Personal Injury

Injury law is primarily tort law. So what is a tort? (No, it's not a French pastry.)

A Georgia statute defines a "tort" as "the unlawful violation of a private legal right other than a mere breach of contract, express or implied," and states that "a tort may also be the violation of a public duty if, as a result of the violation, some special damage accrues to the individual."

Every tort claim must include four basic elements:

• Duty. The defendant must have a legal duty of care toward the plaintiff.
• Breach of duty. The defendant must have violated a legal duty of care toward the plaintiff.
• Damages. The plaintiff must have suffered a form of harm for which the law authorizes an award of monetary damages.
• Proximate cause. The defendant's breach of a legal duty must be related to the plaintiff's injury closely enough to be considered at least one of several dominant cause or legal causes of the injury.

Private duties may arise from contracts or other private relationships between parties. For example, a contract to repair a car creates a duty to perform the repairs skillfully, carefully, and in a workmanlike manner. However, a violation of that duty supports a tort claim only if the resulting damage goes beyond a mere failure to receive the expected benefit of the contract.

Public duties may be based upon a statute or local ordinance. An extremely simple example is the statutory duty not to run a stop sign.

Tort law serves several important purposes, not least of which is a civilized way to resolve disputes when one party's unreasonable conduct injures another. Even the folks who complain of too many lawsuits shrink from proposing a return to duels and bloody reprisals. Tort law provides a system for compensating injured parties in a way that bears a reasonable relationship to the conduct of the parties and the degree of injury. It allocates risks of injury in ways that our society has deemed appropriate. Last but not least, it defines duties to other people in a practical way that provides economic incentive to take care not to hurt other people.

Tort law has many sources.

First, the common law of torts evolved through centuries of court decisions, originally in England and later in America.

Second, statutes define much in tort law. Georgia is one of the states that has codified much of its common law heritage of tort law, and modified it from time to time in legislation, including "tort reform." Courts also look to statutes on other subjects in determining the rights and duties of parties in a tort case.

Third, contractual relations may create rights and duties which give rise to tort claims between parties.

Fourth, courts may look to persuasive court decisions in other jurisdictions, "Restatements" of the law drafted by groups of prominent judges and law professors in the American Law Institute, and a large body of scholarly legal publications.

In Georgia, courts can respond to new circumstances with the statutory rule that "[f]or every right there is a remedy; every court having jurisdiction of the one may, if necessary, frame the other."

Tort law continues to develop, in the centuries-old tradition of the common law, as courts deal with the facts of specific cases, and as legislators react to pressures from conflicting political forces, including large political campaign contributions from those who seek to severely restrict the rights of individuals to be compensated for serious injuries caused by defectively manufactured products or the negligence of another.

About Ken Shigley:-

Atlanta GA Personal Attorney at Law