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Personal Injury Law Personal injury law encompasses all different types of civil proceedings where an individual seeks monetary compensation for harm caused by the failure to act or the breach of duty of another party or person(s). The victim of a personal injury claim is a plaintiff and the person who caused the injury or damage is known as the tortfeasor or the defendant. Personal injury cases can include a wide range of claims, but the most common include: car accidents, medical malpractice claims, workers' compensation, premise liability, slips and falls, assault and battery, bicycle accidents and motorcycle accidents. Personal injury law is considered part of tort law and can more broadly include any cases which deal with intentional torts, negligence, and torts of strict liability.

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Although the laws for personal injury follow some general principles, different types of claims and states have different regulations and laws. Visit our state law pages for personal injury law in your state.

In This Section:

• The History of Tort Law
• Preponderance of Evidence
• Damages Awarded in an Injury Case
• Contributory Negligence
• Comparative Negligence
• Statutes of Limitations
• Strict Liability

History of the Tort Law

The basic principles of tort law were adopted from the English common law system in the eighteenth century and have evolved over the last several hundred years. Our legislative and judicial system has continued to modify, update and publish tort laws.

Today, our tort laws impact every aspect of life in America. Businesses, who are harmed by other competitors in a deceptive or unlawful way, can turn to tort law for legal remedy and compensation. Tort law also protects employees in the workplace, and regulates environmental concerns, protecting our natural resources such as water, air and land.

Tort laws provide injured parties with access to a legal system which provides economic compensation for injuries which are caused by the actions or inactions of another party. The goal of tort law is to hold the responsible party accountable for their illegal or negligent actions. Not all injuries are considered torts. To hold others accountable for their negligent actions which cause loss or injury, the plaintiff must prove certain elements of their personal injury claim. Under tort law, there are three different types of torts- torts of strict liability, intentional torts, and torts of negligence. Personal injury claims, except product liability claims which are strict liability claims, are generally won by proving the defendant was negligent and caused the defendant injury or loss.

Intentional torts or intentional personal injury claims can also be won by proving the defendant intended to harm the plaintiff. These actions are generally criminal, although a civil action can also be filed in civil court, and can include defamation, battery, assault, libel and fraud.

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Preponderance of Evidence and Personal Injury Law

To successfully argue a personal injury claim, the plaintiff must meet certain criteria. Hiring a personal injury lawyer may be critical to the plaintiff's success and may help establish liability and damages for the injury claim.

To win a personal injury claim the plaintiff has the burden of proof and must provide a "preponderance of evidence" that they were injured from the negligence of the defendant. Unlike a criminal trial where the case must be proven "beyond a reasonable doubt" the civil claim may be won if the case is more than likely to be a true account of the events. This may be done by proving the following elements of the injury claim:

1. The defendant had a standard duty of care toward you, the plaintiff.
2. The defendant breached their duty of care by either their action or inaction.
3. The defendant's negligence was the proximate cause of the plaintiff's injuries. Proving this element of the personal injury claim may require expert testimony. Experts may be able to testify that the plaintiff's injuries were the result of the defendant's actions (this is especially important in a medical malpractice case).
4. The plaintiff must prove they have suffered loss or damages from their personal injuries. Damages can be economic such as medical costs or loss of wages or non-economic such as loss of companionship or pain and suffering.

All personal injury claims must be filed within a specified time called the statute of limitations, which varies by state. The statute of limitations may begin at the time of the incident or the time of discovery. State laws for filing a claim can be as little as a few months to several years.

Contact a personal injury attorney immediately after your injury to avoid losing your legal right to file a personal injury claim.

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Damages Awarded in a Personal Injury case

• Compensatory - Compensatory damages can be awarded by a jury or a judge and are intended to replace what the plaintiff has lost or to restore them to their original financial position. Compensatory damages can include lost wages, damaged property replacement, and medical costs.
• Punitive - Punitive damages are monetary compensation which exceeds the loss suffered by the plaintiff and is intended to punish the defendant for their actions. Punitive damages are often criticized by insurance companies and other business groups because they have increased the cost of business. Punitive damages may not be allowed for all personal injury claims.
• Nominal - Nominal damages may be awarded by the court when the plaintiff has suffered legal injustice, but they did not suffer financial loss. Nominal damages are generally very low but may be important to prove the plaintiff was right, vindicate the plaintiff or allow for punitive damages to be awarded.
• General - General damages can be paid for losses that lack a quantifiable financial value. General damages can be difficult to calculate but can include: pain and suffering, disfigurement, mental anguish, diminished mobility and loss of companionship.

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Statutes of Limitations and Negligence

*see the state law section of this page for specific laws regarding negligence and statute of limitations for your state.

The information provided so far has specifically applied to the plaintiffs in a personal injury claim, but what if you have had a personal injury claim file against you? There are a variety of common defenses that can be used to fight a personal injury claim including: contributory negligence, comparative negligence, assumption of risk, and statute of limitations. Personal injury defense lawyers can review all common defenses with you and make sure your interests are represented in court.

• Contributory Negligence - Historically, many states used contributory negligence as a defense against tort claims. States that currently use contributory negligence only allow a plaintiff to recover damages if they did not contribute to the incident which caused their injuries. This method of allocating damages in a personal injury claim has been replaced in most states by a comparative negligence system.
• Comparative Negligence - States which use a comparative negligent system allow plaintiffs to recover damages or compensation in an injury claim even if they are partially responsible for their injuries. Different jurisdictions have different types of comparative negligent systems (pure comparative negligence, modified comparative negligence - 51% rule, or modified comparative negligence - 50% rule) which determine how the compensation is apportioned between the parties.
• Assumption of Risk - Assumption of risk defense requires the defendant to prove that the plaintiff knew of a dangerous condition and voluntarily assumed or exposed themselves to the risk. This is considered an affirmative defense which must be proven by the defendant. There are three basic situations where this defense can apply: 1) the plaintiff consented in advance to relieve the defendant of their obligation of conduct or duty toward them; 2) the plaintiff voluntarily entered into an agreement (either tacitly or implicitly) with the defendant, with the understanding that the defendant would not provide safety from the risk; 3) the plaintiff was aware of the risk created by a defendant's negligence but voluntarily assented to the situation and freed the defendant of their legal obligations or "duty of care".
• Statute of Limitations - The statute of limitations is the length of time for filing personal injury lawsuits. The statute of limitations can vary by state and by the type of personal injury claim. For example, New York allows claimants who are injured in a medical malpractice claim to file their medical malpractice claim within 3 years from the date of injury (exceptions apply for the discovery rule). Texas, however, requires claimants to file a medical malpractice claim within 2 years (discovery rule applies but the no claim can be filed more than 10 years after the date of injury). Car accident claims must be filed in the state of Texas within 2 years from the date of the injury. The statute of limitations for a California car accident is also 2 years from the date of injury or if the injury is not immediately discovered, two years from the date of discovery.

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More on Strict Liability and Torts Strict Liability: Strict liability usually applies to a group of laws known as product liability laws. Product liability laws have been developed to allow a person who has been injured by a product to seek compensation from the product manufacturer, manufacturer of parts, wholesaler or retailer who sold the product. You may not have to prove that a product manufacturer was negligent. These types of laws are known as strict liability laws and you only need to prove that the product was designed or manufactured in a way that made it dangerous when it was used in its intended way. Tort of Negligence: Negligence is conduct that does not meet the behavior required from a reasonable person to protect others from harm. If someone is negligent and injuries result, then the injured party may seek compensation. For example, if a business owner does not label a wet floor and you fall and injure your knee, he may be responsible for your injury for failing to post adequate safety warnings. Negligence is a tort and a civil violation. Intentional Tort: An intentional tort is a tort that results from an intentional act which causes a civil wrong. You may be able to file a civil personal injury lawsuit in addition to filing a criminal lawsuit. Common intentional torts are: assault and battery, slander, false imprisonment, trespassing on land and inflicting emotional distress.