form saying we won’t hold the park district responsible for injuries. What is that?
A. You are talking about a so-called waiver of liability that is intended to contractually release the organization of any liability should an injury occur. Your signature doesn’t necessarily mean that you’ve signed away all of your rights. If you must either sign such a form or deprive your child of the chance to participate in the activity, a
court may hold that your waiver is not really voluntary and thus not valid. And even in those states that recognize waivers, the waiver might not mean that you are giving up your right to sue entirely. If an injury results because of intentional or reckless behavior, you probably will be able to seek damages.
Q. What is medical malpractice?
A. Medical malpractice is negligence committed by a professional health care provider–a doctor, nurse, dentist, technician, hospital or hospital worker-whose performance of duties departs from a standard of practice of those with similar training and experience, resulting in harm to a patient or patients. Most medical malpractice actions are filed against doctors who have failed to use reasonable care to treat you. The profession itself sets the standard for malpractice by its own custom and practice. Historically under the so-called “locality rule,” a doctor was required only to possess and apply the knowledge and use the skill and care that is ordinarily used by reasonably well-qualified physicians in the locality, or similar localities, in which he or she practiced. But today the trend is toward abolishing such a rule in favor of a national standard of practice.
Q. How does a jury determine if a doctor’s actions were within the standards of good medical practice?
A. A jury will consider testimony by experts–usually other doctors, who will testify whether they believe your physician’s actions followed standard medical practice or fell below the accepted standard of care. In deciding whether your heart surgeon was negligent, for example, a jury will be told to rely on expert testimony to determine what a competent heart surgeon would have done under the same or similar circumstances. A
specialist, like a heart surgeon, is held to a higher standard of care–that of a specialist– than would be expected of a non-specialist.
Q. I signed a consent form before my doctor performed surgery. What did it really mean?
A. It is common practice in hospitals for patients to sign a form giving the doctor their consent, or approval, to perform surgery. In the form, the patient usually consents to the specific surgery as well as to any other procedures that might become necessary. Before you sign it, your doctor should give you a full description of the surgery and the risks involved, and the ramifications of not getting such treatment. If you can prove that your physician misrepresented or failed to adequately inform you of the risks and benefits before surgery, your consent may be invalid. The only time the law excuses doctors from providing such information is in emergencies or when it would be harmful to a patient. But even if your doctor should have secured your consent and did not, you still may not automatically recover. You may still have to prove that, if adequately informed, a reasonable person would not have consented to the surgery.
Q. Is there any other basis for liability besides negligence?
A. Courts hold some persons or companies strictly liable for certain activities that harm others, even when they have not acted negligently or with wrongful intent. Persons or companies engaged in blasting, storing dangerous, toxic substances or keeping dangerous animals, for example, can be strictly liable for harm caused to others. The theory behind imposing strict liability on the part of those conducting such activities is that these activities pose an undue risk of harm to members of the community. Thus, anyone who conducts that activity does so at his own risk and is liable when something goes wrong–even innocently–and someone is harmed. The people who posed the risk are in the best position to pay for it. Holding manufacturers liable for injuries their products cause is a good example of strict liability.
Q. Our brand-new power mower backfired and injured me. From whom may I recover damages?
A. This is a typical product liability case. You may be able to prove that the manufacturer of the lawn mower made a defective product. Most courts today hold companies responsible for a defective product strictly liable to consumers and users for injuries caused by the defect. The product may have had a design flaw or a manufacturing defect. Another possibility may be that the producer or assembler failed to provide adequate warning of a risk or hazard or failed to provide adequate directions for a product’s use.
Q. I suffered a severe allergic reaction from some cosmetics I used and needed medical treatment. May I recover from the manufacturer?
A. Perhaps. Did the manufacturer warn you that the cosmetic could cause such areaction? Some courts normally will not hold the manufacturer liable for failing to warnyou of the risk of an adverse reaction unless you can prove that an ingredient in theproduct would give a number of people an adverse reaction. You also must prove that themanufacturer knew or should have known this and that your reaction was because youwere in that group of sensitive people, and not because you are hypersensitive. In addition,courts will determine whether you used the product according to the directions providedwith it. Misuse is a defense recognized in strict liability. If the court does not find strictliability, you still might recover on a negligence claim.
Q. I was injured because of a brake defect in a used car I bought. May I recover from the dealer?
A. At least one used car dealer has been subject to a negligence action for failing to inspect or discover such defects. But courts are split on whether dealers in used goods should be subject to strict liability. Holding them strictly liable appears to be a minority position.
Q. Is a civil lawsuit based on liability for an intentional tort different from a lawsuit based on negligence or strict liability?
A. Not really. You may claim the same types of damages, but you must prove different elements. A person who is found liable for an intentional tort does more than just act carelessly, which might make him or her liable for negligence. The person committing the former tort is said to intend the consequences of his or her action. If you pick up a realistic model of an AK-47 and point it at another person out of the window of your car, you are going to scare that person. Under the law of intentional torts, you may be liable for an assault.
You do not have to intend to harm that person to be liable for an intentional tort, either; you even may be attempting to help that person. In one reported case, for example, a defendant was found liable for an intentional tort when, despite her protests, he proceeded to set the broken arm of a woman who had fallen. Unlike a negligence action, a plaintiff alleging an intentional tort does not need to show actual damages to recover.
Q. I got a black eye in a fistfight with a man whose car accidentally bumped into mine while we sat at a red light. I would love to get even with him. Can I recover if I sue him?
A. Normally you could recover damages in a civil battery case against someone who hits you. But a court might hold that two people who get into a fistfight in effect agree to being hit by one another. If so, a battery case probably would fail. A lot would depend on the facts of the case. Who started the fight? Were you simply trying to defend yourself from his aggression? Were there witnesses? What would their testimony be?