Personal Injury Claims for Head Injuries

Quick answer

A personal injury claim seeks compensation from a person or business whose negligence caused an injury. LII lists the elements a plaintiff generally must prove: a duty, a breach of that duty, harm, and causation (both cause in fact and proximate cause).[1] Compensatory damages can cover direct costs such as medical care and lost wages and indirect losses such as pain and suffering.[2] Every state sets a deadline, called a statute of limitations, for filing.[3]

The elements of negligence

LII defines negligence as “the failure to behave with the level of care that a reasonable person would have exercised under the same circumstances.”[1] It lists the elements a plaintiff typically must prove:[1]

Duty

The defendant owed the injured person a legal duty of care.

Breach

The defendant failed to meet that duty.

Cause in fact

The injury would not have happened without the breach.

Proximate cause

The harm was a foreseeable result of the breach.

The last element, harm, is where head injury claims are often contested. Because standard imaging can’t always detect damage from mild, concussive injuries,[4] the existence and extent of the injury itself may be disputed. See why head injuries are disputed.

Damages

LII explains that compensatory damages are calculated based on the harmed party’s actual losses, and that in a tort case the injured party can recover “direct costs (medical care, property damage, lost wages, etc.) and indirect costs (to atone for pain and suffering or inconvenience).”[2] When the defendant “was willfully reckless or the harm was particularly egregious,” a court may also award punitive damages, which are intended to punish.[2]

For head injuries, losses can extend well beyond the initial treatment. The CDC notes that some people have symptoms for months or longer after a mild TBI,[5] and a StatPearls review estimates that about 15% of people with a mild TBI develop post-concussion syndrome.[6] Some states cap certain damages. For example, Ohio limits noneconomic damages in most tort cases, with exceptions for catastrophic injuries,[7] and California limits noneconomic damages against health care providers.[8] See our state law pages.

The eggshell skull rule

Under the eggshell skull rule, LII explains, a defendant must “take the victim as they find them,” meaning a defendant can be liable for the full extent of an injury even if a pre-existing condition made the victim more vulnerable than an average person.[9] The rule takes its name from the example of a person with an unusually thin skull. See pre-existing conditions and prior concussions.

When fault is shared

States use different rules when the injured person is partly at fault. LII describes them:[10]

Pure comparative negligence

Recovery is reduced by the injured person’s percentage of fault, even if that share is larger than the defendant’s.

Modified comparative negligence (50%)

The injured person cannot recover if found 50% or more at fault.

Modified comparative negligence (51%)

The injured person cannot recover if found 51% or more at fault.

Contributory negligence

Any fault on the injured person’s part can bar recovery entirely.

Deadlines

LII defines a statute of limitations as “any law that bars claims after a certain period of time passes after an injury,” adding that “the period of time varies depending on the jurisdiction and the type of claim.”[3] Depending on the law, the period may begin on the date of the injury or on the date it was discovered, “or the date on which it would have been discovered with reasonable efforts.”[3] Claims against government entities often have much shorter notice deadlines. See claims against the government.

How claims are usually resolved

Most personal injury claims start with a claim to the at-fault party’s liability insurer. If the claim is not resolved, the injured person can file a lawsuit before the statute of limitations expires. Once a suit is filed, each side can obtain information through discovery, which under the federal rules covers any nonprivileged matter relevant to a party’s claim or defense and proportional to the needs of the case.[11] When a person’s mental or physical condition is in controversy, the court can order an examination by a provider chosen by the other side.[12]

Learn more: Independent medical exams · Social media and surveillance · Expert witnesses

Frequently asked questions

Do I have to prove the other person meant to hurt me?

No. Negligence is based on a failure to use reasonable care, not on intent.[1]

Can I recover if I was partly at fault?

It depends on the state. LII explains that pure comparative negligence states reduce recovery by the injured person’s share of fault, modified comparative negligence states bar recovery at 50% or 51% fault, and contributory negligence states can bar recovery for any fault.[10]

What if I already had a concussion before this injury?

Under the eggshell skull rule, a defendant takes the victim as they find them.[9] A prior injury can still raise questions about which symptoms the new injury caused. See pre-existing conditions.

How long do I have to file?

It depends on the state and the type of claim. Statutes of limitations vary by jurisdiction, and some begin when an injury is discovered rather than when it occurs.[3]

This page provides general information about the law from the sources listed below. It is not legal advice, and reading it does not create an attorney-client relationship. Laws vary by state and change over time. See our legal disclaimer.

Sources

  1. Legal Information Institute, Wex. “Negligence.” https://www.law.cornell.edu/wex/negligence
  2. Legal Information Institute, Wex. “Damages.” https://www.law.cornell.edu/wex/damages
  3. Legal Information Institute, Wex. “Statute of limitations.” https://www.law.cornell.edu/wex/statute_of_limitations
  4. National Institute of Neurological Disorders and Stroke. “Traumatic Brain Injury (TBI).” https://www.ninds.nih.gov/health-information/disorders/traumatic-brain-injury-tbi
  5. Centers for Disease Control and Prevention. “What to Do After a Mild TBI or Concussion.” https://www.cdc.gov/traumatic-brain-injury/response/index.html
  6. Permenter CM, Fernández-de Thomas RJ, Sherman AL. “Postconcussive Syndrome.” StatPearls, NCBI Bookshelf. https://www.ncbi.nlm.nih.gov/books/NBK534786/
  7. Ohio Revised Code § 2315.18. Ohio Laws. https://codes.ohio.gov/ohio-revised-code/section-2315.18
  8. California Civil Code § 3333.2. California Legislative Information. https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=CIV&sectionNum=3333.2
  9. Legal Information Institute, Wex. “Eggshell skull rule.” https://www.law.cornell.edu/wex/eggshell_skull_rule
  10. Legal Information Institute, Wex. “Comparative negligence.” https://www.law.cornell.edu/wex/comparative_negligence
  11. Federal Rules of Civil Procedure, Rule 26. Legal Information Institute. https://www.law.cornell.edu/rules/frcp/rule_26
  12. Federal Rules of Civil Procedure, Rule 35. Legal Information Institute. https://www.law.cornell.edu/rules/frcp/rule_35

Sources last checked: October 11, 2026

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