If you’re planning to take legal action after a serious injury or wrongful death in the family, you probably have a lot of questions. The more you understand about the proceedings and what to expect, the less stressful the experience will likely be on you and your loved ones.
One common question asked by personal injury victims is, “What’s the difference between a tort claim and a lawsuit?” We’ll provide the answer in this article.
The Relationship Between Tort Claims and Civil Lawsuits
There are several stages to a tort action. One of the first stages is to bring a tort claim, which is a legal filing in response to one party breaching the duty of care owed to another person (negligence) or intentionally wronging another person. Tort claims can also be filed on the basis of strict liability, in which case negligence or intent is not a precondition.
Personal injury claims and wrongful death claims are two types of tort actions. Once the claim is filed, the opposing party (usually the liable party’s insurance provider) will determine whether to pay a settlement and, if so, how much compensation to offer. If a settlement cannot be reached, the claimant could then file a lawsuit and the case would proceed to litigation and possibly all the way to trial.
Not every tort claim becomes a lawsuit. In fact, more than 90 percent of personal injury cases are resolved before going to court. This is usually a good thing for all parties involved since litigation can be expensive and time consuming.
Tort Claims: A Brief Guide for Accident Victims
A tort is committed when one party commits a civil wrong that results in a loss or injury to another party. Tort claims may be related to physical or psychological injuries, financial losses, or property damage.
It’s not uncommon for a victim to give notice of a tort claim to the other party before a formal complaint is filed. This notice typically includes:
- A description of the cause of action;
- The legal basis that justifies liability; and
- A demand for damages.
If the notice of claim does not result in a settlement, you could then file a formal complaint. If the formal complaint does not result in a settlement, filing a lawsuit would be the next step.
There are several factors that can influence the likelihood that a settlement will be reached. Examples include:
- Police attended the accident scene and created a report that corroborates the victim’s version of events;
- The liable party admitted fault;
- Surveillance cameras recorded the incident;
- The accident scene was carefully documented;
- Eyewitnesses saw what happened;
- The victim sought immediate medical care;
- The victim followed his or her doctor’s instructions exactly and did not engage in any activities that would aggravate the injuries;
- The victim did not provide any recorded statements to the opposing party that could be misrepresented to dispute liability or damages;
- The victim did not post anything on social media that could be used to dispute the claim; and
- The amount of compensation being sought isn’t substantial.
As you can see, several of the factors mentioned above are entirely within the control of the accident victim. If you intend to file a claim, it’s important that you’re proactive about giving your case the best possible chance of resulting in a settlement. You can do this by getting an official diagnosis right away, obeying your doctor’s instructions, staying off social media, and directing all correspondence from the opposing party to your personal injury lawyer.
Types of Tort Claims
Although each tort claim is unique, all such claims fall into one of the following categories:
- Intentional Torts: An intentional tort is a civil wrong that occurs when a tortfeasor (alleged wrongdoer) intentionally causes damages to another party. Common types of intentional torts include battery, libel, false imprisonment, misrepresentation, fraud, and slander.
- Negligence Claims: The basis of most tort claims, negligence occurs when one party breaches a legal duty of care owed to another party. For example, all motor-vehicle drivers owe a duty of care to other people on the road to follow all traffic laws and avoid dangerous behaviors. If a motorist causes an accident because he or she breached this duty of care by texting, speeding, or committing another violation, anyone who suffered an injury or loss as a result could file a negligence claim against that motorist.
- Strict Liability Claims: In tort law, strict liability refers to the imposition of liability on a party without a finding of fault. In California, strict liability applies to many dog bite and product liability If strict liability applies to your case, it won’t be necessary to prove negligence or intent as a precondition to obtaining a financial recovery.
Civil Lawsuits: Common Types
There are many types of civil lawsuits. Examples include:
- Contract actions for breaches such as a failure to perform according to contract terms or supplying defective goods;
- Family law issues including cases of child custody, divorce, and child support determinations;
- Class action cases, in which several parties are bringing the action for the same tort;
- Civil lawsuits connected to real estate or real property such as property defect nondisclosures by a former property owner or disputes over property lines; and
- Private nuisance actions brought when a party’s use or enjoyment of their property is harmed by another, and they seek an order that the offending party cease the nuisance.
Remedies Available in Tort Actions
While criminal cases may result in criminal penalties like incarceration, driver’s license revocation, and the loss of certain rights, a successful civil lawsuit would result in a civil remedy such as:
- Temporary or permanent injunctive relief ordering a party to perform or refrain from performing certain acts;
- Monetary relief such as compensatory or punitive damages;
- Declaratory relief resolving a pending legal uncertainty;
- Specific performance ordering a party to perform a specified act; or
- Rescission allowing a party to a contract to cancel that contract.
Call (562) 206-1939 to Speak with a Personal Injury Attorney in Long Beach
Your Injuries Are Personal to Me
After a serious injury or wrongful death in the family, you probably just want to recover the compensation you deserve and move on with life. At the Law Office of Michael D. Waks, we will do everything in our power to help you obtain a fair settlement without having to file a lawsuit and enter litigation. We will pursue that goal by performing a thorough investigation, gathering all evidence of liability and damages, and using proven strategies during settlement negotiations.
If the opposing party refuses to pay a fair settlement, you can rest assured that attorney Michael Waks has the trial experience to represent your interests in court. He has achieved substantial settlements and verdicts in cases of varying complexity against large corporations and insurance companies.
We offer free, no-obligation consultations, so you won’t have to pay anything to get answers to your questions. You can send us a message online through our Contact Page or call our office 24 hours a day, 7 days a week at (562) 206-1939 to schedule case review. If you cannot come to us, we will come to you.
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