Accident And Injury
OVERVIEW OF IOWA PERSONAL INJURY LAWNote: This overview is not meant to serve as legal advice. It only provides a general description of the law and does not go into details which might affect your case. You should seek the advice of an attorney concerning your specific situation. Use this overview to prompt questions when visiting with your attorney.
This overview does not cover injuries which happen at work and for which an employer might be responsible under worker's compensation law. It also does might not apply to injuries in circumstances involving commercial watercraft which is covered by admiralty law.
OUTLINE:
1) Who is at fault for your injury?
b) Legal Reasons a Person or Entity Might Be at "Fault"
2) Causation (Proximate Cause)
4) Defenses
6) Procedure
7) Subrogation
TEXT:
1) Who is at responsible for an injury ? Various persons or legal entities can be responsible for an injury. People or entities responsible because of what they did or failed to do are said to be at “fault.” In addition there may be people or entities which are legally responsible because of their relationship to the person or entity at “fault.” Insurance contracts can make an insurance company responsible to pay the damage caused by a person or entity at “fault” or liable because of their relationship to the person or entity at “fault.”
a. Potential Defendants: Potential defendants include those directly involved in causing injury (those at “fault”), those responsible because of their relationship with the party at fault, and insurance companies. Any person or entity who contributed to the situation causing the injury is a potential defendant. For example, John stops at a stop light and Fred hits him from behind. Fred is the obvious defendant. If John did not repair the tail-lights of his vehicle so that it was not visible, John may share the fault for this accident. If Fred's brakes did not work, perhaps his mechanic is a fault for an improper repair. If the air bags in John's car did not inflate so that he suffered a greater injury, the auto manufacturer might share fault. If the traffic light changed too quickly so as to surprise Fred, perhaps the municipality is at fault for the design of the traffic control. If John goes to the hospital and the doctor does not treat a broken bone because the doctor failed to take an X-ray of the painful arm, the doctor might share fault. Should John refuse to follow his doctor's directions and prolong the recovery from his injury, he might be a fault. If Fred was delivering for Pete's Pizza Parlor at the time of the accident, his employer is responsible for the damage Fred did under the doctrine of vicarious liability. If Fred was drunk because Barb's Bar served him to the point of intoxication, Barb's Bar could be a defendant. If Fred's wife, Marge, is listed as a co-owner of his vehicle she could be a defendant under a statute which makes vehicle owners liable for damages caused when they allow someone else use their vehicle. John's own insurance company may be a defendant because he may have an underinsured motorist claim. However, insurance companies who insure the people or entities which are at fault are not defendants.
b. Legal Reasons A Person Or Entity Might Be At “Fault”: A number of legal theories can be used to establish “fault:”
i. Negligence: People are expected act in a reasonable manner—the way we expect normal people to act in the same situation. When they do not they are negligent. Violation of a law is also negligence.
ii. Recklessness
iii. Strict Tort Liability: When someone is involved in an ultra hazardous activity, they are responsible for the injuries the activity causes. Comparative fault does not apply to strict tort liability.
iv. Breach of warranty: A seller or manufacturer of a product or the provider of a service may provide written warranties. The law may also impose implied warranties which are not in writing. When a product or service injuries someone there may be a breach of warranty.
v. Unreasonable Assumption of Risk
vi. Misuse of a Product
vii. Unreasonable Failure to Avoid an Injuryviii. Unreasonable Failure to Mitigate Damages: A injured person has a duty to exercise ordinary care to reduce, minimize or limit their damages. However, the injured person has no duty to do something that is unreasonable under the circumstances, such as undergoing a serious or speculative medical treatment or undertaking an action which is unreasonably expensive or intrusive or unreasonably inconvenient.
ix. Public Nuisance: When a person use of land interferes with the use of public lands, causing an injury, they can be at fault of the injury. An example of this is where a manufacturing plant creates a cloud of dust or smoke which covers a highway causing obscured vision which in turn causes an accident.
c. Comparative Fault: From the above discussion you can see that more than one person may be at fault -- including the victim. A jury or judge will assign the injured party and all defendants a percentage of fault. If the injured party more than 50% at fault they get nothing. The total amount of damages they get is reduced by their percentage of fault.
2) Causation (Proximate Cause) : Just because someone did something wrong does not mean they are responsible for injuries. The person's fault must have caused the injury. The conduct of a party is a “proximate cause” of damage when it is a substantial factor in producing damage and when the damage would not have happened except for the conduct. "Substantial" means the party's conduct has such an effect in producing damage as to lead a reasonable person to regard it as a cause.
3) Types of “Damages?” : A victim is entitled to be compensated by other persons or entities whose combined fault is 50% or more of all fault. The things for which a victim can be compensated are called “damages.” The types of damage that can be recovered depends on the facts of the case and include:
a. Property damage: The cost of repair or replacement, which ever is less. Rent for a replacement and reduction in value due to repair are part of property damage.
b. Past and Future Medical Expenses
c. Loss Of Time – Earnings
d. Loss Of Future Earning Capacity
e. Loss Of Full Mind And Body – Past and Future
f. Physical And Mental Pain And Suffering – Past and Future
g. Loss of Consortium – Past and Future
h. Death Damages :
i. Present Worth Of The Value Of The Estate
ii. Burial Expenses
iii. Support – Spouse
iv. Support – Children
v. Services - Spousal Consortium
vi. Services - Parental Consortium
vii. Pre-Death Loss Of Time – Earnings
viii. Pre-Death Medical Expenses
ix. Pre-Death Physical And Mental Pain And Suffering
x. Pre-Death - Loss Of Full Mind And Body
xi. Lost Chance Of Survival (Medical Malpractice only)
i. Punitive Damages
j. Interest and Court Costs4) Defenses : An injured party has the burden to prove their case by a preponderance of the evidence. In other words their evidence to prove fault, causation and damages must be more persuasive than the defendant's proof. A defendant can claim the injured party, some other person or entity, or an “act of God” is responsible for damages. Each case can offer its own unique defenses.
5) Pre-existing Conditions : Sometimes symptoms which exist prior to the accident are made worse because of an accident. The parties at fault are only responsible to the degree the damages were increased by the accident. Sometimes a pre-existing condition makes a person more vulnerable to injury. The parties at fault share responsibility for all the damages that result, even though the extent of damages is much greater because of a pre-accident weakness.
6) Procedure : Negotiations and mediation can be used to conclude the case at any time. There may be advantages to arbitrating rather that going through a court process. The court process is as follows:
a. Petition prepared and filed (judgment interest starts)
b. The Petition and Original Notice is delivered to the defendants and proof of delivery is filed with the court.
c. The Defendant file an Answer or Pleading (if they fail within a designated time frame, a default judgment may be obtained)
d. The parties engage in "Discovery." Information is shared by means of Interrogatories (formal questions); Requests for Production of Documents, Inspections of Property or Things, Depositions, and Requests for Admissions.
e. Motions may be filed.
f. Parties attend a pre-trial conference.
g. Trial.
h. Post Trial Motions.
i. Collection of debt by various means if not voluntarily paid
7) Subrogation : When a victim receives damages from parties at fault, the victim may have to pay back all or part of benefits previously paid by an insurance company or government program. The right to get part of the damages the victim recovered is called subrogation. It is defined by contract, statutes and common law.
8) Statutes of Limitation : In personal injury cases the victim must settle or file a suit within two (2) years from the incident that injured the victim. If they do not, they may no longer have a right to get damages. (Some exceptions exist.) If the victim is injured by an intoxicated person the victim must give notice within six (6) months to the business (or its insurance company) who served the alcohol in order to preserve an action against them under dram shop laws. (Workers Compensation and Admiralty law cases have other deadlines.)
