A “claim”, in legal jargon, is simply the right to sue an individual or an organization. If someone crashes into your parked car, for example, you will have a property damage claim – you can file a complaint with a civil court and the court will agree to hear your case. A personal injury claim, by contrast, is the right to sue for harm due to an accident or injury. Although most personal injury claims arise from harm to the body, it is also possible to sue for harm to your reputation, as in a slander or libel claim.
Theories of Liability
Depending on the circumstances of your case, you can choose from among three main theories of liability to support your claim:
Negligence: The defendant failed to meet a duty of care that he owned to you – a driver injured you by driving carelessly, for example, or a doctor harmed you by failing to treat you with a professional standard of care.
Intentional misconduct: The defendant harmed you intentionally (by assaulting you, for example). You might win a personal injury lawsuit even if he is acquitted in criminal court.
Strict liability: The defendant is liable for your injuries without fault – the employer of a negligent truck driver can be held liable without fault, for example, as can the distributor of a defective product that injured you. .
Standard of Proof
The standard of proof in a personal injury claim is a “preponderance of evidence” not “beyond a reasonable doubt” as in a criminal case. This means that to win, the plaintiff only needs to show that the defendant is more likely than not to be liable – about a 51 percent likelihood. Because of this, you could win a personal injury claim against, say, a drunk driver, even if he was acquitted in criminal court.
The total amount of money you are entitled to could far exceed the amount you need to pay your hospital bills. You may be entitled to damages for:
Total past, present and future medical expenses
Lost earnings (perhaps even for a lifetime in the case of permanent disability)
Pain and suffering caused by bodily injury as well as mental anguish caused by serious disability
Other expenses arising from the accident such as transportation and child care.
When the defendant shows that the plaintiff was partially at fault for the accident, the result of the lawsuit depends on the personal injury law of the particular state:
Pure contributory negligence states: The plaintiff will lose if he is even one percent at fault. At present, five states apply pure contributory negligence.
Pure comparative fault states: The plaintiff’s damages will be reduced in exact proportion to his percentage of fault; for example, he can collect 25 percent of his damages even if he is 75 percent at fault. Pure comparative fault applies in 12 states.
Modified comparative fault states. The plaintiff’s damages will be reduced in exact proportion to his degree of fault, except that if his degree of fault reaches a certain threshold (50 percent or 51 percent, depending on the state), he will receive no damages at all. Modified comparative fault applies in 33 states.
South Dakota bars recovery by a plaintiff for any degree of fault exceeding “slight negligence.”
Statute of Limitations
The statute of limitations sets the deadline for filing a lawsuit after a personal injury claim arises – five years from the date of the accident, for example. Each state applies its own statute of limitations.
Seeking Legal Help
Personal injury law is complex, and important nuances vary from state to state. If you believe that you may have a personal injury claim, or if you believe that someone else may have a personal injury claim against you, it might be time for you to contact an experienced personal injury lawyer in your locality. Most will not charge you for an initial consultation.
Allen Vaysberg practices personal injury law and works tirelessly to defeat the tactics of insurance companies and large corporations who try to deny justice and fair compensation to injured people.