Personal injury claims: proof, losses and deadlines

California’s official court self-help guide describes the basic situation plainly: if you are hurt because of someone else’s actions, you may decide to sue them, and the injury can be physical, emotional or psychological (California Courts: personal injury cases). Common examples on that page are car crashes, slips and falls, workplace injuries, and assault or other intentional harm. Workplace injuries may involve a workers’ compensation claim instead of, or as well as, a lawsuit.

Some kinds of injury claims have their own guides. A fall on someone else’s property is covered in our premises liability guide, and an injury caused by a defective item is covered in our product liability guide.

First steps after an injury

What follows is general information, not a list of legal duties. Many of these steps are practical suggestions, and the rules that do apply depend on where the injury happened and what caused it.

Get medical care and keep the records. Your health comes first. As a practical matter, medical records also become proof: California’s court guide lists medical bills and doctor reports among the evidence to keep, and Texas’s insurance regulator tells drivers who saw a doctor or went to the emergency room to give their insurer copies of the medical reports and bills (Texas Department of Insurance: auto insurance guide).

Report the incident where that applies. For car crashes, the same Texas guide says to call the police if anyone was injured or if a driver who hit you left the scene, and it warns that uninsured motorist coverage will not pay for a hit-and-run you did not report to police. Some states also require a report to a state agency. In California, the DMV says you or your insurance agent, broker or legal representative must file an SR-1 report within 10 days if someone is injured or killed, or if property damage passes the threshold the DMV sets, and that this is in addition to any police or insurance report (California DMV: SR-1 report). If you are hurt in a store or on other property, telling the owner or manager and asking for a copy of any incident report is a sensible step, though not one these sources make a rule.

Photograph the scene and your injuries. The Texas guide says to take pictures of the accident scene and note the time, date, exact location, and conditions such as weather. The California court guide lists photos of the scene or injuries as evidence to keep.

Collect witness names. Texas’s regulator advises getting the names, addresses and phone numbers of any witnesses, and notes that independent witnesses can help prove fault.

Notify your own insurer under your policy’s notice terms. The Texas guide says to tell your company about an accident as soon as possible, because most companies have deadlines for filing claims. Read your own policy for its notice terms, since those set what you agreed to.

Preserve evidence. Keep damaged property, clothing, messages and photos in their original form. Our guide to spoliation of evidence explains why destroying or altering evidence can hurt a case.

The legal reason for the claim

A lawsuit needs a cause of action, the legal reason you can sue. The California guide gives two common ones: negligence, where someone acted carelessly and caused injury, and battery, where someone hurt you intentionally. It also stresses that you must prove every part of the cause of action you choose.

For negligence, those parts are typically a duty of care, a breach of that duty, harm, and causation, according to the educational summary in Cornell’s Wex encyclopedia (Wex: negligence). The broader map of tort categories is in our tort law guide.

Proving your losses

Damages are the money you ask for. The California guide suggests listing every loss the injury caused: medical bills, lost wages, ongoing treatment, emotional harm, and future problems from the injury. It adds a practical warning: some damages are easy to prove with bills, while others, such as emotional distress, are harder to value. The court guide offers no formula for what a claim is worth, and neither does this one.

Damages meant to make up for a loss are called compensatory damages. Cornell’s Wex summary says courts calculating them often look at the fair market value of damaged or destroyed property, lost wages or income, and necessarily incurred expenses, and that courts may include emotional distress, though they apply it inconsistently because it is hard to put a price on (Wex: compensatory damages). In practice, losses tend to fall into a few groups:

• Medical expenses: bills for past care and, where the injury calls for it, ongoing treatment.
• Lost earnings: wages or income you lost because of the injury.
• Property damage: repair or replacement of things that were damaged, such as a car.
• Pain and suffering: physical pain and emotional harm, which have no bill behind them.

The first three are usually called economic damages and the last non-economic damages. Our guide to economic vs. non-economic damages covers how each is proved and where some states limit them. When an injury is fatal, family members may bring a wrongful death claim, which Cornell’s Wex describes as a civil cause of action brought by family members and dependents (Wex: wrongful death). See our guide to survival actions and wrongful death.

How shared fault can reduce a recovery

The person who was hurt may also have been partly careless. Under comparative negligence, a court reduces the damages by the injured person’s share of the fault, according to Cornell’s Wex summary (Wex: comparative negligence). Wex describes three approaches. In “pure” states, including California, you can recover something even if you were mostly at fault. In most states, a modified rule bars recovery once your share of fault reaches a set level. A few states and Washington, D.C. still follow contributory negligence, which can bar recovery if you contributed to the harm at all.

Insurers raise the same issue outside court. Texas’s regulator warns that the other driver’s insurer might say both drivers were at fault and want you to pay some of your costs (Texas Department of Insurance: dealing with the other driver’s insurance). Our guide to comparative vs. contributory negligence explains how each rule works.

Deadlines are set state by state

There is no single nationwide deadline for personal injury claims. Each jurisdiction sets its own statute of limitations, and the rules can change with the kind of claim and the kind of defendant. Our guide to statutes of limitations for civil claims explains how these deadlines work.

As one example, California’s court guidance says you usually have two years from the date of the injury to sue, and that the deadline is shorter if you want to sue a government agency. That is a California rule, not a national one; check the law of the state where you would file.

Who and where to sue

The California guide says people often sue the person who caused the injury, the owner of the car or property, or an employer if the person was working at the time. In California you usually file in the county where the injury happened or where the defendant lives or does business. Other states have their own venue rules.

An insurance claim is not a lawsuit

An insurance claim and a court case are different processes. The California guide suggests that if you have insurance, you talk to your insurance company: it may pay some costs so you do not have to sue, or you may sue only for what insurance does not cover. If someone accuses you of causing an injury, it advises checking whether your insurance covers it, because your insurance contract may require you to report it.

Your own insurer and another person’s insurer are different relationships. Your own policy is a contract you can read. The other driver’s or property owner’s insurer is not your insurer, and a lawsuit, if one is filed, usually names the person or business responsible. Texas’s insurance regulator, for example, publishes separate guidance on dealing with the other driver’s insurer (Texas Department of Insurance). For disputes with your own insurer, see our insurance disputes guide.

Evidence to keep

The California guide lists photos of the scene or injuries, medical bills or doctor reports, witness statements, and police reports. In federal court, discovery can require each side to share witness identities and related documents, and the plaintiff must prove the case by a “preponderance of the evidence,” meaning more likely than not (U.S. Courts: civil cases). Keep originals, and read our guide to preserving evidence in a dispute before deleting anything.

A short checklist

• Get medical care and keep the records. Save every report, bill and receipt from the start.
• Write down witness details. Names, addresses and phone numbers, while memories are fresh.
• Collect the proof of loss. Medical bills, doctor reports, pay records and repair estimates.
• Keep photos, police reports and messages. Do not edit or delete them.
• Read your own insurance policy. Note any reporting requirement and what it covers.
• Check any state crash report rule. California, for example, requires an SR-1 to the DMV within 10 days in some crashes.
• Find the deadline for your state. Check for shorter rules for government defendants.
• Consider a lawyer for serious cases. The California guide flags severe or long-term injuries, large damages, unclear fault, or several possible defendants.

This guide is general legal information, not legal advice, and does not cover medical malpractice. Deadlines and procedures vary by state; consult a lawyer licensed in the relevant jurisdiction about a specific injury.