Injury Law 101

We have successfully represented plaintiffs in civil matters for more than three decades.

Personal injury law is also known as “Tort” law; “Tort” is the French word for wrong.

If an individual has been physically injured, emotionally injured and/or their personal property has been damaged due to someone’s carelessness, recklessness or intentional misconduct the victim can depend on personal injury law to help them gain the compensation they need for their recovery.

An automobile accident is a classic example of an event covered by tort law. If someone hits the back of your car while you are stopped at a red light, that person commits a tort, and is referred to as the “tortfeasor” (French for “wrongdoer”). In the United States that person is generally referred to as the “defendant” once a lawsuit is filed, and the person harmed is called a “plaintiff” or “claimant.”

State law usually governs personal injury lawsuits, but federal law may apply in certain circumstances. Injuries suffered on federal property may fall under the Federal Tort Claims Act and liability for injuries resulting from an airplane crash may be governed by international treaty. A claim for personal injury must prove that an injury has occurred in order to seek monetary damages. For example, if you were to slip and fall, due to someone else’s fault or negligence, you could not recover damages if you were not injured in some way.

The law of personal injury is concerned with determining who may be responsible (who is “liable,” or has “liability”) for causing injury and how much the responsible party should be required to pay for any damages resulting from the injury. Personal injury law can be classified in the following three broad categories, or degrees of fault:

  • Negligence
  • Intentional Torts
  • Strict Liability Torts

Each of the categories is comprised of different types of legal wrongs (or “causes of action”), and indicates a different “standard of care” that may apply to a given incident.

Negligence:

The most common tort, and the one that is most difficult to define, is negligence. Negligence is defined as the failure to use reasonable due care to avoid a foreseeable harm to a person, place or thing. If a person or organization is negligent and their negligence causes an injury to another person to whom they have a “duty of care”, they may be liable to pay for any damages resulting from the injury.

A person or organization may be considered “careless” or “negligent” if they do not use the kind of “due care” that is appropriate to the particular situation in question. For example, a higher level of care is called for if you are pouring boiling coffee into a friend’s glass over his lap than is called for if you are pouring cold lemonade over the kitchen sink. Generally, the law requires that individuals exercise the same kind of “due care” that a reasonable person would exercise under the same circumstances. This is called the “reasonable man” or “reasonable person” standard.

Some common negligence claims involve:

  • Slip and Fall
  • Alcoholic Beverage Liability
  • Motor-Vehicle Accidents
  • Medical Malpractice
  • Unsafe Premises
  • Dog Bites

Product Liability:

Product liability law deals with the liability of a manufacturer, wholesaler or retailer of a product for injuries resulting from that product. This includes the manufacturer of component parts of the product, an assembling manufacturer, the wholesaler, the retail store or the ultimate seller of the product, and any other party in the distributive chain, regardless of whether you actually purchased the item yourself.

Research from the U.S. Consumer Product Safety Commission indicates that defective or unsafe products cause 29.4 million injuries and 21,400 deaths each year. You or a loved one may be injured by something seemingly harmless or something you use everyday, such as a hair dryer, toaster, baby chair, toy, iron, coffee maker, air conditioner, car, hand tool or even your clothing.

Product liability law gives consumers the ability to sue for and recover damages from manufacturers, distributors and vendors for injuries resulting from accidents caused by products. Virtually all products are subject to product liability law and this does not just include items on the store shelves. Products subject to the law run the spectrum from food, pet food, drugs, appliances, automobiles, medical devices, medical implants, blood, tobacco, gases, real estate, writings, maps, and even commercial jets. The U.S. Consumer Product Safety Commission’s Recalls and Product Safety Alerts is a great informational page for consumers and parents.

Other sites that provide safety and recall information about defective products include:

  • Find Law Recalls and Safety Alerts
  • Recalls.gov
  • FDA Recalls
  • Consumer Reports Vehicle Recalls
  • CPSC Toy Recalls

Products liability claims are tort-based claims that can arise from negligence, strict liability or breach of warranty. However, products liability is often focused on strict liability claims.

Strict Liability:

Strict liability is the term used to describe situations in which a person can be held liable for damages caused to another person even without negligence or other fault. Strict liability means “liability without fault,” therefore a person is liable whether or not they were negligent and whether or not they intended to do any harm. The law imposes strict liability on inherently or abnormally dangerous activities, or activities that are likely to cause particular kinds of harm. A typical example of this type of activity is the use of explosives – if injury results from the use of explosives, regardless of the purpose for which they are used and the care exercised, the operator of the explosives is liable to those damaged by their use.

Strict liability is also often imposed on manufactured products, under the law of product liability. Strict liability claims do not involve proof of whether or not someone acted reasonably or used appropriate care in manufacturing a certain product. Translated to products liability terms, a defendant in a product liability claim will be found liable for damages to a plaintiff if it is found that the product is defective, regardless of whether the manufacturer or supplier exercised great care when designing and manufacturing it. As such, a plaintiff does not have to demonstrate that the manufacturer or vendor was negligent or careless, only that:

  • A defect in the product caused the accident.
  • The individual was using the product in a manner consistent with the way it was meant to be used.
  • The product was not substantially changed between the time it left the seller or manufacturer’s hands and the time it reached the plaintiff.

Even if you are not the original owner of the merchandise you can sue for product liability. For example, if a friend lends you a power saw that turns out to be defective and injures you, you can file a product liability claim against the manufacturer, distributor, wholesaler and/or vendor of the item. Even a company that doesn’t actually make a product, but merely puts its label on it, is liable for any injuries the item causes.

In a negligence claim, a plaintiff must show that a manufacturer, seller, wholesaler or other party involved in the distributive chain had a duty to exercise reasonable care in the process of manufacturing or selling a product and failed to fulfill that duty which resulted in injury to the plaintiff. Negligence consists of doing something that a person of ordinary prudence would not do under the same or similar circumstances or failing to do something that a person of ordinary prudence would do under the same or similar circumstances. Some forms of negligence include:

  • Negligence in drawing up or reviewing plans for a product.
  • Negligence in maintaining the machines that make the component parts of the product.
  • Negligence in failure to anticipate probable uses of the product.
  • Negligence in failure to inspect or test the product adequately.
  • Negligence in issuing inadequate warnings or instructions regarding the use of the product.
  • Negligence in any other aspect of the manufacturing or distribution process where due care is not used

Breach of Warranty Claim:

A breach of warranty claim arises under the law of contracts, where the law imposes certain “implied warranties” on the sale of goods. Such warranties include the warranty of merchantability (that the goods are in proper condition for use and free of defects), and the warranty of fitness for a particular purpose (e.g., the refrigerator must be able to keep food cold and fresh; the chair must be capable of supporting a person’s weight). These warranties are called implied warranties because the law assumes that they apply even if they are not expressly stated. If a product does not meet these standards, the purchaser may have the right to return it and have the purchase price returned or at times they can receive monetary damages. The law of contracts covers economic loss caused by the breach of warranties in the sale of goods. The Uniform Commercial Code, Article 2, also deals with the sales of goods and the implied and express warranties of merchantability in the sales of goods §§ 2-314 and 2-315.

Personal Injury Damages:

The most significant issue to most people involved in a personal injury claim is the issue of damages. Obtaining fair and just compensation for injuries you have sustained is the primary concern at Geiser, Bowman & McLafferty. By using our experience and the extensive resources available to us on your behalf, we focus on achieving the highest possible monetary recovery for you.

When a judge or jury finds a defendant liable for wrongful conduct in a personal injury case, the issue then becomes what types of damages are due to the plaintiff and in what amount. As you know, if you suffer a personal injury you will most likely require medical attention and you may need rehabilitation; all of which costs substantial sums of money. You may lose income (and/or have to use up “sick time”) because of the injury and you may continue to lose income while treatment and recovery takes place.

Personal injury victims may have sustained property damage to their car and/or other property. Since they cannot drive their vehicle while it is being repaired they may need to rent one. Car repairs and rentals can cost a lot of money. You may also lose the ability to perform various activities of normal daily living and you may endure significant and on-going pain and suffering.

The law allows you to seek recovery after an accident to “make you whole again.” The central concept is that you should be compensated in a manner that places you back in the same position as you were before the accident or properly compensate you if you are unable to return to your previous position.

In most personal injury actions the plaintiff must have been injured in some way to be entitled to damages. For example, in negligence cases, we must prove that you suffered injury (some type of physical, emotional or monetary harm) for the defendant to be required to pay compensation to you. However, with some international torts (such as battery, assault, or trespass) we may only have to show that the defendant engaged in the unauthorized conduct, without proving that you suffered actual physical harm, in order to recover damages (though damages in these situations are often nominal absent serious injury).

Intentional Torts:

Personal injury caused by a person acting with the deliberate intent to injure another person is an Intentional Tort. This kind of conduct may be referred to as “malicious,” “purposeful”, or “knowingly.” A person who acts intentionally and causes harm as a result will be liable for the harm caused. When someone intentionally harms another person or his or her property, an intentional tort is committed. In general, intentional torts can be classified into two groups: intentional torts against people and intentional torts against property. Among the most common intentional torts that are encountered are the following:

  • Assault
  • Battery
  • False Imprisonment
  • Infliction of Distress
  • Fraud/Misrepresentation
  • Trespass
  • Trespass to Chattels
  • Conversion

In all matters involving personal injury, it is essential that measures be taken to promptly preserve evidence, investigate the incident in question, and to file a lawsuit prior to the deadline imposed by the statute of limitations.

If you or a loved one is a victim of personal injuries, please contact Geiser, Bowman & McLafferty at 614-222-4444 / 877-706-6446. Our initial consultation is free of charge, and if we agree to accept your case, we will work on a contingent fee basis, which means we get paid for our services only if there is a monetary award or recovery of funds on your behalf. You may have a valid claim and be entitled to compensation for your injuries.