The Boston personal injury lawyers at Swartz & Swartz have extensive experience representing injured parties in all types of personal injury cases.
Everything You Need to Know About Personal Injury Law in Boston
Nearly everyone has heard the term “personal injury” in relation to lawsuits. However, not many people fully understand what types of injuries and related legal options are classified as personal injury claims. There are a multitude of categories of personal injury claims and personal injury damages, with many steps required in order to pursue a personal injury lawsuit. At Swartz & Swartz, P.C., our Boston personal injury lawyers have represented victims of personal injury for more almost four decades. Our attorneys have proven experience and expertise, as well as a background of success in cases involving all types of personal injury claims. This article will provide you with important background information regarding personal injury claims.
What is the definition of “Personal Injury”?
In the legal context, a “personal injury” is an injury that occurs to a person, as opposed to an injury that occurs to property. Injuries to a person include a wide scope of injuries, including bodily injuries, mental injuries and even emotional injuries. Personal injuries may become fatal, in which case the estate of a decedent may pursue “wrongful death” claims. The law provides for compensation for personal injury when the damages are caused by someone else’s negligence or carelessness.
What is a “Personal Injury Claim?”
A personal injury claim is the legal proceeding that an injured party brings against the parties that he or she believes are responsible for causing the personal injury damages. Personal injury claims fall under the umbrella of “tort” law. A “tort” is a civil wrong that unfairly causes someone else to suffer loss or harm resulting in legal liability for the person who commits the tortious act. Tort law allows the injured party to recover damages, which in the realm of personal injury claims may include the injured person’s past and expected future medical bills, pain and suffering, medical disability and disfigurement, and diminished quality of life. It is important to note that by definition, personal injury claims do not include a claim for damage done to property, such as an automobile or its contents.
What Are the Different Types of Personal Injury Claims?
Personal injuries can occur in nearly any context, resulting in many different types of personal injury claims. Below are some of the most common types of personal injury claims:
• Car, Truck & Other Motor Vehicle Accidents: The most common cause of personal injury claims in the United States is car accidents. According to the National Highway Traffic Administration, car accidents happen every minute of the day, totaling over 5.25 million car accidents each year. There is usually an at-fault driver in a car accident, who may be held responsible for personal injuries that occurred due to the accident. The automobile crash statistics are staggering. For example, in 2015, 35,092 people died in motor vehicle crashes, which means 96 people died each day in motor vehicle crashes, according to the National Highway Traffic Safety Administration. Moreover, 6,700 people were injured during the same time period in such crashes. According National Safety Council (NSC), in 2016 there were more than 40,000 traffic fatalities in the United States. NSC estimates that the cost of deaths, injuries and property damage attributed to crashes in 2016 totaled $432 billion, up 12 percent from 2015. Nearly 4.6 million people required medical treatment after crashes, an increase of 7 percent over 2015.
• Pedestrian Accidents: In addition to multiple-vehicle accidents, the National Highway Traffic Association reports that each year, motor vehicles account for the deaths of nearly 5,000 pedestrians and for injuries to approximately 76,000 pedestrians. Other types of pedestrian accidents include accidents that occur to people walking where there are poorly maintained sidewalks, parking lot defects, construction-related road hazards, snow and ice hazards or debris located in a walkway.
• Defective Products: Defective products are part of a subset of personal injury law called “product liability” claims. Product liability refers to a manufacturer or seller being held liable for placing a defective product into the hands of a consumer, and causing injury. Product liability claims fall into three categories – manufacturing defects, design defects, and a failure to warn (also known as marketing defects).
o Manufacturing Defects: a manufacturing or construction defect existed rendering the product hazardous to its intended user. These claims often result from poor workmanship or shoddy materials.
o Design Defects: a defect in the overall design of the product made the plan for its use by consumers unsafe, or the level of danger presented by the expected or foreseeable use of the product outweighs its benefits.
o Failure to Warn (Marketing Defects): the manufacturer has a duty to warn consumers about dangers that are inherent to the product and which are not obvious. Manufacturers also have a duty to warn consumers once defects are discovered. Warning labels must be adequate to convey important safety information to consumers, in accordance with a reasonable standard of care.
Product liability claims can, in some instances, may be proven absent a showing of negligence in what are called “strict liability” claims. Under strict liability, the manufacturer can be found liable if the product is defective, even if the manufacturer was not negligent or careless in contributing to the product’s defect. In most cases, the injured party must only prove that the product was defective, that the defect existed when product left the manufacturer’s hands, and that the defect caused injury to the injured party who was a foreseeable user of the product.
• Medical Negligence (Medical Malpractice): Medical malpractice is another type of personal injury law claim. Medical malpractice occurs when a patient is injured through a negligent act or omission by a doctor, hospital or other health care professional. This can occur due to errors in diagnosis, treatment, follow-up care or patient management. Medical malpractice is the third leading cause of death in the United States according to the Journal of the American Medical Association.
• Slip and Fall Accidents: Thousands of people are injured each year by slip and fall accidents, typically on a wet floor, unsafe stairs, snow or ice buildups or other surfaces which are designed or maintained in a hazardous condition. If it can be ascertained that the owner or manager of the property where the fall occurred did not maintain the property in a reasonably safe condition, the injured party may bring a personal injury claim against such a person or entity to recover damages.
• Construction Accidents: Construction work, while often dangerous, can present unnecessary perils due to negligence on sites, or defective equipment. There can be a variety of hazardous equipment conditions and unsafe working environments on a construction site. Work-related injuries at construction sites are extremely common, with the Bureau of Labor Statistics reporting over 150,000 each year. In 2014 crashes involving vehicles on public roadways were the leading cause of work-related fatalities, accounting for 23 percent of all workplace fatalities, according to the U.S. Bureau of Labor Statistics. If the construction company is not properly following all regulations, inspections and safety protocols, an injured worker may suffer a catastrophic injury, leading to a personal injury claim against a negligent contractor or other third party, in addition to workers’ compensation claims involving the employer.
• Machinery Accidents: In addition to construction site injuries, many workplaces contain machinery with moving parts including moving belts, meshing gears, rotating arms and cutting teeth. If a worker comes into contact with moving machine parts, serious injuries can occur. In fact, mechanical equipment is the third leading cause of death and injury in the workplace and is involved in approximately 80% of fatal industrial accidents. Similar to a construction injury, an injured employee may have a personal injury claim if the manufacturer or distributor of the machinery sold a defective product, including failing to design proper safety devices or warnings.
• Negligent Security: Property owners and managers have a duty to safeguard tenants and visitors with proper security measures, which can vary depending on the known crime at the particular location, or in the surrounding area. The injured party may have a claim against the property owner or manager for damages caused by negligence. Negligent security cases can result, for example, from a robbery, assault, battery or rape when appropriate security measure could have prevented the horrific injuries or death.
How Does the Personal Injury Lawsuit Process Work?
The process of bringing a personal injury claim can be complex and daunting. Experienced Massachusetts personal injury lawyers like the attorneys at Swartz & Swartz will help guide you through each stage of the process, and will be critical to achieving a successful outcome in a personal injury lawsuit. Below is a guideline of the major stages in most personal injury claims:
• Making the Decision to Hire Counsel and Sue for Personal Injury: Deciding whether to bring a lawsuit for personal injury damages (sue for personal injury damages) is the first step in the process. In order to make an educated decision about whether you should file suit, you need to understand the laws associated with your type of personal injury and make an assessment as to whether a third party is legally at fault for the incident giving rise to your injuries. Typically, the injured party must prove that the defendant had a duty to act reasonably under the circumstances, that the defendant breached that duty, that the breach resulted in your injuries and that your injuries resulted in compensable damages. Hiring an attorney to help you is key. An experienced personal injury lawyer at Swartz & Swartz can help you make the determination as to whether you have a viable legal claim to pursue. If it is determined that a viable claim exists, you and the firm will enter into an agreement for representation, commonly known as a contingent fee agreement.
• Preparing the Lawsuit and Filing the Personal Injury Complaint: Once the decision to hire an attorney has been made, the plaintiff’s attorney will conduct a thorough investigation into the facts of the case – collecting as much information about the incident, the conditions surrounding the incident, the injuries suffered, and the potential defendants. The attorney will use this information to prepare the Complaint, which is the first legal document opening the litigation case. The Complaint sets forth in broad terms what you believe happened, why the defendant is at fault, and what you are seeking in compensation for your injuries. Once the Complaint is filed with the Court, it must be “served” on the defendant, which means physically delivering the Complaint to the defendant in a way approved by the court rules, to ensure that the defendant has proper notification and has an opportunity to respond.
• The Defendant Files an Answer to the Personal Injury Claim: After being served with a Complaint, most defendants will hire their own attorney. If the defendant has insurance policies that they believe are applicable, they must notify the liability insurance company. Often, the insurance company will pay for and choose the attorney for the defendant. The defendant’s attorney will then prepare and file an Answer. The Answer is the defendant’s response to the Complaint, which will set out its version of the facts, why it believes that it is not at fault, and any defenses and mitigating factors. It will also include any counterclaims the defendant believes it may have against you. Counterclaims are claims made in response to the claims asserted in the Complain, addressing actions arising out of the same incident.
• Discovery/Pre-Trial Personal Injury Process: “Discovery” refers to the process that occurs after the Complaint and Answer have been filed and before the trial. Discovery includes both sides asking each other for documents, providing each other information and taking depositions (sworn testimony out of court) of witnesses. There may be court appearances by the attorneys to inform the judge about how the process is going, to discuss the options of mediation/arbitration, and to set upcoming court dates. In addition, both sides typically file motions that often require court hearings. Such motions filed with the court can include a defendant asking the judge to dismiss the case, or to exclude certain evidence on technical legal grounds. The discovery and pre-trial court process can take several months and even years, until a final trial date is set.
• Personal Injury Trial: If the case proceeds to a trial, either a judge or jury will determine the outcome of the case. In a jury trial, the jury will be selected by the defendant’s and the plaintiff’s attorneys. Next, each side will give their opening statement about the case. After openings, the injured party will present his or her evidence as to why the defendant should be held legally responsible for the injuries that occurred – the evidence will come in the form of documents and witness testimony. Witnesses can be cross-examined by the defendant’s attorney. The defendant will then usually present its own witnesses to try to refute the claims presented, and such witnesses will also be subject to be cross-examination by the plaintiff’s attorney. After all witnesses have been presented, each side will present a closing argument. If there is a jury, the Judge will then provide the jury with instructions. The jury will then deliberate to decide the facts of the case, in the context of the law as explained by the Judge, and a verdict will be reached. The judge or jury will also determine what, if any, damages will be awarded. After the trial, either party can bring an appeal, challenging the trial court’s decision on legal grounds. The appeals process can also take several months to several years.
• Personal Injury Settlement: At any time in the process, even before the Complaint is filed, the parties may decide to reach a settlement to avoid further litigation. Most cases do in fact result in a settlement prior to a verdict. Settlement negotiations are very complex and take into account a multitude of factors. With legal representation by Swartz & Swartz, you will be paired with an experienced advocate who can help you determine when a proposed settlement represents a fair and just resolution.
• Personal Injury Lawsuit Timeline: How long does it take to settle a personal injury claim? Unfortunately, there is no standard timeline that applies. Personal injury cases sometimes settle in a matter of days, sometimes week, and can even occur during trial, including during jury deliberations. It is not uncommon for large, complex cases to take over three years to pursue. Most such cases require completion of the discovery process prior to the possibility of meaningful settlement talks taking place.
What is my Personal Injury Case Really Worth?
If you are trying to determine whether or not to file a personal injury claim (suing for personal injuries), or whether to settle a personal injury claim, you probably want to know the “bottom line” – in other words, what amount represents a full and fair recovery for my personal injury? In order to assess the value of a personal injury claim, there needs to be a thorough examination and assessment of the potential damages that may be recoverable by the injured party.
What are the Types of Personal Injury Damages?
There are three basic types of personal injury damages: special, general and punitive. Special damages are those that can be specifically quantified – such as medical expenses or loss of wages. General damages are ones that are not easy to quantify – such as pain and suffering and loss of quality of life. While some liability injury insurance companies may attempt to calculate personal injury damages based on factors such as similar case results and the reputation and experience of the injured party’s attorney, there is no precise way to put a dollar figure on pain and suffering and lost opportunities in life, among other elements. Such considerations are for the jury, weighing all the evidence presented in court. Finally, punitive damages may be available in some jurisdictions in some circumstances, to punish a defendant for reckless conduct, to deter others from engaging in the same behavior.
What are Compensable Damages in Personal Injury Cases?
Below are some examples of the types of compensable damages that may be awarded to an injured party:
• Medical Care: The most obvious form of compensable damages from personal injury claims is the cost of all medical care associated with the injuries from the accident. Medical care expenses include those already incurred, as well as a reasoned estimate, supported by evidence, of all medical care expected to be needed in the future for the injuries suffered.
• Loss of Wages: If the accident left you unable to work or had an impact on your salary and earnings, you may be entitled to loss of wages compensation. This can be critical if, for example, the injured party is a business owner and her inability to work causes substantial damage to the business. It is also important to note that you may also receive “loss of earning capacity” damages if the injuries affect your future ability to earn wages.
• Personal Property: If any personal property is damaged in the accident, such as a vehicle, clothing, or other items, the injured party can seek damages to pay for the repair of the items, or the fair market value of the property if not repairable.
• Pain & Suffering: If you suffered serious pain or discomfort due to the accident, or if you will continue to suffer in the future, you may receive compensable damages.
• Emotional Distress: When a serious accident or injury occurs, the injured party may suffer emotional distress such as anxiety, fear, depression and sleep loss. These psychological injuries may also be compensable.
• Loss of Enjoyment: If the accident results in injuries that prohibit you from enjoying day-to-day life and the activities you used to enjoy, such losses may also be compensable.
• Loss of Consortium: “Loss of consortium” damages are meant to compensate for injuries that result in a negative impact on the injured parties’ relationship with his or her spouse – for example, the loss of companionship or the inability to maintain a sexual relationship. Some states have also started considering the separate impact on the relationship between a parent and child when one is injured.
It should also be noted that there are certain situations where the injured party’s conduct can result in a decrease of their damages award. Depending on the jurisdiction, examples include:
• Comparative Negligence: If you are at fault, or partially at fault, for the accident, the defense will try to assert comparative negligence. If the defendant is successful with a comparative negligence argument, any damage award you receive will reflect the degree to which the accident was your fault.
• Contributory Negligence: Some states follow the doctrine of “contributory negligence”, which means that if you are at fault in any way (even 1%) for the cause of the accident, you cannot recover damages. Most jurisdiction do not follow such a harsh rule, and may offer hybrid of contributory and comparative – in Massachusetts, for example, an injured party may recover damages taking into account his or her percentage of fault (if any), unless that fault exceeds fifty percent, in which case there can be no recovery.
• Failure to Mitigate Damages. Injured parties may have a duty to take reasonable steps to minimize or “mitigate” their losses after an injury. For example, if you are left with a known broken leg as a result of an incident, it would be most reasonable to seek available medical treatment as soon as possible, rather than wait several weeks before making an attempt to get the proper care. In such an instance, the resulting damages award might be reduced.
Punitive Damages in Personal Injury Claims
As noted above, in addition to the special and general damages that may be awarded to plaintiffs, personal injury or wrongful death claimants may recover punitive damages, although different states have their own rules regarding whether such damages can be sought, and in what amounts. The rational for awarding punitive damages is that the defendant’s conduct was so reckless and grossly negligent, or so offensive, that the plaintiff should be awarded additional damages on top of the special and general damages to punish the defendant for its bad conduct. Punitive damage awards can be significant, for example based on evidence of earnings of a large corporate defendant, in order for the “punishment” to have meaning pursuant to public policy. This is important, since a goal is for the award to deter others from repeating the same behavior.
Swartz & Swartz Boston Personal Injury Law Experience
$ 7.8 Million DOE V. DOE DRUG MANUFACTURER
(Paralysis resulting from defective prescription drug)
$ 2.8 Million LAAPERI V. SEARS ROEBUCK
(Death in house fire resulting from defective smoke detector)
$ 2.012 Million PARILLA V. ARROW
(Brain injury due to separation of two-piece introducer)
$ 1.6 Million DRAYTON V. DRAIN CLEANER MFR.
(Burns to child from contact with drain cleaner)
$ 1.5 Million HENSLEIGH V. SEARS ROEBUCK
(Paralysis caused by chain saw kickback)
$ 1.1 Million CARTER V. RAND MCNALLY
(Case against textbook manufacturer involving dangerous science experiment)
$ 1.0 Million DOE V. DOE MANUFACTURER
(Death of man entrapped in auto shredder)
$ 1.0 Million DOE V. DOE MANUFACTURER
(Death of child passenger in recreational vehicle)
$ 4.04 Million JENNINGS V. CRANE COMPANY
(Construction worker injured by falling bricks)
$ 2.625 Million DOE V. SCAFFOLD MANUFACTURER
(Death of construction worker who fell 130 feet To his death)
$ 2.6 Million CONNER V. CANAL ELECTRIC
(Cleaning company employee caught in air preheater)
$ 1.2 Million CUNNIFF V. LYNN LADDER
(Painter injured in staging collapse)
$ 1.1 Million WALLACE V. ANTONELLI
(Ironworker paralyzed in fall from building)
$ 1.0 Million HOGAN V. HUGHES KEENAN
(Workman in cherry-picker electrocuted)