• What is "Personal Injury" litigation?
  • June 13, 2018
  • The term “personal injury” is quite broad and includes many different areas of the law. In a general sense, personal injury litigation is the process of seeking money for harm or damage caused to one person by another. That harm can be anything from a broken bone to damage to one’s professional reputation from another’s false statements. In order for one person or entity (the plaintiff) to be able to recover money from another person or entity (the defendant), the plaintiff must be able to show that the defendant had an obligation to do something or act in a certain way and failed to do it or acted in a way that injured the plaintiff. A defendant’s obligation to act in a certain way (the defendant’s “duty”) can come from laws passed by the legislature and signed into law by governor (called a statutory duty) or general principals the courts have recognized over time (called a common law duty).

    The most familiar example of a common law duty is something we each have at all times and is a duty to use reasonable care to avoid injuring others. If someone fails to act like a reasonably prudent person and causes another injury, we call that failure negligence. Take for example a man speeding through uncontrolled intersections in the University District while fumbling with his iPhone, trying to find his favorite Bee Gees song (let’s say “Stayin’ Alive”) and not looking at the road in front of him. Would a reasonable person do this? The law says no, a reasonable person would drive with his eyes on the road, slowing for each uncontrolled intersection and pull over if he wanted to find that special Bee Gee’s ballad. His failure to operate his vehicle in a safe and prudent manner is called common law negligence and if his negligence is the cause of an accident, he will be responsible for paying any damages he causes to an innocent person who found her favorite Bee Gees song (“Night Fever”) on her Samsung Galaxy before she got on the road.

    The careless driving of the “Stayin’ Alive” fan is also a violation of Montana law. The legislature has passed laws requiring us all to pay attention to the road when we drive and avoid speeding. The law, 61-8-302, MCA, requires each and every “person operating or driving a vehicle on a public highway” to “drive it in a careful and prudent manner that does not unduly or unreasonably endanger the life, limb, property, or other rights of a person entitled to the use of the highway.” If the “Stayin’ Alive” fan violates the law and causes a car wreck with the “Night Fever” fan, his violation of Montana’s careless driving statute is a violation of a duty imposed by statute.

    Personal injury law encompasses much more than car accidents. Below are just a few of the different types of personal injuries the law recognizes and allows one person to sue another for:

    Products Liability: if a company manufactures or sells a defective product to a consumer, and the consumer is injured by the defective product, the consumer can sue any entity in the chain of distribution for his or her damages. For example, if Company A manufactures a wing nut that Company B uses along with a bunch of other parts to construct a finished chair, both Company A and Company B would be responsible if the wing nut was defective and caused the chair to collapse and injure the person who bought it. In addition to Companies A and B, both Distributor A who sold the finished chair to Retailer A, and Retailer A who sold the chair to the public would be responsible for any injuries or damages the consumer suffers as a result of the defective wing nut.

    Premises Liability: more commonly called “slip and fall,” these lawsuits involve a plaintiff who is injured by a dangerous condition in a building or on a piece of property. In Montana, the owner or possessor of a piece of property (whether it is a house, business or piece of land) must warn anyone who enters the property of hidden and lurking dangers as well as open or obvious dangers that the owner or possessor has reason to know may cause harm to someone on the property. For example, let’s say if the owner of a rental house is aware of a broken downspout that causes water to pool and freeze right outside of the front door to the house

    Defamation & Libel: if someone lies about you or your business and their lies harm your personal or professional reputation, you can sue them for defamation. These lawsuits require that the damaging statements are actually false. If the defendant can prove that what he or she said was true, they will win any suit. If the plaintiff can show the defendant intentionally lied to injure his or her reputation, the court may allow an award of punitive damages to punish the defendant for his or her malicious lies. Libel is the term used for a harmful untruth about someone that has been published in print, writing, broadcast through radio, television or film.

    Professional Malpractice: doctors, lawyers, accountants and other professionals are required provide services that meet the professional standard of care for their occupation. Whether or not a plaintiff can sue a professional defendant depends on whether another, independent professional in the same occupation is willing to testify that the defendant did not meet the professional standard of care for that occupation. For example, to sue an defendant orthopedic surgeon for a surgery gone wrong, the plaintiff-patient must find and pay another orthopedic surgeon to testify that the defendant failed to use the degree of care required of surgeons under the circumstances. Similarly, if a plaintiff wants to sue his or her lawyer for losing a case, he or she needs to find another lawyer who practices in the same area of law to provide testimony that the defendant lawyer didn’t act like a reasonable professional, which caused the plaintiff to lose his or her case.

    Other Personal Injuries: the law also allows a plaintiff to recover for various other injuries to his or her physical body and mental state.

    • Work Related Injuries: if an employee is injured on the job and the employer has workers’ compensation insurance, the employee will be compensated for his or her injuries regardless of who is at fault, or if no one is at fault. However, in exchange for this “no fault” compensation for work related injuries, employees are not permitted to sue their employers except under the most extreme circumstances.
    • Toxic Torts: if a company dumps pollution into the public’s water, air and in doing so, causes injury illness or death, the company can be sued for what is called a “toxic tort.” With Montana’s history of mining, these actions have special significance to the public.
    • Unfair Insurance Claims Practices: Montana has some of the strongest laws in the nation that govern the behavior of insurance companies. Montana’s Unfair Trade Practices Act (UTPA) requires an insurer to be fair with claimants and their own policy holders. Under § 33-18-201, insurers have specific prohibitions against denying claims without doing a thorough investigation based on all available evidence, compelling their policy holders to file suit in order to obtain benefits, and offering substantially less to a claimant than what he or she is entitled to. The UTPA prohibits “bad faith” practices and is a very strong tool for injured claimants seeking compensation from an insurer. If an insurer violates provisions of the UTPA, it can be subject to significant punitive damages.
    • Consumer Protection Claims: Montana law, like its federal counterpart, prohibits unfair or deceptive practices in the conduct of any trade or commerce. Section 30-14-101, et al. The Consumer Protection Act (CPA) provides stiff penalties for any business engaged in unfair or deceitful acts, including awarding a successful plaintiff attorney’s fees and multiplying the plaintiff’s damages by three (3) times (called “treble damages”). A familiar example of an unfair, deceptive practice that is covered under the CPA is a used car dealer manipulating the mileage on a vehicle in order to charge a customer more. Or, if that same used car dealer misrepresents the car’s accident history in order to make a sale, that behavior would give rise to a claim under the CPA.

    This list is certainly not exhaustive. Personal injury law is a very broad area of practice with many different subspecialties. It is important to find an experienced and reputable attorney for any personal injury case. Speak to several attorneys to get a sense of how they practice and whether they have experience in the specific legal practices your case demands. The attorneys and staff at Spoon Gordon Ballew are dedicated to providing the highest level of legal services to our clients and community.