To observers on the outside of a case, it might seem like people pick a number out of thin air when filing a lawsuit. In reality, you can only sue for damages that the other party owes you. Tort cases are those that provide economic compensation but that are separate from or absent of criminal charges.
What Is a Tort?
A tort is a civil breach that a person or other entity commits against you. It includes wrongful acts or infringements of your rights. If someone commits a civil breach against you, then you have the right to sue for compensation. The laws that apply to a tort case determine whether the party that caused the injury is legally responsible and, if so, how much the injured party should receive.
The Four Elements of Tort Law
There are four elements to a successful tort case. They are:
- Duty – A person’s legal responsibility to act
- Breach of Duty – Failure to act according to the duty
- Causation – The person’s actions or inactions must have caused the injury
- Injury – An injury must have occurred
Tort lawsuits are a type of civil law case. They are not criminal cases involving prosecution. In some cases, there may also be criminal charges against the defendant of a tort case. For example, if a drunk driver strikes your vehicle and causes your injuries, you might sue for damages to pay your medical bills and lost wages. At the same time, the defendant might face criminal charges for driving under the influence
The majority of civil cases are tort lawsuits, which include a broad range of personal injury cases. All personal injury cases fit into one of three categories: Intentional torts, negligence, and strict liability.
The legal definition of negligence is “failing to behave within the level of care that someone of ordinary prudence would have exercised under the same circumstances.” Negligence is a person’s failure to act where there is a duty. One example of negligence is failing to maintain the walkway in front of a business. If a customer trips on a broken sidewalk, the resulting injuries are due to the failure of the property owner to act.
Negligence isn’t limited to businesses and other commercial properties. Every person has a duty to act in a certain way that reduces the risk of harm to others. Anyone who fails to adhere to these standards is guilty of negligence.
Negligence is the most common type of tort case. Some examples include:
- Dog bites resulting from a dog’s owner not restraining their pet
- A car accident resulting from a driver not obeying traffic laws
- A person falling on a rotting stairway
- Slip and falls resulting from a wet or dirty floor or from icy steps, a walkway, or parking lot
- Motorcycle accidents caused by a driver who fails to see the motorcyclist or who doesn’t give them the respect the law demands
- Pedestrian accidents from speeding through crosswalks
- Medical malpractice when a physician misdiagnoses or fails to provide a diagnosis for a serious medical condition
Proving negligence can be challenging. Not only must the plaintiff prove that the incident occurred due to the defendant’s negligence, but also that the event caused their injury. If you sue for damages in a negligence case, it is essential to hire an experienced personal injury attorney to represent you.
California is a comparative fault state. This law allows more than one person to be blamed for an accident. It also reduces the amount of compensation you receive. If you were to sue for $100,000 for an injury from a car accident and the court determined you are 10% at fault, you can still receive compensation. However, you will only receive 90% of the total reward, which would be $90,000. The comparative fault law applies to all types of torts including slip and fall accidents, medical malpractice, product liability, and others.
In any case, negligence is often hard to define. It isn’t unusual for both sides of a court case to end up pointing fingers at each other. In addition to proving that the other party is at fault, you also have to prove the extent of damage that you suffered. You have the legal right to sue for damages for the amount that it takes to fix or replace your damaged or lost property. If you can’t prove how much you lost, you won’t get awarded compensation for it.
Unlike negligent acts, some torts occur when a person intentionally acts in a way that harms another person. Intentional acts are more likely to be both torts and criminal acts. Some examples of intentional torts include:
- Committing Fraud
- False Imprisonment
- Intentionally Causing Emotional Distress
It is the responsibility of the defendant to justify his/her actions that might excuse him/her from liability. If the defendant can prove they had consent or permission from the plaintiff, or the defendant can prove their actions were to defend himself, his property, or someone else, they may avoid liability.
Strict liability refers to injuries where the plaintiff isn’t required to prove negligence on the part of the defendant. All they must prove is that an action occurred which resulted in the injury of another person. Cases of product liability in which torts arise from the injury of a person due to the use of a product and/or service are examples of strict liability. In these cases, the plaintiff doesn’t have to prove that the company was negligent to sue for damages. They still, however, must prove that an action occurred that caused their injury.
Types of Damages
There are three general types of damages you can sue for in a personal injury case: general, special, and punitive. Both general and special damages are compensatory damages. General damages compensate the victim for non-economic losses like emotional distress and pain & suffering. Juries tend to award higher settlements to plaintiffs who have experienced severe trauma.
Special damages are economic losses. These include the loss of income due to your injury, your medical expenses, property damage, and other measurable losses resulting from the actions or inactions of the defendant. These damages are typically calculated based on the damage to the plaintiff’s car, their medical bills, and lost wages.
In those rare instances where the court awards punitive damages, the amount isn’t based on the plaintiff’s property or physical losses. Depending on the state, there may, or may not, be a limit on the most a court can award in punitive damages. The court determines the amount of punitive damages a person must pay based on the seriousness of their behavior that caused the accident.
You can sue for damages for physical, emotional, or economic injuries. You can also sue for injuries to your reputation, along with violations of your property, privacy, or constitutional rights. Types of damages you can sue for include:
- current and future loss of earnings
- medical bills
- cost of future medical treatment
- household expenses
- costs associated with canceled trips or any changes in plans caused by your injury
- mental anguish
- pain and suffering
In addition, when you sue for damages over a wrongful death, you might receive compensation for:
- final expenses
- emotional distress
- loss of services and support
- cost of pre-death medical care
- loss of financial contribution
- loss of companionship and consortium
Punitive damages aren’t often awarded unless the act by the defendant was especially reprehensible or malicious. The judge or jury is more likely to award punitive damages for an intentional tort. These damages are used to punish the wrongdoer for their behavior rather than serving as compensation to the plaintiff.
Making the decision to file a lawsuit is frightening and confusing. The average person understands little about the law or their legal rights. Just figuring out who is negligent and who to sue presents challenges. Some cases involve more than one person or company. Before you can file a lawsuit, you must determine who breached a duty and caused the accident to happen.
Schedule a Consultation with an Attorney
The sooner you talk with an attorney, the sooner you can decide whether to pursue your case in court. Most personal injury cases are between the plaintiff and the at-fault party’s insurance company. The insurance company adjuster investigates the damages from the incident and determines the company’s liability.
The amount the insurance adjuster offers to pay is usually much lower than the value of your case. They use their own guidelines to determine the severity of your injuries and the actual value of your losses. For one, they are more likely to consider medical treatment provided by a medical doctor rather than an alternative practitioner like a chiropractor. Sometimes, they leave out treatment that they think is excessive when calculating your damages.
An attorney also knows how to calculate the value of your claim. If he isn’t confident that you will win your case, another option is to pursue your claim in small claims court. Although you can’t sue for more than $10,000 in damages, you have less to lose. A lengthy court case can cost you thousands of dollars in legal fees that you never recover.
Your attorney will consider your losses and tell you how much compensation you should request. They might negotiate with the insurance company to try and get a generous settlement for you without ever having to go to court. Ideally, you should receive compensation for your physical, emotional, and mental injuries to adequately restore you to the position you had before the tort occurred.
The Right to Appeal
Some personal injury cases result in high-dollar settlements to the plaintiff. Other cases result in a win for the defendant. If either side isn’t happy with the verdict, they have the right to appeal. However, you must request the appeal due to errors that hurt your case. Maybe there was jury misbehavior or evidence that wasn’t allowed which should have been. Your attorney can advise you on whether any errors occurred in your trial that would allow for an appeal.
What Is an Appeal?
An appeal is the request to have your case heard by a higher court. Depending on your state, this might be the Superior Court or the Supreme Court of Appeals. This is not the same thing as a new trial. You can’t present new evidence or arguments. Instead, an appellate judge will review the records and evidence from the trial to determine if the court made the right decision.
Before you decide to appeal, find out who is responsible for paying the attorney’s fees and court costs. You might get left with the bill depending on your state. This is why many attorneys won’t file an appeal unless they know they can win.
If you are injured due to another person’s actions or inactions, you have the legal right to compensation. Once you win a judgment or award through negotiation or in court, you’re ready to collect your damages. Even after winning your case, it isn’t always the end of the battle. Some defendants refuse to pay damages while others don’t have the full amount available.
A personal injury attorney can help you get the compensation you deserve. They know where to look for undisclosed assets the defendant doesn’t want you to know about. They can also take more aggressive actions and have liens placed on their property and garnish their wages.
In most cases, interest continues to accrue on damages until the defendant pays the full balance. This often provides an incentive to get the debt paid off as soon as possible.
Negotiating for a Settlement
Often, even after you sue for damages and throughout the court case, negotiations continue. It’s in both sides’ best interest to avoid a long, expensive trial. A skilled lawyer knows how to negotiate to get you the best possible settlement. Even if you end up settling for less, the savings in court costs could more than make up for the difference.
If you’re entitled to damages from a tort, don’t take chances by handling your case on your own. Contact Batta Fulkerson for a free consultation. We’ll help you learn your rights and provide you with a 100% Free Case Evaluation.