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Personal Injury Law Overview

Personal injury law is a vast area of law that basically boils down to when someone may be held legally liable for an injury or harm that you suffer.

evident Editorial Team
published
July 27, 2021

Personal injury law is a vast area of law that fits under the even broader umbrella of “torts” law. Torts law governs basically all civil disputes that aren’t contractual disputes. (Contractual disputes fall under, you guessed it, “contract law”).

But to put it more simply, personal injury law is about when someone may be held legally liable for an injury or harm that you suffer. One obvious example might be if you are in a car accident with a negligent driver. But you could also suffer an injury to your reputation which might give rise to a defamation claim.

Here are some of the general categories of personal injury cases:

  • Slip and fall
  • Traffic accidents
  • Workplace accidents (though these are treated differently under workers’ compensation frameworks)
  • Product liability
  • Medical malpractice
  • Intentional torts (including defamation)
Key Takeaways

What makes up personal injury law‍

The body of law that governs personal injury cases comes from “the common law,” which just means that it comes from the accumulation of judicial decisions over time (as opposed to laws passed by legislatures). This body of common law varies from state to state.

State legislatures could of course pass laws that specifically establish whether or not liability exists in certain situations, and many state legislatures have done just that. For example, legislatures have passed laws creating workers’ compensation regimes so that workplace accidents are handled differently from other personal injury cases.

But generally speaking, the status of the law today is the result of judges’ decisions in prior cases.

Statutes of Limitations

A key issue to keep in mind for all personal injury cases is that you must bring your claim within a certain period of time from when the injury occurred (or was first discovered) based on the relevant statute of limitations.

Statutes of limitations are created by state law and set time limits for claimants to bring their lawsuits depending on the type of injury or harm that is involved. For instance, the applicable statute of limitations might be different for a traffic accident than for a medical malpractice case.

The event which starts the clock, so to speak, may vary depending on the type of case. And this makes sense - consider a medical malpractice injury which may not be obvious on the day of the negligent medical treatment, but instead only becomes clear over time. For such circumstances, the statute of limitations will begin to run when the injury or harm is discovered. But in other instances, the statute of limitations is simply measured by the time of the injury. Consider for instance a traffic accident that causes immediately apparent injuries.

So on the front-end, the reference point is the time when the injury occurs or is discovered. On the back-end, the reference point is when you file your lawsuit. This means that the case does not need to be fully litigated and resolved within the statutory period. You just need to initiate your claim within that time period.

Liability and Damages

Before diving into the types of personal injury cases, a quick word on two key elements that are universal to all personal injury cases. In any personal injury case, there are two critical legal elements -- liability and damages.

Liability refers to whether anyone may be held legally responsible for the injury or harm that you suffered. Sometimes accidents happen in which no one bears any legal responsibility. But a successful personal injury case requires that someone be legally responsible for the harm you have suffered.

Damages, meanwhile, are the losses you suffered as a result of the injury. So the issue of “damages” is really just legal-speak for what losses have you suffered, and what compensation are you owed.

Proving these two elements are the backbone of any successful personal injury law claim.

Types of personal injury cases

There are a number of different types of personal injury cases, and both the facts and legal theories will vary depending on which type of case you’re dealing with. For instance, the facts and legal basis for winning a slip and fall case are different from those involved in proving a medical malpractice case.

Here are some of the general types of personal injury cases:

Slip and fall cases -- The classic example of a personal injury case, this is when you get hurt on another person’s property. And if you’ve been injured due to someone else’s carelessness, it is no trivial matter.

Just because your injury happens on someone else’s property, though, does not necessarily mean that they are legally liable for your injury. The important question in slip and fall cases (as with many personal injury cases) is often whether the people involved acted reasonably or negligently, including you.

In fact, in these and other types of personal injury cases, whether you share any responsibility for the accident may very well become an issue. Defendants will often try to shift the blame and argue that you were somehow careless or negligent in order to minimize their own liability. (For more information check out our articles on whether to hire a slip and fall lawyer and the costs involved).

Traffic accidents -- A key issue for traffic accident liability is whether the accident occurred in a “fault” or “no-fault” state. In fault states, the driver who is at fault pays for the accident. (In practice, this generally means their insurance company pays for the accident, and they in turn pay higher insurance premiums going forward). In “no-fault” states, meanwhile, injured drivers must submit claims to their own insurance company regardless of who was at fault for the accident.

Who is to blame for a traffic accident is not always cut and dry, though. Similar to slip and fall cases, defendants will often try to shift the blame and argue that you were somehow negligent and also responsible for causing the accident.

Workplace accidents -- These accidents are treated differently and handled under workers’ compensation regimes. Workers’ comp is a state-mandated program that requires employers to carry insurance in case their employees get injured or sick from a work-related cause.

One benefit to workers’ comp claims is that, unlike most personal injury cases, you do not have to prove anyone was at fault in order to recover benefits. Contact your state’s workers’ comp office (details available here) for the most up to date information about the program in your state.

Product Liability -- Although this is a subset of personal injury cases, product liability cases can themselves arise under different factual circumstances and legal theories.

A variety of factual circumstances can give rise to a product liability claim. These can include anything from your blender exploding because it was defectively manufactured, to suffering harmful side effects due to an undisclosed risk associated with a pharmaceutical or a household product.

The factual circumstances in turn give rise to what legal theory your product liability case falls under. One of the main questions is whether your product liability claim fits under a theory of negligence or strict liability. This distinction can make a huge impact on what you have to prove in order to win your case, and what types of damages you are able to recover.

In addition to strict liability and negligence, claimants might also pursue product liability claims based on theories of breach of warranty or even fraud.

Medical Malpractice -- This category is discussed in greater detail below, but at a high level, these cases involve a healthcare practitioner’s negligent or reckless conduct that causes you harm.

Medical malpractice cases can be complicated and often involve expert medical testimony because the claimant must prove that the medical practitioner’s conduct fell below the relevant standard of care.

Intentional Torts -- Many personal injury cases are caused by accidental behavior, but there are also so-called intentional torts. These range from defamation to assault and battery (which people generally think of as criminal offenses, but can also give rise to civil claims). The common factor, as the name suggests, is that they are the result of someone’s intentional conduct.

Medical Malpractice

Medical Malpractice occurs when a healthcare practitioner’s negligent or reckless conduct causes you harm.

One thing to keep in mind is that you don’t necessarily have a medical malpractice claim just because something went wrong, or just because you didn’t get better. Some conditions and diseases are untreatable. And even when a condition is treatable, people don’t always respond to treatments as expected.

The key element in a medical malpractice case is that the medical practitioner’s conduct didn’t meet the applicable standard of care. Basically, this means they must have acted negligently or recklessly. Reckless behavior is rarer, but would also make for an easier claim - consider for instance a doctor performing surgery while intoxicated.

A medical practitioner’s negligent (or reckless) conduct could occur a few different ways, including:

  • Making mistakes during a surgery or other procedure
  • Failing to diagnose a harmful condition
  • Failing to properly advise a patient about significant risks associated with a treatment

But, again, it is not medical malpractice simply because your condition worsened or did not improve. The key question is whether there was a departure from the applicable standard of care which gives rise to medical malpractice liability.

As a result, medical malpractice cases can be quite complicated, and often require expert medical testimony. They can also be tough to win.

Fortunately, though, medical malpractice lawyers often represent clients on a contingency basis, which means they don’t get paid unless you win your case. More discussion on contingency fee arrangements can be found below or in our article on how much a medical malpractice lawyer costs.

Intentional Torts

Intentional torts are a category of legal claims that involve someone’s intentional conduct. There are a variety of types of intentional torts, and they include claims involving harm either to you or your property.

Example of intentional torts include:

  • Assault
  • Battery
  • Intentional infliction of emotional distress
  • False imprisonment
  • Trespass
  • Conversion
  • Defamation

Assault and battery are often grouped together, and they are generally thought of as criminal offenses. But they can give rise to civil lawsuits as well and are actually two separate claims. Similarly, conversion is basically the civil law equivalent of the criminal charge of theft.

There are possible defenses available to defendants in intentional torts cases. The two most common defenses are (1) self-defense (or defense of another); or (2) that the defendant acted with the plaintiff’s consent. (Consider for instance a defendant charged with trespass who argues they had the plaintiff’s consent to be on their property).

Contingency Fees

If you’ve been injured, you want to enforce your legal rights and be compensated for your losses. But you may also be concerned about the costs involved in hiring a lawyer. That is understandable, and how much a lawyer will cost is front of mind for basically everyone who considers whether to hire a lawyer.

The good news is that many personal injury lawyers work on a contingency basis. This means that they get paid a percentage of your award if your claim is successful.

In other words, their fee is contingent upon the success of your case, and they will be paid a percentage of your award. Keep in mind that there are multiple paths to “success” for your case, whether it is through a jury award or a settlement agreement (more on these below).

Here's one example of what an award and lawyer's fees might look like in a slip and fall case:

Example pie chart of a slip and fall lawyer fee

By contrast, in many areas of the law lawyers charge hourly rates for their time and may require clients to pay retainers. (Retainers are essentially down payments on future legal fees and expenses). Fortunately, though, you shouldn’t have to break the bank - or in fact pay any legal fees upfront - in order to hire a personal injury lawyer and seek the compensation you are rightfully entitled to.

You should be aware, though, that if you find yourself as a defendant in a personal injury case, your lawyer will likely charge you an hourly rate or flat fee. Contingency arrangements are used for lawyers representing claimants as opposed to defendants, because there must be an award from which the lawyer takes their fees.

Settlements

Despite what TV and movies would have you think, most legal cases aren’t decided by a dramatic jury verdict. In fact, most cases never reach a judge or jury verdict at all, and many end in settlements. This is true of personal injury cases as well as all legal cases generally.

Parties might choose to settle their cases for a variety of reasons, including:

  • To avoid expensive litigation (because fighting it out in court is expensive)
  • To lock-in guaranteed compensation if you’re the claimant
  • To manage risk if you’re the defendant

Regardless of the role settlements play in the legal industry more broadly, the thing for you to understand is that personal injury cases often end in settlements. That is not an inherently good or bad thing. It’s simply a fact about how these cases play out, and one way your case might unfold.

An experienced personal injury lawyer will know how to navigate the life-cycle of your case. This includes when it makes sense to discuss settlements, and whether it makes sense to consider accepting a settlement offer or to press on.

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