This post was originally published in April 2018. It has since been updated with new information and was most recently updated on November 18, 2020.
Injury cases fall under tort law. Tort law is an area of law that focuses on civil wrongdoings and gives victims grounds to file a lawsuit against the at-fault party. A “wrong” results in harm or injury to the victim, which provides them with the basis for their legal action.
The primary purpose of tort law is to provide victims with financial relief. Their compensation is designed to make the victim financially whole again while deterring others in society from doing similar “wrongs.”
In a personal injury case, you may hear the term “cause of action”. This term refers to the legal theory that gives you, the victim, the right to seek compensation against the at-fault party (defendant). That means you can file a claim with their insurance company or file a civil lawsuit for property damage, medical costs, and other financial losses.
Cause of action can come from a person’s breach of duty, violation of rights, and failure to act or give an appropriate response. In personal injury claims, the cause of action focuses on the legal theory of negligence and how one person’s negligence led to your injuries.
The Most Causes of Action under Personal Injury law
A personal injury case, or cause of action, is available to anyone who was injured as a result of another’s negligent, reckless, or intentional actions. Most personal injury cases involve allegations that the defendant was negligent. In part, this is because the law typically only requires an injury victim to prove negligence, rather than showing the defendant was reckless or intentional in their actions.
A few of the most common types of Kentucky negligence claims include:
- Motor Vehicle Accidents – Drivers owe others on the road a duty of care to safely operate their vehicles at all times. When a driver breaches that duty, they can be held liable for any resulting injuries.
- Slip and Falls – Businesses and other landowners must keep their property safe for invited guests. A failure to do so may result in a land owner’s liability.
- Medical Negligence – Doctors, nurses, pharmacists, and other medical professionals owe patients a duty to provide a certain level of care. A healthcare worker’s negligence can result in civil liability.
- Workplace Injuries – Many injuries are caused while the accident victim is at work. These cases may involve other motorists, employers, sub-contractors, vendors, employees, or any other third party.
The Elements of Personal Injury in Louisville
A cause of action in personal injury law means that you have the proper elements present in your case to hold a person liable for your injuries and financial losses. Negligence involves any wrongdoing that deviates from society’s acceptable standard. This negligence includes medical malpractice, motor vehicle accidents, slip and fall injuries, and other negligent acts.
To win a claim, you must prove five essential elements in your cause of action.
Duty
The “duty” is a person’s responsibility toward others in society. Everyone has a responsibility to act in a specific way that does not cause injury or harm to another person. A standard of reasonable care involves examining how the defendant acted and compare it to others and how they might act in the same situation. Examples of a duty of care include:
- Drivers obeying all rules of the road
- Owners of stores cleaning up their store and preventing injuries to customers
- A toy company ensuring that the toys they create are safe for children
- Dog owners who ensure their animals are not a danger to society
Breach
You must show that there was a breach of the duty owed to have a cause of action. That means you show that the defendant breached what is expected of them. An example would be someone driving recklessly on the road when they should have been obeying traffic signals and speed limits.
Causation
Another element you must prove in your cause of action is that there is a direct link between the breach of duty and your injuries. If your injuries are sustained in an entirely different situation that had nothing to do with the breach, you have no case.
Damage
Damage refers to the injuries you have sustained. For example, you are in a motor vehicle accident with a reckless driver. You have property damage to your vehicle as well as injuries. Injuries do not have to always be physical in a cause of action either. They may include mental and emotional trauma.
Statute of Limitations
When you file a cause of action, you must also show that you are within the statute of limitations to do so. All states have a maximum allowed time to file a personal injury claim. In Kentucky, you have one year after the date of the accident or date of discovery to file your lawsuit.
Date of Discovery Exception
In some instances, you might not know that someone’s negligence caused your injuries. For example, in the case of medical malpractice, you may not realize your doctor was negligent until years after the initial breach of duty. Therefore, the courts would allow you to file past that one-year statute if you can prove that you did not reasonably discover the negligence until a later date.
For example, a doctor diagnoses you with a condition, and you undergo treatments. Two years later, you are getting worse, and you seek a second opinion. The second doctor discovers that you were misdiagnosed and that the other physician failed to order proper testing that would have diagnosed you correctly with cancer. Now, you must undergo costly and painful treatments that you otherwise would not have experienced with the right diagnosis two years ago.
In this case, you only discovered the injury two years later. Therefore, the courts would allow you to file your lawsuit even though you have passed the initial one-year since the date of the causation deadline.
Answering the Causes of Action
When you file a complaint or lawsuit with the court, the defendant will receive a copy of that complaint and the causes of action, which have been discussed above. The complaint is served with a Summons to the defendant, and the defendant must file his or her written response within so many days of receipt.
The defendant will respond to each cause of action in the complaint. They may include legal defenses or counterclaims that the court needs to hear, and they will try to disprove each cause of action. Disproving may range from the statute of limitations not being met, to damages, to the duty owed to the victim.
Consulting with an Attorney Is Best
Personal injury claims are involved. Not only do you have complicated terms to wrap your head around, but also specific legal procedures that you must follow if you want to succeed in your case.
Therefore, it is in your best interest to consult with an attorney before proceeding with a personal injury claim. An attorney can help identify which elements you have for your cause of action, and they can compile an official complaint that is harder for a defendant to argue against.
After your serious injury, the last thing you need to worry about is legal terminology and civil court procedures. Instead, you need to recover from your injuries. Let attorney Seth Gladstein at Gladstein Law Firm, PLLC help you receive compensation for your injuries.
Schedule your free consultation today at 502-791-9000 or request more information online.
