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FAQ - Environmental Law

Environmental-Based Personal Injury

Environmental-Based Personal Injury

Introduction

Personal injury actions involve the liability of one party to another for harm done to either the body or, in some cases, the emotions or mental health. Personal injury actions can often be complicated, and can be very dependent on the facts of the particular case, especially when environmental causes are alleged to be involved. Given this complexity, a lawyer can be an extremely important advisor to any person contemplating filing an environmental-based personal injury lawsuit. Many lawyers specialize in the area of personal injury and many lawyers focus, in particular, on representing either the plaintiff or the defendant in environmental-based actions.

Personal Injuries Can Arise from Environmental Causes.

Personal injury actions require, by their very nature, that someone be injured. The requisite injury can either be physical or, in some cases, emotional. The general goal of personal injury actions is to place the blame for the injury on the parties who caused it and to require them to compensate the injured parties for the losses sustained.

The number of environmental-based personal injury cases has increased dramatically in recent years as a result of heightened awareness of and activism over injuries caused by environmental pollutants, forces, and devices. Due to the nature of pollutant exposure and the long latency periods of many diseases associated with toxic substances, large populations often are exposed to toxics. As a result, many environmental-based personal injury cases are brought as class actions. Examples of environmental-based personal injury litigation over the years include cases concerning Agent Orange use in Viet Nam, toxic waste disposal in the Love Canal area of New York, radiation from the Three Mile Island nuclear power plant accident, and the chemical cloud released by the Union Carbide plant in Bhopal, India.

Not every injured plaintiff is entitled to recover damages for the injury he or she sustains, however. Besides an injury, the plaintiff must establish, through evidence, that the defendant is legally liable for his or her injuries. Liability for environmental-based personal injuries can be grounded in a number of different legal theories, including negligence, premises liability, breach of warranty, misrepresentation, and strict products liability.

No matter which legal theory is pursued in an environmental personal injury case, the plaintiff must first prove that he or she was exposed to the toxic substance, energy, or device. In some cases this may be easy, such as in the disaster in Bhopal in which there was a known cause of injury-a toxic cloud that was released from a chemical plant. Other types of exposure are more difficult to prove, such as exposure to a tasteless, but harmful, water pollutant.

A plaintiff also must prove that the defendant in some way caused his or her injuries. Proof of causation has two parts. First, a defendant's action or inaction must have been the "cause in fact" of a particular injury. In other words, the defendant's act or omission must have been a necessary antecedent to the plaintiff's injury. Cause in fact can be difficult to prove in an environmental-based personal injury case, because the cause of many diseases, like cancer, is uncertain; the effects of toxic-substance exposure may take years to show up; and plaintiffs often have been exposed to other potentially harmful substances besides the one at issue. Experts in various fields often must testify at a trial about what they believe could have caused a plaintiff's injury or disease.

The second kind of causation a plaintiff must prove is that a particular tort was the proximate cause of his or her injury. Proximate causation involves questions of whether the defendant had a duty to the plaintiff, and whether the particular injury was foreseeable to the defendant. Although proximate cause sounds complicated, in environmental-based personal injury cases, if cause in fact is established, often proximate cause is also established.

In some situations, the defendant's conduct, while questionable, does not rise to a level that entitles the plaintiff to recover. For example, if a plaintiff knowingly and willfully chooses to encounter a known hazard, the law holds that he or she has assumed the risk of injury and that therefore the defendant is not liable. This theory would apply, for instance, in a case in which the plaintiff disregarded the defendant's warnings to use a potentially toxic product in a well-ventilated area and instead used the product in an enclosed closet, suffering respiratory difficulties as a result. That plaintiff would probably be unable to recover money damages because he or she knew of the potential hazard and willingly chose to encounter it.

Finally, an environmental-based personal injury plaintiff must be able to prove that he or she suffered damages. A person injured by an environmental tort may be able to recover monetary damages for past and future medical expenses, past and future pain and suffering, lost wages, loss of future earning capacity, and punitive damages. Punitive damages, which can reach into the millions of dollars, go beyond compensating the plaintiff for his or her actual losses and are intended to punish the wrongdoer and deter future similar conduct.

Conclusion

Environmental-based personal injuries are serious business, whether you are the plaintiff or the defendant. If you should find yourself in the position of a potential plaintiff or defendant in a toxic tort lawsuit, it is imperative that you contact an attorney at once. When seeking an attorney to represent you in connection with such a claim, be sure to investigate his or her background in environmental or personal injury law. Ask questions about his or her training and experience so that you can make an informed decision about whether this is the right person to zealously represent your interests. Only with a veteran attorney on your side can you be sure to achieve an outcome that best compensates you for your losses or minimizes the damages that you have to pay out.

If you think you may be a member of a large group of people who were injured by the same environmental toxin, or if you are a defendant in such a suit, be sure to also investigate the attorney's background in class action litigation. Class action lawsuits present unique challenges, and the best advocate is therefore one familiar with not only the substantive aspects of the claim, but also the procedural requirements. Many attorneys have experience in both environmental toxic torts and class action litigation. Choose the attorney who is right for you.

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DISCLAIMER: This site and any information contained herein are intended for informational purposes only and should not be construed as legal advice. Seek competent legal counsel for advice on any legal matter.

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