Personal Injury Law

Personal Injury Laws are designed to compensate people who have been injured. When a person sustains physical, emotional, economic losses, even psychological injuries as a result of the wrongful conduct of another person, this is the area of Personal Injury. Wrongful conduct is broken down into different categories depending on the intention of the wrongdoer. Wrongful conduct includes negligence, recklessness, carelessness, or intentional conduct, actions, even omissions. The primary issues in each personal injury case are those in which proof of "liability and damages" are considered. Before an injured person can be compensated for injury, the attorney must be able to prove that the defendant (wrongdoer in a personal injury case) is legally responsible for the injuries. The legal term for responsibility is what attorneys call "liability". Only if liability can be established, may a judge or jury award "damages". Damages is a very broad and all-inclusive term, and can include, but may not be limited to compensation for medical treatment costs, lost wages - past, present and future earnings and/or loss of earnings capacity, emotional trauma, pain and suffering, and may also include damages for the spouse of the injured party when those injuries cause damages or changes to the marital relationship. These damages to the spouse are known as damages for loss of marital consortium.

What Is Tort Law

Torts - What are the differences between intentional acts and negligent acts?

Personal Injury is a small part of a vast body of law called the law of "torts". Torts include acts, or failures to act (omissions), by person "A" which acts interfere with person "B's" freedom to enjoy their personal and property rights. Torts include assault, battery, infliction of emotional distress, conversion, invasion of privacy, trespass, nuisance, and the like. These can be performed negligently, intentionally, carelessly, recklessly, or reckless disregard. In some limited cases tort cases are based on a concept known as "strict liability". For example, in cases involving defective products which cause injury to the user or consumer, the manufacturer of the product may be found strictly liable in tort for the damages. Negligence and carelessness usually result in the imposition of "compensatory" damages; those which are designed to compensate the injured victim. Willful torts, also called intentional wrongs, may lead to the imposition of punitive or exemplary damages - designed to punish the wrongdoer, as opposed to compensating the victim.

If you are considering enforcing your legal rights, or those of a loved one, based on an injury caused by the tortuous acts or failure to act by another, you must act promptly. Each state as statutes of limitation, which prescribe time periods in which you must initiate your tort case. These time periods can be quite short. In California, for example, the period limiting the initiation of a tort action may be only one (1) year from the date of the incident causing damage. Generally, this is defined as the date you "knew or should have known of the negligence". Cases involving tort actions require the experience of a competent personal injury attorney. You should consult The LoBELLO Law FIRM, immediately. Call 702.870.8000, or send an Email for a personal response.

Negligence

What is negligence, how is negligence proven, and what is meant by comparative negligence.

Torts can arise out of negligent, careless, reckless and even intentional conduct. Negligence is the failure of an actor to have used "reasonable" care under the circumstances, which have given rise to injury or damages. Conduct is measured against what a "reasonable person" would have done under the same or similar circumstances. Attorneys and judges do not measure a person's conduct against that of a perfect person. The analysis of a person's conduct is essentially the same for acts which are done wrongfully, as well as omissions or failures to act.

If you or your property have been injured or damaged as a result of someone else's action or inaction (omission) you may have a claim for the damages. A legal "claim" for damages is called a "cause of action". It is critical that you consult with a qualified and experienced personal injury attorney as quickly as possible. First, each state has statutes of limitation which prevent a lawsuit from being filed after a certain period of time has past from the date of the incident or accident. Second, witnesses move away or forget details of what occurred with the passage of time. Third, the most appropriate medical treatment can usually be arranged by an experienced attorney, so your injuries are treated and fully documented. If time passes from the date of the incident without obtaining appropriate medical care and treatment, the defendant will argue that you were not really hurt. Fourth, all of the details of wage and income loss, need to be promptly obtained from employers. Often following an accident time from work is lost; paid vacation time or paid sick leave and even seniority on the job can also be lost. These losses can be recovered for the injured party by a competent personal injury attorney who knows how and when to pursue all claims for the client. Finally, there may be issues of property damages, and insurance companies may not be willing to pay the true and accurate amount for the damaged property. For example, a client with a 25 year old classic automobile fully restored will need various sources of valuation for the vehicle, and an expert in the particular type of car damaged. Further, the laws which apply to personal injury cases differ significantly from state to state. Some states recognize, for example, a claim for the loss of enjoyment of life, and others do not. You must, therefore, consult with an attorney who is experienced and competent in this area of law. You must understand your rights if you have been injured by another's negligence, intentional acts, reckless conduct, careless conduct, or even omissions and failures to act. All personal injury attorneys are not the same, and you must remember that the true value of a personal injury claim is no accident; it is the result of experience and hard work.

For more information about Personal Injury Law, and your rights, especially in Nevada consult as soon as possible with The LoBELLO LAW FIRM. Speak personally with Attorney Mark A. LoBello. Call 702-870-8000, for a No Obligation Consultation.

Proving Negligence

Traumatic injuries change lives in many different ways. While the legal system compensates injured persons, no amount of money can reverse a serious life-changing injury, or the death of a loved one. It does not matter whether injury or death resulted from a car accident, negligent medical treatment, a construction injury, or a defective product; an attorney should act immediately. An investigation into the circumstances surrounding the accident is necessary to determine if a claim exists and, against whom. It is extremely important to start an investigation right away; to locate and obtain witness(es) statement(s), request medical records and gather the relevant evidence which may later need to be used to establish exactly what occurred. Evidence that will ultimately be used to determine whether an accident or incident resulted from someone's negligence or misconduct.

Evaluating a claim depends upon the type of case being dealt with. For example, a construction accident usually requires a different type of investigation than medical malpractice or auto accident cases. All cases must be brought within a strict time limitation called the "statute of limitations". If the claim has not been filed with the court within that period, it will be "time" barred, and cannot be brought. Delays can be quite costly in more ways than one. Not only may the claims be time-barred, the circumstances of the event and responsible parties may disappear as may critical evidence or witnesses.

Personal Injury Law - Comparative Negligence

Comparative negligence is something every defense lawyer will try to establish. The term refers to determining how much fault, if any, you (the injured party) may have in relationship to the fault of the wrongful party. To say it another way, if your own actions in any way contributed to the incident or accident, which caused your injury, that is "comparative" fault. Comparative fault laws are a little different in each state. Generally, the way this works is that, as the plaintiff (the one initiating the claim) any money damages you recover may be reduced, if (you) the plaintiff can be shown to have been in any way at fault for the accident. This is a major defense used by defense attorneys.

In some states, if a jury and judge find the plaintiff as equally at fault as the defendant for the injury or accident, no damages will be awarded. For example, in Nevada if the plaintiff is slightly more than equally at fault as the defendant for causing the accident, the plaintiff recovers nothing. (Plaintiff 51% fault, and Defendant 49% fault = zero recovery in Nevada). In California, if the plaintiff has been 90% at fault, and the defendant only 10%, then the plaintiff's recovery is reduced by the 90% that he or she was at fault. Thus, you can see that any reduction of a plaintiff's award which is to be determined by the percentage of fault that the jury attributes to the plaintiff can be an important consideration.

Who is Responsible for Injury?

What does the term "legally responsible" for causing an injury mean? What's the deal on liability insurance? Are they really on my side?

Responsibility for the injury or damages to another based on negligence for example, is established by the following questions:

   (1) did one person owe another person a duty of due and reasonable care, if so,
   (2) did the person breach, or violate that duty of care; and, if so,
   (3) was the breach of duty of care the cause of injury, and
   (4) did damages result from the breach of that duty of care.

These are the "text-book" elements of most tort claims, including negligence, medical malpractice, auto, bus, motorcycle, and other accidents, assault, battery, and many others. This is where your attorney will start in analyzing your claim. Remember, liability without damages, equals no case. Likewise, damages without liability, equals no case.

Personal Injury Law and the Liability Insurance Carrier

Personal injury arising from another's negligence may be covered by some liability insurance.

Liability coverage is a part of most insurance polices, including homeowner's, renter's or tenant's insurance, and automobile insurance policies. People and businesses typically purchase liability insurance for protection from claims against them for negligence. In most states the law requires that certain minimum amounts of liability insurance be carried by owners and drivers of automobiles, or other vehicles, including boats. A failure to carry at least the minimum of liability insurance coverage required by law, can result in the loss of driver's license privileges in many states.

However, remember that the minimums are just that, "minimums". These minimum required coverages are usually inadequate in the case of even a moderately severe accident. Imagine causing an accident which results in $25,000 in medical bills, and $10,000 in property damages to another person. A $15,000 or even $25,000 minimum liability insurance policy will not even begin to cover the possible damage award in a case like that. It is important, therefore, that you have adequate insurance to cover yourself in case of an accident in which you injure another person. We have found that it is typical to carry more insurance for another person than we do for our own protection.

Homeowners also secure liability insurance to insulate themselves from claims for personal injuries which can occur on their property. For example, if your DOG bites a guest or a friend FALLS inside your home, your insurance company presumably would pay the claim. In the event the case cannot be settled, your insurance company would also be required under most situations to furnish your legal defense. This does not mean you are immune from a lawsuit. I am always asked, can I be sued, and the answer is always the same - YES YOU CAN. Someone can ALWAYS file a lawsuit against you. The question is whether they will WIN OR NOT, and whether you are protected. Remember also, that if you do get sued, and do not have insurance to cover your defense, it could cost you tens of thousands of dollars in defense costs, even if the Plaintiff does not win.

Commonly, doctors, lawyers, accountants, architects, and engineers also carry professional liability insurance to cover them for any damages caused by their professional negligence.

Liability insurance generally does not cover claims made for intentional acts, such as assault, battery, slander or libel (except with a special endorsement), or even fraud. Insurance does not generally cover home-based business activities, diseases you pass on to another person or claims by one household member against another. No matter where your injury occurs, there may be an insurance policy that will provide coverage for the damages, of which you may not be aware. It is not wise to go it on your own, as insurance adjusters are not on your side but may cause you to sell a claim short.Liability insurance generally does not cover claims made for intentional acts, such as assault, battery, slander or libel (except with a special endorsement), or even fraud. Insurance does not generally cover home-based business activities, diseases you pass on to another person or claims by one household member against another. No matter where your injury occurs, there may be an insurance policy that will provide coverage for the damages, of which you may not be aware. It is not wise to go it on your own, as insurance adjusters are not on your side but may cause you to sell a claim short.

Damages

How are damages arrived at, what are "lawful damages", and how do attorneys gauge the value of a claim?

The "Law" is divided into two general categories - Civil Law and Criminal Law. A Tort is a civil ( as opposed to criminal) wrong, for which the law provides a remedy in the form of money damages.

To recover compensation under the tort of negligence, a plaintiff must prove that the defendant owed a duty of care to the plaintiff; and that the defendant breached or violated the duty; and that the breach directly and actually caused injuries or damages. Damages are assessed in terms of medical injuries (called special damages); economic losses, including lost wages, loss of future earnings and loss of earnings capacity; and non-economic losses, such as pain and suffering and emotional distress.

Some states allow for the recovery of damages items such as loss of the enjoyment of life in cases of severe accidents. This is where an experienced litigator comes in. Do not retain a lawyer to handle your personal injury case, just because he or she has been a friend of the family, or you met him at a party or because he set up your dad's business. There are lawyers which specialize in certain fields, even if not certified as such. A GREAT OUTCOME IN YOUR PERSONAL INJURY CASE IS NOT AN ACCIDENT.

Typically, a plaintiff injured in an accident or incident may recover damages which include the cost of medical and hospital bills, loss of earnings, property damages caused by the accident, pain and suffering, emotional distress and any other more subjective losses which the law recognizes as compensable losses. In addition, the spouse of an injured plaintiff may also have a claim, as an indirect victim of the defendant's negligence. In order to be compensated for your damages, the court (a judge or a jury - see Trials) must be able to determine what is the value of your loss. If damages are to speculative you will not recover. If, you just got that new business up and running, damages from loss in the business may be not much more than guess work, as there is no financial history.

If you have any questions, or you have been injured by the torturous conduct of another you should consult first with The LoBELLO LAW FIRM. In many cases the chances of recovery can be greatly increased with the representation of competent counsel.

So, How Much Could My Case Be Worth?

Personal injury attorneys can often provide an estimate of the value of a claim based on similar cases. There is research that can be done into settlement ranges and jury verdict values. However, the actual value of your claim can vary widely depending on several factors. Be very careful when lawyers promise big values or settlements; do not hesitate to obtain a second opinion. It is not prudent, nor is it good practice to promise clients large dollar amounts.

There are several factors which affect the value of a case. The seriousness of the injury, willingness of the insurance company to discuss or negotiate, or, whether and where the case goes to trial, the jurisdiction and the sensibilities of the jury or judge also weigh on the value of a claim. Judges and juries in different states or even counties in the same state come up with different values for very similar cases. Since attorneys cannot predict the future any better than you can, stay away from attorneys who make big promises. Your legal representative must have your trust and confidence. You need to believe in your attorney, and your attorney should also believe in you.

Damages can cover costs directly attributable to the injury, such as medical costs, lost wages and pain and suffering. If your injury is a lifelong debilitation you may be compensated for lost wages for the rest of your life and for estimated costs of any anticipated medical procedures. There is also the possibility of a punitive award if the injury was the result of a deliberate act, but these are infrequent and often are overturned when appealed.

e-mail: mlobello@lobellolaw.com

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