When Should You File a Lawsuit?

ELI5: Negligence

If you’ve been injured, you may be wondering if you should consider filing a personal injury claim. There’s a difference between a personal injury claim and a lawsuit. Generally, claims are filed when the injured party is seeking compensation for the damages they’ve sustained due to the at-fault party’s negligence. Lawsuits, on the other hand, are filed when the plaintiff and the defendant cannot come to an agreement on a settlement.  

When You Have Damages 

In order to be able to file a lawsuit, you need to have damages. The elements of a personal injury claim are usually as follows: duty, breach of duty, causation, and damages. So, you generally have a duty to ensure your dog doesn’t bite anyone. But let’s say that you allow your aggressive dog to roam the neighborhood unrestrained and unsupervised—you’ve probably breached your duty. If the dog bites someone, causing them to need medical attention (causation), the person your dog bit may be able to sue you for the cost of the medical bills (damages). In order to have a good personal injury claim, you generally need to have some form of economic damages. This means that you ought to have sustained some damages that have an objective monetary value: the medical bills for the care you received due to the dog bite, or the lost wages for the work you missed due to your injury, or both! If you do not have economic damages, you don’t usually have a personal injury case. 

There Was Negligence 

In order to have a good personal injury case, someone has to have been negligent, meaning that they did something (breached their duty) that caused you to sustain damages. In short, you can determine whether or not there was negligence by asking yourself this question: what could have been done differently that would have prevented my injury? Let’s say you’re at a skating rink, roller-skating, when you slip and fall and break your tailbone. If you asked yourself, what could the skating rink have been done differently to prevent my injury? The answer is probably going to be “nothing.” or “I could have taken skating lessons”- you probably don’t have a case for personal injury. 

There Is a Source of Recovery 

A personal injury case generally needs to have a source of recovery. For example, everyone who drives a vehicle is required to have insurance on the vehicle. When a person is injured in a car accident, the insurance company is usually the source of recovery. That’s because when you’re paying for insurance, you’re in-part paying for the company to cover or “insure” your expenses in the event you cause an accident. But, in cases where neither party has any car insurance, it’s much more difficult to file a personal injury claim against the at-fault party. This is because there’s no source of recovery. However, if you have underinsured motorist or uninsured motorist coverage, that may be able to help. While you can always sue someone personally, winning a lawsuit against someone who doesn’t have any money isn’t meaningful because it can be extremely difficult to  force someone to pay you money that they don’t have. In most cases, courts will not force a defendant to liquidate assets such as their primary form of residence in order to satisfy a lawsuit. Additionally, the defendant  can always declare bankruptcy, which then makes your judgment against them worthless. Relying on insurance as the source of recovery is usually the safest bet. 

You Were Injured 

If you’re looking to file a personal injury claim, you need to have sustained some sort or injury, ideally one that resulted in an economic damage. While it is technically possible to file a claim for non-economic damages only, most personal injury attorneys would not take such a case since it would be less likely to succeed in court. This does not mean that you need to be physically injured in order to file a personal injury claim, as many people with near-death experiences have filed claims for the emotional distress that they’ve endured. However, people who are filing claims for infliction of emotional distress are usually filing claims for the cost of the mental health care they needed after another party’s negligence caused them to sustain emotional distress. So, in order to file a claim, you need to have sustained a physical injury or have economic damages. 

Significant Damages 

Believe it or not, a lot of people sustain damages due to the negligence of others, but the injured party doesn’t always file a claim. In some cases, this could be because it’s not worth it to file a claim. For example, let’s say you go to a local fast-food restaurant, and you get food poisoning, but you don’t require hospitalization. While you may miss a few days of work (which has caused you to miss out on pay for those days), you don’t really have any other damages. In this case, you’d probably have a difficult time finding a personal injury attorney to take your claim due to the fact that your damages aren’t significant enough to cover the cost of your legal claim and recompense you for your damages. However, if you have actual damages, like hospital bills and lost wages, you should probably talk to an attorney before choosing to forego your claim, or signing a settlement with the insurance company. 

When You Need Legal Advice 

If you’ve been injured, and you’re considering hiring an attorney, Moxie Law Group is here for you. Contact us today for a free initial consultation. 

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