Legal Articles - the Inside Scoop
PERSONAL INJURY LAW DOESN'T HAVE TO BE A MYSTERY
By William J. Griset Jr.
Thursday, February 15, 2007
The Reading (PA) Advocate
How does personal injury law work and why do we need it?
For most people, the law surrounding personal injuries is confusing and almost mysterious. It need not be that way. In most states, personal injury law (what lawyers call “tort law” which is a part of our system of civil law) is governed by a concept called “negligence.” Simply put, negligence means the failure to use reasonable care under the circumstances. Now the reader may ask “Wait a minute, do you mean that slipping and falling in a grocery store might be negligence or not, depending upon the circumstances?” Exactly. The law looks to people or companies who own or control property to use “reasonable care” rather than “perfect care.” The mere fact that someone had the bad fortune to slip and fall and get injured on someone else’s property does not in and of itself make the property owner legally responsible for the injuries. You would need that extra ingredient — negligence. It might be negligent for a business owner to leave a spill on a floor for several hours, but it might not be negligence if the spill happened moments before a customer in the store walked across it and slipped and fell.
This is where the lawyer comes in. Someone who has been injured in a slip and fall incident or a car accident or in some other way, and feels that what happened to them was not their fault might want to consult with a lawyer who handles personal injury cases in order to speak with the lawyer about what happened, and ask the question “Do I have a case?” Whether you “have a case” or not would be determined largely by the lawyer’s view of the facts of your accident and whether the lawyer thinks that the facts show negligence or not. The lawyer will also advise you about the deadlines for making claims and filing lawsuits, known as “Statutes of Limitation.”
“Liability” and “damages” are the two essential ingredients in any personal injury claim. In this context, liability means proof of legal fault. Damages means the measure of recovery once you have proven liability. You do not get to damages without first being able to prove legal fault, or liability.
Whether or not you have a case is not usually determined by how badly injured you were. This is something that confounds many people. If, for example, the facts show that the injured person was the cause of the accident, the extent of their injuries won’t help overcome the essential fact of who was at fault. And this is as it should be. On the other hand, if you were only slightly injured, a lawyer might tell you that he cannot help you even though someone else’s negligence clearly caused your accident. To use an extreme example, someone who gets a very small cut as a result of using a clearly defectively designed product might not have an “economically viable” claim against the product manufacturer. For an injury that will heal completely in a few days and not cost anything in terms of medical treatment and not leave you with any sort of disability, there might be no recourse. As I learned long ago, not every injury means someone was wronged, and not every wrong gets righted. The more complex, expensive (because of pre-trial depositions, expert witness fees, etc.) and “risky” the case type (product liability, medical malpractice) the more the balancing question “Is it worth it” comes into play. Although it might be an inescapable conclusion, a “no” answer is a bitter pill to swallow for someone who has been injured.
What does personal injury law do for us? For the accident victim, it may offer compensation (money) to replace lost income and pay for needed medical treatment. Compensation for pain and suffering is also a normal part of our system. The entire concept is to make the victim “whole” again. On a broader societal level, the law of negligence encourages safer behavior. In the unique arena of product liability law, lawsuits by product victims have caused the forced redesign of many dangerously designed consumer products. Does anyone reading this column remember the Ford Pinto?
Although it is not intended as legal advice or as a substitute for a face-to-face consultation with an attorney, I hope that this column has given the reader a better sense of what personal injury law is all about, as I continue to try to de-mystify the law and make it accessible to all. It is, after all, our law. And, on the whole, it works pretty well.
