Personal Injury FAQ’s
The terms assault and battery are often erroneously used interchangeably. However, they are not the same things. An assault can be defined as the threat to use unlawful force to inflict bodily injury upon another. The threat, which must be believed to be imminent, must cause reasonable apprehension in the plaintiff. Therefore, where the defendant has threatened some use of force, creating an apprehension in the plaintiff, an assault has occurred. The focus, for the purpose of determining whether a particular act is an assault, must be upon the reasonableness of the plaintiff’s reaction.
If the defendant threatens to use force against the plaintiff, but clearly states that the use of force will not be imminent, and will instead occur at some point in the future, then the plaintiff is unlikely to prevail on a claim of assault. If the threat is imminent, and the defendant appears capable and intent on carrying it out, the plaintiff will likely succeed in proving an assault occurred. For example, a plaintiff may have difficulty proving an assault in cases where an individual such as a former spouse threatens him or her over the phone and thus is not present and capable of immediately carrying out the threat.
Battery is the intentional and unpermitted contact with another. A battery, for practical purposes, is the end product of an assault. A plaintiff in a battery claim does not need to prove an actual injury, as long as the plaintiff proves unlawful and unpermitted contact with his or her person or property. For example, plaintiffs have successfully proven a battery where the defendant grabbed onto the plaintiff’s coat. In addition, it is not necessary for the contact to be with an object in the possession of the plaintiff or the plaintiff’s body. An unpermitted contact with property of the plaintiff, located within the plaintiff’s proximity, may also constitute a battery.
In general, the answer to this question is yes. An owner of a dog, or any animal for that matter, may be held liable for the injuries that that animal causes to others. However, the ease with which a plaintiff can win a “dog-bite” lawsuit differs from jurisdiction to jurisdiction depending on the legal theory of recovery available in the plaintiff’s location. Some jurisdictions require the plaintiff to show that the animal owner knew, or should have known, that the animal was inclined to attack or bite. In other jurisdictions, the plaintiff may only need to show negligence on the part of the owner in order to recover money for his injuries. If a wild animal, such as a lion, bear or monkey, injures the plaintiff, the animal’s owner may be held accountable under a theory of strict liability for plaintiff’s injuries regardless of the plaintiff’s conduct.
Some states have “dog-bite” statutes designed to address these very matters. Additionally, some municipalities may also have their own statutes also address the responsibility of pet owners to answer for the actions of their pets.
If the plaintiff is an adult, the owner of an animal may offer as a defense to the plaintiff’s claim that the injured party provoked the animal. Where the plaintiff has been given clear warning that an animal should not be approached, petted or talked to, and still proceeds with that action, the owner may be able to avoid responsibility if the animal thereafter attacks the plaintiff. This defense is not available, however, if the plaintiff is a child.
Once the plaintiff has established that the animal owner is liable for his injuries, the plaintiff must also establish the amount of his or her damages. The plaintiff should introduce evidence, such as doctor and hospital bills, of how much it has cost to treat the injury. In addition, the plaintiff may be able to recover lost wages if the injury kept the plaintiff out of work. The plaintiff is entitled to compensation for any permanent disability cause by the injury, as well as compensation for pain and suffering.
Defamation is term that includes both slander and libel. Generally, slander occurs when the reputation or good name of someone is damaged as a result of false statements that are orally made. Libel, on the other hand, occurs when false statements regarding another are put in writing.
Whether a particular statement, oral or written, constitutes defamation in the nature of slander or libel will depend upon the particular circumstances in question and the identity of the parties. To prevail in a defamation lawsuit, a plaintiff must prove that the defendant made a false and defamatory statement about the plaintiff that was communicated to a third party. Thus a false and objectionable statement sent in an e-mail to the plaintiff’s co-worker may be libelous. The plaintiff can usually succeed by showing the communication was either intentional or at least negligent. Finally, it is also possible for the plaintiff to bring a libel suit where the plaintiff himself repeats the alleged defamatory statement. This is called self-publication. This can occur, for example, when an individual applies for a job and has to tell the prospective employer about something the previous employer said that was false.
Before beginning a libel or slander lawsuit, the plaintiff must determine whether or not the objectionable statement is true. No matter how damaging, insensitive, rude or inappropriate a statement may be, the plaintiff will lose if the statement is true.
The “public” plaintiff has additional hurdles to overcome to recover for libel or slander. An example of a public figure is a politician. Along with establishing all of the regular elements of the tort, a plaintiff who is a public figure must also show that the defendant knew the false statement was false, or at least acted with reckless disregard as to its truthfulness. Newspapers may escape liability for libel when they merely report false statements as long as the paper had no particular reason to doubt the statement at the time it was printed.
Finally, the plaintiff often has to prove economic harm in order to recover on a defamation suit. Therefore, the plaintiff may need to be able to demonstrate a loss of business as a result of the defamation in order to establish a right to the recovery of money. However, some types of statements are so damaging that the plaintiff does not have to prove any economic loss. These statements tend to be those that accuse the plaintiff of sexual impropriety or criminal conduct.
Does the average member of the public have any privacy rights?
Yes. The average member of the public is entitled to privacy protections, although the strength of those protections will vary depending upon the particular factual circumstances.
Generally, there are four different actions that an injured plaintiff can allege to recover for an unlawful invasion of his privacy. The first concerns the unlawful appropriation of another’s image. The plaintiff could make this claim, for example, if the defendant, an owner of a car dealership, uses plaintiff’s picture in a commercial or advertisement without permission.
The second type of wrongful invasion of privacy is in the nature of intrusion. If the plaintiff can prove that the defendant intruded into his or her solitude, seclusion, or private life in a manner that would be considered highly offensive to a reasonable person, the plaintiff is entitled to recover damages from the defendant. The issue of what actions are considered highly offensive depends greatly upon the factual circumstances under examination.
The third type of a privacy claim is the public disclosure of private facts. This cause of action requires that facts having no link to a legitimate public concern be disseminated by the defendant resulting in embarrassment, humiliation, or offense to the plaintiff. Whether the public has a legitimate concern in otherwise private facts about the plaintiff is always dependent upon the particular circumstances. For example, the public may have a legitimate interest in knowing that a local surgeon has the AIDS virus, which is an otherwise private matter, due to the potential health risks involved with that condition. In comparison, however, the public may not have a valid interest in knowing the HIV status of the local cabdriver, as there is no threat to the public health or safety in that situation.
A fourth type of privacy right is the right to be free from being placed in a false light in the public eye. This cause of action is very similar to a defamation action. In short, the plaintiff alleges that a communication about the plaintiff was made by defendant, it is untrue, and it was made to the public. The main difference between this cause of action and defamation is that for the invasion of privacy tort, the communication need not be defamatory, it need only be false and highly offensive to a reasonable person.
Under ordinary personal injury law, an injured person must claim that the defendant should pay for that person’s injuries because of some fault on defendant’s part. Even when the plaintiff is successful, there is often a long wait between the injury and the ultimate payment of money. To solve this problem, many states have enacted “no-fault” automobile insurance systems that seek to provide compensation to individuals injured in automobile accidents without regard to fault. Many of these systems are considered to be first-party insurance systems, which means that individuals who are injured in automobile accidents make a claim for recovery against their own insurance carrier, rather than the insurance carrier of one of the other party’s involved in the accident.
Many no-fault automobile systems require that every driver obtain a minimum level of insurance before being allowed to operate a motor vehicle. This purpose of this requirement is to limit situations in which an individual is injured in an automobile accident and does not have insurance to assist in compensating for the injuries. If an injured party’s insurance company has paid out a claim under the no-fault clause in the insurance policy, it can then recover at least a portion of the payment from the defendant’s insurance company. In states where insurance coverage is not required, the injured party’s insurance company can still bring a traditional personal injury law suit against the defendant to recover any payments it made pursuant to no-fault coverage.
Numerous types of benefits are available under most no-fault systems. Examples of the types of benefits available include coverage of medical and hospital expenses for injuries sustained in the accident, payment of lost wages, and payment, where applicable, of funeral expenses. These types of losses are generally considered to be economic in nature. Basic no-fault plans typically do not pay money for claims such as pain and suffering, loss of consortium, and permanent disability. However, individuals who purchase higher levels of insurance coverage may also be able to purchase additional types of coverage, such as coverage for these non-economic losses.
The total amount of benefits that may be recovered will vary by jurisdiction. Some states have no-fault systems that contain a cap on damages. Other systems do not have such a cap in place. Some systems also have a threshold of no-fault benefits that must be met before tort damages may be sought. No-fault plans can be complex and confusing, and it is therefore a good idea to carefully examine the particular requirements and limitations of any plan, and to seek the counsel of an experienced attorney, if necessary, to ensure proper application of the plan benefits.
An owner of property has a duty to protect members of the public from injury that may occur upon the property. The injured person may be able to recover money for those injuries if he or she can prove that the property owner failed to meet that duty. The hurdle plaintiffs face is that the nature and extent of the property owner’s duty will vary depending upon the facts of the situation and the jurisdiction in question.
Some states focus upon, solely, the status of the injured visitor to the property. These states divide the potential status into three separate categories: invitee, licensee, and trespasser. An invitee is someone who has been invited onto the land because that person will confer some advantage to the property owner, such as a store patron. An owner of property is required to exercise reasonable care for the safety of the invitee. A licensee is someone who enters upon the land for his or her own purpose, and is present at the consent, but not the invitation, of the owner. For example, a door-to-door salesman who enters the property and stays to chat with the owner about the product that he is selling is a licensee. The owner’s duty to a licensee is only to warn of hidden dangers. For example, if the owner knew the front step was rotten and did not warn the salesman, the salesman may be able to recover if he thereafter falls through the step and injures himself. Finally, a trespasser is an individual who enters onto the property without the knowledge or consent of the owner and who remains there without any right or permission. Trespassers have difficulty suing property owners because property owners’ duty towards trespassers is not to place traps and hazards on their property. In some cases, the owner must also warn trespassers of the hazards if they are unlikely to be discovered by the trespasser and could cause serious injury or death.
Other states focus upon the condition of the property and the activities of both the visitor and owner, rather than considering only the status of the visitor. In these states, a uniform standard that requires the owner of the property to exercise reasonable care to ensure the safety of invitees and licensees is generally applied. The plaintiff must prove that the duty of care has not been met through an examination of the circumstances surrounding the entry on the property, the use to which the property is put, the foreseeability of the plaintiff’s injury, and the reasonableness of placing a warning or repairing the condition. Obviously, whether reasonable care has been rendered depends greatly upon the particular circumstances.
The property owner’s duty of care toward children is greater than the duty owed to adults. Even if the children are trespassers or engage in dangerous behavior, the property owner must still take precautions to prevent foreseeable harm to children. The classic example of a property owner’s greater duty of care to children arises in the context of backyard swimming pools. Owners must fence, gate, and lock their pools in a manner that keeps children out and if they fail to do so, they will be found liable for injuries to children, even if the children were trespassers that were warned to stay off the property.
Generally speaking, an owner of property may not use deadly force to defend the property. Society values human life and bodily integrity much higher than property. Therefore, the life, health and safety of an individual, even an intruder, is considered to be more valuable than the china or stereo which that individual is trying to steal.
An owner is not prohibited, however, from invoking self-help methods in defending property from another. An owner of property is entitled to use reasonable force to prevent someone, or something, from entering onto her property or to remove something from her property. What, under normal circumstances, may constitute a battery, assault, or other intentional tort, will not be considered unlawful in situations where it is performed as a reasonable use of self-help in defense of property. However, the use of force calculated to do great bodily harm, or cause death, is not permitted.
One narrow limitation upon the use of deadly force is authorized. Where an intruder threatens personal safety, as well as a threat to property, or where the intruder is committing a forcible felony, deadly force may be appropriate. For example, if a robber enters a home and, while stealing items, attempts to rape the homeowner, the owner may be justified in shooting the robber. However, an owner who witnesses a neighborhood child stealing a bicycle from the owner’s garage, without any threat of bodily harm, is not justified in shooting that child.
Most individuals who are injured at work are prohibited from filing ordinary personal injury lawsuits against their employers. Instead, injured workers are generally required to file a claim under the state’s workers compensation procedure. An injured railroad worker must bring a claim for benefits under the Federal Employer’s Liability Act (FELA) for compensation for his injuries. FELA is similar to many state workers’ compensation systems with the exception that a railroad employee must be able to prove some level of employer negligence in order to make a recovery. In comparison, most state systems are based upon no-fault theories of recovery where neither the negligence of the employer or the employee is examined. In practice, it is generally not difficult for an injured railroad employee to prove that the employer was, at least to some degree, negligent.
Laws, rules, and regulations require a railroad to furnish a reasonably safe workplace for the benefit and protection of its employees. In keeping with this requirement, a railroad has a duty to inspect and discover defects that may result in injury. In some circumstances, this may include the duty to uncover defects that should be obvious to a railroad employee. A railroad also has a duty to warn its employees of any hazardous or unsafe conditions of which it is aware, or should be aware.
A railroad is also required to take other steps to ensure the safety of its workers, including providing adequate training and supervision, appropriate tools and safe equipment, and enforcing only reasonable work quotas. The FELA claimant can usually show that at least one of the required regulations has not been met, thereby establishing the employer’s negligence.
A slip and fall action is a type of personal injury lawsuit filed by a plaintiff who has been injured by a slip and fall, usually on the defendant’s property. Examples of very common slip and fall plaintiffs include the grocery store patron who slips on a spill or a piece of food laying on the floor, and falls, causing injury to himself; and a hotel guest who slips in the shower and injures her back in the process.
The plaintiff in slip and fall cases must usually show that the owner of the property had notice or knowledge of the condition, and failed to clean it up and rectify it within a reasonable amount of time. If the plaintiff slipped on a grape that had been lying on the floor for two hours, and the manager of the store had walked past it and inspected it five times before asking someone to clean it up, liability is likely.
If the plaintiff has knowingly encountered a hazard, then he or she may have trouble holding the defendant liable. For example, if a hotel guest squirts baby oil onto the floor of the shower; steps into the shower and attempts to do the jitterbug; and then falls and breaks an ankle, liability on the part of the hotel is highly questionable. However, if the cleaning staff in the hotel repeatedly tells management that the non-skid treads in the bathtub for room 212 are missing and the hotel fails to replace them, the hotel will probably be liable for damages to a guest who is injured.
No. Generally, most states that recognize a wrongful death cause of action limit the pool of potential plaintiffs. Some states limit this group to the deceased’s primary beneficiaries, defined as the surviving spouse and the deceased’s children. Other states allow the parents of the deceased individual to bring a wrongful death claim. In addition to these individuals, some states recognize the rights of any dependent, whether closely related or not, to bring a wrongful death claim provided the person actually a depended on the deceased for economic support. To those jurisdiction, it apparently makes little to no sense to allow the second cousin once removed of the deceased, who saw him once every five years at a family reunion, to recover for the loss of the deceased’s future earning potential.
Some states require any recovery gained in a wrongful death action to be divided amongst the deceased’s heirs at law or to be distributed to the deceased’s heirs at law as it would be in any normal probate proceeding. In these situations, distant relatives may receive some “trickle down” of damages, even though they were not financially dependent upon the deceased during his life.
If more than one plaintiff is entitled to recover, all plaintiffs will share in the award. The manner in which the award is divided can be confusing and will depend upon the laws in the particular jurisdiction where the matter is brought.
Personal injury actions require, by their very nature, that someone be injured. The requisite injury can either by physical or, in some cases, emotional. The general goal of personal injury actions is to place the blame for the injury on the party who caused it and to require them to compensate the injured for the losses sustained.
Not every injured plaintiff is entitled to recover damages for the injury he or she sustains. Besides an injury, the plaintiff must establish, through evidence, that the defendant is legally liable for his or her injuries. This requires proof of causation both in terms of actual, factual causation and proximate, or legal causation. Whether legal causation is established depends on the facts and circumstances of the particular matter in question. The defendant can be held liable as a result of either the actions that are taken, or the actions that are not taken.
Some personal injury actions revolve around legal causation derived from a concept of intentional conduct, whereby it is generally held that if one intentionally harms another, or knows that the conduct which is engaged in causes a substantial likelihood that harm will result, liability for the resulting harm will in fact attach. Other personal injury actions have as their legal causation a looser concept of fault called negligence. Under a negligence theory, in comparison, one is liable for the results of actions, or inaction, where an ordinary person in the same position should have foreseen that the conduct would create an unreasonable risk of harm to others. Still other types of personal injury actions are based on strict liability, a no-fault system where liability may attach regardless of the fault of the various parties, including the plaintiff.
In some situations, the defendant’s conduct, while questionable, does not rise to a level that entitles the plaintiff to a recovery. For example, if a plaintiff knowingly and willfully chooses to encounter a known hazard, the law holds that he or she has “assumed the risk of injury” and therefore the defendant is not liable. This theory applies for instance in a case where the plaintiff walks on an obvious build up of snow and ice caused by the defendant property owner’s failure to shovel his sidewalk, falls and breaks her hip, and is unable to recover for her injuries because she knew of the hazardous condition and willingly chose to encounter it. Plaintiffs are denied recovery in other cases if their subjective belief about a situation does not match an objective “reasonable person” standard. For instance, where the defendant approaches the plaintiff and states “I might poke you in the eye if you wear that red sweater again,” it is likely that no actionable assault occurred due to the fact that there was no immediate threat of harm that caused reasonable apprehension on the part of the plaintiff.
Personal injury law can involve many different types of claims, theories, and principles. Some of the more common, or interesting, types of personal injury actions include:
Animal bites can result in the animal owner’s liability to the person who is bitten or who is injured while trying to avoid a bite.
Assault and battery are two intentional torts that involve improper contact with another, without permission or consent, or the threat of such contact.
Aviation accidents quite often result in either serious injury or death. When these accidents occur, serious questions regarding the liability of the airline, its employees, or the government may arise.
Defamation and privacy are two separate causes of action that concern the rights of individuals to have their names and reputations protected, and also to have their privacy preserved.
Motor vehicle accidents raise numerous questions as to the liability of one participant to another and also raise interesting questions regarding who should be responsible for covering the losses.
Premises liability concerns the responsibilities of owners and possessors of property to safeguard others from dangerous conditions or hazards on the property and to prevent others from being injured while on the property.
Property damage causes of action concern the rights of owners or possessors of property to protect their property from damage, theft or intrusion.
Railroad accidents may result in personal injury or death and subject the railroad to liability.
Slip and fall cases are very common causes of action and relate closely to the duty of an owner or possessor of land to maintain the property in a safe manner for the benefit of others lawfully entering upon the land.
Wrongful death actions may be brought by the dependents or beneficiaries of a deceased individual against the party whose action or inaction was causally related to the death.