Delray Beach

Delray Beach Personal Injury Lawyer

If you have suffered an injury, you probably have a number of questions about personal injury law, including how to contact our personal injury lawyers in Delray Beach, Florida.  In The Layman’s Guide to Personal Injury Law, we answer the most frequently asked questions about personal injury law and provide the steps when dealing with this type of legal case.

A personal injury refers to a harm to someone’s body, mind, or emotions.  For the purposes of personal injury law, this harm is generally caused by the negligence, carelessness, recklessness, or willful actions of a third party.  Personal injury law is sometimes referred to as tort law, but the two are not actually the same thing.  A tort is a wrongful act or infringement of a right that leads to civil legal liability and includes personal injury law, but tort law also includes damages that fall outside of the scope of personal injury law.

One of the first questions that victims of a personal injury ask is “what is my accident worth?”  This question is not a greedy one, nor is it an unreasonable one.  In the immediate aftermath of an accident or act of negligence, there is a good chance that insurance companies are going to make offers for settlement.  These offers may sound significant and like they will protect your interests, but it is impossible to know whether or not that is true without knowing the approximate monetary value of your claim.  A number of factors go into determining that monetary value, but monetary damages for personal injury claims are designed to fulfill a number of roles.  The primary one is to put you in the same position you were in prior to being harmed by someone else’s negligence.  This can mean paying medical bills and for rehabilitative therapy, compensating you for time off from work, and monetary compensation for pain and suffering.  A secondary purpose of damages is to discourage negligent behavior by others; these damages are known as punitive damages and may or may not apply in your scenario.

To really understand what your accident is worth, it is important to understand what a personal injury matter/ personal injury claim is.  Personal injury law focuses on the legal disputes involving an accident or injury.  This area of the law is governed by statute, case law, and legal treatises, and requires that the injured party establish a number of elements in order to recover from the party that caused the harm.  Generally, in personal injury law the injured party will be the party who brings the lawsuit or claim, which is known as the plaintiff, and the party who caused the harm will be the person against whom the lawsuit or claim has been brought, which is known as the defendant.  However, personal injury cases can be complex, with both parties suffering injuries and with counter-claims in addition to claims.  For the purposes of simplicity, this article will refer to the injured party as the plaintiff and to the party who did the damages as the defendant.

Although specific statutes may modify this, there are generally four elements to a personal injury case:

  1. the defendant had a duty of care to the plaintiff;
  2. the defendant breached that standard of care;
  3. the breach of the standard of care was the cause of the plaintiff’s injuries; and
  4. the injuries resulted in damages to the plaintiff.

Therefore, the first hurdle that a plaintiff has to be able to surmount is establishing that the defendant had a duty of care.  Fortunately, this does not require the plaintiff to establish a personal duty; all people have the duty to use the same amount of care as a reasonable person would use in the same situation.  This duty exists regardless of whether there is any relationship between the parties and is also situationally-specific.  For example, the existence of safety laws, such as speed limits, can help establish how reasonable people would have acted in the same situation.  Moreover, professionals are held to a higher standard; instead of being expected to act as the reasonable person would have acted in the same scenario, they are expected to act like a reasonable professional would have acted.  Therefore, a doctor’s actions are judged against doctors with the same specialty, a lawyer’s actions against the actions of other lawyers, etc.  I addition, the law may establish a statutory threshold for negligence; if a person fails to meet that standard of care, then he or she may be statutorily negligent.  Furthermore, there is an additional concept known as strict liability.  There are certain activities that are considered so hazardous that if a person is injured as a result of that activity, the person responsible for the activity is liable, even if that person met or exceeded reasonable standards of care.  Product liability cases are often strict liability as are personal injury claims based on ultra-hazardous activities.

Although statutes, including criminal statutes, may help determine negligence, personal injury cases are civil, not criminal, in nature.  In civil cases, money is at issue, not liberties.  However, there are actually several significant differences between civil and criminal law.  In criminal law, if a person is found guilty of a prohibited behavior, they can face a number of possible sanctions, including deprivation of liberty.  In other words, criminal convictions can result in jail time.  In civil law, the defendant faces the loss of money, because the harm to the plaintiff is translated into an amount of monetary damages aimed at making the plaintiff whole.  Furthermore, there is a lower burden of proof in civil law than in criminal law.  In criminal law, the state is responsible for proving the allegations against a defendant beyond a reasonable doubt.  In civil law, the plaintiff has to prove the allegations against a defendant with a preponderance of the evidence.  Therefore, a defendant who is found not-guilty in a criminal setting may still face civil liability for negligent behavior in a personal injury lawsuit.  On the other hand, if a defendant has been found guilty of the negligent behavior in a criminal proceeding, that judgment is often admissible as part of the civil personal injury lawsuit.  Furthermore, because personal injury lawsuits and any criminal charges related to the negligent behavior may occur at the same time, there can be some criminal implications to the proceedings in civil liability lawsuits.   Therefore, if there is any indication that you or the other party could be facing criminal charges for the events related to the personal injury, it is imperative that you inform your attorney of this possibility as soon as possible.

At the heart of every personal injury claim is a central question: who is at fault and for what?  The question of fault is an important one, because fault determines who is responsible for the damages.  Sometimes fault is not absolute; both parties may have failed to adhere to the reasonable person standard of care.  Comparative and contributory negligence defenses suggest that the plaintiff played some role in the injury.  Florida happens to be a comparative negligence state, so that if a plaintiff’s actions played a role in causing the injury, the plaintiff cannot recover for the part of the injuries attributable to his or her own actions.  The practical result of this is that the factfinder determines how much the damages should be and then reduces the damage award by the percentage of negligence attributable to the plaintiff.  In addition, there may be some circumstances where the defendant failed to meet the reasonable standard of care, but where the plaintiff willingly took that risk; this is known as assumption of the risk.

While people think of legal disputes in terms of lawsuits, there are actually a number of ways to resolve a personal injury claim.  In fact, most personal injury claims are resolved by pre-suit settlement, which is an informal process that does not involve the court system.  If pre-suit settlement is not successful, then a claimant may choose to become a plaintiff by filing a lawsuit with the court, where it is assigned a case number and a judge. The process for pre-suit claims and lawsuits is different, but, for most practical purposes, if you file a lawsuit, you will have already exhausted the steps in a pre-suit claim.

Ideally, personal injury claims are settled in the pre-suit process.  This is ideal because it is less expensive for the plaintiff, is not as time-consuming, and has an element of certainty that going to trial does not have.  However, defendants, insurance companies, and personal injury defense lawyers know that most plaintiffs would like the certainty of a settlement and may low-ball settlement offers or drag their feet in the settlement process, in an effort to encourage a plaintiff to settle for less than the actual monetary value of the claim.

Pre-suit claims are an informal process, which means they can actually proceed in a variety of different ways.  Generally, there is a victim and an at-fault party.  In many instances, especially automobile accidents, there is an insurance company involved as well.  The insurance company is generally obligated to provide some type of legal defense for their insured once a lawsuit is filed, but will also generally have representatives in the pre-suit claim process; these are generally insurance claims adjusters.  If an insurance company is involved, then the claim will be given a claim number; this claim number has no legal significance, but is an internal record-keeping device for the insurance companies.

Even if a personal injury claim is resolved in the pre-suit process, the injured party still has to demonstrate that the injuries stemmed from the accident.  This can be a new injury, caused entirely by the accident, or the exacerbation of a pre-existing injury.  Generally, the injured person will be examined by a doctor or doctors to state the nature of injury, the treatment recommended for the injury, the likelihood of a full recovery, and, if no full recovery is possible, how the injury will impact the victim.  The victim presents this information to the person who caused the harm, or, more frequently, to the insurance company’s representatives.  Then, the two sides see if they can agree on a monetary settlement for the claim.  In exchange for the monetary settlement, the victim generally is required to sign a release that relieves the at-fault party from future legal liability for injuries resulting from the incident.

Pre-suit settlement may go into a semi-formal process known as mediation if the parties cannot reach an acceptable settlement.  Mediation involves both parties bringing their sides of the story in front of a trained mediator, who tries to find a settlement that is agreeable to both sides.  In some states, mediation is mandatory and often occurs after a lawsuit is filed, but in Florida mediation generally happens prior to filing suit.  We say generally, because, even once a suit has been filed, both parties can try to negotiate a settlement; settlement negotiations can occur up until the final judgment, and mediation could be part of that process.

If the parties are unable to reach a settlement in the pre-suit claim process, then the victim has to decide whether or not to file a personal injury lawsuit.  Generally, if a victim has refused to settle, it is because the at-fault party is not offering sufficient compensation for the injuries.  However, sometimes it is the at-fault party who refuses to settle, and when that occurs, it is generally because they are denying being at fault.  The victim’s chances of recovering at trial will be based, not only on the injuries suffered, but also on the strength of the case against the at fault party.  As a result, not every personal injury claim that fails to settle in the pre-trial process actually goes to trial.  For those that do, the victim becomes the plaintiff in a personal injury lawsuit and the at fault party becomes the defendant.   The defendant might be a person, a company, or a government entity.  In addition, there might be multiple defendants in a personal injury lawsuit.

There are some important things to keep in mind about personal injury lawsuits that can help determine how a victim approaches pre-trial settlement and whether an attorney can bring a claim on behalf of a victim.  For example, there is a legal concept known as the statute of limitations.  The statute of limitations delineates how long a person has to bring a claim based on a specific type of wrong doing.  The suit must be filed before the statute of limitations has run out, and that time period depends on the type of incident and the state where the injury occurred. It is important to realize that different personal injury claims may have different statutes of limitations.  For example, in Florida, a victim of a slip-and-fall type personal injury has three years to file a lawsuit, but a victim of an auto-accident personal injury has four years to file a lawsuit.  In addition, there may be some wiggle room on statutes of limitations that are not apparent to non-lawyers.  For example, most of them begin running when a plaintiff knew or should have known of an injury done to them, which, for most purposes, would be when an accident occurred.  However, if the negligence was hidden from the victim by the at-fault party, this could result in tolling of the statute of limitations.  While the concept of tolling may not apply in most personal injury scenarios, it could easily apply in a variety of malpractice-based personal injury claims, because the party at-fault might take steps to conceal the negligence.  Therefore, even if you think that a personal injury claim is no longer valid because you are outside of the statute of limitations for that claim, you may want to discuss the matter with a personal injury attorney to see if tolling would apply.

When determining the value of a settlement, both in a pre-trial setting and at trial, the victim’s damages are going to be the most important factor.  Damages can include physical, mental, and emotional injuries to the victim.  Compensatory damages are those damages intended to make the victim “whole.”  Although personal injuries are distinct from property damage claims, many personal injury settlements, especially for automobile accidents, will include a property damage component.  Other aspects of compensatory damages include medical expenses, lost wages, loss of quality of life, pain and suffering, and loss of consortium.  Many people underestimate the compensatory damages that should attach to a particular injury, because they fail to consider the lifelong costs of medical treatment, diminished quality of life, or loss of ability to work.

Wrongful death lawsuits are a very specific type of personal injury lawsuit, which uses the same principles of personal injury law to demonstrate that the at-fault party wrongfully caused the death of another.  In wrongful death lawsuits, the victim is not the person who died as a result of the negligence, but a person suing on behalf of the victim, usually a spouse or child.  In those cases, the pure monetary damages to the victim are based on the lost earning power from the person who died, but the plaintiff can also make claims for emotional damages due to the loss of the person who died.

Although the general goal of personal injury law is the recovery of compensatory damages, which make the plaintiff “whole,” there are some instances where punitive damages may apply.  Punitive damages are properly viewed as a way to punish the at-fault party.  Therefore, they generally are not going to apply in cases of simple negligence, even if the person’s behavior was outside of the reasonable standard of care.  Instead, they are applied in cases where the at-fault party acted with the intent to harm or in such a reckless manner as to draw a reasonable conclusion of intent to harm.  Whether or not the underlying events would support a punitive damages claim is something that is very fact-specific and would need to be discussed with a personal injury attorney.

In addition, it is important for a victim to keep in mind that all cases have to consider comparative negligence.  Even if the other party was largely responsible for the accident, every potential plaintiff needs to ask, “What percent of the accident am I responsible for having caused?”  Your actual responsibility may be very different from the numbers that are discussed in pre-trial settlement negotiations.  Insurance companies will try to mitigate their liability by placing comparative negligence on individuals.  However, just like when you are trying to establish liability on the part of the wrongdoer, to establish comparative negligence, the defending party must demonstrate, not only that you failed to meet a reasonable person standard of care, but also that the failure was responsible for your injuries.  This is an important distinction.  Many people assume that if they were engaged in any type of negligent or illegal behavior at the time of an injury or accident, that comparative negligence laws may make it difficult to recover for a substantial portion of any injuries.  However, the real question is whether that behavior helped contribute to the injuries.

Hopefully, The Layman’s Guide to Personal Injury Law has helped you gain a better understanding of personal injury law.  Personal injury law can be extremely complicated.  While the same rules and principles apply to all personal injury lawsuits, the individual fact-patterns of each lawsuit mean that the same injuries might not translate to the same damages for a plaintiff.  Therefore, if you have questions about the value of your personal injury claim, whether or not you should accept a settlement offer, or your proportion of comparative negligence, we strongly urge you to consult with our personal injury lawyers.  Demand the Limits offer free initial consultations, where we will review your claim, help you determine fault, and give you an idea of the monetary value of your injuries, so that you can make an informed decision about how to proceed.

    Practice Areas


    Medical Malpractice
    Recovery for a client who suffered brain injuries due to a fall.


    Negligencia Médica
    Recuperación para un cliente que sufrió lesiones cerebrales.


    Trucking Accident
    Recovery for a client who was injured while driving an 18-wheeler truck.


    Accidente de Camión
    Recuperación de un cliente lesionado mientras conducía un camión.


    Auto Accident
    Recovery for client injured in a car crash. Pre-litigation offer: $60k.


    Accidente de Auto
    Recuperación para el cliente herido en un accidente automovilístico.