The U.S. Centers for Disease Control and Prevention reports that there were more than 192,000 unintentional injury deaths reported in a single year, and 39.5 million medically attended injury and poisoning episodes in the population. While some injuries are often unexpected and may be unavoidable– such as a person getting struck by lightening – and others are the fault of the victim themselves – such as shutting one’s fingers in the door – other injury types would not occur but for the negligence of another party. When this type of injury occurs, victims reserve the right to seek compensation for their losses in the form of filing a personal injury lawsuit.
What Is a Personal Injury Lawsuit?
A personal injury lawsuit is a civil action that is filed by a plaintiff (victim) in order to recover compensation from an at-fault party (defendant). The lawsuit asserts that the plaintiff’s injuries would not have been sustained but for the negligence, breach of contract, or recklessness of the defendant. There are four components that all plaintiff must prove in a personal injury claim. These are:
- Duty of care. The first thing that a plaintiff must prove in a personal injury lawsuit is that an obligation of a duty of care existed between the plaintiff and the defendant. In many cases, this duty is implied. For example, in a car accident involving two drivers, each driver implicitly has a duty to the other to operate their vehicle responsibly and with care.
- Breach of duty of care. The second part of a personal injury lawsuit is proving that a breach of the duty of care occurred. Negligence – and how to prove it – will be discussed in more detail below, but essentially is the failure to act with the same level of care that an ordinary person would exercise in the same circumstance.
- Causation. Third, the plaintiff must prove that their injuries would not have been sustained but for the breach of duty of care on the part of the defendant. In other words, the negligence caused the car accident, slip and fall, plane crash, etc.
- Damages. Fourth and final, it must be established that the accident actually resulted in damages to the plaintiff, either economic or noneconomic in nature. An injury, medical expenses, physical pain, etc. are all examples of damages.
Unlike in criminal court, a plaintiff need not prove the defendant’s fault “beyond a reasonable doubt.” Rather, a plaintiff must prove that “preponderance of the evidence,” which is a standard that holds that the assertion made by the plaintiff is more likely than not to be true.
Types of Personal Injury Cases
An individual may file a personal injury suit for nearly any type of accident, assuming that the action is negligence-based. Some of the most common types of personal injury claims include:
- Car accidents;
- Truck accidents;
- Motorcycle accidents;
- Pedestrian accidents;
- Bicycle accidents;
- Aviation accidents;
- Boat accidents;
- Bus accidents;
- Dog bites;
- Slip and falls;
- Amusement park accidents;
- Defective product;
- Premises liability;
- Wrongful death; and
- Medical malpractice.
If you have been injured in an accident type that is not listed above, you may still have a claim – contact an experienced personal injury attorney to schedule a free case consultation.
What Damages Are Available in a Personal Injury Claim?
Many people choose to file personal injury lawsuits because an insurance claim cannot be settled, or they have suffered such serious damages that filing a lawsuit is the only way to recover the compensation that they deserve.
In a personal injury claim, you can recover compensation for the value of all losses that you have suffered. Some of the compensation types that you may be able to recover includes:
- Pain and suffering. Quantifying the amount of pain and suffering that a person has experienced can be hard to do, but courts across the country award compensation for this damage type on a routine basis. In addition to your physical pain, you may also seek compensation for your emotional anguish as well.
- Medical expenses. One of the most common damages that a person will seek to collect in a personal injury claim is compensation for medical expenses. Because medical expenses can total into the hundreds of thousands of dollars – often bankrupting an individual – recovering compensation for medical losses is very important.
- Lost wages. Another type of economic damage that a person may collect is compensation for lost wages and lost benefits. This may include the actual value of wages lost, as well as other monetary benefits such as a pension, retirement fund, potential wages, etc.
- Future expenses. In many cases, the losses that a person suffers are not only immediate, but lasting as well. When this is the case, the individual has the right to seek compensation for any future expenses that they expect to incur. This might include damages for future medical expenses, rehabilitation, in-home therapy, medications, future surgeries, future lost income, etc.
- Funeral and burial expenses. When an accident that causes an injury results in death, the survivors of the decedent have the right to seek damages for all funeral and burial expenses.
- Loss of consortium. If an accident leaves a person with a fatal or disabling injury, that individual may no longer to able to comfort, offer guidance and support to, counsel, and spend time with their loved ones. For this, loss of consortium benefits are often available.
- Punitive damages. According to South Carolina Code of Laws Section 15-32-520, a person can seek punitive damages – which are damages that are intended to punish the defendant – if their injuries were caused by the defendant’s “willful, wanton, or reckless conduct.”
South Carolina does place a cap on two types of damages that are available during a personal injury lawsuit: noneconomic damages and punitive damages. The first, noneconomic damages, are only capped in medical malpractice cases, and the cap is at $350,000 per defendant and $1.05 million per case (even if there are multiple defendants named). Punitive damages are capped by the state at whichever is greater: $500,000 or three times the amount of compensatory damages recovered.
Comparative Negligence in a Personal Injury Case
The laws of comparative negligence may play a large role in your personal injury case. The state of South Carolina follows a modified comparative negligence rule, which means that if a victim is more than 50 percent at fault for their injuries, they are not allowed to file a claim to recover compensation.
If a claim is permitted, however, then the amount of damages that a plaintiff can recover will be reduced in proportion to their degree of fault. As such, a plaintiff who has incurred $50,000 worth of damages, but is found to be five percent at fault, will only be allowed to recover $47,500.
Those who are filing a personal injury case should not be surprised if the person against whom they are filing suit attempts to place some of the blame for the accident on the victim’s shoulders. This is a common tactic that is used to reduce the amount of damages that the victim is liable for. It is important that you are prepared to handle this – an attorney can help.
Proving Fault in a Personal Injury Case
The most critical part of any personal injury case – regardless of the type of personal injury claim that is being filed, is proving fault; if you cannot prove fault, the defendant cannot be held liable for your injuries.
As briefly mentioned above, the standard of proof is much different in a personal injury case (civil court) than it is in a criminal case. Most people are familiar with the standard of proof that is used in the latter, “beyond a reasonable doubt,” and the concept that a person is “innocent until proven guilty.” In a civil case, things are different – the standard of proof that is used is a preponderance of the evidence.
So what does a preponderance of the evidence really mean? Preponderance of the evidence means that the plaintiff has shown that their version of the story is more likely than not true. It does not mean that there cannot be any doubt about the truth, but rather that this is version is more than likely the correct version.
Proving preponderance of the evidence can be difficult to do in some cases. In order to prove fault and hold the other party liability for your injuries, you will need to present evidence. Types of evidence that can be very valuable in a personal injury claim include photographs, police reports, witness testimony, expert testimony, medical reports, and physical evidence.
Gathering evidence on your own can be extremely challenging to do, especially if you are injured to the point where you are physically unable to conduct an investigation. A personal injury lawyer with access to investigative experts can be an essential asset.
Negligence Under South Carolina Law
Negligence is defined as the failure to take proper care in doing something, and the failure to behave with the level of care that someone of ordinary prudence would execute in the same situation. In short, negligence is synonymous with irresponsibility.
In most personal injury cases, is it is the definition above that will be used. And, in order to recover damages, a plaintiff will have to prove that the defendant acted negligently. Examples of negligence include failing to maintain a property in a safe condition, manufacturing an unsafe product, failing to sanitize food preparation areas properly (leading to food poisoning), speeding, driving while drunk, etc.
In medical malpractice cases, the definition is slightly different. According to Title 15 – Civil Remedies and Procedures of South Carolina Code of Laws, medical malpractice is defined as, “doing that which the reasonably prudent health care provider or health care institution would not do or not doing what the reasonably prudent health care provider or health care institution would do in the same or similar circumstances.”
Remembered, shared negligence is a possibility. Not only can negligence be shared amongst a plaintiff and defendant, but amongst multiple defendants as well.
Dog Bites – Overview
Dog bites are one area of civil law in which strict liability, rather than negligence is often applied.
Per South Carolina Code of Laws Title 47, the owner of a dog will be held liable for any injuries that dog causes to another assuming that the bite occurred in a public and lawful place and the person bitten was not provoking the dog at the time of attack. This is what strict liability means: that the victim will not have to prove negligence of the dog owner in order for the owner to be held liable. Further, the victim will not have to prove that the dog was a dangerous dog or had a history of attacking others. Assuming the person was at the location of the bite lawfully and did not do anything to provoke the dog, the dog’s owner must pay for their injuries. If you pursue a claim under this theory of liability, or statutory law, you will be able to recover compensation for your economic losses.
Filing a Negligence Based Claim
In some cases, you may be able to file a negligence-based claim against the dog’s owner if you believe that the dog owner did something that directly contributed to the dog biting you. For example, failing to restrain a dog with a propensity for violence, violating leash laws, or violating breed laws (which are in place in certain cities in South Carolina) may all be considered negligent behavior.
There are benefits and downsides to pursuing a negligence-based claim. The biggest benefit is that you may be able to recover a higher compensation amount, including compensation for your pain and suffering. For victims who have been seriously injured or have permanent scarring, this can be a worthwhile option.
The downside to filing a claim based on negligence is that, unlike a claim based on statutory law, you will actually have to prove that the property owner did something wrong.
Like all other personal injury claim types, a claim to recover compensation for a dog bite must be filed within three years’ time from the date that the dog bite occurred.
Determining Who Is at Fault for an Injury
Not only must you prove fault, but you must first determine on whose shoulders fault should be placed. In some cases, this is easy to decide: you are in an accident with a drunk driver – the drunk driver is clearly at fault. In other cases, however, fault is much less straightforward.
Consider an accident where a truck driver, who is fatigued, drifts into another car’s lane and causes serious injuries to that vehicle’s driver. A review of the evidence shows that the driver was indeed fatigued, and had taken supplements to help keep themselves awake, which impaired their frame of mind. A person may automatically assume at this point, then, that the truck driver was 100 percent at fault. But, a more careful review also shows that the driver violated their hours of service logs (drove more hours than the federal government allows), based on a direct order from their employer, who knew that a violation of the law was occurring. Now, it appears that the employer should be held liable.
Situations like the one above are very common – in fact, it is normal for more than one party to be named as a defendant in a personal injury claim. So how do you figure out whom to name?
Conducting a Thorough Investigation
The only way to truly determine who is at fault in a personal injury accident is to conduct a very thorough investigation. This investigation will not only center on the collection of evidence, but the review and analysis of this evidence.
Most people who are injured do not even know where to start when it comes to collecting evidence that can be used to press civil charges and develop a claim. That is where a personal injury attorney comes in: an attorney is highly trained at collecting evidence, or/and recruiting professionals – like accident reconstruction experts – who can put all the pieces together to determine exactly who is at fault.
Contact an Experienced South Carolina Personal Injury Attorney Now
If you have been injured in any accident type in the state of South Carolina, it is advised that you schedule a free, no-obligation consultation with an experience South Carolina personal injury attorney. At the Elrod Pope Law Firm, we are available to meet with you to discuss your claim as soon as possible. If you cannot come to our location in Rock Hill, South Carolina, let us know and we will gladly travel to yours.
The first step to recovering the money that can be used to improve your future is picking up the phone to discuss your claim with a skilled attorney today.