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Injury: You have probably heard where there is a wrong there is a remedy. It’s not true. “Where there’s a wrong, there may be a remedy,” would be more accurate. Very few laws allow you a right to sue without an injury or damages. Negligence law requires you to prove damage, whether to yourself, or your property. Normally, mental anguish damages also require that you show you have suffered a physical injury before you can recover mental anguish or pain and suffering damages.

Let’s look at our Dumb Drunken Driver example. Dumb Drunken Driver gets behind the wheel. He’s driving down the road, when you are walking on the side walk. You hear screeching tires. You look up, to see Dumb’s car coming straight toward you. You start to run. He bears down, you jump, and within inches, he nearly kills you. But, fortunately for you, he misses, and plows into a closed shop doing thousands of dollars in damages to merchandise.

You may have been scared out of your wits. You may be too terrified to walk the streets any longer, but in most states, you would have no case. Negligence law usually requires that you actually be physically injured. Thus, if the only thing that happened to you was being scared. There would be no case to prove.

Note: there is a tort called negligent infliction of emotional distress that some states have allowed. Under this theory, you usually have to prove

that the distress suffered was severe, or that it can be medically diagnosed. These cases often come up when one sees a loved one, such as a spouse, parent, or child, hurt or killed in an accident. In some states if you started having post traumatic disorder, you might have a case. Please don’t determine on your own if you have a case just because what you have read here. Consult a lawyer. You can always contact us.

Furthermore, you will have to prove your damages in court. In the last few years, several states have curtailed your right to damages. Some states have put severe caps on damages, especially in medical malpractice cases. Others have even restricted medical bills.

Causation: It’s not enough jut to prove that you have damage’s either. To recover, you have to prove that the damages were caused by the defendant’s negligence. In many case, this may not be difficult. However difficulty often comes up in the case of medical malpractice. When someone is under medical care, they are usually already sick. When person gets worse after medical treatment, the question often comes up as to whether they would have gotten worse anyway. For example, suppose you go to the doctor with a lump in your breast. The doctor fails to find cancer. A year later, you find out that you have cancer. Now, assuming the doctor’s failure caused the cancer to go on for a year, you would still have to show that his negligence caused your damage, because it certainly did not cause the cancer. Considering that people often get early treatment, and still die, and other get late treatment and still live, such a case is a legal nightmare of the issue of causation.