Personal Injury Blog Series - Part 2: What is a personal injury claim?
A Personal injury claim arises when there is a physical, mental or emotional injury, which occurs as a result of negligence on the behalf of another individual, business or other entity. Typically, personal injury claims arise out of "accidents" such as auto accidents, traffic accidents or slip and fall accidents where a person is injured due to the negligence of another.
Where there is a personal injury claim, the victim may be entitled to compensation for damages resulting from the injury such as payment for medical bills, lost wages and compensation for pain and suffering. Often there is insurance available to cover these losses.
To bring a personal injury lawsuit to recover compensation for damages resulting from an injury, the injured victim must establish that:
The other person involved in the accident had a "duty" to the victim which was "breached" due to "negligence" (or intentional wrongful acts) and which thereby resulted in injury and damages.
Each of these terms has a particular meaning under the law which can vary from our common sense understanding. Therefore, most people find having a personal injury attorney can be a valuable resource in determining if they have a claim and if so, in managing the claim process.
DUTY IN TRAFFIC ACCIDENTS AND CAR CRASHES
For example, the concept of "duty" in this context means a legal obligation of one person to use reasonable care towards another. This is not a moral standard however, but a legal one. Therefore, the "duty" to use reasonable care must be one that is recognized by the law.
In the case of car crashes and traffic accidents, every driver has an obligation (a "duty") to keep a proper lookout, maintain a reasonable speed for the circumstances and to maintain control of the vehicle. Speeding, drunk driving, inattention or distraction would all be considered negligent conduct when driving a car and therefore a "breach" of that duty to maintain reasonable care.
BREACH IN TRAFFIC COLLISIONS
Here's where common sense comes back into play. As one would expect, the law requires drivers to keep their eyes on the road, follow the traffic signs and signals, use appropriate speed for the circumstances and of course to be a sober and licensed driver. These duties of the road apply to drivers of cars, trucks motorcycles and even bicycles. Pedestrians also have obligations when making use of our roads and crosswalks.
Where a collision is caused as a result of a person's failure to keep a proper lookout, failure to maintain a reasonable speed for the circumstances or failure to maintain control of the vehicle, the injured innocent victim will usually have a personal injury claim. Of course any negligence on the part of the injured person (sometimes known as comparative negligence) will also be considered and could be a limitation to full recovery.
PERSONAL INJURY CLAIMS FOR SLIP AND FALL INCIDENTS
The same kind of analysis applies to slip and fall injuries. In order to have a personal injury claim for a slip and fall, the person who is injured must be able to show the property owner owed a duty to keep the property safe, that due to negligence of the owner or his agent, the property was unsafe for known and expected users and as a result of that unsafe condition, an injury occurred causing damages.
DUTY OF PROPERTY OWNERS AND THEIR VISITORS IN SLIP AND FALL INJURIES
Both property owners and visitors to the property have a duty in the case of a slip and fall. The property owner has an obligation to maintain the premises in a safe condition for known and expected users and the individual entering the property has a duty to use reasonable care in entering and using the property.
As visitors to other people's property, we all have a responsibility to be aware of our environment and to use proper care in our own actions. This means as visitors and pedestrians we have a responsibility to use reasonable care to watch where we walk, to inspect the property we enter and even to take evasive measures to avoid obvious hazards and injury where we can. Individuals are expected to avoid crossing surfaces which are obviously slippery, icy or otherwise dangerous.
The problem is, that's not always possible. Many times the path we take is unavoidable and/or the risk is unseen until it's too late. This is particularly true when the hazard is new, hidden in an unavoidable location or where the individual has not been to the property frequently enough to be familiar with the surroundings. All of these factors might be taken into consideration in a determination as to whether an individual has comparative responsibility for their own slip and fall.
Just as individuals have responsibility for their own actions in avoiding slip and fall accidents, so too do property owners. Property owners, and more particularly, property owners of apartment buildings, businesses, stores and restaurants who invite the public onto their property as tenants, guests, customers, shoppers or vendors, may have an even greater responsibility in New Hampshire to maintain a safe environment. New Hampshire law dictates that owners of commercial property have a non-delegable duty to maintain the safe premises of the property they own for known and expected users. This includes taking measures to eliminate known or foreseeable hazards by keeping the property safe and well maintained and to warn individuals of possible risks which are known to the property owner.
In New Hampshire, the property owner cannot simply delegate this duty for maintaining their safe premises and avoid liability. This duty to maintain the safety of commercial property is "non-delegable", which means that owners of commercial property cannot automatically pass the buck by simply hiring a maintenance company to take on this task. Where commercial property owners hire maintenance companies to remove snow, salt, sand and to repair defects which might create an unsafe environment, they are typically still held responsible for any failures of the maintenance company to do this reasonably and properly. There are exceptions which a personal injury attorney can explain to you, but they are few.
HOME OWNERS ALSO HAVE A DUTY OF CARE FOR THEIR VISITORS
Commercial property owners are not the only owner's responsible to maintain safe premises however. Falls that result in serious injury can also be eligible for personal injury claim when they take place on private property. Homeowners, like commercial property owners, also have a duty to keep their property safe for their guests and visitors. Where property is not safe and the homeowners know it, they have an obligation to warn those who come onto their property of any foreseeable risk of injury. This applies to invited guests, but could also apply to delivery drivers or people hired to work on the home. Indeed, most people know this. the banks who hold a mortgage certainly do, so nearly everyone has homeowner’s insurance for just such a circumstance. Because no one is perfect, renters can also obtain insurance which may be available in case of an injury at an apartment or condominium.
INJURY DUE TO NEGLIGENT BREACH OF DUTY CAN RESULT IN A CLAIM FOR DAMAGES
Where physical, mental, or emotional injuries are caused as a result of another person's negligent failure to carry out their duty of care, the injured person is likely eligible to make a personal injury claim or file a personal injury lawsuit to recover their damages for medical bills, lost wages, emotional distress and pain and suffering. This is true whether the injuries result from a car, truck, motorcycle or bike accident or from a slip and fall at a business or someone’s home.
If you been injured in an automobile accident or because of a slip and fall incident on the property of another person or business and you’re wondering if you have a personal injury case which would help you recover your losses, you should contact a personal injury attorney or trial attorney in your areas and take advantage of a FREE Phone consultation. An attorney can help evaluate your claim and advise you as to whether you might be entitled to compensation. Read more about the types of injuries that might require a personal injury attorney's help in part one of our Personal Injury blog series.
