Other Accidents
Serious Injuries NOT involving vehicle collisions
Torts (from the French word meaning “wrong”) are civil claims for which compensation is demanded. These cases are also known simply as injury or negligence matters. They do not involve breach of contract – but rather breach of legal duty. The injuries suffered by the innocent person result from someone else’s carelessness.
Negligence is the failure of someone to exercise care for the safety of another person. Their misconduct is that which an ordinary and prudent person would not have engaged in, under similar circumstances. Tort claims involve an absence of clear judgment, for which another suffers or dies.
At our law offices, we handle tort personal injury claims exclusively. While much of our client representation involves vehicle collision injuries, there are 3 other torts which we commonly bring to resolution.
- Dog and Animal Attacks
- Professional Malpractice (especially legal malpractice)
- Slip and Fall
Actually, the legal context in which all tort cases resolve – from an intersection collision to a dog mauling – involve the same legal principles of negligence.
The defenses which insurance companies assert must be met head-on and defeated. The usual arguments they attempt to advance fall into rather predictable categories:
- Contributory negligence – Our client contributed to their own harm.
- Assumption of the risk – Our client should have known what could happen and assumed the risk anyway.
- Intervening cause – Our client’s injury was really caused by another person.
- Unavoidable accident – It’s sad they were hurt, but life’s lottery can be harsh.
These and other defenses must be met forcefully with sound grounding in the statutes of Ohio, as well as the common law, which flow out of the Ohio appellate courts.
When Injuries Are Inflicted Intentionally
Sometimes tort cases will involve intentional conduct, such as when a person assaults another or maliciously causes emotional distress.
Although liability is sometimes easier to establish, than is true with negligence cases, most lawyers are reluctant to accept intentional tort cases. The principal reason is collectability. By law, insurance policies usually cannot cover for this variety of loss. And even if legal, there will most likely be an exclusion in the defendant’s insurance policy.
If the fact pattern is murky, plaintiff lawyers will try to resolve ambiguities in favor of a claim for negligence. This allows for the opportunity to collect insurance proceeds.
Many perpetrators of physical and psychological violence have few assets. It may not be worth it to pursue a claim against them personally. Obtaining a judgment, which cannot be converted into money, is a pyrrhic victory. And this amounts to a devastating double victimization for the injured person.
If the perpetrator does have true assets, then they should personally be held financially accountable for the misery they have inflicted. Sometimes the civil action is in conjunction with criminal charges that the victimizer will be forced to address in court.
Juries resent people who cause massive suffering to another. If the jury’s passion is inflamed, then they may award punitive damages against the defendant. As the term implies, the purpose of punitive damages is to punish the wrongdoer for engaging in outrageous conduct that will not be tolerated in our society.
Attacks by Dogs and Other Animals
When most people think of a dog attack, they picture a particularly vicious animal, lunging. A large number of the dog bite cases we have handled for clients have actually involved generally placid pets which, for no understandable reason, inflict horrible bites on the unsuspecting visitor.
There is no denying, however, that the majority of pets which cause serious injuries are those that the owner knew had a predisposition for causing havoc. So many of these irresponsible owners are as dangerous as the mean animals they regard as family. Even after witnessing the attack and the devastating injuries, it is not uncommon for the pet owner to still believe their dog is a loveable, peaceful animal. This is particularly true in low-income neighborhoods where thickly-muscled, vicious dogs are valued as machismo status symbols.
The majority of dog and cat bite victims we have represented have been children. Kids often make abrupt body movements and noises that can provoke an animal. Also, the fact is that children are built closer to the ground, and their faces are a prime target for lashing fangs. The injuries inflicted can be extraordinary. In the flash of one bite a child’s flesh is shredded and their life never the same.
The traumatic trip to the emergency room involves rabies police investigation, wound cleaning and tetanus shots – usually in conjunction with extensive suturing. It is common for plastic surgery to be part of the long-term treatment plan. Many plastics specialists want to wait a decade, if the child is young, to evaluate further care. Only then can they determine the nature and scope of surgical intervention to soften the disfigurement.
Slip and Fall Injuries
With the exception of vehicle injuries, those involving fall-down injuries are among the most common. While these cases also involve negligence law principles, they can differ substantially from the statutes and case law which governs vehicle claims.
The biggest hurdle with most fall-down injuries pivots on the question of notice. The foundation of the injured victim’s claim is that the premises owner either created the hazard or they at least knew about it. The defense will be quick to assert that the business owner or apartment manager did not know about the problem long enough for them to have removed it.
If the fall was caused by a floor or sidewalk defect, the insurance company will often throw up barriers to recovery. They will say the hole or crack was so small that it could not have been at fault. Or they will claim the defect was so obviously large that the victim plainly could have seen it. They never agree, from the beginning, that the defect was not-too-large and not-too-small, but just-the-right-size for them to be liable.
The other favored defense is one of “comparative negligence.” This turns on the notion that the claimant should have seen the hazard and avoided it. The defense strategy here is to minimize the victim’s recovery. Ohio law still allows compensation, but the judge or jury can reduce the total award by a percentage. But they must be convinced by the insurance company’s lawyer that the claimant does not deserve full compensation. The old rule – that if the plaintiff is wrong to any degree they lose completely – was abandoned by Ohio years ago.
When A Professional Malpractices
Most of the professional malpractice claims we have handled have involved legal malpractice. However, stockbroker, CPA and other professional matters have also been managed by our office.
Professional malpractice claims are usually long in duration and also expensive to pursue.
Claims which are grounded only in disrespectful treatment or hurt feelings go nowhere. If there is a claim worth investigating, then it should be done in a thorough manner and with relentless attention to detail. Professional malpractice claims can also involve costs for expert witnesses and demonstrative evidence. Once the liability issues are resolved then attention can be fully focused on the extensive damages incurred. These can include any number of items, including money, loss of rights of opportunity as well as emotional distress.
If the case involves a lawyer who mismanaged their client’s case, then there are really two cases to be advanced at once. This is known among lawyers as “the case within the case” dynamic. First we must prove the underlying case which the at-fault lawyer (usually a personal injury advocate) was required to establish. Additionally, the legal malpractice must be shown as well in the second case. After both claims are proven, then the damages can be substantial.
Many prospective clients wrongly believe that lawyers are like doctors in that they will never bring a case against another local lawyer. Physicians always maintain a wall of silence and refuse to implicate another physician. This is not true with lawyers, and it has not been so, for at least 3 decades. The southwestern Ohio bar is a large, crowded and largely impersonal bar. Lawyers freely and openly bring claims against one another without hesitation. And whereas juries have sympathy for doctors, and insulate them from judgments, this feeling is not shared as to other professionals. The law profession is widely disliked, and juries will not hesitate to find against a lawyer.
Suffering From Psychological Injuries
Psychological injury is often a powerful element of both negligent and intentional injury claims. Many victims of grossly uncivilized conduct suffer post-traumatic stress disorder. This syndrome has, over the past twenty years, gained wider acceptance and credibility. The effects can involve a host of complex reactions, from phobias and depression to physical miseries (headaches, intestinal dysfunction, exhaustion and others).
A claim for psychological damages will usually open up the claimant’s medical and psychological history for careful scrutiny by the court. These situations can involve exquisitely sensitive matters. The particular judge assigned to the case can make a dramatic difference in how privacy concerns are decided. Judicial philosophy often determines the parameters of the allowed discovery and which expert witness testimony can be elicited.
As a strong, general rule claims adjusters, juries and judges are suspicious of mental disturbances. The default assumption tends to be that the claimant may be greatly exaggerating their distress. Some jurors even believe that everyone must slog through life with damaged psyches. These people feel that victims should adjust to their emotional wounds and get on with it.
These prejudices can be overcome with careful litigation strategy, and the input of a caring mental health provider. Psychological injuries which are believable, understandable and presented with skill can add genuine value to the deserved recovery.
About Libel and Slander Claims
We are often asked about libel and slander situations. The law considers these to be intentional injury cases, and surely they create tremendous hurt to the harmed person. However, in our First Amendment nation it is exceedingly difficult to win these cases, often known as “defamation.”
Public figures can have most things written about them, and the media will be able to elude liability. It is far easier for a private individual to argue such a claim, but rarely are these worth the time and expense. It is difficult to prove clear damages when someone has been slandered.
Most juries are not initially sympathetic to those with hurt feelings in our rough-and-tumble world. Without establishing a clear financial loss, most judges will dismiss these cases from their courtroom docket.