A personal injury occurs when a person has suffered some type of harm, either physical or emotional, from an accident or injury. Tort law governs legal claims arising from personal injuries. Tort law is a form civil law that provides a plaintiff with compensation for injuries. Common types of personal injury claims arise from negligence, but personal injury cases also include other sources of liability such as strict liability and intentional torts.

What is a Tort?

A tort is a civil wrong to a person or their property. The wrong is the basis of a legal claim. While a tort does include injury to property, a personal injury tort only involves physical or emotional injury to a person. Personal injury lawsuits, as opposed to criminal proceedings which are initiated by the government, are civil lawsuits brought by private individuals against other individuals, businesses, organizations, or the government. Some torts are also punishable crimes, but tort law only provides civil remedies. A state’s common law and statutory law govern tort claims.

Basis of Liability

Tort law is comprised of numerous specific torts, but there are three broad categories of torts: negligence, strict liability, and intentional torts.

Negligence

Many personal injury claims arise from the negligent conduct of others. Negligence occurs when a person’s conduct falls short of the standard of care that a reasonable and prudent person would have exercised in the same or similar circumstance. Consequently, the defendant’s intent is immaterial since only the wrongful action is relevant. Proving negligence requires showing that the defendant owed a duty to the plaintiff, the duty was breached, the breach was the actual and proximate cause of the injury, and the plaintiff incurred damages.

Strict Liability

In a strict liability case, also known as liability without fault or absolute liability, a defendant may be held responsible for committing a tort regardless of intent, fault, or negligence. Strict liability requires the following elements: duty, breach of duty, causation, and damages. As opposed to negligence, where the defendant has a duty of reasonable care, a strict liability defendant has an absolute duty to make something safe. Consequently, whether the defendant knew or should have known about the defect is unimportant. Strict liability is most often applicable in product liability cases involving a manufacturer or a seller that produces or sells an unreasonably dangerous product.

Intentional Torts

An intentional tort occurs when a person purposely causes harm to another person. Intentional torts require a showing of an overt act, a form of intent, and causation. Intent can be specific, general, or transferred. An actor with specific intent acts with the goal of bringing about the intended consequences of the action. An actor with general intent knows with a substantial certainty that the intended consequences of an action will occur. Transferred intent, on the other hand, occurs when the commission of a tort is directed against one person, but the tort is instead committed against a different person. The intent to harm one person is transferred to the tort committed against the other person.

Specific intentional torts related to personal injury claims include the following:

o Battery: Tort law defines battery as an intentional harmful or offensive touching of another.
o Assault: An assault is a threat or the use of force that causes the plaintiff to have reasonable apprehension of immediate or offensive contact.
o False imprisonment: False imprisonment is the act of confining or restraining a person to a bounded area without consent or justification.
o Intentional infliction of emotional distress: Intentional infliction of emotional distress occurs when a defendant’s actions amount to extreme and outrageous conduct. Courts define outrageous conduct as conduct that transcends all bounds of decency that is acceptable in society.

Settling a Personal Injury Case

Before a plaintiff files a formal complaint against a defendant, the parties may resolve the dispute by reaching a settlement agreement. If a settlement is not reached, the injured party may choose to file a formal complaint against the defendant. A complaint is a pleading that includes a statement regarding the court’s jurisdiction to hear the case, the plaintiff’s claim, and a request for specific relief from the court. The defendant must respond to the complaint with an answer that either admits or denies the plaintiff’s claim. If the plaintiff’s claim is denied, the defendant must give an explanation. A defendant may include a counter-claim in the answer. The complaint and the answer must both be served upon the opposing party.

Discovery begins after the initial paperwork is filed. Discovery is the exchange of information between the plaintiff and the defendant. The purpose of discovery is to learn about new information relevant to the case. The most common documents in the discovery process are interrogatories and depositions. An interrogatory is a list of written questions for the opposing party and a deposition is the out of court testimony of a witness. Pretrial procedures begin after discovery is complete. During this process, the parties meet to discuss a settlement or the judge will schedule a date for the trail. Trial begins if a settlement has not occurred.

Many cases are settled out of court. Alternative dispute resolution is a way to resolve a legal dispute without seeking a court-issued decision. Resolution methods include arbitration, mediation, and summary jury trial. In arbitration a person other than a judge makes the binding decision; in mediation a mediator helps the parties resolve the dispute but does not force a settlement; and in a summary jury trial the parties present evidence to a small jury for a verdict or for a polling of the jurors for the purpose of negotiating a settlement.

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