The Bushman Law Group

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Personal Injury

Personal Injury is a well-known legal field and is abundant with myths. Personal Injury can occur from negligence or intentional actions. Intentional tort actions are from assaults, batteries, trespasses, nuisances, false imprisonments, malicious prosecutions, conversion, trespass to chattels, and the intentional infliction of emotional distress.

An assault is an act intended to cause either harmful or offensive contact with another person or apprehension of such contact, and that creates in the victim's mind a reasonable apprehension of an imminent battery.

A battery is an unwanted touching which is neither consented to, excused, nor justified. The best example of a battery is when someone hits another individual. An assault would have occurred if the victim could see the punch coming, but for any number of reasons the punch misses the victim.

A conversion occurs when another wrongfully exercises or assumes authority over the victim's goods, depriving the victim of possession; or any act of dominion wrongfully exerted over property in denial of the owner's right, or inconsistent with it.

A trespass is an unauthorized entry onto property which results in interference with the property owner's possessory interest therein. Thus, in order to maintain a cause of action for trespass to land, the plaintiff must have had possession of the land, either actual or constructive, at the time the trespass was committed.

A false imprisonment occurs is the restraint of one's liberty without any sufficient legal excuse.

Malicious prosecution occurs when a prosecution is (1) malicious; (2) instituted by or with the cooperation of the defendant; (3) without probable cause; and (4) terminated in a manner not unfavorable to the plaintiff.

Defamation, is where a defendant has published a false factual statement that concerns and harms the plaintiff or the plaintiff's reputation. The plaintiff also must show that the defendant knew that the statement was false, or, believing that the statement was true, lacked a reasonable basis for such belief, or acted negligently in failing to determine the facts on which the publication was based. “Expressions of opinion, however, are constitutionally protected and are not actionable as defamation.”

Negligence actions occur when a person does not act according to how a reasonable person would have acted.

For example, where a reasonable person would follow traffic laws, one who does not follow the traffic laws, and crashes into another, is liable for damages caused by the negligent act because that person should have followed the traffic laws since that is what reasonable people should do in society.

Another commonly seen scenario is when a customer is in a store, slips and falls. The question in this case is not whether a reasonable business owner should keep a floor clean, but how often should they inspect and clean the floors.

In all negligence actions there are a core of common elements. The elements are duty, breach, causation, and damage. In order for a plaintiff to succeed, each element must be present. Duty is the obligation of another person or entity to perform some reasonable act. Breach is when the person or entity with the obligation does not perform the reasonable act. Causation is the link between the injury suffered by the plaintiff and the Defendant's breach of duty. Causation must be related in time, place, and manner to the Plaintiff's injury. Damage is the injury to the plaintiff. Damages can be compensatory or punitive. Compensatory damages are to compensate the plaintiff for past, present, or future costs and the most common examples are medical bills or loss income. Punitive damages are when the actions of the defendant are intentional or so negligent that it is reckless where an additional monetary award will deter the defendant from engaging in the action that caused injury to the plaintiff.