+ General Negligence
One of the most common types of personal injury lawsuits involves a claim of negligence. Negligence describes a situation in which a person acts in a careless (or "negligent") manner, which results in someone else getting hurt or property being damaged. Negligence can often be a difficult area of law to define because it involves a legal analysis of the elements of negligence as they relate to the facts of a particular case.
In a successful negligence suit, the plaintiff must show that each of the following five elements was present:
- a duty of care owed by the defendant to the plaintiff
- a breach of that duty
- an actual causal connection between the defendant's conduct and the resulting harm
- proximate cause, which relates to whether the harm was foreseeable
- damages resulting from the defendant's conduct.
What separates a common accident from an act of negligence; however, is the "standard of care" required in a given situation.
By neglecting the proper standard of care for a given situation, an individual may be found liable for any resulting injuries. The test as to whether a person has acted as a reasonable person is an objective one, and so it doesn't take into account the specific abilities of a defendant.
+ Jones Act (Maritime Accidents)
The Merchant Marine Act of 1920, more commonly known as the Jones Act, lays out the legal framework for the U.S. Merchant Marine. One of its most important functions is to protect mariners injured at sea, since they are not qualified for workers' compensation under maritime law. Generally speaking, the term "Merchant Marine" refers to the fleet of commercial ships that delivers goods to and from other nations during peacetime, as opposed to military vessels.
Unlike typical injury claims, the plaintiff in a Jones Act claim only has to show that the employer's negligence played some role in the injury, however minor. So if the crew member who slipped on the deck was also negligent, he or she still could file a claim if the slippery conditions were just one cause of the injury.
“Comparative fault” standards are applied in these cases. If the employer can prove that the plaintiff’s actions contributed to or caused the accident, the amount of the award can be reduced accordingly.
+ "No Fault" Accidents and Insurance
These are typically referred to with regard to automobile accidents. About a dozen states have what are called "no fault" laws with respect to injury claims for automobile accidents. In these states (including Pennsylvania, Florida, New York, and Massachusetts), drivers are to varying degrees released from liability for causing bodily harm in an accident. Generally, no fault insurance policies cover bodily injuries sustained by the insured regardless of fault.
+ Pedestrian Accidents
Pedestrians are a particularly vulnerable segment of traffic, which is why motorists must yield to people crossing the street or crossing the paths of automobiles. As with any other traffic accident, liability for pedestrian accidents is based on negligence. Although motorists do tend to take the blame for many accidents of this type, pedestrians can still be liable under a doctrine called “contributory negligence.”
Negligence is the failure to do (or not do) something that a reasonable person in a similar situation would, to protect others from foreseeable risks. To establish negligence in a pedestrian accident, the injured person (the "plaintiff") must prove that the person at fault (the "defendant"):
- Owed a legal duty to the plaintiff under the circumstances
- Failed to fulfill ("breached") that legal duty through action or inaction
- Caused an accident or injury involving the plaintiff
- Harmed or injured the plaintiff as a result
When a pedestrian is injured, there may be more than one party with legal responsibility for the accident. Depending on the circumstances, potential liable parties include:
- The driver of a vehicle that strikes a pedestrian
- The party responsible for maintaining the sidewalk, road, or parking lot where
- The pedestrian himself or herself
Usually, pedestrian-vehicle accident cases hinge on the duty of care owed by those involved. Both drivers and pedestrians must follow the rules of the road and exercise reasonable care. In many cases, it may seem obvious who was negligent, but the courts look at numerous factors in applying the facts to the negligence elements.
A pedestrian must exercise reasonable care for his or her own safety. The care required must be proportionate to the danger to be avoided and reasonably anticipated consequences. Contributory negligence may be assessed against a pedestrian if they failed to exercise such care and contributed to the cause of their own injuries.
A few of the most common factors contributing to pedestrian negligence are:
- Ignoring the "walk" signal at an intersection
- Entering traffic and disrupt the flow
- Failing to use marked crosswalks
- Darting in front of a vehicle
The majority of states now use a comparative negligence theory in determination of these types of cases. This situation is often referred to as "apportionment of fault" or "allocation of fault."
It should be noted some states have changed comparative negligence principles to permit a person to collect in a lawsuit only if he or she is found to be less than 50% at fault.
+ Premises Accidents (Slip and Fall, Trip and Fall)
It's sometimes difficult to prove who is at fault -- or liability -- for slip and fall accidents. Thousands of people each year are injured, many seriously, from slipping and falling on a floor, stairs, or other surface that has become slick or dangerous. Even ground that has become uneven to a dangerous degree can lead to severe injuries. However, sometimes it may be difficult to prove that the owner of the property is responsible for a slip and fall accident.
Could the Property Owner Have Prevented the Accident?
If you or a loved one has been injured in a slip and fall accident, it may be tempting to seek out justice in the form of a lawsuit as soon as possible. But stop and ask this question first: If the property owner was more careful, could the accident have been avoided? Every person has a responsibility to be aware of their surroundings and make efforts to avoid dangerous conditions.
Reasonableness is often balanced against the care that the person that slipped and fell should have used. If you've been injured in a slip and fall accident on someone else's property because of a dangerous condition, you'll likely need to be able to show one of the following in order to win a case for your injuries:
- Either the property owner or his employee should have known of the dangerous condition because another, "reasonable" person in his or her position would have known about the dangerous condition and fixed it.
- Either the property owner or his employee actually did know about the dangerous condition but did not repair or fix it.
Either the property owner or his employee caused the dangerous condition (spill, broken flooring, etc.). After presenting your evidence and arguments, it'll be up to the judge or jury to decide whether the property owner should have known about the slippery step that caused you to fall.
Comparative Negligence.
Most states follow the rule of comparative negligence when it comes to slip and fall accidents, providing a defense to negligence charges. This means that if you, in some way, contributed to your own accident (for example, you were talking on your cell phone and not paying attention to a warning sign), your award for your injuries and other damages may be lessened by the amount that you were comparatively at fault (this percentage is determined by a judge or jury).
Like researching the liability of the property owner, there are some questions that you can ask of yourself to estimate how likely it is that you'll be found to be comparatively negligent:
Did you have a legitimate reason for being on the property owner's premises when the accident happened? Should the owner have anticipated you, or someone in a similar situation to you, being there?
Would a person of reasonable caution in the same situation have noticed and avoided the dangerous condition, or handled the condition in a way that would have lessened the chances of slipping and falling (for example, holding onto the handrail while going down icy stairs)?
Although you won't have to prove to the insurance company that you were extremely careful, you'll probably have to show enough so that the insurance company can conclude that you weren't acting negligently yourself.
+ Workplace Negligence (Are they always Worker’s Compensation Cases?)
Not always. Generally, you are barred from suing your employer for a workplace injury. This is because when employers provide workers' compensation insurance for the benefit of their employees, they are typically protected from defending personal injury claims brought by those employees. The workers' compensation system was established as a trade-off in which injured employees give up their right to sue employers in court in exchange for the right to receive workers' compensation benefits, regardless of who was at fault for their injuries. This is known as a no-fault system.
However, there are some important exceptions.
If you were injured at work this is generally covered as a workers compensation claim. However, if you believe your employer intentionally caused you this harm, you can bring a suit for an intentional tort in civil court. Tort injuries include not only physical harms, but also non-physical injuries such as emotional distress.
Here are the most common intentional torts:
- Battery - injury to your person, i.e. you have been hit by someone or something
- Assault - an attempted battery, or the threat to commit a battery
- False Imprisonment - confinement against your will, without legal authority
- Intentional Infliction of Emotional Distress - you have been emotionally traumatized by truly terrible conduct
- Fraud - someone lied to you and it caused you to suffer injury
- Defamation - when someone says something false about you and it causes you harm, including libel and slander
- Invasion of Privacy - there are four types of invasion of privacy, but it generally means either your private information or photos of you were exposed to a large audience
- Conversion - when someone takes your property and makes it their own
- Trespass - someone entered your property or used your property without your permission
+ Wrongful Death Actions
Arguably the worst injury one can suffer as a result of someone else's intentional or negligent behavior is death. While the injured party can't file a wrongful death lawsuit on their own behalf, his or her surviving family members can file a suit on behalf of the deceased person, also referred to as the decedent. This serves to allow the victim's loved ones to receive compensation for their loss. Damages in a wrongful death suit can include loss of support, any medical and funeral expenses, and the loss of consortium (deprivation of the benefits of a family relationship due to injuries caused by the defendant).
These claims are most commonly associated with medical malpractice, fatal car accidents, when a victim is intentionally killed, or death by drowning accidents, and are filed by representatives of the victim’s estate. However, when death results from injury sustained from the negligence of others and the decedents commence suit, it is considered a wrongful death action.
