Frequently Asked Questions
“Personal injury” cases are legal disputes that arise when one person suffers harm from an accident or injury, and someone else might be legally responsible for that harm. A personal injury case can become a formal lawsuit through civil court proceedings that seek to find others legally at fault through a court judgment or, as is much more common, such disputes may be resolved through informal settlement before any lawsuit is filed:
Unlike criminal cases, which are initiated by the government, a formal personal injury case typically starts when a private individual (the “plaintiff”) files a civil “complaint” against another person, business, corporation, or government agency (the “defendant”), alleging that they acted carelessly or irresponsibly in connection with an accident or injury that caused harm. This action is known as “filing a lawsuit”.
In reality, most disputes over fault for an accident or injury are resolved through informal early settlement. This settlement is usually decided among those personally involved in the dispute, their insurers, and attorneys representing both sides. A settlement commonly takes the form of a negotiation, followed by a written agreement in which both sides forgo any further action (such as a lawsuit), choosing instead to resolve the matter through payment of an agreeable amount of money. (Note: the “middle ground” between a lawsuit and an informal settlement is alternative dispute resolution procedures like mediation and arbitration.)
Personal injury lawsuits usually fall under the authority (or “jurisdiction”) of state courts in the county where the injury occurred, or where those involved (the “parties”) in the incident are located. So, if a resident of Dallas is involved in a car accident in Dallas County, he or she will ordinarily file a personal injury lawsuit in the County Court at Law, or District Court in Dallas County. Injury cases in which a relatively low amount of damages is sought (typically a maximum of $2,000 to $5,000) usually must be filed in a court’s “small claims” division.
An exception to the rule of state court jurisdiction arises when parties in a personal injury case live in different states, and the case involves an amount “in controversy” over $75,000. Such a personal injury case may be filed under federal jurisdiction in a federal court (called U.S. District Courts), or the case may be moved there if it was originally filed in a state court. Issues of jurisdiction can be tricky for those unfamiliar with the legal process, but an experienced attorney can sort through any problems that may arise in deciding where to file a lawsuit.
Unlike other areas of the law that find their rules in statutes (such as penal codes in criminal cases), the development of personal injury law has taken place mostly through court decisions, and in treatises written by legal scholars. In Texas, court decisions remain the main source of the law in any legal case arising from an accident or injury. (Note: In some types of injury cases, most notably those arising from car accidents in which a state vehicle code section was violated, statutes can be used to help establish fault for an accident or injury.)
To understand how pre-existing case law (or “legal precedent”) might be used to strengthen an injury case, suppose that you are involved in an accident or are injured, and decide to hire an attorney to protect your legal rights. During settlement negotiations with insurers or opposing counsel, and especially in any legal filings with the court, your attorney will make reference to (or “cite”) prior cases in which the courts in your state decided on issues like fault or damages, in ways that are favorable to your position.
For example, suppose you have been injured in a “slip and fall” on an uneven sidewalk outside your apartment building. In seeking to prove that the owner of your building is at fault, your attorney might cite a case in which your state’s supreme court held that owners of residential buildings have a legal duty to ensure that the premises surrounding the building are properly maintained.
In most claims that arise from accidents or injuries—from car accidents to “slip and fall” cases—the basis for holding a person or company legally responsible for any resulting harm comes from a theory called “negligence.”
Generally speaking, when someone acts in a careless way and causes an injury to another person, under the legal principle of “negligence” the careless person will be legally liable for any resulting harm. This basis for assessing and determining fault is utilized in most disputes involving an accident or injury, during informal settlement talks and up through a trial in a personal injury lawsuit.
Specifically, in negligence claims the plaintiff (the person injured) tries to show that the defendant (the person supposedly at fault) was responsible for the following:
- Owed a legal duty of care to the plaintiff under the circumstances; and
- Failed to fulfill (“breached”) that legal duty through conduct or action (this can include a failure to act); and
- Caused an accident or injury involving the plaintiff; and
- Harmed or injured the plaintiff as a result.
To illustrate how these four elements work, take a hypothetical personal injury case: Don speeds through an intersection against a red light and hits a vehicle driven by Pat, who had the green light and the right of way. In a personal injury dispute based on negligence, Plaintiff Pat will need to show that:
- As the operator of a car on public streets, Defendant Don owed all other drivers (including Plaintiff Pat) a legal duty to drive with reasonable caution under the circumstances; and
- By speeding through the intersection and running the red light, Defendant Don failed to fulfill (“breached”) that legal duty; and
- In failing to fulfill his legal duty to drive with reasonable care under the circumstances, Defendant Don caused his vehicle to collide with Pat’s car; and
- Due to his collision with Don’s car, Pat suffered injury (property damage and physical injury)
In some legal disputes that arise after an accident or injury, the concept of negligence may extend to people or entities that were not directly involved in what took place. For example, using the car accident scenario discussed above, suppose the incident occurred at 10:30 a.m. on a weekday and that Don, an employee of Acme Office Supply, was driving a company van while making a delivery to a local office building.
Under a theory of negligence called “vicarious liability”, not only will Don be found at fault for causing the accident with Pat, but as Don’s employer Acme Office Supply also could be held legally responsible for Don’s negligence in causing the car accident. This is because Acme is accountable for any carelessness on Don’s part that might occur in the normal course of his employment duties, including the manner in which he drives while making deliveries for the company.
For practical purposes, in personal injury cases vicarious liability is often used to make certain that an injured person can recover his or her damages from the most financially secure and adequately insured party. In the above example, that party is more likely to be Acme than Don.
Keep in mind that the concept of negligence is not limited to the action (or inaction) of an individual. Small businesses, partnerships, organizations, and large corporations may all be held legally responsible in situations where they failed to properly ensure the safety of others. This is especially true in personal injury cases that stem from defective and dangerous products (against product manufacturers, distributors, and sellers) and in “slip and fall” cases (against commercial businesses and corporate property owners).
While the concept of negligence applies to most types of personal injury cases, certain kinds of injury claims will use a different rule of fault called “strict liability.” If you are injured by a defective product, or through certain inherently dangerous activities like the shipping of toxic chemicals or the keeping of a dangerous animal, your case will likely proceed under this legal theory.
While the rules are different from those in negligence cases, the good news is that when compared to negligence claims, a plaintiff in a “strict liability” personal injury case does not ordinarily need to show that the defendant was at fault—only that the product or activity was unreasonably dangerous, and plaintiff’s injuries were the result.
If you have suffered harm as a result of an accident or injury, you may be entitled to receive economic recovery from those who are at fault.
What you can recover will depend upon the kind of damages you experienced because of the accident or injury — both during and after the incident. (In some cases, your family members may also be entitled to recover, to the extent that your injury affected their relationship with you.)
Generally, you may be able to recover money damages for the following types of losses, where they apply:
- Medical Expenses you’ve incurred in the past;
- Medical Expenses you expect to incur in the future;
- Pain, suffering and mental anguish you’ve experienced in the past;
- Pain, suffering and mental anguish you are likely to experience in the future;
- Lost wages if you missed work due to your injuries;
- Lost wages if you are expected to continue to miss work in the future;
- Loss of wage earning capacity in the past if your injury has prevented you from working at the same level you could have before even if you weren’t working at the time;
- Loss of wage earning capacity in the future if your injury will prevented you from working at the same level you could have before even if you aren’t working for the foreseeable future;
- Physical Impairment in the past, if your injury prevented you from participating in your usual activities;
- Physical Impairment in the future, if your injury will continue to prevent you from participating in your usual activities;
- Loss of spousal consortium in the past (damages which would come to your spouse) if you were unable to provide comfort, companionship, counsel, service and advice because of your injuries;
- Loss of spousal consortium in the future (damages which would come to your spouse) if you will be unable to provide comfort, companionship, counsel, service and advice in the future because of your injuries;
- Scarring and disfigurement, if the accident resulted in such injuries.
There may be other money damages available to you because of your particular injury. An experienced personal injury attorney can explain to you the types of damages which you may have coming.
To get an idea of the types of damages for which legal recovery is possible, browse the following glossary, which defines almost every type of legal compensation available to a plaintiff in a personal injury case. Remember that an experienced attorney will explain your options, and will work to ensure that you receive all compensation to which you are entitled under the law in Texas.
- Disfigurement. When an accident or injury has left a person deformed or disfigured, e.g., by scars or other permanent effects on personal appearance, the injured person (the “plaintiff”) may be able to collect damages for any mental suffering that arises due to awareness of the disfigurement. These damages are sometimes included as an element of other types of damages, such as mental anguish.
- Future medical expenses. This type of recovery is permitted if the plaintiff proves that he or she will need continued medical care as a result of the accident or injury. The proof must be sufficient for the jury to make an approximate estimate of the cost, i.e. through the medical opinion of a treating doctor.
- General damages. Compensation for harm that ordinarily results from wrongful conduct, such as physical and mental pain, anguish, and loss of enjoyment of life after an accident or injury. These damages cannot be proved with any clear specificity, but are awarded based on the fact that they normally follow from an accident or injury.
- Household services. The cost of hiring somebody to do things around the house while the plaintiff is recuperating from an accident or injury, provided that the expense would not have been incurred had the plaintiff not been injured. These kinds of damages are sometimes included as part of medical expenses.
As soon as you can, write down everything you can think of that relates to:
- What exactly happened before, during, and after the incident that led to your injury—time and place, weather conditions, who was present, what was said, how the incident played out, what you experienced and felt, and anything else that you feel may be important to record.
- Extent of your injuries—what injuries you suffered (physical and mental), medical treatment you received (past and future), and the effect of your injuries on every aspect of your work, social, and personal life. This includes visits to the doctor and physical therapist, time missed from work, any planned vacations that were postponed or cancelled, and the effects that your injuries have had on your close family relationships.
Take Notes Throughout the Claim Process:
- As your claim progresses, continue to keep track of new developments by taking notes after any conversations with your insurance company, medical care providers, witnesses to the incident, and anyone else with whom you discuss important aspects of your case. Write down each person’s name and contact information, the date and place of the conversation, and as much as you can remember about what was said.
Preserve Evidence and Take Photos:
- If you are involved in an accident or injury that may have been caused by someone’s carelessness, preserving any physical evidence of the incident and your injuries can support your position in any legal claim you may decide to pursue. It is important to do this as soon as possible after the incident, because circumstances can change quickly: accident scenes can be altered, memory can become unreliable, and evidence can be overlooked or misplaced over time.
- Though taking the time to do these things may be the last thing on your mind soon after what may be a traumatic experience, these actions can be very beneficial should you decide to pursue a legal claim for your injuries. (Note: If you are unable to act quickly due to injuries or medical treatment, you might ask a loved one or close friend to help you follow the suggestions described below.)
The first step to take in protecting evidence of your injury is to make sure that every physical item is preserved, including torn clothing, broken equipment, and important documents. As an illustration, here are some steps to take after a number of common injuries:
- Motor Vehicle Accidents: After a car accident, take photos of the scene, your injuries, and any property damage. In addition, get copies of all medical records pertaining to your treatment after the accident, keep copies of property damage estimates and repairs records, and obtain a copy of any police report that is made (more on police reports).
- Defective Consumer Products: If you are injured by a faulty product such as a household appliance, be sure to preserve the item in the same condition it was in when the incident occurred. In addition, keep all written instructions, warnings, labels, and packaging that accompanied the item. If you can, try to locate the original sales receipt for the item. If you cannot find the receipt in your own personal records, ask the seller if they have a copy.
A police report was probably generated if you have been involved in a motor vehicle accident or other incident to which a law enforcement officer responded. You are entitled to receive a copy of any such report, so it is a good idea to contact the responding law enforcement agency as soon as possible after the incident.
If you know the name of the agency, locate them in the phone book or on the internet, and call them to request a copy of the report. You may need to pay a small fee to cover photocopying, and the agency may require that you appear in person to pick up the report. Some agencies will mail a copy of the report to you at no charge.
While a police report itself probably will not be admissible in civil court proceedings, it can go a long way toward gaining negotiation leverage in any personal injury dispute. For example, during informal settlement discussions with opposing counsel or an insurance carrier, you or your attorney can use the facts and conclusions found in a police report to gain an advantage on such issues as:
- Circumstances of the incident, including the time of day, date, specific location, and weather conditions at the time.
- Preliminary assessment of fault, especially in motor vehicle accidents. For example, after a car accident a police report may contain a responding officer’s observations as to which driver might have violated the state’s vehicle code, or whose carelessness may have caused the accident.
In addition to providing leverage during discussions on central issues such as fault for an accident, police reports can contain the identifying information of anyone who might have witnessed the incident, or who arrived on the scene soon afterward. At a minimum, most reports will list the name and telephone number of witnesses and those at the scene, and in some situations the report may also contain witness statements about what happened. Having contact information for these people, and especially a record of their views as to what took place, can be a valuable asset for you and your attorney when proving what happened and who was at fault.
Would you know what to do if you were driving and hit another vehicle? A pedestrian? When a car accident happens, injuries may be severe and emotions may be high. However, there are important things that must be taken care of both at the scene of any accident and soon afterward.
Following is a list of things that should be done, if at all possible, when any automobile accident occurs.
- Stay at the Scene: The cardinal rule for all car accidents is that you should never leave the scene until it is appropriate to do so. If you leave the scene of an accident, particularly where someone has sustained injuries or was killed, you can face serious criminal penalties for being a “hit-and-run” driver. Exception: If you are hit by another car in a deserted area, use caution in stopping and getting out of your vehicle. Unfortunately, there have been reported incidents where a person exited their vehicle in a deserted or unsafe area after being bumped by another car only to be robbed or killed. Instead of getting out of the car if you find yourself in that situation, drive to the nearest police station to report the accident. If it turns out that you were being over-cautious and the other driver had no ill intentions, you may be embarrassed, but you will also be safe.
- Check on All Drivers and Passengers: Before assessing property damage, check to make sure that everyone else involved in the accident is okay. Get medical attention for anyone who may need it. If a person is unconscious or complains of neck or back pain, it is best not to move them until qualified medical personnel arrive. In some situations, for example if an injured person is lying in a pool of gas that you fear may ignite at any time, you may have no choice but to move them. If you are in that type of situation, try to move them as steadily and slowly as possible while supporting their neck and back. The less movement, the better. Especially if the accident involves significant property damage, physical injury, or death, you may need to call the police. Ask that a police report be filed in situations where law enforcement officers do arrive at the scene, and obtain the name and badge numbers of any responding officers.
- Exchange Information: Talk to the drivers of any other vehicles involved in the accident. Get their names, phone numbers, addresses, drivers’ license numbers, license plate numbers, and basic insurance information. If there are passengers in any of the vehicles, obtain their names, telephone numbers, and addresses as well. In talking to drivers of other vehicles, you should try to be cordial and cooperative in determining that everyone is okay and in exchanging basic information. However, do not apologize for anything at the scene. If you jump out of your car and blurt out, “I’m so sorry I ran that red light! Is everyone okay?” you may back yourself into a corner in terms of legal liability for what happened. Immediately after an accident, the scene is chaotic and it might not be evident who was at fault, or who was more at fault, in causing the accident. Moreover, in many states, fault is not determinative of which insurer will pay for any loss. Therefore, try to keep your conscience in check, at least until things get sorted out, so that you don’t admit guilt unintentionally or unnecessarily.
- Talk to Witnesses: Ask every witness what he or she saw. Get their names, telephone numbers or addresses, if possible. Whether the witnesses are residents of the area, businesspeople that work nearby, or passersby who were in the vicinity, try to talk to as many people as you can. Ask them, in particular, if they have ever witnessed other accidents in the same place. If a witness is hesitant to talk to you, don’t beg or threaten them. Forcing information from someone will get you nowhere. Write down what they tell you and, if they agree, simply get their name and phone number so that you, your attorney, the insurance company, or the court can contact them again.
- Inform your insurance company: As soon as possible, tell your insurance company that you have been involved in an accident. Cooperate with your insurance company and tell them the truth about what happened and the extent of your injuries. If the insurance company finds out that you have lied to them about anything, you can get into serious trouble, not the least of which may be the denial of any coverage for the accident. Build support for your case when discussing the matter with your insurance company. Be able to explain to them the facts of the case in a clear manner. Obtain and review a copy of any police report, so that you can point out to the insurance company who broke what traffic laws or who was at fault for the accident. Such information will often be provided in the report. Although the insurance company may already know the facts of your case, taking an active interest in making sure your rights are protected will force the insurance company to take you seriously.
- Keep Track of Your Medical Treatment: Note any doctors, physical therapists, chiropractors, or other medical professionals that you receive treatment from, and each medical provider that referred you to other caregivers. Having a written diary of this information will help you itemize your medical expenses and treatment for your insurer, your attorney, and the court.
- Take Pictures: Take photographs of any damage to your vehicle as soon as possible after the accident. Having photographic proof will help your insurance adjuster determine how much you should be compensated for the damages to your car, and may also assist your case in court, if needed. If you have pictures of your car from before the accident, these pictures will offer a great “compare and contrast” to show the true extent of the damage sustained in the accident.
- Get a Property Damage Valuation: Obtain a valuation for damages to your car from your insurance company. If you are not satisfied with the manner in which your insurance company has valued your vehicle, do not give up. Get two estimates for the repair of your car on your own, or have two dealers provide a quote for the cost of replacing your vehicle if there was a total loss. Communicate to the adjuster your concerns and position, and be assertive. If you cannot agree on the value of your car, consider alternative dispute resolution, or consult an attorney.
- Use Caution in Discussing the Incident: Do not talk to anyone about the accident other than your attorney, your insurance company, and the police. Do not talk to a representative of another insurance company under any circumstances, without the knowledge of your attorney or your insurance company. If representatives from other insurance companies should call you, be polite, but ask them to call your attorney or insurance company to arrange for an interview. Also, get the representative’s name and number, and tell your insurance company or attorney that someone seeking information about your accident contacted you.
- Be Wary of Early Settlement Offers: Be careful if you are offered a settlement from an insurance company. Make sure that any physical injuries you may have suffered have been treated, and that you have a doctor’s prognosis. Some injuries may not show up or reach their greatest level of discomfort until many days, weeks, or months after the accident.
- Consult an Attorney: Don’t settle a claim until you know you will be compensated for all of your injuries, and consult an attorney before signing any documents pertaining to settlement.
During your first meeting with an attorney after any accident or injury, your lawyer will first want to hear about what happened, and he or she may collect a variety of information from you. The length of the initial interview can vary depending on the circumstances that led to your injuries. In rather straightforward cases like car accidents, the first meeting probably won’t take very long, especially if you come prepared.
In more complex cases like medical malpractice or injuries from defective products, the initial interview will usually take longer. As you tell the lawyer about your accident, he or she may ask questions about it.
Frequently, lawyers wait until you have told them everything before asking questions. While some of these questions may be difficult to hear, let alone answer, your lawyer does need to know the answers in order to help you find the best solution for your case. Your lawyer will collect a variety of information relating to your accident or injury, including facts about your medical treatment, others involved in the accident, potential witnesses, and more. He or she will likely also discuss practical aspects of your case such as a representation agreement different types of legal fees, and the kinds of costs you can expect in your case.