Do You Have A Personal Injury Case?
I field a lot of calls, and get a great many questions posted on this website, where the interested enquirer wants to know “if they have a personal injury case”.
I suggest that four factors muse be present to constitute a viable Maryland personal injury claim.
At its most basic a personal injury case is one in which an individual has suffered:
- an objectively verifiable injury-whether mental or physical
- at the hands of another individual through the fault of that individual
- where the law imposes responsibility on the offending individual
- and in the absence of any defense to the claim
Perhaps the stereotypical personal injury case is one based on negligence. In order for to make out a case for a personal injury based on negligence the injured person, or plaintiff, must show that another individual owed them a duty to protect them from harm or at least to refrain from creating a risk of harm, that the offending individual breached that duty by engaging in objectively unreasonable conduct, and that that conduct directly led to injury. If any of these factors are not present, the claim will fail. If there are no objectively verifiable injuries, damages, or losses, there is no claim. If there is no fault attributable an another human action or agency, there is no claim. If the plaintiff did not exercise due care for their own safety, there is no claim.
Perhaps the most common personal injury claim based on negligence is a motor vehicle accident.
In frequently recurring scenarios, a driver has carelessly violated a rule of the road, in turn leading to an accident that injures one or more individuals. Another common claim based on principles of negligence is a medical malpractice action.
Here, the contention would be that through an act of medical negligence, i.e. a deviation from the standard of care applicable to healthcare providers, a patient sustained personal injury. Another common and frequently occurring scenario is one in which an individual sustains injury due to a dangerous or defective condition on real property or on or in a business premises. Here the contention is that, through an act of negligence, the owner of that property failed to take proper, reasonable preventative measures- whether that is a warning or a repair of the dangerous condition- and was there for negligent, and that negligence led to personal injury.
The successful plaintiff oftentimes has to overcome defenses that can be raised by an allegedly negligent actor or their insurer and defense counsel. A common tactic in a personal injury case is for the defense to allege that, although there might have been an act of primary negligence by the defendant, the plaintiff, or the injured person, was also negligent by causing or contributing to the event- in even the slightest fashion. As Attorney Eric T. Kirk will tell you.
If the plaintiff is found to have indeed played some role in the occurrence, they would be prohibited from recovery. A related, but subtly different, defense is that the individual who ultimately was injured “assumed the risks” of his or her physical damage. In Maryland, both of these defenses operate to completely bar recovery even by an individual who was clearly and indisputably injured.
Finally, the successful plaintiff must be able to prove by a preponderance of the evidence that they suffered an objectively verifiable physical injury or mental injury. Although what may suffice for a physical for an objective verification of physical or mental harm will vary depending on the unique facts and circumstances
…..a common method to objectively verify whether someone is injured is by a physician, psychiatrist or other health care provider concluding, to a reasonable degree of medical certainty, that the individual has sustained an injury, and documenting that injury with objective findings of physical harm.
Although personal injury actions premised on allegations of negligence are the most common forms of personal injury cases, that is certainly not to say that negligence based cases are the only types of personal injury claims. Certainly instances of civil battery or civil assault involve allegations of physical harm and personal injury.