Personal Injury Law Basics

The Basics of Personal Injury Law 101

What is Personal Injury Law?

American law essentially can be distilled to two very broad categories: criminal and civil. Criminal law is probably familiar to you. So-called “civil law” has many sub-categories such as real estate, corporate, and tort.

Tort is the component of American law that allows people to redress wrongs committed against each other. Personal injury law falls under the broader rubric of Tort Law.

Personal injury law is the body of law that permits individuals to sue for monetary damages based on emotional, mental, psychological, and monetary losses. While similar to criminal law, it is not the same. When someone violates the criminal law, the state or society suffers as does a particular victim. The government files a criminal case against the alleged perpetrator of the crime to effect punishment. The punishment can be imprisonment, probation, or fines.

A personal injury claim can arise from a crime, but not always. That said, a crime will always give rise to action “in Tort.” However, a personal injury claim is not always a crime. For example, someone who drives drunk and crashes into another motorist and injures them commits the crime of Driving Under the Influence, and perhaps others. The state will prosecute the drunk driver for their actions and seek punishment. Simultaneously, the injured motorist could file a claim for monetary damages against the driver for compensation for their losses even if the state does not convict the person of driving under the influence.

What Are Some Examples of Personal Injury Cases?

Perhaps the most common personal injury claim results from car accidents.

According to the U.S. Department of Transportation, 38,824 people died in car accidents in the U.S. in 2020. That means 2020 was the deadliest year since 2007. Interestingly, the total number of crashes reported to police dropped by 22% and the total number of people injured fell by 17%. Amazingly, behavior such as speeding, alcohol use, and failing to wear a seat-belt was reported in 45% of all fatal crashes in 2020.

Car accident data encompasses other motor vehicle accidents as well. Other types of vehicle accidents include:

  • Motorcycle accidents,
  • Pedestrian accidents,
  • Bicycle accidents, and
  • Tractor Trailer accidents.


Personal injury law includes other types of incidents as well.  Other common personal injury claims involve:

  • Slip and fall (premises liability),
  • Wrongful Death,
  • Products liability,
  • Security failure,
  • Wrongful termination,
  • Medical malpractice,
  • Dog Bite/Animal attack, and


You should consult a well-qualified personal injury attorney to help you if you suffered an injury through no fault of your own. A personal injury attorney with knowledge of the law in your state will determine if you have a legal right to pursue monetary damages.

What is the Legal Standard in a Personal Injury Case?

Negligence is the foundation of a personal injury case. You might have heard that term before but may not know what it means precisely. Legal negligence means more than making a mistake, although that’s certainly part of it. To prove negligence, the plaintiff, that is the person making the claim for damages, has to prove that the defendant:

  • Owned the plaintiff a legal duty,
  • Breached that legal duty,
  • Caused an injury because of the breach, and
  • The plaintiff suffered damages as a result.


The plaintiff has to prove all four of these elements to a fair preponderance of the credible evidence to win a damage award. Although not technically accurate, you could say that the preponderance of the evidence standard means the defendant’s actions more likely than not caused the plaintiff’s injury. By contrast, the standard in criminal law is beyond a reasonable doubt. The reasonable doubt standard is much higher than the preponderance of the evidence.

In some personal injury cases, the standard of proof is different. Depending on where you file your claim, the defendant might be “strictly liable” for injuries. Typically, products liability cases hold manufacturers strictly liable for the injuries they cause from their defective products. Some states also hold animal owners strictly liable for the harm their animal’s cause. That means you just must prove causation and damages to win your case.

What are the Damages You Could Win in a Personal Injury Case?

The type of damages you could win in a personal injury case vary. Your state’s law dictates the type of damages you could win. Generally, every state allows you to win compensation for past, present, and future losses that naturally flow from your accident. Those losses could include:

  • Medical bills,
  • Future medical bills and costs,
  • Lost wages or lost salary,
  • Loss of future wages or salary,
  • Loss of economic benefit from wage increase, and
  • Property damage.


You could also win compensation for pain and suffering. What exactly does that entail?

Pain and suffering is the psychological, physical, mental, and emotional pain caused by another’s negligence. Computing the amount of pain and suffering damages to which you are entitled is the subject of much debate. The easiest way to calculate pain and suffering damages is to triple the number of monetary losses you suffered.

Wrongful Death Statutes

Every state has a wrongful death statute.  The statute applies when someone dies at the hands of another person. Negligence will suffice; you don’t have to prove the killing was intentional.

A wrongful death claim must be filed by a representative of the deceased’s estate but not necessarily someone entitled to damages. In fact, the law limits recovery to people identified in the statute as those who are entitled to make a claim. State statutes might limit the claimants to a spouse and children, or if the decedent had no spouse or children, then to the decedent’s parents.

Each state’s wrongful death statute dictates the damage award and how that award must be distributed. It is vitally important to check your state’s laws to be sure what damages you can claim and who can claim them. Each state is different. Therefore, you should contact a knowledgeable lawyer right away if you have any questions because you could forfeit important rights if you’re not careful.

Some states allow a particular type of personal injury case called a survival action. In a survival action, the decedent’s estate can bring a claim for medical bills, conscious pain, monetary losses and suffering that occurred before death. The decedent’s estate claims these damages. Thus, they do not go directly to the decedent’s spouse and children, if any. Instead, the damages won becomes part of

Additional Damages in Personal Injury Cases

A plaintiff in a personal injury case can ask for the jury to impose a penalty on the defendant because of the depravity of the defendant's actions. This penalty is known as punitive or special damages. As the name suggests, punitive damages punish the defendant for misconduct.

A plaintiff who sues another under a theory of negligence cannot seek punitive damages. Instead, the plaintiff may only seek compensatory damages. The plaintiff must allege either intentional or reckless misconduct on behalf of the defendant to win punitive damages.

Punitive damages are not compensatory by nature. A jury can award the plaintiff compensatory damages, e.g. medical bills, and lost wages, and then tack on punitive damages if the law allows. Taking our drunk driving example from above, your state’s laws might allow you to claim the drunk driver was reckless and ask for punitive damages in addition to the monetary losses you suffered.

What are the Limitations on Damages?

Every state has a statute of limitations for personal injury actions. Some states allow up to three years to file suit for a personal injury claim, others only allow two years. Statutes of limitations can change depending on the cause of action.

Understanding the statute of limitations in your jurisdiction is essential. You lose all rights to a personal injury claim if you file a case in court after the statute has run. Although statutes of limitations have exceptions that could change the filing deadline, you should contact a qualified lawyer immediately to protect your rights.

You also must be aware of “Tort Claims Acts” in your state. States, along with the federal government, have strict notice requirements that you must satisfy before filing a claim for damages against a governmental entity.

Tort reform might cap certain damages. Again, this is a matter of state law. Some states put a cap on the pain and suffering damages you could receive. Some jurisdictions also cap punitive damages. Conversely, some states have not passed tort reform bills.

If you file a personal injury claim, the chances are that the defendant will argue that you are responsible for your injuries or contributed to your injuries in some way.

At Common Law, a person who contributed to their injuries in the slightest bit could not prevail in a negligence action. That means you lose if you were even 1% negligent and the other person was 99% at fault.

Now, only five states and the District of Columbia have a pure contributory negligence scheme. All other states adopted a comparative negligence theory of defense. Comparative negligence, depending on your state, does not automatically preclude you from winning personal injury damages.

There are two forms of comparative negligence: pure and modified. Individual states adopted their version of comparative negligence. Again, you need to check your local laws to understand your state’s comparative negligence law.

In a pure comparative negligence state, the plaintiff can collect damages based on their percentage of fault. For instance, if a jury finds that the plaintiff was 40% at fault for the accident, then the court will reduce the award by 40%. In a pure comparative negligence state, the plaintiff could win even if they were 99% at fault.

Modified comparative negligence is closer to contributory negligence. Depending on the law in your state, you cannot collect any damages under a modified comparative negligence jurisdiction if you are 50% or more at fault. 

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