What is a Personal Injury Claim?
What is a Personal Injury Claim?
There are, essentially, two kinds of lawsuits in the United States. First are those that “sound in contract” and second, “those that sound in tort.” The word “sound,” when used this way means the grounds or the basis of the lawsuit. If the parties to the lawsuit happen to be two businesses arguing over the sale of a load of manufactured goods, that lawsuit, if filed, will “sound in contract.” It could be that one side of the lawsuit will be asking for lost profits on the sale. And, at the same time, the other side might be suing for damages based on some defect in the product it purchased. The possible scenarios are limitless.
Now, if two parties are arguing over who was at fault in an automobile accident, the parties might sue each other for the cost of getting their respective cars repaired and the value of their personal injuries received as a result of the accident. This type of lawsuit “sounds in tort.” A “tort” is a civil wrong, not a breach of contract, that causes another person harm. It could be a negligence claim in an automobile accident or collision or a dog bite.
The real difference between the two is that a “case that sounds in contract” will allege that there was a writing or other agreement that imposed a duty to act, or not to act, or to act a certain way and that one of the parties failed to perform that act causing savage to the other. That really is what a breach of contract is – you agree to do something (pay your bill on time) and you did not so you are in breach of that agreement and the non-breaching party sues for damages.
A case that “sounds in tort” also alleges that there was a breach of duty to act a certain way but that duty is imposed by law on just about everyone. You do not have to agree to it.
For example. Arizona Revised Statute 28-701 imposes a number of duties on anyone who operates a car on a road or highway in Arizona. The duty is that you cannot operate a car “…at a speed greater than is reasonable and prudent under the circumstances, conditions and actual and potential hazards then existing. A person shall control the speed of a vehicle as necessary to avoid colliding with any object, person, vehicle or other conveyance on, entering or adjacent to the highway in compliance with legal requirements and the duty of all persons to exercise reasonable care for the protection of others.”
So, for example, say you are driving your car on the Loop 202 and traffic bogs down. In fact, the traffic stops on the highway. You do not notice the stopped traffic until it is too late and even though you jam on the brakes, you collide into the rear end of the car front of you.
You are now in violation of that ARS 28-701 because you were operating the vehicle “…at a speed greater than is reasonable and prudent under the circumstances, conditions and actual and potential hazards then existing. A person shall control the speed of a vehicle as necessary to avoid colliding with any object, person, vehicle or other conveyance on, entering or adjacent to the highway in compliance with legal requirements and the duty of all persons to exercise reasonable care for the protection of others.”
In other words, you were driving too fast to stop in time without hitting the car in front of you.
Everyone who operates a car or automobile in Arizona is subject to that duty whether they know it or not. When you start the car and drive away, you implicitly agree to this and all of the other duties imposed on Arizona motorists by Arizona statutes and case law.
Now violating that duty can have two negative effects. The first, of course, is that the Arizona legal system may impose a fine or other punishment as a way to enforce its laws. This is usually through the issuance of a citation or ticket.
The second effect is that not only have you violated a state statute but you have breached a duty imposed by law on all drivers of automobiles in the State of Arizona. Now if the breach of that duty, driving too fast considering the circumstances, caused injury, say whiplash in the occupants of the auto in front of you then you or your insurance company will have to pay for the damages caused by that breach.
Thus a lawsuit that “sounds in tort” will always allege that the defendant had a duty of care to act a certain way under the circumstances and that the defendant breached that duty. The lawsuit will further allege that the breach of that duty factually and legally led to the plaintiff’s injuries, which could be anything from whiplash to wrongful death which caused the plaintiff to suffer money damages.
“Duty, breach causation and damages” are the “elements” of the tort of ”negligence” which is what most tort cases are all about.
We will go a little more in depth in the next Blog.
Daniel Marco – Marco Injury Law
1166 E Warner Rd #101
Gilbert, AZ 85296