Personal Injury Law

Archive for May, 2008

Intentional torts when seen on a broader basis include the harm done to another’s body, property or legal rights. Acts of nuisance, trespassing fall in intentional torts when proved. Majority of the intentional torts are:

Assault or Battery: An action is considered as assault when it is intended to harm a person, threatening to injure is also an assault. Whereas a battery case is when there is an unwanted physical contact between the persons, like punches, kicks, poisoning, unwanted hug or kiss etc. Generally speaking, when someone acts in a careless way and causes an injury to another person, under the legal principle of “negligence” the careless person will be legally liable for any resulting harm.

Trespassing: An intentional act of passing over someone’s property line, in terms violating another’s property line makes that person a trespasser. This also holds true in case of occupying another’s land illegally.

False Imprisonment: To restrain a person without any legal permission and written document comes under this category of intentional torts. Police can detain a person on relevant grounds of suspicion, if the person is believed to be indulge in some criminal case

Invasion of Privacy: Citizens hold the right to access their personal information submitted to the private organizations and if required can complain about the use of their private information.

Defamation: Defamation means maligning someone’s reputation through verbal or libel means. Unless and until you have a factual statement and can provide evidence to your assertion, the words you speak or print (broadcast) comes under defaming.

Nuisance: Tort of nuisance includes interference with the use of someone’s land. Nuisance deals with all the kinds of interference with the neighbor’s property, which spoils the property or the landowner’s interest in his or her property.

Product Liability: Organizations responsible for making products that harm people must pay for any damage caused by them. This comes under consumer protection hence avoiding manufacturers to go for cheap and bad quality products that are harmful.

This sums up the various intentional torts.

Any careless behavior of an individual that causes harm to others comes under the category of negligence; it makes that individual legally liable for damages done to the injured person. There are certain standards or code of conduct that is expected from every individual. If that code of conduct is violated by a person and as a result any kind of damage is done then the law requires the person at fault to compensate the injured person. Professionals such as doctors, engineers, lawyers are also required to follow the code of conduct expected in their profession. As stated above negligence generally considers three elements:

1. There should be a duty of care between both the parties involved in the accident.
2. The person who caused injury fell short of this duty of care.
3. Last but not the least is the resultant injury caused by the other side.

The biggest issue is to prove the fault of the person against whom the claim has been filed. The general rule of code of conduct described above is the key factor in upholding the claim. The person injured has to prove the above three elements against the defendant. Proving a negligence case can be divided into two ways: Direct evidence and Circumstantial evidence. Where direct evidence constitutes photographs of the accident scene, statements of witnesses and circumstantial evidence is the inference based on the evidences found and produced.

As far as the responsibility of the mishap is considered, sometimes other than the person who’s driving (in case of an automobile accident), his or her employer is also considered at fault if the person is working for someone at the time of the accident. In addition to the defendant’s knowledge, jury also considers the actual way a reasonable person would have reacted in a particular situation. By reasonable person we mean, a person who must have followed all the standards of conduct expected of him.

There are two broad categories of personal injury law:

Negligence cases: These cases come into scene when harm done by the individual involved in an accident is unintentional and never meant to cause any injury. When someone acts carelessly and causes an injury to another person, then the careless person will be legally liable for the harm. Most of the cases arise out of the negligence of the driver involved in the accident. To win such cases the injured person has to prove that the injury caused in the accident was due to the violation of the duties/law by the other party. The driver who caused the accident is to be proved legally negligent and hence liable to pay the compensation for the injuries and damage of the property if any. This also includes clinical negligence cases and personal injury accidents of several kinds. To file a claim under negligence cases you have to keep in mind three things:

1. There should be a duty of care between both the parties involved in the accident.
2. The person who caused injury fell short of this duty of care.
3. Last but not the least is the resultant injury caused by the other side.

Intentional Torts: This falls in the category of cases when a legal action is taken on the basis of wrongful actions taken intentionally by other party and which resulted in injury. In this case the things tend to be more complex; as most of the insurance companies do not cover intentional wrong doings. Hence obtaining the compensation becomes difficult. Intentional torts include assault and battery cases, defamation, child abuse, invasion of privacy, intentional infliction, emotional distress, tort of false imprisonment, trespass, fraud. Trespassing and actions of nuisance come under the category of property torts and the remaining come under person.

It is very important to have a clear record of whereabouts of the accident. Questions like what actually happened, when, where and how, what kind of injury was involved, witnesses to the accident, etc would be a part of the legal process, hence there can be no scope of any kind of confusion because the success of your claim will depend upon the answers of these questions. If after accident you are not in a condition to take notes at the site, you must ask one of your loved one or one you trust to take notes because it would be of utmost importance to file a legal claim.

Take notes of how and what happened, name and complete addresses of the witnesses to the accident, how much is the extent of the injury you or your loved ones faced, weather conditions, time and place of accident, license plate number of the other vehicle(s) involved in the accident, driver’s name, address, phone number and insurance information, after effects of your injury (personal and professional). Keep the copy of the police report; facts in the report can further help you in your case, providing strong evidences. If possible take photographs of the accident scene from different angles. Keep record of the medical reports of the injuries caused due to the accident. In case of property damages, keep the records of the repair costs and also the photos of the damaged part of the vehicle. All this will help in ultimately contributing to the success of your claim.

After this preliminary task of making notes, meet your attorney within seven days of the accident and let him know the complete history of the accident, produce the notes before him. Try to answer every question your attorney asks for, this will help you in getting the best advice from him. After your detailed description of the case the attorney will want to know about your insurance coverage, with how many people you have discussed this accident and what was told to them by you, and few other things he need to know to accept the case. You must be very clear and sure about whatever you say and describe to your attorney.

Personal injury law comes into action when there’s a need to file a legal claim regarding physical or psychological injuries caused as a result of some negligence or intentional wrong doings of others.

It is a way of protecting a person’s property, reputation and rights. Injuries caused by accidents have become an inevitable part of life, simply because they are inevitable we cannot take ourselves away from the pain and sufferings caused, especially if at the back of our mind we know that the accident could be avoided if the other party involved in the accident had not been careless.

If the injury is not minor, then it may require lifetime medical care, major injuries like spinal and brain injuries require utmost care and no doubt money too. All this can make the lives of the patient and his/her family members a hell. Most of the people involved in such cases are left helpless, as the culprits never take the responsibility of their error; their insurance companies too try to make profits by not providing the rightful compensation to the person injured.

The lawyers of the insurance companies know everything about the laws and hence get away easily in case of negligence of a common person being injured. One should take a rightful step to file a legal claim against them. In case of filing a claim one should seek specialized assistance. Personal injury lawyers have a better understanding about the laws and also the injuries involved in the accident. They take cases on a contingent fee basis, which is if they win they will be getting a percentage of compensation as their fees and if they lose, they are deprived of their attorney fee. You will have to pay the costs incurred on your case. Lawyer’s fee is usually one third of the personal injury compensation and can be negotiated further if the amount is big.