- Our Firm
- Personal Injury
- Medical Malpractice
- Birth Injuries
- Apgar Scores
- Birth Paralysis
- Cortical Blindness
- Neonatal Hypoxia
- Preterm Labor Negligence
- Brachial Plexus Palsy
- Delivery by Forceps or Vacuum Extraction
- Infant Resuscitation Errors
- Neonatal Therapeutic Hypothermia
- Retinopathy Prematurity
- Brain Damage/Head Trauma
- Developmental Delays from Birth Malpractice
- Infant Wrongful Death
- NICU Malpractice
- Shoulder Dystocia
- C Section Cases
- Erb’s Palsy
- Nuchal Cord Malpractice
- Torticollis (Wry Neck)
- Facial Paralysis
- Klumpke’s Palsy
- OB-GYN Malpractice
- Uterine Rupture
- Cephalopelvic Disproportion
- Fetal Monitoring Malpractice
- Periventricular Leukomalacia
- Cerebral Palsy
- Group B Streptococcus
- Meconium Aspiration Syndrome
- Placental Abruption
- Clavicle Fracture
- Midwife Malpractice
- Free Consultation
Personal injury law encompasses a wide variety of legal issues, and is one of the most common types of civil lawsuits in Pennsylvania courts. Personal injury law also encompasses “tort” law. A tort is a civil wrong or injury, which provides the basis for a civil lawsuit. It may also involve a criminal action that could be punished by a criminal court, such as assault or battery. However, the criminal actions are handled by the state, and a civil action is filed by the person harmed, to seek monetary damages for the harm suffered.
Tort law was inherited by the U.S. legal system from the British common law legal system. Tort law has a long history, but is still one of the most commonly filed civil court cases. While some cases include intentional torts, most personal injury cases involve allegations of negligence or product liability.
Statute of Limitations for Personal Injury Claims
Before addressing the different types of personal injury claims, it is important to understand the statute of limitations for filing a civil lawsuit. The statute of limitations limits how much time you have to file. In most cases, the statute of limitations for a personal injury lawsuit in Pennsylvania is two years from the date of the incident or injury.
Under 42 Pa. Con. Stat. Ann. section 5524, an action for an intentional tort or to recover damages for injuries caused by negligence must be commenced within two years. However, in some cases, the statute of limitations may be longer or shorter. If an individual was injured by the negligence of another, but does not become aware of the damage until later, the discovery rule may offer additional time to file a lawsuit.
If the personal injury claim is aimed at wrongdoing by the government or certain government agencies or employees, the plaintiff may only have 6 months to notify the government of a possible cause of action for injuries. This includes civil actions or proceedings for damages against a government unit such as SEPTA or the Commonwealth of Pennsylvania. Under the notice requirement, the plaintiff has to include a statement in writing, setting forth the following information:
- The name and residence address of the person to whom the cause of action has accrued.
- The name and residence address of the person injured.
- The date and hour of the accident.
- The approximate location where the accident occurred.
- The name and residence or office address of any attending physician.
If such a statement is not filed, any civil lawsuit filed against the government more than 6 months after the injury will be dismissed. Because the statute of limitations in your particular case could be longer or shorter than the standard 2-year limit, it is important to speak with a personal injury attorney to make sure your case can be filed in time. If you file your lawsuit after the deadline, your case may be dismissed, leaving you with no recovery for your injuries.
Common Examples of Personal Injury Cases
There are many types of injuries or accidents that would fall under the category of a personal injury claim. Even though they all deal with torts, injuries or other damages, they are dealt with uniquely, and require an in-depth understanding of Pennsylvania law and legal experience. The most common claims may include:
- Automobile accidents
- Slip and fall injuries
- Workplace injuries
- Construction accidents
- Burn injuries
- Product liability cases
- Trucking accidents
- SEPTA accidents
- Medical malpractice
- School accidents
Negligence in Personal Injury Cases
Most personal injury cases involve allegations of negligence. Negligence is a legal term of art that refers the failure of a person to exercise reasonable care in a given situation. In order to show that another person or group of persons were negligent, the plaintiff has to show that the defendants were under a duty of care; they breached that duty of care; the breach caused the plaintiff to suffer an injury, and the plaintiff was harmed as a result. These are the four elements for a negligence cause of action.
Duty and Breach
Even though people don’t make explicit agreements about how they agree to act with strangers, we all owe each other a duty to conform to a certain standard of conduct. This includes a duty to exercise the same standard of care that a reasonable person would if they were in similar circumstances. A breach of that duty is shown by evidence that the defendant did not act as a reasonably prudent person would under the same or similar circumstances. If the defendant’s actions were unreasonable and they failed to conform to the level of care of a reasonable person, then the defendant breached their duty to the plaintiff. These are not exact definitions, but this standard has been informed by hundreds of years of legal cases decided by judges and juries.
In some cases, an individual may owe a more specialized duty of care, depending on the relationship between the plaintiff and defendant. For example, a doctor treating a patient may owe the patient the duty of care of a reasonable doctor with the similar experience and training under similar circumstances. In medical malpractice cases, a medical expert usually offers expert testimony to the jury as to the specific duty of care owed by a certain health care professional, and they breached that duty.
The next element of negligence involves causation, which may require showing that but-for the defendant’s breach of duty, the plaintiff would not have been injured. Even if the defendant’s action or inaction was not the only cause of the plaintiff’s injury, they may still be held liable for negligence. However, a defendant may avoid liability if there were separate and intervening causes of the plaintiff’s injuries.
The final element of a negligence claim involves damages. In order to recover in a personal injury lawsuit, the plaintiff generally has to demonstrate that they suffered some type of harm. If they suffered no injury or property damage, then they have nothing to recover. However, harm can include a number of types of damages. In a negligence lawsuit, a plaintiff may seek to recover economic damages, noneconomic damages, as well as punitive damages. Economic damages include medical expenses, and loss of earnings that resulted from the injury, including both past, present and future economic damages.
Noneconomic damages include pain and suffering, loss of consortium, permanent disability, disfigurement, and emotional harm. Pennsylvania is one of a number of states that do not have a cap on the amount of noneconomic damages in a personal injury or wrongful death case.
Punitive Damages may also be available in cases where the defendant showed egregious or reckless conduct. Punitive damages are intended to punish the defendant for their harmful behavior, and deter similar action in the future. However, it is rare that a jury will award punitive damages in a personal injury case, unless the defendant’s conduct amounted to malicious or reckless action that showed a disregard to the safety of others.
Strict Liability Cases
Some cases do not require the plaintiff to show that a defendant breached their duty of care which caused the plaintiff injury. Strict liability cases do not require a showing of actual negligence or intentional harm. These cases are based on an absolute duty of the defendant to make something safe. Strict liability cases generally involve abnormally dangerous activity or product defects.
Abnormally Dangerous Activities
Some activities are considered so abnormally dangerous or ultrahazardous that the individuals responsible for the activity are strictly liable for any injuries that result, regardless of their negligence. This is a lower standard of proof for a plaintiff to prove as compared to the negligence standard. Examples of abnormally dangerous activities include keeping wild or dangerous animals, storing or using explosives, or using hazardous chemicals.
The court may consider a number of factors to determine whether an activity is abnormally dangerous to invoke strict liability. This includes:
- The existence of a high degree of risk of some harm to others;
- The seriousness of that risk of harm;
- Whether the risk can be eliminated by the exercise of reasonable care;
- Whether the activity is of common usage;
- The inappropriateness of the activity to time and place where it is carried out; and
- The value of the activity to the community.
The other primary area of strict liability cases involves product defects. Strict liability is appropriate as applied to defective products because it is considered unreasonably dangerous to put a defective product on the market for users or consumers. Sellers are generally in a better position to take precautions and protect against product defects than the consumer, and should bear the loss of any injuries that result.
Generally, in a products liability case, the plaintiff has to show that the product was defective at the time it left the control of the seller; was unreasonably dangerous to the user or consumer; the defect was the cause of injury; and the product was expected to reach the consumer without substantial changes. Proof that a product was defective when it left the seller’s control is enough to establish liability for any injuries caused.
Pennsylvania has recently clarified their strict liability standard in case of Tincher v. Omega Flex, Inc. The Supreme Court of Pennsylvania explored their long history of dealing with product liability cases, and created a standard based in part on § 402A of the Second Restatement of Torts. Under this standard, the jury will determine whether a product is in a defective condition using one of two tests. The jury will apply either the consumer expectations test, or the risk-utility test.
Anyone who sells any product in a defective condition is subject to liability for any harm caused. Under the consumer expectation test, a defective condition is one that, upon normal use, presents a danger beyond the reasonable consumer’s anticipation or appreciation. Under the risk-utility test, a product is in defective condition if a reasonable person would understand the probability and seriousness of harm caused outweighs the cost and burden of taking precautions.
Intentional torts usually involve an individual intentionally trying to harm, threaten or injure someone. Intentional torts often overlap with a criminal charge, such as assault, battery, or false imprisonment. In order to prove a case of an intentional tort such as battery, the plaintiff needs to show that the defendant had the intent to commit a certain act, that resulted in unwanted contact with the plaintiff, resulting in harm. The damages available in an intentional tort case will greatly depend on the seriousness of the injury and the conduct of the defendant.
Defenses to a Personal Injury Claim
Just because a defendant is guilty of committing negligence does not necessarily mean the plaintiff will recover damages. If the plaintiff was also acting negligently, their contributory negligence could reduce or bar their recovery for damages. Different states have varying approaches to dealing with contributory negligence.
Pennsylvania is a modified comparative law state, which means that the plaintiff is able to recover for a personal injury claim as long as the plaintiff is not more than 50% at fault for the injury. Their damages will be reduced proportionately based on their level of negligence. This means that if a plaintiff is awarded $100,000 in damages, and they were 30% at fault, and the defendant was 70% at fault, the plaintiff could recover $70,000 in damages from the defendant. However, if the plaintiff was 60% at fault, they would recover nothing from the defendant.
Philadelphia Personal Injury Attorneys
If you have suffered an injury or damages as a result of someone else’s negligence, you may be able to file a personal injury claim to recover monetary damages. A personal injury lawsuit can make sure that the person who caused the damage is held responsible for paying the cost of recovery. Speak with an experienced personal injury attorney who can offer you a free consultation to evaluate your case, and make sure you get the compensation you deserve. Please contact the team at Gilman & Bedigian today.