Ingles Legal Tort Law Personal Injury Law Technically known as "tort" law, personal injury law are intended to make one whole after a negligent injury by collecting money from the at fault person or entity in an amount equal to the injuries suffered, together with the actual out-of-pocket expenses incurred. This type of action is known as a "civil" action, to distinguish it from a "criminal" one. There are two kinds damages in civil personal injury cases: "Economic" and "Non-economic".   A tort is a private or civil wrong or injury (other than breach of contract) for which a court of law may provide a remedy through a lawsuit for damages (compensation). When a person violates his/her duty to others created under general (or statutory) law, a tort has been committed. Economic damages are the actual money losses incurred, or those losses that will be incurred in the future, as a result of the injuries. Non-economic damages refer to the injuries and the amount of money which should be paid to equal the harm done. Generally, these will involve considerations of (1) the nature and extent of the injuries; (2) disability; (3) disfigurement; (4) pain and suffering; and (5) loss of enjoyment of life. In some cases, family members have a right to recover damages to a member of their family for their own loss of relationship with the injured person due to their injuries. This is referred to as "loss of consortium" damages. Automobile accidents, the area in which the majority of personal injury actions arise, provide a good example of how the tort system works. A meritious tort action is defined as one that would include negligence on the part of one driver for failing to exercise reasonable care while operating their vehicle resulting in injuries or death to another. All persons who are operating a vehicle have a duty to exercise reasonable care anytime they are on the road. When they fail to do so and cause injury or death to another, tort law says the injured party can recover their losses from the negligent party. In order to properly evaluate the potential of any claim, three elements must be reviewed.   The first element is the issue of liability, wherein the facts surrounding the incident are carefully evaluated to determine who is at fault. In some cases, there may be fault assigned to both parties involved. This is known as "contributory negligence". Contributory negligence does not prevent the recovery of damages, but may reduce the damages proportionally to the allocated percentage of contributory negligence which is assigned. The second element is evaluating the extent or severity of the injuries sustained. This does not simply involve the physical aspect of the injuries suffered and their associated medical costs. Another person's negligence can cost the injured victim and their loved ones their livelihoods and/or significantly interfere with their everyday way of life in many different ways. All effects upon the injured person and their family must be evaluated to fully determine the element of damages sustained. The third element is to determine the existence of any sufficient insurance coverage available through all potential defendant parties to adequately compensate the injured person for the injuries they sustained. Only after all three of these elements are established through the investigation process and by reviewing the pertinent damage information are we able to evaluate the merits of a case and provide recommendations as to the future handling of a file. The investigation of injury type cases can be a tedious and time consuming process. In most cases, the investigation process will include taking statements of witnesses, obtaining photographs of relevant scenes, consulting with expert witnesses, and otherwise finding out as much about the facts of each particular case as is possible. Properly preparing a personal injury case requires experience and skill. In many cases, various experts are needed and careful preparation is required. It may be necessary to consult with accident reconstructionists, human factors experts, or other persons with specific training in topics related to the accident in question.   Oftentimes,it is required to prepare computer generated animation of the accident in order to demonstrate to a jury exactly how the incident occurred, or to provide visual detailed illustrations depicting the exact nature of the injuries sustained. Because the costs can quickly accumulate while investigating and preparing a personal injury case, it is very important that a case be carefully evaluated before proceeding, and before filing a lawsuit. Cases are expensive to prepare, time consuming and have significant importance to all persons involved.   In addition, the Legislature passed laws restricting the rights of injured people. The law provides that if a frivolous or unfounded lawsuit is filed, damages, including reasonable attorney's fees, can be collected from the person filing such a lawsuit.   The four elements present in a typical tort lawsuit are: The existence of a legal duty owed by a person to others The breach of the duty by one person (negligence) The breach of the duty being the "proximate cause" of damages suffered by a person Damages incurred by a person. Each of the four elements of a tort typically must be present to be compensated.   STRICT LIABILITY Strict liability is a legal doctrine that makes some persons responsible for damages their actions or products cause, regardless of any "fault" on their part.   Strict liability often applies when people engage in inherently hazardous activities, such as doing "blasting" in a city, or keeping wild circus animals. If the blasting damages you -- no matter how careful the blasting company was -- it is liable for the injury. Similarly if the animals escape and injure someone, the fact that the circus used the world's strongest cages and the highest standard of care imaginable will not let it get off the hook.   Strict liability also may apply in the case of certain manufactured products. In strict product liability, typically anyone who is engaged in the stream of commence of the product (from the manufacturer to the wholesaler to the retailer, or all of them) can be held responsible if the product was defective and someone was injured. There is no need to prove negligence but the injured party must prove that the product was defective. Defective products may be the result of bad manufacturing for the failure to provide adequate instructions for the use of the product. Those engaged in the stream of commerce with respect to products should reasonably foresee that some people will misuse the product and should design the product so that injury does not occur.   Disclaimers and waivers of liability for products are often invalidated by courts as against public policy (courts should not condone the manufacture and distribution of defective products) and typically warranties are limited so that manufacturers and retailers are held responsible for personal injuries caused by the use of the product.   TYPES OF DAMAGES Damages are divided into a number of categories upon which the recovery may be based, such as: Compensatory Damages for the purpose of making a person "whole again" (put back in the position which existed before the loss or harm). Compensatory damages is further broken into two main categories General Damages which necessarily result from the act or omission - the amount needed to restore the fair market value of the property to its owner (the injured party); and Special Damages which do not arise as a result of the wrongful act or omission itself but arise due to the circumstances after the loss or harm has occurred. Special damages include out-of-pocket items that can be documented such as the need to rent replace property (such as a car rental) or the cost of services (such as the cost to have property valued or appraised). Consequential Damages which flow from the loss or harm - consequential damages are of the same nature as special damages. Future Damages that are certain to occur in the future as a result of the loss or harm, are recoverable so long as there is a satisfactory basis for which the future, anticipated losses or harms can be determined. Without a satisfactory basis, future damages are speculative and are not subject to recovery. Incidental Damages include the reasonable charges, expenses, or other costs which flow from the loss or harm - such as delivery expenses and the cost of photocopies. Punitive Damages can be assessed against the party at fault to punish the wrong-doer for his/her willful, malicious, or oppressive behavior and to deter others from acting in a similar manner.   DAMAGE AND DAMAGES Damage is defined as a loss or harm resulting from injury to a person, property or reputation. Damages refers to compensation - such as a money judgment - provided to a person who has suffers a loss or harm due to the unlawful act or omission of another. The person at fault - the one who is the proximate cause of the loss or harm - must compensate the injured party.   VALUE OF DAMAGES Property damage valuation is an art form that may require the services of a professional or expert appraiser. If the property has been completely destroyed so that it is of no further use and has no salvage value, the measure of damages can be set at the fair market value of the property immediately before its loss. Generally, an injured party may recover for the loss or harm - both present and prospective - which are the natural, necessary or reasonable result of such damage.   If the property can be repaired, the amount of damages can be set at the amount it costs to repair the property plus the loss of its use by the owner. If the cost to repair the property exceeds the fair market value of the property before loss, the damages can be limited to the fair market value. In addition to the cost to repair or replace plus loss of use, interest and loss of profits may also be added as elements of damages.   With respect to punitive damages, the amount is often determined after an inquiry reveals the wealth of the wrong-doer. For example, punitive damages in the amount of $10,000 is typically sufficient to deter similar acts or omissions for most people - but if the wrong-doer is a multi-millionaire, a $10,000 punitive damage award may be an insufficient deterrence. An award of damages that is the result of passion or prejudice on the part of a jury - meaning that the award is not supported by the evidence or that it does not bear any correlation to the amount of actual damages suffered - can be set aside by a judge upon review.   AMOUNT OF DAMAGES SUFFERED To bear responsibility for injury to others, your negligent action (or failure to act in certain situations) must be the proximate cause of the injury without any intervening causes interrupting the natural sequence of events.   Once the first three elements of a tort (duty, breach, and causation) have been established, it is then a matter of determining the amount of damages suffered so that an injured party can be compensated for the damages sustained as a result of the toreador's act or omission (a "tortfeasor" is the person who breached his/her duty which caused damages).   Some common "damages" that a person may suffer include: medical expenses - such as doctors fees and hospitalization costs rehabilitation therapy - the cost of obtaining services provided by others who assist a person to return to the same or similar physical condition s/he was in prior to the negligent act or omission. This could include training for a new occupation if the injury prevents the injured party from working in his/her normal trade or occupation lost wages - wages and earnings which would have been earned by the injured party but for the negligence of the tortfeasor pain and suffering - compensation for the hurt that an injured party is caused to endure as a result of the negligence of the tortfeasor. (There are some "rules of thumb" that often involves a multiple of medical expenses and rehabilitation therapy - i.e. - three times medical and rehabilitation expenses.) punitive damages - assessed against reckless or irresponsible behavior to prevent such behavior from the tortfeasor in the future and to deter others from acting in a similar manner.   In many personal injury lawsuits, expert witnesses are retained to assist in determining the amount of damages sustained by an injured party and to present this evidence to a jury.   COMPENSATORY DAMAGES Compensatory money damages are intended to make you "whole". For example, if a person, while driving negligently, totally destroys your 1992 Ford, the compensatory damages would normally equal the market value of your 1992 Ford at the time of its destruction, less any scrap or "salvage" value. You could receive the fair market value of the car, not enough to buy a new model, even if that is what you choose to do.   Depending on the state and circumstances, you may sometimes be entitled to receive compensation for the loss of use of the car (such as while it was being repaired), or the loss of profits that you would normally have earned while replacing the car, if you were using the car as a taxi, for example.   RECOVERABLE IN A WRONGFUL DEATH CLAIM The following damages may be recovered in a wrongful death action: Immediate expenses associated with the death (medical & funeral): Loss of victim's anticipated earnings in the future until time of retirement or death; Loss of benefits caused by the victim's death (pension, medical coverage, etc.); Loss of inheritance caused by the untimely death; Pain and suffering, or mental anguish to the survivors; Loss of care, protection, companionship to the survivors; General damages; and Punitive damages.   Depending on the jurisdiction, some of the listed damages may be barred or restricted by statute. Also, some of the listed damages may be hard to prove and thus be considered too speculative by the court. As a result, they may be struck or restricted. Punitive damages may require a higher level of proof (see below).   Depending on your jurisdiction, plaintiffs may be able to recover interest calculated from the time of death, the time the damages were incurred, or from the time of the filing of the lawsuit. Finally, most of the damages for future loss (such as the victim's anticipated earnings) will be reduced to "present value" (discussed below).   TIME LIMITATIONS FOR EXERCISING A CIVIL ACTION There are time limitations for pursuing and filing any kind of a damage claim. These limitations will vary from state to state, and court to court. They can be as short as six months, as is the case in a claim against a cruise line, and on up to three years for other types of claims. It is very important that these time limitations are complied with or the claim will be lost forever.   LAWSUIT AGAINST THE US GOVERNMENT If the potential lawsuit involves certain governmental entities, a written claim form must be submitted with that governmental agency prior to the filing of any lawsuit. After submitting the claim form, there is a required waiting period before the suit can be filed. If these rules and guidelines are not followed, the case will likely be dismissed.   Under "tort reform" laws, immunity has been given in a variety of situations, even when there is wrongdoing and negligence on the part of another. All of these factors must be carefully reviewed by an attorney. SETTLEMENT: The lawsuit is filed in order to obtain the full and total recovery the client, who is entitled to receive appropiate compensation for their injuries within the shortest reasonable time. A reasonable alternative to achieve this goal is to settle some cases without the necessity of going through a trial. In fact, the great majority of cases do settle. Unfortunately, in many cases the insurance companies and their representatives stall until the last possible moment to make any reasonable offers of settlement and, as a result, this issue often ends "on the court house steps".   MEDIATION: In order to settle a case, it is required sometimes to agree to a "mediation" and, in some courts, such settlement conferences are required by the rules of court. In other cases, settlement can be reached by mutual discussion with the representatives from the insurance companies or their attorneys.   MEDICAL EVALUATION: One primary rule to follow is that no case is settled until the exact nature of the client's condition has been determined by their treating physicians. In many cases, the damages are permanent and will require lifelong treatment and care. In other cases, the injuries may be treatable and resolve over time. In either case, the costs associated with treatment and care must be carefully calculated by experts, combined with other factors, and with our many years of experience we are able to arrive at an estimated dollar value for the case. It is impossible for us to evaluate what a case may be worth prior to knowing virtually everything about the case and being advised by experts as to the full extent of the injuries suffered. Some other key factors in evaluating a case include a) where the case will be tried b) the quality of plaintiff's experts verses the defendant's experts c) the strength of the evidence of fault d) the degree of injury and damage e) the ability of the opposing lawyers f) the impression the client will make upon a jury g) the amount of insurance available.

State Constitutions of USA: Part I Part II