A tort is an civil (not criminal) injury to an individual that was caused by another individual or by the acts or omissions of an entity such as a business or a municipality. It can be an intentional act such as an assault or an unintentional that involves negligence so long as the person or entity that caused the injury owed a duty of care to the injured person. Examples of tort claims that an individual may bring are:
- Motor vehicle accidents
- Slip and fall
- Premises liability
- Drug defects
- Defective devices or equipment
- Defective roadways
- Workplace injuries
- Sexual harassment
- Medical, legal or other professional malpractice
- Dog bite
- Intentional acts such as assault, battery, use of a dangerous weapon, sexual assault
Most tort claims are brought under the principle of negligence. To prove negligence, an injured party or claimant must prove each of the following elements:
- The offending party or defendant owed a duty of care to the injured claimant to act reasonably or to exercise ordinary care
- The act or failure to act by the defendant was a breach of the duty of care
- The breach was the cause of the claimant’s injuries
- The claimant suffered an injury so there are monetary damages
Some torts are strict liability where intent is not an element of the tort such as dog bite claims where an injured party need only show that the defendant owned the dog and that the animal caused the claimed injuries and damages. Strict liability also applies in product defect claims in Massachusetts where negligence need not be proved.
What Constitutes a Tort Claim?
Most tort claims are covered by insurance. A defendant generally has auto liability insurance that will pay for any proven damages in case the defendant negligently caused an injury accident. An injury that results on someone’s private property is typically covered by the owner’s homeowner’s or renter’s insurance such as dog bite or a slip and fall. Entities such as department stores, restaurants, and other businesses carry commercial liability insurance in case of a slip and fall, food poisoning, assault, or other injury caused by that business’s failure to protect the claimant from the harm that resulted.
A personal injury attorney will file a claim on behalf of an injured client with the defendant’s insurer. If the defendant lacked insurance such as in a motor vehicle accident, the claimant could file the claim with her own insurer as part of an uninsured motorist claim. Some entities are self-insured, but if the defendant has no liability coverage, the claim will be against the individual or entity personally.
Generally, an insurer will undertake an investigation of your claim to determine the following:
- Liability (were you comparatively negligent or is someone else or entity responsible)
- The nature and extent of your injuries
- If the accident was the cause of your injuries (did you have a pre-existing condition?)
- If your treatment and care was reasonable and necessary
- Did you experience loss of earnings that were medically supported?
- Are your claims of future treatment and loss of wages reasonable and supported by credible evidence?
Your personal injury attorney will obtain any police reports, witness statements, investigative reports, school and/or employment records, medical records and bills, and reports of any accident reconstruction experts, medical specialists, or forensic economists. Once your treatment is completed or you have reached maximum medical improvement, your attorney will prepare a demand package and letter with a settlement figure to the insurer that will begin the negotiation process.
If a settlement cannot be reached, then litigation may ensue. In Massachusetts, you have three (3) years from the date of the accident to file your claim in the appropriate court.
Should you have a tort claim against a municipality or a city, county, or state employee or agency, you must bring your claim under the Massachusetts Tort Claim Act that requires you to present written notice of your claim to the relevant municipal department or agency within two (2) years of the act. These claims are typically rejected and should only be handled by an experienced personal injury attorney.
There are some claims such as defective drugs or other products that have allegedly harmed thousands of persons that can become class action claims or lawsuits. You have the option of joining the class or pursuing the claim individually. The benefits of a class action are that only a few members of the class will have their claims tried in court but all court rulings will apply to the class. Also, any discovery in litigation is shared among the class members and their attorneys as well as the expenses although compensation for each claimant can be very limited.
Similarly, a multi-district action involving mass torts and injured parties can allow an attorney to represent many claimants and which permits more autonomy for the claimant that is less expensive for each individual claimant and can result in more compensation than if the claimant was a member in a class action.
Damages in Tort Claims
Damages in a tort claim can include:
- Past and future medical expenses
- Past and future wage losses
- Emotional distress
- Disfigurement or permanent disability of loss of a bodily function or organ
- Loss of employment capacity
- Pain and suffering
- Spousal claim for loss of consortium
Punitive or exemplary damages, which are designed to punish the defendant and to deter similar conduct by others, is only available in wrongful death claims in Massachusetts.
Retain a Personal Injury Attorney from Burns and Jain
Tort claims are often complex and include diverse issues of liability and damages. By retaining the highly experienced personal injury attorneys from Burns and Jain, you can be assured of having the best opportunity for a satisfactory result. Call us at (617) 227-7423 for a free consultation about your injury claim.