In our previous article, we established that American universities and colleges are vested with the responsibility parallel to that of a business owner for conforming to reasonable care, caution and prudence towards college students, who in turn are bestowed upon the status of invitees, entitling them to exercise their rights to seek compensation for any personal injury consequent to the default by former in performing its duties.
Now the critical question is, how do these college students proceed?
Having well-established personal injury, jurisprudence has made the procedure to seek compensation duly organized and effectively accessible. More so, with American courts being aware of the rights of the college students, it becomes all the more advantageous to appropriately exploit the legal recourse.
Should I hire an attorney for personal injury?
The first question that springs to a student’s mind are whether he should proceed with his claims with or without an attorney.
Generally speaking, if a person has sustained a substantial injury due to the negligence of another person, it is a wise idea to secure the attorney’s services. More so, when the negligent party is a college or a university, the laws vary extensively with the institution’s nature and location. For example, a public or private college may be held liable, depending upon facts and circumstances of the case, for negligence in the State of Georgia. On the contrary, while a public college located in the State of New Jersey enjoys sovereign immunity in case of personal injuries arising out of their negligence, a private college may exercise the charitable immunity defense to save itself from corresponding liabilities. Therefore, the heterogeneous practices in American federalism have posed compelling circumstances to seek advice from an attorney to ensure the one is adequately compensated for the injury suffered.
Moreover, any legal consultation may reduce one’s sense of perplexity and enable an aggrieved party to make a better decision. Such interviews are generally free of cost, and even if the victim does not proceed to receive the professional services, he will get a better sense of understanding of his prevailing situation. Hence, a win-win for the aggrieved.
In a recent case, a student at the University of South Maine encountered a slip and fall accident resulting in leg fracture and ligament tears. The student resorted to an informal dialogue with the university for seeking compensation and involved an attorney only a few days before the expiry of her 180-days deadline notice. Naïve and ignorant, she defaulted in serving a formal notice within the limitation period. The Trial Court found, and the Supreme Court of Maine affirmed that non-compliant with the statutory notice requirements ‘without a reasonable cause,’ her right to receive compensation stood forfeited.
Hence, it can be helpful to consult with an attorney well before the statute of limitations runs out on one’s injury.
Is there a specialized attorney to seek advice for personal injury?
Unlike most other countries, personal injury law, in the United States of America, has acquired the stature of a specialized area of practice akin to corporate law, anti-trust law, and arbitration law. Going a step further, personal injury law has given birth to niche areas that involve personal injury lawyers specializing in claims for motor accidents, medical malpractice, dog bites, etc.
In case of negligence claims against colleges and universities, personal injury attorneys specializing in claims for premises liability shall be the most suitable one to seek advice from.
What comprises a consultation with a personal injury lawyer?
During a consultation with a personal injury lawyer, the lawyer would seek details about the mishap to ascertain:
- whether there was any negligence at the end of the college or university and if there could be a claim against the university;
- whether the college or university is protected by any immunity under the state or federal law;
- the severity of the injury sustained and medical records;
- insurance coverage, if any.
After scrutinizing the furnished documents and the client’s supplied information, the attorney will suggest the appropriate course of action and provide a likely estimate on the quantum of compensation that could be claimed in the given circumstances. If upon consultation, the aggrieved finds it suitable, he may proceed to appoint an attorney.
What are the methods of seeking damages for a personal injury?
As mentioned in Birdsall v. Coolidge (“Birdsall”), damages are awarded as compensation if the plaintiff sustains an injury due to any action or inaction constituting negligence on the part of the defendant. Damages can essentially be sought by two methods – firstly, settlement and secondly, by a trial.
According to the statistics released by the U.S. government, approximately 95% of the personal injury cases are resolved via settlement before trial. Of the remaining that go to trial, nearly 90% of the verdicts are passed against the plaintiff. But those given in the plaintiff’s favor award a significantly high amount of compensation. Since the stakes in a personal injury trial are very high, the decision to go to trial must be chosen wisely.
Once appointed, the attorney would muster evidence, for example, the surveillance video, witness testimony, photos of the scene of injury, etc. to buttress the aggrieved’s case and issue a demand notice, to the university or college, for claiming damages towards the injuries sustained. It is followed by subsequent negotiations to arrive at a fair settlement amount.
While settlement may be viable for most of the cases, there are instances where, despite aggressive negotiations, the parties fail to reach a consensus on the quantum of the settlement amount. In such circumstances, the plaintiff may find a trial to be a befitting approach after deliberating over the distinct aspects of the case with the attorney. Though the intricacies involved in the trial may vary from state to state, the basic process is more or less the same.
What is the basic trial procedure in case of a personal injury?
A personal injury lawsuit shall commence with the filing of the complaint by the aggrieved student (“plaintiff”) against the allegedly negligent college or university (“defendant”). The ultimate objective of instituting such a suit is to seek damages for the injuries sustained and the subsequent losses, economic and non-economic.
The plaintiff shall file a complaint and summons with the appropriate court. A copy of both shall be adequately served onto the defendants in harmony with the state’s enforced procedural law. Upon the service of process, the defendant shall submit its response, admitting or rejecting the allegations made by the plaintiff in his complaint, exercising the immunity defense, if any. The defendant may even assert a counter-claim against the plaintiff. After the initial pleadings stage, the parties to the suit shall investigate to discover the evidence in the hands of the opposite party to support its stance in the case.
At this stage, instead of initiating the trial, the parties may plead for motions such as a motion for summary judgment and motion for default judgment and pray to the court to pass a ruling. Additionally, to prevent any trial, the attorneys may even make conscious attempts to employ, or the court may direct, if it deems fit in the subsisting situation, alternative dispute resolution techniques, such as settlement, arbitration, or mediation circumvent the hardships of trial.
If the case remains unresolved upon exhaustion of all the aforementioned alternatives, it advances to the trial stage. Here, as the case may be, a judge or jury hears the matter and determines the preponderance of the evidence and decides whether the defendant is legally liable to compensate the plaintiff for the injuries’ alleged consequence of the former’s negligence. The duration of trial may vary, depending upon the case, from a couple of days to multiple months.
In case of disagreement or dissatisfaction with the judgment, either party may prefer an appeal. After hearing the parties and reviewing the order of the trial court and the briefs submitted, the appellate court may either affirm or reverse the verdict, or if it finds a grave error in the decision made by the trial court even order for a new trial.
What is the standard of evidence in proving personal injury?
In matters of personal injury, including those arising out of the negligence of a university or college, evidence plays a pivotal role in establishing the defendant institution’s liability. The indispensability of evidence is not confined to establishing the existence of duty and foreseeability of such a misfortunate incident. Still, it extends to establishing the conscious negligence on the part of the institution in fulfilling its responsibility as the proximate cause of the injury.
The Court of Appeal, in Saelzler v. Advanced Group 400, observed that a court might pass a summary judgment in favor of the defendant if the plaintiff, despite proving the college’s duty to render protection and breach of the said duty, fails to establish its negligence as the proximate cause of the injury suffered.
In the language of the law, the ‘preponderance of the evidence’ is the evidentiary standard to hold a university or college liable. In one of the personal injury cases arising out of premises liability, the Supreme Court of Texas applied the ‘more likely than not’ standard to the evidence produced by the plaintiff, thereby reversing the Court of Appeal’s judgment and holding that Walmart had no constructive notice of the existence of the asserted dangerous condition and therefore, was not liable to pay any compensation to the plaintiff. The Court, while arriving at its decision, relied on Henderson v. Pipkin Grocery Co. wherein it was explicitly stated that the burden of proof is on the plaintiff to show that either the defendant was aware of the dangerous condition or such a condition had existed for a long time for the defendant to be au courant with it.
The plaintiff may present before the court all admissible evidence to establish the prerequisites for claiming the damages. In a slip and fall accident, the plaintiff produced, among other evidence, the evidence of two prior falls occurred at the same site to establish the negligence of the University as the cause of her injury. Where a woman tripped over a step in a motel’s parking lot, the court relied on the expert testimony to conclude that the stage did not accord with the building code and found the defendant liable to pay damages.
What types of damages may I be granted as a consequence of personal injury?
In matters about personal injury, the plaintiff may be granted two types of damages, depending upon the facts and circumstances of the case – compensatory and punitive.
In Birdsall, the United States Supreme Court held that the compensatory damages are damages suffered by the plaintiff and shall be precisely commensurate with the injury. The intent behind awarding such damages is to indemnify the plaintiff of the expenses already incurred as well as the future expenditure to be incurred towards the natural and direct consequences of the defendant’s negligent act. It may be general damages, i.e., compensation for immediate losses, long-term effects, and special damages, i.e., medical bills, loss of wages, litigation cost, etc.
Punitive damages are awarded when the defendant has been found guilty of gross negligence or intentional or malicious misconduct. The jury, in Bruecknar v. Norwich University, awarded punitive damages amounting to USD 1.75 million, in addition to the compensatory damages of USD 488,600, on account of, among other things, deliberate infliction of emotional distress and negligent supervision caused by the cadre, while acting within the scope of employment of the university, thereby making the university liable.
How is the amount of compensation decided for personal injury?
The monetary compensation granted for personal injury includes both tangible/economic damages such as medical bills and loss of wages, and non-economic damages. Non-economic damages refer to the non-pecuniary loss from a personal injury that constitutes the litigation subject matter, such as pain and suffering and loss of consortium. One of the best examples could be the affirmation by the Court of Appeals of Oregon to grant non-economic damages of USD 1.012 million to the injured husband’s wife on the ground of loss of consortium. It has been noted in An Exploration of “Non-economic” Damages in Civil Jury Awards, the ratio of economic to non-economic damages, in case of personal injury due to premises liability, is 2:3.
The Court of Appeals of Georgia, in the case of Lester v. S.J. Alexander, observed that the burden of proof lies on the plaintiff to put forth with reasonable certainty the loss suffered as a consequence of the negligence of the defendant. Such damages cannot be granted based on speculation. Where a plaintiff claims economic expenses, he or she shall segregate the costs not connected with the subject matter of litigation and show only those borne on account of the alleged incident before the judge or the jury. On the contrary, no singular intelligible premise exists to accurately calculate non-economic damages caused to the plaintiff. As noted by Prof. Ogus, in one of his publications, ‘just, fair and reasonable’ is the sole standard to calculate non-economic damages. The final decision lies in the hands of the judge or the jury, as the case may be.
An aggrieved but ignorant plaintiff may relieve a negligent defendant from his liability. A well-established substantive and procedural law for personal injuries from premises liability, as well as surging appreciation of the rights of students and duties of colleges and universities, has put the plaintiff at good standing to make well-informed and well-calculated decisions.
By Anushri Maskara, Attorney
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