What is personal injury law

WHAT IS PERSONAL INJURY LAW?

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A tort is a civil wrong that is not based upon a contract. An example may help clarify that definition. If I punch you in the nose because you say some bad things about this book that I have written then you could sue me civilly for the tort known as battery. In addition, you could go to the local magistrate or the police department and seek to have me arrested for the crime of battery. If you were to sue me civilly, then that would be a civil suit brought in your name against me in the appropriate courthouse. If a criminal prosecution were to be initiated as a result of that battery then that would be a criminal action brought in the name of the government against me for having committed the crime of battery. You would not technically be a party to the criminal prosecution but you would be the main witness or otherwise referred to as the complaining witness.

There are several different types of torts. The most common tort that you may have some contact with is that of negligence. Negligence is a failure to exercise ordinary care. In the definition of a tort, as stated above, I mentioned that it is a civil wrong that arises from a non-contractual basis. If you and I enter into a contact and you breach the contract I can sue you civilly for that breach of contract. The claim that is being asserted there is simply a breach of contract claim. If on the other hand, I run a red light and while running that red light strike your vehicle which is lawfully in the intersection then you could sue me civilly for my negligence in having run the red light. That negligence claim is a tort claim that does not arise out of any contract between you and me.

Elements of negligence
The concept of negligence is founded upon the idea that a duty is owed from one person to another and a breach of that duty which then causes an injury or damage to the other party may give you the basis for making a claim against that person. For instance in the red light example, the duty that I owed was the duty of not running a red light. If I violate the duty by running the light and as a result of that you are injured then all of the elements of a negligence claim have been met.

The essential elements of any tort claim are fourfold: There must be a duty that is owed by the defendant (the party againstwhom claim is made) to the plaintiff (the party bringing the claim); there must be a breach of that duty or violation of that duty by the defendant; that breach of duty must have then been a proximate cause of injury to the plaintiff; and then finally there must be actual injury or damage to the plaintiff. We have already discussed briefly the first two elements of any tort claim; i.e. duty and breach of duty.

The third element of any tort claim is that of proximate cause. Proximate is not to be confused with the term “approximate”. Proximate literally means immediate to, contiguous, touching, or direct. Approximate means the opposite. A proximate cause of an event is one which is reasonably foreseeable. If I run a red light then it is reasonably foreseeable that I may injure someone and as such my negligence may be a proximate cause of injury. Let’s take another example. Suppose I am playing a game of catch with my son in front of my house and my wind up is perhaps a bit too aggressive and I overthrow the ball. The ball goes through the front window of your home and then through the rear window of your home striking a barbecue stove which is on your back porch which then falls off the back porch, rolls down the hill and strikes your neighbor. The first question is whether I was negligent? I probably was negligent for allowing the ball to be thrown so hard as to break the front window of your home. The next question is whether that negligence was a proximate cause of injury to your home. Clearly it was. The final question is whether or not that negligence was a proximate cause of injury to your neighbor. That is a tougher question. It comes down to essentially an issue as to whether it was reasonably foreseeable that by throwing the ball as hard as I did that it would not only go through the front window but also the back window and then strike your barbecue oven, knock it off the back porch which would then cause it to roll down the hill and strike your neighbor. That type of resulting injury is probably not reasonably foreseeable and as such the chain of causation would have been broken at some point in that sequence of events. Typically, in that type of case, the question of proximate cause would be submitted to a jury for resolution as to whether or not my negligence was a proximate cause of injury to your neighbor.

The fourth and final element of any tort claim is that of damages or injuries incurred.

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