What Is Personal Injury Law?
Practical insights on pursuing a claim for personal injuriesBy Super Lawyers staff | Reviewed by Canaan Suitt, J.D. | Last updated on February 14, 2024 Featuring practical insights from contributing attorney Lauren E. Davis
Use these links to jump to different sections:
- What Is Personal Injury Law?
- What Do I Have to Prove in a Personal Injury Claim?
- What Are Strict Liability Claims?
- What Kinds of Evidence Help Prove a Personal Injury Claim?
- How Do I Know if It’s Worth Pursuing My Personal Injury Claim?
- What Are Some Potential Red Flags in Pursuing a Personal Injury Claim?
- When Should I Contact a Personal Injury Lawyer, and Is It Worth It?
- How Do Attorney’s Fees Work in Personal Injury Cases?
- Finding the Right Attorney for Your Needs
Personal injury law allows you to get compensation for injuries caused by someone’s intentional or careless actions. The harm can be physical injuries or property damage, and a successful personal injury lawsuit can help cover stressful costs like medical bills.
Whether you go to trial or reach an out-of-court settlement, it’s helpful to understand some of the key concepts in personal injury cases. And in all personal injury claims, it’s beneficial to speak with an experienced lawyer to help you evaluate your case. The following is designed to help you understand the basics of common personal injury cases so you can feel confident seeking legal advice from a personal injury attorney.
What Is Personal Injury Law?
Personal injury is a type of tort law, which concerns civil liability for wrongful acts. The goal is to compensate individuals who have been harmed by other’s actions. It’s different from criminal law, in which the state seeks to punish individuals who have committed criminal acts.
In real life, personal injury cases can arise from anything from slip and fall accidents, motor vehicle accidents, dog bites, or medical malpractice. Personal injury laws vary widely by state, but some principles generally apply. To succeed in most cases, you have to prove that the other party was negligent.
What Do I Have to Prove in a Personal Injury Claim?
If you bring a civil lawsuit for personal injuries, you will likely be arguing negligence. “There are four elements to a negligence claim,” explains Lauren E. Davis, a personal injury lawyer and founder of First Truth Law in Smith Mountain Lake, Virginia: Duty, breach, causation, and damages.
1. Duty of Care
“Duty means the responsibility to act with ordinary care,” says Davis. “The standard of care varies depending on who the ‘tortfeasor’ is—that is, the person or entity who committed the actions causing injury. For example, a truck driver with a commercial driver’s license would have different duties than an ordinary driver on the road. A store owner would have different duties than someone who just owns some land on which someone happens to trespass. In the medical malpractice context, the standard of care is very specifically defined by state law based on what a healthcare provider in the same or similar circumstances would do.”
How do you determine the relevant standard of care for your particular case? Davis explains that there are various sources of law that attorneys will look at. “Imagine it like a funnel. At the broadest level, sections of the state code will set forth the standard of care. At the next level, there’s case law that interprets those code sections. And then, in any particular case, you’re going to investigate the particular facts because that could narrow the funnel even more.”
Along with a careful examination of the facts, Davis says there are many cases in which you will need expert testimony to establish the standard of care. “Medical malpractice is a big example of that because the circumstances are so fact-specific.”
The second element of negligence, breach, means that the responsible party failed to act with ordinary care.
“Next, you have to show that the breach of duty caused the harm. This is an important part,” says Davis, “Because there are many situations in which someone does something wrong—something that’s technically a breach of their duty—but it doesn’t cause harm. The most common example is someone texting while driving. That’s not ordinary care, but not every person who texts while driving causes a wreck that causes injury to people.”
“Finally, you have to show some sort of damage or injury that was caused by the breach of duty. Typically, it’s some sort of physical injury, though it may include property damage as well.”
The two basic types of damages are:
- Economic damages for things like medical expenses, lost wages from missed work, and property damage;
- Non-economic damages for things such as pain and suffering, emotional distress, or loss of a loved one (also called loss of consortium).
A third type is punitive damages, which are not as common but aim to punish and deter defendants whose wrongdoing involved intentional acts, recklessness, or extreme negligence.
What Are Strict Liability Claims?
Negligence isn’t the only legal theory you can use in personal injury cases. Though not as common, strict liability is also an option, particularly in cases involving the possession of certain animals, abnormally dangerous activities, and product liability. Under strict liability, the person or entity who caused your harm is liable for their actions regardless of their mental state or intent.
1. Possession of Dangerous Animals
In some circumstances, if an animal hurts you, the animal’s owner may be strictly liable for your injuries. The specifics of strict animal liability vary by state. Still, you can usually use strict liability in situations where someone owns a wild animal or a dangerous dog known to attack people. Learn more about animal bite liability law.
2. Abnormally Dangerous Activities
An abnormally dangerous activity is one that is not performed by a significant part of the community and presents a high risk of harm even when everyone involved is using reasonable care. Storing toxic chemicals and using explosives to break down rocks are common examples of abnormally dangerous activities.
3. Product Liability
There are different theories of product liability you can use if you were harmed by a product, including negligence and strict liability. Strict liability is available when the product is defective. You have to show that you were harmed by a defective product, not that the manufacturer was careless or intended to create a defective product. Learn more about product liability law.
What Kinds of Evidence Help Prove a Personal Injury Claim?
“In an ideal world, you want to gather as much evidence as you can as early as you can, especially regarding the liability part of the case. There are so many types of evidence that won’t be preserved unless you can get ahold of it early on,” says Davis.
“Take a car accident. In those cases, there may be many kinds of evidence relating to the incident: Traffic cameras, dash cam footage, pictures of the damaged vehicles, 911 call transcripts or audio, other witnesses—pretty much anything that’s going on around the scene is potential evidence, but if we don’t gather and preserve it early on, it has a tendency to disappear,” she says.
“Now, lawyers don’t expect potential clients to have already obtained 911 calls when they meet with us for the first time. That’s unrealistic. But the sooner an injured person can come to speak with us, the better opportunity we’ll have to collect and preserve crucial evidence.”
How Do I Know if It’s Worth Pursuing My Personal Injury Claim?
In assessing whether you have a worthwhile personal injury case, there are two different considerations:
- Whether you can legally prove a case;
- Whether your case is practically worth it.
“When it comes to actually pursuing a case, I think the practical considerations are often much more important than whether you can legally prove something,” says Davis. “It’s the question of ‘Can I pursue a case?’ versus ‘Should I pursue a case?’ Sometimes, the answer to the first question will be ‘yes,’ but the answer to the second question is ‘no.’ To me, it’s a travesty to pursue a case that’s not practically viable for the client.”
What are some of the practical roadblocks to bringing a case?
“There are a lot of potential obstacles,” Davis says. “Generally, it’s going to take a while—some cases can take years. And there’s definitely a level of expense, both financially and emotionally, for the client. Beyond that, a common issue is if the person isn’t hurt that badly. If you have fleeting or relatively minor injuries, that might be a situation where a lawyer would recommend that you try to get a resolution on your own, through small claims court, for instance. Or there are some law firms that really are just set up for smaller claims like that. But it’s a crucial question: How much harm is there relative to the cost to pursue the case?”
Davis says another major practical consideration, particularly in motor vehicle accidents, is how much insurance coverage is available. If there’s little to no coverage, a lawsuit may offer very little financial benefit to the client.
What Are Some Potential Red Flags in Pursuing a Personal Injury Claim?
Depending on the state, Davis says one major red flag is whether the injured person is also at fault.
“This depends on state law. In Virginia, for example, we have contributory negligence, which means that even if the tortfeasor is at fault, if the person who was injured was also at fault in causing the injury, they can’t recover anything through a lawsuit. In that situation, it doesn’t make sense to take the case. Other states have a comparative negligence system, meaning that if the plaintiff is 20 percent at fault and the other person is 80 percent at fault, you could still recover that 80 percent. In that case, it might well be worth it.”
When Should I Contact a Personal Injury Lawyer, and Is It Worth It?
“The earlier you contact a lawyer, the better,” says Davis. “They’ll help you assess the legal strength of your case and help you obtain and preserve crucial evidence.”
And what if you end up not pursuing a claim?
It’s still worth speaking with a lawyer. “Even if an attorney can’t take your case—typically because of one of the practical roadblocks—meeting with them is still going to give you helpful information.” For example, an attorney can advise you on:
- What kind of pictures or evidence you will need, not only of damage to your vehicle or personal property but to your physical body;
- The time limits or statute of limitations for bringing a claim;
- What kind of notes you should be taking;
- Who you should or should not be talking to;
- What you should or should not be posting on social media about the incident;
- What kind of health insurance you have, and whether you should submit a claim to the insurance company. “In some instances, if you submit a claim and it’s paid by the insurance provider, that insurer is going to have a lien against any recovery,” Davis explains.
“Ultimately, being able to get a 30,000-foot view is extremely valuable and not something I would leave to chance. Of course, some people will say, ‘Well, I have a small case, so why don’t I just pursue it on my own?’ And that may be what you do ultimately, but in the meantime, there’s no harm—and many potential upsides—to speaking with an attorney.”
How Do Attorney’s Fees Work in Personal Injury Cases?
While every lawyer is different, personal injury attorneys generally provide free consultations. And in many cases, attorneys will work on a contingency fee basis, which is based on a percentage of the recovery if you win the case. “So, initial consultations are built into that later fee if you recover. You’re not going to pay just to meet with someone upfront.”
Finding the Right Attorney for Your Needs
Davis has one last word of encouragement for individuals considering legal action. “I think people underestimate the importance and value of developing a good relationship with their attorney and with the other people on that attorney’s team,” she says.
“In the end, the client, the attorney, the paralegals, and the other people on the law firm staff working on the client’s case are all one team. People have the right to interview multiple attorneys and the opportunity to ensure the attorney-client relationship will be a good fit. The client should feel at ease communicating with the attorney. At the end of the day, the client is going to have to act on the attorney’s advice and recommendations, and if they don’t have a good basis in the relationship, that’s much harder to do. Don’t underestimate your own autonomy in the process of finding a lawyer.”
To begin your search for an experienced personal injury attorney—someone who can help you through your entire case, visit the Super Lawyers directory and use the search box to find a lawyer based on your location. To learn more on related legal topics, explore our overviews of premises liability, truck accidents, workers’ compensation, and wrongful death.
Additional Personal Injury articles
- The 10 Steps of a Personal Injury Lawsuit
- How Much Does It Cost To Hire a Personal Injury Attorney?
- 7 Reasons To Hire a Personal Injury Attorney
- How Do I Know If I Have a Personal Injury Case?
- What Are Common Causes of Personal Injury Claims?
- What Does a Personal Injury Lawyer Do?
- How To Find a Personal Injury Attorney
- What Is Considered a Personal Injury?
- When Commercial Airlines Are at Fault for Injuries
- An Overview on Aviation Accident Law
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