Our news feeds are often filled with stories of catastrophes of war, famine, planes going missing, mass shootings, and police brutality. Public opinion debates how policy and law can best be changed to make our world safer and bring justice for victims and their families. However tragic these stories are, they are still not as frequent as the disaster that is more likely to happen to you on any given day.
It is just as, if not more, important for you to be prepared and to know the “legal lay of the land” so to speak if one day you become the victim of a personal injury scenario. Personal injury is defined as the actual or presumed injury suffered by a person including physical injury, pain, and bodily injury, as well as mental and emotional suffering. However, this does not include damage to property, such as your house, automobile, or electronics. Those items would be covered under a separate type of claim which goes beyond the purpose of this article.
This article will cover the following material in the context of Florida personal injury lawsuits: elements to prove a personal injury lawsuit; possible defenses a defendant might bring; the timeline of a case; and legal representation. The concluding section will discuss key information in Florida law surrounding dog bites.
Elements of a Personal Injury Lawsuit
Personal Injury suits are always a civil issue, meaning it is up to you to bring up the case in court as the Plaintiff against the parties responsible, the Defendants. As a civil matter, you do not have the resources of the government at your disposal like the District Attorney’s Office does, but you get the benefit of having a lower burden of proof than a criminal case. The burden of proof for every element you are expected to prove is what is known as “a preponderance of the evidence,” which is a legal term meaning “more likely than not.”
In a personal injury suit, your main goal is to receive monetary compensation, not to send someone to jail. The “finder of fact” will either be a judge (bench trial) or a jury trial, and they will make conclusions based on the evidence introduced by both sides as to who is more accurate or closer to the truth for each element. In court you will be expected to prove the following elements, common to most torts: duty; breach of duty; causation of damages; and damages calculations.
The first element to prove is that the defendant had a legal duty to do or not do something. There are duties that we all have in a number of situations where we may not immediately think that we have a duty , but indeed we do. For example, it could be a legal duty to keep a dog on a leash to be able to restrain it when in a public park, or a legal duty to control the speed of the vehicle when driving. Lack of knowledge of a legal duty incumbent on all citizens is not a defense to the existence of that legal duty that can be asserted.
The second element is proving that the legal duty was indeed breached. The evidence might point to something that the defendant actively did or did not do, or even negligently did. For example, if there is a legal duty for a grocery store to keep its premises safe and clean, then one would presume that they would put out a caution floor sign to let patrons know that the floor is wet and slippery. However, if the grocery store or its employees failed to put out the sign and you innocently slipped on a wet floor after it was mopped in the produce section, there could be liability. This leads to the next step of the analysis.
The third element is proving that the failure of that duty is directly related to your injuries. In many instances, the connection might seem clear But this is a separate element of your claim for a reason. In the example of a wet floor at the grocery store, let’s still assume the grocery store employees forget to leave out the caution sign. But you notice there is no wet floor sign, you observe that the floor is wet, and you choose to take the risk of walking the water. You know full well of the consequences. In that scenario, you did receive injuries, but the lack of a present caution sign was at most indirectly related to your injuries. The direct cause of your injuries was your choice to slip and fall, not the negligence of the grocery store.
The fourth element to prove up in your claim is that there were actual damages you have suffered. There are possible situations where something happens to you, but you don’t really suffer anything amounting to “real damages” in the eyes of the law. In other words, if the damage amount is too small, and the “injury” amounted to nothing more than an inconvenience where you turn out okay, you have no case. Going back to the grocery store example, again assume the floor is wet, there is no caution sign, you walk on the wet floor unknowingly, and you slip. Maybe your flip flops get torn, you knock over some produce, or you get publicly embarrassed by someone catching it on video. You may feel entitled to something, but again nothing bad happened to your physical body. There are several types of loss you can claim occurred because of the injuries:
- Past, current, and future estimated medical expenses
- Lost wages from work, including time spent going to and from medical appointments and therapy
- Any property damaged because of the incident
- Any permanent disfigurement or disability
- The cost of hiring someone to do household chores when you could not
- Your emotional distress, including any anxiety and/or depression
- Loss of consortium, Interference with your family relationships
- Any other costs that were a direct result of your injury
Submitting evidence to the court is not always limited to what you can prove you had to already spend due to the injury, but simply bills that you have incurred or have yet to incur. Sometimes lawyers can have an expert or an accountant do the math to prove that the injury was so damaging that the effects go beyond immediate expenses but that forecasting concludes that years down the line more related expenses are expected.
An affirmative defense is where the defendant takes on the burden of proving something to mitigate or completely eliminate their liability for your personal injury. If the defendant can successfully convince the jury of any of the following defenses, then it can cause issues for your personal injury claims. The following are some of the most common affirmative defenses that can be asserted.
- Assumption of The Risk
The defendant needs to prove that you knew the risks of the dangerous activity, or that you were aware of the unusual danger of the environment and took the chances anyway. The grocery store scenario from before where a person knows the floor is wet and still recklessly walks or runs across the slippery floor is an example of this. But this is also more commonly asserted when people sign a waiver acknowledging the potential danger of an activity they are about to get into, or the simple fact of participating in an activity which the public at large knows to be dangerous. For example, playing tackle football, playing with fireworks, extreme mountain biking, and so forth.
- Contributory or Comparative Negligence
Florida, along with two-thirds of the 50 United States, follows a standard in personal injury cases known as contributory negligence. If you are less than 100% responsible for your injury in the eyes of the judge or jury, then your award by the court will be reduced proportionately. For example, if you are responsible for 60% of your damages and the total amount of the damages that were incurred were $100,000, the most you would be awarded would be 40% of that, i.e. $40,000.
How a jury or a judge determine the exact percentage is not something written in stone. Even though a jury or judge may use numbers given by experts provided by both sides in a case, the finder of fact does not need to go to extensive lengths to explain why they arrive at a certain percentage they believe a plaintiff contributed towards their injuries.
- Statute of Limitations
This legal term refers to the amount of time you have after the date of an incident that caused your injuries to file your case in court. Understand that this is a time limit on filing, not a time limit on how long your court case may take. For example, if you file your case 3 ½ years after the date of the injury, but your court case takes a year thus making the case resolve 4 ½ years after the injury, that’s okay. In Florida, the general rule currently is that you have four years from the date of the injury to file in a court of proper jurisdiction, i.e. where the incident occurred. But exceptions may apply for different types of personal injuries. But regardless of the type of personal injury, if you wait until it is too late to file for whatever reason, the defense can block your lawsuit entirely by simple pointing out that the clock has run out.
Regardless of the type of incident, the documentation you need to take is similar if not the exact as when you get into a car accident. In fact, auto insurance companies state in simple terms on your insurance card what you need to do when you get into an accident. However, an attorney can often help with investigating and uncovering the evidence needed to prove what they need to prove for your claim, such as security camera footage and eyewitness accounts.
Timeline of a Personal Injury Lawsuit
The above picture gives a simple breakdown of the life of a personal injury case. Recall from affirmative defenses that you need to file a claim against the defendant(s) within 4 years for most personal injuries. However, you should consult with an attorney as soon as you can to determine not only whether you have a potential claim, but whether your type of personal injury by state law has its own unique timeline.
Legal Representation by a Licensed Attorney
For any legal matter for which you need legal representation, your primary issues are what you may be expected to pay in legal fees and the quality of the attorney. In personal injury law, plaintiff clients are taken on by attorneys under a contingency basis. This means that if you lose your case against a defendant, you pay no legal fees, but if you win, your attorney collects a set percentage of the amount awarded to you buy the court or agreed to during an out of court settlement. If you are the defendant, your attorney will most likely charge you by the hour plus expenses.
To verify the quality of an attorney in the current day and age is very similar to how people pick a restaurant or a hair salon. Online reviews, testimonies from people in your community, and an attorney’s list of accomplishments published on their personal website are common criteria to verify the quality of an attorney. However, you can also check with the website of the Board of Legal Examiners for your state to see if the attorney has any current or past reprimands for misconduct or violations of professional responsibility.