Everything you've ever wanted to know about personal injury law, all in one place
Personal injury law is easily the most misunderstood body of law in America today. It's easy to see why; just look at any of the cases where something seemingly unusual happens, and you won't have to wonder why injury law leaves onlookers scratching their heads.
For instance, why is it that if I sell you a gun and you go shoot someone, I can't be held liable for that, but if a bar sells you enough beer and you go out and cause a car accident, they can be held liable for that? Doesn't that illustrate a terrible inconsistency in the law? Doesn't that mean that our civil justice system is broken?
Not at all. In fact, there are very good reasons that those two scenarios would be treated differently under the law. To a personal injury lawyer (or a lay person who takes the time to familiarize himself with how personal injury law actually works), it's quite easy to see that the seeming contradictions illustrated above are not contradictions at all, it's just that the circumstances are quite different.
Different enough, in fact, to warrant two polar opposite outcomes yet still be fair, reasonable, and, most importantly, predictable. It's just hard to recognize and appreciate the distinction between those two scenarios unless you have a good understanding of personal injury law.
But therein lies the problem. How does one become so familiar with personal injury law that they can analyze a personal injury scenario and anticipate the right outcome? There are really only two approaches:
- You can literally read all of the written laws & study all of the precedent-setting court decisions, and then you'll know on a case-by-case basis what the law says about a particular personal injury scenario.
- Or you can commit to memory a methodology, a cheat sheet of sorts that provides you with a basic framework so you can analyze any given accident and have a pretty good idea as to what the law has to say, without having to know all of the nitty-gritty details.
Obviously, the second approach is far more realistic, so that's where we'll start. To be clear, however, the goal of this article actually is to explain the nitty gritty details, eventually. So even though we're going to start by teaching you a shortcut, we're ultimately going to delve into the specifics a little further down the page.
We hope that once you're armed with the info below that you'll have a eureka moment, and from that point forward, you'll "get" personal injury law.
Personal Injury Law shortcut: The "I.D.R." Method
After a good while of wracking our brains trying to come up with a simple way to make such a complex subject make sense to everyone, we've finally got it. It occurred to us that explaining every little detail about legal statutes and court procedure, or explaining what the elements of negligence are, amounts to little more than trivia to most folks. When people say that they want to know how the law works, they really want is to be equipped to understand the law as it relates to everyday life (or to their particular situation).
So our shortcut method is all about accomplishing precisely that by teaching you the right questions to ask, and what we're about to describe is a method that is little more than a series of questions. When you apply this method and ask the questions, you will be equipped to understand how personal injury law works, or at least what you need to look for.
We call it the method I.D.R. It stands for Injury, Duty, and Remedy. Here's how the shortcut method works -- take any given accident scenario and just ask yourself the right questions about how the concepts of Injury, Duty, and Remedy apply to the accident:
- Was there an injury?
- Did anyone involved have a duty to keep the injury from occurring?
- Does the law allow for a remedy?
That's it. Take any given accident scenario, ask the I.D.R. questions, and the answer will either be apparent to you or you'll know specifically what you need to research further.
Let's elaborate a little bit:
The first question of was there an injury may seem pretty obvious. Nevertheless, we get numerous phone calls each week from prospective clients who were almost hurt or who had a close call, and they want to know if they can sue (they cannot). The answer to the first question of this shortcut method must be "yes" or it's not even worth asking the other questions. If there was no personal injury (or if there was an insignificant injury), then the law has little to say on the matter. If there was a personal injury, you move on to...
We're all familiar with the concept of duty. A soldier has the duty to serve his country. The president has the duty to faithfully execute the law. A lawyer has a duty to act in his client's best interests. A CEO of a publicly-traded company has a duty to serve the stockholders. In the legal field, we say that these people "owe a duty." Even though all of the duties just described are different, they all have one significant feature in common.
The soldier, the president, the lawyer, and the CEO all chose to take on responsibilities thereby creating a special duty imposed upon them. In other words, when you put yourself out there, especially when you're paid to do it, you assume responsibilities that everyone else does not have, and you have a legal duty to live up to those responsibilities. Another way that special duties are created is when a special relationship exists.
One of the parties to the relationship will usually incur a special duty to watch out for the other; typically the one who is in charge incurs the duty to keep the other free from harm. Further, even if you don't incur a special duty, just the act of participating in society means that you at least incur some duty. The baseline, most-basic-responsibility type of duty that is imposed on every single member of society is the duty to "act as a reasonably prudent person would under the circumstances."
Putting it all together, we are all duty-bound to at least not act carelessly such that someone is harmed by our carelessness, but certain types of people (usually those who put themselves out there professionally or who enter into a special relationship) are duty-bound to go out of their way to actually prevent harm. So any time that someone is hurt, you must ask yourself did anyone involved have a duty to keep the personal injury from happening?
If they are a regular person, you need only contemplate whether their behavior was reasonable or not. If it was, then they satisfied their duty and the personal injury is likely something they can't be liable for. If the person who caused the harm did so while engaging in behavior that was unreasonable (or if they did something that violated the terms of their special relationship or the willfully-assumed responsibilities of participating in the marketplace), then they probably can be liable for the personal injury. If you can establish that a duty was owed and prove that it was violated, then you consider...
Remedy, cure, compensation, relief; they all mean essentially the same thing. When contemplating the topic of remedy, you're effectively asking, is there some lawful recourse applicable to the circumstances in question? It is generally understood in law and in common sense that if someone causes a ps and they had a duty not to do so, that they are probably required to pay for it.
However, as the law has evolved over the years, lawmakers have desired to protect certain types of people by removing the remedy part of the equation. Examples include doctors, employers, and police and firemen. Each of those types of people can certainly cause injuries, and each of them owe a duty not to cause said injuries, however, since lawmakers have deemed these persons as worthy of extra protection, they have changed the laws regarding the remedy that an injured person can seek against these protected individuals.
How is it determined under which scenarios an injured person can obtain a remedy and under which scenarios they cannot? Unfortunately, that is not a topic that can be analyzed in terms of common sense alone, and one must turn to the written law to get a conclusive answer. However, just contemplating the concept of remedy is still a most useful exercise, since simply knowing that the ability to seek a remedy can be taken away arms you with the ability to know what questions to ask.
Personal Injury Examples
Let's put this shortcut method to work with some personal injury examples:
Imagine that a man named Bob was walking down the sidewalk when the driver of a nearby car fell asleep and ran Bob over, breaking both of his legs.
Using your newfound shortcut method, what do you suppose the law says about Bob's situation?
Well, was Bob injured badly enough to warrant whether or not the law cares? Yes, he was.
Did the driver of the car owe a duty not to fall asleep at the wheel? Well, let's run through the checklist
Was there a special relationship between Bob and the driver? No.
Was the driver doing anything in a professional capacity that caused him to owe a special duty? No.
Is the driver bound by the "reasonable person" standard and the duties therein? Yes.
Is there a likely a remedy available under the law? Just using common knowledge, we can comfortably say, yes, of course. Surely you can seek compensation from a driver that falls asleep at the wheel, and there is nothing special about this driver that would cause the lawmakers to want to give him an abnormal degree of protection by taking away Bob's right to a remedy.
Taken as a whole, we can ask the IDR questions about Bob's situation, and without ever reading a lawbook, you can derive an answer.
Here's another personal injury example. Imagine instead that Bob was on the job site doing construction work. The cheap scaffolding his boss bought gives way and Bob falls, breaking his back.
Using the IDR method, how would the law address Bob's situation?
Was he injured? Yes, Bob is plainly injured.
But did his boss owe him a "duty"?
Is there a "special relationship"? Yes. Bob's boss is required by Texas law to provide a reasonably safe work environment for his employees. By buying providing faulty equipment, Bob's boss breached his duty. Now that we've established that a duty was broken, we can move on.
Does Bob have a remedy under the law? He does. One way or another, his boss will have to compensate him for his injuries because lawmakers long ago decided to hold employers responsible for their employees' injuries. Injured workers don't have to bear all the burden. But the particular remedy that is available to Bob is open to interpretation:
If his boss's company has workers compensation coverage, Bob's benefits are basically guaranteed. However, those benefits are limited to having some of his medical bills paid for and he's paid for a limited amount of lost wages. The system, especially for those seriously injured, restricts medical help and lost wages to a pre-determined schedule of (quite low) payments.
This system is designed to basically cap employer payouts at the expense of workers. This would be an example of a remedy that was modified by lawmakers to protect a special class of people (employers). Bob still has a remedy if his employer participates in the workers' comp program, but the remedy is atypical.
If Bob's boss does NOT have workers compensation coverage, then Bob's remedy potential is much brighter. The law allows him to pursue claims for every single penny he lost in medical bills--past and future--as well a host of other losses like pain and suffering. Texas's lawmakers have not limited Bob's remedy against an employer who opts out of the workers' comp program. They only disallow Bob from suing employers who do opt into the workers' comp program.
In our last scenario, Bob goes in to see his doctor for leg pain. Rather than perform a full exam, the doctor simply prescribes pain pills. Six months later, Bob has to get his leg removed because his doctor failed to notice an infection that otherwise would have been easily curable.
Using the IDR method, what legal rights does Bob have?
Is Bob "injured"? This is touchy, considering that he already had an infection and the infection predates his encounter with the doctor. Since the doctor didn't cause the infection that took Bob's leg, where's the injury? Well, here, the "injury" stems from the fact that the doctor missed the curable infection. If the doctor had acted properly, Bob's leg would be fine, so the doctor is, in effect, liable for the portion of the injury the doctor allowed to happen.
Did the doctor owe Bob a duty? Let's run through the list first.
Did the doctor and Bob have a "special relationship"? Yes. But also, we all trust doctors with our health for good reason---they hold themselves out as experts in their fields, they've spent years in training, and they simply know a lot more than we do. We go to them when we've run out of other options. So, clearly, the doctor owed Bob a legal duty, for a variety of reasons.
Does Bob have a remedy? Yes, but just like in Example 2, it's a little convoluted. In the old days, Bob would be able to sue his doctor for whatever a jury decided a lost leg would be worth. Because of Texas's "tort reform" legislation in the early 2000's, the legislature has largely taken the remedy out of the hands of the jury. Today, Bob can sue for his lost wages---if he can manage to prove that he lost money---but little else other than medical bills. This is a case study in the fact that the legislature can severely limit your rights to recover what reasonable people would assume you'd be entitled to.
To really bring this message full circle, let's go back to the beginning. Why would I be liable if I sold you alcohol and you hurt someone but not if I sold you a gun and you hurt someone? The answer is that if I were a licensed provider of alcohol, I have agreed to abide by the rules that come along with my license. One of those rules is that I can be liable for "improper service" of alcohol resulting in personal injury. By obtaining the license and putting myself out there, I assumed a duty that regular people don't normally have. This duty is not an age-old duty borne of common law, rather, it is a duty created by lawmakers in Texas in the 80s.
As it relates to selling a gun, no such duty to avoid "improper service" exists under Texas law. Now, technically speaking, there is probably some very outrageous way that one could sell a gun to someone who then hurts someone with it that could be construed as violating the reasonable person standard, which would allow for a duty, but as it relates to the normal sale of guns, gun sellers do not owe specific duty such that legal action against them is at all likely to succeed simply because a gun they sold hurt someone.
Why is it that way? That's the way Texas lawmakers wanted it. Could it change? Of course, so long as lawmakers get such a law passed. So even though there are two different outcomes, the law is perfectly consistent: if there's a duty, there can be liability. No duty, no liability.
Where Does Personal Injury Law Come From
In our practice, we get to meet a lot of people from all walks of life. We've represented truck drivers, teachers, doctors, professional athletes, you name it. Very few people, though, have a solid grasp of what "the law" really means in a personal injury case.
In the realm of criminal law, if someone drives drunk and hurts someone else on the road, the state of Texas will prosecute the driver for intoxication assault. The state doesn't just represent the victim, but all Texas residents in the fight against drunk driving. The state must prove that the driver violated the statute, meaning a written law that the legislature passed making drunk driving a criminal offense.
A statute is like one of the Ten Commandments: it's a hard and fast rule written by a higher authority. If the state can prove the driver violated that statute, then the driver will likely be sentenced to prison time. At that point, the criminal process is over.
Strange as it may seem, there's no similar statute in civil law for suing the drunk driver for the injuries he caused the victim. Instead, the victim will have to rely on the civil court system to force the drunk driver to hand over just compensation by invoking non-statutory law. The court-developed means of doing this have been around for centuries; we call this "case law" or "common law."
Case law is a collection of decisions that our courts have made over the years, which can be reapplied to cases that happen even many decades later. Once a court rules one way or another on an issue, future courts can invoke that ruling as a blueprint which tells them how to handle the case before them.
For personal injury victims, think of criminal law and injury law as cousins: they seek to enforce the same rights, just for different reasons. The drunk driver who caused you pain deserves to face both the state of Texas (and potentially years in prison) criminally, but also the civil court system that will make him pay money.
By and large, what was said above adequately describes the majority of personal injury law; most of it is based on common law legal theories, not statutes drafted by lawmaker. However, when common law legal theories are not specific enough (or if they're just not well liked), lawmakers can step in and create statutory law which overrides common law. So how do we know which applies?
When lawmakers are silent on a subject, common law applies. But when lawmakers address a particular type of accident or injury scenario and prescribe a definite remedy (or take one away), common law takes a back seat to this new statute. Further, some types of personal injury cases only exist because they are created by lawmakers and there was no common law theory that allowed for suit to be filed before the advent of the new code.
So statutory law can both give and take away. For instance, the Texas Survival Statute created a right to sue where one did not previously exist under common law, and the Texas Workers' Compensation Act took the right to sue away where it once did exist under common law.
As if that's not tricky enough, most personal injury cases are based on a combination of statutory law and common law, so an attorney really must understand both in order to really help their clients. Understanding statutes and code is pretty easy, you just read the law. But understanding case law is a lifelong process. It is always evolving. In order for a lawyer to be good at his job, he must constantly read court decisions to learn of new developments in case law.
Here is an example that illustrates what a lawyer needs to know in order to handle a routine car accident case (which is about as simple as a case can be):
The scenario: Steve is driving down the road and a drunk driver rear-ends him, resulting in a back injury which requires surgery to repair.
In order for his lawyer to help him, the lawyer will have to know:
The ins and outs of common law theories of negligence (for the claim against the driver)
The Texas Dram Shop Act (for the claim against the alcohol provider)
The various court cases in Texas which established what types of losses one can sue for and what types are not recoverable
The infamous Haygood v. Escobedo case in which the Texas Supreme Court created the concept of compensation for medical expenses being subject to the "paid and incurred" cap
Various provisions of the Texas Insurance Code
And various sections of the Civil Practices and Remedies Code which will dictate the applicable statute of limitations, determine the venue where the case is filed, and provide the formula for calculating the limit on punitive damages.
Even a simple car accident case requires that a lawyer draw from numerous sources of law in order to know what to do.
Can I Just Fill Out Some Forms To Get My Compensation?
If you purchase life insurance, your spouse and children (or whoever else you name) are entitled to the funds when you die. In most cases, it is relatively simple for them to get their claim paid. They fill out some forms, prove through birth and marriage certificates their relation to you, and the funds should be disbursed. This is because, by contract, they are eligible for the insurance you set up for them. Such a claim is what we call an "eligibility-based claim."
This is not how personal injury law works at all.
There are no forms filed with the state or a private company that entitle you to payments for what you've lost. That's because personal injury claims are not eligibility-based claims, they are liability-based claims, meaning that the defendant is only obligated to pay once you have proven their liability.
Why? Why not simply streamline the claims process? There are many reasons, but perhaps the simplest is the most obvious: people would abuse it. You'd have people filing serious personal injury claims against their exes, quarterbacks from rival football teams, and just about anyone with money to go after, and there would be no judge to play referee and jury to set the standard. The concept of only making someone pay after they're proven to be liable---after a fair and full airing of the details---stretches back to Roman times.
We still use the same process (the civil jury trial) to determine when someone is eligible to be compensated because it's still the best system that anyone has come up with. It flies in the face of fairness to arbitrarily award money to someone without a testing of the facts and an opportunity to cross-examine one's accuser face-to-face.
Personal Injury law is not like Social Security. You are not entitled by a statute to receive compensation; you have to go get it by proving to a jury you deserve it.
Personal Injury Cases are Negligence Cases
Most people have heard, or even used, the word "negligence" in everyday life, but few know what it means in a legal sense. It is derived from the same root word as neglect, so, obviously, it means to ignore something. When someone is being negligent, the something that is being ignored is their legal responsibility to not hurt people. Altogether, that means that we can think of the term negligence as a succinct way of saying that someone neglected their responsibility to be safe.
We hear of "negligent spouses" or "negligent parents" and think of people not living up to their reasonable responsibilities. Notice there's a difference between a negligent parent and an abusive parent: while both cause harm, one is the result of an intentional action (abuse) whereas the other is more of a conscious indifference (negligence).
In personal injury cases, the perpetrator is usually simply negligent. Think not paying attention to the road before changing lanes, not ensuring adequate safety measures are in place for workers, or a doctor hurrying a patient through an exam rather than doing a thorough job. In other words, we're not usually talking about overtly criminal behavior, just failing to do what should have been done.
Interestingly, there is no statute or law that actually lists out all of the types of actions that constitute being "negligent." This makes personal injury law rather unique. For example, in the criminal realm, driving 10 miles over the posted speed limit is against the law---everyone knows when they're driving too fast, a police officer might well pull them over. Also, in real estate law, if you walk onto someone's property without permission, that's trespassing.
The Texas Legislature has decided that these actions are illegal long before they ever even occur, and such forbidden conduct is specific listed in various bodies of statutory law. But there is no statute that labels "looking down at your cell phone for 10 seconds while driving" as negligent behavior, but that's because there doesn't need to be. Simply having laws that proclaim someone is obligated to pay once their negligence is proven allows you to sue them under a theory of negligence for any conduct that a jury says is negligence.
One of the earliest reported negligence cases in the modern era concerned a barrel that fell out of a warehouse and landed on a passerby. There was no law about barrel storage at the time, but a court simply applied standard negligence principles and found that the warehouse was responsible for the damages the barrel caused. Cases like this develop without the need for the legislature to come in and tell courts what to do. They just evolve, and because of that, you don't need "barrel drop laws" or any other such specific laws. Just having "negligence" laws is sufficient to cover practically all scenarios that can come up.
Now, before you panic and say, "Can't juries just say anything is negligence?" there are two things that need to be considered. First, juries are regular people, and they don't typically make defendants pay for unavoidable accidents just because some lawyer thinks they should. Second, juries can't arbitrarily decide that some conduct is negligent conduct.
In order to prove something (anything) to the court, in any type of case, you have to provide evidence which establishes that the actions of the accused meet the legal definition of the allegations. All legal accusations consist of individual components called "legal elements." For instance, if you allege that someone broke a contract with you, you must first prove to the court that a contract existed, and a contract is a specific legal thing, so simply showing that any old agreement was in place is not sufficient.
You must instead prove to the jury that your agreement had all of the right elements to be considered a contract. Only after you prove that your agreement has all the right elements to be considered a contract can you then move on to the task of showing that the defendant breached the contract. Think of elements as ingredients: you take out one, and it's no longer what it claims to be. A chicken sandwich has to have two pieces of bread and chicken; take out any one of the three, and it's something other than a chicken sandwich.
Here's an example grounded in the law: To convict someone of murder in the first degree, a jury has to be convinced by the evidence that the defendant's conduct meets the following elements:
- acted unlawfully
- resulting in death
- of another human being
- without legal justification
- with malice of forethought
If the evidence showed that the defendant did all of those things but one, that's not murder in the first degree. Remember, all of the individual elements must be proven in order to convict someone in criminal court, and the same thing applies to negligence allegations in civil court. You must prove that the particular conduct that the defendant engaged in has all the right elements to be considered negligence.
What, then, are the elements of negligence? There are four:
- The defendant owed a legal duty to the plaintiff
- The defendant breached the legal duty
- The breach was the proximate cause of the plaintiff's injuries
- The plaintiff indeed suffered injuries
You'll probably notice that the elements of negligence sound a lot like our IDR method. Or rather, our IDR method is little more than a condensed version of the elements of negligence.
Back to the hypothetical of the person texting while driving which caused your injuries, you can see now why we don't need laws that say, "someone who caused an accident while texting and driving must pay a plaintiff." Instead, you just sue them under a theory of negligence, show to the court that the act of texting while driving is indeed negligent conduct, and then the jury will make them pay.
More on Proximate Cause
One of the elements of negligence mentioned above is the element of "proximate cause." Proximate cause is a legal term of art that basically means the main cause or the most important cause. For instance, if someone drops a brick off of a ladder onto a person below, what was the main or proximate cause of the victim's injuries? Well, looking at it from a logic perspective, what caused the brick to fall was:
Which is really caused by the brick's interaction with spacetime
Which is largely dictated by the brick's mass
Which was predetermined by the person who made the brick
Which was predetermined by the person who designed the brick
The person letting go of the brick
Which is the result of muscle contractions
Which were caused by impulses traveling from the brain to the muscles
The person choosing to let go of the brick
If you think about it long and hard enough, there are many causes and sub-causes of how or why the brick fell, and the above list can go on for pages. But the proximate cause, the main cause, was clearly the brick holder's conduct. All the rest are indeed causes, but they are not worth considering.
By now, you may be thinking, "Okay. I get it. The act of dropping the brick is the proximate cause, and that makes sense intuitively. But what is the legal reason that dropping the brick is the proximate cause?"
Just the same way that negligence has elements, proximate cause has its own elements. The elements of proximate cause are "foreseeability" and "cause in fact" (AKA, the "but for" test).
Foreseeability - To foresee something is simply being able to reasonably anticipate that it can occur. A defendant has to have been able to reasonably foresee that their conduct could cause the type of harm the victim sustained. If they couldn't possible have guessed that their conduct was dangerous, then the personal injury was not foreseeable.
Cause in fact - To determine cause in fact, we use the "but for" test. "But for X occurring Y would not have happened." For instance, but for the person on the ladder deliberately letting go of the brick, the injury would not have happened.
The best example of how foreseeability and cause, in fact, add up to equal proximate cause is the famous (and somewhat absurd) case of Palsgraf v. Long Island Railroad Company. In this case, a man was boarding a crowded train and two railroad employees tried to assist by pushing the man into the train. In doing so they knocked a package out of his hands.
As fate would have it, the package contained fireworks which spilled out onto the rails. The fireworks were ignited, and then they exploded every which way. One of the fireworks (or perhaps the shockwave from them) knocked over a large scale at the end of the rail platform, and the scale landed on Ms. Palsgraf, causing injuries. She sued the railroad alleging that they the railroad employees' negligence caused the chain reaction that resulted in her injuries.
Ultimately, she lost her case because she couldn't prove that it was foreseeable to the railroad employees that pushing the man could have set off such a chain reaction. Sure, she was able to prove that the employees' conduct was the cause in fact of the accident (since you could say, "but for the employees pushing the man the fireworks would not have fallen onto the rails").
But since it was determined that the employees could not possibly have foreseen that such harm could be caused by pushing the man, the court concluded that Ms. Palsgraf did not meet the legal burden of proving all of the elements of proximate cause, which, by extension, meant that she did not prove that the railroad was negligent.
Where proximate cause usually becomes a problem is when there are subsequent bad acts undertaken by other bad actors. To use an extreme example, let's say Sue throws Bob into a lake outside of Austin. Unbeknownst to anyone, a nearby circus has negligently released several African crocodiles and Bob gets eaten by a croc. Can we really hold Sue responsible for that? It's true, yes, that but for her action, Bob wouldn't have been in the water in the first place. Still, there's no way Sue could have foreseen the crocodile. The law would require a court to not penalize Sue, even though her conduct met most of the elements of negligence.
Also, this frequently becomes an issue when there are pre-existing medical conditions. If you had back problems before you got into a car accident, you could not pin those injuries onto the negligent driver who hit you unless you can prove that the driver made your problems worse. Let's put it in simplistic terms: If your back injury cost you $100 a month in medication, and the injury increased the costs to $150 a month, then the defendant proximately caused the extra $50 a month in costs, not all of it.
All of what has been said about negligence so far is really talking about what we call ordinary negligence. We call it ordinary negligence because, as you're about to see, there are other special types of negligence.
Personal Injury Causes of Action
You might have heard of the phrase "cause of action." While it might sound like a Schwarzenegger movie, it's really just another way of saying "a right to sue." The law does not allow people to be hauled into court for just any reason; instead, courts and legislatures require litigants to file claims against each other on grounds that are already understood by the court. The "already understood mechanism by which you can sue" is the cause of action.
When you sue someone in a negligence-based case (as we described before), the technical way of describing it is to say that you are suing them under a negligence cause of action. Likewise, in contract law, when someone violates the terms of a contract, you are suing them under a breach of contract cause of action. Or when someone slanders you, you sue them based on a slander cause of action. Negligence causes of action are by far the most common causes of action applied in personal injury law for the simple fact that the law doesn't identify every type of wrongful conduct with its own law, so when you have been hurt by some type of dangerous conduct, you sue under a negligence cause of action, and it's probably got you covered.
Notwithstanding that fact, there are however laws that do address specific conduct. Let's restate that to be crystal clear... The personal injury laws of a given state don't normally list all of the types of bad conduct that create a cause of action, but that doesn't mean they never write laws that do list specific bad conduct. Sometimes politicians will latch onto a specific public safety issue and they will effectively say, "Yes, you can sue someone for doing X using a typical negligence cause of action, but we think that this problem is so bad that we will instead make a law that specifically creates a new type of cause of action for that conduct, rather than relying on the common law negligence cause of action."
So what you end up with is a mixed bag. When the written laws say nothing about some particular conduct but that conduct still meets the definition of negligence, you sue them alleging a negligence cause of action. But when the written laws do address the particular conduct, a new cause of action is created by that statute, and it replaces the common law negligence-based cause of action.
All that to say that when someone hurts you, you can usually sue them under a regular negligence cause of action, unless there is some more suitable cause of action based on a law drafted by a lawmaker.
So if a negligence cause of action isn't the only legal theory by which you can sue someone, what are ALL of the personal injury causes of action? Well, there are many of them, but they all fall under the following categories:
- negligence causes of action (which we've already covered)
- negligence per se causes of action
- statutory causes of action
- gross negligence cause of action
Let's run through those types of causes of action. To make them easier to understand, we will assume that you now are familiar with what makes a regular negligence cause of action tick, and we will simply compare and contrast these new types of causes of action to what you already know.
Negligence per se
"Per se" means "in itself." So negligence per se refers to conduct that is inherently negligent in itself. In other words, such conduct is simply understood to be negligent, you don't have to illustrate that it is. When a defendant engages in conduct that is inherently negligent, you can sue them under a negligence per se cause of action rather than an ordinary negligence cause of action. But how do we know what conduct is inherently negligent? The answer: it's conduct that is also criminally illegal in addition to being negligence.
If there is a law stating that some conduct is a criminal offense AND that conduct happens to also happen to reflect unsafe behavior, then, by engaging in said conduct, the defendant has committed negligence per se. A good example would be that of car accident cases involving someone running a stop sign. Since there is a law that says running a stop sign is a criminal act, and since it is also a negligent act, it is understood to be inherently negligent and you sue the stop-sign runner under a theory of negligence per se and not under a theory of ordinary negligence.
In practical terms, by suing for negligence per se, you don't have to prove to the jury that what they did was negligent (by proving all of the different elements of negligence like duty, breach, etc.). Instead, you just have to prove that they did the thing that the criminal law says they can't do and it's understood that they are negligent by default; i.e., negligent per se.
Statutory Cause of Action
A statutory cause of action is a pretty simple concept. Lawmakers write some specific civil law (as opposed to a criminal law) that creates from scratch a cause of action that didn't exist before.
For example: Under common law, governments enjoy sovereign immunity, which means that they can't be sued no matter how negligent they may be. However, lawmakers in Texas realized that it's unfair to not allow people to sue the state when the state hurts them, so they passed a statute called the Texas Tort Claims Act, which allows injured citizens to sue the State of Texas, municipalities, and what they call "local governmental bodies" (which basically means school boards, counties, etc.).
A unique feature of some statutory causes of action is that you just have to prove that the defendant did the thing the statute forbids, and you don't have to translate that into a negligence argument (usually). So if there exists a statute that says walking a dog on Wednesdays is a wrongful act that you can sue someone for and your neighbor walks their dog on Wednesday, you don't have to prove that the neighbor was negligent, just that they walked their dog on Wednesdays.
Now, where things get tricky is that some statutes create the cause of action but then still require you to treat it as a negligence case. That's not worth delving into too far, just understand that the statute can say whatever the lawmakers want it to say, and typically a statutory cause of action just requires that you show the defendant violated the statute.
Lastly, it's important to note that sometimes lawmakers take an existing common law negligence-based cause of action and then they replace it with a new statutory cause of action. Usually when this is done, the goal is to limit your ability to sue. For instance: Once the first Texas court in the late 1980s said that a bar's improper service of alcohol was a type of negligence that they could be sued for, this set precedence that enabled anyone injured by drunk drivers to sue the bars that served the drunk.
Our state's lawmakers decided that such vague concepts of "improper service" or "negligent service" of alcohol would be too nebulous for bars or accident victims to interpret, so they replaced the newly created common law negligence-based cause of action against bars with a statute called the Texas Dram Shop Act. The act spelled out specifically what a bar has to do to be liable.
Gross Negligence Causes of Action
Lastly, personal injury lawsuits can also be based on a gross negligence cause of action. Gross negligence is different from ordinary negligence in that it is the most extreme form of negligence. Gross negligence is defined as "negligence which shocks the senses." So if what a defendant did to cause your injuries would elicit a gasp from the jury, chances are, that's gross negligence.
For example: We handled a case once where a gentleman was working on a personnel platform that was hoisted about 60 feet into the air by a crane, so that he could weld rebar on a concrete form. The owner of the company he worked for got into a literal fist fight with the person operating the crane, which led to the crane operator to hit the wrong lever, causing the man on the personnel platform to fall to his death.
Rather than calling 911 to try and save the dying man, the owner of the company got into his car and drove to a nearby pawn shop to purchase an OSHA-required safety harness that the worker should have been provided within the first place. The owner of the company then drove back to the worksite and attached the safety harness to the now-deceased worker's lifeless remains. The owner of the company then lied to OSHA and police investigators, telling them that the decedent was wearing the harness the whole time and that he must have forgotten to tie it off to the crane. That is gross negligence.
The primary feature of a gross negligence cause of action is that it enables you to sue for a different type of compensation. We'll cover this in more detail below, but ordinary negligence cases enable you to sue for what amounts to reimbursement of your actual losses, whereas a gross negligence cause of action allows you to sue for extra compensation to punish the defendant for their egregious conduct.
Further Reading on the Topic of Negligence
Now that we've introduced you to the basics of negligence, you're ready to learn more about the specifics. The law on negligence has developed over centuries, but a number of key concepts have developed that continue to shape how courts analyze specific situations.
Here are some articles that will help you better appreciate how negligence works:
- What lawyers mean when they talk about the "elements" of a case
- Elements of negligence
- List of Texas personal injury causes of action
- Commonly used negligence arguments
- Negligent entrustment
- Negligent supervision
- Negligent hiring
- Negligent training
- Negligent handling of animals
- Failure to maintain speed
- Non-subscriber work injury
- What is negligence per se?
- Commonly used negligence per se arguments:
- Running a stop sign
- Running a stop light
- Blocking a roadway
- Street racing
- Driving under the influence
- Negligent entrustment of a motor vehicle
- Driving on the wrong side of the road
- Commercial driver's failure to use hazard lights when vehicle is disabled on the side of the highway
- What is gross negligence?
- Dram shop
- Bystander claim
- Products liability
- Wrongful death
- Survival action
- Workers compensation claim
- Premises Liability
Being hurt by someone's misconduct creates a cause of action
When lawmakers haven't made laws regarding a particular type of dangerous conduct, you sue the defendant based on a court-created negligence cause of action
When lawmakers have made laws regarding a particular type of dangerous cause of action, such laws replace the court-created cause of action
Personal injury causes of action can be based on negligence, negligence per se, statutory violations, based on gross negligence
Shortcuts, Roadblocks, and Counterintuitive Theories of Liability
Negligence is the primary means to attach liability to a defendant. Over time, however, courts have developed what could be well termed "shortcuts and roadblocks" in the process. A shortcut in attaching liability skips over the arduous task of arguing why the defendant misbehaved and specifies that as a matter of law, that defendant is liable. A roadblock, as you've probably already figured out, is the exact opposite. This is done for reasons of efficiency and basic justice.
Further, courts and legislatures sometimes hold people liable for actions that, on their face, may not seem all that objectionable. But agree with them or not, there are interesting purposes behind them.
Shortcuts To Liability
Vicarious Liability: The law holds certain classes of people responsible even if they weren't "involved" at all. For example, employers are often on the hook for their employees' mistakes.
Strict Liability: Courts have found that some behaviors are so inherently dangerous that the party responsible is not entitled to any "defense" as to their liability.
Non-subscriber Work Injuries: Because of the superior power employers have over their employees, Texas law has removed almost all potential defenses when a worker gets hurt if the employer doesn't have workers compensation. This makes winning a non-subscriber case less challenging to prove liability most other personal injury cases... in theory.
Roadblocks To Liability
Sovereign Immunity: This ancient doctrine of law prevents the injured from suing the government, except where the government gives you permission.
Parental Immunity: Children cannot sue their parents for negligent acts that cause them harm. Further, outside parties who cause children harm cannot claim that a parent should have exercised better control and thereby reduce their own liability.
Workers Compensation: If an employer has workers comp, its employee cannot sue his or her employer for damages.
Statutory Immunity: Legislatures sometimes carve out situations where, in their judgment, people shouldn't be held liable for anyone's injury.
Counterintuitive Theories of Liability
Dram Shop Laws: Bars and restaurants that serve alcohol can be held liable when alcohol is later a factor in an accident. But why? Isn't the drinker the only person who should get into trouble?
Intentional Torts: So much of personal injury law concerns people making mistakes, which is why we call them car/workplace/truck/construction accidents. However, individuals who were trying to hurt someone else can certainly be held liable for the intentional infliction of injuries.
Products Liability: You can't sue an object that hurt you, but you can sue the person or company that made it.
Accusations, Allegations, and Facts
As you can imagine, personal injury cases require proof. Accusations are not worth the paper they're written on unless you can back the claims up with evidence. From TV and the movies, we've all seen this in criminal cases with witnesses on the stand, alleged murder weapons in plastic baggies, and pictures from the crime scene. Personal injury cases are almost exactly the same.
Further, evidence can be interpreted. Whether it was OJ Simpson's bloody glove or some obscure text message a negligent driver sent right after an accident, lawyers always argue over what the evidence actually means.
Keep two things separate in your mind: what we call "questions of law" and "questions of fact."
A question of law usually requires a judge's interpretation of whether a law, if any, applies in the given situation. For example, in a workplace injury case, the judge decides what specific questions the jury must decide on at the end of the trial. The judge is the ultimate decisionmaker with respect to technical legal matters.
A question of fact requires the jury to weigh the evidence. A jury can choose which evidence is more persuasive and to believe all or even none of the witnesses in a case. There is always evidence on each side of a personal injury case; the jury's job is to decide whose is more believable.
Here are some examples:
Imagine that Texas has a law that says you can sue a thief who steals your property for the emotional distress and inconvenience of dealing with the theft, plus you can also sue them for the value of the item they stole. You're renting a car and someone steals it. Even though it's not technically your property, you still experience all of the stress and hassle of dealing with the rental car folks, the police, insurance companies, and you have to pay an insurance deductible.
You learn who stole the car and you sue them. Now, the law says that you can sue anyone who steals your property but the rental car technically isn't your property... or is it? If you filed suit against the defendant citing this law, the defendant's attorney would probably ask the judge to throw the case out since you're not the one who technically owns the car. The judge would have to decide if that technicality should keep you from filing suit. Does he follow the letter or the law or the intent of the law?
This is an example of a question of law. Laws are general and cases are specific, so there are always issues that come up whereby a judge must decide whether the law should be applied this way or that as it relates to your unique circumstances. If you've ever wondered why judges are important or what makes them so powerful, this is it. Another common question of law that comes up in almost every case is the admissibility of evidence.
Should certain photos, witness statements, expert testimony, or police report be presented to the jury or is something improper about the particular piece of evidence that would make its inclusion in the trial unfair to your opponent?
Fact questions are much simpler of a concept. Does the evidence show that the defendant entered into a contract with the plaintiff, yes or no? If yes, did the defendant breach the contract, yes or no? If yes, what compensation should be awarded to the plaintiff?
Courtrooms are where the drama happens in personal injury cases as jurors watch witnesses' credibility and stories challenged. The lawyers' job is to find the best evidence for their side and poke holes in the other side's story.
- What "burden of proof" means
- Beyond a reasonable doubt
- Preponderance of the evidence
- Clear and convincing evidence
Personal Injury Compensation
Everyone knows that the entire purpose of filing a personal injury lawsuit is to get some level of justice for the victim. No jury can ever give a victim back all the days he or she suffered in pain, missed work, or any future sufferings that will occur. The best thing a jury can do is offer some kind of financial compensation to the victim. We call compensation paid to victims "damages."
But juries are not allowed to simply pick a number out of thin air to award the victim. Juries must carefully weigh what exactly a victim lost and then arrive at a dollar amount proportional to that suffering. These damages must be tied to something specific, but there are no statutes that explain exactly what the number is. Instead, juries are required to weigh different types of evidence of both economic and non-economic damages and arrive at a reasonable figure.
A common example of economic damages is lost wages. If a personal injury caused the victim to lose a month of work, then the jury would have the reasonably easy job of doing simple math of what the victim's wages would have been and then simply awarding that amount.
However, the law allows victims to receive compensation for non-economic damages that are no less real or important, even if they are more difficult to put an exact figure to. In serious personal injury cases, victims can be impaired for the rest of their lives. They might not be able to walk, pick up their children, see correctly, or have the same marital relationship they had before.
Just because it's impossible to use market-based analytics to determine how much, for instance, never seeing a sunset again or never being able to be intimate with your spouse again is "worth," that doesn't mean the perpetrator of the personal injury should not be forced to pay.
It's worth pointing out that Texas courts and lawmakers have zeroed in on the types of damages they think you should be allowed to sue for. If there is no case law or statute that says you can sue for a particular type of loss, you can't sue for it and a jury can't award it to you. For instance, some states allow you to sue for negligent infliction of emotional distress.
The idea behind NIED is that someone's carelessness caused you to experience severe emotional distress (such as PTSD) and you can make them pay for that distress. Texas does not allow you to sue for NIED. You can sue for some losses and not for others, so it's important that you understand which types you can and can't sue for.
Personal injury damages come in two main forms, Compensatory and Exemplary. Compensatory damages are those which as designed to compensate you for what you've lost, and there are a few categories of compensatory damages. Exemplary damages are those that are paid above and beyond what you lost in order to punish the defendant.
Personal injury damages you can sue for under Texas law:
- Economic (or Compensatory) Damages
- Exemplary Damages
- Remedial Measures
- When bad business practices cause a personal injury, you can often compel the defendant to change their ways. For instance, we once litigated a case against Applebee's regarding a fatal injury that really all boiled down to a misunderstanding by one of their employees. The employee thought they were doing X but instead, they did Y. The really sad part was that there was a readily available explanation chart that would have cleared up all of the confusion had it been made available. As such, one of the terms of settling the case was that the restaurant agreed to make this chart available so that such a mistake would not occur again. Sometimes the simplest things can have a huge impact on safety, not to mention that gestures of this type are usually far more important to grieving families than money. Unfortunately, juries cannot force companies to change their ways, which means that remedial measures are often only obtained when you reach a settlement. We are big fans of remedial measures since they are a great opportunity to avoid the same accident in the future. Getting money for a client feels good. Knowing that a company had to change their ways and that will literally save lives directly feels awesome.
In the interest of being thorough, it's worth mentioning that virtually everything we described above also goes by another name. In legalese, economic damages are also known as "special damages" and non-economic damages are also known as "general damages". The terms mean essentially the same thing. You may also hear attorneys refer to economic damages as "losses of a pecuniary nature." This too just means economic losses.
Personal Injury -vs- Wrongful Death Compensation
Notwithstanding the fact that we have an entire section of our site devoted to wrongful death information, below, we describe the types of damages recoverable in a wrongful death case. They are listed here simply so that you can see that there is a difference between what you can sue for in a personal injury case and a wrongful death case.
- Pain and suffering
- Mental anguish
- Medical expenses incurred
- Funeral expenses (if incurred by estate)
Wrongful Death Damages
- Pecuniary losses
- Loss of maintenance and support
- Loss of care
- Loss of earning capacity
- Loss of advice and counsel
- Loss of services
- Spouse's services
- Parent's services
- Child's services
- Expenses for therapy and psychological treatment
- Funeral expenses (if paid by claimant)
- Mental anguish
- Loss of companionship and society
- Loss of inheritance
- Exemplary damages
How Damages Can Change
An important wrinkle in understanding damages is knowing that they can shift, or even be wiped out entirely. The long and short of it is that there are things that you, the injured party, can do that will hurt the value of your case.
The three ways your damages can be affected are:
- You are found to be partly responsible for your own injuries (proportionate responsibility)
- You failed to mitigate your losses
- You made strategic errors in pursuing your case
The law understands that more than one person can cause an accident. As the title of this section suggests, we call this proportionate responsibility. As small children, we understood the power of apportionment of fault. When we got into fights with our siblings, our first defense to our parents was usually, "He started it!" We weren't denying that we were fighting, just that someone else bore part of the blame, the implication being that we should get punished less harshly since we weren't 100% to blame.
In assessing damages in personal injury law cases, juries are asked to do something similar. If a bar over-serves a patron alcohol and the patron later caused a victim's personal injury, who's more at fault, the bar or the driver? Well, the bar knew better than to keep serving the patron alcohol, but the patron knew better, too. A jury would be asked to assign a percentage of fault.
Where the rubber really meets the road is where the victim had some responsibility for the accident. In some states (called "contributory negligence" states), if the victim was even 1% responsible for his own injuries, he cannot recover a dime from the other 99%-liable parties. Most other states (called "comparative negligence" states) simply reduce the award by the amount the victim contributed. In that scenario, the victim's award is only lowered by the percent a jury finds him to have contributed to the injuries.
Texas takes a hybrid approach through the doctrine of modified comparative fault. If a jury finds that the victim was 50% or less responsible for his own accident, then the victim recovers like he would in any comparative negligence state (he gets paid, but it's reduced proportionate to his own contribution of fault). However, if the jury finds the victim was 51% or more responsible, then he recovers nothing.
To recap, there are three common fault apportioning schemes:
Contributory negligence - If the victim is in any way also at fault for their own injuries, even if it's just a little, they lose their case flat-out. Few states use this scheme.
Comparative negligence - If the victim is also at fault for their own injuries, then the defendant gets a discount proportionate to that fault.
Modified comparative fault - If the victim is it fault, but less than half at fault, they are compensated but the compensation is reduced by the percentage of their own fault. However, once their fault exceeds the fault of the defendant, they "zeroed out" and are awarded nothing.
Furthermore, there are many injuries that are caused by multiple defendants who all share in the liability to some extent. Texas uses a system of joint and several liability to apportion fault among multiple defendants.
Simply put, joint and several liability is complex. Read more about it here:
Lastly, the law requires every victim to take what are known as remedial measures. This common-sense doctrine simply means you must try to make the best of a bad situation. For example, if a personal injury victim spends a month in a hospital and loses her job as a result, she cannot then sit around for a year without trying to find a job and expect to be awarded lost wages for the whole year.
INSURANCE---Not What You Think It Is
No discussion of personal injury law is complete without touching on insurance. Most driver's, homeowners, and businesses have insurance to cover potential payouts to personal injury victims. In a perfect world, all that victims would need to do is file a claim with the insurance company and be made whole. But insurance companies routinely refuse to pay even the simplest claims. Why?
Because they don't have to. Simple as that. Insurance companies are experts at denying coverage or claiming your injuries are really only a small fraction of what they are. And the only way they'll pay out is if they think a jury will make them do it.
Coverage and Limits
For all intents and purposes, there is no such thing as unlimited insurance. For example, if you're hurt at a business's premises because of, say, a faulty ceiling, the business's insurance should cover your losses. However, the insurance policy the business has contains a "cap" for coverage. If you have $500,000 in medical bills and lost wages, and the policy's cap is only $250,000, then the insurance company is only on the hook for half of your claim.
There is, however, an exception to this through what is known as Stowers doctrine. This is a complex subject that can take pages to explain, but gist is that insurance companies are required to act in good faith, and when you can absolutely prove to them in unambiguous terms that a jury will definitely make them pay if the case goes to trial, yet they still refuse to settle, then they are theoretically on the hook for whatever a jury says their insured should pay; they can no longer hide behind the police limits.
Again, this is a complex area of personal injury law, and to even qualify for Stowers protection requires that your attorney go through great lengths to prove the case to the insurance carrier. Here is some more elaborate information about Stowers doctrine:
How Lawsuits Actually Work
A lot of cases "settle," meaning both parties agree on a dollar amount they'll both accept, out of court. In general, any sort of legal process that requires the use of a court is referred to as litigation. If settlement without court intervention is not something both parties agree to, then the same steps occur in every case:
A lawsuit is filed. The lawsuit gets drafted up with the important facts and laws included to put the court and defendant on notice of what the victim is seeking, and why.
The written discovery process begins. Parties exchange all relevant information with each other. This is because we want all the facts out on the table. This process can take over a year. A personal injury victim will want, among other things:
All the defendant's insurance information
All recordings of the accident
All communications the defendant has made with others about the accident
If the defendant is a business, copies of all relevant written policies and procedures
After some written discovery, witnesses are subjected to sworn depositions, in which lawyers for each side can ask questions to people with relevant knowledge.
Once most or all of the facts are known, parties usually meet for mediation. This process allows each side to present their case before a non-binding, neutral third party called a mediator. The goal of mediation is to settle the case, or at least move the ball down the field towards settlement, by way of asking the mediator to hear both sides out and propose a settlement. The mediator's primary job is to talk sense into whichever side is most likely to lose.
If no settlement occurs, the parties go to trial. Encyclopedia-sized books have been written about the trial process, but suffice it for our purposes to say that each side must submit their version of events to a jury, and the jury decides who is right. Under special circumstances, usually because of a contractual agreement between the two parties, a trial is not possible.
For instance, in many work injury cases, the employee may have signed a binding arbitration agreement which is a contract that limits the employee's rights to sue the employer in court. Instead, the agreement requires that the case is pursued through a privately-owned pseudo court process called arbitration. Arbitration is considerably different than trial. The principles are the same, but the process is quite different.
Rules of Court and Evidentiary Rules
Getting evidence into trial and using it permissibly requires years of training and a great deal of work. As you can well imagine, explaining how it all works is beyond the scope of this page. Nonetheless, personal injury victims should know some of the rules that will impact how their case plays out.
As a general rule, all relevant evidence can be seen by a jury. However, courts require two main caveats to that rule:
The evidence is reliable. The point of a trial in an personal injury case is to arrive at the truth. We want to know who did what, how, and whether it impacted the plaintiff. Judges don't make preliminary decisions about whether someone is lying or whether they are a bad person, but judges generally try to keep completely unverifiable information away from the jury.
The evidence doesn't cause harm. The law recognizes that life exists outside of the courtroom. As such, judges will protect sensitive information from being made public. A prime example is the spousal privilege, which prevents the disclosure of private conversations between husbands and wives. The following rules directly impact most personal injury cases:
- Selecting the appropriate court venue
- How Original Jurisdiction Works
- Texas evidentiary rules
- Spousal privilege
- Attorney-client privilege
- Priest-penitent privilege
- Medical records
- Psychological records
- Needlessly inflammatory evidence
- Subsequent remedial measures
- Proving up evidence
- How affidavits work
Defenses to Your Personal Injury Claim
Defendants in personal injury cases do not have to sit idly by as you claim that they caused you harm. Instead, the law has developed legally-available defenses, or, arguments they're allowed to make, against you. Most defenses center around showing that you failed to prove all of your accusations. The best example of this is the defense you see in virtually every courtroom TV show featuring a criminal case. The defense lawyer essentially argues not that the accused is innocent, but that the prosecutor failed to prove his guilt, per the evidentiary standard applicable to that case. However, many other defenses in essence concede that you were hurt and hurt by the defendant, but the law bars you from recovering because of some higher social goal. Such defenses are shorthand for "Alright, but so what?"
One very important example for personal injury claimants is the statute of limitations, which requires you to file a lawsuit within a specified time after the accident. Why would we bar someone for waiting to long? Well, think about it this way: after 2 or 3 years, witnesses' memories have faded, important documents will likely be destroyed, and all parties might have serious difficulty in even finding the actually-responsible perpetrator. As a society, we want swift resolution to claims---the statute of limitations is a blunt instrument, perhaps, but it motivates claimants not to sit around.
Here are some of the most common defenses used in personal injury cases:
- Failure to prove elements of cause of action
- Act of God
- Assumption of the risk
- Competitive sports doctrine
- Mitigation of damages
- New and independent cause
- Sudden emergency
- Workers' compensation
- Statute of limitations
It is worth pointing out that the statute of limitations can be extended for a longer period of time ("tolled" as it's called). Judges typically only toll a statute of limitations if there is an extraordinarily good reason to do so. Some of these reasons are:
The discovery rule - Essentially, this means that the injured person had no way of knowing that they had suffered an injury at the time of an incident. You may ask, "Well, how can someone not know that they were injured?" The answer is that some types of injuries, such as those caused by exposure to toxic chemicals, don't necessarily show symptoms until years later. In such instances, a judge my toll the statute of limitation, which simply resets the clock to the day when the person discovered that they were injured. That's why it's called the discovery rule.
Fraudulent concealment - Some bad guys think that if they can hide the evidence of their wrong-doing until the statute of limitations expires, they can get away with hurting people. The courts take a different view. We don't let fraud prevent victims from getting justice. When courts toll the statue of limitations because of fraudulent concealment, they're essentially saying that you can't cheat your way to victory in the courtroom.
If one was so inclined, you could categorize defenses as either being defenses designed to whittle away at your claim or those that are designed to completely destroy it. For instance, arguing that a plaintiff failed to mitigate their damages will have the effect of reducing the value of your case. However, arguing that the statute of limitations has run will, if accurately pleaded, will terminate your case entirely.
Usually, when a defendant has a defense designed to whittle away at a case, such a defense is argued in trial. But when a defendant has an opportunity to argue a defense that will eliminate your case altogether, they usually argue that in a "motion for summary judgment" hearing. A motion for summary judgment is a motion filed with the court wherein the defendant argues to the judge that, as a matter of law, the case is invalid for some reason and the judge should simply throw it out. These motions are filed in almost every case.
Here is some more reading:
As you can see, personal injury law is a multi-faceted entity, and we hope that you now have a stronger understanding of how it works than you did before reading this article. If you have any questions about personal injury law that were not addressed in this article, feel free to call us.