Overview: Personal Injury Cases
When you (or someone you love) suffer from injuries caused by the wrongful conduct of another, hiring a lawyer to seek compensation for those injuries can be an important part of your healing and recovery. The lawyers at Clinton & Peed have the skill, the passion, and the experience to put you in a strong position to achieve that compensation through a settlement or trial. Our top-notch, DC-based personal injury lawyers are caring, compassionate, hard-working individuals who will fight tirelessly to protect your rights.
Please note: this is intended as a general overview, and should not be construed as legal advice.
WHAT IS A PERSONAL INJURY CASE?
When we refer to a “personal injury case,” we are generally speaking about a category of civil claims for compensation arising from physical injuries suffered by a person, as a result of the negligence or intentional misconduct of someone else. It is not a legal term, but more of a broad shorthand for a category of cases involving personal injury. For example, we lawyers often refer to auto accident cases as “personal injury” cases, even though a winning plaintiff can typically obtain compensation for the damages to their automobile in addition to compensation for physical injuries.
HOW DO YOU PROVE A PERSONAL INJURY CASE?
Two of the most common claims (or “causes of action”) available to plaintiffs in a personal injury case are claims negligence and negligence per se.
In a negligence case, the plaintiff (the injured party bringing the lawsuit) has to proof three things: (1) that the defendant owed a duty to the plaintiff; (2) that the defendant breached that duty; and (3) that the defendant’s breach proximately caused the plaintiff’s injuries. In general all people owe a duty to act “reasonably under all of the circumstances,” and can be liable if they act unreasonably, and their unreasonable actions cause injury to someone else. For example, the DC Standardized Civil Jury Instructions (as of the date of this post) define a driver’s general duty as follows:
A driver on a public roadway must use ordinary care at all times to avoid colliding with other persons and to avoid placing [himself] [herself] and others in danger. While a driver may assume that others will use ordinary care and obey the law, the driver may not, for that reason, fail to exercise ordinary care.
Even if a plaintiff proves each of these elements, however, that not end the matter. There are certain affirmative defenses that—if proven by the defendant—can prevent a plaintiff from recovering. Two of the most commonly raised defenses are contributory negligence and assumption of risk, which we discuss below.
In a negligence per se case, a plaintiff is considered negligent if he or she violates a statute or regulation that has been enacted to protect persons in the plaintiff’s position, or to prevent the type of accident that occurred.
WHAT DAMAGES CAN YOU RECOVER?
A successful personal injury plaintiff may recover a number of categories of compensation for the different kinds of harms they sustain. Thus, a jury typically may consider a number of factors in deciding how much money to award a successful plaintiff, including, for example:
the extent and duration of the physical injuries;
the effect of those injuries on the plaintiff’s overall physical and emotional well-being;
any physical pain and emotional distress the plaintiff has suffered in the past or may suffer in the future;
any disfigurement or deformity, as well as any humiliation or embarrassment associated with it;
any inconvenience the plaintiff has suffered in the past or may suffer in the future;
any medical expenses incurred in the past or which may be incurred in the future;
any lost earnings the plaintiff has incurred in the past or may incur in the future; and
any damage or loss to the plaintiff’s personal property.
In addition to these categories of damages, an injured party’s spouse may be able to recover damages for loss of consortium caused by the physical injuries to the spouse (even if the spouse his or herself did not suffer physical injuries). That refers to the injured spouse’s material services, love, affection, companionship, sexual relations, and other matters generally associated with a marital relationship.
WHAT IS THE DIFFERENCE BETWEEN A SURVIVAL ACTION AND A WRONGFUL DEATH ACTION?
In the District of Columbia, a survival action is when the legal representative of a deceased individual brings a claim on behalf of the deceased person’s estate, and asserts a claim that the deceased person could have brought himself in his own name, if he or she had survived. In this kind of claim, the plaintiff (the estate) may recover damages that include, for example, any conscious pain and suffering the deceased party suffered between the time of injury and the time of death, as well as any financial loss suffered by the deceased as a result of those injuries (including the amount of money the deceased person would have accumulated over the course of his or her lifetime).
By contrast, a surviving spouse or next of kin may bring a claim under D.C.’s wrongful death act for injuries that spouse or next of kin suffered as a result of their loved one’s death. Unfortunately, the types of damages that may be recovered for such a claim are much narrower. For example, they do not include sorrow, mental distress or grief, or loss of love and affection. They can, however, recover the financial support the decedent was expected to provide, as well as any gifts or other contributions the decedent could be expected to have provided over the course of their lifetime, and even (in the case of deceased parents), the loss of care, education, training, guidance, and parental advice that the deceased parent would have been expected to give to the next of kin beneficiaries.
WHAT ARE CONTRIBUTORY NEGLIGENCE AND ASSUMPTION OF RISK?
Virginia, Maryland, and the District of Columbia are among only a handful of states in the nation that apply the rule of contributory negligence. Under that rule, a defendant is not liable for the plaintiff’s injuries if the plaintiff’s own negligence is also a cause of his or her injuries. So in a contributory negligence state, a plaintiff that is responsible for 1% of her own injuries may not be able to recover from the person who is responsible for 99% of those same injuries. This rule is different from the rule applied in most states. In those states—called comparative negligence states—the parties’ respective negligence is allocated to them. So a plaintiff that is 50% responsible for her own injuries may still recover damages from the 50% responsible defendant, but those damages will be reduced by half.
Assumption of risk is a similar defense. Under that rule, if a jury finds that the plaintiff assumed the risk of injury, the plaintiff cannot recover damages for injuries caused by the risk that the plaintiff assumed. In other words, if the plaintiff actually knew and understood the full scope and magnitude of the danger arising from the defendant’s conduct, and voluntarily exposed himself or herself to that danger, the plaintiff cannot recover.
As with most rules in the law, however, these affirmative defenses have exceptions. For example, neither defense applies if the defendant is negligent per se (discussed above), a situation that we successfully argued in obtaining a victory in a rare plaintiff’s motion for summary judgment motion in an alcoholic over-service case resulting in the death of our client’s husband. Since the Court found that the defendant restaurant violated the statute that prohibited the sale of alcoholic beverages to persons “of notoriously intemperate habits,” it was no defense that the decedent may have been negligent (or assumed the risk) by drinking more alcohol than he could handle. (The case settled shortly after the ruling.)
These rules can be nuanced, often vary from state to state, and may apply differently in different context (e.g., medical malpractice versus auto accidents versus over-service of alcohol).
WHAT SHOULD YOU DO IF YOU OR A LOVED ONE HAVE SUFFERED A PERSONAL INJURY?
We understand that dealing with the trauma of physical injury or the loss of a loved one can be overwhelming, and the most important thing is to attend to your physical, emotional, and financial well-being above all else. But it can also be important to consult with a lawyer as soon as possible, to make sure you are gathering important documents, identifying key witnesses, and otherwise putting yourself in the best position to obtain fair compensation for the injuries you have suffered. If this is something you are going through, contact us as soon as possible to set up your free initial consultation.