A personal injury claim is an abstract legal right to compensation. It arises when someone else bears financial responsibility to compensate you for a personal injury that you suffered.
You might attempt to enforce your claim by negotiating with the defendant or an insurance company. Alternatively, you might try to enforce your claim by filing a personal injury lawsuit. Either way, you have a personal injury case as soon as you take steps to enforce your claim.
Major Practice Areas
The human body is fragile, and there are a thousand ways to injure it. You can break down the practice of personal injury law into various categories called “practice areas” based on the type of accident that generated the injury. Personal injury law is slightly different for each type of accident.
Vehicle accidents include auto accidents, truck accidents, motorcycle accidents, pedestrian accidents, boating accidents, and the like. One of the major limiting factors in vehicle accident compensation is the availability of insurance.
Florida, for example, applies a “no-fault” system to car accidents, limiting compensation to $10,000 for most car accidents. It also compels drivers to purchase a minimum amount of insurance to drive.
A visitor can file a personal injury claim against the owner or operator of property with a dangerous condition that injured the visitor. Under certain circumstances, even a child trespasser can file a claim. Most defendants in premises liability claims are commercial establishments, and most claims are based on slip and fall accidents.
Healthcare professionals such as doctors must meet very high standards of care toward their patients. If they fail to do so, and if their failure harms the patient, a medical malpractice claim arises. The use of expert witnesses is routine in medical malpractice cases.
A product liability claim arises if you suffer an injury from a defective and unreasonably dangerous product. You might suffer harm from a defectively manufactured prescription drug, for example. Many product liability claims are no-fault, meaning you don’t have to prove fault to win.
The workers’ compensation system covers most workplace injuries. Workers’ compensation claims are no-fault, but compensation is limited to economic damages. If you can find a third party other than your employer who is liable for your injuries, you can file a personal injury lawsuit for both economic and non-economic damages.
A criminal assault is also a type of personal injury claim (or wrongful death claim if the victim dies). In fact, it is easier to hold someone liable for an assault-based personal injury than it is to find them guilty of a crime. The typical problem is that insurance policies don’t cover intentional assaults, and violent criminals can rarely afford to pay personal injury claims against them.
One way around this problem is to find a company to sue for negligent security. If you were assaulted in a parking structure, for example, you might claim that the company that owned the structure failed to provide adequate security. In 2023, however, Florida passed legislation that will probably reduce compensation for successful negligent security claims.
If the victim dies in an accident that otherwise would have generated a personal injury claim, a wrongful death claim arises. The executor (personal representative) of the victim’s estate must file the claim. Courts distribute damages among surviving relatives and the victim’s estate.
The Legal Elements of a Personal Injury Claim
You can break down a personal injury claim into various “legal elements,” which are facts that you must prove to win your claim. The problem here is that there is more than one type of personal injury claim, each of which applies its own legal elements.
Following is an explanation of the legal elements of negligence claims, which probably outnumber all other personal injury claims combined.
- Duty of care: The duty to drive safely, for example, or a doctor’s duty to competently perform medical treatment on a patient.
- Breach of duty: Failure to meet the demands of duty. Duty plus breach equals negligence.
- Damages (physical injury and financial losses). You must prove all of your losses.
- Causation: The defendant’s negligence must have caused your losses.
Some personal injury claims, such as those based on product liability or a criminal assault, are not based on negligence and therefore apply a different set of claim elements.
The Plaintiff’s Burden of Proof
How much evidence do you need to win? A lot less than you need to win a criminal prosecution. While criminal prosecutions are based on the “beyond a reasonable doubt” standard, civil lawsuits are based on the “preponderance of the evidence” standard. As long as you can establish each element of your claim with a “greater than 50%” likelihood, you win.
If you can prove liability, the Florida personal injury compensation system will compensate you for all of your losses, both tangible and intangible. Economic damages are tangible, and noneconomic damages are intangible.
Economic damages include:
- Medical bills;
- Lost earnings; and
- Incidental expenses such as child care and housework services while you are incapacitated.
Economic damages are typically easy to count. Things can get tricky, however, if you expect your medical expenses and lost earnings to continue after you collect damages. In that case, you will need to estimate and claim future damages. In some cases, that might mean demanding, for example, lost earnings for 30 years into the future.
Non-economic damages include:
- Physical pain and suffering;
- Emotional distress;
- Mental anguish;
- Loss of enjoyment of life; and
- The inconvenience of living with injuries and limitations
Under certain circumstances, the victim’s spouse can file a “loss of consortium” claim for loss of companionship and sexual relations.
If the defendant’s conduct was outrageous, a court can award punitive damages on top of economic damages and noneconomic damages. Courts usually don’t, and defendants usually can’t afford to pay them anyway. Insurance policies generally don’t cover punitive damages, but the IRS does tax them.
No matter how much damage you suffer, Florida will reduce or eliminate them if the accident was partly your fault. If your fault was 50% or less, you will lose damages in exact proportion to your percentage of fault (if you were 35% at fault, for example, you will lose 35% of your damages).
If you were more than 50% at fault, you will lose all of your damages. Note that Florida overhauled its comparative fault rules in 2023.
How a Clearwater Personal Injury Lawyer Can Help You
A lawyer can help you in at least a hundred ways. Here are ten of them:
- Take an objective look at your claim;
- Perform an investigation of your claim;
- Advise you against mistakes that could damage your claim;
- Send a demand letter to the responsible party;
- Negotiate your claim on your behalf;
- Recruit an expert witness on your behalf;
- File a lawsuit if necessary;
- Conduct depositions, draft interrogatories, and perform other evidence-gathering activities;
- Draft a settlement agreement or represent you at trial, whichever turns out to be necessary; and
- Appeal an adverse court decision, should it become needed.
Parties resolve the great majority of personal injury claims at the negotiating table, not in court. Nevertheless, sometimes filing a lawsuit can give you leverage at the negotiating table.
Most Clearwater Personal Injury Attorneys Offer Free Initial Consultations
Since you can get a Clearwater personal injury lawyer to look at your claim free of charge, you have very little to lose by scheduling a consultation. Who knows? Your claim might be worth more than you think it is. However, if you are still not sure whether you require legal representation, feel free to contact the team at Roman Austin Personal Injury Lawyers at (727) 787-2500 to set up a free case evaluation.