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Personal Injury Frequently Asked Questions (FAQs) - Part 2
A slip and fall action is a type of personal injury lawsuit filed by a plaintiff who has been injured by a slip and fall, usually on the defendant's property. The plaintiff in slip and fall cases must usually show that the owner of the property had notice or knowledge of the condition, and failed to clean it up and rectify it within a reasonable amount of time. Additionally, if the plaintiff has knowingly encountered a hazard, then he or she may have trouble holding the defendant liable.
No. Generally, most states that recognize a wrongful death cause of action limit the number of potential plaintiffs. Some states limit this group to the deceased's primary beneficiaries, defined as the surviving spouse and the deceased's children. Other states allow the parents of the deceased individual to bring a wrongful death claim. In addition to these individuals, some states recognize the rights of any dependent, whether closely related or not, to bring a wrongful death claim provided the person actually depended on the deceased for economic support.
Some states require any recovery gained in a wrongful death action to be divided amongst the deceased's heirs at law or to be distributed to the deceased's heirs at law as it would be in any normal probate proceeding. In these situations, distant relatives may receive some "trickle down" of damages, even though they were not financially dependent upon the deceased during his life. In addition, if more than one plaintiff is entitled to recover, all plaintiffs will share in the award. The manner in which the award is divided can be confusing and will depend upon the laws in the particular jurisdiction where the matter is brought.
If your loved one has been injured while living in a nursing home facility, he or she has the right to bring a legal action for damages. You may also bring a claim on your loved ones behalf, if he or she is not able to do so. You may have different legal claims depending on the situation and type of injury your loved one has suffered. Most often, a personal injury claim against a nursing home will be based on the theory of negligence. Depending on the factual situation, some negligence claims may include negligent hiring of employees, building and/or equipment maintenance or neglect in resident care. If your loved one has been injured by a staff member, you (or your relative) may also have claims of assault and battery.
Both state and federal statutes exist that protect nursing home residents against abuse, neglect and other forms of mistreatment. Forms of abuse may be physical or mental in nature and may be discovered in different ways. Neglect is usually the failure to provide an individual with basic needs, such as clothing, food, shelter and medical care. Mistreatment may also be nonphysical in nature, such as an employee taking advantage of a resident and stealing or taking control of his or her finances. These types of occurrences have become more common in recent years. For this reason, state and federal statues were created to provide protections and rights for care facility residents.
Some rights and protections nursing home residents should possess are financial information and control of their own finances (unless incapacitated); medical knowledge and control over healthcare decisions; the right to socialize/communicate with doctors, visitors, other residents and participate in activities of their choosing; and the right to be fully informed of the administrative process in their facility and able to participate when they choose. Most jurisdictions have a Patients Bill of Rights that will describe specific rights each patent is entitled to while living in a care facility. If your loved one has been denied any of his or her rights, abused, neglected or exploited, he or she (or another individual on the injured person’s behalf) may have a claim for damages.
When bringing a claim for injuries sustained in a nursing home facility, you must be able to prove a personal injury case to the court. Elements that must be proven would include the establishment of a legal duty owed by the defendant (often the nursing home) to the resident and a breach of this duty. It must also be shown that the breach caused the injury that your loved one (the victim) suffered and that the injury did in fact occur. Furthermore, in such a case, additional damages may be proven such as mental pain and suffering, permanent disfigurement, malicious conduct by an employee or loss of quality of life. Depending on the facts of your case and the jurisdiction the court is in, you may also be able to ask for punitive damages. Punitive damages go beyond compensatory damages, which are generally the type of damages received in personal injury cases. If the court (judge or jury) awards punitive damages, they are intended to punish the defendant for wrongdoing and not to compensate the complaintent (the injured party or a relative on his or her behalf) for injuries sustained.
Personal injury actions require, by their very nature, that someone be injured. The requisite injury can either by physical or, in some cases, emotional. The general goal of personal injury actions is to place the blame for the injury on the party who caused it and to require them to compensate the injured person for the losses sustained.
Not every injured plaintiff is entitled to recover damages for the injury he or she has sustained. Besides an injury, the plaintiff must establish, through evidence, that the defendant is legally liable for his or her injuries. This requires proof of causation both in terms of actual, factual causation and legal causation. Whether legal causation is established depends on the facts and circumstances of the particular matter in question. The defendant can be held liable as a result of either the actions he or she took, or the actions he or she had a duty and failed to take.
Some personal injury actions revolve around intentional conduct, which means that if an individual intentionally harms another, or knows that the conduct he or she is engaged in has a substantial likelihood of harm, he or she may be liable for the resulting harm. Other personal injury actions are based on negligence. Under a negligence theory, an individual is liable for the injuries caused by his or her own actions, or inaction. Still other types of personal injury actions are based on strict liability, a no-fault system where liability may attach regardless of the fault of the various parties, including the plaintiff.
In some situations, the defendant's conduct, while questionable, does not rise to a level that entitles the plaintiff to a recovery. For example, if a plaintiff knowingly and willfully chooses to encounter a known hazard, the law holds that he or she has "assumed the risk of injury" and therefore the defendant is not liable. Plaintiffs are denied recovery in other cases if their subjective belief about a situation does not match an objective "reasonable person" standard.
Personal injury law can involve many different types of claims, theories and principles. Some of the more common types of personal injury actions include:
Animal bites can result in the animal owner's liability to the person who is bitten or who is injured while trying to avoid a bite.
Assault and battery are two intentional torts that involve improper contact with another, without permission or consent or the threat of such contact.
Aviation accidents often result in serious injury or death.
Defamation and privacy are two separate areas that concern the rights of individuals to have their names and reputations protected, and also to have their privacy preserved.
Motor vehicle accidents raise numerous questions as to the liability of one participant to another and also raise interesting questions regarding who should be responsible for covering the losses.
Premises liability concerns the responsibilities of owners of property to safeguard others from dangerous conditions or hazards on their property and to prevent others from being injured while on their property.
Property damage causes of action concern the rights of owners of property to protect their property from damage, theft or intrusion.
Railroad accidents may result in personal injury or death and may subject the railroad to liability.
Slip and fall cases relate closely to the duty of an owner or possessor of land to maintain their property in a safe manner for the benefit of others lawfully entering upon the land.
Wrongful death actions may be brought by the dependents or beneficiaries of a deceased individual against the party whose action or inaction caused the death of their loved one.
