The very first step in an injury lawsuit is determining whether you have legal grounds or standing to bring the lawsuit in the first place. Anyone can file a lawsuit against anyone for anything. But without legal standing, the lawsuit is not actionable, and the judge will throw it out.
To determine whether your case is actionable, you will need to evaluate your circumstances and consider several specific factors of your incident, including:
For an injury lawsuit to be successful, there must be a liable, or responsible, party for the injury. If you were hurt, someone else’s actions must have caused your injury. Most commonly, liability is established by a defendant’s negligence. But that is not always the case. Strict liability, malice, and intentional torts are examples of other ways a defendant’s liability can be established.
Determining the Relevant Lawsuit Type
Though filing the case is one of the first steps in pursuing a personal injury lawsuit, it is not the first. Before you file, you need to fully evaluate the accident and its repercussions on your life.
If it turns out that you have a viable personal injury case, the time you have spent reflecting on your accident prior to filing will be helpful later when building your case. You will have already laid a foundation that will help you more accurately and thoroughly detail your complaint to the court and the defendant when you do file.
When you are ready to file, you need to have determined the correct type of lawsuit you are pursuing, given the injury you have suffered (such as premises liability, product liability, etc.). Different rules apply to different types of lawsuits, so the kind you file may alter the statute of limitations and the liability standards. For instance, New York General Municipal (GMU) §50-E states that if you want to sue a municipality, you have to notify them 90 days after your injury.
The majority of personal injury lawsuits are actionable due to a defendant’s negligence. A defendant is negligent when they fail to meet certain legal standards required of them. When a defendant’s negligence results in damage to another, the defendant becomes liable to their victim for that neglect.
To establish a defendant’s negligence, a victim, or plaintiff, will need to show clear and convincing evidence of four things:
The Defendant’s Duty
“Duty” is the legal term for an entity’s responsibility to another. A defendant must owe the plaintiff a duty, or a particular standard of care, as required by the circumstances. Generally, people owe other members of society a reasonable duty of care. But there are occasions when a defendant may owe someone a greater duty of care.
For example, a medical doctor has a duty to provide a high standard of care when giving medical treatment; a shop owner has a duty to warn visitors of hazards and to make and keep their premises safe.
The Defendant’s Breach of Duty
After a defendant’s duty has been established, a plaintiff must show that the defendant breached that duty. A breach of duty occurs when an entity fails to provide the standard of care required of them. For example, a shop owner whose duty is to keep their property safe breaches their duty when exposing their visitors to unreasonable safety risks.
If the shop owner leaves electrical wires exposed and publicly accessible, this is a certain breach of the owner’s duty to not put their customers at unreasonable risk. Similarly, a defendant who texts while driving breaches their duty to abide by traffic laws enacted to keep others safe.
In order for the defendant to be liable for the negligent breach of their duty, the victim will need to show that the defendant’s negligence caused the accident, harm, or injury.
Finally, the victim will need to show that as a result of the harm and injury they have suffered, they have endured damages. Using the example above, a visitor who stubs their toe while stepping over the shop owner’s wires might be a little hurt, but it will be hard to show that they suffered real damages from stubbing their toe.
However, if that victim broke their arm due to tripping over the wires, they would clearly be able to show that they had suffered damages—both economic (medical expenses) and non-economic (pain and injury) damages. After touching exposed live wires, a customer who was electrocuted can also prove that a shopkeeper’s breach caused their injury.
Even if your case does not meet the above criteria for general negligence, depending on the type of accident and injury you experienced, your case may be actionable under another liability theory. If you believe someone else is (or could be) liable for your injury, it may help to speak directly with an attorney about your case.
Retain a Lawyer from the Law Office Cohen & Jaffe, LLP Today
An attorney can evaluate your case’s specific factors and give you a personalized determination as to whether you may have a valid personal injury case. If so, they can also help you decide which type of lawsuit to file for compensation (and help you accomplish those steps). For example, if you were injured in a slip and fall accident, you would file a premises liability lawsuit. However, if your injury was the result of a faulty product, you would file a product liability lawsuit.
To learn more about whether you might be eligible for compensation and for help with filing your injury lawsuit, call the Law Office of Cohen & Jaffe, LLP at (516) 358-6900. You could collect what the Legal Information Institute (LII) refers to as damages (“the sum of money the law imposes for a breach of some duty or violation of some right.”). Our team serves clients in Nassau County, Queens County, Suffolk County, and New York City. Let the Law Office of Cohen & Jaffe, LLP help you get the justice you deserve.
For a free legal consultation, call 516-358-6900