What Does Neligence Mean With Respect To The Law?

July 28th, 2010

The term “negligence” often gets misused by the public. What non-attorneys consider to be a malleable description of a person’s actions, attorneys and others with a legal education know relates to a very specific idea in tort law. The definition of negligence is the failure to use reasonable care.[1] The law of California declares that “everyone is responsible . . . for an injury occasioned to another by his want of ordinary care or skill in the management of his property or person . . . .”[2] Basically this means that people are generally liable when they negligently injure others.  In order to prove negligence, one must be able to satisfy each of four elements. The four elements of negligence are: Duty, Breach of Duty, Causation, Damages.

DUTY

The first step in proving someone acted negligently is demonstrating that a duty was owed. A duty of care is defined as “a legal obligation imposed on an individual requiring that they adhere to a standard of reasonable care while performing any acts that could foreseeably harm others”.[3] This reasonable person standard is objective. Thanks in part to the level of training they receive, some professionals such as doctors are held to the higher standard of a reasonably prudent professional in that practice. Children are also held to a special standard of care. A majority of jurisdictions require children to conduct themselves like a “reasonable for a child of similar age, experience, and intelligence under like circumstances”.[4]

BREACH OF DUTY

The second element of negligence is breach of duty. The test has both a subjective element and an objective element. A defendant breaches his duty of care when he exposes another to a known risk. This is the subjective element. On the other hand, a defendant who fails to realize an obvious risk of loss to another has also breached that duty. This is the objective element. To put it more simply, “a person who engages in activities that pose an unreasonable risk toward others and their property that actually results in harm, breaches their duty of reasonable care”.[5]

CAUSATION

For a successful negligence claim, two kinds of causation that must be proven: factual causation and legal causation.

Factual causation is the easier of the two to prove. The test for factual causation is “whether the injury would have occurred but for, or without, the accused party’s breach of the duty owed to the injured party”.[6] Factual causation is also found to exist in situations where the defendant may not have caused the harm, but merely increased the risk of the harm.

Legal causation must also be proven for a successful negligence claim, and is much harder to prove than its factual counterpart. The legal causation requirement helps prevent defendants from being exposed to, in the words of Supreme Court Justice Benjamin Cardozo, “liability in an indeterminate amount for an indeterminate time to an indeterminate class.”[7] The main tenet of legal causation is foreseeability. If the harm caused was not foreseeable at the time it occurred, how could the defendant have been expected to avoid it? They can’t, making legal causation an important but difficult element of negligence to prove.

DAMAGES

The damages awarded in successful negligence cases are compensatory in nature, meaning they attempt to redress the claimant’s losses. The amount of damages awarded is meant to make the plaintiff “whole,” which is the legal term for putting a person in the position he was before the negligent act occurred.[8] Contrary to most claimants’ wishes, damages are not meant to pay for a new house or car, or enable the plaintiff to retire at an early age. They are awarded so that the plaintiff can keep up with their mortgage or lease, pay medical bills, and return to work with some money in their pockets.

There are three types of compensatory damages: Special, General, and Punitive. In a personal injury case such as an auto accident, the most common special damages are lost wages, medical bills, and damage to your car. The award is the provable dollar amount lost as a direct result of the negligent act. General damages, on the other hand, are less concrete. This is where the ever popular pain and suffering damages can be found. Although pain and suffering amounts may seem arbitrary, they are intended to compensate the plaintiff for the inconvenience and stress of his ordeal.

Punitive damages are different from special and general damages in that they are meant to punish a defendant for his intentional, reckless or malicious wrongful behavior.[9] Punitive damages are not available in a negligence case. For example, a driver who negligently runs a red light will not have to pay punitive damages. His actions, although illegal, were not intentional, reckless or malicious. However, if the driver was drunk at the time or intentionally ran the light, punitive damages can be awarded to punish the driver’s reckless or intentional behavior.

[1] http://www.lectlaw.com/def2/n010.htm

[2] Cal.Civ.Code Sec. 1714(a).

[3] http://en.wikipedia.org/wiki/Duty_of_care

[4] http://www.lexisnexis.com/lawschool/study/outlines/html/torts/torts03.htm

[5] http://en.wikipedia.org/wiki/Negligence

[6] http://en.wikipedia.org/wiki/Negligence

[7] http://en.academic.ru/dic.nsf/enwiki/13029

[8] http://www.wordiq.com/definition/Negligence

[9] http://legal-dictionary.thefreedictionary.com/punitive+damages

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Auto accidents: Pitfalls to Handling Your Own Case

July 27th, 2010

If you have just been involved in a car accident you have many decisions to make but the most important one could be whether to hire an attorney. This article will discuss some of the common pitfalls to handling a case on your own. The problem is that the general public has no knowledge of many of the issues involved in their cases and could miss something that could be pertinent.

Public Entities

It is fundamental to know who the defendant is immediately. If the person who hit you was working for the government or paid by the government then a public entity could be involved. If the defendant is a public entity then you only have six months to file your claim with the entity. There are additional time and other rules that apply. For purposes of this discussion, if you fail to file your claim with the government/public entity within the six month period from the date of the accident you could lose all your rights to any recovery.

Health Insurance Companies

If you have health insurance and they have paid for some or all of the medical treatment that you have received for injuries that you sustained due to the accident then they may have a right to recovery from your settlement proceeds. You may want to take a closer look at your health insurance policy to see what their requirements are because sometimes they have to assert notice of their lien (or right to recovery). “Notice” is a legal term which usually means that they must give notice by complying with the applicable notice requirements.

Med Pay

Med Pay, in California, is almost without exception “excess reimbursable.” This means that you can only use it if your health insurance company (if you have one) does not cover the particular medical treatment. Med pay is coverage on your auto insurance policy. If you don’t know what it is then chances are that you don’t have it. It is something to consider purchasing, especially if you don’t have health insurance. People can run into problems with both the “excess” and “reimbursable” issues. It can be hard to show that your health insurance company does not cover the treatment or show that it is “excess” because you are dealing with such large corporations which are not easily accessible to the average consumer.  Most people don’t realize that their med pay coverage is reimbursable, however, in most cases you have to pay this money back to your auto insurance company because they have a right to reimbursement. There can be ways of either reducing the amount of reimbursement or getting around having to reimburse them altogether.

Medi-Cal and Medicare

There may be statutory liens on any recovery that you may have received. This means that companies such as Medi-cal and Medicare could have a right to recover the money they paid out for medical bills for treatment your received that was related to the accident by law.

In closing, there are clearly many issues that could come into play. You may want to consult an car accident attorney rather than trying to handle your case by yourself.

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Uninsured Motorized Motorists and Prop 213

July 25th, 2010

Many people are taking the risk of driving uninsured these days so now might be a good time to analyze the risk versus reward of driving without insurance. A good place to start is to examine the reasons that people are doing this. The biggest reason is likely cost. Insurance premiums cost money and a lot of people don’t have that much extra cash these days so they stop paying. Your insurance policy lapses when you stop paying your premium. There is usually a grace period, however, there is not always one and the time periods are different so this is not a guarantee. There are also people who try to take advantage of the grace period. They send their payment late but still within the grace period each month therefore prolonging their payment. This is not a good idea because the insurance companies know that people do this and they look out for it. You may miss the time period by a day due to mail or whatever the reason may be and be driving uninsured and not even know it.

Another reason that people drive uninsured is that they think the probability that driving uninsured will have any effect on them is small. However, automobile accidents are on the rise as there are more and more drivers on the road and more and more incidences of drunk driving. There are more drivers on the road because our population is increasing quickly. There are more drunk drivers on the road today because of the state of the economy.  People want to forget about their financial problems so they numb themselves with alcohol. Of course, people don’t make the best judges in such a state and so they make wrong choices: they get in a car and drive home instead of taking a cab or calling a friend to come and pick them up.

We could go on and on about the various reasons people drive without insurance but the fact of the matter is it is extremely risky and the potential effect that it could have on them is not worth the risk. If you are still thinking about driving uninsured I urge you to reconsider. You could be sued personally for all the medical bills, pain and suffering, property damage, and lost wages. This might not sound like much but let’s consider the cost of the average medical bills for a minor car accident.

Ambulance       $1,500

ER Visit          $5,000

Therapy           $5,000

M.D. Visit       $1,500

TOTAL           $13,00

Of course, that is just for the medical bills, you will be paying for a lot more than that.

Proposition 213

If you are driving without insurance and you are hit by someone else you should not be under the belief that you have just hit the lottery.  Proposition 213 was enacted to prevent uninsured drivers from profiting from an accident when someone else is at fault. It is meant to deter people from driving without insurance. The problem is that most people don’t know about it or have forgotten about it. In such cases you will only be able to get your medical bills paid and possibly recover for your lost wages. This is yet another reason to drive with insurance. Please drive safe and drive with insurance for all the right reasons.

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What are personal injury “DAMAGES”?

July 23rd, 2010

If you are in an auto accident, and not at fault, you are entitled to recovery for the damages caused by the other party’s negligence. There are many common misconceptions of what damages are, and what types of damages one is actually “entitled” to, versus those damages that must be proved and negotiated at length.

Damages are defined as “money claimed by, or ordered to be paid to, a person as compensation for loss or injury.” (Blacks Law Dictionary, Thomson West; 8th edition (June 1, 2004)). “Damages are the sum of money which a person wronged is entitled to receive from the wrongdoer as compensation for the wrong.” Frank Gahan, The Law of Damages 1 (1936). In other words, damages are the harm actually caused by the wrongful or negligent act. For example, if you were in an auto accident, and your car was totaled, one category of damages would be the totaled car. The compensation for your totaled car would be monetary payment of the fair market value of your car. Another example would be injuries that require medical treatment. The compensation for your injuries would be payment of the medical bills that result from reasonable and necessary treatment for the injuries you sustained, and pain and suffering you endured as a consequence of said injuries.

Types of Damages

There are two basic types of damages: actual damages (also called compensatory, tangible, real or special damages) and general damages.

Actual Damages. Actual damages are those which are proven, at a certain monetary amount, to have been incurred as a result of the wrongdoer, or negligent party’s actions. The goal of compensating for actual damages is to put the injured person in a position he or she was prior to the incident. These damages are distinguished from general damages because usually, there is a physical bill that would otherwise not exist such as:

  • Medical bills: Including ambulance transportation, hospital stays, x-rays and other diagnostic testing, physical therapy, chiropractic treatment, surgery, etcetera
  • Prescriptions for medications required due to injuries sustained
  • Future medical treatment
  • Funeral expenses
  • Cost of repairing a vehicle
  • The value of a totaled vehicle
  • Loss of earnings

General Damages. Unlike actual damages, general damages do not come with a clear bill detailing the cost and amount of compensation. General damages are those that the law presumes follow from the type of wrong complained of (Blacks Law Dictionary, Thomson West; 8th edition (June 1, 2004)) such as:

  • Pain and suffering
  • Psychological and mental effects
  • Loss of promotion or employment opportunities
  • Future lost earnings
  • Loss of consortium
  • Costs and pain associated with permanent injury/disability

What Damages are you Entitled to

With actual damages, that can be proven to a degree of certainty (i.e.; submitting the bill) one is only “entitled” to those that are the natural and direct result of the at-fault party’s negligence. For example, if your vehicle was in a previous accident and sustained damage to its front bumper, and in the accident for which you are claiming compensation for, you were rear-ended, you are not entitled to have your front bumper fixed. The reason being, the damage to your front bumper was not caused by the negligence of the other driver. Causation is a very complicated legal issue and cannot be simply explained. An experienced attorney will be able to lobby on your behalf as to what harm was actually caused by incident in question. Without an attorney, an insurance adjuster will most certainly find a compelling argument against paying for damages that may have some other explanation as to how they raised.

A common misconception is that the at-fault party must pay all medical expenses associated with the injuries they caused. In reality, a person is only entitled to reasonable and necessary medical expenses. What this means is that whatever your injuries are, there is a standard customary charge and length for treatment of those injuries. If you over-treat, or go to a doctor who is charging way more than the fair value of his services, you may not be entitled to full payment of that bill. Again, this is a complicated area of law and you should consult an attorney who can explain to you what you will be compensated for.

Another common misconception is that an injured person is entitled to a certain amount of pain and suffering. About 90% of the time, an insurance adjuster will not offer to pay any pain and suffering.  You are only entitled to pain and suffering that you can prove to have resulted from the injuries sustained. It is very unlikely that based on your word alone you will be able to convince an insurance company that your suffering is worth a great deal of money. Of course, the greater the injury, the more pain and suffering will result. As such, the pain and suffering related to soft tissue injuries (tears in the muscles, “whip-lash,” strain/sprain), will likely be valued at a smaller monetary amount than the pain and suffering associated with significant injuries (i.e.; broken bones, head injuries, death).

Pain and suffering includes the actual pain resulting from the injuries sustained, the effects on one’s life and limitations caused by pain, the adaptations one must make to accommodate their limitations, and all of the events, activities, and daily errands that cannot be completed due to pain.

Most importantly, there is no formula for the value for pain and suffering. The monetary compensation for pain and suffering is all debatable. An individual may value his pain and suffering at $100,000.00 where realistically, the insurance companies and the courts will value his pain and suffering at $2,000.00. How do you know how much you should be compensated for your pain and suffering? Hire an attorney; ask what is the usual compensation for pain and suffering associated with the types of injuries you endured?  You attorney is in a much better position to fight for your right to compensation for this suffering than you are because an experienced attorney knows what issues to present to the insurance adjuster, how to present it, and how to negotiate on your behalf so that that suffering does not go unaddressed.

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WHAT YOU DON’T KNOW CAN HURT YOU: WAYS YOU MAY BE DAMAGING YOUR PERSONAL INJURY CASE

July 23rd, 2010

So you’ve been in a car accident, slipped and fell at the mall, tripped over a broken sidewalk or had another unpleasant thing happen to you? Here is a list of things you may not have considered before that are extremely important to your case:

Contact an Attorney Immediately

You may be an excellent teacher, construction worker, homemaker, hair stylist or accountant, but you’re not an attorney. You wouldn’t perform an appendectomy on yourself, so why would you take on an insurance company alone? Personal injury attorneys are trained in the art of negotiation. It’s what we do all day, every day. By attempting to handle your personal injury claim yourself, you may be doing more harm than good. Unfortunately, by the time you realize that you do, in fact, need help, it may be too late. There is a small window of time following an incident in which your attorney can preserve evidence, file a claim, identify the responsible party, etc.

Follow Your Doctor’s Advice

If your doctor recommends that you receive treatment 5 days a week, you need to receive treatment 5 days a week. We’re all busy and have a million other things we’d rather do than visit the doctor, but it’s imperative that you treat regularly and according to your doctor’s orders. There are two reasons regular treatment is so important. First, you will start to feel better that much sooner. Your doctor has created a treatment plan just for you. He or she knows the best way to get you back on your feet and back to living your life. Second, the quality and quantity of your treatments directly impacts the settlement offers you will receive. If the insurance company finds out that you missed appointments or failed to treat as often as your doctor recommended, they will automatically assume that your injuries are not as serious as you claim and offer a small settlement, or even refuse your claim altogether. Your attorney’s negotiating power is drastically diminished when your treatments are sporadic.

Be Completely Honest

We all have skeletons in our closet that we’d prefer didn’t come to light. Keeping secrets from your attorney, however, can cause irreparable damage to your personal injury case. If you were uninsured at the time of the accident, tell your attorney. If you were wearing sky-high stilettos when you fell, tell your attorney. If you have a criminal record, tell your attorney. He will not judge you. He will not scold you. He will tailor the case so that your interests are protected and your life normalized.

Have Realistic Expectations

Your attorney is going to do everything in their power to get your medical expenses paid and put some money in your pocket. His goal is not, however, to pay for your European vacation or buy you a new house. A settlement is not going to put you in a position where you never have to work again; it is going to make it so that you can work again.

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Auto Insurance Policies: The Unknown Truth

July 22nd, 2010

By:  Valerie Bradbury, Attorney, Ledger & Associates

In this economy everyone is thinking about the bottom line. It is the same story when purchasing auto insurance. The focus is on cost: how much are my premiums going to be? Of course cost should be considered, but most people aren’t considering the cost in the long term and the real risk of purchasing the cheapest insurance policy they can find. The reality is that the majority are purchasing minimum limits policies, if they are purchasing insurance at all. Minimum limits are 15/30, that is that maximum recovery under the policy is $15,000 per person or $30,000 for all the parties involved in the accident. This is leaving many people dire situations in their time of need. Protect yourself by being well-informed about what your policy does and does not cover.

Types of coverage:

There are several different types of coverage. The typical minimum policy only has liability coverage and property damage coverage because those are the only two types of coverage required by law in California. Let’s discover the truth about the different types of coverage.

Liability

If you are at fault for an accident, then liability coverage is available to the person you hit while you were driving your car. That person could be a pedestrian, bicyclist, motorist, or motorcyclist as long as you are driving your vehicle than this coverage can be used to pay for their medical bills, pain and suffering, and lost wages.  This coverage is not available to you if you are at fault for an accident. If you are not at fault for the accident then you may be able to use the liability coverage of the person who hit you, that is, if they have insurance.

Uninsured/Underinsured Motorist

This type of coverage will come into play if you did not cause the accident and the person who hit you either did not have insurance (uninsured motorist coverage) or did not have sufficient insurance (underinsured motorist coverage), such as a minimal limits policy. It is important to consider that the incidences of convictions for Driving under the Influence have skyrocketed as people are depressed about their economic situation and turn to alcohol to forget about their reality. Another thing to consider is that when people lose their jobs they save the money they have to pay for necessities such as food and shelter while insurance payments go unpaid. These things are important to think about because the consequence is that, in this economy, there are many uninsured drivers out there. They are uninsured because they continuously get DUIs and become uninsurable or they are just not paying for insurance and it lapses, even though auto insurance is required by law. That is why it is imperative for people to purchase uninsured/underinsured motorist coverage. If the person that causes the accident does not have insurance and you do not have this coverage than there is no insurance coverage available for you to recover from to cover your medical bills, pain and suffering, and lost wages.

Property Damage

In California, in addition to liability coverage, property damage coverage is required by law. The minimum limit is $5,000. Like liability coverage, this coverage is available to the person who you are at fault for hitting with your vehicle. It pays for the damage to their vehicle.

Collision

Collision is the coverage available to you under your policy for the damage to your vehicle. This will cover the cost of the repairs or the market value of your vehicle. Many times this type of coverage will come with a deductable. If you have savings then you may want to take the risk and get a higher deductable. However, if you do not, then try to purchase coverage with without a deductable or with a low deductable. Purchasing collision coverage is also a good idea to protect yourself from the devastating effect of a hit and run or an uninsured driver. In either of these cases you would not otherwise be able to pay for the repairs to your vehicle or buy a new car.

Rental

Keeping in mind that the property damage minimal limit (which most people carry) is $5,000, rental coverage is a must. If you are in an accident and your car is a total loss but it is worth more than $5,000 and you do not have collision coverage with a limit higher than $5,000, then you are out of luck. In this case, you will not recover for the value of your vehicle that exceeds $5,000 or the cost of any rental vehicle. This becomes exceedingly important when there is more than two vehicles involved in the accident because all of the vehicles (other than the vehicle of the at fault party) must share in the $5,000 limit. In larger accidents the parties are often times rushed to the hospital and have no time or are in no condition to exchange insurance information and must be out of pocket for the rental until they can obtain the insurance information from the police report and open a claim with the at fault party’s insurance.

Uninsured Motorists and Proposition 213

If you considering taking the risk and driving uninsured, you may want to reconsider. Whether you simply did not purchase insurance or whether your policy lapsed due to a missed or a late payment, the effect is the same. If you cause an accident the person who you injured can come after you personally, or in other words, they can sue you.  Proposition 213 bars recovery for pain and suffering if you are uninsured and someone else caused an accident and injury to you. That is, you are only entitled to get your medical bills paid.

Some advice in closing: don’t drive uninsured if at all possible, purchase as many different types of coverage as are available, purchase the highest limits you can afford, and do it now because you never know when you could get in an accident. If you do get an accident, call the experts at Ledger & Associates 800-300-0001.

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Deadly Statistics – The chances of being killed as a result of a motorcycle accident vs. an auto accident

July 22nd, 2010

By:  Melanie Harris, Case Manager, Ledger & Associates

In the United States, motorcycle deaths account for approximately 13% of deaths resulting from a collision. (NHTSA DOT HS 811 149). California is certainly a motorcycle friendly state. And with consistent warm, dry weather, considerations of traffic, and parking, it is no surprise. California is the only state that does not prohibit lane splitting (riding the bike between highway or road lanes in the direction of traffic), providing for a more efficient means of commuting in heavy traffic, but also presenting a risk to those operators who are careless or inexperienced. There are more stringent requirements on obtaining a license to operate a motorcycle in California, and for good reason: a motorcyclist is 16 times more likely to die in a collision than an occupant in an automobile.

The California Department of Motor Vehicle’s records show that fatal motorcycle accidents have been rising every year since 1990. The most recent reports show that between 2007 and 2009, motorcycle fatalities increased by 10%.

Below is a list factors that may increase the risk of death in a motorcycle accident, opposed to a motor vehicle accident:

  1. Use of a Helmet  and/or Protective Clothing
  2. Speed
  3. Road Design
  4. Licensing & Experience
  5. Braking and steering maneuvers
  6. Visibility
  7. Age
  8. Intoxication

Use of Helmet and Protective Clothing

Motorcyclists do not have the protection an occupant of a vehicle has: thousands of pounds of steel and metal. With a collision involving a motorcycle and a vehicle, the motorcyclist is in a compromising position of vulnerability. Most states have enacted laws that actually require motorcyclists to wear a helmet: including California. A helmet greatly reduces the risk of brain injury. According to the NHTSA, a helmet reduces the risk of head injury by 16%. Clothing such as gloves, leather, and boots, can also provide some level of protection for the exposed motorcyclist.

Speed

Over one-third of motorcycle accident fatalities were caused by speeding.

Road Design

Many motorcycle accidents occur in rural areas due to surface structure and road design. Maneuvering a motorcycle around pot holes, rocks, and other conditions can be very difficult due to the instability of the bike.

Licensing

California department of motor vehicles reports that in 2008, 37% of motorcyclists killed in a collision did not have a valid motorcycle license. Nationally, 25% of motorcyclists involved in a fatal accident did not have a valid license in 2008. (National Highway Traffic Safety Administration DOT HS 810 820).

Breaking and Steering Maneuvers

It is estimated that Braking and steering mistakes contribute for more than twenty five percent of the fatalities. (NHTSA, Fatality Analysis Reporting System).

Visibility

An operator of a motorcycle has the same rights and responsibilities as the operator of a motor vehicle. Motor vehicles are charged with the legal duty to drive with reasonable care to avoid injury to others: including motorcyclists. This duty requires drivers to be conscious of others on the road, including motorcyclists. However, in California, a motorcyclists although charged with the same legal duty as one operating a motor vehicle, is permitted to ride between lanes, in effect traveling in a motor vehicle’s blind spot and greatly reducing visibility. This creates the risk that motor vehicle operators are not aware of their presence.

In addition, because a motorcycle is a two wheel vehicle and only contains one headlight, driving at night presents a great risk that the operator of a motor vehicle will not see the motorcyclists before colliding into him or her. Almost 60 percent of motorcyclist fatalities occur at night.

Age

Recent studies show that drivers over the age of 40 are more likely to be killed in a motorcycle collision than those under the age of 40. This is quite the opposite to the reported statistics of motor vehicle accidents, which show 12% of all fatal crashes in 2008 involved drivers ages 16 to 20. (The National Highway Traffic Safety Administration).

Intoxication

Half of fatal motorcycle accidents involved drivers under the influence of alcohol. The National Highway Traffic Safety Administration

Fatalities on the Decline

According to the Governors Highway Safety Association report, motorcyclist fatalities dropped 10% in 2009 and it is predicted to continue to decrease in California throughout 2010 by at least 29%. Experts contribute the decline to the enactment and enforcement of helmet laws and motorcyclist education and licensing requirements reducing the risk of inexperienced and incompetent motorcycle operators on California roads. (Governors Highway Safety Association report April 22, 2010).

If you have been injured in an automobile or motorcycle accident please contact the Law Offices of Ledger & Associates.

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