Personal Injury Law (Accidents/Slip & Fall)/Broken Leg
If two guys were fighting and fell on top of me resulting in a compound fracture of my tibia and fibula could I have a personal injury case?
There is no clear answer to your question, especially given so few facts to go on. So the best I can do is to give you some of the legal boundaries to what might be an actionable conduct (i.e. acts that would sustain a lawsuit), and let you decide whether or not to make a claim.
There are two parts to your question, but you have asked only the first part—do you have a claim. The second part is whether or not you could ever collect on any award you gained. We will take your question on by answering first the question as to whether you have a claim, and follow that with the topic of just how do you propose to collect on what you were awarded.
The answer to that first part should be a qualified YES, under most circumstances, you can make a claim, provided, of course, that YOU are not someone who assumed the risk of harm by standing nearby or worse, someone who encouraged the fight.
Let’s dispose of those two defenses right off the top. If you were one who encouraged or egged-on the participants, then you will be said to be in part responsible for the consequences of what you did. Hence, if one of the consequences is injury to bystanders, you would not be in any position to make a claim for that which you fostered. Agreed?
The second part of that defense is assumption of the risk by standing in an area where you should have known you could be hurt. If two people are fighting, do you stand there or do you move away quickly? How can you complain of being hurt if you stood around watching the fight? But what if the fight just happened with no warning to any bystanders and all of a sudden the participants were going after each other and there was neither time to get away nor a clear path to get away?
In that circumstance, then how can you be said to have assumed the risk of harm? There was nothing you could do to avoid being contacted by the fighters. You would win in that second example.
Now, let’s go to the fighters. One problem might be whether you make a claim versus one of them or both of them. Obviously that depends upon the circumstances. If there is clearly only one who is pushing for a fight, and basically starts the fight while the other tries to resist, that would seem to excuse the second participant. But most likely your attorney would just sue both of them and let the defendants raise their own defenses to see if one of them was in fact a reluctant participant.
The basic issue to be resolved is whether or not it is a foreseeable harm to others if one engages in a fight. Again, that depends upon the circumstances, doesn’t it? You fight out on an open field and there is no risk; you fight in a crowded bar, there is a HIGH RISK that your actions will harm bystanders. That is especially true of the nightclub or enclosed area environment where there is no way for bystanders to move to avoid being harmed.
The boundary of the law that we are trying to define is the foreseeability of the harm to bystanders. Fighting is risky behavior. And as the space become more confined and as the number of bystanders increases, the risk of harm to bystanders becomes more and more foreseeable, right?
There is a duty to exercise reasonable care not to cause harm to others. When one engages in risky behavior, then the law says that the actor has a greater or enhanced duty of care not to cause harm to others.
Consider two injuries at the same nightclub. In the first instance, a bystander is injured when a couple who is dancing slips on a small menu paper dropped on the floor by another couple, causing them to fall onto the victim, who was seated. In the second case, two people start a fight and they fall onto the bystander victim.
In the second part of this answer, where we may be trying to find some insurance to pay, it will be important to prove that the actor was NEGLIGENT, and that his acts did not bring intentional harm. The reason being: homeowners’ or renters’ insurance will not cover only negligent acts, not intentional harm. So keep that in mind as we consider these two kinds of injuries in the nightclub setting.
The issues are the degree to which the law will change its definition of reasonable care in each example, given the risk of the actor’s behavior. I will take the dancers first, followed by the fighters.
In the case of the dancing couple, will the law call this a tort (which is a name for a negligent act)? A close question, but all else aside, probably NOT. Their activity at a nightclub is to be expected, to be encouraged. And they did nothing wrong.
OK, what if the couple that caused the injury had many drinks before taking the floor? Probably YES, because it is well understood that having many drinks will adversely impact both perception and balance, and hence what was a relatively safe activity now becomes a bit more risky. And although it may still be a closer question, it is more likely that the second couple will be liable in tort because their consumption of many drinks impaired their ability to see the danger, and even excusing that, if could be shown that a sober couple would not have fallen, but the alcohol impaired their balance. Hence, the alcohol made a safe activity more risky, and the duty of reasonable care shifted. They would be expected to be on a higher standard of care, to exercise heightened awareness of danger because of their diminished capacity to deal with danger.
Jeez, that may not be the clearest of examples, is it? I was trying to illustrate how the standard of reasonable care will shift given the riskiness of the behavior. Anyway, when we come to the fighters, we can see that in the nightclub environment the risk of harm is so high, that there will almost certainly be liability for anyone injured (unless, of course, one of the defenses I mentioned at the beginning applies).
So my expectation would be that—unless you were subject to either of those defenses I mentioned at the beginning—you should be able to state a cause of action that would get by a summary judgment motion to dismiss. What that means is that you would have a claim that could get to a jury.
But of course you do not want to go to a jury. I know that—but what I said just means that the claim would have to be honored by any insurance adjuster. You WILL have to go to a jury unless you can find insurance to claim against. And you might find insurance if either of the participants had homeowners’ or renters’ insurance.
This is getting to HOW do you propose to collect the money you won. Let’s say that you won a lawsuit against one of the participants—or both, for that matter. Now, let’s say that your judgment was for $20,000. How do you propose to collect that amount?
There are three topics I need to discuss with you when it comes to collecting on your judgment. The first, and the best way to collect is if the judgment debtor, that is the one against whom your judgment is entered, has some kind of homeowners’ or renters’ insurance. There are provisions in both homeowners’ and renters’ policies that pay for bodily injury caused by the negligence of the insured person.
NOTICE here, Amanda, that there is no coverage at all for INTENTIONAL acts. Only for negligence. Your argument here would be that while entering into a fight may or may not be an intentional act, the act itself of entering into the fight did NOT include any intent to harm bystanders. Hence, you might be able to get around that exclusion in the policy for intentional acts since there was no intent to bring harm to bystanders. And it is a foreseeable risk that combatants might spill into bystanders, so engaging in a fight where bystanders are at risk is negligent if one of them is injured.
Those are the arguments you need to make. Would I take your case if I were still practicing? Probably not. You have significant injuries, and so the damages will be of moderate value. Big enough to attract an attorney IF there were an insurance policy.
But—and here comes the second topic—if there were no policy, then you are going to have to go after the tortfeasor for his personal assets. Know that you can garnish his wages and bank accounts. And he MUST keep your attorney informed of all bank accounts and all wages. And the judgment is good in most states for ten years, WITH renewal provisions. And in most states it does bear interest at around 12%. So your $20K judgment would be earning interest at $2,400 for the first year alone.
Now for the third topic. The tortfeasor might try to bankrupt your judgment. What that means is he might try to discharge your judgment in bankruptcy court. Since there is no insurance to worry about, in this case you will plead that his actions were INTENTIONAL. The tortfeasor cannot discharge a judgment that is for an intentional tort. Your attorney should be aware of this, or you should advise her to become familiar with it. She will not have to choose between it being a negligent act or an intentional act when she files the lawsuit. Her pleadings can be silent on that topic. It is only once she learns whether or not there is insurance coverage that she will worry about labeling the act as one of negligence or one of intentional tort.
I trust that my extra time here has produced some information that has been of value to you, and thus I would respectfully request that you take the time to locate the FEEDBACK FORM on this site and leave some feedback for me.
Dr. Settlement, J.D. (Juris Doctor)
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