What is a Tort (a/k/a personal injury claim)?
A tort is private or civil wrong or injury (other than breach of contract) for which an injured party may seek compensation for their damages. Individuals who have sustained damages as a result of another person’s (or business’s) wrongful conduct may seek compensation for their economic (lost wages, medical bills, etc.) and non-economic damages (pain, suffering, disability, etc.) Examples of common types of cases that fall within the definition of a tort are: automobile accidents, medical malpractice, defective products, slip and falls, defective premises, boating accidents, nursing home negligence, libel, slander, professional negligence, etc.
To make recovery an injured party must generally prove: (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; and (4) the damages incurred by a person.
What is comparative fault?
In most states the law will allow the trier-of-fact (judge or jury) to apportion fault among the parties to a tort action. For example, suppose that one person is driving in excess of the posted speed limit, but the other person that was hit entered the freeway without signaling. In this situation where each party has some degree of fault in causing an accident, the responsibility to the other person(s) is reduced by the others’ degree of fault. Suppose the jury determined that the person speeding was 80% at fault, but the person that failed to signal while merging on to the freeway was 20% at fault. The person who failed to signal would have his/her recovery reduced by 20%.
How is the amount of damages determined?
An injured party is entitled to recover their actual damages from the tortfeasors (a “tortfeasor” is the person who breached his/her duty to the injured party). Actual damages include both economic and non-economic damages. In some special cases a party may recover exemplary damages (a/k/a punitive damages).
“Economic damages” are intended to compensate the injured party for their out-of-pocket expenses. Some examples of economic damages that a person may seek to recover from the tortfeasors include: (1) past and future medical expenses for doctors, hospitals, therapists, medication and medical devices; (2) loss of past and future earning capacity; and, (3) property damage.
“Non-economic damages” are awarded to compensate the injured party for their pain, suffering and disability. In determining the amount of non-economic damages the injured party’s attorney will rely upon their professional experience, jury verdicts for similar cases, and reported settlements for similar cases. The amount of compensation an injured party would recover for his/her non-economic damages is directly related to the significance of the injury. In other words, a permanent injury would warrant a larger award for non-economic damages than an injury which fully resolves itself after a few months.
“Exemplary damages” are awarded in circumstances where a party can prove that the tortfeasors acted in a reckless or irresponsible behavior that showed a disregard for the life and safety of the injured party. The purpose of an award of exemplary damages is 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. Expert witnesses that are commonly used are medical professionals, economists, and accident reconstruction experts.
How much are your attorney fees for a tort case?
There is no charge for the initial consultation. If our law firm undertakes representation of an injured party it is generally on a contingent fee basis. Under a contingent fee agreement you are under no obligation to pay us any sum for our professional services unless recovery is made on your behalf. If we are able to recover money on your behalf then we are entitled to a specific percentage of the amount recovered. The specific percentage depends upon a number of factors and would be discussed during the initial consultation. Further, the percentage would be set forth in a written contingent fee agreement executed by the client and the attorney.
What guidelines should I follow when another person’s insurance company calls me to talk about my injuries?
After you notify others that you have been hurt in an accident and intend to file an injury claim, you may receive phone calls from one or more insurance companies that want to talk to you about what happened. These first conversations will most likely occur before you file your claim for compensation or hire an attorney. If that is the case, you should abide by the following principles:
- remain calm and polite
- identify the person you’re speaking with, the company he or she represents and the person who is insured
- give limited personal information (your name, address and phone number is sufficient)
- donot give details about the accident or your injuries
- resist any push to settle your claim immediately
- set limits on further phone contact
- do not give a written or recorded statement of how the accident occurred or the type of injuries you sustained; and
- take notes about any important information you received during the phone call, as well as whatever information you gave to or requests you made of the insurance adjuster
Remembering these important rules will help you maintain your chances of receiving a good settlement for your injury claim. If you have already hired an attorney when you are contacted by an insurance adjuster, notify your attorney and let the attorney handle all discussions with the insurance company.
Should you release your medical records to the tortfeasor’s insurance adjuster?
Do not execute any type of release of information document without first consulting an attorney. A medical records release should only be signed under limited circumstances and after consulting with a qualified personal injury trial lawyer. If the wrong information gets into the insurance adjuster’s hands, it could hurt your case.
If I file a personal injury claim, will I have to go to court?
Statistics show that a vast majority of all cases settle prior to trial. Some cases can be resolved without the filing of a lawsuit. Other cases might require the filing of a lawsuit in order to advance your claim and put you in the best position to maximize your recovery. Some cases do require a formal trial proceeding; however, in either situation, hiring a law firm with experience in handling personal injury cases is critical.
If I don’t feel injured after an automobile accident, do I have to see a doctor?
Both you and your passengers should consider seeing a doctor after an accident. The doctor may recognize injuries, sometimes serious, that are not apparent to you. The charges for a doctor visit and medical treatment may be covered by your insurance (automobile and/or health insurance). It is not recommended that you settle claims from an accident until a doctor has seen you and advised you about the extent of your injuries.
What if I believe the accident I was in was at least partly my fault?
Assessment of fault is a complicated matter that most individuals do not have sufficient ability to assess on their own. Accepting blame and apologizing to another driver may be used as evidence against you at trial. Leave it to your attorney, a judge or jury to decide who is at fault.
What types of claims involve premises liability?
Premises liability encompasses a variety of claims, including but not limited to “slip and falls” and injuries sustained in elevators, building corridors, and outside on private or public land. We represent individuals who have been injured while on another person’s or business’s land.
What is a product liability claim?
While the laws applicable to defective product cases vary from state to state, there are three legal theories common to most jurisdictions which may form the basis of a product liability case:
- Manufacturing defects. In these cases the injury was caused as a result of defect in the manufacturing process. An example would be a bicycle which was built with a small crack in the frame, which breaks when used, causing an injury to the rider.
- Design defects. In these cases the injury was caused by a poor design (even though there may be no defect in the individual product itself). A common example would be a snow blower that was built without a proper safety or protection device, and the user of the snow blower injured their arm while using the machine.
- Failure to warn, or “inadequate warning”. These cases refer to injuries caused as a result of a product known to be potentially dangerous which was sold without a proper warning to the consumer. An example would be an over the counter drug sold without a warning of the hazards of use with certain other drugs, or excessive consumption, or possible side effects from its use.