“Personal injury” is a generic name given to a huge category of tort actions. A ‘tort’ is a wrongful act, intentional or accidental, that causes injury to another or damage to another’s property or reputation. Usually, personal injury claims in Massachusetts deal with injuries caused by negligence, such as poor driving, faulty products, inadequate medical care, or improperly maintained property.
The injury in question can be physical or psychological but, to be actionable, it must come about as result of the negligence of someone who owed the injured party a duty of reasonable care, such as a doctor, an employer, a property owner, the owner of a business, or a manufacturer of products. Under Massachusetts law, the plaintiff (the person who was injured and is bringing the law suit), must show:
(1) The defendant owed a duty of reasonable care to the plaintiff;
(2) The defendant failed to uphold that duty of care;
(3) The defendant’s failure to uphold his duty caused plaintiff’s injury; and
(4) The plaintiff suffered damages as a result of that breach of duty.
Massachusetts law also recognizes a concept known as ‘comparative negligence,’ under which a plaintiff can recover damages for injury caused by another party even if the plaintiff was also negligent, as long as the defendant was ‘more negligent’ than the plaintiff. In such cases, the amount of the plaintiff’s recovery is reduced based on a percentage of negligence determined during the trial.
If, using documents, photos, witnesses, expert witnesses, and any other forms of admissible evidence, the plaintiff establishes that the defendant breached a duty of care and caused an injury to the plaintiff, the plaintiff must then establish what his damages are. Massachusetts law allows for the recovery of many types of damages, including: medical expenses, damage to property, time lost from work, permanent disfigurement or disability, emotional distress (including depression, shock, or damage to family relationships), physical pain and suffering, and any other costs that are a direct result of his injury.
Finally, those who have suffered a personal injury must be aware of the ‘statute of limitations,’ a time limit beyond which a claimant loses his right to file a lawsuit. In Massachusetts the statute of limitations varies depending on the type of claim. Generally, the period specified in the statute begins to run when the claim accrues, that is, when the injury is suffered. Claims for professional malpractice, fraud, personal injury, defamation, injury to property, or products liability must be brought within 3 years of the injury.
There are exceptions, however, such as the “discovery rule.” In cases where the injured party is not aware of the cause of his injury, or that he has been injured, the period specified in the statute does not begin to run until the injured party discovers—or should reasonably have discovered—his injury. So, for example, although medical malpractice claims must ordinarily be commenced within three years of the act or omission causing the injury, in cases where a foreign object is left in the body, the period of limitations does not begin to run until the injured party discovers or should have discovered the object.
A statute of limitations may also be tolled—or stopped—in certain cases. For example, if an emancipated minor or a person suffering from temporary mental incompetence suffers an injury, the period specified in the statute of limitations does not begin to run until he turns eighteen or regains his competence.