Personal Injury Law
When someone is physically or emotionally injured, or their personal property is damaged, it is considered in law to be a “Personal Injury”. The laws covering personal injury allow the injured party to receive compensation for damages caused by someone else’s carelessness, negligence, recklessness, or intentional actions. Personal injury law is also called “tort” law. States and the Federal government have enacted tort laws for the protection of your rights. Tort actions have three elements: there must be a legal duty between the defendant (the one doing the wrong) and the plaintiff (the person injured); there must be a breach of that duty; and, damage must occur because of that breach. When all three elements take place, a personal injury, or tort, has occurred.
The laws of our society places demands on all citizens not to harm others. This means that not only should people be safe from harm, but their possessions also. Whenever someone else harms you or something that belongs to you, they become liable to answer to the tort laws governing the situation. Liability can be caused by intentional acts, torts, or by negligence. An intentional act is one designed to cause harm or injury. The person committing the act wants to harm you. A negligent act occurs when someone fails to take appropriate action and you are harmed as a result of that failure. For instance, if an angry person throws a brick through your car window, that is an intentional tort (it may also be a criminal action). On the other hand, if a careless driver runs into your car, that is a negligence tort. In the first case, the defendant wanted to cause an injury; in the second case, the defendant did not want to injure you but failed to take the appropriate action to prevent injury. In both cases, the defendant had a duty not to injure you or your property, because our laws and society create that duty. The duty was breached by the intentional or negligent actions of the defendant, and damage to your person or property resulted.
Another form of personal injury law covers “strict liability”. Strict liability means that there is responsibility whether or not negligence was involved. This is usually applied to situations which are in themselves abnormally or inherently dangerous. This concept also occurs in the area of product liability. Manufacturers are charged with the responsibility of assuring that their product is safe when used as directed. If someone is injured by a product, under the terms of strict liability they do not have to prove intent or negligence, only that the product was defective through no fault of their own, and that harm was done.
Once a personal injury has occurred, the defendant has a liability to make good the damage done. “Damages” is the term for whatever is owed to you to compensate you for your loss. Damages can be agreed upon by you and the injuring party, through insurance settlements, or by other means. But often the damages offered to you may not fully compensate you for your loss. This is especially true if you have suffered physical injury and have not been able to work. Personal injury law is the mechanism for determining who is in the wrong, or in other words, who is “liable”, and what the liable person should have to pay for the damage caused.
If you are the victim of a personal injury, there are several things you can do to help yourself. First of all, make sure that you seek proper medical attention and that you follow up with the proper authorities and your own insurance company. If you believe your injury was caused by the carelessness or intentional act of another, you may want to contact an attorney to discuss this. You should call as soon as it is convenient to do so and avoid discussing the matter with strangers and/or insurance representatives who are not from your own insurance company. You should be cooperative with the police, your own treating physicians, and your own insurance company. Most personal injury cases are covered by a statute of limitations, which means that you only have a certain period of time in which you can file a lawsuit.
One common area included within the scope of personal injury law is that of “assault”, an intentional act or threat which instills fear of imminent physical harm in an individual. No actual touching need take place for an assault to occur: The threat alone is sufficient to be covered by personal injury laws. If the threat actually becomes a reality in which an individual is non-consensually touched by an object or person, the assault becomes a battery. For example, if a person brandished a gun at another person and threatens to shoot, an assault has been committed. A battery occurs if the person actually follows through and succeeds in shooting the person he has threatened. Both of these instances are covered under personal injury law in that a victim has the right to monetary recovery for the wrongful acts perpetrated upon him or her. In the example above, a criminal case might also ensue against the wrongdoer.
The word “battery” comes from the Latin “battuere” meaning “to beat.” In a legal sense, battery occurs when a perpetrator willfully touches or uses force against a person without his or her consent. The act of battery must include actual physical contact between the perpetrator and the victim or to an object connected to the victim. Throwing an object which strikes another individual is a clear case of battery. An example of battery in which there is no actual touching of the victim would be knocking a tray full of food out of another’s hands.
Conversion is the wrongful act of dominion or control over the chattels (personal property) of another, in denial of the rightful owner’s rights thereto.
To prove conversion these elements must be present:
- The plaintiff must have greater right to the property than the defendant
- A wrongful taking by the defendant without consent of the Plaintiff
- Possession by the Defendant which is inconsistent with the Plaintiff’s rights
- Damage to the Plaintiff
Infliction Of Emotional Distress
When one person purposefully engages in behavior that is intended to and does cause severe mental anguish in another, he or she is subject to the laws regarding the intentional infliction of emotional distress. There are several factors which determine the extent to which a perpetrator may be liable in such a claim. First, the wrongdoer’s behavior must be deemed as extreme and outrageous. If a person of average temperament would suffer emotional distress caused by the wrongdoer’s actions, then those actions can be deemed as “outrageous.” Consideration would also need to be taken for those individuals whose temperament is more sensitive or high-strung: in cases such as this, the standard for outrageousness can be lowered. Second, it must be done intentionally to cause emotional distress or with reckless disregard to such a consideration. Third, it is also helpful if the victim can show other non-emotional damages such as loss of gainful employment.
An example of intentional inflection of emotional distress would be an aide in a nursing home telling an aged resident that her family has died, when they had not, just to disturb the resident.
If an individual inhibits or prevents another’s freedom of movement without their consent for any amount of time, he or she has falsely imprisoned that person. This imprisonment may include a physical element to prevent escape, such as being bound with rope, as well as verbal threats of harm to the victim. There are several key factors that contribute to the claim of false imprisonment. First, the confinement must be non-consensual on the victim’s part. Second, the confinement must be intentional on the part of the perpetrator. Third, the victim has to have knowledge that he or she is indeed imprisoned. Last, there can be no available means of escape known to the victim.
Fraud / Misrepresentation
A person commits fraud when he or she knowingly makes a material misrepresentation with the intent of inducing another person to act or refrain from acting to his or her detriment. It is also necessary to show that the material misrepresentation was justifiably relied upon when the “victim” acted or failed to act.
“Negligent misrepresentation” occurs when, in the course of a transaction in which a person has a pecuniary interest, a person supplies another with false information to guide their business transaction. That person who so misrepresents can be liable for any pecuniary loss caused by the justifiable reliance upon that false information.
Trespass To Land
The tort of trespass protects one’s interest in the exclusive possession of one’s land. This is distinguished from the tort of “nuisance” which protects one’s interest in the free and unhindered use and enjoyment of land.
A person is subject to liability for trespass, irrespective of whether he causes harm, if he intentionally:
- Enters the land or causes another to do so
- Remains on the land when asked to leave
- Fails to remove from the land a thing he is under a duty to remove
Trespass To Chattels
“Chattel” refers to items of personal property. A person commits trespass to chattel if he or she intentionally possesses someone else’s property without their consent, even if only for a brief period of time. Courts require that some sort of actual harm results from the trespass to chattel in order for it to be actionable.
What You Need To Know:
Insurance companies’ obligations are to their stockholders and policy holders, not to the people injured by their insured’s negligence. Insurance companies’ desire to maximize their own profits provides them with every motivation to try to deny your claim or pay you the very minimum amount that they can get away with. The insurance companies also have enormous advantages: they have immense wealth, armies of experienced adjusters and lawyers and years of experience reducing and denying claims.
At the Law Office of Burroughs & Capps, our only obligation is to you, our client. We will use our experience and every resource available to protect your interests, and we will work hard to help you receive the full value for your case. We will advise you every step of the way to help you avoid any mistakes that could cost you money. There is no charge for attorney’s fees until you recover money for your personal injuries, and we will also help you resolve your property damage claims for no fee whatsoever. For assistance, call today at 865-280-1329, contact us or submit an free online case evaluation.