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.