Did you know that there are more than 400 thousand personal injury cases each year?
Whether it’s from a car accident or a fall in the workplace, personal injuries are all too common in the United States. The worst part is that they are emotionally and physically challenging to work through—especially when you get piled on with missed workdays, thousands of dollars in medical bills, and a potential lawsuit.
If another person or a company is responsible for your injury, then it might be a good idea to consider filing a personal injury claim. Filing a claim could be the best way to protect yourself financially after experiencing a significant injury.
But before you get started, this guide will tell you everything you need to know about personal injury law and how your case may be handled.
What Is a Personal Injury Lawsuit?
Personal injury law, also known as tort law, is intended to protect victims of negligent accidents.
More specifically, a personal injury lawsuit (also known as tort action) is a type of legal action that occurs when a person suffers an injury that another party is legally responsible for. But depending on your state’s laws, you must file a claim within your state’s statute of limitations.
The responsible person may have to compensate the victim to make up for any damages, which may include medical care, pain and suffering, property loss, and income loss.
There are typically one of two outcomes in these situations: a formal lawsuit or an informal settlement.
Formal Lawsuit vs. Informal Settlement
A formal lawsuit is initiated by the injured person (the Plaintiff) when they file a complaint against another person, corporation, or government agency (the Defendant). This is different from a criminal lawsuit, which is typically initiated by the government.
In a formal lawsuit, the Plaintiff must allege that the Defendant acted carelessly and prove negligence, which resulted in the Plaintiff’s injuries.
An informal settlement is typically for things that are easier to solve, like who’s at fault for a car accident.
These settlements will take place in the form of negotiation with both party’s lawyers. It will follow with a written agreement that both sides forgo further action (e.g., a formal lawsuit) and instead choose to go forward with an agreed-upon amount of money.
Statute of Limitations
A statute of limitations is the limited amount of time you may have to file a claim for your lawsuit. The period of time begins when the Plaintiff is either injured or when they discover the injury (which is more typical in medical malpractice cases).
However, these laws vary depending on where you live and the type of injury you have. For example, New York City’s statute varies based on the type of crime. So, for negligent emotional distress, you have three years from the accident date to file a claim. However, for wrongful death, you only have two years to file a claim. These laws also vary depending on whether the party responsible is a municipality like the local city, town, or village.
The good news is that once the lawsuit begins, you’re not bound to any time constraints.
Proof of Negligence
Proof of negligence is the most crucial aspect of any personal injury case: Without this, the Plaintiff won’t get compensated for their injuries.
There are four elements to prove negligence, which are:
- Duty: Duty is the first thing that must be proven in a personal injury case. Let’s say that you slipped and fell at work.
- Breach: You must then prove a breach of duty, which means that you must show the property owner did something wrong despite their responsibilities.
- Causation: Causation means that you need to prove that the other party’s negligence caused your injury.
- Damages: Proving damages can be two sides of the same coin. One side is physical, which is easy to prove because there are medical records, doctor testimonies, and potentially other proof. However, the other side of proving damages is emotional—and, although it’s not impossible, it can be hard to verify that the accident has caused emotional distress.
Proof of negligence is an essential part of any personal injury lawsuit, although they’re typically more comprehensive in car accidents, slip and fall cases, or medical malpractice.
Common Types of Personal Injury Lawsuits
It’s easy to think your injury won’t qualify for a personal injury lawsuit. But you may be surprised: Remember that the root cause of your injury must be from someone else’s negligence. As long as you have that element, you likely have a valid claim on your hands.
There are many specific types of incidents that may qualify for a personal injury case and eventual lawsuit.
More than 4.5 million people are bitten by dogs each year. When this happens, the dog’s owner is usually liable—but this can be a tricky area because the exact laws depend on the state. Plus, it could also be challenging because you may have to prove that the owner had prior knowledge of aggression and violence.
Of course, this practice area isn’t just limited to dog bites: It also includes other pets, like cats, rodents, reptiles, or even exotic animals.
No matter the animal, victims of animal attacks can face extensive injuries and medical costs. There is potential for it to be a simple process that mediation can solve.
In the United States, there are 3.82 million people who participate in cheerleading on a scholastic or competitive level.
However, cheerleading is often considered an athletic activity rather than a sport, which may allow for independent rules instead of federal guidelines, like sports law legislation Title IX. Overworking and overtraining while performing dangerous stunts are among the most common reasons cheerleaders get injured every year.
Defamation is a unique type of personal injury that doesn’t involve any physical harm. By definition, defamation is a statement with the intent to harm another person’s reputation. More specifically, written statements are libel, and spoken statements are slander.
Defamation and speaking opinions are different, although they walk a thin line. If you wrote a newspaper article and stated a defamatory statement that was made to seem true, then this could be considered libel. It is not libel if it’s clear that the piece was opinion, i.e. if the article was published in the Opinion-Editorial section of a newspaper.
Medical malpractice is a very serious and common type of personal injury. Medical error is the third-leading cause of death in the United States. Common medical mistakes include prescribing the wrong kind of prescription, having surgical errors, diagnosing the wrong condition, and more.
If your injury results from medical malpractice, then your attorney will be working with the insurance companies and the hospital’s lawyers instead of the individual doctor’s lawyer.
Motor Vehicle Accidents
A single car accident could damage your property, impair you physically, cause emotional distress, require lifelong medication or therapy, and put you in significant debt. Because of its potential and damages, car accident lawsuits are taken very seriously.
If you’ve been arrested, then you’re likely familiar with how the process goes: The arresting police officer will read you your rights and transport you to the local police station for booking.
However, suppose the officer performed your arrest with excessive force, and you were injured in the process. You might be able to open up a police misconduct personal injury case.
These claims might be more common than you think: Municipalities with the 20 largest police departments paid over $2 billion in the past few years for alleged wrongdoings and civil rights violations. An experienced personal injury lawyer can represent your case so that you get fair justice in return.
Nearly 80% of public schools reported some type of violence, theft, or other crime on their campus. Some common examples of school violence cases are rape, hazing, sexual assault, school shooting, teacher-student sexual relationships, and non-consensual sexual distribution.
But who exactly is liable for violence on school grounds? Liability can attach to a person, a group of individuals, or an organization. Some examples include a school district, fraternities, corporations, municipalities, or universities. It is possible to bring upon a lawsuit to any of these entities.
Slips and Falls
Slip and fall accidents occur when there is a safety hazard on the floor, like liquid or debris. Often, slip and fall cases get thrown out the window unless the Plaintiff can prove that there weren’t proper warning signage or sufficient lighting in the walkway. You can learn more about how slip and fall cases are determined in court.
Workplaces have specific measures that protect their employees, but injuries at work happen far more often than you might think. Just last year, nearly 900 thousand nonfatal injuries and illnesses caused an employed person to miss at least one day of work.
Whether you’ve been injured at work in the office or on the job at a construction site, workplace injuries are very complicated types of personal injury suits. These are typically more prolonged lawsuits because it will require a lot of proof, which can be hard to get a hold of. That’s why you must document the scene as best as possible following the incident.
While wrongful death lawsuits are a type of personal injury case, they can be more emotionally-driven because somebody has died as a result. With that being said, wrongful death lawsuits are also complicated because they require proving that another person’s actions caused someone’s death.
Ultimately, wrongful death is when somebody dies because of another person or entity’s negligence or misconduct. This could be from medical malpractice, vehicle accidents, or several other incidents. Here, you can learn more about wrongful death claims and how they are handled in the court of law.
Determining Personal Injury Case Value
Your personal injury case value depends on a few factors. For starters, both sides need to evaluate the Defendant’s actions and the circumstances of the injury.
An injured person’s role may play a massive role in this, depending on what exactly happened. Your state may abide by comparative or contributory negligence, which heavily determines your case’s value and future.
Here are three crucial types of negligence that affect your case’s value:
- Comparative Negligence: Many states use this common way of calculating personal injury claims that uses a formula to look at each party’s degree of fault. For example, if you are 25% at fault, then the other party is 75% at fault, and any value will adhere to these percentages.
- Modified Comparative Negligence: Also called the 50% rule, some states abide by a law that says if you were at fault over 50%, then the court will bar you from receiving any compensation. There’s a similar rule called the 51% rule that some states follow, which essentially is the same rule like the other, but only if the victim is more than 51% at fault.
- Contributory Negligence: In states that allow contributory negligence principles, victims that hold any type of fault in their personal injury claims are automatically barred from receiving any kind of compensation—even if the accident was only 1% your fault.
Your case may also depend on what’s called the assumption of risk. Assumption of risk says that the victim may be barred from receiving any compensation if their injury was sustained when they voluntarily exposed themselves to a known dangerous situation. For example, if your doctor explains to you the potential risks of a surgery you’re getting, and you sign a waiver, then you can’t sue the hospital for medical malpractice if something goes wrong.
After your case has been valued, the court will decide what kind of damages you will receive: Compensatory, nominal, or punitive.
Compensatory damages are for personal injury cases that intend to compensate the victim for what was lost during the accident or injury. This type of damages tries to put a monetary value on all aspects of the accident.
Personal injury awards almost always include medical treatment costs. There will be reimbursement for the treatment you’ve received as well as coverage for any future medical expenses, like surgeries, appointments, medications, and any other lifestyle alterations.
Loss of Income
If your injury caused you to miss work, you might be compensated for any time off. This is also a loss of earning capacity.
You also may be compensated for any future time off if your injury prevents you from doing your job to the same degree as you were able to before the accident.
If a vehicle, property, or anything else was damaged during the accident, then you will be compensated for this too. The compensation will include reimbursement for the fair market value of the items.
Pain and Suffering
Pain and suffering refer to a variety of emotional aftermath that comes with trauma like a personal injury accident. When you hear your attorney talk about pain and suffering, they are talking about your:
- Emotional Distress: Emotional distress refers to mental harm caused by an experience like humiliation, torment, anxiety, and depression.
- Physical Disabilities: Even the smallest accident can cause physical disabilities, ranging from minor injuries to permanent physical impairment.
- Loss of Enjoyment: Loss of enjoyment refers to how a severe injury impacts a person’s quality of life. They may experience anxiety, stress, or depression, which prevents them from enjoying things they would have before the accident.
- Loss of Consortium: This is a standalone claim that says the relationship between the victim and their partner or spouse has been altered negatively due to the accident. Some examples include loss of meaningful relations such as love, affection, comfort, or sexual relations.
Pain and suffering are hard to prove in court, but an experienced attorney knows how to approach it so that you receive justice and fair compensation.
Nominal damages are for personal injury cases that are awarded when the Plaintiff is legally in the right but has not suffered substantial losses. There is no established need for compensation in these cases, so the awards are relatively small.
An example case that would receive nominal damages is if the Defendant is wrong for causing a car accident, but the Plaintiff didn’t submit any medical records in time, thus devaluing the case. Since there is no exact value, there may instead be nominal damages.
Punitive damages are for personal injury cases whose value exceeds compensation and are awarded to punish the Defendant. These are rarer and are typically for outrageous conduct, plus are awarded in addition to compensatory damages if it’s not deemed enough.
An example case that would receive punitive damages if there was an attempted murder and the victim already received $100,000 in compensatory damages. The court then decides that the Defendant should pay more because of the actual careless actions of attempted murder.
Timeline of a Personal Injury Case
When you’ve been injured, it’s hard to predict what the next coming weeks will be like. The good news is that personal injury law is fairly straightforward, so the timeline of a personal injury lawsuit is easy to follow.
Step #1: Receive Medical Treatment
After you experience your accident, make sure one of the first things you do is seek medical treatment. Even if you feel okay, it’s important to get looked at by a medical professional.
Plus, forgoing medical treatment can be one of the biggest mistakes you make for personal injury cases. If you wait too long to see a physician after your accident, the insurance adjuster and jury may consider this and deem that your injury wasn’t that bad.
Be sure to keep any photos, x-rays, and documentations like notes, prescriptions, bills, or insurance documents.
Step #2: Hire an Attorney
Some cases are so small that an attorney may be deemed unnecessary. However, a good way to indicate if you need a law firm or personal injury attorneys may be if you’re out of work for a few days, if you’ve broken a bone, or if your medical bills totaled more than a few thousand dollars.
Step #3: Investigation Begins
Upon meeting you and learning your situation, your lawyer will immediately begin work by investigating your case. This includes your claim, medical records, bills, and reviewing your story.
Later on, they will begin interviewing witnesses that may be integral parts of the story in court. At this point, your lawyer may begin negotiating with the Defendant’s lawyer. (This is especially possible and likely if it’s a small claim.)
However, the lawyer should not claim that you have received maximum medical improvement (MMI) because you don’t know your claim’s worth until you’re healed. If the claim is made too early, the jury might undervalue the case.
Step #4: File a Lawsuit Claim
The lawsuit claim process starts when you and your lawyer file a personal injury claim in court. This part requires lots of paperwork that your lawyer will handle for you.
It can take a couple of years for a personal injury claim to get to trial. Personal injury cases are also unique because you have to stick to your state’s requirements and the statute of limitations.
Step #5: Discovery
The discovery phase is when each side’s lawyers investigate and discover what each party’s claims are.
They will send interrogatories and document requests to one another and take depositions from any relevant parties and witnesses that they may have met earlier in the lawsuit process.
Step #6: Mediation and Negotiation
When the discovery period ends, lawyers will begin talking settlement. If they can settle it by themselves, then the case will come to a close. Your lawyer and the Defendant’s lawyer will come to an agreed-upon conclusion.
However, if they can’t agree, then the case will go to mediation. Mediation is a civil and official process where both parties must meet with an unbiased third party who will try to resolve the case.
Step #7: Trial
If mediation doesn’t work, then the case is scheduled for trial. Personal injury law gets complicated at this point, but your lawyer will know how to navigate the process.
Remember not to worry if your trial date gets pushed. That doesn’t mean that anything is wrong or happening behind the scenes. Quite often, trials get pushed according to the judge’s ever-changing schedule.
When you get injured, there’s a lot of things that suddenly get piled onto your plate—and the last thing you need is to worry about these stresses. Luckily, a personal injury lawsuit can help bring peace of mind to you and your family.
Personal Injury Attorneys in New York City
With more than 35 years of experience, the Schwartzapfel® Lawyers law firm specializes in personal injury law and is ready to fight for you to get the justice you deserve.
If you’ve been injured and need the best representation for your case, then contact Schwartzapfel® Lawyers today for a free quote.