While every personal injury case is different, there are certain terms that are common to nearly every case, whether it involves a slip and fall or an auto accident. What follows is a glossary of some of the more common terms associated with personal injury lawsuits.
Here are the basic terms you'll come across if you file a personal injury lawsuit – in order of appearance.
The plaintiff is the party or group of parties bringing the lawsuit. If you slip and fall and sue the grocery store in which the slip and fall occurred, you would be the plaintiff in the lawsuit.
The plaintiff initiates a lawsuit by filing a complaint with the appropriate court. The personal injury complaint is the formal expression of your grievances.
The complaint also includes a prayer for relief, which is a fancy way of saying it includes information concerning how much money you want.
The plaintiff serves the complaint upon the defendant. The defendant is the party that is allegedly liable for the plaintiff's injuries. In the prior example, the grocery store would be the defendant.
Defendants file a formal answer to the complaint, which serves to notify the plaintiff and the court of the defendant's position regarding the allegations.
A statute of limitations is the time period (set by law) in which you may file suit claiming damages. The statute of limitations can vary from case to case depending upon the circumstances, and can vary from as little as one year to as long as ten or more in civil suits.
Personal injury cases, which generally are based on negligence, tend to have statutes of limitations in the area of two to three years, with special exceptions carved out for malpractice cases.
State law controls statutes of limitations, so if you are thinking of filing suit, be sure to check the statute of limitations in your state.
A tort is any wrongful act that is not a crime and does not arise from a contract. Nearly every cause of action in a civil suit -- including personal injury suits -- is a tort. Negligence, wrongful death, libel & slander, trespass -- these are all torts. So, too, are civil assault and battery.
Intentional torts are wrongful acts committed on purpose. Many intentional torts can also be crimes. Assault and battery, for example, can lead to both civil and criminal liability. So, too, can conversion (theft) and wrongful death (murder, manslaughter, etc.).
A tort forms the grounds for a lawsuit seeking damages that are necessary to make a plaintiff whole. Criminal cases, even if arising from tortious acts, don't provide for damages. They are brought by the state with the express intent to punish criminals.
Negligence is a tort arising from carelessness or the failure to act with reasonable care, when such conduct causes damage to the person or property of another. To prove negligence a plaintiff has to prove four things. First, that the defendant had a duty or obligation to the plaintiff. Second, that the defendant violated or breached that duty. Third, that the breach caused damage to the defendant; and fourth, that actual damages exist. Duty, breach, causation and damages are the backbone of nearly every personal injury case.
The grocery store has a duty to keep the aisles free of hazards. They breached that duty by failing to adequately clean up the spilled mayo in a timely fashion. Because they breached their duty, you slipped on the mayo and sustained both physical and financial damages. The grocery store was negligent.
The burden of proof refers to the plaintiff's obligation to prove his or her allegations to be true -- or at least more likely true than not. There are several different thresholds of proof that could apply depending upon the type of case being litigated.
In a personal injury case, the burden of proof normally applied is that a plaintiff must prove by a preponderance of the evidence that the defendant is liable. Simply put, personal injury plaintiffs must prove that the defendant's actions more likely than not caused the plaintiff's injuries. Continuing on with our example, in your suit against the grocery store, you'd have to prove that the store was more than 50% at-fault for your injuries in order to recover damages.
Strict liability is a legal theory that imposes liability for certain acts or injuries causing damage regardless of fault or wrongdoing. For example, farmers are strictly liable for the actions of their cattle. So if a farmer's herd tramples a neighbor's crop, the farmer is liable regardless of any wrongdoing. In the 21st Century, strict liability is most often applied in cases involving defective products, holding manufacturers liable for injuries sustained as a result of using their products. Strict liability essentially shifts the burden of proof to the defendant, forcing the defendant to prove that they are not liable as opposed to typical negligence-based cases where the plaintiff must prove that the defendant is at fault.
Damages are what a plaintiff is seeking to recover in a lawsuit. In a personal injury suit, damages equal money. Damages are separated into two categories, economic damages and non-economic damages. Economic damages are quantifiable damages such as medical expenses, wage loss, replacement services and auto repair bills. Non-economic damages are not specifically quantifiable, and include such things as pain, suffering and humiliation. In the grocery store example, your $10,000 hospital bill would be an economic damage. The $15,000 you are demanding because you've suffered anxiety and insomnia because of your injuries would be considered non-economic damages.
Comparative fault and contributory negligence can reduce or even eliminate damages altogether, depending on the law in place in the state where the injury occurred.
Let's say that you slipped on a broken jar of mayonnaise at the grocery store and a lazy stock boy simply put a cone in front of the spill instead of immediately cleaning it up. In that scenario, a judge or jury could conceivably find that you were 40% at-fault for your injuries because you ignored the cone, but the grocery store was 60% at-fault because they failed to properly clean up or cordon off the area of the spill. Any judgment in your favor could be reduced by 40% in a state that follows comparative negligence rules, so if you were awarded $10,000 for your injuries, the judgment would be reduced to $6,000. In the handful of states that follow harsher contributory negligence rules, you won't be able to collect anything at all from other at-fault parties if your own negligence played a role in the accident.
No-fault is a legal theory most commonly applied in auto accident personal injury cases. States that have adopted no-fault laws require that every auto owner carry a minimum amount of personal injury protection (PIP) insurance.
In the event of damages caused by an auto accident, the injured party collects from their own insurance company rather than filing a lawsuit. No-fault laws can be intricate and difficult to understand, but the overriding theory is very simple: unless injuries reach a certain financial or physical threshold, an injured party may not sue and must recover from an insurance company, regardless of who was at-fault for the accident and subsequent injuries.