Personal injury law is a broad category that we have divided into several types of personal injury. In this section, we'll discuss the general principles applicable to all personal injury cases, and we'll touch on the most common types of personal injuries that give rise to lawsuits. A personal injury lawsuit is based on a tort, which is a civil wrong.
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 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.
Crimes and torts are resolved in completely separate systems. Crimes are resolved in the criminal courts, with an action begun by a governmental body against the wrongdoer, such as The State of Illinois vs. John Doe or The United State of America vs. Jane Doe. Torts are resolved in the civil courts, with an action begun by the injured person against the wrongdoer, such as John Doe vs. Jane Doe or John Doe vs. ABC Company.
An act committed by a wrongdoer can give rise to both a crime and a 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 harm caused by the wrongdoer.
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 Loiuma's civil rights while under arrest were sued under federal law.