Personal Injury

What must a plaintiff prove to recover for an assault or battery?

The terms assault and battery are often erroneously used interchangeably. They are not the same things. 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. For example, a plaintiff may have difficulty proving an assault in cases where an individual such as a former spouse threatens him or her over the phone and thus is not present and capable of immediately carrying out the threat.

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.

If a dog bites a person, is the owner liable for the injured person’s doctor’s bills?

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 the injuries the animal causes to 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 in many jurisdictions under a theory of strict liability for the plaintiff’s injuries regardless of the plaintiff’s conduct.

Some states have “dog-bite” statutes designed to address these very matters. Additionally, some municipalities may also have their own statutes that 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, such as doctor and hospital bills, of how much it has cost to treat the injury. 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.

What does a person have to prove to win a slander or libel claim?

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 sent 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 at least negligent. Finally, it is also possible for the plaintiff to bring a libel suit where the plaintiff himself 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 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.

Does the average member of the public have any privacy rights?

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, an owner of a car dealership, uses the 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, in some jurisdictions 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. For example, the public may have a legitimate interest in knowing that a local surgeon has the AIDS virus, which is an otherwise private matter, due to the potential health risks involved with that condition. In comparison, however, the public may not have a valid interest in knowing the HIV status of the local cabdriver, as there is no threat to the public health or safety in that situation.

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.

Can anyone bring a wrongful death claim?

No. Generally, most states that recognize a wrongful death cause of action limit the pool 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. In those jurisdictions, it apparently makes little to no sense to allow the second cousin once removed of the deceased, who saw him once every five years at a family reunion, to recover for the loss of the deceased’s future earning potential.

Some states require any recovery gained in a wrongful death action to be divided among 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 damages, even though they were not financially dependent upon the deceased during his life. 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.

Learn More: Plaintiff’s Personal Injury Law

Personal injury actions require, by their very nature, that someone be injured. The requisite injury can either be 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 for the losses sustained.

Not every injured plaintiff is entitled to recover damages for the injury he or she sustains. 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 took, or the actions for which he had a duty and failed to take.

Some personal injury actions revolve around legal causation derived from a concept of intentional conduct, whereby it is generally held that if one intentionally harms another, or knows that the conduct which is engaged in causes a substantial likelihood that harm will result, liability for the resulting harm will attach. Other personal injury actions have as their legal causation a looser concept of fault called negligence. Under a negligence theory, one is liable for the results of actions, or inaction, where an ordinary person in the same position should have foreseen that the conduct would create an unreasonable risk of harm to others. 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. This theory applies, for instance, in a case where the plaintiff walks on an obvious build-up of snow and ice caused by the defendant property owner’s failure to shovel his sidewalk, falls and breaks her hip, and is unable to recover for her injuries because she knew of the hazardous condition and willingly chose to encounter it. Plaintiffs are denied recovery in other cases if their subjective belief about a situation does not match an objective “reasonable person” standard. For instance, where the defendant approaches the plaintiff and states “I might poke you in the eye if you wear that red sweater again,” it is likely that no actionable assault occurred due to the fact that there was no immediate threat of harm that caused reasonable apprehension on the part of the plaintiff.

Personal injury law can involve many different types of claims, theories, and principles. Some of the more common, or interesting, 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 quite often result in serious injury or death. When these accidents occur, serious questions regarding the liability of the airline, its employees, or the government may arise.
  • 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 and possessors of property to safeguard others from dangerous conditions or hazards on the property and to prevent others from being injured while on the property.
  • Property damage causes of action concern the rights of owners or possessors of property to protect their property from damage, theft or intrusion.
  • Railroad accidents may result in personal injury or death and subject the railroad to liability.
  • Slip and fall cases are very common causes of action and relate closely to the duty of an owner or possessor of land to maintain the 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 was causally related to the death.

What problems occur due to a mild traumatic brain injury?

Traumatic brain injury (TBI) can affect a person’s cognitive, physical and psychological skills. The physical aspects of TBI affect the ability to maintain balance, coordination, strength, endurance and fine motor skills. Cognitive impairment includes struggles with language and communication, memory and the ability to process information. When affected by a TBI, many people struggle emotionally as they adjust to their disabilities.

Mild Traumatic Brain Injury (MTBI) is not as severe as TBI; however, many of the motor functions will still be impacted. In many MTBI cases, the person will seem fine but nevertheless suffer chronic functional problems. Concussion is a familiar term used to indicate MTBI among the general population, but the medical profession commonly uses MTBI. Post concussion syndrome (PCS) will often be used to identify the symptoms associated with MTBI. PCS is a set of symptoms that a person may experience for weeks, months or potentially years after suffering an MTBI.

A diagnosis of PCS may be made when symptoms resulting from MTBI last for more than three months after the injury, or it may be made within a week or 10 days of the trauma. Persons suffering from PCS can experience significant changes in cognition and personality. Immediately following MTBI, a person may exhibit the following symptoms: a brief and temporary loss of consciousness; loss of memory regarding events immediately before or after the injury; and a change in mental state at the time of the accident such as being dazed or confused.

There is no medication that can treat MTBI but certain medications can be used to treat the symptoms, such as painkillers for a headache. Primarily physicians recommend rest. Symptoms typically disappear entirely within three weeks, although they may persist, or complications could arise. Repeated concussions can cause cumulative brain damage.

Common symptoms of MTBI include:

  • Headache;
  • Light sensitivity;
  • Blurred vision or double vision;
  • Ringing in the ears;
  • Confusion and disorientation;
  • Difficulty focusing;
  • Change in sleeping patterns;
  • Slurred speech;
  • Difficulty with performing everyday activities;
  • Loss of interest in favorite activities;
  • Displays of emotion inappropriate to the situation.

MTBI occurs most frequently in athletes, military personnel, car accident victims and fall victims. The best prevention is to wear appropriate protective head gear in sports, and to use seat belts in vehicles.