NAPERVILLE PERSONAL INJURY LAW DEFINED & EXPLAINED
Introduction, Damages, and Limitations
The law of personal injury involves injury caused by somebody else’s failure to exercise reasonable care. There are several types of personal injury cases. Some common examples include negligence, aviation accidents, medical malpractice, res ipsa loquitur, intentional torts, and products liability. Each type of personal injury may contain different subcategories. Automobile negligence contains auto accidents, motorcycle accidents, trucking accidents, along with bike and pedestrian accidents. Medical malpractice may include wrongful death claims. Intentional torts may include gender violence or assault and battery claims. Here are five steps to help understand the basics of personal injury law:
STEP 1: DETERMINE TYPE OF LIABILITY
One of the most common types of personal injury is the simple car accident. Automobile accidents typically involve a simple claim of negligence. Negligence is whether a person failed to take reasonable and proper care in doing an action. Most negligence claims have four parts to it, known as: (1) Duty; (2) Breach; (3) Causation; and (4) Damages.
Written differently, an automobile accident typically involves the Duty of a driver to take reasonable and proper care in driving their vehicle. That duty was Breached by the failure of a driver to drive in a safe manner. Typically this is accompanied by a violation of the Illinois Vehicle Code. That breach of duty caused (Causation) some form of damage to another person. Phrased another way, the common reasonably foreseeable cause of damages is usually the collision or accident. Finally, the person being injured must have suffered some form of damages, be it personal injury (injury to the body) or property damage(injury to some sort of property, such as a damaged car).
STEP 2: DETERMINE LIABILITY
The second step in determining whether a personal injury case exists is to determine something called liability. Another way of understanding liability is to think of it as, “Who is at fault?” Illinois is a comparative fault state, which means any damages recovered may be reduced based on whether you are at fault at all. For example, if you are found 30% at fault for an accident, your damages will be reduced by 30%. If you are 51% or more at fault, Illinois does not permit you to recover any damages. In other words, if the other person is more than 50% at fault, they have breached their duty to take proper care.
STEP 3: DETERMINE CAUSATION
The next step in determining whether a personal injury case exists is to determine whether there is something called “causation”. Another way to ask the question is, “Did the breach of duty Cause any damages?” One way of thinking about it is this: If you are perfectly fine after the auto accident, but you are shot to death by a gun a week later, the car accident has nothing to do with you dying. Any injuries you suffer must be caused or be reasonably forseeable by the accident. A car accident which causes bruising which later leads to a blood clot is related, or “proximate” causation. A vehicle collision which causes bruising but has nothing to do with a later shooting has its chain of causation broken.
STEP 4: DETERMINE DAMAGES
The most important question most people ask is, “How much?” Damages can be determined by adding the total medical care bill, any missed work or other lost future income, plus temporary or permanent disability. You should also add pain and suffering damages such as loss of experiences and emotional distress. There may also be other specific claims such as loss of consortium, bad faith, punitive damages, and attorneys fees. Finally, you should also include any damaged property.
Most attorneys work off a very simple “1/3” rule. The attorney fronts all of the initial costs. If there is any recovery, the attorney takes one-third of the total recovery, plus is compensated for the initial costs. If there is no recovery, then the lawyer makes nothing.
STEP 5: DETERMINE WHO TO SUE
Some cases are a little different because there is a question on who to sue. It may be that the other person has no insurance, in which case you would file an uninsured motorist claim with your own insurance company. It may be that the other person does not have enough insurance to cover your claim, in which case you would file an underinsured motorist claim with your own insurance company. It may be the other person is a commercial vehicle driver, which means you may file a claim against his commercial insurance or employer also.
In the end, many people fail to realize that there is a difference between the “elements” of a personal injury lawsuit, and the “evidence” of a personal injury lawsuit. For example, the breach of duty is often shown by the issuance of a citation or ticket to the driver at fault. However, that is not truly proper evidence that there was a breach of duty. The evidence itself would be the plea of guilty to the citation, which counts as an admission.
ISSUE EXAMPLE: TIME LIMITATIONS
In the vast majority of personal injury claims, Illinois law requires the injured party to file a claim in the court of law within two years commencing at the time of injury. Failure to file the claim within two years, except in certain legal circumstances, will extinguish your claim. The limitation varies in so far as the cause of the injury is concerned e.g., two years for negligence for personal injuries (735 ILCS 5/13-202) and personal injuries due to medical malpractice (735 ILCS 5/13-212) that you sustained but in the case of wrongful death of a loved one or spouse one year or the time the underlying case affords you, whichever is later (735 ILCS 5/13-209).
These distinctions, along with many others, make even a simple auto accident case become complex. There are also contract restrictions requiring proper notice of a claim, or requiring arbitration. There are exceptions such as minor prior to attainment of majority, the discovery rule, and concealment.
The law is filled with traps for the unwary or overconfident person. A good lawyer should be able to guide their client around the traps. If you are located near Naperville, Illinois and have been involved in a car crash, please feel free to contact me for assistance. There is no initial consultation fee, and I will be happy to answer any questions that you may have.