Personal injury cases

On this page:

• Types of personal injury cases
• Basic things to consider before suing
• Forms you can use in a lawsuit
• When talking to a lawyer is particularly important

Types of personal injury cases

There are many types of personal injury cases. In most cases, the injured person (the plaintiff) is suing a person, business, or both (a defendant) because the defendant accidentally or intentionally hurt the plaintiff and caused them an injury of some type. For example, car crashes, slip and falls, or workplace injuries, are all common types of personal injury cases. Workplace injuries will probably involve a workman’s compensation case, and it may also be important to pursue the person who caused the workplace injury.

Sometimes, a legal case involves both personal injury and property damage. For example, a car crash might damage your car and hurt you. If that happens, then your case involves property damage and personal injury. Get more information about property damage cases.

Basic things to consider before suing

Deadline to sue: the statute of limitations

In general, you have to sue someone (file the papers in court) within 2 years from the date of the injury. There are different rules for suing the government with shorter time limits. If you're suing, make sure you're well within the correct time period.

If you're defending yourself, and the person who sued you waited too long, you can ask the judge to dismiss the case.

Who to sue: It's not always easy to know who is responsible for an injury

Generally, a person suing will try to sue everyone responsible for an injury. For example, in a car accident, you may sue the driver who is at fault as well as the owner of the car. If the driver was on the job then the employer could also be sued. Or, in the example of an accident in a store, someone might sue the store owner as well as the company that owns the building the store is in, if they are different.

Sometimes, it’s hard to tell who owns a business. A business may be owned by an individual or a corporation. You will need to do research to tell who owns a business so that you sue the right individual or corporation.

Where to sue: Which county should the case be in (venue)

For personal injury cases, you generally have to sue where the injury occurred or where the defendant lives or does business. 

Insurance: Check to see if insurance covers injuries and treatment

If you have insurance, talk to your insurance company first and see what they need you to do. It’s possible your insurance company will cover all or some of your costs and you don’t have to sue, or can sue only for the amount of your deductible or whatever your insurance will not cover.

If you are accused of injuring someone, checking to see if your insurance policy will cover any of the damages might be a good idea for you. Your insurance contract may even require you to report it. It may be that your insurance company pays and you won’t get sued.

Causes of action: What are the causes of action and what is the proof

A plaintiff needs at least one cause of action to file a lawsuit. In basic terms, a cause of action is a reason that the law recognizes that allows someone to seek compensation for injuries and harms. This gives the injured person the right to sue in court. For example, a defendant acting in a careless manner and causing injury (negligence) is a cause of action. Intentionally hitting someone and causing injury is a cause of action (battery).

Every part (element) in that cause of action has to be proven by the person bringing the case (the plaintiff). The defendant should also be aware of what the plaintiff needs to prove and how they can defend themselves.

Damages: What damages have you suffered and how much to ask for

Think about what damages you have suffered and are going to ask for. This could be as straightforward as only your medical expenses. But it could be more complicated if you missed work or the damage is ongoing and you don’t know the full extent of it, or you may not be able to work in the future. Emotional distress is recognized by the law as requiring compensation even though there is no bill for it and it may be harder to put a money value on.

Proof: What evidence do you have to prove your side

Collect and keep safe evidence proving your position. Examples of evidence include pictures of the accident scene, pictures of vehicle damage or physical injuries, medical bills, doctor’s reports, witness statements, and police reports. There are rules of evidence that must be followed to have a court consider your evidence.

Forms you can use

In civil cases, most of the court forms are optional. You can use the optional forms if they work for your case, or you can create your own documents called “pleadings.” Forms can be easier to use when they are available because they help you understand what you can or need to include.

For the plaintiff

As a plaintiff, you always need a Summons and a Complaint. The complaint must include at least one cause of action.

• You must use the Summons (form SUM-100) and a Civil Case Cover Sheet (form CM-010)
• You can use Complaint–Personal Injury, Property Damage, Wrongful Death (form PLD-PI-001) plus at least one case of action or create your own.

There are several causes of action forms you can use if they fit your situation:

• Cause of Action–Motor Vehicle (form PLD-PI-001(1))
• Cause of Action–General Negligence (form PLD-PI-001(2))
• Cause of Action–Intentional Tort (form PLD-PI-001(3))
• Cause of Action–Premises Liability (form PLD-PI-001(4))

If you believe the defendant is not only responsible but acted in such a bad way that they should have to pay more money as punishment for their behavior, you can also ask for exemplary damages (damages to make an example of and to punish the defendant). These can be hard to prove.  You have to show the defendant is guilty of oppression, fraud, or malice under the law. To ask for exemplary damages, you can use Exemplary Damages Attachment (form PLD-PI-001(6)).

For the defendant

As the defendant, you have the right to respond to the lawsuit. If you have not done so already, contact your insurer.  If there is no insurance or they will not cover it then you will probably lose if you do not defend the case. Generally, you must respond within 30 days of being served with the Summons and Complaint. There are several options for how to respond, you can learn more in “Decide What to Do if You are Sued”.

You can also sue the plaintiff back if you feel like the plaintiff caused you damages as well. In some cases, you can even lose the right to sue them later if you do not do it in the same lawsuit. Or, you can sue someone not already part of the lawsuit (a third party) that you think is to blame for the damage or injury, fully or in part.

• To answer the complaint (which is one of your options to respond), you can use ANSWER–Personal Injury, Property Damage, Wrongful Death (form PLD-PI-003) or create your own answer. You may also be able to use a form called a General Denial (form PLD-050). Read the instructions on that form very carefully to make sure you can use it in your case.
• To sue the plaintiff back or add a someone to the case (a third party) because they may be at fault, you can use Cross-Complaint–Personal Injury, Property Damage, Wrongful Death (form PLD-PI-002). This form includes several causes of action. Make sure you check and fill out at least one.

When talking to a lawyer is particularly important

Any side can benefit from consulting a lawyer. But, there are times when it is particularly important to get advice from a lawyer. For example:

Major injuries or unknown long-term injury. The personal injury suffered resulted or could result in disability or the extent of the injury and damages are not yet fully known. For example, there may be questions about whether the plaintiff can ever work again because of the injury or have other issues for the rest of their life. Or the injury is so significant or the potential damages (medical bills or losses in the future) are very large. 

Cases where it's not clear who is at fault.  A lawyer can especially help in cases where is confusion as to who really is at fault or there are several people who could be at fault.