Elements of a Personal Injury Claim

When you suffer injury of a personal, emotional or other nature as a result of another person’s negligence or deliberate act, that gives rise to a claim legally known as a personal injury claim. In such a case, you are entitled to compensation for the medical expenses, loss of wages and such other economic losses suffered, as well as monetary damages against the person who caused your injury. Depending on the circumstances of your case, you may even be awarded punitive damages. Wrongful acts that injure another are known as ‘torts’ and the person committing the act is known as a ‘tortfeasor’.

There are a number of insurance policies that exist to cover personal injury claims. When you suffer injury, your health insurance may pay your medical bills. However, depending on the manner in which you were injured, and the insurance policy that you hold, your automobile insurance may also pay your medical bills. In case of your injury being caused by another person or company, then it is their liability insurance that should compensate you for your loss and damage. Other forms of insurance include business insurance, malpractice insurance, homeowners insurance and umbrella insurance coverage.

The injured party in a personal injury claim is referred to as a plaintiff, while the at-fault party is known as a defendant. In order to succeed in a personal injury claim, the plaintiff will need to prove the following against the defendant:

  1. Duty. The law imposes on everyone what is called a duty of care to ensure that their actions do not cause other people to suffer injury and damage. Thus the first element you have to establish is that the defendant owed you a duty of care. For example, when driving a motor vehicle, you owe a duty of care to all the other drivers as well as the cyclists and pedestrians using the road. Similarly, owners of houses and properties owe a duty to ensure their premises are safe, while business proprietors owe a duty to sell products that are safe.
  2. Breach. The second element you have to establish is that the person or company that owed you that duty of care breached it by not exercising reasonable care to you. That means they acted in a negligent manner.
  3. Causation. You must then be able to show that it is as an immediate result of the defendant’s negligent act that you suffered harm.
  4. Damages. You must finally be able to show that you actually suffered injury. This could be either physical, emotional or such other loss.

While injury law provides you with the means to recover as against the person or company that injured you, you must be keen as the law requires you to prove all the above elements in order to succeed in a personal injury claim.

Types of Personal Injury Claims

Personal injury claims are classified into different categories depending on the manner in which the injury arose. The most common ones are the following:

Motor Vehicle Accidents. This arises where the injury and property damage is caused as a result of a car accident involving two or more cars where the driver of one was at fault. In such a case, the claim is made against the liability insurance carrier of the driver at-fault driver. Where he does not have insurance or where such driver cannot be traced, such as in case of a hit and run driver, then you can recover your loss from your own uninsured motorist coverage. This will however depend on whether you elected that option as part of your automobile insurance coverage.

Pedestrian/Bicycle Accidents. This arises where the accident involves a car and either a cyclist or a pedestrian. In such a case, if the driver of the car violated the rules of the road and breached the duty of care owed to you, you will be entitled to recover in a personal injury claim against the insurance of the negligent driver.

Premises Liability. As mentioned earlier, owners of property and business premises have a duty to keep their premises safe, and where this duty is breached and you suffer loss and damage as a result, then you can bring a premises liability claim against such owner. One of the common cases where such liability arises is slip and fall accidents as a result of a wet slick tile floor or faulty handrail. To prove this kind of liability, the law requires you to show that you were being careful at the time and watching where you were going so as to avoid open and obvious hazards. This area is discussed in greater in our Premises Liability section.

Work Related Accidents. Instances arise where as an employee you are injured either at your place of employment or, in some cases, while “on call”. Unlike the other forms of accidents where you have to prove that the employer was negligent, worker’s compensation insurance does not require you to show any wrongdoing or negligence on the part of the employer. All you have to prove to receive compensation is that you were injured on the job. We have discussed this area in greater detail in our Worker’s Compensation section.

Medical Malpractice. This type of personal injury claims arises where you have been injured as a result of the professional negligence on the part of a doctor or healthcare provider. In such a case, you have to call an expert witness, such as a doctor who practices in the same field, who has to testify on your behalf that the doctor acted in breach of a professional care standard required in that field. This area has been affected by the Tort reform legislation of 2005 which has increased the burden the injured party has to prove in filing such a case, and further placed a cap on the damages such an injured party can recover for pain and suffering.

Nursing Home Liability. A personal injury claim may arise where an old person residing in a nursing home suffers as a result of understaffing and poor case, or even abuse, at the nursing home. That entitles the person to recover in a liability claim against the nursing home.

Product Liability. This kind of liability arises where you suffer injury as a result of a product you purchased being defective. In certain cases, strict liability will be imposed against the company whereby as the injured party you do not have to show they were negligent, but merely that the product was defective and as a result you suffered injury.

Animal Attacks. Where a vicious dog or another pet bites a person and causes injury, then that person is entitled to recover against the owner of the dog or pet. Such an owner will especially be liable where a county has a leash law requirement and the owner does not keep the dog on a leash, or where he knows the dog or other pet to be aggressive and does not fence it in or keep it in a leash. The owner would be liable to compensate you for the injury suffered.

Intentional Torts. These are torts that arise not as a result of another person’s negligence, but out of a deliberate act on their part that causes you to suffer distress, emotional injury or loss of reputation. Some of these are:

  1. libel – where false statements are about you are published
  2. slander – where false verbal statements are made against you
  3. false arrest – where one accuses you falsely causing your arrest.
  4. false imprisonment – holding you in a place against your will.
  5. malicious prosecution – presenting false evidence for you to be prosecuted.
  6. intentional infliction of emotional distress – where the defendant goes beyond the bounds of decency by their outrageous and extreme conduct thus causing you emotional distress.


Statute of Limitations

The law in certain cases limits the time within which you must bring a claim arising from a tort being committed against you. In the case of personal injury, the requirement is that such claims must be brought within two (2) years from the date the injury happened. This period may even be shorter in some specified cases. For instance, where you are injured by the fault of a city or city employee, then you must bring your claim within 6 months. Similarly, where the fault was on the part of a country or the sate then your claim must be brought within one year. The law also requires you to give a proper written notice to the government in such a case before filing your claim.

There are however some exceptions to this rule. This is in cases where the injured or at-fault party is deceased and thus the claim could not be brought in time, where fraud is involved and thus relevant information could not be obtained in time, and where the injury continues for a while, such as when a foreign object is left in your body during surgery.

We have provided this information as a professional courtesy and since our office does not represent you, the information does not constitute legal advice. We would advise that if you have suffered an injury, then do get proper legal counsel as to when your personal injury claim will expire.


Damages

When you bring a personal injury claim against the at-fault party you may be able to recover damages in the form of all medical expenses as well as future medical expenses; pain and suffering as well as future pain and suffering; lost wages together with future lost wages; and, where applicable, loss of consortium. These damages are awarded at the conclusion of the case either through settlement or a jury verdict and are in a lump sum.  Once this final award has been determined, the law bars you from seeking additional damages in future from the same claim.

Medical Expenses. These expenses are computed from actual bills incurred, while future medical expenses are established through an expert’s testimony on the how much long term care is likely to cost. You are entitled to be compensated against these expenses even where your health care insurance paid the medical bills. In such a case however, the insurer can seek your reimbursement of the bills the insurer paid.

Pain and suffering. While pain and suffering cannot be assessed in monetary terms, courts will normally award you compensation for the pain and suffering, both actual and future, suffered as a result of the injury.

Lost wages. This kind of damage seeks to compensate you for the wages lost as a result of being unable to work due to the injury suffered. This applies even where your employer compensated you through vacation or sick leave. The law also entitles you to recover compensation of lost future earnings if the injury causes you to be unable to return either to the same kind of work or at all.

Loss of consortium. In cases where the injury occurred to a married person, your spouse is entitled to recover damages for the loss of affection and marital help for the period that you were injured. This claim however is not available to children.

Punitive Damages. This kind of damages will be awarded where the court finds the defendant’s conduct to have been so reckless and wanton that it deems the same to warrant punishment. This will also apply to a case where an accident is caused by a drunk driver. Due to its punitive nature, the law requires you to adduce clear and convincing evidence to obtain this type of damages.

Statutory Caps on Damages. The Tort Reform Legislation of 2005 placed $350,000 cap on non-economic damages per provider in all medical liability claims.  It also placed a $250,000 cap on punitive damages save in cases where the defendant was under influence of drugs or alcohol or acted with specific intent to harm. In product liability claims, seventy-five of the punitive damages awarded goes to the State of Georgia treasury.


Defenses to Personal Injury Claims

Contributory Negligence. Where the plaintiff’s own negligence caused his injury, or where he could have reasonably avoided the defendant’s negligence but failed to, then the amount of damages he can recover is reduced accordingly. The plaintiff cannot however recover where his own negligence was the immediate cause of the injury or where he could have clearly avoided the defendant’s negligence.

Comparative Negligence. Courts sometimes weigh the contribution both the plaintiff and the defendant made to the injury suffered by the plaintiff. Consequently the plaintiff’s award is reduced to the level of his contribution to his own injury. Where the plaintiff’s contribution equals that of or exceeds the defendant’s, then he cannot recover in Georgia.   For instance, where the jury finds that the plaintiff contributed 10% to his injury, then his award will be reduced accordingly. However, if he contributed 50% or more, then he cannot recover.

Avoidance of the Consequences. Where it was within the plaintiff’s power to avoid the injury, for example by using safety equipment to avoid the effect of dangerous fumes, then he cannot recover.

Assumption of the Risk. Again, where the plaintiff voluntarily and knowingly engages in a hazardous activity while aware of the risk posed to him, then he cannot recover if he suffers damage as a result thereof.

Sovereign Immunity. In some cases, the law protects cities, counties, states and the federal government from claims of negligence arising out of performing their governmental duties. However, the Tort Claims Act allows certain claims to be brought against state and the federal government subject to meeting the procedural requirements. Similar statutes allow one to sue cities and counties but only up to specified liability insurance limits.

Product Misuse. Where a plaintiff causes a substantial change to or uses a product outside its normal use, then the manufacturer may not be liable for any injury suffered by the plaintiff as a result of such product misuse.

Statutes of Repose. This applies to restrict actions being commenced where the wrongful action arose in the distant past, even if the injury was only caused recently.

Legal Representation is Critical

While your insurer will normally provide you with defense counsel, you will certainly require legal representation to pursue a personal injury claim. For a free initial consultation on your case, please contact us here.

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