Whether or not you have a personal injury case and can recover compensation depends upon the ability of your personal injury attorney to prove that someone was at fault in causing you to be injured. Personal injury cases can arise out of a variety of circumstances and are not limited to just car accidents, or slip and falls.
Though the best way to find out about your specific rights is to speak with an attorney whose practice focuses on personal injury law offers, the following information will give you a better understanding of personal injury cases in general.
What is a personal injury case?
An injury caused by the negligence or by the intentional conduct of another party may give rise to a personal injury case, but there needs to be more in order for you, as the injured party, to receive compensation. The following are elements that must be present for there to be a personal injury case:
- There must be evidence proving that another party violated a duty of care by acting in a manner that was negligent, careless or reckless. For instance, all drivers owe a duty to others using the roads to obey the traffic laws, maintain control over their vehicles and keep a proper lookout for other users of the roads and highways. Texting while driving would be careless and considered negligent conduct breaching the duty of care.
- The breach of duty must be the cause of the injuries you suffered. If texting causes a motorist to crash into you, the negligent conduct caused the accident. However, if you smashed into the rear of a car stopped at a red light, the fact that the driver of the car you hit was texting would not be the cause of the crash and the injuries you suffered.
- You must have suffered damages as a result of the accident. A car crash that leaves you with a slight cut on the hand that did not require medical treatment would not give rise to a personal injury case.
Damages are either economic or noneconomic. Economic damages are easier to calculate because they represent actual expenses, including medical bills, lost earnings, expenses related to rehabilitation and physical therapy, and the cost of medical equipment, such as crutches and canes. Proof of economic damages usually takes the form of bills and statements.
Noneconomic damages can be more difficult to place a value on because they include pain and suffering, diminished quality of life, scarring and disfigurement and physical impairment. Some states place a cap on the amount of noneconomic damages courts may award in personal injury claims based upon medical malpractice. For instance, the cap in California is $250,000.
Recovering damages for emotional distress
Proving emotional distress or mental harm requires evidence that the defendant, the party causing the harm, intentionally engaged in outrageous conduct or showed a reckless disregard for the emotional harm the victim could suffer from the outrageous conduct. Sexual assault would be an example of outrageous conduct that the perpetrator was intentionally engaged in against a victim. The testimony of medical professionals treating you for emotional distress would be needed to support a claim for damages.
Imposing liability: Who is at fault?
Some personal injury cases may involve multiple parties being at fault due to their relationship to each other. For instance, the occupants of a car injured when the driver of a commercial truck failed to obey a stop sign and slammed into them could sue the truck driver and the company for whom the driver worked under the legal theory of vicarious liability.
Insurance companies that issue auto or property insurance policies provide coverage to their insureds, but they are not the party sued in a personal injury case. Their function is to provide policyholders with a defense and pay claims if the insured is found at fault.
Average settlement in a personal injury case
Every personal injury case is different, so it is impossible to arrive at a figure representing an average settlement. For example, two passengers in a vehicle each suffer a concussion. The cases might appear to be similar, but the fact that one of the victims continues to suffer from headaches and dizziness a year after the injury would weigh heavily in favor of a higher settlement over the other passenger who recovered within a week with no lingering effects.
Choosing the right personal injury attorney
If you have been injured through the fault of another party, you need the services of an experienced and skilled personal injury attorney. Reputable personal injury attorneys take the time during the initial consultation to get to know about you and the accident that caused you to be injured. They do not try to pressure you into retaining them to file your claim for compensation or trick you with promises of a quick settlement.
Only about 4% of personal injury cases ever go to trial, but most are settled before that point. A good personal injury lawyer knows when an offer does not fairly compensate you. Attorneys who focus their practices on personal injury cases achieve settlements by having established a reputation for being prepared to take a case to trial if the settlement offer fails to fairly compensate their client. You want the attorney handling your personal injury case to be both a skilled negotiator willing to commit the time and effort to reach a settlement as well as someone who is not reluctant to take a case to trial if doing so will achieve a more favorable outcome.