If you have cable or satellite TV, try this. Turn it on and start flipping through the channels. Chances are it won’t be long before you land on a program that deals with crime and/or the justice system. From dramedies like Boston Legal and Ally McBeal to riveting true-crime documentaries such as The Staircase and Making a Murderer, to old standbys like Dateline, 48 Hours Mystery, and the many incarnations of Law & Order, it’s plain to see that we love watching shows that explore the law.
An entire generation of Americans can recite the Miranda warning word-for-word from memory. We all know that detectives will set their sights on a murder victim’s spouse as the most likely suspect. And once-obscure terms and concepts, like a Brady violation or an Alford plea, are now household phrases. Criminal law is chock-full of interesting stories and compelling drama, but what about civil law? Have you ever wondered about how personal injury law plays out in a boardroom or courtroom? If so, read on for a quick primer on all things personal injury related.
What’s the Difference Between Personal Injury Law and Criminal Law?
Also known as tort law, personal injury law concerns itself with civil, rather than criminal, violations. In criminal cases, the plaintiff is always “the state” — in other words, the governmental entity whose laws have been broken. In civil cases, one party — an individual or group of people — brings a lawsuit against another party — an individual, a group, a company, or a government agency.
Another of the major distinctions between civil and criminal law is that the purpose of a criminal charge is to punish the wrongdoer. In civil cases, the plaintiff is seeking damages, or compensation. It is entirely possible for someone who has been accused of a crime by the state to also face a civil suit brought by a victim or victim’s family.
The Different Types of Personal Injury Law
Many of the most common types of personal injury have to do with accidents. There are others, as well. The following are some of the most common branches of personal injury law:
- Car, truck, or motorcycle accidents
- Pedestrian and bicycle accidents
- Slip, trip, and fall accidents
- Medical malpractice
- Defective products
- Animal attacks
- Wrongful death
Each of these has its own legal precedents, and most personal injury lawyers will specialize in one of them. As you can imagine, motorcycle accidents are very different from medical malpractice or dog bites and must be handled differently.
Even within one of these areas, case law can vary widely. The Barnes Firm, for example, has dedicated Oakland car accident lawyers, motorcycle accident lawyers, and tractor-trailer accident lawyers, in addition to others, on staff. This is true of all major personal injury law firms.
Where Does Negligence Come In?
With the exception of intentional torts, such as slander, fraud, assault, false imprisonment, and intentional infliction of emotional distress, all types of personal injury law have one factor in common: they stem from negligence. In legal terms, negligence occurs when one party has a duty of care but fails to observe or perform that duty. The law stipulates that all people (and other entities, such as companies, institutions, and governments) have a legal obligation to act with a reasonable amount of care and prudence in the course of committing actions that may be harmful to others.
For example, a surgeon has a legal duty to not kill the person on her operating table. A dog owner has the obligation to prevent the dog from attacking and biting passersby. A retail store is obliged to keep its floors clean so that no one slips on a wet surface, falls, and injures themselves.
There are four elements that must be proven in order to establish negligence:
- Duty. The defendant owed a legal duty under the circumstances to the plaintiff;
- Breach of Duty. The defendant acted (or failed to act) in a way that breached his or her duty;
- Causation. This action or inaction caused the injury in question;
- Damages. Finally, the plaintiff has to have suffered harm or injury as a result of the first three elements.
If one or more of these elements cannot be proven, there is no legal negligence at play.
The Odds of a Tort Case Going to Trial
The vast majority of tort actions will never see the inside of a courtroom. It is almost always easier, faster, and less expensive for all parties to settle out of court — although that’s not to say that negotiating such a settlement is a quick or painless process. In fact, torts can stretch on for years.
If, after extensive negotiation on both sides of the dilemma, the parties are unable or unwilling to agree on the terms of a settlement, then the case will go to a court of law. This happens in less than 5% of instances, however.
Tort law is an incredibly complex aspect of the judicial system. If an individual feels that he or she is entitled to receive damages, it’s in his or her best interest to hire the most experienced attorney available, as well as one who specializes in the particular type of personal injury in question.