I was injured. What law governs my ability to recover damages?
There is a large body of law that governs your right to recover for personal injuries you sustained. First, some basic questions:
What caused the injury?
Was an auto accident? Was it a swimming or boating accident? A bus, train or plane accident? A "slip and fall"? A defective or dangerous product? Malpractice by a doctor, dentist, lawyer, accountant or other professional? Somebody defamed you, with a slander or libel? Was the injury caused by someone's intentional act? That may give rise to punitive damages. Where did the accident occur? The law of that state will generally govern your rights to recover. If the accident occurred "at work" or "in the course of your employment", then Worker's Compensation Laws may govern.
When did the injury occur?
There are requirements for giving timely notice of your claim and/or "statutes of limitation" that require you to file suit within a certain time limit. These limits vary greatly state by state and by type of matter. If you don't give timely notice you forever lose your ability to obtain recovery.
NEVER JUST LOOK AT THE STATUTE OF LIMITATIONS AND CONCLUDE "THE TIME HAS EXPIRED, IT'S TOO LATE". There are many things that sometimes extend or "toll" the time limits, including a party's lack of knowledge of the facts and circumstances, lack of manifestation of the injury, false statements or fraud, or mental incapacity or infancy.
One injury may sometimes give rise to several different rights or theories of recovery, so even if you can not recover on Grounds A you still may be able to recover on Grounds B.
Who was injured?
You -- as well as your spouse -- may be entitled to recover for an injury to just one of you. The family or estate of a deceased may be entitled to recover for the person's wrongful death.
What was the extent of the injury?
The amount of recovery you can obtain often depends on the nature of the injury, its duration (permanent or short term), your out of pocket costs (such as medical expenses, your loss of salary or wages, damage to property), the residual impacts (such as an inability to engage in sports, etc.), the pain and suffering you incurred, and the skill and experience of your lawyer.
Who was responsible for the injury?
The person you think may be responsible may be just one of many responsible. For example, if you were injured by a car that went out of control, not only the driver of the car may be responsible, but the car's owner, the driver's employer, the manufacturer of the car and the brakes that failed and the repair shop that didn't adjust them properly.
Even if you think you were fully or partially responsible, you may still be able to recover -- in full or in part. People often blame themselves or feel guilty when the injury was not the result of anything they did wrong
WARNING: IF A STATE OR COUNTY OR MUNICIPALITY MAY BE LIABLE (such as when a transportation facility operated by governmental unit is responsible for the injury) THERE OFTEN ARE VERY SHORT TIME LIMITS TO GIVE NOTICE OF A CLAIM.
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What is a ‘tort?’
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.
The four elements present in a typical tort lawsuit are:
(1) The existence of a legal duty owed by a person to others
(2) The breach of the duty by one person (negligence)
(3) The breach of the duty being the "proximate cause" of damages suffered by a person
(4) Damages incurred by a person.
Each of the four elements of a tort typically must be present to be compensated.
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What is 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..
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What is ‘negligence’?
A person is negligent when he or she fails to act like the standard "ordinary reasonable person". Of course the critical issue in many cases is just how an "ordinary, reasonable person" was expected to act in the particular situation that caused the injury.
For example, an ordinary, reasonable person can travel down the Interstate, which has a posted speed limit of 65 miles per hour, at 65 miles per hour. However, if dense fog is present, the same ordinary, reasonable person would be expected to reduce his/her speed of travel. Suppose someone plows into your car while she was driving at 55 or 45 or 35? Would that be what the standard "ordinary reasonable person" should have done?
The determination of whether a given person has met his/her "ordinary reasonable person" standard is often a matter that is resolved by a jury after presentation of evidence and argument at trial.
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Can negligence depend on who was doing what?
Yes. Distinctions often are made based upon a person's knowledge, experience and background, i.e. - certified public accountants have a greater standard of care to act with respect to financial data, attorneys have a greater degree of care when acting on behalf of a client, and physicians have a greater degree of care when treating patients than a person who tries to give first aid.
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What is ‘comparative negligence??
Comparative negligence comes into play when it is contended that two or more parties failed to perform at the standard of the "ordinary reasonable person". For example, suppose one person was driving too fast in a patch of dense fog on the highway and hit a car -- but the car that was hit did not have its lights on as it should have.
In a situation where each party has some degree of negligence in causing an accident, the responsibility to the other person(s) is reduced by the others' degree of negligence. For example suppose a jury decides that the driver going too fast in the fog was 60% responsible for the accident, while the driver without vehicle lights on is 40% responsible. If the driver who didn't have his lights on would have recovered $10,000, his recovery would be reduced to $6,000 because of his 40% contributory negligence. Whether the speeding driver would recover anything will depend on state law -- in some states the driver who bears over 50% of the responsibility would recover nothing, not the 40% of his damages.
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What is ‘proximate cause?’
Proximate cause is the initial act which sets off a natural and continuous sequence of events that produces injury. In the absence of the initial act which produces injury, no injury would have resulted. Any time you act, you start a series of natural and continuous events to occur (for example, after swinging your arm with a ball in your hand, you release it and the ball then rolls down a hill).
Responsibility for injury lies with the last negligent act that produces the injury (after the ball rolls down the hill, a stranger picks it up, throws it through a window which breaks the glass, causing the glass to shatter and strike a person who was sitting next to the window, cutting her arm and requiring her to obtain medical treatment). In this example, although you caused the ball to roll down the hill, your act is not the proximate cause of the injury to the lady sitting next to the window, the stranger's act is the proximate cause of the lady's injury and the stranger, not you, should be held responsible for the injury that she suffered.
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What is ‘intervening cause’
Intervening Cause comes between one act (or failure to act) which alters the natural and continuous series of events that follows. When an intervening cause is present, since the natural chain of events have been changed due to the subsequent act of another, the initial actor may be relieved of the responsibility for an injury that is produced. In the example provided for proximate cause, the act of the stranger picking up the ball and throwing it through the window is an intervening cause which relieves you from the responsibility for injury which may have occurred as a result of your act. The responsibility for the injury to the lady is shifted and the stranger's act becomes the proximate cause for the lady's injury.
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How is the amount of damages suffered determined?
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:
(1) medical expenses - such as doctors fees and hospitalization costs
(2) 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
(3) lost wages - wages and earnings which would have been earned by the injured party but for the negligence of the tortfeasor
(4) 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.)
(5) 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.
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How is the value of damages determined?
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.
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Am I responsible for injuries to anyone who comes
onto my property?
Although there are important variations from state to state, typically you are responsible for the personal injury of anyone who comes onto your property, regardless of the reason why that person was on your property. Traditionally, there was a distinction made based upon the reason why a person was on your property - was the person there as an invited guest, was s/he there trying to sell you something, or was the person a trespasser. The traditional degree of duty owed depended upon the person's status or reason why s/he was on your property - the highest degree of care was to invited guests while little or no duty of care was owed to a trespasser.
Traditional distinctions based upon a person's status on your property have given way to a general obligation to all persons entering upon your property. Under this trend, you may be responsible for personal injuries sustained by anyone who is on your property, regardless of status. Thus, some states even will hold you responsible for personal injuries suffered by trespassers who come on your property. It could be possible in some states for you to be held responsible for the personal injury suffered by a burglar who comes on your property.
Further, it should be noted that "spring guns" and other forms of "traps" set up on your property are highly discouraged at law. For example, if you set a trap to catch a burglar entering your back yard, or worse, you set up a gun that is spring loaded to go off if a burglar enters your home, you may be held responsible for all damages suffered, even if the injured party came onto your property to steal from you. The theory of law here is that there may be instances where a third party innocently walks into the trap - a police officer investigating a crime or a fireman coming onto your property to put out a fire - and since innocent third parties should not harmed for trying to help you, the use of spring guns and traps is discouraged by making the person who set up the trap responsible for any harm done.
Many towns and cities have local ordinances which make the adjacent property owner responsible for the care and maintenance of public sidewalks. Under such ordinances, if there is a sidewalk next to your property, you must keep the side clear (such as removing garbage, ice and snow) and in good repair (you must fix cracks and holes in the sidewalk). If you fail to properly maintain the sidewalk, you can be held responsible for the damages suffered by a person who is injured on the sidewalk next to your property.
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How effective is a ‘waiver of liability’?
Many people try to protect themselves by getting everyone they deal with to sign a writing in which others "waive liability" (give up or release) for potential personal injuries. These waivers or releases have become quite common, especially with respect to recreational activities - for example at ski slopes, bicycle and skate rental shops, bungee jump parks, and amusement parks (just to name a few).
Some sports have been found by courts to be inherently dangerous, such as bungee jumping or skydiving. If a state court has determined that a sport is inherently dangerous, the participants in the sport are said to have voluntarily waived their right to recover in the event of personal injury. This is because the sport is generally known to cause injuries and a person participating in an inherently dangerous sport should know the dangers and by participating has "assumed the risk" of injury.
Assumption of risk has been held to prevent the owner of a baseball park or a golf course from being held responsible to an injured party who was hit by a stray ball. This often holds true even without a specific waiver of liability. By going to a ballpark or a golf course courts have generally held that a person has assumed the risk of being hit by a ball at ballparks and golf courses.
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So I am out of luck?
Not necessarily. Even in inherently dangerous sports or even with a signed written waiver of liability, the owner of property or equipment can still be held responsible for personal injuries suffered in some circumstances.
If the owner failed to maintain the property or equipment in a manner suitable for its intended use, the owner could be held responsible for personal injury. (This often depends on the language of the statutes in the state's laws and may also depend on the language in the waiver form.) Courts do not want to allow a reckless owner from getting a "free way out" by using waivers of liability.
Owners of property and equipment must take reasonable steps to assure that their property or equipment is properly maintained and suitable for its intended use. For example, a sky diving company is responsible for the parachutes that it rents, although sky diving may be an inherently dangerous sport, the sky diving company must keep the parachutes that it rents to customers in good condition so that when the customer pulls the cord, the chute opens up.
On the other hand, if an owner has kept his property or equipment in good condition for use by members of the general public, a waiver of liability may preclude his liability for personal injury sustained by an injured party. This is part of the contractual arrangement between the owner and the customer, in exchange for use of the property or equipment at a set price, the customer as part of the bargain is said to knowing waive his/her right to sue in the event that s/he is injured as a result.
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What if the act was intentional as opposed to
negligent - can I still sue?
Typically yes. In an intentional tort, the person wants to cause consequences from his/her act or believes that the consequences of the act are reasonably certain to occur (as opposed to being negligent where the injury was not necessarily intended). Many crimes are not only subject to criminal prosecution and punishment but also give rise to a remedy under civil law.
Examples of intentional torts include:
Assault - the causing of a reasonable apprehension of harm that is likely to occur with the present ability to cause such harm
Battery - harmful or offensive touching of the person of another
Defamation - oral (known as "slander") or written (known as "libel") communication intended to cause a person to be hated, ridiculed, caused to be shunned by others, or injures a person in his/her occupation
False imprisonment - keeping a person in a specific location against his/her will without justification
Intentional infliction of emotional distress - an act which a person does against another with the intent to cause the injury to another. Typically, the act must of that of extreme and outrageous conduct to give rise to compensation to the injured party
In intentional torts, the injured party may not have to prove actual intent. The injured party may prove that the natural consequences of the act would cause injury and therefore the tortfeasor should be held responsible for the harm suffered - regardless of whether the tortfeasor had the actual mense rea (a guilty mind or wrongful purpose). By proving that the damages sustained would be the natural consequence of an act, an injured party may recover for an intentional tort without there being negligence on the part of the tortfeasor (although intentional torts sometimes may be proven though negligence).
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I was bitten by a dog at a rental unit where I was treating an invasion of ants. The landlord let me in without the tenant's permission. I ended up going to the hospital for treatment. Can I sue?
In dog bite cases usually the homeowners insurance will cover the liability for damages to the victim. Where a renter is involved, there may not be coverage for that renter. However, the landlord let you in and surely the building is covered for injuries caused by the negligence of the owner. However, we recommend getting into touch with an attorney from your state to determine what your rights are regarding compensation for your injuries.
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What is a ‘slip and fall’?
A "slip and fall" or "trip and fall" is the generic term for an injury which occurs when someone slips, trips or falls as a result of a dangerous or hazardous condition on someone else's property. It includes falls as a result of water, ice or snow, as well as abrupt changes in flooring, poor lighting, or a hidden hazard, such as a gap or hard to see hole in the ground.
If you are on someone else's property and injure yourself as a result of a dangerous condition on the property, the land owner or business proprietor may be liable for your injuries. If you are a property owner and someone injures himself on your land, you may find yourself legally responsible for his or her injuries.
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I fell down and injured myself on someone else's property. I don't feel well. Should I wait to see if I feel better before doing anything?
No, you should see your primary care physician or another medical doctor, since your injuries may be more severe than you think. You may also want to consult with a personal injury lawyerto determine if you have a claim against the landowner.
You should also be aware that floor or ground conditions may change, and you may need to preserve or record the condition that caused your injury (typically with a photograph or videotape). In addition, every state has a "statute of limitations" which limits the time you have to act. Some states require you to give notice to certain types of landowners, such as municipalities, within as little as 30 to 90 days of the incident. If you do not give the required notice, or sometimes file a claim or lawsuit within the time set by law of the state in which the injury occurred, you lose your ability to recover from the landowner. If your injuries turn out to be more severe than they first appear, you'd be in trouble.
If you have a valid claim against the landowner for your injuries, delay may be fatal to your claim. You should act quickly to evaluate your options.
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What happens if I injured myself at my friend's house?
If your friends are homeowners, they probably have homeowners insurance to protect them if someone is injured on their property. If they are renters, they may have renters insurance, or some type of umbrella coverage, for the same reason. Also, if they are renters, the land owner probably has insurance coverage for claims filed on the property.
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If I pursue a lawsuit against a landowner, what are some of the things that the landowner might argue against me?
As previously indicated, slip and fall cases are difficult to win. If the hazardous condition was temporary (like a water spill), owners will probably argue that the spill occurred so soon before the incident that they could not have prevented it.
You should also expect that the land owner (or the owner's attorney) will argue that you fell because you were inattentive, careless, or even intoxicated at the time. If the land owner (or the owner's attorney) can prove that you were also at fault for your fall, depending upon the state involved, it may reduce or eliminate your ability to recover for your injuries.
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Are movie, theater, and restaurant reviews protected from defamation suits?
A fair critique of a restaurant, movie, TV show, or theater play is not libelous, even though the comments or criticism are disparaging and may result in a loss of business or reputation.
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Are there defenses to defamation?
Establishing the truth is the single most effective defense that can be offered. If the remark is truthful and it "hurts", is embarrassing, or subjects you to ridicule, there is little you can do. Unfortunately, unless the remark is false, you have no recourse.
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Can libel suits be brought by a public figure?
These suits are a bit dicer for the public figure.
A public figure may be an elected or appointed (a politician) or someone who has stepped into a public controversy (e.g., movie stars and TV stars, star athletes). Public figures have a "harder road to toll" than the average person since they must prove that the party defaming them knew the statements were false, made them with actual malice, or was negligent in saying or writing them. Proving these elements makes the chance of a successful lawsuit slim.
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How do homeowners fit regarding property damage?
In homeowner's insurance, there are a variety of coverage which are available to you. There is coverage for your home and its contents (contents coverage is usually 10% of the value of the home) against loss from fire, theft and other perils (or from any cause of damage under an "all-risk" policy, unless the cause is specifically excluded). In addition, there is liability coverage to protect you in case someone is injured on your property. Many policies also provide coverage for your property if it is lost or stolen even if the loss occurs away from the home (for example, if your camera is stolen while you are on vacation, your homeowner's insurance may cover this loss). Most homeowner's insurance exclude losses due to floods and earthquakes - although "riders" or separate coverage for these perils may be obtained.
In determining what Liability Limits you should purchase, you need to consider the amount of exposure that you have. As a general rule, the more property and wealth that you have, the greater your exposure is and the need for higher liability limits for protection against claims from third parties. Often, liability limits are set as a combination of numbers, such as 15/30, which means coverage of loss of up to $15,000 per person and up to $30,000 for all injuries which occur in a single accident. Many states require a minimum amount of third party liability insurance be purchased before a you may drive a vehicle on public roads. This is referred to as the minimum liability limit. Often the minimum liability limit is inadequate to protect all of your property and wealth. Increased limits, such as 100/300 or 300/500 are very common and can be purchased at modest addition cost to you. There is no minimum liability limit for a homeowner's insurance policy, although most lenders require you to carry insurance at least equal to the amount of your outstanding mortgage.
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Can a person be exempt from liability for property damage?
Yes, depending on the circumstances. There are numerous laws which make public entities - such as federal, state, and local governments, immune from tort liability. Employees who are acting within the scope of his/her authority while working for an employer can be relieved of liability by the employer under the doctrine of "respondeat superior" (let the master answer). Under this doctrine, the employer is responsible for the acts or omissions of its employees when the loss or harm occurs while the employee "is on the job" and is performing work that s/he is supposed to be doing. If the employee is acting outside the scope of his/her employment at the time the damage to property occurs, the doctrine of respondeat superior will not insulate him/her from liability to the injured party.
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While driving next to a golf course that had no fencing, my car’s window was cracked by a golf ball. The manager of the course claims no liability and told me that it is the person who hit the ball who is liable. This person is impossible to find. Can I sue the owner of the golf course?
Sure. A golf course owner is generally responsible for designing a course that minimizes the risk players or non-playing bystanders have of being hit by golf balls (e.g., fairways, fences). Or to provide protection (e.g., barrier of trees) where the greatest danger exists and where the occurrence is reasonably foreseeable. It’s foreseeable that a player would hit a ball into the street, and strike a vehicle. Therefore, it would be negligent of the course owner not to protect against such a foreseeable occurrence.
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Suppose the other person’s insurance company offers to settle with me?
Do you know the full extent of your injuries? How long they will last? How difficult the recovery process might be? How much income you will lose, not just in the time you are out of work, but afterwards? How much money is traditionally recoverable by persons who are similarly injured who have legal representation? Probably you know none of these things. But the insurance company knows the answers real well, and will never tell you. You would be negotiating in the blind, without any idea of what you may be entitled to recover. An experienced lawyer knows the answers.
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