A personal injury case encompasses any legal dispute between an injured party (the plaintiff) and the party the injured person believes is responsible for the injury (the defendant). These cases may take one of two official forms.

1. Formal Lawsuit

This civil case begins when an injured party (plaintiff) files a lawsuit against another party (defendant), accusing the defendant of being liable or responsible for causing the injury. Unlike a civil case, the government initiates a criminal case. It is possible for the government and another party to file a criminal and civil case (respectively) against someone.

2. Informal Settlement

Most personal injury claims never go to trial because the parties involved – claimant, defendant, insuring party, and attorneys – resolve the dispute in a settlement. A negotiation takes places, usually leading to an agreement. Under this deal, the claimant accepts financial compensation a settlement details and agrees not to file a lawsuit.

After sustaining the initial injury, your personal injury case can go through many steps. The first one of these is, get treatment. If you don’t seek treatment for your injuries immediately, then you may not have a case at all. The next thing you’ll need to do is find an attorney. Having an attorney will help you get full compensation, even for a small claim. Once you do hire a lawyer, they will review every aspect of your case and medical records. This is why it’s important to keep all bills of any treatment you received.

Most of the time, a personal injury claim is settled before a lawsuit is even filed. Typically though, your lawyer won’t make a demand until you have reached the point of maximum medical improvement. If a lawsuit does get filed, then there is the discovery process, which gives both sides the chance to submit document requests and interview witnesses. This can take up to a year to complete. After this, mediation and negotiation begins, which is typically where settlement offers are made. If it does get all the way to trial, which can last more than a week due to the judge’s schedules.

Several types of incidents can qualify for a personal injury claim:

Accidents. If a person behaves in a negligent manner and that lets someone come to harm, the injured party can file a personal injury claim. Such incidents include car accidents, falls, or medical malpractice.

Defamation. Any attempt by a party to damage or harm another person’s reputation qualifies for protect under personal injury law. The defamed party may file a claim as a result.

Defective Products. Some situations qualify as acts that cause harm without any willful or negligent behavior by another party. A defective toy or device that injures someone would result in a product liability claim and be subject to personal injury laws.

Willful Action. If a party experiences injury or harm because of another person’s intentional act, personal injury law applies and the injured party can file a claim.

While it’s not the only requirement, the injury needs to have been someone else’s fault, and caused by their negligence. Physically visible injuries are not necessary for a personal injury case; attacks of defamation, emotional distress, or the expectation of harm would all be grounds for filing a personal injury lawsuit against that person. Another thing to consider is whether the injury created compensatory damages, such as medical bills or lost wages. If all of these things are true, then you have a personal injury case.

Someone acting in a careless way, or even not acting when they should have, would qualify as negligence. So how will your New York accident lawyer prove this in your case?

There are four elements that comprise negligence, and you have to prove all of them for someone to be found negligent:

Duty – The defendant owed a legal duty to the plaintiff. This can encompass many things, such as a doctor providing care, or another motorist driving their car. The defendant does not have to know the plaintiff to owe them a duty.

Breach – The defendant breached that duty by failing to act as a “reasonably prudent person” should. In other words, the defendant should have known that their actions would likely cause injury to others.

Causation – That action was the direct cause of the plaintiff’s injury. If someone was driving drunk or distracted, that unsafe action would qualify as causation.

Damages – Harm was done to the plaintiff as a result of the defendant’s actions, and the court has the ability to pay the plaintiff.

New York is a comparative negligence state, meaning that if you are found to be 25% at fault in a $100,000 settlement, you would receive $75,000. New York also follows the pure comparative fault rule, which means that even if the defendant is found to be 99 percent at fault, they can still collect on damages. An example of this would be a drunk driving defendant proving negligence on the part of the plaintiff because they had a tail light out.

Many laws classified under personal injury originate from “common law rules” that have existed for quite some time. These rules come from any law created by a judge in forming a judgment. These differ from legislative laws and statutes.

A judge’s decision on a case creates a precedent that justices in future cases must consider in similar going forward in the state court system. However, this only applies to courts below that judge’s court level. Over time, this applied precedent becomes binding and enters the “common law” status.

Common law varies state to state; as such, the laws are not uniform. However, the Restatement of Torts collects many of these laws and is a kind of guidebook explaining the rules. Many states use this book when dealing with personal injury cases.

The value of a personal injury case varies based on the amount of damages the injuries have cost you physically, financially and mentally. Additionally, the New York personal injury law firm you choose can have a huge impact on the amount you recover.

New York law requires a victim to file a claim or lawsuit within a predetermined amount of time from the date of injury. These “statute of limitations” differ according to the type of personal injury.

Injury to Person – 2 years
Libel/Slander – 1 year
Trespassing – 3 years
Fraud – 3 years
Damage to Personal Property – 3 years
Professional Malpractice:
Legal – 1 year from discovery; maximum of 4 years from the act
Medical – 1 year from discovery; 3 years if injury is known
Veterinary – 1 year from injury/death of animal

At Silbowitz, Garafola, Silbowitz, Schatz & Frederick LLP, our personal injury lawyers champion the rights of victims and consumers. We are not afraid of the size, political power, or financial resources of the wrongdoer. Our skilled accident attorneys have fought these battles on many occasions over the years and know how to thoroughly prepare a case from investigation to trial.