Other than those who fight competitively, most of us will go through life without ever having to punch, scrape, or elbow our way out of an argument. After all, we’re a civilized society. For some people, though, there are times when a physical altercation becomes inevitable.
If you’re the victim in a fight, you may have a basis for a legal fight case against the person who instigated the fight, or his employer. As the victim of an attack, you may be entitled to compensation for your injuries and resulting damages (medical bills, out-of-pocket expenses, lost wages, and your pain and suffering).
Building a Personal Injury Claim After a Fight
Culpability means fault (i.e. guilt). You must show that the attacker, and no one else, was the person responsible for starting the fight (excluding other factors that may have contributed). Your attacker must have struck you without legal cause. Legal cause can include self-defense, defense of an innocent third person, defense of property, consent, or your contributory negligence.
Example: Attacked without cause
Jeff was at a football game. While cheering on his team, Mike began to make derogatory remarks to Jeff about Jeff’s team. Jeff ignored Mike. Mike’s derogatory remarks escalated, but Jeff continued to ignore them. Finally, Mike reached out and punched Jeff. Within seconds, Mike and Jeff were fighting.
In this case, Mike was culpable. He was clearly the perpetrator of the attack against Jeff. Mike attacked Jeff without legal cause (self-defense, defense of an innocent third person, defense of his property, or consent), and there was no evidence Jeff contributed to his own injuries.
To succeed in a personal injury claim against your attacker, you must prove culpability to the exclusion of your attacker’s legal defenses. If you can’t exclude (disprove) your attacker’s defenses, you’ll have a hard time moving on to the next phase of your injury claim.
Possible defenses include:
- Self-defense – evidence showing you struck, or intended to strike the attacker first
- Defense of third party – evidence showing your attacker struck you because you were assaulting another person, or there was a credible threat you were about to harm another person
- Defense of property – evidence tending to show the attacker struck you to prevent you from taking or destroying his property
- Consent – evidence you consented to the fight; that you knew or should have known as a result of your consent to fight, there was a possibility your attacker might strike first and injure you
- Contributory negligence – evidence you contributed to the attack because of your drunkenness or stumbling into your attacker; or there was unreasonable provocation or another inappropriate confrontation
Direct and Proximate Cause or Result
Once you establish your attacker’s culpability (guilt) and exclude his or her legal defenses, your next step is to prove the unlawful attack was the direct and proximate (legally acceptable) cause of your injuries. In other words, you must directly connect the aggressor’s actions to your injuries and resulting damages.
Using our previous example, when Mike struck Jeff, he broke Jeff’s nose. Mike’s punch to Jeff’s face was the direct and proximate cause of Jeff’s broken nose. If Jeff refused medical attention, and several days later a serious infection developed in Jeff’s nasal cavity, it’s arguable that while Mike’s punch caused Jeff’s broken nose, the subsequent infection was not the direct result of Mike’s attack. It was due to Jeff’s refusing medical treatment.
Liability is a “first cousin” to culpability. Once you prove your attacker is the culpable party by identifying him as your attacker and eliminating his legal defenses, and you prove the attack was the direct and proximate cause of your injuries, your attacker then becomes liable for those damages.
Liability is the term used to describe the legal responsibility your attacker has to compensate you for your injuries and resulting damages. Proof of culpability, minus legal defenses, plus direct and proximate cause, equals liability.
Your next step is to produce evidence to prove culpability, direct and proximate cause, liability, and damages. It’s really not that difficult. There are a few steps to follow. These methods of evidence-gathering are essential to succeed in your personal injury fight case.
If you were in a fight initiated by another person, call the police. There’s nothing more valuable than a police arrest report putting the blame on your attacker. When the police arrive at the scene, they will in all likelihood separate you from your attacker. The police do this not only to eliminate further fighting, but also to question each participant independently. If there were multiple parties involved in the fight, the police will question them, too.
The police will closely examine your injuries and those of your attacker. This helps them determine the type and severity of the aggression. If the injuries appear serious, they’ll call the paramedics. They also may take photographs of your injuries and your attacker’s, if any. The police then question witnesses to the fight. This is often challenging because witnesses tend to take the side of their friends, regardless of fault.
Finally, the police determine who they believe is at fault. In almost all cases, they will arrest the attacker on the spot. They then take him to the local city or county jail.
The police enter all the information they gathered into the arrest report. It’s a goldmine in support of your fight case. The report is usually available within three or four days after the arrest. You can purchase a certified copy from the police or sheriffs’ department for a nominal fee.
Witnesses are invaluable. Finding independent witnesses who were at the scene of the fight and who aren’t your friends or family are the most helpful. While not dismissed, friends and family are seen as partial with a built-in prejudice against the other person. It’s amazing how two sets of witnesses can have completely different descriptions of events. Whether friends, family, or independent witnesses, they are all important to your fight case.
Ask witnesses to write down exactly what they saw and how the fight began. Honesty is always the best policy. If there’s a chance a prospective witness believes you were the aggressor, or your attacker had one or more legal defenses, don’t use the witness. Grab any paper you can find. Be sure the witnesses sign and date their statements. Keep the statements that are supportive of your fight case and throw out those that aren’t.
At this point, don’t be concerned about notaries, sworn affidavits, or lawyers. A written statement is valid as long as no one coerced or pressured the witness. Notaries and sworn affidavits are only an issue if someone were to later dispute the authenticity of the written statement. That’s not likely to happen, especially since the witness is available, if necessary, to testify it was his or her statement.
Photographs and videos
These days, with YouTube, Facebook, and other social media, someone can upload an account of just about any event in seconds. While speaking with witnesses, try to find one or more who videotaped the fight. Ask the witness to email you the video and ask him to include the date and time stamp. A clear video can vindicate you and dispel any of your attacker’s claims you instigated the fight, or that he had any legal defenses to excuse his actions.
Still photographs are also excellent tools. They’re especially helpful to show the type and severity of your injuries and those of your attacker. Because it takes time for some injuries to show up, take photos of your injuries at the time of the fight, and 24 to 48 hours later when the swelling may become more pronounced.
Medical records, bills, etc.
To conclude your injury claim against the attacker, you must prove your actual damages. Without proof of real damages, there’s no compensation. You can’t succeed in a personal injury claim just because you’re extremely angry about with the attack. Insurance companies don’t pay on anger or frustration claims. They only pay for tangible evidence of damages.
Proof of damages includes copies of your medical records, your medical and therapy bills, and receipts for your out-of-pocket expenses for medications, bandages, etc. Additional proof includes a written verification from your employer detailing the dates and hours you were absent from work, and the amount of wages you lost while recovering.
You can determine the amount of your pain and suffering by multiplying the total of your actual damages by a factor of anywhere from two to four or five times, depending upon the seriousness of your injuries.
Insurance Companies and Lawsuits
Unfortunately, most people don’t carry insurance for fights. Insurance companies certainly don’t offer insurance to cover acts of intentional violence. It’s against public policy to do so. If your attacker acted independently, you may have to pursue your injury claim against him or her personally. That means unless he or she agrees to compensate you for your damages, and that’s highly unlikely, you probably need to file a lawsuit.
Depending on the amount of your damages, you can file a small claims lawsuit against your attacker. In your suit, you can request compensation for your actual damages and for your pain and suffering up to the small claims court’s jurisdictional limits.
If you succeed in your small claims lawsuit, the court issues an order compelling your attacker to pay you. If your attacker doesn’t have enough money, you can still file and enter the court’s judgment in your county’s records department. Your court-ordered judgment will accrue annual interest at the lawful rate. When your attacker tries to get a loan, or buy a car or a home, the judgment will appear on his credit background check. That may result in his finally paying you.
If your attacker was working at the time of the attack (such as a bouncer at a bar), you can file your claim against the attacker’s employer. If the attack occurred during the “scope of his [your attacker’s] employment,” the employer may be ultimately liable.
When to Hire an Attorney
If your injuries are soft tissue, including cuts, scrapes, sprains, or torn muscles, you can probably handle your own claim either by way of small claims court or through the employer’s insurance company. If your injuries are the more serious hard injuries, such as head trauma, broken bones, scarring, or other injuries requiring substantial treatment, you need to hire an injury attorney.
Experienced personal injury attorneys can file lawsuits, take depositions (recorded, sworn statements), and conduct other pretrial discovery (getting all the other side’s documents) meant to prompt substantial settlements or force a judge or jury to decide the case. Most personal injury attorneys don’t charge a fee for an initial office visit. If your injuries are serious, visit with several law firms to find the right attorney for you.
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