Article

Legal Action After a Burn Injury: Do I Have a Case?

Written by Pritzker Hageman Law Firm on July 26, 2021

Financial Health
Legal Action
Self-Advocacy

You (or someone you love) suffered serious burn injuries. It is one of the worst experiences of your life. You are trying to figure out what to do, including whether to hire a lawyer and make a claim for money damages.

Phoenix Society has partnered with Pritzker Hageman Law Firm to provide comprehensive, factual answers to your questions about taking legal action after a burn injury.

This post is for informational purposes only and does not provide legal advice. Your specific legal issues are unique, and you should not rely on the information in this post without seeking professional legal counsel.

The Initial Investigation: The Origin and Cause

While burn injuries can be caused by many things, including chemicals and even extreme cold, most serious burn injuries are direct thermal burns caused by fire or hot liquids or gases. Electrical burn injuries, while not as common as direct thermal burns, are also often very severe because of the way high-energy current passes through deep tissue and organs causing catastrophic damage along the way.

The answer to whether you have a good legal case begins with the analysis of the origin and cause of what injured you. An “origin and cause investigation” is a standard term used in fire investigations, but the concept is the same for any type of burn investigation.

For instance, if a burn resulted from contact with scalding water or from electrical current, the origin of where the scalding water or electricity came from might be obvious and readily understood. If a burn resulted from fire, the origin would be the precise location where the fire started. This location is often highly obscured by damage from the fire and an investigation would be required to identify it. Once the origin is identified, the investigation shifts to determining the cause of the fire, electrical current, scalding water, etc. at that location.

Because fires and explosions are so destructive and often create so much debris (and because the process of putting out a fire and securing the scene creates even more disturbance), the precise origin of a fire is often not obvious. For that reason, fire investigators must go to the scene of the fire as soon as possible after the event to sift through the wreckage; identify and categorize fire patterns and fire dynamics; examine and secure artifacts; map the scene; and obtain photos and video.

Fire codes and practices require that every interested party (i.e., those with a financial or legal interest in the outcome of the case – typically insurance companies and the attorneys for anyone injured) must be given notice of the scene inspection and the opportunity to participate in it. The same is typically true for injuries caused by contact with powerlines (and in those cases the power utility likely also needed to access the scene early on to help insure it was safe).

Time is of the essence. Because the scene where an injury occurred is often exposed to the elements and may not be secured from vandals or trespassers, key evidence may be lost unless there is a prompt and thorough inspection. This is especially true in the case of a fire or explosion.

Following the scene inspection, key items of evidence are usually secured and may be transferred to a laboratory for further analysis and testing.

The entire process may take weeks to months.

Once the point of origin is determined, experts try to determine the precise factors that caused the fire, stray electric current, or other hazardous condition. For example, is there evidence of a gas leak, cracked wire, poorly maintained power line, defective product, or other cause to account for a fire or other burn hazard at that location?


Identification of Fault

Along with identification of the fire’s origin and cause, it is necessary to identify the person or business entity whose fault caused or contributed to the fire.

For example, although the “origin” phase of the investigation may show that the fire started in the southwest corner of the basement and the “cause” phase may identify a gas leak and ignition source, it is essential to identify the party responsible for the gas leak in the basement.

Simply put, to make a claim, you must prove that the party or parties being sued were at fault and that such fault was a direct cause of the injuries and damages suffered by the burn survivor. Failure to establish causation and fault means that you will lose your case.

In most burn cases, fault is based on the principle of negligence. Although each state has different rules and definitions, a good working definition of negligence is the “failure to exercise such care as persons of ordinary wisdom usually exercise under the same or similar circumstances.” Proof of this failure is often based on industry standards and codes, applicable laws and regulations, the defendant’s own rules and procedures that were supposed to be followed (but weren’t), etc.

Assessing fault and its impact on your case is critically important. That is why experienced burn injury lawyers need to understand – as soon as possible – any factual issues bearing on the fault of any potential party, including the burn survivor.

It is also why burn survivors need to be completely candid with their attorney.

Most States Require Four Basic Elements of Negligence:

  1. Was there a duty of care owed by the party being sued? (Duty of Care: a requirement that a person act toward others and the public with the watchfulness, attention, caution and prudence that a reasonable person in the circumstances would use.)

  2. Was there a breach (or failure) of that duty of care?

  3. Did that breach of duty of care result in actual injuries to the person making the claim?

  4. Was that breach of duty of care the proximate (or immediate) cause of the injuries?

The jury must answer “yes” to all four questions for the claimant to win.

How Much is My Case Worth?

If your case goes to trial, the jury is required to assess damages – the amount of money you are entitled to receive because of the injuries you suffered, usually based on six categories of injury and loss.

There are (typically) 6 Categories of Loss the Jury Is Required to Assess:

  1. Pain, suffering, emotional distress, and disfigurement from the date of the incident to the time of trial

  2. Cost of medical bills and additional costs incurred from the date of the incident to the time of trial

  3. Loss of wages/income from the date of the incident to the time of trial

  4. Pain, suffering, emotional distress, and disfigurement reasonably certain to occur in the future

  5. The cost of medical care and treatment reasonably certain to occur in the future

  6. Loss of earnings and earning capacity reasonably certain to occur in the future

The jury has a great deal of latitude regarding the amount, if any, to award for each category of loss.

That is why it is so important to hire an experienced burn lawyer with extensive knowledge and experience regarding burn injuries and medical issues.

While these six categories are the broad considerations the jury will assess, the actual specific list of factors affecting the value of a burn injury case is long.

Burn Harm is Unique to The Person Who Experienced It

The harm caused by severe burn injuries is not and can never be understood solely in terms of burn degree and body surface involvement. Nor can such harm be understood solely in terms of objective measures generalized from data points taken from group studies. This is the key: each burn case is as unique as the person who suffered it.

A suitable and qualified burn injury attorney knows from experience about the importance of spending time and really getting to know their burn survivor client as well as the client’s family – building a relationship based on trust, communication, and the art of listening.

The fact is, most lawyers talk too much. They were taught about the importance of projecting their competence and control, but never learned that by listening and hearing, by asking questions and testing observations, they become better advocates for their clients because they begin to understand the full experience and the true depth of loss suffered by you...their client and collaborator.


Comparative Fault – Does This Change What My Case is Worth?

Another issue in assessing whether you have a case involves the concept of comparative fault. This refers to any fault attributable to (or caused by) you, the burn survivor, rather than the fault of the wrongdoer(s) being sued by you.

Although comparative fault issues vary considerably from state to state, the key issue is this: the percentage of fault, if any, found against you by the jury reduces the amount you can recover from the wrongdoer by that same percentage.

Consider this example:

A case goes to trial and the jury awards the burn survivor a sum of $5,000,000 for the six categories of loss. However, the jury also finds that 40% of the fault for the incident is attributable to the burn survivor. In that situation (simplified for this example) the burn survivor's recovery would be reduced by that percentage of fault. They would receive only 60% of $5,000,000 (which would be $3,000,000).

It is even worse in some states: if your percentage of fault is greater than some arbitrary percentage (e.g., 50%), you would collect nothing at all. And, if there are multiple wrongdoers involved, to collect against each or any of them, your percentage of fault must be less than the party against whom you are making a claim.

In many burn cases, comparative fault is not an issue; there is simply no evidence that the burn survivor did anything wrong. But that is not always the case.

Consider this example:

A homeowner turns up the thermostat during the first cold snap of the heating season. The house fails to warm up, so the homeowner inspects the furnace, smells gas, notices the pilot light is out and then tries to relight it. An explosion occurs, and the homeowner is badly burned.

In that scenario, even if the local gas company was at fault to some degree, its lawyers will claim the homeowner’s fault was a significant contributing factor because they smelled the gas and knew, or should have known, that lighting a furnace in the presence of gas in the air is a highly dangerous thing to do.

Assessing fault and its impact on your case is critically important. That is why experienced burn injury lawyers need to understand – as soon as possible – any factual issues bearing on the fault of any potential party, including the burn survivor. It is also why burn survivors need to be completely candid with their attorney.


Is There Money to Be Recovered?

Unfortunately, sometimes a person sustains serious burn injuries, and the investigation clearly shows that there is someone at fault for those injuries, but there is no money available to collect. In order to have a successful outcome the “at fault” party must have insurance or financial assets sufficient to fully compensate you for your losses.

This is an important consideration. Unless the at fault party is identified and shown to have sufficient assets or insurance to compensate you for your losses, it would typically not be practical or sensible to pursue a claim on your behalf.

Here is an example of a case likely worth pursuing:

Shortly after the gas company comes out to fill a gas tank, an explosion occurs in the house resulting in severe burns to a person who lived there. The “origin” investigation identifies a wall in the kitchen area as the place where the explosion originated. The “cause” investigation reveals that the gas escaped from a line valve that was left in the open position by a gas company technician.

This would be a strong case and one worth pursuing.

But consider this similar scenario:

The same severe burns, the same point of origin, and the same open valve. But in this case, an elderly neighbor volunteered to help get the home ready for heating season. He went outside to open the main tank valve and then lit the furnace pilot light. However, he did not inspect the open uncapped line in the kitchen.

Even though the fault would be determined to clearly lay with the neighbor, he had few assets and no insurance. Thus, the burn survivor would likely not have a case worth pursuing.


Workers Compensation

Another “do I have a case” factor concerns whether the burn survivor was injured during the course and scope of their employment. In most states, injury claims are not allowed to be pursued if the incident was caused by the fault of the employer or one of the other employees working for the employer. In such cases, recovery is limited to workers compensation benefits which usually are far more limited than sums allowable in a typical lawsuit.

Third-Party Liability: The Exception to Workers Compensation Limits

The exception to the severe workers compensation rule is what is called third-party liability. In most states, a burn injury survivor – even if they are injured while on the job – may still be able to sue a third-party (for instance, a person or company not employed at the worker’s place of employment or the outside manufacturer or provider of defective equipment) whose fault caused or contributed to the incident.

Here is an example:

An explosion at a local school injured several school employees who at the time were acting within the course and scope of their employment. School officials knew or should have known that it was unsafe for its employees to be working inside the building while gas lines were undergoing repair and replacement. But the real fault for the explosion was a massive gas leak created by an independent contractor’s employee (a third-party) who failed to shut a gas valve before removing a pipe section downstream from the valve.

In that scenario, the negligence claim against the contractor can proceed even though a direct action against the employer-school may not have been allowed.

As you can see, the ability to assess fault and pursue claims against viable wrongdoers is one of the most important skills possessed by experienced burn injury lawyers. It’s also why burn and explosion cases are incredibly fact-specific. Just like origin and cause experts having to carefully sift through fire debris to find key evidence, burn lawyers must unearth and examine all the facts necessary to evaluate a case and pursue viable claims against responsible parties.



Statute of Limitations (SOL): Is It Too Late to Make a Legal Claim?

A statute of limitations is a law that establishes a time limit within which a claim must be brought. If the claim is not commenced within that time limit, the case will likely not be allowed and there will be no recovery for the burn survivor.

SOL time periods vary greatly from state to state. For example, a negligence cause of action must be commenced in some states within a year of the incident whereas in other states, that same cause of action may have a six-year SOL.

There are also exceptions to the harsh dictates of the SOL time limit. For example, some states recognize what has come to be known as the discovery rule. In those states that recognize it, the discovery rule “postpones the beginning of the limitations period from the date when the plaintiff is wronged to the date when he discovers he has been injured.”

SOL laws can be complicated and confusing. Time periods vary depending on the types of claims being made – even though each claim stems from the same incident. For example, it is not uncommon for an explosion to be due to both negligence and a defective product. Even though both claims result from the same explosion, the SOL time period for each cause of action may be and often is different.

There are also many exceptions to the SOL requirements. The discovery rule is only one and virtually every state’s law has different rules and exceptions, so it is important that the lawyer with whom you consult has experience with assessing statutes of limitations and how they will apply to the facts of your case and the relevant exceptions.

Finally, because the clock often starts ticking on the SOL right away, among other reasons, you need to consult with a lawyer as soon as possible following the incident.

Of course, that is often easier said than done. Burn survivors and their families, especially those with severe burns, are often overwhelmed in the days, weeks and even months following a severe burn injury. Many find they simply do not have the time, energy or emotional wherewithal beyond the moment-by-moment demands imposed by life-changing burns. That includes the time and effort necessary to research suitable lawyers, gather information in preparation for the lawyer meeting, and actually meet with the lawyer.


Finding an Experienced Burn Lawyer

All of these considerations – and many others – require wise counsel from a competent and experienced burn lawyer. The stakes are simply too high, and the factors are too complex to entrust your case to a lawyer lacking the skill these cases demand.

Learn more about finding and hiring a burn injury attorney.

Factors Affecting the Value of Your Case

The award-winning Pritzker Hageman national burn, fire, electrocution and explosion legal team is led by attorneys Fred Pritzker and Eric Hageman. They help survivors and their families throughout the United States get compensation and justice. Fred and Eric know that it’s not just about money. It’s about restoring dignity, holding wrongdoers accountable, and forcing changes so that what happened to their clients doesn’t happen to someone else.

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Get comprehensive, factual answers to your questions about taking legal action after a burn injury from our partner, Pritzker Hageman Law Firm.