Whether you’re sideswiped by another driver, you slip and fall in the aisle of a grocery store, or you are attacked by a neighbor’s dog, you’re probably aware that you’re entitled to damages for your injuries. But you may not exactly know how to go about it. You might not even be sure that your injuries are actionable. The legal team at Long & Jean, P.A. are professional personal injury attorneys who can review the details of your case and determine whether you have a case. Contact us today for a free, no-obligation case evaluation. We work on a contingency business, so we don’t collect compensation unless you do.
What is a Cause of Action?
Cause of action is a legal term that means that an event occurred that gives one or more parties the right to pursue a legal remedy in court. In a personal injury case, the cause of action would be an accident where the defendant was more negligent than the plaintiff. In the next section, we’ll explore the four elements that must be present in order to pursue damages. It may be easier to understand a cause of action with an example. One of the most common types of accidental injuries is whiplash resulting from a rear-end collision.
Under Florida law, the driver of the rear vehicle is almost always considered responsible for the accident, even if there are contributing factors, like the driver in the lead vehicle slamming on their brakes. Now, consider a situation where you’re in your car waiting for a traffic light to turn green and feel the sudden, intense jolt of a car crashing into the back of yours. Your head snaps back into your headrest and then forward, stretching the tendons and ligaments in the neck. In other words, you experience whiplash.
In this scenario, you have little or no liability. The accident is your cause of action. We’ll now look at how an attorney would break down the accident to determine whether your injuries are actionable.
The Four Elements of Liability in a Personal Injury Claim
Personal injury lawyers must be able to prove all four elements. If all four elements aren’t there, they will not be successful in pursuing your accident claim.
1. Duty of Care
We all have the responsibility to actively avoid hurting one another. That does not necessarily mean that we have the duty to prevent an accident. If we consider the rear-end collision from the last section, the driver of the rear vehicle has a legal duty to operate the car in a way that doesn’t harm other people. Specifically, the driver of the rear vehicle should stop before striking another car.
2. Breach of Duty
The second element of liability is being able to establish that the driver somehow breached their duty. With a rear-end collision, this is easier to establish, but consider a store where a slip-and-fall occurs. It may be a little more difficult to show that the manager was responsible for the conditions that led to the injury. For instance, was there a slippery substance on the floor? How long was it there? When it comes to breach of duty, the degree of negligence can impact the settlement of the case.
3. Causation
This simply means that the negligent action on the part of the defendant caused or partially caused the accident. In Florida, the defendant doesn’t have to be entirely responsible for a personal injury for a plaintiff to receive damages. We’ll explore this more in a later section. Examples of causation include:
- A dog owner decides not to use a leash, and the animal bites a person.
- The proprietor of a restaurant fails to warn patrons that the bathroom was just mopped, and a patron falls on the slippery floor.
- A driver runs a red light, t-boning another car in the intersection.
4. Damages
In order to receive compensation, the plaintiff must show damages. There are three types of damages that your personal injury attorney can potentially pursue on your behalf:
- Economic Damages – These are the monetary costs of an accident. Economic damages can include things like medical bills, lost wages, property damage, the cost of therapy to deal with the trauma, etc. In a wrongful death case, economic damages can also include funeral expenses and the lost income stream of the deceased.
- Non-economic Damages – Attorneys also refer to this as “pain and suffering” because these damages attempt to make the victim whole by compensating them for emotional anguish, physical pain, and the sheer inconvenience of an accident. In wrongful death claims, the victims’ survivors can also seek pain and suffering damages.
- Punitive Damages – Most cases will not merit punitive damages. Punitive damages are intended to punish the plaintiff for intentional behavior or wanton recklessness. Most cases don’t qualify for this type of damages. In Florida, only punitive damages are capped. The maximum a plaintiff can receive is three times the sum of economic and non-economic damages or $500,000 — whichever is higher.
There are no caps for economic and non-economic damages in Florida.
How an Attorney Builds a Personal Injury Case
Every legal team uses their own approach to build their personal injury cases. Because we work on a contingency basis, the costs for these steps are deferred to the end of the case. Here are the steps we usually take at LJ Legal:
- Initial Interview – Before we can represent you, we must determine that you have a viable case and that you intend to become our client. Once we are officially representing you, we can move on to building your case.
- Evidence Collection – Some evidence is perishable after a short time. We will go about collecting evidence, photographing the accident scene, reading police reports or incident reports, reviewing medical records, subpoenaing witnesses, and more.
- Calculation of Damages – We itemize all economic damages and determine the economic damages you are entitled to based on past cases.
- Presentation of a Demand Letter – In many cases, an insurance company is responsible for the plaintiffs’ damages. We will present a demand letter to the insurer or the defendant’s legal counsel.
- Discovery Phase – Under Florida law, both parties must share evidence with one another. We will provide our evidence to opposing counsel and review theirs.
- Negotiations – Most defendants will not acquiesce to an initial letter of demand. They may make counteroffers. If they are relatively close to the amount of the demand letter, it’s often in the best interest of our clients to settle and avoid a protracted legal battle. If not, we are prepared to litigate the case through the civil courts.
Once we learn the details of your case, LJ can determine an anticipated timeline for your case.
Important Legal Considerations in Causes of Action
These concepts can be useful in understanding causes of action. However, you should discuss the specific details of your case with one of our personal injury lawyers:
Statute of Limitations
For most personal injury cases, the statute of limitations is four years from the date of the accident. With regard to wrongful death claims, the statute of limitations is two years from the date of death.
Comparative Negligence
In Florida, a plaintiff can pursue damages as long as they are less than 50% responsible for the accident. The damages are reduced by the plaintiff’s portion of liability. For example, if driver 1 runs a red light but driver 2 was speeding, the parties might agree that driver 1 is 80% responsible for the damages, but driver 2’s speed contributed to the amount of damages. If driver 2 had $50,000 in damages, they could collect $40,000 or 80% of the damages.
Steps to Take After a Personal Injury
The steps you immediately take after an accident can affect your personal injury claim. All accidents are different, but these measures can help you receive full and fair compensation:
- Make sure you’re in a safe location. Do not remain in a place where you’re in additional danger.
- Call 911 to get first responders en route. The dispatcher will need to know your exact location, the nature of the injuries, how many people are involved, and whether you need police to respond in addition to EMTs.
- Talk to witnesses and get their contact information.
- Take pictures of the scene, injuries, parties involved, etc.
- Allow EMTs to examine you. If they don’t transport you to the hospital, follow up with your doctor.
- Contact a personal injury lawyer before accepting a settlement. An insurance adjuster may approach you with an offer to settle quickly. However, you will have to sign a waiver of liability if you accept. Instead, call LJ for a free consultation.
The attorneys of Pompano Beach, FL, personal injury law firm Long & Jean, P.A. have represented hundreds of people in South Florida in their claims. Call today for immediate representation.
