Personal Injury
Who is Responsible When a Person
is Injured?
Personal Injury law is essentially broken into two components: Liability
(“fault”) and Damages (“injury”). Liability refers to who
is responsible for causing injury to another and Damages refer to the
degree of injury a person sustains as a proximate result of the
responsible person’s conduct. In a successful Personal Injury suit, both
bodily and economic injury may be recoverable. Bodily injury includes
mental or emotional injury as well as physical harm. Economic injury
includes compensation for lost work and other types of money
damages.
For the most part, you need to prove both Liability and Damages to be
compensated in a Personal Injury suit. Below is a brief overview of these
and other concepts surrounding Personal Injury cases.
Liability
Types
of Fault and Standard of Care
The law
of personal injury recognizes different levels of responsibility or
"types of fault" on the part of the person who causes an injury.
Generally,
the types of fault are negligence, recklessness, intentional harm, and
strict liability. When a person is injured, the type of fault of the
person who caused the injury can effect whether or not the person at fault
will be required to pay damages to the injured person. Depending on the
situation, this type of fault may also determine how much (what percentage
of the damages) the responsible person must pay.
To
determine if an actor is responsible for injuring another, and to what
degree, the law applies different “standards of care” or “duties”
as applied to different situations. For example, a greater standard of
care is usually required of people who take on the duty to care for others
(i.e., child care workers, nurses, lifeguards, etc.) as compared to those
who are simply taking care of themselves.
In
virtually every situation you “owe a duty of care” to others. Duty of
care refers to the way you should or shouldn't act in a given situation.
When conducting an activity, if you do not meet a certain standard of
care, as required by that activity’s situation, you may be found to be
“negligent.” A person may also be found to not to have exercised their
duty of care through their inactions as well. This occurs in situations
such as when an inattentive lifeguard does not help a drowning swimmer.
Generally speaking, a jury decides whether a person has “met the
standard of care” that applies to the particular situation.
Negligence
Negligence means the failure to exercise that degree of care that a person
of ordinary prudence (“a reasonable person”) would exercise under the
same circumstances. Restatement, Second, Torts, section 283. It also
refers to conduct that falls below the standard established by law and
society for the protection of others against an unreasonable risk of harm
(“reasonable care”). It does not include conduct which recklessly
disregards the interest of others or intentional infliction of injury to
another. Reckless and intentional conduct can lead to different types of
fault as mentioned above and as discussed below.
To
avoid being negligent, the standard of conduct to which you must conform
is that of a reasonable person under like circumstances. Negligent conduct
may involve either: 1) an act that the actor as a reasonable person should
recognize involves an unreasonable risk of causing harm to another, or 2)
a failure to do an act necessary for the protection or assistance of
another which the actor is under a duty to perform.
An
otherwise harmless activity may result in negligence depending on the
situation and the duty of care owed to those around you. For example, when
throwing a baseball with a friend in an empty field, you owe a duty of
care to only perhaps not throw the ball too hard or to make sure your
friend is prepared when throwing it to him. In all likelihood, you could
goof around and wildly throw the baseball past your friend or over his
head without consequence. However, if you and your friend were to throw
around the same baseball, in the same field, but there were now a number
of people in your vicinity, the degree of care you would have to exercise
would heighten due to the duty of care you would now owe the people who
might otherwise be injured by a wild throw or missed ball.
In
the above example your duty of care is heightened because there is now a
“foreseeable” risk that a person, in the vicinity of your activity,
may be injured by your baseball. A foreseeable risk is simply a risk whose
consequences a person of ordinary prudence would reasonably expect might
occur. Here, there are at least three foreseeable things at play. These
include: 1) it is foreseeable that a wild ball may be thrown or that
someone may miss a catch; 2) it is foreseeable that a wild throw or missed
ball would strike a person in the vicinity of your game, and 3) a person
who is struck by your baseball could be injured as a result.
As
such, you are charged with a duty to exercise reasonable care under the
new circumstances to assure that the foreseeable risk of your activity
does not become the “proximate cause” of injury to anyone around you.
A proximate cause is that which in a natural and continuous sequence,
unbroken by any new independent cause, produces an event, and without
which the injury would not have occurred. In other words, assuming under
the circumstances that it was foreseeable that a person could be struck by
a wild throw, your wild throw would be the proximate cause of injury to
another struck by your ball, provided that there was no independent
(intervening or superseding) cause of the injury.
In
conclusion, if a person’s injury is a proximate cause of your failure to
exercise reasonable care under the circumstances in conducting an
activity, and said injury was a foreseeable consequence of said activity,
you may be found negligent by a jury and required to pay for any damages
resulting from that person’s injury.
Contributory
Negligence and Comparative Negligence
In a lawsuit for personal injuries caused by a negligent activity, the
jury decides who is responsible for the resulting injuries. Sometimes,
however, more than one person can be negligent in their actions. This
includes the person who is bringing the lawsuit.
The
way negligence is dealt with under these circumstances is not uniform
across the country. In a “contributory negligence” jurisdiction, if
your own negligence in any way contributed to the accident, you may not
recover anything for your injuries. This may be true even if another
person was the major cause of the accident. Contributory negligence is
only the law in a small number of states.
Most
states have rejected this “all or nothing” principle of contributory
negligence and utilize a “comparative negligence” standard. In a
“comparative negligence” jurisdiction, the jury decides how much fault
should be apportioned to each person responsible for the injury. After the
jury determines the amount of damages due the injured party, those damages
are awarded according to the percentage of fault caused by each person.
Recklessness
Injuries are sometimes caused by a conduct (type of fault) that is
considered more than mere negligence or carelessness, but considered less
than intentional. This type of conduct may be referred to as being
“willful and wanton” or “reckless.”
Driving
an automobile five or ten miles per hour over the speed limit would
probably be considered mere carelessness. However, driving an automobile
at an extremely high rate of speed through a busy school zone would likely
be regarded as reckless conduct.
In
some situations, a party may not be able to sue for injuries caused by
mere negligence. This party may only be able to sue if the harm was caused
by willful and wanton or reckless conduct. Further, additional damages may
be available to a plaintiff if defendant’s conduct is deemed to be
willful and wanton or reckless. In fact, certain kinds of willful and
wanton or reckless conduct may also be punished as a crime under the
criminal law.
Intentional
Harm / Torts
Intent is another type of fault. Sometimes a person acts with the
deliberate intent to do harm to another or is substantially certain that
said harm will occur. An actor who knows with “substantial certainty”
that a particular effect will occur as a result of their action, is deemed
to have intended that result. This kind of conduct may also be referred to
as “malicious,” “purposeful” or “knowing.” In general, a
person who acts intentionally to cause harm to another will be liable for
the injury caused. Further, additional damages designed to punish the
actor, “punitive damages,” may be available to a plaintiff if
defendant’s conduct is deemed intentional. Deliberately driving a car,
or throwing a baseball, at a person with the intent to cause them harm
will result in liability for any injuries. Like willful and wanton or
reckless conduct, conduct that involves an intent to do physical harm to
another usually is punishable under the criminal law as well.
“Intentional
torts” stem from intentional conduct. The term “intentional torts”
refers to personal injury that is caused by a person whose action or
inaction is intended to cause harm. It may also refer to injury that is
caused by willful and wanton or reckless conduct.
Intentional
torts to the person include assault (an attempt or threat to inflict
bodily injury upon another, accompanied by the apparent present ability to
do so) and battery (a harmful or offensive touching of another).
Intentional infliction of emotional distress and false imprisonment are
intentional torts which do not involve actual touching but result in
physical harm.
Strict
Liability
Strict
liability simply means “liability without fault.” This strict
liability standard is usually imposed upon “ultra hazardous” or
“inherently dangerous activities” such as use of explosives. As such,
a person engaged in this type of activity who causes injury to another can
be found strictly liable and responsible for all damages that are
proximately caused by said activity regardless whether or not the person
was negligent in his activity or intended to do harm.
Strict
liability is also often imposed on manufactured products, under the law of
product liability.
Variations
in Law
The law of personal injury comes from both the common law and
from the many state and federal statutes, which apply to specific kinds of
injuries or provide rules for various aspects
of personal injury lawsuits.
Personal
injury laws, which come from both
the common law and from many state and federal statutes,
vary greatly from state to state. There are many special and different
rules that apply to particular kinds of personal injuries. Personal
Injuries resulting from auto accidents, slip and falls, service of
alcoholic beverages, participating in sports activities, accidents in the
workplace, or defective products all employ their own liability-triggering
rules. For example, in some states, liability regarding a person who
injures another during the course of a sporting event will not be imposed
for mere negligence. In this situation, a person would only be responsible
for injuries caused by a higher degree of fault such as recklessness.
The
relationship between the parties involved in an accident is very
important. Different rules apply to accidents involving employer and
employee, doctor and patient, trespasser and landowner, parent and child,
or husband and wife.
As
a result, whether or not a person is liable for causing personal injury
depends very much on what happened, where it happened, and who was
involved.
Damages
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