Negligence, torts, and personal injury are often referred to in connection with various types of accidents – such as car accidents, slip and fall accidents, and trucking accidents – but few people understand just what these words mean and how they impact an injured person’s ability to obtain financial recovery. This article answers some of the most commonly asked questions about negligence, torts, and personal injury.
What is a Tort?
Tort is the legal term used to refer to a wide range of civil wrongs that allow an injured party to pursue legal action against the wrongdoer. Tort laws vary from state to state, but they generally fall into one of the following three categories: (1) negligence; (2) intentional torts; and (3) strict liability torts. Negligence is the most common type of tort and is the legal standard most typically involved in a personal injury lawsuit. Negligence basically applies to those actions that are deemed to be unreasonably unsafe. Intentional torts include those civil wrongs that are committed intentionally, such as defamation, assault, battery, and other misconduct that the defendant knew or should have known would cause harm. Under strict liability standards, a defendant can be held liable for injuries regardless of whether the defendant was aware of the risks associated with his or her conduct. Strict liability most often comes into play in product liability cases and certain dog bite laws.
Should I File a Personal Injury Lawsuit?
Many times when negligence causes an injury, the negligent party’s insurance company will make a settlement offer to the injured party. There are several things to consider, however, in deciding whether to accept the insurance settlement or file a personal injury lawsuit. First, insurance settlements are subject to policy limits, which means that the settlement offer may not adequately compensate you for your injuries. Additionally, insurance companies are in the business of generating profits so they often try to settle claims quickly and for as little money as possible. And, because insurance settlements can only compensate the injured party for medical expenses and lost wages already incurred, they often do not include compensation for future medical expenses or lost wages that might be incurred because of the accident. A personal injury lawsuit, on the other hand, allows a judge or jury to award compensation for all damages – including current and future medical bills, lost wages, pain and suffering, and emotional distress – without being subject to insurance policy limits. Moreover, a personal injury lawsuit will allow an injured party to pursue multiple causes of action against multiple defendants, whereas an insurance settlement will just deal with one negligent party.
How is Negligence Proven in a Personal Injury Lawsuit?
In order to obtain financial recovery in a personal injury lawsuit, an injured party must prove both liability and damages. In order to prove liability, the plaintiff must show the following:
- The defendant owed the plaintiff a duty of care;
- The defendant breached his or her duty of care;
- The plaintiff suffered injuries; and
- The breach of the defendant’s duty of care was the proximate cause of the plaintiff’s injuries.
The applicable standard of care varies, and depends on the circumstances of the accident and the relationship between the parties. For instance, the standard of care that a doctor owes a patient is very different than the standard of care for a non-physician. In some situations, such as car accidents, the standard of care will be related to applicable laws and regulations; in other cases, the standard of care will depend on the facts of the specific case. The standard of care is often evaluated by considering what a “reasonable person” in the defendant’s position would have done, with reasonableness considered in light of what the defendant actually knew, experienced, or perceived.
What Damages Can Be Awarded in a Personal Injury Lawsuit?
If a plaintiff proves liability in a personal injury lawsuit, he or she will then need to prove the amount of money damages to which he or she is entitled. Personal injury damages may include compensation for the following:
- Past and future medical expenses
- Lost wages
- Loss of future income
- Household services
- Pain and suffering
- Loss of enjoyment of life
- Permanent disability
- Property damages
Additionally, some particularly egregious claims allow a plaintiff to recover punitive damages. Unlike compensatory damages, punitive damages are intended to punish the defendant and deter future wrongdoing. The calculation of damages for things like medical expenses, lost wages, and property damages is often fairly straightforward. Conversely, the calculation of noneconomic damages (also known as special damages) – such as emotional distress and pain and suffering – can be a bit more challenging. Because special damages and emotional injuries are more subjective, they can be more difficult to prove and quantify. Moreover, many personal injury victims do not immediately seek medical attention for emotional injuries, which can make it more challenging to provide adequate medical information to support the claim. While there is no set forth a formula for determining pain and suffering, some states (though not Illinois) impose a cap on the total amount of pain and suffering damages.
What Happens in a Personal Injury Lawsuit?
A personal injury lawsuit begins with the plaintiff filing a Complaint in the appropriate court of law. The defendant will also be served with the Complaint. Thereafter, the defendant will have an opportunity to file an Answer to the Complaint and to offer various defenses, such as:
- Comparative Negligence: Many jurisdictions, including Illinois, limit the amount that a plaintiff may recover based on the extent to which he or she was partially responsible for causing the accident.
- Assumption of Risk: In some cases, a defendant may be able to avoid liability if the plaintiff created an inherently dangerous situation or assumed certain risk.
- Product Misuse: In Illinois, a defendant may not be liable for an accident that occurred as a result of an unforeseeable misuse of a product.
Thereafter, a formal discovery schedule will be created. The discovery process includes interrogatories, the production of requested documents, and depositions of the parties and their witnesses. Depending on the complexity of the case, the discovery process can take several months to complete. Once discovery is complete, the case will be set for trial. Throughout the process, settlement negotiations may take place. If there is no settlement, the case will proceed to trial. At trial, the court will determine issues of liability and, if the defendant is deemed liable, the amount of damages will be determined, which may include lost wages, medical expenses, pain and suffering, property damage, and emotional distress. It is important to remember that the wheels of justice turn slowly at times and that there are a number of steps that go into a personal injury lawsuit; each one must be done accurately in order to adequately protect your rights.
What Should I Do After a Personal Injury Accident?
If you are injured in a personal injury accident, you should first get the appropriate and necessary medical care. Make sure to retain all receipts and medical records regarding diagnosis and treatment since this information will be used to support your damage claim in a personal injury lawsuit. You should also consult with personal injury lawyer as soon as possible. Because there are strict time limitations on when a personal injury lawsuit can be filed, you will lose your right to seek compensation in a court of law if you do not act in a timely manner. The applicable statute of limitations varies depending on the jurisdiction, the defendant, and the cause of action. In Illinois, a personal injury lawsuit must be filed within two years of the date of the accident or, in the case of medical malpractice, two years from the date that the patient became aware of, or should have become aware of, the medical error. If a personal injury accident or medical error results in death, however, the wrongful death lawsuit must be filed within two years of the date of the decedent’s death. The Chicago personal injury lawyers at Steinberg, Goodman & Kalish focus on representing accident and injury victims, including those who were injured as a result of negligence. We can help you find the appropriate medical attention, conduct a factual investigation of the accident, file the necessary legal documents, and advocate on your behalf to get you a full and fair personal injury damage award. Contact our office at (312) 445-9084 to schedule a free consultation with one of our Chicago personal injury lawyers. Steinberg Goodman & Kalish (www.sgklawyers.com) is dedicated to protecting victims and their families. We handle medical malpractice, product liability, personal injury, wrongful death, auto accidents, professional negligence, birth trauma, and railroad law matters. Contact us at (888) 325-7299 or (312) 445-9084.