Things You Need To Know
Elements of a Personal Injury Claim
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:
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.
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.
You must then be able to prove that the harm you suffered was an immediate result of the defendant’s negligent act.
Finally, you must be able to prove that you suffered actual injuries or damages.
While the law provides you with the legal means to recover in an injury case, you may want to entrust your claim to the Evans Law Group to ensure that you prove every element in your claim in order to obtain a successful result.
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:
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
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.
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.
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.
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.
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.
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.
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.
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:
libel – where false statements are about you are published
slander – where false verbal statements are made against you
false arrest – where one accuses you falsely causing your arrest.
false imprisonment – holding you in a place against your will.
malicious prosecution – presenting false evidence for you to be prosecuted.
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.