Badger Lawyer's Personal Injury Causes Of Action

A Cause of Action is a legal description of a wrong for which monetary recovery is available under the law. In other words, you can’t sue someone for just any reason. It has to be a reason the law recognizes. So it may make you mad if someone flips you off. Or it may hurt your feelings if your significant other breaks up with you. Or it may infuriate you if a confidant tells everyone your dirty (but true) little secrets. But you can’t sue anyone about life’s petty indignities. The law – like your dad probably did at one time in your early life – says we’re all grown ups here. Life isn’t always fair, and you have to put up with unpleasant people sometimes.

If what happens to you is more than just passing irritation, embarrassment or hurt feelings, you may have a “cause of action.” If you were genuinely damaged – suffered a loss that can be compensated – then you may very well have a cause.

The next step is to figure out exactly which cause of action your case fits into. The most common causes are listed below. You should consider all of them, because frequently one set of facts can fit more than one cause, and you can file as many causes as you have. Note that this section of the site is devoted only to personal injury related causes. There are other types of causes, for example, for Business Litigation, Bankruptcy, Breach of Contract, Real Estate, or Divorce and so on. Be sure to check out these areas of BadgerLawyer too. There are also areas of law not yet covered on this website, such as employment or worker’s compensation. We hope in the future to add topics relating to these areas.

Check these topics for more information:

Negligence
Gross Negligence
Wrongful Death
Defamation
Emotional Distress
False Imprisonment
Civil Rights Violation
Malicious Prosecution
Invasion of Privacy
Abuse of Process

Negligence

Negligence is the granddaddy of all causes of action. Almost every personal injury case ever filed has negligence as one of its causes of action, if not its only cause of action. This is because negligence is a very broad concept and almost any set of facts will fit within its boundaries. This includes any kind of vehicle accident, from automobile to motor boat. It includes most “premises liability” cases - cases where you are injured on someone else’s property because if improper maintenance or construction. Most medical malpractice cases are based on negligence, and quite a few governmental liability cases are negligence based. That list does not end here.

To prove a negligence case, you have to show the following elements.

Existence of a duty of care on the part of Defendant.
A breach of that duty of care
A causal connection between defendant’s breach and the plaintiff’s injury
Actual loss or damage caused by defendant’s breach of duty.

To put it in sentence, a negligence action is available against a person who “breaches a duty that causes you damage.” The first step is to establish a duty. While the law does define some duties, you are allowed to invent duties of your own. If a Court agrees with you, and that will be the standard in your case. Keep in mind that the judge will determine duty based on whether a reasonable person would have done under the circumstances. So, in a car accident case, courts have previously found that a driver has a duty to observe the road ahead of him and avoid collisions. However, if you were a pedestrian who was hit with a piece of gravel kicked up by car tire, you would probably have a hard time convincing a judge that driver’s had a duty to watch out for little pieces of gravel in the road and avoid hitting them because they might get kicked up and hit someone waling down sidewalk. More than likely, drivers have no duty to observe that closely.

No matter how you choose to word your duty, it is important that the person you plan to sue has breached the duty. If the person did not violate any duty, then they didn’t do anything wrong. So, for example, if a construction company has the duty to try to detect underground gas pipes before digging, and they use fancy equipment to try and detect gas pipes, then they did not breach their duty, even if they still hit a gas pipe that causes an explosion. Sometimes accidents happen without the benefit of negligence.

Next, even if someone breaches an accepted duty, there is no case unless that breach of duty caused damages. For example, suppose the construction company did fail to check for underground pipes and was responsible for causing an explosion. If a man in a building in a block away had a heart attack simultaneously to the explosion occurring, would he be able to sue the construction company for their negligence? The answer would depend on whether his heart attack was caused by the sudden shock of the explosion or whether it was caused by heart disease due to years of poor diet. Finally, there must be legally recognized damages. If the shock wave from the explosion knocked a little girl over, then the negligence of the construction company had a causal connection to what happened to the little girl, and the little girl was unharmed, so she had no damages.

If all four elements of negligence are present, then you have a negligence cause of action.

Gross Negligence

Gross negligence is when someone does something that has become really obviously wrong and they really should have known better. Gross negligence has basically the same elements as negligence, but the breach of duty is one that is so obvious that it is inexcusable. Like the trucking company that hired a driver who had a number of prior OWI convictions. Or the taxi company that never serviced the brakes on their vehicles. Or the store that knew one of its freezers was constantly leaking water onto slippery tile. It is one of those things that you look at and say to yourself, it is just a matter of time before someone really gets hurt.

People who are injured often like the idea of alleging gross negligence because it feels good to slam the person who harmed them. But you should remember that it is harder to prove someone is grossly negligent than to prove they are simply negligent, and the recovery is pretty much the same regardless. The only time gross negligence should be alleged is in those rare cases (often against governments) where gross negligence is a requirement for recovery.

Wrongful Death

To have a claim for wrongful death you must be able to show that someone’s wrongful act caused the death of a particular person, and that you are a relative of that person to a sufficient degree that the law permits you to sue on behalf of the decedent. The wrongful death law is really just a way of transferring the right to sue from the person who has died to a close relative who is living. So, for example, if your parent were killed in a car accident in another state due to the other driver’s negligence, without the wrongful death statute, you would have no right to sue. After all, the other driver’s negligence did not cause you any personal injury. Your parents, however, were caused the most serious injury of all, but because they are deceased, they cannot bring a lawsuit. The obvious unfairness of this situation led to the development of wrongful death law, which gives you the right under statute to pursue rights for your deceased loved ones, that would otherwise be barred by their death.

A wrongful death action may be brought by the personal representative of the deceased person’s estate, or by any person who stands to benefit from a recovery. The person who stands to benefit, under the law, is something of a moving target, but it goes roughly like this:

If there is a surviving spouse, the spouse is the owner of the action.
If there is a spouse and minor children, the court will provide for the protection of the children out of proceeds as well.
If there is no spouse, the recovery is divided among all children.
If there are no children, the recovery goes to the decedent’s parents.
If there are no parents, the recovery is divided among the decedents’ brothers and sisters and to the children of any deceased brother or sister.
If there are no brothers and sisters, the recovery goes to the grandparents and their children.

Defamation

Many people think of defamation as harm caused to you by someone else saying something bad about you. Strictly speaking, that is not correct. Defamation is when you are harmed because someone says something false about you. If what they say is true, it doesn’t matter how much it hurts you. It is not defamation.

Defamation can be either spoken or written. When someone says something false about you, it is called slander. When someone publishes in writing something bad about you it is called libel.

To prove defamation you have to prove the following:

The existence of a false statement about you.
The statement was communicated by speech, conduct or in writing to a third party.
The communication is unprivileged, (such as a person’s statement of their own opinion)
The communication tends to harm your reputation in the community or make people not want to do business with you.

To recover for slander, you have to prove additionally that you suffered actual, monetary damage from the slanderous statement, unless one of the following exceptions apply:

The statement was an accusation of certain crimes.
The statement was accusation that you had a loathsome disease (such as a venereal disease)
The statement accuses a woman of being unchased
The statement would tend to affect a person’s business, trade, profession.

If one of the exceptions applies, you don’t have to prove actual damages.

Emotional Distress

Intentional infliction of emotional distress is one of the more commonly filed causes of action, because it sounds so easy to prove. It is also one of the causes of action that leads to the most court battles because, in fact, it is not nearly so easy to prove as it sounds. To prove an IIED claim, you have to show the following:

The defendant intended to cause emotional distress
The defendant’s conduct was extreme and outrageous
The defendant’s conduct caused the emotional distress
The plaintiff suffered an extreme disabling response to the conduct.

It is isn’t enough that emotional distress results form a defendant’s conduct,. You have to prove that the person intended to cause you distress. As you can imagine, that is easy to deny, and hard to prove. Next, you have to prove the conduct was extreme and outrageous, that is was a total denial of the your personal dignity or that it was so grossly out of bounds, that everyone who saw it would think it is a horrible thing to have done. Carelessness, bad manners, insults and the like to do not count. Then there is the disabling response. To show that you have to be able to prove, at a minimum, that you are unable to function in other relationships because of the emotional distress caused to you. As you can see, proving an IIED is less straight-forward than it sounds. It is rather common for IIED claims to be filed any time there are hard feelings, which is most of the time. It is just as common for them to be thrown out before trial because the claims don’t live up to the high standards of actual elements of cause of action.

False Imprisonment

The cause of action for false imprisonment is established by proving the following:

Someone can find you
That person intended to confine you
You are aware that you are being confined
You did not consent to confinement
The confinement was unlawful

False imprisonment can be used in any context. It is commonly used in cases of arrest without probable cause when one is suing police over police misconduct cases.

Civil Rights Violation

A law suit for a civil rights violation seeks to compensate you for a violation of constitutional rights. The statute has a rather broad reach, applying to any government action depriving anyone of their constitutional rights.

The statute authorizing these lawsuits, 42 U.S.C. § 1983, specifically says:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

The most important thing to remember is that you can only file this lawsuit against a government entity acting in its official capacity. If you get thrown out of a private restaurant because of your race, you can’t sue for civil rights violations, because the restaurant is not part of the government.

The second most important thing to remember is that this is a federal cause of action. That means that no matter what court you file in, the defendants can “remove” it to federal court if they choose.

The third most important thing to remember is that civil rights suits are far more complex than regular lawsuits. Governments have a number of immunities available to them, and you are likely to see a motion to dismiss based on absolute or qualified immunity if you pursue a civil rights claim.

Finally, the upside of constitutional claims is punitive damages and attorneys fees are recoverable, and state caps on what you can collect from the government are eliminated.

Malicious Prosecution

Malicious prosecution is a cause of action which alleges that someone started a previous case (usually criminal) against you for an improper purpose (usually to get even with you for something else). To establish your claim, you must be able to show:

prior institution of judicial proceedings against you
proceedings were started by defendant, or at his urging
proceedings must have terminated in your favor
there must have been malice in instituting the former proceedings
there must have been lack of probable cause for institution of proceedings
there must have been injury or damage resulting to you in the former proceedings.

Invasion of Privacy

The right of privacy is recognized in Wisconsin. If your privacy is unreasonably violated, you can get an injunction, damages and attorney’s fees. To establish invasion of privacy, you have to prove one of these:

Your privacy was intruded on in a manner that was highly offensive to a reasonable person, in a place that a reasonable person would consider private or in a manner which is actionable for trespass.
The use, for advertising purposes or for purposes of trade, of your name, portrait or picture, without having first obtained your written consent.
Publicity was given to a matter concerning your private life, of a kind highly offensive to a reasonable person, if the defendant has acted either unreasonably or recklessly as to whether there was a legitimate public interest in the matter involved, or with actual knowledge that none existed. (It is not an invasion of privacy to communicate any information available to the public as a matter of public record.)
Publishing nude pictures of you without your consent.

Abuse of Process

This cause of action is available when a person uses legal process (like a lawsuit) for an improper purpose. Some examples I have seen include filing a criminal complaint alleging child abuse to gain an advantage in a divorce case, or filing a lawsuit against someone so that you can force them to submit to a deposition, and then question them about an unrelated matter. The basic idea is the person starts a legal proceeding for an ulterior motive, and then misuses the process to get to that motive.

It is difficult to succeed under this cause, because you cannot win if the person you are suing doesn’t misuse the process. In other words, it does not matter if the real reason you are sued is the guy wants to get even with you for something. If he has any legitimate basis for the lawsuit, it does not count as abuse.