Injury Claim Basics, Another Law School For You

Some of us suffer injuries because we are clumsy.  The Yiddish word Klutz describes many of us.

We trip, walk into a door, or hit ourselves with our golf backswing.

When others are responsible for our injuries, laws sometimes provide remedies.  Financial compensation cannot undo the harm, but the system typically provides for money, to pay medical bills, to reimburse lost wages or income, and to additionally compensate for the disruption of our lives, our physical and mental suffering, our physical pain, our aggravation, our inconvenience, and more, depending upon the nature and extent of the injury’s effect upon us.

Most often there is some insurance company that will pay the bills if the person they insure harms someone.  The negligent person nonetheless remains responsible if he has no insurance, or if his insurance company does not ante up.

Here then is a review of some of the many ways we get hurt because of others, and the basic laws that govern whether we might look to be compensated.

Automobile Collisions

Using the term “accident” suggests the at-fault driver is not at fault.  Accidents certainly happen, but when driving a car, laws require the utmost of attention so collisions do not occur.

Most states operate with laws called comparative negligence.  This means that the injured party might recover compensation from the other party, even if the injured party is partially at fault.  A typical example is trying to make a left turn in front of oncoming traffic.  The law says you must wait until it is clear to go, and if a collision occurs, obviously, it was not clear.  In this example, presume the driver not turning was speeding.  In that instance it can fairly be said that but for the excessive speed, the collision would not have occurred.  In comparative negligence states, a percentage of fault would ultimately be agreed upon, or assigned if the matter were litigated, and the left turning driver would get a percentage of what would be a “full” recovery.  In numbers, if the left turning driver was 10% at fault, he or she would only get a 90% recovery.

Four states (Maryland, Virginia, Alabama, North Carolina) and Washington, D.C. use contributory negligence system.  This negligence doctrine provides that if either driver is even one percent (1%) at fault, they cannot make any compensation recovery from the other driver.  Considered harsh, efforts have been made over the years in those states to move to a comparative negligence model.

Trips, Slips and Falls

Here, perhaps more than any other type of injury, the concept of klutz really does come in to play.

Laws require owners of property to keep their premises safe, but they do not require that owners be guarantors of safety. A grocery store may well be responsible if a shopper falls in the store, but only if the store did not have monitoring procedures in place, and even more, if the store personnel knew, or should have known, there was a hazard.  If the jelly in aisle 4 is all over the floor, but 10 seconds before a store employee walked that aisle looking and nothing was there, a patron might well have a problem proving the store was responsible.  On the other hand, if another patron told the manager there was jelly on the floor, and the manager did nothing, then a good case might well exist.

The klutz concept attaches here because the store patron must watch where he or she is walking.  The defense of contributory negligence might bar the patron’s recovery because he or she was not watching, but should have been watching where they were walking.  In comparative negligence states, this defense is not as potent.

As well, the defense of assumption of the risk could rear its head to deny a patron a compensation recovery.  If he or she saw the jelly and slipped and fell anyway, it would probably be a hard case to win. When you assume a risk, nobody else is responsible.  You can’t jump off of a tall building and blame the building owner for your injuries.

A homeowner must usually put up a gate to prevent people from falling into the backyard swimming pool.  Similarly, during a winter season, a homeowner must clear ice from their walkway in a reasonable time after the ice forms.

Retail parking lots, apartment complexes, and other commercial property owners are similarly charged with clearing ice.  But, the focus becomes when they must do so, and whether or not someone falling knew there was ice before they began their walk.  A judge might ultimately have to decide if it was reasonable to expect a property owner to clear ice within three hours, one day, or more.

Medical Mistakes

After heart disease and cancer, medical errors are the third leading cause of death in the United States.  Annually, over 250,000 people die because of the various preventable mistakes made by medical professionals.

Short of death, the number of injuries caused by medical errors is staggering.

Medical injuries occur, but not always because anyone did anything wrong. Medicine is not an exact science, and bad results sometimes occur.

Where preventable injuries do occur however, those injured, or the families whose loved ones were lost, face a difficult uphill battle to recover compensation.  Nationwide, approximately eighty-percent of those who file medical malpractice lawsuits lose.  To prevail, an injured party must be able to not only prove that the medical professional was negligent, or did something wrong, but that the error was below the standard of care.

Standard of care is a term that means what other similarly situated professionals would do in similar circumstances.

A podiatrist who brings a clipper to address a hangnail, and badly cuts his patient’s toe, likely is not going to be found to have addressed the problem “below” the standard of care because other podiatrists also use the same clipper, and while care is expected, bad results are not guaranteed.  If the podiatrist used hedge-clippers or scissors to address the hangnail, then, clearly, as no other podiatrist would use those tools, the injury would probably be seen as below the standard of care and the injured patient would likely recover for the toe injury.

Strict Liability Claims

Laws in every state hold a person or entity responsible for the unintended consequences of their actions, without having to prove negligence, simply because of the inherently dangerous nature of the activity or circumstance that caused someone to be injured.

A construction company tasked to repair a road uses blasting materials to ready the road surface.  The company takes the usual precautions.  Nonetheless, road fragments fly a good distance and strike a child riding his bike two blocks away.  The company is responsible.  Blasting carries inherent dangers, including flying debris.

Some examples of abnormally dangerous activities include storing explosives, using or transporting chemicals, disposing of hazardous chemical waste, and performing controlled burnings.

When individuals are injured because of products, proof of a defect is required.  There are three primary types of defects in products liability cases.

Manufacturing defects require a showing of an irregularity or flaw in a product that was mass-produced, making the product dangerous.

Design defects involve showing that an entire product line was defective as a result of a faulty design.

The third “defect” is actually a failure to warn. These cases involve showing the manufacturer did not, but should have warned against inherent, but not obvious dangers in using the product.  Consumers are accustomed to seeing warning labels on most products today.  Prescription drugs always have labels warning us how to take the medicine and what other medications and activities to avoid while using the drug.  Sometimes warning labels are almost humorous – “don’t’ skydive while on this drug,” or “don’t place this product in the microwave.”

Dog Bites

Fido may be loveable, but if he bites someone, likely his owner is strictly liable to the person Fido chomped on.  Dog owners are required to assure their dogs do not bite, jump up on or run into others.  Fences have to be erected that actually keep the dog in its owner’s yard, and leashes that actually hold the dog must be used in most places when Fido is being walked. When visitors or guests come in to the home, Fido must be in a cage or another room if there is any chance Fido will bite.

Some states have what is known as the “one bite rule” that has an opposite application than the rule’s name might suggest.  Owners of dogs that have never bitten anyone, nor have ever shown a violent or vicious propensity, are forgiven. When, however, Fido is known to be vicious, or if he has vicious propensities, Fido’s owner is clearly in the doghouse.

Don’t be a klutz.  There are too many other ways you can get hurt.