Do You Have a Personal Injury Case?

If you're considering filing a personal injury lawsuit over a car accident, slip and fall, or any other kind of injury, you may be wondering "What is my case really worth?" The answer comes down to "damages" -- figuring out what your injuries have cost you monetarily, physically, and mentally (and, in some cases, whether the defendant's conduct should be punished).

In a personal injury case, money damages are paid to an injured person (the plaintiff) by the person or company who is found to be legally responsible for the accident (the defendant or their insurer). A damage award can be agreed upon after a negotiated settlement -- among the parties, their insurance companies, and their attorneys, for example -- or may be ordered by a judge or jury following a court trial. (To learn more about how insurance companies value a claim after an accident, see Nolo's articleHow Do Insurers Value an Injury Claim?)

Below you'll find an explanation of the different kinds of damages that are common in many personal injury cases and how a personal injury damages award can be affected by the plaintiff's action (or inaction).

Compensatory Damages in Personal Injury Cases

Most personal injury damages are classified as "compensatory," meaning that they are intended to compensate the injured plaintiff for what was lost due to the accident or injury. A compensatory damages award is meant to make the injured plaintiff "whole" again from a monetary standpoint (to the extent that's possible). This means trying to put a dollar figure on all the consequences of an accident. Some compensatory damages are relatively easy to quantify -- like reimbursement for property damage and medical bills. But it's harder to place a monetary value on pain and suffering or the inability to enjoy hobbies because of physical limitations caused by lingering accident-related injuries.

Here's a rundown of the different types of compensatory damages that are common in many personal injury cases.

Medical treatment. A personal injury damages award almost always includes the cost of medical care associated with the accident -- reimbursement for treatment you've already received and compensation for the estimated cost of medical care you'll need in the future because of the accident.

Income. You may be entitled to compensation for the accident's impact on your salary and wages -- not just income you've already lost but also the money you would have been able to make in the future, were it not for the accident. In personal injury legalese, a damage award based on future income is characterized as compensation for an accident victim's "loss of earning capacity."

Property loss. If any vehicles, clothing, or other items were damaged as a result of the accident, you'll likely be entitled to reimbursement for repairs or compensation for the fair market value of the property that was lost.

Pain and suffering. You may be entitled to get compensation for pain and serious discomfort you suffered during the accident and in its immediate aftermath -- also for any ongoing pain that can be attributed to the accident.

Emotional distress. Usually linked to more serious accidents, emotional distress damages are meant to compensate a personal injury plaintiff for the psychological impact of an injury -- including fear, anxiety, and sleep loss. Some states consider emotional distress as part of any "pain and suffering" damage that is awarded to a personal injury plaintiff.

Loss of enjoyment. When injuries caused by an accident keep you from enjoying day-to-day pursuits like hobbies, exercise, and other recreational activities, you may be entitled to receive "loss of enjoyment" damages.

Loss of consortium. In personal injury cases, "loss of consortium" damages typically relate to the impact the injuries have on the plaintiff's relationship with their spouse -- the loss of companionship or the inability to maintain a sexual relationship, for example. Some states also consider the separate impact on the relationship between a parent and their child when one is injured. In some cases, loss of consortium damages are awarded directly to the affected family member rather than to the injured plaintiff.

Punitive Damages in Personal Injury Cases

In cases where the defendant's conduct is deemed particularly egregious or outrageously careless, a personal injury plaintiff may be awarded punitive damages on top of any compensatory damages award. Punitive damages stem from a rationale thats quite different from the justification tied to compensatory damages, which is to attempt to "make someone whole."

Punitive damages are awarded to the injured plaintiff, but the real goal of these kinds of damages is to punish the defendant for its conduct -- to hit them in the pocketbook -- and to act as a deterrent. Since it isn't unusual for punitive damage awards to top tens of millions of dollars, most states have set some type of cap on punitive damage awards in personal injury cases.

How Plaintiff's Actions (or Inaction) Can Affect a Damages Award

In some cases, an injured person's role in causing an accident -- or their inaction after being injured -- can diminish the amount of damages available in a personal injury case.

Comparative negligence. If you're at fault (even partially) for the accident that caused your injuries, chances are that any damage award will reflect that. That's because most states adhere to a "comparative negligence" standard that links damages to degree of fault in a personal injury case.

Contributory negligence. In the small handful of states that follow the concept of "contributory negligence" for personal injury lawsuits, you may not be able to recover any compensation at all if you're deemed partially to blame for the accident.

After the accident: failure to mitigate damages. The law in most states expects plaintiffs in personal injury cases to take reasonable steps to minimize or "mitigate" the financial impact of the harm caused by the accident. If an injured plaintiff just sits back and rests on their proverbial laurels when it isn't reasonable to do so (by failing to get necessary medical treatment after an accident, and making their injuries much worse, for example) a damage award might be significantly reduced. (For more information on defense strategies that can counter an injury claim, read Nolo's article Defenses in Personal Injury Cases.)

Want to Learn More?

For more information about damage awards in specific types of personal injury cases, see Nolo's articles Damages in Defective Products Cases and Damages in Medical Malpractice Cases.

What to Do After Slip and Fall Accidents

Recently had a Slip and Fall accident?

There are a few steps you can take immediately after the slip and fall accident that can help protect your rights later on.

First, look at the area where the injury occurred. What made you fall? Try to note all of the conditions, even if they do not seem particularly important to you. Also, get the names of any people were in the vicinity at the time of your injury. These people may be witnesses to the accident. Even if they did not actually see you fall, they can describe the conditions which led to your injury.

If your injury occurred in a store or place of business, speak with the manager on duty. Have them make a record of the incident. Also, if anyone makes a comment about this sort of incident happening before, or that they “knew this would happen,” be sure to get their name.

Next, go see your doctor. You want to have your injuries dealt with promptly. This also provides you with proof that you were actually injured in the accident.

Finally, consult with a lawyer as soon as possible. An experienced personal injury attorney can review the incident, and let you know what your rights are. A lawyer can also further investigate the incident, and advise you on the best course of action.

For the full article visit legalmatch.com

When to sue for a car accident

When it comes to car accidents, injury is a common consequence and one that can often lead to a lawsuit. If you are the victim of an auto accident personal injury, then you may be able to successfully sue the driver of the other vehicle for damages. To win such a suit, the plaintiff (the injury victim who files the lawsuit) must prove that the driver of the other vehicle caused the accident due to a lack of reasonable care. There are three things that you and your lawyer will have to prove to establish before the court that the other driver was not using reasonable care.

-You must establish that the other driver had a legal duty to use care

-You have to prove that the driver violated that duty

-You must show a direct relationship between the auto accident and the personal injury

Duty of Care in Auto Accident Personal Injury Cases

If you think you can establish that the other driver had a duty of care and violated that duty, then you will have established a good basis for winning a personal injury lawsuit. To meet the duty of care required to operate a vehicle, a driver must drive at a reasonable speed, maintain proper control of the car at all times, and drive defensively. Defensive driving simply means that a driver should be looking out for situations that could cause an accident and take steps to avoid them.

It is also important you establish that the other driver created an unreasonable risk that caused the accident. If the risk the driver created is considered unreasonable, then you will be less likely to share fault. This is because courts expect for you to take action to avoid a reasonable risk, but an unreasonable risk is considered less avoidable.

Proving the Driver Is at Fault

You should also consider suing to collect recoverable damages if you are fairly certain you can prove that the motorists actions caused your injuries and that these actions were careless.

If, however, you were partially or wholly at fault for the accident, you will have a much more difficult time winning your auto accident personal injury suit. In addition, if there is any sort of intervening cause that resulted in your injury, then you will have a much more difficult time collecting damages from the driver.

No-Fault Insurance & Personal Injury Claims

Some jurisdictions have what is known as no-fault auto insurance, also known as personal injury protection. With no-fault auto insurance, the insurer automatically pays on an auto accident personal injury insurance claim. Specifically, the insurance company will pay for certain damages that the victim of the accident incurs if the victim or the other driver is covered by such a policy.

No-fault insurance pays economic damages, which include medical bills and lost income. However, pain and suffering, as well as amounts that exceed the policy limit, are not covered. If your auto accident personal injury exceeds the amount paid out by a no-fault policy or if you wish to collect damages for pain and suffering, you may be able to sue the driver at fault for this amount.

However, some states have rules regarding when you can sue the other driver for the amount that exceeds or is not covered by no-fault insurance policies. Check your states laws to see if you are able to file suit, or consult with a personal injury attorney. 

To view the full article visit http://www.attorneys.com/auto-accidents/when-can-you-sue-over-an-auto-accident-personal-injury/

Workplace Injury: When You Can Sue Outside of Workers' Compensation

If you've been injured in the workplace, you've probably been told that the only compensation you can receive will come from your employer's workers' compensation insurance. Although this is the general rule, there are many exceptions -- situations in which you may be able to sue for damages caused by your injuries. For example:

• If you were injured by a defective product, you might be able to bring a products liability action against the manufacturer of the product.
• If you were injured by a toxic substance, you might be able to bring a toxic tort lawsuit against the manufacturer of that substance.
• If you were injured because of your employer's intentional or egregious conduct, you might be able to bring a personal injury lawsuit against your employer.
• If your employer does not carry workers' compensation insurance, you might be able to sue your employer in civil court or collect money from a state fund.
• If a third party caused your injury, you might be able to bring a personal injury lawsuit against that person.

Although workers' compensation can provide money and benefits to an injured worker, temporary disability and permanent disability payments are usually quite low and don't compensate the worker for things like pain and suffering. Workers' compensation also does not provide punitive damages to punish an employer for poor safety controls or dangerous conditions. That's why it's important for injured workers to understand their rights to bring a case outside of the workers' compensation system.

In addition to the lawsuits described in this article, you might obtain additional money from government benefits such as Social Security disability insurance (SSDI or SSI) if your injury is disabling and prevents you from working. For more information, see Nolo's article on Social Security Disability Benefits.

If You Were Injured by a Defective Product

When a worker is injured by a machine or piece of equipment that is defective, failed to work properly, or is inherently dangerous, the manufacturer of the machine or equipment can be held responsible for the injury if it knew of the danger and/or didn't properly warn the business or employees of the danger. In such a situation, the manufacturer would have to compensate the worker for things like medical bills, lost wages, and pain and suffering.

Example:

Bill works in a factory that produces office products. His job is to operate a punch press that punches holes in boxes. One day, when Bill puts his hand into the press to adjust a box, the foot pedal that he uses to stop the press sticks, and the press crushes three of his fingers. His fingers are no longer usable after the accident. Bill can collect workers' compensation from his employer, and he also has a possible products liability case against the manufacturer of the defective press.

If you have been injured by an unsafe machine or other equipment in your workplace, consider talking to an attorney about your rights. You can also file a complaint with the Department of Labor's Occupational Health and Safety Administration if there have been unsafe conditions (for more information, see Nolo's article OSHA: Complying With Workplace Health and Safety Laws), in addition to filing a workers' compensation claim. This is a particularly important step to take if your employer is still requiring you or other employees to use the equipment.

If You Were Injured by a Toxic Substance

Sometimes the chemicals and other substances that workers use are toxic and cause severe injuries and illnesses. These substances can include such things as asbestos, benzene, chromium compounds, silica, and radium, but any substance that harms you could possibly be the subject of a lawsuit for a "toxic tort."

Generally speaking, there are two kinds of toxic injuries: acute injuries are apparent immediately, while latent injuries may take years to appear. Examples of acute injuries include chemical burns and poisonings. Examples of latent injuries include cancers and lung diseases. Because of the time delay, latent injuries tend to be more difficult to prove than acute ones, but these cases are not impossible. Workers have been successful in lawsuits brought years after their exposure to the toxic substance. (In particular, workers who suffer from asbestosis or mesothelioma almost always succeed in lawsuits because the causation between exposure to asbestos and asbestosis and mesothelioma has been proven in many lawsuits. For more information, see Nolo's article Mesothelioma and Asbestos: An Overview.) When a worker is injured by a toxic substance, the worker can usually sue the manufacturer of the toxic substance and any manufacturers of safety equipment that proved to be ineffective in the handling of the toxic substance.

If you have been injured or sickened by a toxic substance, talk to an attorney about your legal rights. Especially if a great deal of time has passed between your exposure and your injury or illness, you will need the assistance of an expert to help you sort out the complicated issues involved. And even if the toxic injury was recent, an attorney can probably get you the best settlement for your injury. To find a personal injury lawyer who handles toxic substances, see Nolo's Lawyer Directory (when you view a personal injury lawyer's profile, click the "Types of Cases" and "Work History" tabs to learn about a particular lawyer's experience, if any, with toxic torts and workplace injuries).

If the toxic substance is continuing to make the workplace unsafe for your or others, consider taking the additional step of filing a complaint with the Occupational Safety and Health Administration (OSHA).

Types of Personal Injury

Personal Injury

Personal injury is the term used to describe physical and mental injuries that occur because of someone else's negligence, intentional actions, or strict liability.

Negligence

Negligence means the other party failed to act with reasonable care. For example, imagine you are in your car stopped at a red light when another driver rear ends you because he or she isn't paying attention. If you suffer physical injuries in the crash, those could be personal injury due to negligence. (Any damage to your car is property damage, not personal injury, because the car is an object, not a person.)

Intentional Harm

Intentional harm means the other person set out to hurt you. This includes cases of battery, assault, and false imprisonment.

Strict Liability

Strict liability means that anyone involved in the production, distribution, or sale of a defective product can be held responsible if the product injures someone.

Types of Personal Injuries

There are several common types of personal injuries:

Auto accidents

Motorcycle accidents

Boating accidents

Trucking accidents

Railroad accidents

Slip-and-fall accidents

Medical and dental accidents

Sexual abuse

Dog bites

Injuries that occur because products malfunction or fail

Work-related accidents

Wrongful death

Most personal injuries fall into the category of law known as torts. Torts are a type of civil, not criminal, law. It is a way to hold someone else legally responsible for your injuries.

Negligence

Most personal injury cases involve negligence. To have a valid case, your personal injury attorney must be able to show that your injury was caused by the negligence of another party. To prove negligence, your injury lawyer must prove four separate things:

Duty of care: The negligent party had an obligation to act prudently to avoid injuring the other party

Breach of duty: The negligent party knowingly exposed the injured party to a substantial risk of injury or didn't even realize (but should have) that there was a substantial risk

Direct cause: The negligent party's deliberate acts, or lack of action, caused the injury

Harm: The injured party suffered a financial loss because of the negligent party's negligence (a medical bill, for example, would be a monetary loss)

Additionally, damages are designed to compensate someone for their injury.

Florida HB 87/ SB 1666 Shifts Burden from Banks to Homeowners!

            A bill recently passed by the Florida Legislature aims to shift the burden of proof in foreclosure cases from the Plaintiff, who is typically a Bank or Trust, to the homeowner. If the bill becomes law, a homeowner in a foreclosure case will have the burden to prove why the Plaintiff does not have the right to foreclose on their home, and—here’s the kicker—the homeowner must do this within 20 to 45 days of the date when they are served with the Summons and Complaint of Foreclosure. Upon filing, the Plaintiff can request an order to show cause. Thereafter, the judge reviews the foreclosure file, in chambers and without a hearing, and then issues an Order directing the homeowner to show cause why a final judgment should not be entered against them. The date of the hearing on the order to show cause cannot be sooner than twenty (20) days after service of the order or forty-five (45) days after service of the initial Complaint. That leaves little time for a homeowner to gather any type if evidence as the Florida Rules of Civil Procedure gives a party thirty (30) days to answer discovery requests. This truncated timeline gives the Plaintiff in a foreclosure case a huge advantage as it is speeds up the process without giving a homeowner adequate time to form a defense. A homeowner would need an attorney the day they are served with the foreclosure lawsuit to enable them to form a proper defense. Most homeowners are stressed and scared as it is with falling behind on payments, now they will have to obtain an attorney as soon as possible to even have a slight chance of not having a foreclosure judgment filed against them.

            As Florida remains to be the number one state in the country for foreclosure activity, the bill was enacted to speed up the foreclosure process and elevate the backlog of foreclosures cases in the Florida court system. But should it come at the cost of homeowners rights? There was an astronomical amount of fraud that came to light earlier in the foreclosure tornado, so much so that foreclosures were put on hold while it was taken care of, and now it seems like it will be even easier to allow the fraud to commence and continue as homeowners will not be afforded enough time to prove any wrongdoings by the Plaintiff if this bill becomes law. The only thing standing in the way of the bill becoming law is a veto by Governor Rick Scott, let’s hope he makes the right decision.

            Here at K/S Attorneys at Law we fight to defend your rights. Now more than ever homeowners must be proactive if they intend on keeping their home. Call us today for your no obligation free consultation, we offer affordable flat fees and actively fight to defend your rights.