• Personal Injury Law Necessary Elements

    Personal Injury Law

    Wrongful conduct that causes a person physical injury can give rise to a legal claim for monetary relief. Such a claim is usually governed by tort law, which is a body of rules and doctrines that determine whether a person is entitled to monetary relief for harm arising from another’s conduct. A tort is wrongful conduct that causes harm to another. There are two major types of conduct that cause personal injury: harm caused by intentional bad acts, and harm caused by negligence. Claims against persons whose conduct is intentional are relatively easy to make out after intent has been proven. If the conduct was negligent then a plaintiff must prove that the defendant had a legal duty to the plaintiff, that the duty was breached, that the breach caused the harm, and that there was an actual harm. A defendant may lessen their liability by proving that the plaintiff’s conduct was also negligent and that such negligence contributed to the harm they suffered.

    An intentional tort is conduct that the actor either intended to cause a harm or knew to a substantial certainty that their conduct would result in a harm. Examples of intentional torts include battery, assault (threatened battery), false imprisonment, and theft. If a person commits any of these acts they are generally liable for any resulting physical harm, regardless of whether they intended to cause such harm or not. For instance, let’s say that A batters B by shoving him, then B trips backwards, falls into the path of an oncoming car, and is subsequently hit by said car. Even if A did not intend for B to end up in the path of the vehicle, A is liable for both the harm from the shoving and the harm caused by the car. This kind of liability stretches out to all of the direct consequences of the intentional tort– whether they were foreseeable or not. For instance, if the driver of the car mentioned above swerves to avoid B but hits C, then A is likely liable for the harm to C.

    A personal injury claim can also be made where an actor has failed to conduct themselves reasonably under the circumstances, and that such failure has caused harm to the plaintiff. This is negligence. There are five elements to making out a claim of liability for negligence:

    1) Duty,
    2) Breach,
    3) Cause-in-fact,
    4) Proximate Cause, and
    5) Harm

    It is worth noting here the difference between negligence and liability. Negligence occurs when an actor has a duty and they breach that duty. Liability stems from finding a causal connection between the negligence and the harm suffered by the plaintiff. It is possible that an actor can be found negligent but not liable, but—barring certain exceptions—if a person is not negligent they cannot be liable. Elements 1 & 2 underpin negligence, while elements 3, 4, & 5 underpin liability.

    The first element is proof of a duty. A duty is a legal obligation that one person owes another. Whether a duty exists depends of the relationship between the parties involved in the occurrence or event giving rise to the harm. For instance, there are certain specific duties a physician has to their patient; parents have duties to their children; employers have duties to their employees. The expected conduct that stems from the duty is called the standard of care. There are many varied duties, and an equal number of exceptions; however, in general, members of society owe a duty to act reasonably to avoid causing harm to others.

    A person is negligent when they breach their duty to another. In most personal injury claims the standard of care is to act as a reasonably prudent person under the circumstances, i.e. to avoid creating an unreasonable risk of harm. Unreasonable risk-taking—or the failure to avoid it—is conduct that a reasonable person could foresee resulting in harm. In most cases whether a person was acting prudently or reasonably is a question left to the jury. This determination is guided by the characteristics of the allegedly negligent actor and the surrounding circumstances.

    A reasonable person will act to avoid foreseeable harms. The foreseeability of the harms includes whatever risks are inherent in the conduct. When certain behaviors are risky, but such behavior is necessary or desirable, the reasonability of the conduct is determined by assessing the probability of the harm, the gravity of the harm, and the burden of mitigating or eliminating the risk. Again, this inquiry is highly fact sensitive.

    After a defendant has been deemed negligent by breaching their duty, a plaintiff must next prove that the defendant’s conduct was the cause of their harm. There are two stages of finding causation: cause-in-fact, and proximate cause. Negligent behavior is the cause-in-fact if but-for the actor’s conduct the harm would not have occurred. The closer negligence comes to this but-for causation, the more likely liability will be imposed as a matter of law.

    There are several key questions that can be asked to determine whether the conduct was the cause-in-fact. First, and most importantly, the negligent conduct must actually be capable of causing the claimed harm. For instance, slipping on a negligently wet floor is highly unlikely to cause cancer. Second, if the harm would have occurred even without the negligent conduct of the defendant then causation is less likely to be found. It is also relevant whether there are other actors whose conduct contributed to the harm. Conduct by a third party that breaks the causal chain can limit, or even negate the liability of the defendant.

    Proximate cause limits liability to those physical harms that result from the risks that made the actor’s conduct tortious. There is only liability for harm that is foreseeable, i.e. harm that is within the bundle of risks associated with the conduct. The more outrageous the conduct, the greater the bundle of risks. The manner in which the harm occurs is irrelevant if the harm was within the bundle of risks. For instance, driving while blindfolded creates a risk of killing someone. If you hit somebody with your car and they die from complications on the operating table, you are liable even though there was another causal factor in their death.

    Harm is the final element in any negligence action. There must be a tangible harm. Under a personal injury action tangible harms are fairly easy to make out. The value of the pain and suffering, the value of lost usage of body parts, lost wages, etc…. Generally speaking, a jury will decide what the award will be, though the court has some discretion to alter the verdict on damages.

    A defendant may mitigate their own liability by proving that the plaintiff was comparatively negligent. This defense requires that the defendant prove their own case of negligence against the plaintiff. The amount that liability will be limited is dependent upon the jurisdiction. Some states follow the ‘pure’ comparative negligence doctrine, where the plaintiff has their damages reduced by the percentage that they are at fault. For instance, if a person suffers $100,000 in damages, but are 40% responsible for their harm then they will only be awarded $60,000. Some states follow a ‘modified’ comparative negligence model: if the plaintiff’s negligence was equal to or greater than the negligence of the defendant then the plaintiff will recover nothing.
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