Personal Injury Law in a Nutshell

Personal Injury Law is that realm of law relating to bodily injury or death suffered by a person caused by the negligence or intentional act of another. Personal injury law covers a broad spectrum of issues. In legal circles, personal injury law is also known as "tort" law, the French word for "wrong." Personal injury or "tort" law is the body of law that allows one to be compensated in the event that someone's carelessness, recklessness or intentional misconduct injures or damages you.

Accidents are generally decided within the law of negligence. The law of negligence states that all people and businesses have a duty “to act in a reasonable and prudent manner” in their everyday activities. Failure to act in a reasonable and prudent manner may subject the negligent party to damages. Failure to use reasonable care in exercising one’s “duty” is a common basis for most personal injury lawsuits. Negligence is a breach of a duty that the law imposes on everyone. The duty “to act in a reasonable and prudent manner" includes the designer of a product, the treating physician, the airplane mechanic, the automobile driver, the business owner, etc. The laws concerning negligence in Florida are found at http://www.leg.state.fl.us/statutes/ , Chapter 768.

The law of the State where the injury took place generally governs personal injury claims. The laws concerning negligence are similar in each State. Personal Injury cases include civil actions for damages based upon theories of negligence, strict liability, products liability, professional malpractice and intentional torts. Examples of personal injury cases are traffic accidents, animal attacks, tire blowouts, poor medical treatment, elderly abuse, on-the-job injuries, battery, etc.

There are three primary elements in a personal injury case that must be satisfied before it is feasible to file a lawsuit. The first is financial responsibility, the second is liability, and the third is damages.

Financial Responsibility is usually the first element to be considered with any personal injury case. If the defendant is uninsured and without financial means, it is nigh on impossible to collect for damages, with or without an attorney. As one old saying goes, "you can’t squeeze blood from a turnip". There are few attorneys who will spend the time and money litigating a personal injury case without financial return. Therefore, it is imperative to determine the defendant’s insurance coverage and financial assets available before incurring litigation expenses. The legal methods used by attorneys to acquire financial and insurance information are not well known by those outside the legal or financial community. Remember, people who are inexperienced or unfamiliar with personal injury law may not yet have developed the necessary feel for the value of a case, and may not yet be familiar with the many resources available to help evaluate a claim. Attorneys who are experienced in resolving personal injury claims develop the knowledge of factors that influence the value of a claim, such as comparative negligence issues, punitive damage issues and pre-existing medical conditions that may either increase or decrease the value of your claim.

Liability means whoever fails to act in a “reasonable and prudent manner” is legally responsible for the damages caused by his/her unreasonable actions or inactions. Examples: running a stop sign, manufacturing bad tires, improper jet-engine maintenance, inept medical treatment, elderly abuse, failing to warn, etc.…

Negligence follows the rule of "comparative fault". This means, for example, if you sue someone for negligence and the jury found the other party 75% at fault and you 25% at fault, then the other party is liable to you for 75% of your legal damages. In other words, the amount of total damages is reduced by the percentage of your own fault. Just saying that someone caused an injury isn't enough – it has to be proven, and it has to meet the legal requirements to establish liability.

This legal conclusion that someone is responsible for injuries suffered by another is far more complicated than just reading a traffic accident report. It may be necessary to establish liability from many different entities involved directly or indirectly in an incident. For example, it might involve proof that one negligent person was driving a vehicle, proof that a second person owned the vehicle and proof that a third person employed the driver. Establishing liability is every bit as important as establishing the value of damages suffered by the injured person. In short, you cannot collect damages until you prove liability.

Damages are divided into five (5) legal categories: compensatory, general, property, loss of consortium and punitive. The value of each damage and knowing what your cumulative or total claim is worth is a most difficult challenge for the private individual to appreciate. Insurance adjusters and claim agents know this and consistently settle cases with non-knowledgeable individuals for less than reasonable value. Remember, insurance adjusters and claim agents are experts employed for the sole purpose of settling insurance claims for as little money as possible. Non-knowledgeable individuals are at a great disadvantage with no real idea what their claim is worth or how to start bargaining.

• “Compensatory damages” measures the actual dollar-value losses for such things as present and future medical expenses, lost income, loss of future earning capacity, etc… Compensatory damages are tangible damages relatively easy to measure. You have medical records and employment records to verify your medical expenses and loss of income resulting from your injuries and incapacitation.
• “General damages”, better known as "pain and suffering" damages, include the emotional trauma suffered from physical injuries and include pain, humiliation, diminished capacity to lead a normal life, etc… Pain and suffering are intangible damages and are much more difficult to measure. How do you measure the subjective amount of pain a person experiences? We know people pay an anesthesiologist at least $300 to be free from pain during a 30 minute operation. The best way to establish general damages is to keep a daily log of the pain and emotional distress you experience during your period of recovery.
• “Property damages” measures the dollar-value loss suffered to the property of the injured party, it includes the cost of a rental vehicle. Be aware of the difference between replacement value and depreciated value in your policy. Property damage claims may be resolved through your own insurance company but you will be responsible for the policy deductible. You may also file a property damage claim with the negligent driver’s insurance company when you file your personal injury claim. Get repair estimates from two or more repair shops. Claim agents rarely, if ever, offer you the fair market value of your property. Expect a tough bargaining process with the insurance adjuster. One example, numerous adjusters realize you may need your auto replaced as soon as possible and will deliberately delay, coercing many into settling quickly for less.
• “Loss of consortium ” is an old English law term referring to the loss of a spouse’s services which include housekeeper, cook, baby sitter, home repairs, washing, yard work, ironing, shopping, sexual partner and any other types of services customarily rendered by the injured spouse. In the event you are unable to perform your customary services and it becomes necessary to employ a maid, yard or pool person, etc… whom you have not before employed, you must keep all evidence of payments (receipts, checks, invoices) to prove these damages.
• “Punitive damages” are damages designed to punish a defendant whose behavior is especially egregious. Punitive damage claims in many States include child abuse, abuse of the elderly and the developmentally disabled. In all States a person may be held liable for punitive damages if he/she is personally guilty of intentional misconduct or gross negligence. Intentional misconduct means that the defendant had actual knowledge of the wrongfulness of the conduct and the high probability that injury would result. Gross negligence means that the defendant's conduct was so reckless in care that it constituted a conscious disregard to the rights of persons exposed to such conduct. In the case of an employer, or corporation, punitive damages may be imposed for the conduct of an employee if the conduct of the employee meets the above criteria and the employer or corporation, knowingly participates, condones or consents in such conduct by failing to correct after knowledge.

If you are injured because of another’s negligence, carelessness, recklessness or intentional misconduct, it is recommended to consider the following:

• Acquire name, address, phone number and statement of any witness or party.
• Acquire detailed photos of the location and injuries.
• If possible, consult someone knowledgeable before giving any statements, especially a statement to the other side’s insurance carrier.
• Keep a daily log of your pain and mental anguish experienced.
• If possible try and preserve the evidence other than photos.

The vast majority of personal injury cases are resolved through negotiation or mediation. If you wish to try and evaluate your own claim one valuable resource available can be found in most legal libraries. “Personal Injury Evaluations” and other similar publications track and classify personal injury verdicts and settlements throughout the United States. If you want a better understanding as to a claim’s value, compare your case with similar cases through out the country. Such research will give you an understanding as to the range of damages for similar claims. Knowing the range of values for damages in similar cases will assist you in your dealings with insensitive claim adjusters. Other available resources helping with evaluation would be the internet or contacting this office for assistance.

This outline gives a summary of personal injury law in Florida. There are many factors that would affect the timing and approach to personal injury proceedings. There are alternative ways to resolve your injury claims, ranging from an inexpensive consultation, to mediation, to litigation. Many cases are resolved with a demand letter from an attorney. For specific information directed to your situation please contact this office at your convenience.