A Personal Injury Case Roadmap

When you get injured due to the actions of another, you should consult a lawyer. Generally, however, when injury occurs, the law asks a few key questions:

Duty—Is one person required to take care not to injure another?

The law does not impose an absolute responsibility on everyone to take care of everyone else in all situations. So, some injuries are simply accidents, not addressable in court. The way the law begins to distinguish between injuries that are mere accidents and those that are torts, is by asking “Did the person or entity that caused your injury have a “duty” to take some level of care to ensure you did not get injured? Sometimes, an injury is caused by someone who didn’t have a duty of care to the person who got injured. In such cases, there is no recovery:

Example of no duty and no recovery for injury: Person B’s property has a lot of broken glass on it, and is fenced. If Person A trespasses (enters without permission) Person B’s property, Person B does not owe a duty of care to Person A. If A is injured by broken glass while on B’s property, A cannot recover damages from B.

There are numerous levels of care the law imposes on people. Usually, the duty is one of ordinary care—that is, the law requires that one person not be careless, or negligent, in regard to others. But there are more lenient and more stringent levels of care, as well:

  • Negligence: Negligence is the “everyday duty of care” that exists in numerous situations. It is the duty to not act carelessly with regard to whether your actions put others at risk of injury—when the law seeks to determine if someone was negligent, it asks, “Would a reasonable person foresee that his actions could cause injury in a certain situations?” This type of duty requires people to repair dangerous conditions on their property or to warn of dangerous conditions that cannot be fixed or haven’t been fixed. It requires us to obey traffic laws, and put out campfires, along with a host of other ordinarily reasonable actions. If someone relates to you certain facts, and your response is “how careless,” than there is probably negligence.
  • Recklessness: The duty to not act with utter disregard to whether your actions will put others at risk—this type of duty is harder to prove than negligence and generally applies to police officers and firefighters en route to emergencies. Speeding through city streets and running red lights is generally careless, but we allow police and firefighters to do so, so long as they warn others they are coming.
  • Intent: People have a duty to not intentionally cause injury to others when there is no justification for doing so. You cannot walk up to someone and punch him in the nose. You cannot knowingly spread false rumors about someone to hurt her. You may, however, punch someone in the nose if he punched you or if he is threatening you with a knife.
  • Strict Liability: This duty imposes nearly automatic liability if it is breached and results in injury.

Example: If a person is prohibited from doing something, and does it, causing injury to another, then the injured person may recover damages. The New York Dram Shop law prohibits the sale of liquor to people under age 21. If a bartender sells alcohol to a minor, he has breached his duty and will be liable if the person to whom he sold liquor gets intoxicated and causes injury to another.

Example: If a company manufactures a product that is defective and it causes injury, or when it is used how it is supposed to be used, it causes injury, the injured party may recover damages–you buy a lawnmower with a blade guard that allows you to clean the area in front of the blades without fear of harm, so long as the mower motor is off. You turn off the motor and put your hand in the safe area, but the motor restarts, damaging your hand. You can recover without proving the manufacturer acted with wrongful intent, negligence or even recklessness.

Did you breach the duty of care?

If, in a given situation, a person does owe a duty of care, then the law asks whether the person breached (broke) his duty of care. That is, was the person negligent, reckless or subject to strict liability given his action. If you breach a duty of care and someone has been injured, the law moves to the third question.

Causation–Is there a sufficient link between a person’s actions and another’s injury?

In law, this is called “proximate cause.” Proximate cause is not necessarily the only cause, but it must be a near cause, a most likely cause, but not a remote cause. Did the actions of the person in failing his duty “proximately cause” the injury? Even if a person was negligent, reckless, or subject to strict liability, if his actions didn’t cause your injury, you cannot recover from him.

Example of remote cause not sufficient for proximate cause: You are driving and almost get hit by a car that runs a red light. You become terribly upset and nervous, but instead of stopping for a break, you continue because you are late for an appointment. Two blocks later, still upset, you drive into a light pole and break two ribs. While the person who sideswiped you contributed to your upset state and thus to your injury, it was not the proximate cause of your injury.

If the answers to all these—duty, breach of duty, proximate cause—is “yes,” the law says that the person behaved wrongfully in causing your injuries.

Changes may occur in this area of law. The information provided is brought to you as a public service with the help and assistance of volunteer legal editors, and is intended to help you better understand the law in general. It is not intended to be legal advice regarding your particular problem or to substitute for the advice of a lawyer.

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