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Origins of Personal Injury Laws in the U.S. Including California

“No man is above the law and no man is below it; nor do we ask any man’s permission when we ask him to obey it.” Theodore Roosevelt

As a personal injury attorney who represents people who have suffered catastrophic injuries or death of themselves or a family member, I am constantly asked many, common questions at the onset of representation.  Some of these come in the form of apprehension on the part of hurting or grieving people to enter the legal process of filing a personal injury or wrongful death claim.  Oftentimes, I hear that people’s personal moral or religious beliefs conflict with suing people or filing claims.  While I do not wish to invalidate such beliefs, I think that much of this thinking is based upon a misunderstanding of the fundamental purpose of our civil justice system in America and the principles upon which it is based.

Legal Origin of Tort Law in the United States Including CA

tort law in America, U.S. Personal Injury Laws

Tort Law in America

From time immemorial people have been suffering wrongs at the hands of others.  During medieval times, fines were set when a person harmed another or destroyed their property but, many times these fines were paid to the king or the head of the clan.  As Anglo-Saxon laws developed, these “private wrongs” became known as “torts” and a system began to develop whereby redress was required to compensate the victims.  America’s founding fathers adopted this concept wholeheartedly in establishing the legal system in the U.S. and, in fact, felt so strongly that civil redress was a fundamental and “inalienable” right that in 1789 James Madison introduced the 7th Amendment (as part of the Bill of Rights) which states as follows:

“In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.”  Seventh Amendment to U.S. Constitution

From there, the U.S. judicial system continued to develop over time and has always valued the right of people to seek compensation from a money damages award for the wrongdoing or negligent acts of other persons or entities.  These laws broadened and concepts such as strict products liability which holds manufacturers and sellers of dangerous goods strictly accountable for injuries caused by their products have become the law of all 50 states.  In fact, while states differ in many respects as to what needs to be proven in a personal injury claim and what damages may be recovered, there is no state in the United States of America today (including California) where a person does not have a fundamental, constitutional right to redress against persons who cause injury or harm to them or their family.

What is the Fundamental Purpose of the U.S. Civil Justice System?

The fundamental purpose of the civil justice system in the U.S. can be summed up in that one word: “Justice”.  Justice has been defined as,  “the impartial assignment of merited rewards or punishments according to the rules of law or equity.”  In other words, every civil society must have a system of rules that determines when a wrong has occurred that merits compensation as a means to an equitable result.

While there are many things that happen in life that are the result of bad circumstances or “dumb luck”, there are many other instances where people suffer harm because other people have acted unreasonably and without prudence.  For example, if a person chooses to consume drugs or alcohol beyond the legal limit and get behind the wheel of a car or punch it through a red light in violation of the rules of the road and kills or injures someone, it is not fair to ask the injured person or the family of the dead victim to bear the financial cost of the incident.  Not only should the driver be punished through the criminal justice system (potentially), they should be required to pay directly or through their auto insurance carrier for present and future medical costs, lost income, and additional money to fairly compensate the injured person or their family for distress related to the incident.  Likewise, if a company decides to sell a product or engage in actions which they know or should know might harm people and persons do, in fact, suffer harm, fairness requires that the corporation who caused injury be made to pay based upon a impartial determination by a jury as to what that claim is worth including the value of the emotional toll of the injury or death.   Fundamental concepts of fairness and right and wrong demand such a process.

Importance of Personal Injury Attorneys in U.S. Legal System

The U.S. civil justice system is not perfect but, it is the best means we have at attempting to right the wrongs and invoke fairness in a world where people are either negligent or, sometimes, outright choose to harm other people.  For better or for worse, our system is set up as an adversarial one where persons claiming damages for harm suffered (called “plaintiffs”) assert these claims against the persons who caused the harm (called “defendants”).

The vast majority of the time, defendants have insurance coverage for negligent acts and as “insureds” they are represented by claims adjusters and lawyers hired and paid for by insurance companies.  The plaintiff, on the other hand, is not assigned a lawyer to advocate for their position.  They are free to choose legal counsel or not.

Because insurance companies would like to minimize payments of claims, they are willing to pay for the cost of arguing issues of liability and damages to reduce their insured’s exposure including paying attorney’s fees to go to court, if necessary.  Without a lawyer, the plaintiff is at a distinct disadvantage in attempting to get a just result.  Luckily, since the early 1970’s, every state including California has allowed lawyers to represent plaintiffs on a contingency fee basis (i.e the plaintiff’s lawyer provides his time and usually advances costs of suit without being paid up front or by the hour and is compensated at the end of the case). This has evened the playing field for injury and wrongful death victims and their families to exercise their legal right to compensation.



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