Personal Injury

Elements of a Personal Injury Claim

A personal injury claim can arise when you are injured, either physically or in some cases emotionally, by the negligence or the intentional act of another. Personal injury cases are also referred to as “torts.” Tort law is a branch of civil law. When a person has suffered a personal injury through the negligence of another person or company, they are generally entitled to recover monetary damages for their pain and suffering, medical expenses, lost wages and other economic losses. In certain limited circumstances, the person suffering the injury can also recover punitive damages.

Personal injury law and insurance are very much related. If you are injured, your health insurance and, depending on what insurance you purchased, your automobile insurance, may pay your medical bills. When your injury is caused by the acts of another person or company, their liability insurance can compensate you for your pain and suffering, medical expenses and lost wages. Liability insurance is not limited to automobile insurance coverage. It is also provided through homeowners insurance, business insurance, malpractice insurance and umbrella insurance coverage. Please click here to discuss these issues with our office. Initial consultations are without charge.

In order to prove a personal injury claim, a plaintiff (the injured party) must establish the following in order to recover against the defendant (the at-fault party):

1. Duty. Personal injury claims arise from a duty of care owed to another. For example, all of us owe a duty of reasonable care to others as we drive a motor vehicle. The intended beneficiaries of this duty are all the other drivers, pedestrians or cyclists using the road. Property owners owe a duty to keep their premises safe. Business proprietors owe a duty to sell safe products. Professionals, such as doctors, owe a standard of care set by their profession.

2. Breach. In order to prove your claim, you must show that you were injured by another’s failure to exercise ordinary care to you. In other words, the other person or company must be negligent.

3. Causation. Once it has been established that the other party was negligent, you must show that their breach of care was actually the immediate cause of your harm.

4. Damages. Finally, you must have been injured as a result of this breach of care. Generally, you must have suffered a physical injury, but in certain circumstances, an emotional injury is sufficient to allow a recovery of damages against the responsible party.

The burden of proving the personal injury claim falls on the plaintiff. Injury law provides a means to redress the wrong, but does not guarantee recovery. In order to recover, the plaintiff must prove each and every element of his or her claim. Please click here to discuss these issues with our office. Initial consultations are without charge.

Types of Personal Injury Claims

Your personal injury claim may fall into different categories based upon the type of accident involved.

Motor vehicle accidents. A common area of personal injury involves a car accident with an at-fault driver. Typically, a claim for personal injuries (and property damage as well) arises when two cars collide and one driver is at fault for the accident. Claims are usually made against the at-fault driver’s liability insurance carrier. If the at-fault driver does not have insurance or if the accident is caused by a hit and run driver, then a claim is made against your own uninsured motorist coverage provided you elected that as part of your automobile insurance coverage. Please click here to discuss these issues with our office. Initial consultations are without charge.

Pedestrian/Bicycle accidents. Car accidents also occur between cars and people who are walking or riding a bicycle near or on the roadway. Drivers of cars owe a duty of care to pedestrians and bicycle riders as well. Rules of the road govern the conduct of drivers in these situations and create liability when these rules are violated. Please click here to discuss these issues with our office. Initial consultations are without charge.

Premises Liability. A premises liability case arises when you are injured on another’s property. Accidents that may involve premises liability can include those that happen while shopping at a store that had a wet spot on a slick tile floor; while walking up steps to a business that had a faulty handrail; or even while falling into a covered hole on a friend’s property. The case law in premises liability cases, however, often puts a burden on the plaintiff to watch where he or she is going and not to walk through an open and obvious hazard. In these cases, the specific facts tend to determine the outcome. Please click here to discuss these issues with our office. Initial consultations are without charge.

Work related accidents. When you are injured on the job, you are typically covered by worker’s compensation insurance. Worker’s compensation insurance provides no-fault liability coverage. This means the worker merely has to prove the injury occurred on the job; and does not have to show the employer was negligent. Workers compensation benefits may also be available when a worker is not formally working, but is “on call.” For more on this topic see the Worker’s Compensation practice area. Please click here to discuss these issues with our office. Initial consultations are without charge.

Medical Malpractice. You have a medical malpractice claim when you have been injured by the professional negligence of a doctor or other healthcare provider. To prove a medical malpractice case, you must have expert testimony of another doctor who practices in the same specialty. That expert witness must swear that the defendant doctor breached the standard of professional care common to that practice area. Tort reform legislation enacted in 2005 has greatly increased the burden on plaintiffs in filing these cases, and has reduced the plaintiff’s ability to recover by capping pain and suffering damages. Please click here to discuss these issues with our office. Initial consultations are without charge.

Nursing Home Liability. As senior citizens are living longer, many more are living in nursing home facilities. Nursing home patients have certain rights under the law. Injuries to nursing home patients may arise from poor care or understaffing by nursing homes. In addition, elderly patients in nursing homes are sometimes abused. Of course, such abuse gives the injured person a claim against the nursing home. Please click here to discuss these issues with our office. Initial consultations are without charge.

Product Liability. A defective product manufactured by a company and sold at a local store may injure you. Companies that sell defective products may be liable to you under strict liability. In the case of strict liability, you do not have to show negligent conduct, but simply that the product was defective, and that you were injured as a result of the defect. Please click here to discuss these issues with our office. Initial consultations are without charge.

Animal Attacks. Vicious dogs and other pets will sometimes bite others causing very serious injuries. Where the owner of the dog or pet does not keep the pet on a leash and the county has a leash law requirement, the owner may be liable for your injuries if they occurred as a result of the loose dog or pet. Also, if the owner knows the dog or other animal has a propensity to bite and does nothing to fence in the animal or keep it on a leash, then the owner may be liable for your injuries. Please click here to discuss these issues with our office. Initial consultations are without charge.

Intentional Torts. Intentional torts do not involve negligence, but rather the intentional act of another against you. Also, damages may not involve physical injuries, but may simply damage one’s reputation or cause one distress. Some examples of intentional torts are:

1. libel – publishing false statements about you.
2. slander – making false verbal statements about you.
3. false arrest – causing you to be arrested under a false accusation.
4. false imprisonment – holding you against your will.
5. malicious prosecution – causing you to be prosecuted under false evidence.
6. intentional infliction of emotional distress – where the defendant’s conduct was so outrageous and so extreme in degree as to go beyond all bounds of human decency.

Please click here to discuss these issues with our office. Initial consultations are without charge.

Statute of Limitations

Statute of limitations, or the time period for filing a lawsuit, can be difficult to calculate for a layperson. The time period of filing a lawsuit can vary if the injured person or at-fault party are deceased, fraud is involved, a foreign object is left in your body by a doctor or in certain other limited circumstances. Generally, personal injury claims must be brought within two (2) years of the date that the accident occurred or the claim arose. Again, there are exceptions to this rule. Further, if a government entity caused you harm, you must provide a proper written notice to the government entity in a much shorter period of time. This can be as short as 6 months if a city or city employee were at-fault or within 1 year is a county or the state was at fault. The information in this paragraph is provided as a professional courtesy and does not constitute legal advice since our office does not represent you. If you have an injury claim, it is best to get proper legal counsel about when your statute of limitations will expire. Please feel free to contact Robert Katz by clicking here. Initial consultations are without charge.

Damages

The damages recoverable in a personal injury action include all medical expenses and future medical expenses; pain and suffering and future pain and suffering; lost wages and future lost wages; and in some cases loss of consortium. Damages are paid in a lump sum at the end of the case either through settlement or jury verdict. Once the final amount is determined, you cannot seek additional amounts in the future for the same claim. Please click here to discuss these issues with our office. Initial consultations are without charge.

Medical Expenses. Medical expenses are based on actual medical bills incurred. Future medical expenses are based on testimony regarding the likely cost of long term care. Even if your own health care insurance has paid for your medical bills, you are entitled to be compensated for the full amount as if you had paid them yourself. However, your medical insurer may, under certain circumstances, seek reimbursement from you. Please click here to discuss these issues with our office. Initial consultations are without charge.

Pain and suffering. Pain and suffering is an intangible number meant to compensate you for your actual pain and suffering as a result of the injury. Future pain and suffering takes into account how long your condition will continue and its affect on your daily life. Please click here to discuss these issues with our office. Initial consultations are without charge.

Lost wages. When you are out of work due to an injury, you are entitled to be compensated for your lost wages. Even if you were compensated through sick leave or vacation leave, you are entitled to be compensated for that loss the same as if you were not paid. You are also entitled to be compensated for future lost wages, particularly when you are unable to return to the same type of work or to work at all. Please click here to discuss these issues with our office. Initial consultations are without charge.

Loss of consortium. If you were married at the time of the accident, then your spouse has a claim for his or her loss of consortium. This is an intangible amount based on your spouse’s loss of marital help and affection during this period of injury. Children do not have claim for loss of consortium of a parent’s affection. Please click here to discuss these issues with our office. Initial consultations are without charge.

Punitive Damages. Occasionally, the defendant’s conduct will be so reckless and wanton that the jury is entitled to award damages to punish the defendant for his or her bad conduct. When a drunk driver injures you, then you usually have a claim for punitive damages. The standard for proving punitive damages is clear and convincing evidence. Please click here to discuss these issues with our office. Initial consultations are without charge.

Statutory Caps on Damages. In a medical malpractice action, Tort Reform Legislation in 2005 placed a $350,000 limit on non-economic damages per provider with an aggregate cap of $1.05 million in all medical liability actions. There is a statutory $250,000 limit on punitive damages recovery unless the plaintiff shows the defendant acted with a specific intent to harm or was under the influence of drugs or alcohol. In a punitive damages recovery in a product liability case, seventy-five percent of the award goes to the State of Georgia treasury. Please click here to discuss these issues with our office. Initial consultations are without charge.

Defenses to Personal Injury Claims

Contributory Negligence. The defendant may claim that even though he or she was negligent, the plaintiff’s own negligence is what caused the injury or that the plaintiff could have avoided the defendant’s negligence. If the plaintiff’s negligence was the sole proximate or immediate cause of the injury or the plaintiff could have avoided the defendant’s negligence, the plaintiff cannot recover. Please click here to discuss these issues with our office. Initial consultations are without charge.

Comparative Negligence. If the negligence of the defendant and the plaintiff combined to cause the injury to the plaintiff, then the plaintiff can recover for his injuries, but his recovery is reduced by the percentage that his negligence contributed to the injury. In the event the plaintiff’s negligence was equally or more responsible for the injury, the plaintiff in Georgia cannot recover. For example, if the jury finds that the plaintiff was ten percent negligent for his or her injuries, then the judge will reduce the monetary verdict by ten percent. However, if the jury finds that the Plaintiff was 50% or more responsible for the injury, the plaintiff cannot recover anything from the defendant. Please click here to discuss these issues with our office. Initial consultations are without charge.

Avoidance of the Consequences. A plaintiff cannot recover if he or she had the chance to avoid the consequences of another’s negligence, but failed to do so. For instance, if a plaintiff could have used safety equipment to avoid the consequences of harmful fumes, the plaintiff cannot recover. Please click here to discuss these issues with our office. Initial consultations are without charge. Assumption of the Risk. If you are aware of the danger, can appreciate the danger, but voluntarily expose yourself to the risks of the danger, then you cannot recover. For example, if you decide to engage in hazardous activities and are injured due to the known and recognized hazards of the activity, you cannot recover for your injuries. Please click here to discuss these issues with our office. Initial consultations are without charge.

Sovereign Immunity. In certain circumstances, the government has sovereign immunity or protection against claims of negligence. Cities, counties, states and the federal government may be immune from suit for any negligence caused while carrying out governmental duties. The federal and state government now have Tort Claims Acts that allow suit in certain situations provided certain procedural requirements are met. Cities and counties may be sued for negligence pursuant to similar statutes and usually up to the limits of liability insurance. Please click here to discuss these issues with our office. Initial consultations are without charge.

Product Misuse. The manufacturer of a product may not be strictly liable for injuries resulting from a substantial change or an abnormal use of a product. Please click here to discuss these issues with our office. Initial consultations are without charge.

Statutes of Repose. Lawsuits may be restricted if the wrongful conduct was in the distant past even though the injury it caused occurred recently. Please click here to discuss these issues with our office. Initial consultations are without charge.

Legal Representation is Critical

Because liability insurance carriers provide a legal defense to their insureds, you will need legal representation to pursue a personal injury claim. The law firm of Robert N. Katz will provide you with a free initial consultation to discuss your case. Please click here to contact our office about a free consultation.