Most personal injury lawsuits are based on negligence. This is easily explained. Everyone makes mistakes, and mistakes often amount to negligence. Furthermore, many people are insured against their mistakes. They have automobile insurance and homeowner's insurance; businesses carry general liability insurance to cover such misfortunes as slip and fall injuries by patrons.
Certainly, people sometimes cause harm intentionally. As a practical matter, though, relatively few lawsuits result from intentional torts because insurance coverage is generally not available for intentional wrong acts. Automobile insurance and other types of insurance provide the "deep pockets" into which personal injury plaintiffs can reach for compensation.
Negligence is the Failure to Use Reasonable Care Under the Circumstances
The tort of negligence amounts to the failure to use reasonable care under the circumstances. The elements of negligence are:
- Duty - the obligation to use reasonable care to avoid injuring the plaintiff.
- Breach of duty - the failure to use reasonable care.
- Proximate cause - legal responsibility for bringing something about.
- Harm - actual loss or damage that results from the failure to use reasonable care.
Some torts, such as defamation, can be committed either negligently or intentionally.
Compensation for Negligence Means Recovering Money for Economic and Non-Economic Losses
A plaintiff with a negligence claim may recover compensatory damages—money intended to compensate for the actual losses suffered. Compensatory damages cover economic losses such as present and future medical expenses and costs of property repair. Plaintiffs may also recover for non-economic losses such as pain and suffering. Punitive damages, awarded over and above compensatory damages and intended to punish the wrongdoer, are not available for simple negligence.
Personal Injury Compensation for Intentional Harm
Intentional torts include such wrongs as battery, assault and false imprisonment. The intentional torts all have various elements, but they share the common element of intent. In a negligence case, the defendant has failed to conform to a particular level of reasonable care, thereby creating an unreasonable risk of harm. In an intentional tort case, the defendant either wanted to harm the plaintiff, or knew there was a substantial certainty that his or her act would harm the plaintiff.
Compensation for Intentional Torts Includes Compensatory and Punitive Damages
The plaintiff in an intentional tort case may recover compensatory damages for his or her losses. Additionally, because the defendant often acts with malice in committing an intentional tort, punitive damages are usually available. Many intentional torts are also crimes for which the government may prosecute the perpetrator.
Strict Liability is Liability Without Fault for Engaging in Inherently Dangerous Activities
Strict liability applies when a person is engaged in an inherently dangerous activity, such as using explosives or keeping vicious animals. A person who engages in such activities is subject to liability for any harm that results even if the person took great care to prevent harm from occurring. The plaintiff need not prove the defendant acted unreasonably or with the desire to harm her.
Strict Product Liability Applies to Defective Products
Strict liability may also apply in the case of defective products. The rationale behind strict product liability is that anyone who places a defective product into the stream of commerce - from designers to manufacturers of component parts to retailers and anyone in between - can be held liable if the product injures someone.
Compensation for Strict Liability
In a strict liability lawsuit, including a product liability lawsuit, a plaintiff may recover compensatory damages for actual harm caused by the defendant's dangerous activity. Additionally, punitive damages may be possible if the plaintiff can show the defendant acted with malice in allowing the injury to occur.
A plaintiff who believes he or she has a personal injury claim should contact a personal injury attorney immediately. Most jurisdictions place time limits on bringing a personal injury lawsuit.
Source: Restatement (Second) of Torts (1965).
Additional Resources: How to Hire an Attorney
Jessie Vanwinkle - Jessie Vanwinkle is an attorney in practice since 1998. View her full profile for more information.
Join the Conversation