Personal Injury Defense Law: General
Personal injury law encompasses a wide range of topics. Before we delve into it any further, let's make sure that we understand the difference between a crime and a tort. A crime, as you probably know, is a wrong committed against society, such as murder, arson or shoplifting. Society punishes the wrongdoer, often by putting him in prison or fining him. A tort, on the other hand, is a civil wrong committed against an individual. The injured person usually recovers for his or her injuries by suing the wrongdoer and receiving a money judgment from the court.
An act committed by a wrongdoer can give rise to both a crime and tort. For example, if person A shoots person B in the leg, person A could both get arrested by the police for attempted murder and get sued by person B to recover the medical bills for treatment to his injured leg. Crimes exist to make society safer and to discourage people from committing certain acts. Torts exist to make the injured party whole again for injuries caused by the wrongdoer.
Note that this section covers personal injury, by which we mean harm to a human being. If you're interested in information about injuries to property, see the real estate law discussion. If you're interested in finding out more about how to insure yourself against personal injuries or against personal injury lawsuits, see the insurance law discussion.
Personal injury law is based primarily on common law, by which we mean that it is based on earlier court decisions, rather than on statutory law, which means laws written by legislatures. Personal injury lawsuits are almost always filed in state court rather than in federal court. Where a case is filed in federal court, the court will rely on state common law because there is no such thing as federal common law.
Basic tort concepts. A key difference between a tort and a crime is that a crime requires a certain criminal intent, whereas a tort can result without intent on the wrongdoer's part to cause the harm. Tort law has several different categories of fault.
The standard that the courts use is called the reasonable man standard, which means that negligence occurs if a reasonable man would not have made the same error. In the example above, if the storeowner knew that the slippery spot existed, he was negligent in not cleaning up, if a reasonable man would have cleaned it up.
Negligence. The first and most common category is negligence, which is equivalent to inattentiveness. For example, if person A slips in the supermarket aisle and is injured, the store owner will not be charged with a crime (assuming that he didn't intend for it to happen), but person A may be able to recover money damages in tort from the store owner for his injuries, if he was negligent in failing to clean up what caused the slip.
Intentional misconduct. The next level of fault is intentional misconduct. In most tort cases, the injured party need only prove that the party causing the injury was negligent. In some cases, however, if the injured party can prove intentional misconduct, he can recover greater damages than he would have otherwise. In the slip-and-fall case, if the injured party were able to show that the storeowner intentionally made the wet spot so that he would fall, the jury may award the injured party additional damages to punish the storeowner. In most situations in tort cases, the injured doesn't have to prove intent; he need only prove extreme indifference to another person's safety.
Strict liability. In situations involving inherently dangerous activities, the law will impose liability on the person causing the personal injuries even if the one causing the injuries was not negligent. Thus, in these cases, fault isn't an issue. If the act happened, and someone was injured, the one causing the injury is liable for damages. Examples where strict liability is imposed are certain pollution cases and cases involving dynamite, such as to excavate or to demolish a building.
Burden of proof. The burden of proof is what the injured party has to prove in order to recover from the one who caused the injury. In a criminal case, the prosecution must prove "beyond a reasonable doubt" that the accused committed the crime. The jury must be certain that the one charged with a crime committed it. In a tort case, the burden of proof is "by a preponderance of the evidence." In other words, the jury or the judge must be more than 50% certain that the one causing the injury committed the tort. The higher standard exists in a criminal case because so much more is at stake. A criminal defendant could lose his liberty or his life; he can't lose either of those things in a tort case.
Comparative negligence. Some states, including Illinois, use a concept called comparative negligence, which means that any judgment against the one causing the injuries will be reduced by the amount of the injured party's own negligence. Obviously, the injured party's negligence must be less than 50%; otherwise, he wouldn't have proved his case by a preponderance of the evidence. Thus, in the slip-and-fall example, suppose the jury found that the injured party was 25% negligent because he was walking too fast. If the injured party recovered $10,000 from the storeowner, the judgment would be reduced to $7,500 because of the comparative fault.
Third-party liability. In some situations in tort law, a person can be held responsible for the actions of another person. Some examples of where this liability, also called vicarious liability, might be applied are against parents for the actions of their children, against employers for their acts of their employees, and against partners for the acts of other partners. Another example of third-party liability is where a contract exists, most commonly where an insurance company provides coverage to an insured.
Damages. In terms of what the injured party can recover, there are two types of damages: compensatory damages and punitive. In general, compensatory damages are those types of damages intended to make the injured party whole again. Some examples are any out-of-pocket expenses the injured party incurred, such as medical bills and car repairs; lost wages; and pain and suffering.
Punitive damages, on the other hand, are designed to punish the one causing the injury, usually where intentional or highly reckless conduct are involved. Punitive damage awards can often run several times the award given for compensatory damages, especially where a large corporation is involved. The injured party gets to keep the punitive damages, although some have criticized the practice for unfairly rewarding one individual.
Immunity. Certain types of people or entities cannot be sued for personal injuries because they are immune by statute from such suits. You generally cannot, for example, sue a public official acting within the scope of his official duties, such as a policeman, fireman, or judge. Some statutes have created exceptions, but they are narrowly drawn. The Abner Louima case is one example, where police officers who violated Louima's civil rights while under arrest were sued by Louima under federal law.
Premises liability. The liability that landowners are subject to for injuries caused to those who enter their property depends upon the reason why the injured party entered the property. There are three classes. The first is invitees, who are those people invited to the premises for business reasons. Shoppers are invitees. A landowner owes an invitee a duty to use reasonable care, which means that he or she is liable to an injured person for negligent or careless acts that caused the injuries.
The second class is licensees, who are those people who have permission to enter a landowner's premises, generally for their own benefit or for the mutual benefit of invitee and owner. Social guests in someone's home are licensees, even if the landowner has expressly invited them. The landowner only owes a duty to the licensee not to willfully or wantonly injury him or her.
The third class is trespassers, who are those who enter the property for their own benefit and without the landowner's permission. The landowner cannot set traps for a trespasser or otherwise try to injure him or her.
Attractive nuisance is a doctrine that protects children who might foreseeable wander onto someone's property. The most common example is a swimming pool in a backyard. The owner of an attractive nuisance must take reasonable steps to prevent injuries to children, such as by building a fence around the pool.
Slip and fall. A person can recover against a landowner or a business operator for injuries suffered in a slip and fall if he or she can prove that the landowner either knew or should have known of a condition that gave rise to the slip and fall. If a child shopping with his mother spills something on the floor, and a second shopper immediately slips and falls, the injured shopper generally cannot recover from the landowner. If, however, someone complained of the slippery condition, and the landowner did nothing, an injured party would be able to recover, assuming that the landowner was given a reasonable time to clean up the spill.
Criminal assaults. Generally, landowners are not responsible if someone on their premises is attacked by a third-party. If, however, the landowner had knowledge of the dangerous situation, the landowner is under a duty to protect or warn those on the premises. Failure to take preventative measures can constitute negligence on the landowner's part.
Product liability. Product liability arises where the maker of a product sells the product to an individual, who uses it and is injured. Product liability can occur in one of three ways.
The first is called defective warning. Where a product might injure someone, the manufacturer is under a duty to warn of dangers and to provide correct operating instructions. Thus, the manufacturer must test the product and anticipate various uses. The manufacturer is not under a duty to warn of uses of the product that are unreasonable. Carmakers, for example, don't have to warn buyers that they shouldn't drive the car underwater. Where potential dangers are discovered after the product is released to the public, the manufacturer may be under a duty to recall the product.
The second type of liability is called defective design. Manufacturers are under a duty to design products that are safe when used appropriately. Suppose, for example, that a child suffers leg burns on a sliding board exposed to the sun. The child's parents can recover damages against the manufacturer if they can establish that the product was defective because the material used in the slide was inappropriate to a sliding board because it easily overheats.
The third type of liability is called defective manufacture. Even if a manufacturer properly warns users and has designed the product effectively, it can still be subject to product liability if defects occur in the product's manufacture. In the sliding board example, if the materials used are appropriate, but in the manufacturing process a sharp edge on the side of the board was created, the manufacturer can be liable if children using the board are cut by the sharp edge.
Wrongful death. Under Illinois law, the relatives of someone killed by the wrongful act of another person can bring suit to recover damages against that person. The law can also be applied to product liability cases, which means that the relatives can recover damages against the manufacturer if death results from the use of a product. The law also applies to protect a fetus, if it could have survived outside the womb at the time of its death. Thus, where a person's negligence causes an accident in which a pregnant woman survives but the fetus dies, the woman can bring a wrongful death suit against the negligent driver.
Liquor laws. Laws that hold landowners or business operators responsible for injuries caused by those who became intoxicated on their premises are called dram shop laws. The Illinois Dram Shop Act allows a person injured by an intoxicated person to sue both the intoxicated person and the property owner where the person became intoxicated, if the owner operates the business for profit. Owners can limit their liability under the law if they institute policies designed to prevent such occurrences, such as by having employees refuse to serve alcohol to obviously drunk customers.