A personal injury claim is a legal demand that arises when one party injures another party, either physically or emotionally, through some form of misconduct. The party asserting the claim (typically the party that caused the harm) can demand monetary compensation from the defendant. Most personal injury lawyers handle claims involving physical injury, property damage, emotional suffering, and more.

Types of Personal Injury Claims

The following personal injury claims are extremely common:

  • Vehicle accidents (car accidents, truck accidents, motorcycle accidents, bicycle accidents, etc.)
  • Pedestrian accidents (typically, a collision between a pedestrian and a vehicle)
  • Dog bites
  • Wrongful death (any type of personal injury accident that kills the victim).
  • Sexual abuse
  • Construction accidents
  • Slip and fall accidents
  • Workplace injuries (workers’ compensation claims or workplace claims against third parties)

A skilled personal injury lawyer can help you navigate the complexities of your injury claim. 


Damages are losses that the claimant of a personal injury suffers, for which monetary compensation is appropriate. 

New York classifies personal injury damages as follows:

  • Economic damages: Medical bills, lost earnings, out-of-pocket expenses, and other easily counted losses
  • Non-economic damages: Intangible losses, typically psychological, including pain and suffering disfigurement, emotional distress, loss of enjoyment of life, etc.
  • Punitive damages: Additional compensation that a court occasionally awards to punish the perpetrator and deter future misconduct 

Courts often refuse to award punitive damages even when the claimant qualifies for economic and non-economic damages.

Settlement vs. Lawsuit

A settlement is a private arrangement in which the claimant agrees to abandon their claim in exchange for a pre-agreed sum of money. This can happen before or after the claimant files a lawsuit. If it happens before a lawsuit, the claimant will never file a lawsuit over the claim. Settlements are typically quicker and cheaper than trials.

In most personal injury cases, one issue that both sides agree on is that a settlement would be preferable to a trial. Private settlements resolve the great majority of personal injury cases. 

Sometimes, however, the sequence of events works like this:

  • The parties attempt to negotiate a settlement.
  • Negotiations stall because the claimant lacks sufficient evidence to prove their claim.
  • The claimant files a lawsuit against the perpetrator.
  • Both parties gather further evidence through the pretrial discovery process.
  • The parties resume negotiating.
  • The parties reach a final settlement. 
  • The claimant withdraws their lawsuit, and no trial ever occurs.
  • The parties sign a settlement agreement. 

Once the parties sign a settlement agreement, it becomes a binding legal contract that either side can enforce in court. A claim based on a settlement agreement is a contract claim, not a personal injury claim.

The Burden of Proof

When you file a personal injury claim against a defendant, you have the burden of proving your claim. The typical standard is a “preponderance of the evidence”–enough evidence to convince a court that the defendant is more likely than not to bear liability for your injuries. 

In court, your evidence must be admissible under the New York rules of evidence. In settlement negotiations, you can sometimes use evidence that would be inadmissible in court. A common example is a police report for a car accident. That is because in court, you can call the police officer who wrote the report to the witness stand.


There are many possible defenses that the defendant might assert, including:

  • Your evidence does not meet the burden of proof.
  • You missed the statute of limitations deadline for filing a lawsuit.
  • You voluntarily participated in the activity that injured you while aware of the risks involved (“assumption of risk”).
  • You were partly at fault for your own injuries (“comparative negligence”).
  • The accident was unavoidable and not due to anyone’s negligence (inclement weather, for example).

Many more possible defenses might be available, depending on the facts of the case.

A Buffalo Personal Injury Lawyer Can Help With Your Personal Injury Claim

Do you need a personal injury lawyer? Most personal injury lawyers will offer you an initial consultation free of charge. In almost every case, the deal is that if the lawyer takes your case and doesn’t win, you pay nothing in legal fees.

Contact The Buffalo Personal Injury Lawyers At O’Brien & Ford PC For Help Today

For more information, please contact the Buffalo personal injury lawyers at O’Brien & Ford PC to schedule a free consultation with an accident lawyer. We have a convenient office location in Buffalo, NY.

We proudly serve all throughout Erie County and the state of New York.

O’Brien & Ford Buffalo Car Accident and Personal Injury Lawyers
4549 Main St, Suite 201
Buffalo, New York, 14226
(716) 222-2222