Posts Tagged ‘Personal Injury’

What Does Neligence Mean With Respect To The Law?

Wednesday, 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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What are personal injury “DAMAGES”?

Friday, 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

Friday, 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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YOUR AIR BAG DID NOT DEPLOY – IS IT FAULTY OR DEFECTIVE?

Thursday, July 22nd, 2010

By:  Brooke Kopanski, Case Manager, Ledger & Associates

Tell someone you’ve been in an auto accident and their response is likely to be “Did your air bags deploy?” Don’t take this to mean that that person doesn’t care about your well being or the fact that your beloved vehicle is damaged. We have been conditioned by years of evening news reports featuring images of crash test dummies being saved by cloud-like air bags to believe that any front-end collision should result in the deployment of the vehicle’s air bags. Car experts say that consumers have many misconceptions about air bags. Specifically, they say consumers don’t understand:

• Air bags are not designed to deploy in every accident;

• Certain criteria — or deployment thresholds — must be met for airbags to deploy;

• A totaled vehicle is not an indicator of whether an airbag should deploy;

• Air bags are a supplemental restraint system. They are not designed to replace seat belts.[1]

Air Bags Are Not Designed to Deploy in Every Accident

According to the National Highway Transportation Safety Administration[2] and the Insurance Institute for Highway Safety[3], not all front-end collisions are appropriate for airbag deployment. Frontal airbags are designed to protect the occupants’ heads and chests from hitting the steering wheel, instrument panel, or windshield. They are not designed to deploy in side impact, rear impact or rollover crashes. Since air bags deploy only once and deflate quickly after the initial impact, they will not be beneficial during a subsequent collision. Safety belts help reduce the risk of injury in many types of crashes. They help to properly position occupants to maximize the air bag’s benefits and they help restrain occupants during the initial and any following collisions.

Deployment Thresholds Must Be Met for Air Bags to Deploy

Frontal airbags are designed to inflate in moderate to severe frontal crashes. The “must deploy” threshold for belted occupants is 16 mph. At these moderate speeds, the belts alone are likely to provide adequate protection to the vehicle’s occupants.[4]

Even if your collision occurred at a speed greater than 16 mph, your airbag may have properly remained in your steering column. Your car is equipped with sensors that determine the rate of your vehicle’s deceleration, your size and location in the vehicle, and whether your seatbelt is in use. Airbag deployment tests performed by auto makers and various regulatory organizations are often simulations of full frontal collisions into barriers. However, in real-world situations, a collision is rarely ever straight on, but usually occurs at an angle. Consequently, the relative speed between a striking and struck vehicle required to deploy the air bag in a real-world crash can be much higher than an equivalent barrier test crash[5].

A Totaled Vehicle Is Not An Indicator of Whether An Air Bag Should Deploy

Damage to your vehicle is not a good way to gauge whether the air bag should have deployed in your collision. Your vehicle is made to crush, or crumple, to protect you. The idea is to minimize the force on your body and absorb energy efficiently so that when you hit something, the structure crushes as evenly as possible.[6] The terms “totaled” or “total loss” are used by the insurance industry to determine the value of a vehicle. In most states, a car is deemed a “total loss” if the cost of repairing the vehicle is 51% or more of the vehicle’s pre-accident value.

Air Bags Supplement Seat Belts

Car experts say some consumers have the dangerous misconception that their air bags give them so much protection they don’t need to wear their seat belts. That’s a false — and potentially deadly — notion. Your seat belts and your air bags work in unison – seat belts hold you in the proper position, which is critical for the air bags to do their job. [7] Unbelted or improperly belted occupants can come into contact with the air bag module during pre-crash braking. Being near or against an air bag module when it deploys can result in serious or fatal injury.[8]

Air bags must inflate very rapidly to be effective, and therefore come out of the steering column or instrument panel with considerable force and generally at a speed over 100 mph. Because of this initial force, contact with a deploying air bag may cause injury. These air bag contact injuries, when they occur, are typically very minor abrasions or burns. More serious injuries are rare; however, serious or even fatal injuries can occur when someone is very close to, or in direct contact with an air bag module when the air bag deploys. Such injuries may be sustained by unconscious drivers who are slumped over the steering wheel, unrestrained or improperly restrained occupants who slide forward in the seat during pre-crash braking, and even properly restrained drivers who sit very close to the steering wheel.

Faulty and Defective Air Bags

This is not to say that there haven’t been cases where the airbag should have deployed but failed to do so. The NHTSA has recalled several vehicles because “some frontal airbags may not inflate properly and in the event of a crash, the passenger may not be adequately restrained, increasing the risk of personal injury.”[9] If you believe that your airbag should have deployed but failed to do so, please contact our office.

[1] http://www.consumeraffairs.com/news04/2006/airbags/airbags_new_cars.html

[2] http://www.nhtsa.gov/people/injury/airbags/airbags03/page3.html

[3] http://www.iihs.org/research/qanda/airbags.html

[4] http://www.iihs.org/research/qanda/airbags.html

[5] http://www.nhtsa.gov/people/injury/airbags/airbags03/images/Air%20Bags0307.pdf

[6] http://www.consumeraffairs.com/news04/2006/airbags/airbags_new_cars.html

[7] http://www.consumeraffairs.com/news04/2006/airbags/airbags_new_cars.html

[8] http://www.nhtsa.gov/people/injury/airbags/airbags03/images/Air%20Bags0307.pdf

[9] http://www.consumeraffairs.com/news04/2006/airbags/airbags_new_cars.html

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Eligibility to Filing a Wrongful Death Lawsuit – A California Wrongful Death Attorney Explains

Friday, July 9th, 2010

The death of a family member or loved one can be an extremely difficult time in your life – especially if the death was not one of natural causes. The situation can be frustrating as the negligence of another individual’s behavior caused the death of your beloved. In this instance, though it may be difficult and emotionally draining, the best course of action is to consult a wrongful death attorney who can assist you through the process. Unlike other personal injury cases, a wrongful death claim must be filed by the surviving family members of the deceased. However, there are statutes of limitation and state laws that must be complied with in order to successfully file a claim.

Then the central question is – who is eligible to file for a wrongful death lawsuit? The answer to that question is – it depends. In all states, including California, immediate family members (spouses, children, etc.) can file a wrongful death suit against the responsible party(ies). However, there are other various state laws that dictate if extended family members can file a lawsuit (sometimes), and what the statutes of limitation are when filing a wrongful death suit. Statutes of limitation put a time limit on when the lawsuit can be filed; family members cannot file a claim after this time period has passed, unfortunately.

A wrongful death is an extremely tragic incident, and the family who undergoes the pain and suffering deserves to be compensated for their losses. Not only is there financial damage that the family is forced to deal with, but a family and a circle of intimately acquainted individuals consist of a dynamic. A family is able to function on the dynamic of all of the individual family members, and a wrongful death takes a crucial factor out of that equation. Emery Ledger, a California wrongful death attorney, has taken on wrongful death cases and understands the family’s pain and suffering in these extenuating circumstances. Not only is the family forced to pay medical expenses, funeral expenses, and property damage, but they must also cope with the loss of a loved one. You and your family do not deserve to go through this, and hiring a wrongful death attorney can at least minimize the financial burdens you may be facing during this difficult time. Why should you have to be financial responsible for an action that you did not commit?

If you have suffered the loss of a family member as of a wrongful death, the most important thing is to have the best legal representation available to you and your family.  If you would like a free and detailed evaluation of your California wrongful death case, please contact a wrong death lawyer from the Offices of Ledger of Ledger & Associates for more information on your legal options. Please call 1-800-300-000 or visit the website at www.ledgerlaw.com

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What To Do After a Hit and Run Car Accident?

Friday, July 9th, 2010

Over 6 million car accidents take place in the United States each year and approximately 11% of all motor vehicle accidents are hit and run car accidents. Recent studies show that up to 700,000 car accident cases each year are a result of hit and run incidents. Over the past decade, hit and run accidents have actually decreased on average (statistics reported by the National Highway Traffic Safety Administration), however, in California, the hit and run rates have increased in the past decade. In order to make sure you do not become a victim of a hit and run accident, immediately consult a California car accident attorney who can help you through this process and find those at fault and hold them responsible for damages.

A hit and run is defined as a motor vehicle accident where the at-fault party “runs” after the incident. This means that the at fault party does not exchange any insurance or contact information, making it impossible to track them down and hold them liable for any damages that may have occurred. The worse kind of hit and run occurs when an innocent driver, passenger, or pedestrian is killed as a result of another driver’s negligent behavior. The federal law requires the at-fault driver to leave all contact information (usually on the windshield) for the affected driver and/or car if there were no witnesses at the scene. Before you think about running from the site of an accident, just remember that hit and runs can be charged with civil and criminal penalties. Other than paying for damages done to the other party, you may be faced with additional fines, jail time, and suspension of your drivers license among various other punishments that may be far worse than dealing with the car accident when it happens.

Car accident lawyer Emery Ledger has many years of experience with personal injury cases and car accidents, and many people do find themselves in a difficult situation, left with either bodily injuries and/or property damage as a result of another driver. The most important thing after a hit and run is to receive all proper medical treatments. Then, contact the nearest police department and request for a report to be filed. If you can recollect a description of the driver, vehicle, and/or license plate this can all be used to help the police and attorneys find the driver(s) responsible for the damage.

Many times, drivers find that their insurance plans do not cover hit and run accidents, therefore if you are offered the option to include this in your coverage, it is always safe to do so. However, it is also important to contact an experienced car accident attorney right away following the hit and run. Insurance companies are trained to keep as much money within the company and you may need an attorney to fight for you.

If you or a loved one has been involved in a hit and run car accident, please contact the Law Offices of Ledger & Associates. We have experienced attorneys who can give you a free consultation. Please call (800) 300-0001 or visit the website at www.Ledgerlaw.com

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Three Areas to Watch For to Avoid a Car Accident

Wednesday, July 7th, 2010

The high-flying action and thrilling chase scenes that we so avidly engross ourselves in masterful productions of various Hollywood studios often reveal reckless driving and unsafe roadway behaviors. Often, it seems inevitable that scenes like these would cause accidents on the freeways as drivers may not have enough time to respond to the oncoming set of circumstances in an unsafe environment. Ironically though, the most common places that the majority of day-to-day accidents do not take place on the freeway. In fact, the majority of car accidents take place in very unsuspecting areas…

Recent studies have compiled data that conclude 52% of all car accidents happen within 5 miles of your home. This staggering number reveals that drivers, who travel to and from home on average of 2-3 times a day, are very comfortable with their neighborhood and often let their guard down as they near their residences. As a result, more than half of all motor vehicle accidents occur when drivers are near, or around their homes. Although all vehicle collisions are serious, residential car collisions could not only injure the drivers and/or passenger(s), but also hit small children or pedestrians who may have been near the site of the accident right before it happened. California car accident attorney Emery Ledger has dealt with thousands of car accident cases and knows how complicated the matter can amount to. In this instance, it is best to immediately contact an attorney who is experienced in car accident and traffic accident cases to protect you from unknown legalities while helping you to recover the most for any damages.

The second most common area for car accidents is parking lots. It is not uncommon for two cars to be backing out of oppositely positioned parking spots, or for a speeding car to swerve around a corner and hit an oncoming vehicle. These are all familiar situations that could be avoided if there were safer precautions taken by all drivers. Fortunately, parking lot car accidents usually occur at low impacted speeds, minimizing bodily and property damages; however, drivers usually sustain soft tissue injuries. Regardless of how, when, or where the accident may have occurred, it is always safest to consult a car accident attorney following the incident.

Following suit, the third most common place for car accidents is on surface streets. Millions of drivers use surface streets on their way to and from work, the bank, and the grocery market. Inevitably, a car accident is bound to occur, and many times it may not be your fault. You may simply find yourself the victim of another driver’s behavior. Many times, those impacted in a car accident may sustain serious bodily injuries and may require medical attention. You should not be force to pay for these expenses out of pocket, especially when you are not at fault.

We understand that being in a car accident is stressful and we want to help you focus on you recover quickly. If you would like to consult a personal injury lawyer regarding your case please contact a professional car accident lawyer from the Offices of Ledger & Associates for more information. Please give us a call at 1-800-300-0001 or visit the website at www.ledgerlaw.com.

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