“Personal injury law (also known as tort law) allows an injured person to go to civil court and get a legal remedy (damages) for all losses stemming from an accident or other incident. The purpose of the personal injury system is to allow the injured person to be compensated financially or “made whole” after he or she has suffered harm due to someone else’s carelessness or intentional conduct. In this article, we’ll cover the basics of personal injury law.
The Basics of Personal Injury
There are a wide variety of different situations where personal injury rules apply:
Accidents. Personal injury rules apply in situations where someone acts in a negligent manner, and that carelessness causes harm to another person. Examples include car accidents, slip and fall incidents, and medical malpractice, among other types of cases.
Intentional Acts. Personal injury laws apply in situations where a defendant’s intentional conduct causes harm to another person. Examples of this include assault and battery, and other intentional torts.
Defective Products. There are a few situations where a defendant can be found liable for injuries without any negligent or intentional wrongdoing. Examples of this include certain types of product liability claims arising from a defective product.
Defamation. Personal injury laws apply when one person’s defamatory statement causes harm to another person’s reputation.
Who Makes Personal Injury Laws?
Many personal injury laws date back to old “common law rules.” Common law refers to law made by judges, as opposed to laws made by legislatures or passed in bills and statutes.
When a judge hears and decides a case, his decision on that issue of law becomes binding precedent on all other courts in the state that are “lower” than the deciding judge’s court. These other courts then have to apply what the first judge said, and eventually, all of this binding precedent creates a body of “common law.”
Common law can and does differ from state to state, so the rules for personal injury law may not be uniform across the country. Much of the common law has been collected into something called the Restatement of Torts, which is sort of a guidebook that explains what the rules are, and a lot of states draw guidance from this on personal injury matters.
Common law is not the only source of personal injury law. Some legislatures have passed formal legislation or statutory law that touches on personal injury issues. For example, when legislatures passed worker’s compensation laws, they essentially took all cases of work-related injuries outside of the realm of personal injury and made workers’ compensation the exclusive remedy for injured workers (in most cases precluding injury-related lawsuits against employers).
Another state law that comes into play in injury cases is the statute of limitations, which sets a limit on the amount of time you have to file an injury-related lawsuit in your state’s civil court system. (See Time Limits to File a Personal Injury Lawsuit).
How Does a Personal Injury Case Work?
No two accidents are exactly the same, so no two personal injury cases will follow the same path. But there are some standard steps that most personal injury cases share, from a big picture standpoint.
Defendant Does Something to Injure Plaintiff. This can be almost any bad act on the part of the defendant, with the exception of contractual breaches, which are handled under a separate body of law known as “contract law.”
Plaintiff Determines that Defendant Breached a Legal Duty. The specific legal duty is going to depend on the situation in which the injury occurred. For example, drivers have a duty to operate their vehicles with with the level of care that any reasonable person would exhibit while on the road. Doctors have a duty to provide medical care with a level of competence that a reasonably skilled health care professional would use under similar circumstances. Manufacturers and distributors have a duty not to put defective or unreasonably dangerous products on the market.
Settlement Talks Occur. If it is clear to all involved that the defendant breached a legal duty, then the defendant (or the insurance company representing him or her) may wish to settle outside of court. This would involve making an offer of monetary compensation to the injured person, in exchange for the injured person’s binding promise not to file a lawsuit over the injury.
If a plaintiff agrees to a settlement, the case ends. If not, the plaintiff may go to court and file a personal injury lawsuit over the matter. Settlement negotiations can also continue once the lawsuit is filed, and a settlement can be reached at any time prior to the civil case being handed over the jury for a finding as to the defendant’s liability.”
By David Goguen,