Personal Injury Law

What is Personal Injury Law?

Personal Injury Law (also known as Tort Law) is an area of civil law where a person who suffers physical injury and/or psychological injury and related losses, may pursue a claim or file a lawsuit in court to recover monetary damages from the person(s) and/or party/parties responsible for such injury/injuries and losses.

When an injured person makes a claim for damages, he/she/they are known as the Claimant. When an injured person files a lawsuit to recover damages, he/she/they are known as the Plaintiff. The party/parties who respond to a claim that has not been filed in court are the Respondent(s). The party/parties responding to a lawsuit in court are the Defendant(s).

However, pursuing a legal claim or filing a lawsuit does not automatically entitle a Plaintiff to recover monetary damages. In order to recover monetary damages, a plaintiff must prove his/her/their claims to be true by a preponderance of the evidence standard. This is a more likely than not standard (i.e. more than 50% likely).

One way to understand this is to visualize evidence in a case being placed on a scale of justice. The Plaintiff's evidence goes on one side of the scale while the Defendant's contrary evidence goes on the other side. If the Plaintiff's evidence is viewed as persuasive enough to a fact finder (jury or judge) to tip the scale of justice toward the Plaintiff by even a feather's weight greater than the Defendant's contrary/opposing evidence on a particular issue, then the Plaintiff has prevailed on that issue.

Elements of a Personal Injury Claim

The issues or elements that must be proven in order for a Plaintiff to prevail in court are:

Duty (Legal Duty or Duty of Care)

Duty is the legal responsibility that a person, business, or other entity (including, but not limited to City, State, or Federal government) owes to others under specific circumstances. Duty is established by the State of Hawaii and/or Federal Law, and may be in the form of statutory law (laws passed by the State Legislature and/or Congress) or case law (laws passed by Hawaii State and/or Federal Courts).

An example of Duty is the responsibility that a driver of an automobile has to observe the rules of the road (i.e. obey the traffic laws) and to operate his or her automobile with reasonable care (i.e. paying attention), or the responsibility of a medical professional to provide the appropriate treatment or care to a patient.

Breach

Breach of a Duty of Care occurs when a person, business, or entity fails to follow the law that they are required to follow. An example of a Breach of Legal Duty is an automobile driver's failure to observe the rules of the road or an automobile driver's failure to operate an automobile with reasonable care based on traffic conditions.

Causation

Causation is established when a Plaintiff proves that the Defendant's Breach of Duty is a substantial cause of the harm or injury suffered by the Plaintiff.

Damages

Damages are the actual injury/harm and/or loss suffered by a Plaintiff as a result of a Defendant's Breach of Duty. Damages fall into two categories:

• Special Damages are damages that may be calculated or quantified, such as medical expenses/bills or lost income/wages.
• General Damages are damages that may not be so readily quantified, such as pain and suffering, mental anguish, and loss of enjoyment of life.