Charlotte Personal Injury Attorney Matthew R. Arnold of Arnold & Smith, PLLC answers the question “What can you sue for in a personal injury case?”
Many people who are injured as a result of the negligent or intentional conduct of a third party wonder if the law provides any remedy for their loss or injury.
A person or business can sue for just about anything. Whether a lawsuit sets forth a cognizable cause of action is another matter. If a lawsuit fails to set forth a cognizable cause of action, it is subject to being dismissed by a court long before a jury can ever delve into the issues in a case.
So what is a cognizable cause of action? Cognizable means “recognized.” Do the courts recognize the cause of action you are bringing or which has been brought against you? Answering that requires an understanding of what, exactly, a “cause of action” is.
A cause of action is, generally, the facts and law that underlie a person’s or business’s claims in a court of law. If the person making the claims—the claimant—lacks the requisite facts or law to support a claim, the claim is subject to dismissal by the court.
Of course, most claimants are familiar with the facts of a case; even if a claimant was rendered unconscious, in most cases a witness or witnesses can testify to what occurred.
In addition to the requisite facts, however, it is necessary in most personal injury cases to have an understanding of the types of causes of action available to claimants. The most common type of personal injury claim is a “negligence” claim. A common fact pattern is as follows: Driver had a duty to exercise reasonable care; Driver breached that duty by running a red light; Driver struck pedestrian, who was walking in the crosswalk; pedestrian was injured as a result of Driver’s negligence.
In order to survive dismissal, the pedestrian must demonstrate that the Driver had a duty, breached the duty, and as a result of the breach caused injury to the pedestrian. Failure to allege these facts can result in dismissal of the pedestrian’s case.
Negligence actions arise out of the common law—a set of legal traditions dating back to British Common Law. Most lawyers learn the basics of common-law causes of action in law school and hone their pleading and litigation skills in practice and by learning from their peers and elders.
Sometimes states create new causes of action by passing a statute—or law—that gives people the right to sue for an injury. Other times—as in the case of a new anti-bullying statute passed in California—written laws contain language that does not make it clear as to whether a person affected by the law can bring a cause of action in a court of law.
California has acted to end bullying in the workplace by mandating anti-bullying training and education of employers and supervisors. The law is ambiguous as to whether a failure to provide such training and education would give rise to a lawsuit brought by an employee who alleges workplace bullying.
This is where lawyers move the law forward. A lawsuit will likely be brought on behalf of a bullied employee. A court will decide whether the new law provides a cause of action, an appeal will be made, and then an appellate court will decide whether the new law provides a cause of action.
If the legislature does not like the result, it will change the law to either eliminate the cause of action or to explicitly provide it.
The bottom line is, Can you sue? Yes. Will your lawsuit survive? Give me a call, and we will figure that our together.
If you or someone you know has any questions regarding potential personal injury claims, feel free to contact the experienced personal injury attorneys at Arnold & Smith, PLLC in Charlotte, North Carolina for a free consultation. Call toll free at (955) 370-2828 or click here for additional resources.
About the Author
Matthew Arnold is a Managing Member of Arnold & Smith, PLLC, where he focuses on the areas of family law, divorce, child custody, child support, alimony and equitable distribution.
Mr. Arnold was raised in Charlotte, where he graduated from Providence Senior High School. He attended Belmont Abbey College, where he graduated cum laude, before attending law school at the University of North Carolina at Chapel Hill on a full academic scholarship.
A board-certified specialist in the practice of Family Law, Mr. Arnold is admitted to practice in all state courts in North Carolina, in the United States Federal Court for the Western District of North Carolina, in the North Carolina Court of Appeals and Supreme Court, and in the Fourth Circuit United States Court of Appeals in Richmond, Virginia.
In his free time, Mr. Arnold enjoys golfing and spending time with his wife and three children.
“Dont Bullying” by Alejandrasotomange – Own work. Licensed under CC BY-SA 3.0 via Wikimedia Commons – http://commons.wikimedia.org/wiki/File:Dont_Bullying.jpg#/media/File:Dont_Bullying.jpg
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