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Peter M. Hobaica, LLC
2045 Genesee St.
Utica, NY 13501
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2045 Genesee St.
Utica, NY 13501
29 Pioneer Street,
Cooperstown, NY 13326
What is Negligence?
If you have a been injured in an accident of some kind you may have a claim for the personal injuries you have suffered. When you have a personal injury action (or any tort claim), you must be aware of negligence. The defendant may be the negligent party and his or her negligence caused your injury. However, if you were injured as the result of your own negligence, this may also affect your claim. Negligence is failing to provide reasonable care for the safety of others or yourself. The court considers the level of care a “reasonably prudent person” would have employed in the same circumstances. If an individual fails to act as a reasonably prudent person would, he or she may be shown to have failed to protect others (or him or herself) against foreseeable harm and may be seen as contributing to the injury that occurred as a result.
Can I Get Compensation for My Injuries if an Accident Might Have Been Partly My Fault?
If you may be partly to blame for your injuries, you may or may not be able to recover damages. It depends on the jurisdiction you are in. A minority of jurisdictions follow contributory negligence: Under this rule, if your own negligence caused your injury, or played a part in causing your injury, you may not be able to recover for your injuries. However, the majority of jurisdictions follow comparative negligence. In comparative negligence, you may still recover damages for your injuries if your own negligence was a partial cause of those injuries. The amount of damages you may receive will be lessened in comparison to the amount of your own negligence. You will still be able to recover for your injuries, but the sum is contingent on your amount of fault.
Can I Get Compensation for My Accident Injuries if I Have a Preexisting Medical Condition?
Generally, if an individual has a preexisting condition, he or she may not recover damages for injuries related to that condition. However, the preexisting condition does not bar an injured person from recovering damages that were caused by the accident and not the preexisting condition. For example, if a person has a permanent back injury and is hit by a car while crossing the street, that person may recover damages from injuries sustained from being hit by the car, but not for the previous permanent back injury. Likewise, if a person already has a condition that is worsened by an accident, he or she may be able to recover damages for the injuries sustained by the worsened condition and medical treatment for the worsened condition, but not the original condition that they already had. In some jurisdictions, there may also be a separate claim for aggravating a preexisting disease, illness or condition. It is important to speak to an attorney to find out how preexisting conditions are treated by the court in your area.
What must a plaintiff prove to recover for an assault or battery?
The terms assault and battery are often erroneously used interchangeably. An assault can be defined as the threat to use unlawful force to inflict bodily injury upon another. The threat, which must be believed to be imminent, must cause reasonable apprehension in the plaintiff. Therefore, where the defendant has threatened some use of force, creating an apprehension in the plaintiff, an assault has occurred. The focus, for the purpose of determining whether a particular act is an assault, must be upon the reasonableness of the plaintiff's reaction.
If the defendant threatens to use force against the plaintiff, but clearly states that the use of force will not be imminent, and will instead occur at some point in the future, then the plaintiff is unlikely to prevail on a claim of assault. If the threat is imminent, and the defendant appears capable and intent on carrying it out, the plaintiff will likely succeed in proving an assault occurred.
Battery is the intentional and unpermitted contact with another. A battery, for practical purposes, is the end product of an assault. A plaintiff in a battery claim does not need to prove an actual injury, as long as the plaintiff proves unlawful and unpermitted contact with his or her person or property. For example, plaintiffs have successfully proven a battery where the defendant grabbed onto the plaintiff's coat. In addition, it is not necessary for the contact to be with an object in the possession of the plaintiff or the plaintiff's body. An unpermitted contact with property of the plaintiff, located within the plaintiff's proximity, may also constitute a battery.
If a dog bites a person, is the owner liable for doctor's bills?
In general, the answer to this question is yes. An owner of a dog, or any animal for that matter, may be held liable for injuries the animal inflicts on others. However, the ease with which a plaintiff can win a "dog-bite" lawsuit differs from jurisdiction to jurisdiction depending on the legal theory of recovery available in the plaintiff's location. Some jurisdictions require the plaintiff to show that the animal owner knew, or should have known, that the animal was inclined to attack or bite. In other jurisdictions, the plaintiff may only need to show negligence on the part of the owner in order to recover money for his injuries. If a wild animal, such as a lion, bear or monkey, injures the plaintiff, the animal's owner may be held accountable under a theory of strict liability for plaintiff's injuries regardless of the plaintiff's conduct.
Some states have "dog-bite" statutes designed to address these matters. Additionally, some municipalities may also have their own statutes which address the responsibility of pet owners to answer for the actions of their pets.
If the plaintiff is an adult, the owner of an animal may offer as a defense to the plaintiff's claim that the injured party provoked the animal. Where the plaintiff has been given clear warning that an animal should not be approached, petted or talked to, and still proceeds with that action, the owner may be able to avoid responsibility if the animal thereafter attacks the plaintiff. This defense is not available, however, if the plaintiff is a child.
Once the plaintiff has established that the animal owner is liable for his injuries, the plaintiff must also establish the amount of his or her damages. The plaintiff should introduce evidence of how much it has cost to treat the injury, such as doctor and hospital bills. In addition, the plaintiff may be able to recover lost wages if the injury kept the plaintiff out of work. The plaintiff is entitled to compensation for any permanent disability caused by the injury, as well as compensation for pain and suffering.
What does a person have to prove to win a slander or libel claim?
Defamation includes both slander and libel. Generally, slander occurs when the reputation or good name of someone is damaged as a result of false statements that are made orally. Libel, on the other hand, occurs when false statements regarding another are put in writing.
Whether a particular statement, oral or written, constitutes defamation in the nature of slander or libel will depend upon the particular circumstances and the identity of the parties. To prevail in a defamation lawsuit, a plaintiff must prove that the defendant made a false and defamatory statement about the plaintiff that was communicated to a third party. Thus, a false and objectionable statement sent in an e-mail to the plaintiff's co-worker may be libelous. The plaintiff can usually succeed by showing the communication was either intentional or negligent. Finally, it is also possible for the plaintiff to bring a libel suit where the plaintiff repeats the alleged defamatory statement. This is called self-publication. This can occur, for example, when an individual applies for a job and has to tell the prospective employer about something the previous employer said that was false.
Before beginning a libel or slander lawsuit, the plaintiff must determine whether or not the objectionable statement is true. No matter how damaging, insensitive, rude or inappropriate a statement may be, the plaintiff will lose if the statement is true.
The "public" plaintiff has additional hurdles to overcome to recover for libel or slander. An example of a public figure is a politician. Along with establishing all of the regular elements of the tort, a plaintiff who is a public figure must also show that the defendant knew the false statement was false or at least acted with reckless disregard as to its truthfulness. Newspapers may escape liability for libel when they merely report false statements as long as the paper had no particular reason to doubt the statement at the time it was printed.
Finally, the plaintiff often has to prove economic harm in order to recover on a defamation suit. Therefore, the plaintiff may need to be able to demonstrate a loss of business as a result of the defamation in order to establish a right to the recovery of money. However, some types of statements are so damaging that the plaintiff does not have to prove any economic loss. These statements tend to be those that accuse the plaintiff of sexual impropriety or criminal conduct.
Does the average member of the public have any privacy rights?
Yes. The average member of the public is entitled to privacy protections, although the strength of those protections will vary depending upon the particular facts. Generally, there are four different actions that an injured plaintiff can allege to recover for an unlawful invasion of his privacy. The first concerns the unlawful appropriation of another's image. The plaintiff could make this claim, for example, if the defendant uses plaintiff's picture in a commercial or advertisement without permission.
The second type of wrongful invasion of privacy is in the nature of intrusion. If the plaintiff can prove that the defendant intruded into his or her solitude, seclusion or private life in a manner that would be considered highly offensive to a reasonable person, the plaintiff is entitled to recover damages from the defendant. The issue of what actions are considered highly offensive depends greatly upon the factual circumstances under examination.
The third type of a privacy claim is the public disclosure of private facts. This cause of action requires that facts having no link to a legitimate public concern be disseminated by the defendant resulting in embarrassment, humiliation or offense to the plaintiff. Whether the public has a legitimate concern in otherwise private facts about the plaintiff is always dependent upon the particular circumstances.
A fourth type of privacy right is the right to be free from being placed in a false light in the public eye. This cause of action is very similar to a defamation action. In short, the plaintiff alleges that a communication about the plaintiff was made by defendant, it is untrue, and it was made to the public. The main difference between this cause of action and defamation is that for the invasion of privacy tort, the communication need not be defamatory; it need only be false and highly offensive to a reasonable person.
Can a person recover damages for injuries sustained on someone else's property?
An owner of property has a duty to protect members of the public from injury that may occur upon the property. The injured person may be able to recover money for those injuries if he or she can prove that the property owner failed to meet that duty. The hurdle plaintiffs’ face is that the nature and extent of the property owner's duty will vary depending upon the facts of the situation and the jurisdiction in question.
Some states focus on the status of the injured visitor to the property. These states divide the potential status into three separate categories: invitee, licensee and trespasser. An invitee is someone who has been invited onto the land because that person will confer some advantage to the property owner, such as a store patron. An owner of property is required to exercise reasonable care for the safety of the invitee. A licensee is someone who enters upon the land for his or her own purpose, and is present at the consent, but not the invitation, of the owner. The owner's duty to a licensee is only to warn of hidden dangers. Finally, a trespasser is an individual who enters onto the property without the knowledge or consent of the owner and who remains there without any right or permission. Trespassers have difficulty suing property owners because property owners' duty towards trespassers is not to place traps and hazards on their property. In some cases, the owner must also warn trespassers of the hazards if they are unlikely to be discovered by the trespasser and could cause serious injury or death.
Other states focus upon the condition of the property and the activities of both the visitor and owner, rather than considering only the status of the visitor. In these states, a uniform standard that requires the owner of the property to exercise reasonable care to ensure the safety of invitees and licensees is generally applied. The plaintiff must prove that the duty of care has not been met, through an examination of the circumstances surrounding the entry on the property, the use to which the property is put, the foreseeability of the plaintiff's injury, and the reasonableness of placing a warning or repairing the condition. Obviously, whether reasonable care has been rendered depends greatly upon the particular circumstances.
The property owner's duty of care toward children is greater than the duty owed to adults. Even if the children are trespassers or engage in dangerous behavior, the property owner must still take precautions to prevent foreseeable harm to children. The classic example of a property owner's greater duty of care to children arises in the context of backyard swimming pools. Owners must fence, gate, and lock their pools in a manner that keeps children out and if they fail to do so, they will be found liable for injuries to children, even if the children were trespassers that were warned to stay off the property.
Is an owner of property liable for using deadly force to defend their property?
Generally speaking, an owner of property may not use deadly force to defend the property. Society values human life and bodily integrity much more than property. Therefore, the life, health and safety of an individual, even an intruder, is considered to be more valuable than the china or stereo, which that individual is trying to steal.
An owner is not prohibited, however, from invoking self-help methods in defending property from another. An owner of property is entitled to use reasonable force to prevent someone, or something, from entering onto his or her property or to remove something from his or her property. What, under normal circumstances, may constitute a battery, assault or other intentional tort, will not be considered unlawful in situations where it is performed as a reasonable use of self-help in defense of property. However, the use of force calculated to do great bodily harm, or cause death, is not permitted.
There is one narrow limitation upon the use of deadly force, where it is allowed. Where an intruder threatens personal safety, as well as a threat to property, or where the intruder is committing a forcible felony, deadly force may be appropriate.
What remedies does a railroad worker, who is injured while working, have?
Most individuals who are injured at work are prohibited from filing ordinary personal injury lawsuits against their employers. Instead, injured workers are generally required to file a claim under the state's workers compensation procedure. An injured railroad worker must bring a claim for benefits under the Federal Employer's Liability Act (FELA) for compensation for his injuries. FELA is similar to many state workers' compensation systems with the exception that a railroad employee must be able to prove some level of employer negligence in order to make a recovery. In comparison, most state systems are based upon no-fault theories of recovery where neither the negligence of the employer or the employee is examined.
Laws, rules and regulations require a railroad to furnish a reasonably safe workplace for the benefit and protection of its employees. In keeping with this requirement, a railroad has a duty to inspect and discover defects that may result in injury. In some circumstances, this may include the duty to uncover defects that should be obvious to a railroad employee. A railroad also has a duty to warn its employees of any hazardous or unsafe conditions of which it is aware, or should be aware. A railroad is also required to take other steps to ensure the safety of its workers, including providing adequate training and supervision, appropriate tools and safe equipment and enforcing only reasonable work quotas.
What is a slip and fall action?
A slip and fall action is a type of personal injury lawsuit filed by a plaintiff who has been injured by a slip and fall, usually on the defendant's property. The plaintiff in slip and fall cases must usually show that the owner of the property had notice or knowledge of the condition, and failed to clean it up and rectify it within a reasonable amount of time. Additionally, if the plaintiff has knowingly encountered a hazard, then he or she may have trouble holding the defendant liable.
Can anyone bring a wrongful death claim?
No. Generally, most states that recognize a wrongful death cause of action limit the number of potential plaintiffs. Some states limit this group to the deceased's primary beneficiaries, defined as the surviving spouse and the deceased's children. Other states allow the parents of the deceased individual to bring a wrongful death claim. In addition to these individuals, some states recognize the rights of any dependent, whether closely related or not, to bring a wrongful death claim provided the person actually depended on the deceased for economic support.
Some states require any recovery gained in a wrongful death action to be divided amongst the deceased's heirs at law or to be distributed to the deceased's heirs at law as it would be in any normal probate proceeding. In these situations, distant relatives may receive some "trickle down" of damages, even though they were not financially dependent upon the deceased during his life. In addition, if more than one plaintiff is entitled to recover; all plaintiffs will share in the award. The manner in which the award is divided can be confusing and will depend upon the laws in the particular jurisdiction where the matter is brought.
Who Pays for Workers' Compensation Benefits?
Workers’ compensation benefits must be available to all employees under the Workers’ Compensation Act. Most states have their own workers’ compensation statutes that require employers to have workers’ compensation insurance coverage for their employees. This type of insurance is liability insurance to protect/cover employers in case one of their employees is injured (nonfatal or fatal) during the course of his or her employment (while on the job). Workers’ compensation benefits may cover payment for injuries sustained by the employee, emergency/future medical treatments, therapy, lost earnings and death benefits for family members. Also, in the insurance policy contract, employers must pay the premium for each employee. The premium per employee is usually based on the gross amount of wages that employee earns on an annual basis.
When a workers’ compensation claim occurs, the insurance pays the employee from the company’s policy. The company may be insured in a few different ways; the type — or origin/source — of the insurance depends on the jurisdiction you are in and the specific statutory conditions in that state. The insurance mandated by statute may be a fund managed by the government, a private insurance company or the employer may be self-insured (meaning, the company has no outside insurance and is held responsible for their own financial liabilities). Along these lines, in some states, self-insured companies may have an insurance contract that limits their financial liability to an employee up to a specific amount. This is to protect the company from detrimental losses, or total loss of the company’s finances. This type of contract may not be permitted by statute in some states, it depends on the statutory conditions for workers’ compensation insurance in the jurisdiction in which you are located.
Do Workers' Compensation Benefits Cover Only Injuries, or Also Long-term Problems and Illnesses?
All employees are entitled to workers’ compensation benefits if they are injured while working in the United States. The injury may be due to an accident that occurred while working or an illness that is related to the employee’s occupation/trade. Workers’ compensation benefits covers more than treatment for physical injuries that occur while working. Other benefits included may be:
Lost wages (up to ninety percent in most states), that may include permanent or temporary wage replacement or payment of lost earnings to survivors in the case of the employee’s death
Healthcare, medical treatment, therapy services rehabilitation and any medical devices (such as prosthetics) that may be deemed medically necessary. This includes immediate treatment and future treatments.
The amount of benefits, types of injuries that receive benefits and length of time that the benefits may be paid will be specified by state law. Generally, most statutes will provide benefits for medical treatments as long as the care received is for improvement, or rehabilitation. Once an injury is classified as permanent and static (progress is at a standstill), some jurisdictions will not extend benefits for employees. It is important to speak to an attorney familiar with the workers’ compensation statute in your area to discuss your situation and options.
I Have Been Injured By Medication My Doctor Gave Me, Do I Have a Claim?
Unfortunately, not all medications available on the market are safe to persons taking them. Many drugs benefit the user in the way they are intended. However, drugs that do not act as intended and cause serious harm to the user are known as dangerous drugs. If you or a loved one has been injured by using a dangerous drug, you may have a claim for the injuries you have suffered. It is important to seek an attorney to discuss and potential claims you may have.
Victims of dangerous medications usually have a personal injury claim. Yet, additional claims may be appropriate depending on the facts of your case. Other claims may be medical negligence and wrongful death. If you have an action for personal injuries caused by using a harmful medication, there are a few legal claims that may be possible. You may have a claim against the manufacturer of the drug, the doctor who prescribed you the drug and/or the pharmacist who dispensed the drug. If you have a claim against the manufacturer of the dangerous drug, you may have a claim of warranty fraud or a failure to warn claim. In a failure to warn action, the plaintiff (injured party or family member of an injured party) must show that the company knew about the harmful side effects and/or injuries that could occur when taking the drug. The company then failed to warn potential victims or doctors of the probable injuries. The manufacturer may also have issued warnings listing possible risks of taking the medication, however these warnings may have minimized the dangers or not described the dangers adequately, and these actions may also fall under a failure to warn. Either by failing to warn potential victims or falsifying information, the company placed the harmful drug on the market.
Additionally, injured persons may have a claim against their doctor for prescribing them the dangerous medication that caused their injury. In some cases the physician may have ignored warnings about possible risks and likewise failed to warn patients of these risks. The doctor may also have failed to act as a reasonable doctor would in a similar situation by not monitoring the party using the drug and/or not recognizing symptoms of injuries until it was too late. These actions may be for professional negligence.
What Type of Damages Can I Seek in a Personal Injury Claim?
If a medication has caused you injury, you will most likely be seeking financial compensation (damages) for your injuries. In order for the court to award damages, you will have to prove the four elements of a personal injury tort case. The four elements are that the defendant owed a duty to you (the plaintiff), that duty was breached by the defendant, the breach caused the injury you sustained and that you were, in fact, injured as a result of taking the dangerous medication. If you have proved your case, the court will look at the amount of loss you have incurred, such as costs of medical care and treatment, loss of earnings, the severity of the injuries suffered, the amount of future assistance you may need and other factors depending on the facts of your case. In some cases, the court or jury may also award punitive damages (in addition to compensatory damages). Punitive damages will often consider the amount of pain and suffering the victim experienced. These types of damages are intended to punish the defendants for their wrongdoing, as pain and suffering can never be sufficiently compensated.
I Was Injured When I Slipped and Fell in a Local Business Establishment, What Can I Do?
If you have been injured by falling while on another’s property, you may have a slip and fall claim. A slip and fall claim is a personal injury action based on tort law. Based on the facts of your case, the property owner may be liable for the injuries you have sustained. It does not matter if the property is public or private, the owners may still be held accountable for injuries on their property. Thus the owner may be a private citizen, a corporation or business, or even a government entity.
If you are entering slip and fall litigation, you will have to prove four elements of personal injury to the court. The elements necessary to prove personal injury are as follows:
The injured party (or someone on their behalf) must show that the property owner had a legal duty to do everything possible (based on a reasonable person standard) to prevent the injury from occurring on his or her property. For example, business owners have a duty to prevent foreseeable harm that may injure their patrons.
Breach of Duty
If the defendant’s duty has been proven, the injured party must also show that the defendant breached his or her legal duty: The defendant, by action or inaction, did not prevent the foreseeable harm that injured the plaintiff while on the defendant’s property.
To prove causation, the claimant (plaintiff) must prove to the court that the defendant’s (property owner’s) breach of duty is what caused his or her injury. For example, the defendant knew of a dangerous condition on his or her property, failed to rectify it and this condition injured the victim.
The plaintiff must show that there was an actual injury. This may be proven by testimony from the doctor that treated him or her, medical records and the victim’s own testimony.
What May the Defendant Do?
If you have proven the four elements of personal injury to the court, the defendant (property owner) will have a chance to present his or her defenses to the court. The defendant will try to show the court that he or she was not negligent and keeping the property safe of foreseeable harm. They will try to prove to the court that they exercised due diligence in discovering any dangerous conditions on their property; property owners are required to exercise due diligence by law. To prove there was not negligence on the defendant’s part, they must provide evidence that they applied the same level of care as any other reasonable property owner would in a similar situation/similar conditions.
Conversely, the defendant’s defense may be that the victim’s injury was self-inflicted or caused by the victim’s own carelessness/negligence. The property owner had a duty to keep the property safe from hazardous conditions. However, there are situations that may be outside of the defendant’s control. If the injured person did not look out for his or her own safety, or deliberately engaged in a dangerous action, or created a risky condition, while on the defendant’s property, the defendant may not be held liable.
Can I Have a Civil Claim for Suffering Injury Due To Assault and Battery?
If you have been injured due to an assault and battery, there may be two different types of claims against the person who injured you, criminal and civil. In a criminal case, the assailant may be prosecuted by the government. If the party is found guilty of assault and battery, he or she may be punished. Punishment may be imprisonment, probation, restitution or other types of punishment as determined by the court. Alternatively, in a civil claim for assault and battery, compensation for the victim’s injuries is the goal of the case, not punishment. As a victim, you may have a civil claim against the person who harmed you for damages sustained due to your injuries. If you succeed in your civil case, you may be awarded compensatory damages from the defendant.
Compensatory damages are intended to reimburse the plaintiff for wrongs done to him or her by the defendant. The court will consider the amount of medical costs, treatments costs, lost wages, loss of household services, the severity of the injury, pain and sufferings and other factors, when determining the amount of compensation due to the victim. Additionally, in some jurisdictions, punitive damages may also be awarded by the judge or jury. The intent of punitive damages is to punish the defendant (financially) for wrongs perpetrated on the plaintiff, in addition to compensatory damages. Punitive damages are not available in all jurisdictions and are awarded by fact finders (judge or jury) at their discretion, based on the facts of the case. It is important to speak to an attorney about pursuing a civil case for assault and/or battery and the types of damages that may be available in your jurisdiction.
What is Assault and Battery?
Assault and battery are actually two separate legal claims. Most commonly, they go together, but they do not have to. It depends on the circumstances of your injuries; you may have a claim for assault, a claim for battery or both. Both claims require that the assailant intended to harm the victim. The harm may be to induce fear in the victim, or actual physical injury. Assault occurs when a victim is threatened with physical injury/violence. The victim must actually fear that physical harm to them will take place. A verbal threat may not be enough to show assault. Additionally, the fear of immediate harm, that the victim felt, must be reasonable for the situation. The court may determine what was reasonable in the situation based on the facts of the case presented to the court.
Likewise, battery is when the injury, in fact, takes place. Battery is most often the result of an assault. When a battery takes place, the assailant does not have to be the person who came in direct contact with the victim. However, the physical injuries sustained must have been caused by the defendant’s actions. It is enough that the defendant’s actions created a situation that caused the victim’s injuries. An example may be if the defendant was playing a practical joke on the plaintiff and as a result of the joke, the plaintiff was physically injured. The defendant did not intend for the plaintiff to be hurt, but did intend the joke, which resulted in circumstances that caused injury to the victim.
What are Soft Tissue Injuries?
Injuries to muscles, tendons and ligaments are considered soft tissue injuries. These types of injuries are usually sprains, strains or contusions (bruises) and do not involve the bones or organs. Such injuries may occur over a long period of time (often job related) or due to a single incident, such as an automobile accident. The most common example of a soft tissue injury due to a single event is whiplash, which is an injury to the neck due to a sharp backwards/forwards motion. Additional types of soft tissue injuries may include tendonitis, bursitis, and damage to nerves, dislocation or tearing of a ligament, muscle or tendon. These injuries can be very painful and may take an extensive period of time to heal; some injuries may even be ongoing. If you have been injured, it is important to seek medical attention to evaluate your injuries and treat them. If you have suffered soft tissue injuries, a personal injury attorney may assist you in determining your legal options and seeking compensation for your injuries.
Proving Your Personal Injury Case
Soft tissue injuries may occur in many different situations, from a slip and fall while shopping to carpel tunnel syndrome developed after years of typing during the course of employment. The causes of such injuries are as diverse as the injuries themselves. Therefore, the responsible party may be an individual, multiple persons or a company/corporation and will depend on the specific facts of your case. Most often, the injured party will have a claim against the defendant (legally responsible party) for negligence. To establish a case for negligence, certain elements must be proven to the court. First, the plaintiff must show that the defendant had a legal duty to treat the plaintiff with a standard of care; the standard of care may be that of a reasonable person under similar circumstances or an industry standard. Next, the defendant must have breached this standard of care by his or her actions or failure to act. Third, the defendant’s breach must have caused the plaintiff’s injury, or created the situation that caused the plaintiff’s injury. Last, the plaintiff must have suffered an actual injury, which may be legally compensated by monetary damages.
Compensation for Your Soft Tissue Injuries
After the plaintiff’s case for negligence has been established, the court may determine damages. The type and amount of damages may depend on the losses suffered, the applicable law in the state and the jurisdiction of the court. The court may consider many factors when deciding the amount of compensatory damages, such as the severity and extent of the injuries, costs of medical care, costs of future medical treatment, lost wages, future loss of earning capacity, loss of household contribution, pain and suffering, emotional anguish and others depending on the facts of the case.
In some jurisdictions, the judge or jury may also award the plaintiff punitive damages. Punitive damages are awarded in addition to compensatory damages, and are intended to punish the defendant for his or her actions and curb future behavior by the defendant or others, as a deterrent. The amount and availability of these damages differs depending on the state you are in and the circumstances of your case. Speak to an attorney to learn more about punitive damages in your area.
Consult an Attorney
If you have been injured, the first thing you should do is seek medical attention. Soft tissue injuries may not seem serious at first, but left untreated, may become severe, debilitating and long lasting. You may also need immediate medical treatment if you were injured while working to help protect your rights. Then, seek a personal injury in your area to discuss your circumstances. An attorney knowledgeable in soft tissue injuries can help you learn about your legal options, answer your questions and assist you in pursuing your claim.
What can I do If I've Been Injured on a Cruise Ship?
Two types of people may be injured while aboard a cruise ship, paying passengers or crewmembers (staff of the cruise ship). Both types of injured persons may have different legal claims. The claims depend on the injuries sustained, the persons who may be liable for the injuries and the law applicable to the claims. Some examples of possible claims are negligence, medical negligence or assault. Generally, the ship owners will be liable for any injuries of passengers or crewmembers, since the owners have a duty to provide a safe environment and protect persons aboard their ship from known (or foreseeable) dangers.
If the injured person is a passenger on the ship, he or she may have a claim against the ship owner for compensation for injuries sustained. The legal claim will usually be for negligence. The injured person (or family members on his or her behalf) must be able to prove the elements of negligence to the court. The elements of negligence are as follows:
The ship owner had a legal duty to the passenger
The duty was breached by the ship owner
As a result of that breach, the passenger was injured
The passenger sustained damages as a result of his or her injuries
However, if the injured person was a crewmember of the cruise ship, he or she may have a legal claim under the federal Jones Act for compensation. His or her claim will also be against the ship owner (employer). The Jones Act provides legal remedies for injured workers who are seamen. It is similar to the Federal Employers Liability Act that gives injured workers legal rights to compensation against their employers. Under the Jones Act, the crewmember must be able to prove the elements of negligence (by the employer/ship owner) in court; the elements of negligence are the same as for paying passengers.
Alternatively, there are situations where the injury was not caused by a dangerous condition on the ship, but by another person aboard the ship. These situations may be of assault or a medical negligence. If assault of a passenger was committed by a crewmember, the ship owners may be held liable for the acts of their employee, in some jurisdictions. In other jurisdictions, the ship owner will not be held liable for employee actions unless the plaintiff (injured person) can show that the owner (employer) was negligent in hiring a dangerous crewmember, or knew of the crewmembers propensity for violence and did nothing to stop it, or continued to employ the crewmember.
Similarly, jurisdictions may hold ship owners liable for hiring competent doctors and medical staff, but not hold them liable for actions of their medical staff when treating passengers. Other courts may hold a ship owner liable for any actions of employees, whether they are a crewmember, medical doctor or other medical staff member. The possible claims and liable parties will depend on the situation, the law that applies and the court (jurisdiction) that hears the claim. Since there may be many variables that affect what type of claim the injured party may have, what jurisdiction the claim may be in and what law apples, it is important to speak to an attorney about your situation and to answer any questions you may before pursuing your claim.
Can Third Parties be Held Responsible for Injuries Stemming from a Drunk Driving Accident?
Generally, the drunk driver who caused the accident is responsible to the persons injured by the accident. However, in some cases, the injured party (or his or her family members) may file an action against a third party for damages arising from a drunk driving accident. A third party claim in such an accident may be against a variety of persons or even businesses. Those held liable for injuries stemming from the accident may be a police officer, employer, passenger, social host or a bar or restaurant. Situations where such third parties may be liable for a drunk driver’s action may be if a police officer has knowledge that a driver is intoxicated and lets them continue to drive, if an employer provided alcohol at a work function or if a passenger gave the intoxicated driver alcohol. Social hosts and business establishments may be held statutorily liable for the actions of a drunk driver according to the law in the jurisdiction where the accident took place.
Some states have Alcoholic Beverage Control (ABC) statutes that may hold a social host responsible for actions of their guests; a minority of states will extend this statute to cover hosts of social gatherings. If it is applied, a social host is a private individual (not licensed to sell alcohol) who has provided alcohol free of charge to persons at some sort of social event, gathering or party. Under the ABC statute, the host would be held responsible for actions of intoxicated guests once they left the party. This law applies to guests who are under age, visibly intoxicated or have a negative history with alcohol. However, a majority of courts will not extend the ABC statute that far. Instead, other states may hold a social host liable of guest’s actions under a legal theory of negligence. The host should have known that the actions of an intoxicated guest may have been dangerous to others. On the other hand, a majority of jurisdictions will not hold a social host responsible for the actions of inebriated guests at all.
Similarly, some business may be held liable for the actions of intoxicated patrons under the state’s Dram Shop Act. Under this act, the alcohol vendors (licensed sellers of alcohol) may be held liable to a person injured by a drunk driver who became intoxicated while in their establishment. The law places a legal duty on alcohol vendors to protect innocent third parties from harm due to a drunk patron; a noticeably intoxicated patron may be considered a probable danger to others. If your state has a Dram Shop Act, you will have to be able to prove that the licensed alcohol seller continued to sell alcohol to an individual who was clearly drunk. In order for a person to be considered intoxicated under this statute, their behavior must be obvious to others. This may refer to impaired speech, inability to walk or a strong smell of alcohol. Furthermore, you must be able to show that the vendor was aware, or should have been aware, that the drunk individual was going to drive his or her automobile. Not all jurisdictions have a Dram Shop Act; contact an attorney in your area to find out if the Dram Shop law is applicable in your situation and in your state.
How do I Know if I Have a Medical Malpractice Claim?
Medical procedures do not always have the desired outcome; sometimes unexpected or unpreventable results occur and are not the consequence of medical malpractice. In order to have a claim for medical malpractice, your injury (or undesired/harmful result of a medical procedure or treatment) must have been caused by negligence by a healthcare professional. Medical professionals must meet the industry’s standard of care when treating patients. This standard of care is determined by the level of care other medical professionals or workers would provide to an individual under the same or similar circumstances. Healthcare workers that are held to this standard may include doctors, nurses, hospital staff members, dentists, other medical related workers or the hospital itself. If the standard of care is not met and the patient is injured as a result of this failure, the injured party may have a claim for medical malpractice. To determine if the facts of your case merit a medical malpractice claim, it is important to speak to an attorney knowledgeable in this area of law.
If you do have a claim for medical malpractice, you must be able to prove certain elements of your case to the judge or jury. There are four elements to prove, the first is that the defendant (medical professional or hospital) had a duty to the plaintiff. The second is that the defendant breached this legal duty and (third) the breach caused the plaintiff’s injury. Lastly, the defendant’s failure to meet the industry’s standard of care (negligence) caused harm to the plaintiff. The third element (causation) is often the most difficult to prove in a medical malpractice case. The plaintiff must show that the defendant caused his or her injury due to negligence; that the injury was not a typical (or common) result of the plaintiff’s illness or medical condition that could not be prevented.
Accordingly, the cause of the plaintiff’s injury may be actual or proximate. If the causation is shown to be actual, the plaintiff’s injury was directly caused by an action (or nonaction) by the defendant. If the defendant had not been negligent, the plaintiff would not have suffered injury. Thus, proving actual causation uses what is called the “but for” test; the injury would not have occurred “but for” the defendant’s negligence (or action). Likewise, the cause of the plaintiff’s injury may be proximate if it can be shown that the defendant’s negligence was the legal cause of the plaintiff’s injury. The proximate cause set forth a sequence of events that caused the plaintiff’s legal injury. Since actual and proximate causation may be difficult to prove, it may be necessary to rely on the testimony of an expert witness to show causation in your case. The facts of your case and kind of injury will help determine the type of medical expert you should have. Additionally, an attorney knowledgeable in medical malpractice litigation will be able to assist you in deciding if expert testimony is in your best interests to prove causation in your case.
What Should I do if I'm in a Car Accident?
If you are in a car accident, there are some things you can do to protect yourself against any lawsuits that may arise from the incident. First, make sure you, and anyone else involved in the accident, is safe and call for medical assistance if needed. If you cannot get out of your car, wait for assistance to do so. If you can get out of your car, it is important to stay with your vehicle. This may be a safety issue, depending on the situation you are in, whether the area is dangerous or there is heavy traffic or other dangerous materials around you. Additionally, do not leave the scene of the accident before the police arrive or before exchanging information with the other person (or persons) involved in a minor accident. If you leave and someone was injured or killed you may be charged with criminal "hit and run" penalties.
The police should be called if the accident involves significant property damage, physical injury or death. Once the police arrive, ask the officer to file a police report and obtain the name and badge numbers of any police officers on the scene. You should also 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. If there are witnesses at the scene, you may want to ask them what they saw and obtain their contact information, if possible. It is important when talking to other persons in the accident to be cooperative and exchange contact and insurance information, but do not admit fault or apologize for the accident itself.
After medical attention has been received and the police have arrived, you should inform your insurance company about the accident. Cooperate with your insurance company and tell them about the manner in which the accident occurred and the extent of your injuries. Build support for your case when discussing the matter with your insurance company and explain the facts of your case in a clear manner. Obtain and review a copy of the police report, if any, and give a copy to your insurance company if they do not already have one. The police report is useful to help determine who broke what traffic laws or who was at fault for the accident.
Next, you will want to keep a record of any care you receive after the accident and any expenses you incur due to the accident. This includes doctors, physical therapists, chiropractors, any other healthcare or treatment, medical bills or other expenses. Your insurance company may ask you for additional records as well, such as photographs of your vehicle before the accident and after (if you have them).
Lastly, you should 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 without the knowledge of your attorney or your insurance company. If representatives from other insurance companies should call you, 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.
Who is Responsible for Injuries Stemming from a Sexual Assault?
As the victim of a sexual assault, you may have civil claims against more than one party. It depends on the circumstances surrounding the assault. You may have a claim for compensation against the assailant, the assailant’s employer or another individual. The injured party (male or female) may have a personal injury claim for damages sustained as a result of suffering a sexual assault. To prove a personal injury claim, the victim must show he or she was sexually assaulted by the defendant (assailant) and was injured as a result (physically or emotionally injured). It must also be shown that the defendant caused the plaintiff’s injuries, either intentionally or due to negligence.
If the victim has a negligence claim against an employer or another third party, there are different elements that must be proven to the court. These elements are that the defendant owed the plaintiff a duty to keep them safe and the defendant breached that legal duty. Additionally, the breach caused the plaintiff’s injuries and the injuries suffered by the plaintiff were physical or emotional in nature. Since these are civil actions, and not criminal, the victim may choose whether to pursue a personal injury or negligence claim against the defendant.
What if a Sexual Assault Occurs in the Workplace?
If you were sexually assaulted in the workplace, you may have a negligence claim against your employer. You employer may have been negligent in keeping your building safe. For example, poor security measures, broken locks, poor parking lot lighting, etc. Similarly, your workplace may have been unsafe because it was a hostile environment. If you were being sexually harassed at work and your employer knew of this harassment, your employer may be held liable for allowing/permitting this environment, or failing to do anything to put a stop to it. An employer may also be held accountable for the actions of its employees without having knowledge of a hostile work environment and/or previous employee behavior. If your employers hired an employee with past sexual assault offenses, they may be liable for negligent hiring practices as well.
What Type of Compensation Could I Expect to Receive in a Sexual Assault Case?
If the fact finder (judge or jury) finds the defendant responsible for your injuries in a civil sexual assault case, you may be awarded damages for your physical injuries, emotional injuries and expenses incurred as a result of your injuries. Your physical injuries, whether temporary or permanent, may be taken into account when the judge is deciding your compensation. This may include pain and suffering as well. Moreover, any emotional consequences of your assault may be compensated, including fear, anxiety, trouble eating or sleeping or difficulty with personal relationships. The result of physical and emotional injuries may add up monetarily as well. Any medical bills, costs of treatment, loss of earning (due to the inability to work or fear of your workplace) or any other expenses caused by the sexual assault may be included in your amount of compensation from the defendant. The severity of your injuries, amount of financial expenses/costs and the circumstances surrounding the sexual assault may all determine the type and amount of damages you may be awarded in a civil sexual assault lawsuit.