Personal injury law as we know it today developed over the centuries. It’s origins can be traced back to Roman Law. In Roman Law the term delict was used to define injuries caused by another person in violation of a law or by way of neglecting some duty.
Our civil (tort) law today branches out in many different spects: contracts, general negligence, intentional acts, environmental law, etc.
The purpose of this article is to educate on a number of different types of personal injury suits and how they differ.
Personal injury cases have the goal of plaintiffs being “made whole” after they have suffered some sort of loss because of the actions/inactions of another person.
“Made whole” is legalese for the idea that through proper compensation you can put an injured party in substantially the same state that they were in right before they were injured. In a literal sense this is, of course, impossible. However, the goal is still the same.
Common Types of Cases:
These types of cases involve someone else acting in such a manner that it caused you harm. Well… how do you know if someone was acting negligent? The law uses the reasonable person standard.
Car accidents, slip and fall accidents, and wrongful death cases are common types of negligent acts.
Most people are familiar with the idea that when you are injured in a car wreck, the negligent driver who caused the injuries is responsible for paying your medical bills. They will also be responsible for other damages such as pain and suffering; loss of income; future medicals, etc.
Slip and Fall Accidents
Landowners and business owners can be held liable for injuries sustained on premises.
In the case of businesses, when there exists a dangerous condition that causes a customer to injure themselves, the injured customer may recover for their damages if they can show:
1) the business owner created the hazard;
2) the owner had actual knowledge of the hazard, or
3) the owner had constructive knowledge.
Constructive knowledge is essentially that the owner would have known about the hazard had they used ordinary care in keeping their store safe.
The death of a loved one is difficult when it’s expected after a bout with a long illness, or when someone passes away after living a long full life. However, when someone you love is killed in an accident or due to the actions of another, the emotional toll is sevenfold.
A wrongful death action is one that allows the family of the deceased individual to pursue a claim on their behalf. The proceeds of any recovery are disbursed to the deceased party’s beneficiaries (wife, husband, children, etc.)
To sustain an action for wrongful death, the Plaintiff must show:
- The Defendant was negligent,
- The deceased individual’s death was a consequence of the actions of the Defendant, and
- The Defendant’s actions were the proximate cause of the death.
The natural question arises: If the injured party is dead, who files the lawsuit? In South Carolina, the Personal Representative of the deceased person’s estate has the power to initiate legal proceedings. The Personal Representative is appointed by the Probate Court upon application. Often it is the spouse of the decedent or one of his/her children.
These types of cases involve the defendant’s intentional actions causing harm to the plaintiff. Most insurance policies do not cover intentional acts by their insured. Insurance companies cover accidents and negligent acts.
Assault and Battery
Historically, an Assault is when an individual attempts/offers to do harm to another. A Battery is the unwanted, harmful touching or contact.
Arson is the intentional setting of fire to property. This may seem confusing since arson is also a criminal act. A personal injury action for arson encompasses the damages of the crime of arson.
When an individual is injured due to a defective product, the manufacturer may be held liable. There are three theories of liability for the manufacturer of a defective product: warranty, negligence, and strict liability.
The Plaintiff need only prove one of the three theories. However, in all products liability cases the Plaintiff must show the manufacturer’s product injured him/her, that the product was defective and dangerous, and that when the product caused the injury it was in the same condition as when the manufacturer produced it.
Under a Warranty theory the Plaintiff will have the additional burden of proving the existence of a warranty and that the manufacturer breached that warranty.. An example of a warranty might be the manufacturer guaranteeing that their tires are safe to use on certain vehicles. A breach of that warranty would be that the tires were not in fact safe.
If a Plaintiff alleges negligence, they will have the added burden of showing that the manufacturer was negligent in producing or designing the product.
The theory of strict liability has been codified in South Carolina law via S.C. Code §15-73-10, which reads:
(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm caused to the ultimate user or consumer, or to his property, if
(a) The seller is engaged in the business of selling such a product, and
(b) It is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
(2) The rule stated in subsection (1) shall apply although
(a) The seller has exercised all possible care in the preparation and sale of his product, and
(b) The user or consumer has not bought the product from or entered into any contractual relation with the seller.
A person’s defamatory statement causes harm to the other person’s reputation. There are two subcategories of defamation: 1) Libel, which is written communication or by broadcast media, and 2) slander, which is spoken.
A defamatory statement is one that damages an individual’s reputation and standing in the community. A defamatory statement can also be one that discourages people from associating or doing business with an individual.
For a Plaintiff to recover for defamation, the statement must be defamatory and must be false. The Plaintiff does not have the burden of proving that the statement was false, however, truth is a defense to defamation. If the statement is shown to be true, then the plaintiff will not be entitled to a recovery.
An example of defamation is if a food critic claims there were rodents found in a restaurant that you own, but it isn’t true. As a result your business suffers.
Where Personal Injury Laws Come From
In personal injury, the “common law” rules. Common law is made by judges, instead of law set out in statutes and state codes. It is binding precedent on lower courts in that jurisdiction.
Each state has their own court systems. In South Carolina we have trial courts which we call circuit courts. If a party believes an error was made by the trial court they can appeal the ruling to the South Carolina Court of Appeals, after that the South Carolina Supreme Court, and sometimes even the United States Supreme Court. When the South Carolina Supreme Court makes a ruling, that is the ruling law of the State of South Carolina. The same applies to other states’ supreme courts.
The result is you have very different laws from state to state. That is why each state has its own bar association and lawyers need to be licensed in any state they intend to practice.
Personal Injury Case Overview:
- Defendant does something that injures Plaintiff.
Intentional acts are generally not covered by insurance policies. That means if the Defendant intentionally injures the Plaintiff, the Plaintiff would have to collect from the Defendant personally. This makes it much more difficult to fully compensate injured persons.
- Plaintiff alleges that Defendant breached a legal duty.
In order to recover, the Defendant must have had a duty to the Plaintiff. Here are a few examples of duties: driver’s duty of care, doctor’s duty of care, manufacturer’s duty of care.
- Settlement discussions occur.
The great majority of cases are settled outside of court. The court system endorses settlement for many reasons, including cost and time. Settlements can be reached before or after a case is filed.
At this stage the Defendant will offer a sum of money to the Plaintiff in exchange for not bringing the action in court. If Plaintiff accepts the settlement it’s over. If Plaintiff denies settlement, or Defendant doesn’t offer a settlement, the case will go to court.
The trend in South Carolina and in the United States at large is toward encouraging settlement via mediation. Mediation is often court ordered or required by law. This is a process where Plaintiff’s and Defendant’s, alongside their attorneys, meet in a confidential setting with a mediator. The job of the mediator is to meet with the parties, together and separately, to determine if settlement can be reached. The mediator can’t make any rulings in the case, and unless the parties come to some agreement, the case would proceed to the traditional jury trial.
Need help with a personal injury case?
Though there are many legal theories and exceptions to all the general rules, one thing is constant — the purpose of the civil litigation/personal injury system is to right wrongs. But it is important that you get a lawyer who can accurately and efficiently navigate through the exceptions and legal theories.
This is why it is so important to contact a SC personal injury lawyer to discuss your situation. Most lawyers do not charge a fee to meet with injured parties to discuss their cases. So, if you are injured, take the time to meet with a lawyer before you venture on alone.
Give Andrew Brown a call at 803-343-3333 for a free consultation or contact us through our online form. We’re here to help and look forward to hearing the details of your case.