What is a Personal Injury?
Common Sense Definition of Personal Injury
Courts do not usually ask "What is a personal injury?" It is a term that is used so often that its definition is assumed. But in truth there are nuances and differences.
Usually common semantics, a personal injury is ...... an injury to a person. You get no points for that easy answer!
But personal injury is not just the damage to the physical human being. It is used as a term to include all losses that naturally arise from an accident or injury. The term also can be used more broadly to include damage to your property.
The American Bar Association defines Personal Injury this way:
Personal injury law, also known as tort law, is designed to protect you if you or your property is injured or harmed because of someone else's act or failure to act. In a successful tort action, the one who caused the injury or harm compensates the one who suffered the losses.
The California Court Guide describes personal injury this way.
There are many types of personal injury cases. In most cases, the injured person (the plaintiff) is suing a person, business, or both (a defendant) because the defendant accidentally or intentionally hurt the plaintiff and caused them an injury of some type. For example, car crashes, slip and falls, or workplace injuries, are all common types of personal injury cases. Workplace injuries will probably involve a workman’s compensation case, and it may also be important to pursue the person who caused the workplace injury.
The California definition is less distinct in listing property as equating to personal injury. In reality though the same legal action to recovery for harm to the person will include related damages such as harm to property. As the California court says:
Sometimes, a legal case involves both personal injury and property damage. For example, a car crash might damage your car and hurt you. If that happens, then your case involves property damage and personal injury. Personal injury cases | California Courts | Self Help Guide
But there are interesting and important rules and differences state to state. In California if you are involved in a car accident you cannot collect for personal injury damages unless you had a valid insurance policy in effect. This is true even if you are 100% in the right. You can be reimbursed for your medical bills and damages to your car but "pain and suffering" cannot be recovered. Here is what the California statute says:
(a) Except as provided in subdivision (c), in any action to recover damages arising out of the operation or use of a motor vehicle, a person shall not recover non-economic losses to compensate for pain, suffering, inconvenience, physical impairment, disfigurement, and other nonpecuniary damages if any of the following applies:
(1) The injured person was at the time of the accident operating the vehicle in violation of Section 23152 or 23153 of the Vehicle Code, and was convicted of that offense.
(2) The injured person was the owner of a vehicle involved in the accident and the vehicle was not insured as required by the financial responsibility laws of this state.
(3) The injured person was the operator of a vehicle involved in the accident and the operator can not establish his or her financial responsibility as required by the financial responsibility laws of this state. (California Civil Code 3333.4)
So when you ask, "What is a Personal Injury in California?" the answer is, "A Personal Injury in California is an injury to a person except when California law says it isn't!"
Wrongful Death / Wrongful Life - Are These Personal Injuries?
The question as to what is a personal injury gets complicated in areas of wrongful death and wrongful life. If someone you love is killed you have suffered a personal injury but in the eyes of the law have you suffered an injury? That varies state by state. In some states only people who are legally married can make claims. There are wrongful death statutes that limit what types of suffering can lead to a recovery by the spouse or family of someone who suffers a wrongful death. The “pain and suffering” of the person who dies may never be recovered. Some states allow the estate of a deceased person to collect for that persons pre-death suffering - others do not.
Wrongful life cases are highly controversial as someone born with a birth “difference” can sue a doctor who either caused or failed to note the “difference” prior to birth. The person actually sues saying, if I wasn’t born I would not have had this expense and challenge in life. So in a tough argument the person is in a sense saying, it would be better if I weren't born. Sometimes the argument is less harsh and the argument is that had the doctor done the job right the "difference" could have been repaired prior to birth.
There is an argument that the real money goes to the parents. It is put in the child's name to avoid exploitation of the child’s money. Hence the fact that it is assigned to the child in a “wrongful life” argument is considered by some a technicality. Still if you Google "wrongful life cases" you will uncover quite a politically charged debate.
Most states define personal injury damages as special and general. Special damages are all the losses that are not emotional or physicial suffering. Medical bills, damage to a car or motorcycle, loss of time from work, future medical expenses are all special damages. Many states use the phrase economic damages instead of the arcane term, special damages. General damages are the upset, the physical pain, the interference with day to day life.
Who Pays for a Personal Injury?
That's easy !!!!!!!!!!!! The person "at fault" pays .... right?
A key issue in defining whether the conduct of the person who caused the harm is sufficiently connected to the personal injury to qualify for you collect damages. Many states use a complicated term - “proximate cause” for the analysis. This same term is also called "legal cause". This usually focuses on the conduct of the party causing the injury and requires that it be either the main or a main cause of the harm. California is looser and requires only the wrongful conduct be a substantial cause of the personal injury.
Are there Specific Categories of Acts Covered Under the Concept of Personal Injury?
When you ask “What is a Personal Injury”, the related questions is "What are the Types of Accidents that cause such harms?" Some are obvious such as:
Slips and Falls (Like unsafe floors at supermarkets, ice and black ice at businesses)
Products Liability (Like when air bags don’t deploy on cars)
Less clear are matters such as Premises Liability. If you breath asbestos in a building that was not properly maintained for safety but you haven’t suffered from any effects (yet), is this a personal injury?
There is something called Dram Shop Liability which is when you are allowed to drink too much at a bar. If you crash your car is there “Dram Shop Liability”? The answer can be “yes”. But what if you get arrested for drunk driving? Is that a “personal injury”? Can you sue for “Dram Shop Liability”?
Contact our Experienced Injury Lawyers
If you have a personal injury case, the Horowitz Office has highly experienced attorneys, a licensed chiropractor (and law school graduate) to assist you. Our million dollar + recoveries and personal injury (and wrongful death) trial experience allow our firm to provide you the best possible legal representation. We used the photo of money and pills for this accident page. There is a reason. Money in a personal injury case is not a gift or a windfall. People's bodies are fragile and you pay in pain and diminished life enjoyment. Daniel was once in a rear end accident where he struck from behind at about 40 miles per hour. (He was a stoplight in Walnut Creek.) He does not recall now how much he got from the insurance company. He does remember very well the pain. We understand and we care. Call us if we can help.