Domestic and International Personal Injury Claims: What to Do
What is Personal Injury Law? How to find the right lawyer.
The Bird’s-Eye View
What Personal Injury Is… (and isn’t)
Personal injury law, very simply put, is about one person getting hurt by another person, and the perpetrator being held legally responsible. It’s also called tort law in reference to the areas it covers. There is negligent tort law and intentional tort law, both as categories under personal injury law.
When a person gets hurt by another person, it’s usually the result of an accident or an injury. Often accidents are unavoidable, but there still needs to be some kind of legal remedy or compensation. This remedy or compensation is called a personal injury settlement or a personal injury lawsuit. Many accidents are avoidable, and this is where the concept of negligence gets introduced. (More on negligence in the drilling-down section below.) An accident or injury caused by a person who was being negligent gets viewed differently from an accident or injury that was intentionally inflicted.
How Personal Injury Cases are Resolved
Personal injury cases are disputes that get resolved in one of two ways: either in an informal resolution or through a civil court proceeding that ends up in a court judgement.
Most disputes over accidents or injuries get resolved without having to go through the whole court route to trial. Usually an informal settlement gets things taken care of (before or after the filing of a lawsuit). All parties sit down together (metaphorically speaking, and occasionally literally), negotiate, and come up with a written agreement. A reasonable amount of money as compensation gets agreed on and that’s the end of it. Some disputes get elevated into formal lawsuits. This happens when the person who got hurt files a civil complaint against the other person (or business, corporation, or agency). This is known as filing a lawsuit. Attorneys and the court get involved and it’s the judge or jury that ends up deciding the outcome.
There’s an in-between ground for dispute resolution, which is mediation and arbitration. These are proceedings that are weightier than an informal settlement but not as legal-heavy as a lawsuit. Many cases get resolved through mediation and arbitration. As an aside: the word “dispute” here doesn’t always mean that both sides are fighting each other, i.e., if I rear-end you and I acknowledge it was my fault, and we have our insurance companies sort it out and you get paid for the damage to your car, it’s technically a dispute . . . even though I don’t dispute that I rear-ended you. Semantics, that’s all.
Cases Don’t Stay Open Forever
There are statutes of limitations in personal injury cases. If the person who got hurt (the “plaintiff”) is thinking about filing a lawsuit, he or she has a limited amount of time to do that. In other words, you can’t have an accident and then 25 years later decide that your neck hurts and you’re going to go back and sue. Usually the period of time governed by a statute of limitations begins when the injury or accident happened. It does, however, vary from state to state and with the type of injury.
Kinds of Cases Covered in Personal Injury Law
Here’s a partial list of common personal injury cases: car accidents, slip & fall accidents, workplace accidents, medical malpractice, animal and dog bite injuries, defective and dangerous product injuries, wrongful death, chemical and toxin-related injuries, defamation (libel and slander), nursing home accidents, elder neglect or abuse, construction accidents, railroad worker injuries, sports and recreational accidents, assault and battery, asbestos-related injuries, birth injuries, catastrophic injuries, and food and beverage-related accidents.
What People Can Get in Settlements
Victims of personal injury cases can usually get compensation for medical bills, doctor bills, prescription drugs related to the injury, wages lost as a result of the injury or accident, loss of potential future income, rehabilitation expenses, and pain and suffering. It’s not always easy to get this compensation, especially if a person doesn’t know the law well or isn’t aware of his or her rights. It’s easy for an unknowledgeable person to accept a low settlement from an insurance company when they actually deserved and needed more. Don’t rely on online personal injury calculators.They are often inaccurate. Personal injury attorneys help victims understand their rights and fight for the compensation they need and deserve.
Let’s Drill Down a Little:
Personal injury law is also known as tort law. Tort law covers a broad area of law that includes damage to a person’s body or property or reputation or rights. There are different categories of torts.
As normal, functioning members of society, we hold ourselves to certain generally-accepted standards of behavior. We know what it means to act responsibly; we know that putting others at risk by our behaviors is not ok. Negligence, then, is when we do things intentionally or unintentionally that put other people at risk. Many personal injury cases boil down to someone acting negligently and someone else getting hurt because of that negligence. Examples of negligence can include an accident caused by a distracted or drunk driver, a medical situation that arises because a doctor was careless, a dog that is known to be mean that is allowed to run free and bite. In these situations, someone made a negligent choice that caused harm to someone else. Categories of negligence torts include duty of care; standard of care; proximate cause; calculus of negligence; rescue doctrine; duty to rescue; employment related; entrustment; negligent infliction of emotional distress; and malpractice (legal and medical).
When it’s clear who it is that has caused the harm, that person is responsible to pay for the damages. Hard costs can be pretty easily calculated (property damage or medical bills, for example). Costs to emotional and psychological health can be harder to determine. Loss of the ability to earn a living is another kind of damage that can occur.
There are different kinds of personal injury settlement calculators that exist to help determine compensation numbers. A quick search online will bring up personal injury calculators that claim to give ballpark figures of what a person can expect to receive in compensation for accidents, injuries, and pain and suffering. The same search shows broad personal injury insurance definitions for different categories of settlements. A personal injury lawyer and his or her team have the knowledge, tools and experience to accurately calculate reasonable settlements.
There are personal injury cases that don’t happen as a result of negligence. Instead they happen because someone intentionally caused harm to someone else. These are called intentional torts. Assault, battery, theft, trespassing, false imprisonment, conversion, fraud, invasion of privacy, and causing emotional distress are examples of intentional torts.
Assault is acting with specific intent to cause immediate harmful or offensive contact. It’s considered an intentional tort rather than a tort of negligence because carrying out an assaulting action means that the person has to be planning to do it. Assault doesn’t actually have to involve contact. It’s all about the intention and the apprehension that it causes the victim. If someone is waving a knife around and shouting, causing apprehension to another person, that can be considered assault.
Battery is when a person actually has harmful contact with another person, and means to do it. The contact can be peripheral—like a hat or a purse—and it’s still considered battery. Battery can be when a person hits another person with their car or truck; in other words, it’s not just person-to-person contact. The key to the definition of battery is “harmful” contact. You can’t claim battery just for being bumped on the subway or getting jostled as you wait in line at the theater.
Also, a battery victim doesn’t have to be aware of the harmful contact for the case to stick. A surgeon removing a kidney can’t for the fun of it also remove the appendix; that would be battery. Neither can the surgeon invite the neighborhood carpenter to participate just because he wants to; that would also be battery.
Conversion is when one person takes something that belongs to another person, but not with the actual intent of stealing. It can happen when a person loses something, another person finds it, and that person uses it as their own. It can be something as relatively innocuous as you removing jointly-owned furniture from your house, putting it into storage, and not telling your wife or your housemate where the furniture is. Or trees that are cut down and removed from a property by someone who doesn’t clearly own that land.
False imprisonment is holding or restraining someone in a closed area without their consent. It can apply to private holding as well as government detention situations.
IIED: The unseen injuries
The intentional infliction of emotional distress (IIED)–as opposed to the negligent infliction of it–is a tort that has come into existence in recent years. It’s applied to a person who subjects another person to extreme emotional distress on purpose. Sometimes it’s called mental distress rather than emotional, and some courts call it a tort of outrage.
This tort was created because it had become obvious that there was a gap in care for victims of some assault cases. In some cases, where battery wasn’t imminent, the threat of future harm was enough to cause severe distress to the victim. Assault law as it used to exist didn’t provide any care or compensation for these victims; they just had to endure. But the emotional harm was real and debilitating. The IIED tort was created to guard against this kind of abuse.
Trespassing is a property tort. This is when a property right is invaded rather than a personal right. It can include trespassing to land (going on someone’s land without their permission); trespassing to chattels (handling things that belong to someone else without their permission); and conversion (taking something off someone’s property with no intention of returning it).
Dignitary torts are intentional torts that include slander and libel. In these cases, the right invaded is the right to reputation and privacy. Other dignitary torts include defamation; invasion of privacy; false light; breach of confidence; abuse of process; alienation of affections; criminal conversation; and breach of promise.
Defamation is saying, writing or otherwise publishing things that are not true about someone else and that have the potential of harming their reputation. Although we most often hear about defamation of character, defamation can also be aimed at a person, business, product, group, government, religion, or nation. To constitute defamation, the claim has to be untrue and it has to have been made to a person other than the target. Defamation that is spoken is usually called slander. Defamation that occurs in print or in images is called libel.
False light refers to statements that aren’t technically untrue but are nevertheless misleading.
Breach of Confidence
The breach of confidence tort protects private information. Breach of confidence usually means that information that was intended to stay confidential within certain bounds was let out to the harm of a person or businesses or entity. Most people think doctor/patient confidentiality, but breach of confidence can also apply to situations involving banks, hospitals, businesses, etc.
Alienation of Affections
Alienation of affections is a tort that’s not seen often these days. It is an action brought by a deserted spouse against the person he or she thinks was the cause of the marriage falling apart.
Usually the target is a lover, although there have been cases where the target was a family member, counselor, therapist, or clergy member. Only six states in the US now recognize this tort (Hawaii, North Carolina, Mississippi, New Mexico, South Dakota, and Utah).
Filing a claim for alienation of affections does not require proof of extramarital sex. The plaintiff has to show three things: 1) there was love in the marriage; 2) that love was alienated and destroyed; and 3) the person being addressed caused the loss of love.
Seduction is a tort that still exists in some jurisdictions. Usually it’s an unmarried woman that will make this claim to get damages from the man that seduced her, especially if her consent to have sex with him was based on some sort of misrepresentation.
Historically the tort of seduction was most often used by a father. A daughter who had gotten pregnant out of wedlock and could not work impacted the income of her father, so if he claimed seduction, he stood to benefit by the damages.
When Personal Injury Happens Overseas
It’s stressful enough when an accident or injury happens at home, but when a person experiences personal injury overseas, in a place where the language and protocols are unfamiliar, it can make their stress levels unbearable.
There are plenty of accident abroad solicitors and attorneys who are just a phone call away from offering support and help.
Every year, thousands of tourists and visitors get into accidents abroad and have to file international personal injury claims. Fortunately, most countries have laws in place that help and protect visitors in these situations.
The best personal injury law firms have a cadre of accident abroad solicitors and attorneys to deal with all the ins and outs. They can usually speak an assortment of languages and also have established relationships with legal professionals around the world. Their network can smooth out the settlement process for all involved.
Laws relating to accident abroad claims vary from country to country, so it is good to have knowledgeable legal aid on your side from the beginning.
What is the process?
We encourage those who have had a car accident abroad or any other kind of accident or injury to contact UTFPA immediately. This allows our attorneys to assess the situation and then collect evidence to support the case. This is especially critical in wrongful death cases.
Sometimes accident abroad claims can be filed in the home country; other times they have to be filed in the country where the incident occurred. Either way, UTFPA can oversee the proceeding, even if it takes place in the abroad jurisdiction, and even if we have to work with attorneys in our international network of law firms and attorneys.
When a person has been seriously injured and requires immediate specialist care and rehabilitation in the other country, accident abroad compensation can often be gotten in the form of interim or insurance payments while the whole matter is getting sorted out.
Car Accidents Abroad
Attorneys representing a person who has been in a car accident overseas need information to help them handle the case. This information includes:
- The other party’s name and contact information
- Who owns the other party’s vehicle
- Name and contact info of the other party’s insurance provider
- Both parties’ vehicle registration numbers
- The registration country of both vehicles
- The makes and models of both vehicles
- An explanation of the incident
- Date, time, and place of the incident
- Names and contact info of any witness
If the other party is at fault, it is recommended to report the accident to the local police and get their contact information as well as the number they assign to the report. It’s also a good idea to take pictures of the accident scene and any damage to vehicles and/or persons.
For accidents that happen in the United States, each state and jurisdiction has its own accident report form. The accident reports are usually in a short form or long form report depending on amount of damage and/or injuries or death involved. For accidents that happen in Europe, there is a European Accident Statement form available online. Both parties should fill in the statement and sign it. It is considered legally binding after it has been signed. People involved in accidents abroad should report them to their personal injury attorneys or solicitors as soon as possible. If the event happened in Europe, there are EU rules in place to help the settlement process go as smoothly as possible.
Other Accidents Abroad
Accidents abroad other than car accidents can arise from many kinds of situations. Depending on the activity at the time, the location, and the arranger of the event, the responsibility for compensation can vary greatly.
A person working overseas when the injury happens may be able to file a claim through the employer, especially if the accident was the fault of the employer. If something happened in the context of a vacation booked through a travel agent, or on a guided tour, the agent or the tour company may be held responsible for claims. A person who fell on a moldy or upended sidewalk slab might file for damages against the property owner where it happened (a hotel or restaurant, for example), but if the same thing happened while walking through town, the claim might be barred or legally limited if against a government entity.
An accident that happened during a recreational activity—like kiteboarding, waterskiing, or zip-lining, for example—that was planned independently of the tour company would most likely not be able to be covered by them. Suing the company in the country is possible but can be pretty expensive and potentially not worth it. Each situation is unique and we can help you determine whether or not you have a viable claim.
As with car accidents abroad, it’s important to contact legal help when any other kind of accident or injury occurs. A personal injury attorney should be the first contact. UTFPA and our team can guide you in steps to take after that, including who should be contacted in the host country.
Contact our Personal Injury Attorneys in Orlando, FL!