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Law School in Session: The First Lesson about Personal Injury

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Technically Speaking

The first lesson about personal injury law is that technically, it's not called personal injury - it's called tort law. You'll discover this when you first see your class listing for the beginning semester (the typical first-year law student's course load includes contracts, civil procedure, criminal law, and torts, among others). In general, tort law is the law that governs our behavior toward other people in society.

A tort is an all-encompassing term, covering civil actions that arise in many situations, from car accidents involving drivers under the influence of alcohol to intentional torts like unwanted physical touching.

Here's a common example of a case that falls under tort law:

  • A rear-end car wreck in which the driver wasn't paying attention

In this example, the driver who rear-ended the other driver is the "tortfeasor," meaning the person who committed the tort (a.k.a. "wrong"). The rear-ended driver is the "victim," and may have a cause of action for personal injury.

What is Negligence?

Negligence is generally defined as the failure of a person or company to use reasonable care and this failure causes injury to another person.

Elements to Prove Negligence

In general, three elements must be proven in any given case involving negligence:

  1. Breach
  2. Causation
  3. Damages

The first element relates to the breach of a duty of care. In essence, drivers (for example) have the duty not to rear-end other drivers stopped at red lights. You can debate the difference between a crash and an accident, for instance, but ultimately even the purest of "accidents" - accidents in which it's not entirely clear, at least initially, why it happened - involve the breach of the duty of care.

The second element, causation, refers to the link between the tortfeasor's actions and the victim's injuries. In most rear-end wrecks, for example, the element of causation is usually clear; the driver who rear-ends another driver lawfully stopped at a red light - barring other unusual facts or circumstances - has caused the victim's injuries.

Finally, the element of damages is relatively straightforward: The victim must have actually suffered demonstrable harm, i.e. the plaintiff in a personal injury case would need to show that he or she actually suffered physical and/or emotional harm from the tortfeasor's actions (in the rear-end example used throughout this post, the driver's inattention and poor driving).

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