Personal Injury FAQs
The terms assault and battery are often erroneously used interchangeably. An assault can be defined as the threat
to use unlawful force to inflict bodily injury upon another. The threat, which must be believed to be imminent, must cause reasonable
apprehension in the plaintiff. Therefore, where the defendant has threatened some use of force, creating an apprehension in the
plaintiff, an assault has occurred. The focus, for the purpose of determining whether a particular act is an assault, must be upon the
reasonableness of the plaintiff’s reaction.
If the defendant threatens to use force against the plaintiff, but clearly states that the use of force will
not be imminent, and will instead occur at some point in the future, then the plaintiff is unlikely to prevail on a claim of assault. If
the threat is imminent, and the defendant appears capable and intent on carrying it out, the plaintiff will likely succeed in proving an
assault occurred.
Battery is the intentional and unpermitted contact with another. A battery, for practical purposes, is the
end product of an assault. A plaintiff in a battery claim does not need to prove an actual injury, as long as the plaintiff proves unlawful
and unpermitted contact with his or her person or property. For example, plaintiffs have successfully proven a battery where the defendant
grabbed onto the plaintiff’s coat. In addition, it is not necessary for the contact to be with an object in the possession of the
plaintiff or the plaintiff’s body. An unpermitted contact with property of the plaintiff, located within the plaintiff’s
proximity, may also constitute a battery.
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In general, the answer to this question is yes. An owner of a dog, or any animal for that matter, may be held
liable for injuries the animal inflicts on others. However, the ease with which a plaintiff can win a “dog-bite” lawsuit
differs from jurisdiction to jurisdiction depending on the legal theory of recovery available in the plaintiff’s location. Some
jurisdictions require the plaintiff to show that the animal owner knew, or should have known, that the animal was inclined to attack or
bite. In other jurisdictions, the plaintiff may only need to show negligence on the part of the owner in order to recover money for his
injuries. If a wild animal, such as a lion, bear or monkey, injures the plaintiff, the animal’s owner may be held accountable
under a theory of strict liability for plaintiff’s injuries regardless of the plaintiff’s conduct.
Some states have “dog-bite” statutes designed to address these matters. Additionally, some
municipalities may also have their own statutes also address the responsibility of pet owners to answer for the actions of their pets.
If the plaintiff is an adult, the owner of an animal may offer as a defense to the plaintiff’s claim
that the injured party provoked the animal. Where the plaintiff has been given clear warning that an animal should not be approached,
petted or talked to, and still proceeds with that action, the owner may be able to avoid responsibility if the animal thereafter attacks the
plaintiff. This defense is not available, however, if the plaintiff is a child.
Once the plaintiff has established that the animal owner is liable for his injuries, the plaintiff must also
establish the amount of his or her damages. The plaintiff should introduce evidence of how much it has cost to treat the injury, such as
doctor and hospital bills. In addition, the plaintiff may be able to recover lost wages if the injury kept the plaintiff out of work. The
plaintiff is entitled to compensation for any permanent disability caused by the injury, as well as compensation for pain and suffering.
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Defamation includes both slander and libel. Generally, slander occurs when the reputation or good name of
someone is damaged as a result of false statements that are made orally. Libel, on the other hand, occurs when false statements regarding
another are put in writing.
Whether a particular statement, oral or written, constitutes defamation in the nature of slander or libel will
depend upon the particular circumstances and the identity of the parties. To prevail in a defamation lawsuit, a plaintiff must prove
that the defendant made a false and defamatory statement about the plaintiff that was communicated to a third party. Thus, a false and
objectionable statement sent0 in an e-mail to the plaintiff’s co-worker may be libelous. The plaintiff can usually succeed by showing
the communication was either intentional or negligent. Finally, it is also possible for the plaintiff to bring a libel suit where the plaintiff
repeats the alleged defamatory statement. This is called self-publication. This can occur, for example, when an individual applies for a job and
has to tell the prospective employer about something the previous employer said that was false.
Before beginning a libel or slander lawsuit, the plaintiff must determine whether or not the objectionable statement
is true. No matter how damaging, insensitive, rude or inappropriate a statement may be, the plaintiff will lose if the statement is true.
The “public” plaintiff has additional hurdles to overcome to recover for libel or slander. An example
of a public figure is a politician. Along with establishing all of the regular elements of the tort, a plaintiff who is a public figure must
also show that the defendant knew the false statement was false, or at least acted with reckless disregard as to its truthfulness. Newspapers
may escape liability for libel when they merely report false statements as long as the paper had no particular reason to doubt the statement
at the time it was printed.
Finally, the plaintiff often has to prove economic harm in order to recover on a defamation suit. Therefore, the
plaintiff may need to be able to demonstrate a loss of business as a result of the defamation in order to establish a right to the recovery of
money. However, some types of statements are so damaging that the plaintiff does not have to prove any economic loss. These statements tend
to be those that accuse the plaintiff of sexual impropriety or criminal conduct.
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Yes. The average member of the public is entitled to privacy protections, although the strength of those
protections will vary depending upon the particular factual circumstances.
Generally, there are four different actions that an injured plaintiff can allege to recover for an unlawful invasion of
his privacy. The first concerns the unlawful appropriation of another’s image. The plaintiff could make this claim, for example,
if the defendant, uses plaintiff’s picture in a commercial or advertisement without permission.
The second type of wrongful invasion of privacy is in the nature of intrusion. If the plaintiff can prove that
the defendant intruded into his or her solitude, seclusion or private life in a manner that would be considered highly offensive to a
reasonable person, the plaintiff is entitled to recover damages from the defendant. The issue of what actions are considered highly offensive
depends greatly upon the factual circumstances under examination.
The third type of a privacy claim is the public disclosure of private facts. This cause of action requires that facts
having no link to a legitimate public concern be disseminated by the defendant resulting in embarrassment, humiliation or offense to the plaintiff.
Whether the public has a legitimate concern in otherwise private facts about the plaintiff is always dependent upon the particular circumstances.
A fourth type of privacy right is the right to be free from being placed in a false light in the public eye.
This cause of action is very similar to a defamation action. In short, the plaintiff alleges that a communication about the plaintiff was made by defendant,
it is untrue, and it was made to the public. The main difference between this cause of action and defamation is that for the invasion of privacy tort, the
communication need not be defamatory, it need only be false and highly offensive to a reasonable person.
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An owner of property has a duty to protect members of the public from injury that may occur upon the property.
The injured person may be able to recover money for those injuries if he or she can prove that the property owner failed to meet that duty.
The hurdle plaintiffs’ face is that the nature and extent of the property owner’s duty will vary depending upon the facts of the situation
and the jurisdiction in question.
Some states focus on the status of the injured visitor to the property. These states divide the potential status
into three separate categories: invitee, licensee and trespasser. An invitee is someone who has been invited onto the land because that person
will confer some advantage to the property owner, such as a store patron. An owner of property is required to exercise reasonable care for the
safety of the invitee. A licensee is someone who enters upon the land for his or her own purpose, and is present at the consent, but not the
invitation, of the owner. The owner’s duty to a licensee is only to warn of hidden dangers. Finally, a trespasser is an individual who
enters onto the property without the knowledge or consent of the owner and who remains there without any right or permission. Trespassers
have difficulty suing property owners because property owners’ duty towards trespassers is not to place traps and hazards on
their property. In some cases, the owner must also warn trespassers of the hazards if they are unlikely to be discovered by the trespasser
and could cause serious injury or death.
Other states focus upon the condition of the property and the activities of both the visitor and owner, rather than
considering only the status of the visitor. In these states, a uniform standard that requires the owner of the property to exercise reasonable care
to ensure the safety of invitees and licensees is generally applied. The plaintiff must prove that the duty of care has not been met, through
an examination of the circumstances surrounding the entry on the property, the use to which the property is put, the foreseeability of the plaintiff’s
injury, and the reasonableness of placing a warning or repairing the condition. Obviously, whether reasonable care has been rendered depends greatly
upon the particular circumstances.
The property owner’s duty of care toward children is greater than the duty owed to adults. Even if the children
are trespassers or engage in dangerous behavior, the property owner must still take precautions to prevent foreseeable harm to children. The
classic example of a property owner’s greater duty of care to children arises in the context of backyard swimming pools. Owners must
fence, gate, and lock their pools in a manner that keeps children out and if they fail to do so, they will be found liable for injuries to
children, even if the children were trespassers that were warned to stay off the property.
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Generally speaking, an owner of property may not use deadly force to defend the property. Society values human life
and bodily integrity much more than property. Therefore, the life, health and safety of an individual, even an intruder, is considered to
be more valuable than the china or stereo, which that individual is trying to steal.
An owner is not prohibited, however, from invoking self-help methods in defending property from another. An owner
of property is entitled to use reasonable force to prevent someone, or something, from entering onto his of her property or to remove something
from his or her property. What, under normal circumstances, may constitute a battery, assault or other intentional tort, will not be
considered unlawful in situations where it is performed as a reasonable use of self-help in defense of property. However, the use of force
calculated to do great bodily harm, or cause death, is not permitted.
There is one narrow limitation upon the use of deadly force, where it is allowed. Where an intruder threatens personal
safety, as well as a threat to property, or where the intruder is committing a forcible felony, deadly force may be appropriate.
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Most individuals who are injured at work are prohibited from filing ordinary personal injury lawsuits against their employers.
Instead, injured workers are generally required to file a claim under the state’s workers compensation procedure. An injured railroad worker must
bring a claim for benefits under the Federal Employer’s Liability Act (FELA) for compensation for his injuries. FELA is similar to many
state workers’ compensation systems with the exception that a railroad employee must be able to prove some level of employer negligence
in order to make a recovery. In comparison, most state systems are based upon no-fault theories of recovery where neither the negligence of the
employer or the employee is examined.
Laws, rules and regulations require a railroad to furnish a reasonably safe workplace for the benefit and protection
of its employees. In keeping with this requirement, a railroad has a duty to inspect and discover defects that may result in injury. In some
circumstances, this may include the duty to uncover defects that should be obvious to a railroad employee. A railroad also has a duty to warn
its employees of any hazardous or unsafe conditions of which it is aware, or should be aware. A railroad is also required to take other steps
to ensure the safety of its workers, including providing adequate training and supervision, appropriate tools and safe equipment and enforcing
only reasonable work quotas.
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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.
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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 is 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.
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For more than 50 years, Crow Law has been fighting for the rights of injured people.
People from all walks of life—from Sacramento and San Dimas to San Francisco, San Bernardino, San Jose, Los Angeles, Bakersfield,
Riverside and Oakland—turn to these personal injury lawyers for help in getting what is rightfully theirs. They represent injured people
in California, Arizona, New Mexico, Nevada, Colorado, Utah, Idaho, Wyoming, and Oregon.
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