Posts Tagged ‘punitive damages’

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

Tags: , , , , , , , , , , , , , , , , , , , , , ,
Posted in Personal Injury | No Comments »

California Mesothelioma Lawyer

Wednesday, June 23rd, 2010

For the millions of people in America now suffering with mesothelioma cancer, the question of whether or not they have a valid lawsuit and what it may be worth surfaces. Hearing a diagnosis of cancer is traumatic under any circumstances. Hearing that you may have planted the seeds for that cancer decades ago simply by doing your job is devastating news. That, however, is exactly what has happened too many of the mesothelioma cancer victims in the United States.

Estimates vary, but even conservative estimates put the number of mesothelioma cases that are caused by previous exposure to asbestos at 80%. Some experts put that percentage as high as 90%. Mesothelioma was once considered a vary rare form of cancer. .In people afflicted with mesothelioma, malignant cancer cells are found in the mesothelium, a protective sac that protects and covers many of the body’s internal organs. Scientists and doctors believe that when someone is exposed to asbestos dust particles, these particles are breathed in and subsequently enter the lungs. Years, even decades, later, those particles can cause the cells of the mesothelium to become abnormal and eventually lead to mesothelioma cancer.

If you have recently been diagnosed with mesothelioma cancer, you may be entitled to receive compensation for the injuries you have suffered as a result of the cancer. Under the California laws of negligence, if someone that had a duty of care to you breaches that duty and causes injuries, then you may be entitled to compensation. In the case of asbestos related mesothelioma, if you once worked in any of the numerous industries that used asbestos, then your employer or the manufacturer of the products that contained the asbestos could be responsible for your injuries. According to California mesothelioma lawyer Emery Ledger of Ledger & Associates, under a California personal injury lawsuit such as an asbestos related mesothelioma case, the victim may be entitled to economic and non-economic damages. “Damages” is a legal term that is used to refer to injuries. Economic damages generally include things that have a quantifiable numerical value such as medical bills or time lost from work due to the illness. Non-economic damages are what many people think of as pain and suffering. In addition, under some circumstances, punitive damages can be awarded when the judge believes that the defendant’s actions (or inactions) were particularly egregious and that the defendant acted with malice. California courts have led the way with some of the highest mesothelioma awards in the country and judges have not shied away from awarding punitive damages as part of those awards.

If you have recently been diagnosed with mesothelioma, seek the advice of an experienced California mesothelioma lawyer as soon as possible. While the statute of limitations for asbestos cases does not require that a lawsuit be filed shortly after exposure as many other personal injury cases require, it does require that you file a lawsuit within a short time after you have been diagnosed. For a free and confidential detailed evaluation of your mesothelioma case, contact the mesothelioma firm of Ledger & Associates at 1-800-300-0001 or visit them on the Internet at www.ledgerlaw.com.

Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , ,
Posted in Personal Injury | No Comments »

California Attorney Discusses the Difference Between a Survivor Action and a Wrongful Death Action

Tuesday, May 18th, 2010

If you have lost a loved one through the negligence or other intentional wrongful act of a person or persons, then you may be entitled to file a wrongful death or survivor action in the State of California. So what are these two types of actions and how are they different?

A wrongful death action is governed by California Code of Civil Procedure Section 377.60 and is filed by one, or more, of the heirs of the decedent. The heirs that are qualified to file are generally close family members such as spouse, children, parents or heirs of those family members. The theory behind a wrongful death action is that the heirs have the right to file for compensation for the future support that they would have received from the decedent had he lived. They may also recover for non-economic losses such as loss of companionship, support and consortium. While these are called “non-economic” losses, they are compensated in monetary terms. The computation of damages in a wrongful death action is very complicated and must take into account numerous factors such as the earning capacity of the decedent at the time of death, future earning capacity, age and health at time of death and contribution to the support of the household. What are NOT taken into account in a wrongful death action are any damages suffered by the decedent prior to his actual death. In other words, if the decedent did not die immediately, any damages that the decedent suffered are not compensable in a wrongful death lawsuit. Additionally, punitive damages cannot be awarded in a wrongful death lawsuit.

A survivor action is governed by California Code of Civil Procedure Section 377.30 and is filed in the name of the deceased by a living representative. Any compensation won in a survivor action is then paid to the heirs of the decedent through the decedent’s estate. A survivor action is intended to compensate the decedent for damages suffered by the decedent before death. In other words, if the decedent was in an automobile accident and was not killed immediately on impact, then any time that the decedent lived from the moment of impact until death is compensable. The time of survival can be only seconds or months in theory. The important issue in a survivor action is whether the decedent survived for ANY period of time after the incident or accident that gave rise to the death happened. Damages in a survivor action are limited to damages actually suffered by the decedent such as medical bills prior to death; however punitive damages can potentially be awarded in a survivor action if it can be proven that the Defendant’s conduct was willful, wanton, reckless or malicious. This is a significant difference between a wrongful death action and a survivor action.

If you have suffered the loss of someone close to you and would like additional information on your legal options, please feel free to contact the California law firm of Ledger & Associates for an appointment with attorney Emery Ledger. The lawyers at Ledger & Associates have been fighting for victims and their rights for over a decade and would be happy to sit down with you for a free and confidential detailed evaluation of your case. They can be reached at 1-800-300-0001 or online at www.ledgerlaw.com

Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , ,
Posted in Attorney-Lawyer, Wrongful Death Lawyer | No Comments »

How Do I Know How Much My Orange County Motorcycle Accident Case Is Worth?

Saturday, April 24th, 2010

Orange County California is undoubtedly one of the most desirable locations to be a motorcycle owner. Who wouldn’t want to jump on a bike and take a ride along the Pacific Coast or take a day trip up into the nearby mountains? For true motorcycle enthusiasts, there is simply nothing like the freedom you feel on your bike. Sadly, that freedom is interrupted all too often by motorists who pay no attention to bikes and cause collisions. Despite efforts in recent years to educate drivers about the presence of motorcycles, accidents continue to happen. In fact, motorcycle fatalities may be increasing not decreasing. According to a recent report by the National Highway Traffic Safety Administration (HNTSA), fatalities per million miles traveled for motorcyclists have almost doubled from 1997 to 2004.

According to motorcycle accident attorney Emery Ledger of Ledger & Associates, the Orange County statistics aren’t much better. For the year 2008 – the latest year for which records are available – there were 801 injury accidents involving motorcycles and 35 fatalities according to the California Highway Patrol. With almost 60,000 motorcycles registered in Orange County, it is not surprising that they are involved in collisions; however their involvement is disproportionate to the percentage of all vehicles driven in the county. Motorcycles represent about 2.5% of all vehicles registered in the county, yet they are involved in almost 7% of all injury accidents. Statistics also tell us that the vast majority of the time, the motorcyclist wasn’t at fault in the accident.

So how do you know what your Orange County motorcycle accident case is worth if you have been involved in an accident that wasn’t your fault? There is no exact formula, however the value of your case will be a combination of economic and non-economic damages. Under California law, you are entitled to be compensated for all out of pocket expenses (economic damages) such as medical bills, damage to your bike and lost wages from missing work. You may also be entitled to compensation for your non-economic damages. These are the damages that people commonly refer to as “pain and suffering”. Non-economic damages actually cover a variety of non-quantifiable damages such as disfigurement, grief, loss of enjoyment of life and humiliation. These damages are much more difficult to put a number on as they are very case specific. In certain cases, punitive damages may also be applicable. Once all of these damages have been determined by you and your attorney, a demand will be made to the responsible party’s insurance provider. If a settlement amount that is acceptable to you is not reached, then you will take your case to a jury trial and they will decide how much you will be awarded

As every motorcycle accident case presents a slightly different set of circumstances, the best thing you can do is consult with an experienced Orange county motorcycle accident attorney to get an idea of exactly what your case is worth. For a free and detailed evaluation of your Orange County motorcycle accident case, please call Attorney Emery Ledger of Ledger & Associates r 1-800-300-0001 or visit www.ledgerlaw.com

Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , ,
Posted in Motorcycle Accident Lawyer | No Comments »

Fresno Wrongful Death Attorney Explains Value of Wrongful Death Claim

Friday, April 9th, 2010

Accidental deaths are one of the leading causes of deaths in the United States. In Fresno County alone, there were one hundred twenty-seven fatal vehicular accidents in 2008 according to the California Highway Patrol. When someone we love dies as the result of an accident, we frequently lose not only their love and affection, but financial support as well. According to Fresno wrongful death attorney Emery Ledger of Ledger & Associates, this is when we should consider filing a wrongful death claim. If you are like most people, you are asking yourself “How can I possibly put a dollar value on the life of my loved one?”. This is a perfectly normal question to be asking yourself and one that Fresno wrongful death attorney Emery Ledger gets asked all the time. The reality is that the laws of California have evolved to provide a framework to attempt to do just that.

Under the wrongful death statutes in the State of California, a claimant in a wrongful death lawsuit can recover for the following categories of damages:

1. Future earning capacity
2. Loss of household services
3. Loss of love, companionship and consortium
4. Funeral and burial expenses
5. If the decedent survived for any length of time – survival benefits
6. Under special circumstances punitive damages can also be awarded

The first three of those categories are the most complicated and difficult to determine, says Fresno wrongful death attorney Emery Ledger of Ledger & Associates. No one wants to put a value on the life of their spouse, parent or child. It is a highly emotionally charged process and can take months – or even years – to come to conclusion.

Your wrongful death attorney must determine who was at fault for your loved one’s death. Once fault has been determined, then he can begin the process of valuing your claim. Many factors will go into valuing a wrongful death claim including: earning capacity of the decedent; educational level of the decedent; relationship between the claimant and the decedent; age and health of the decedent and claimant; and family size and age of children. All of these factors and many more must be taken into consideration when determining what a wrongful death claim is worth.

Fresno wrongful death attorney Emery Ledger says that he will often need to consult with economists, accountants and medical doctors in evaluating the value of a wrongful death claim. If the decedent was contributing financially to the family, then the decedent’s present and future earning capacity must be calculated. While this can be complicated, it is largely based on what the decedent was earning at the time of death plus any education that he had to add future value to his earning capacity. If the decedent was performing household services then the value of those services must be determined. These household services can be a little more difficult to value but generally have a connection to how much the family as a whole was earning. Loss of love, companionship and consortium (if applicable) can be even harder to value. The closeness of the relationship between the decedent and the claimant will play a big part in this value.

As you can see, valuing a wrongful death claim is a long and complicated process and one that requires the guidance of an experienced wrongful death attorney. If you would like a free detailed evaluation of your potential wrongful death claim, contact Fresno wrongful death attorney Emery Ledger at Ledger & Associates – 1-800-300-0001 or at www.ledgerlaw.com

Tags: , , , , , , , , , , ,
Posted in Wrongful Death Lawyer | No Comments »

Workplace Wrongful Death Results in Lawsuit

Monday, April 5th, 2010

Construction site accidents are quite common in the US, as most worksites are ripe for bad things to happen. While many of the people who work in the construction industry realize they are taking a risk every day, they get up and go to work, and get out there to get the job done. Most of them expect to come home at the end of the day. Some of them don’t make it.

In this case, a steelworker was killed while at work when a pot hauler carrying slag inside the steel plant ran over the 58-year old man. Pot haulers are enormous pieces of equipment that deal with removing the byproducts of smelting. The man died of his severe injuries, including blunt force trauma, shortly after the incident.

The man was a contracted worker, a pot welder, who was working at the steel plant the day of his death. His devastated family contacted a wrongful death attorney to file a lawsuit against the steel plant for failing to provide a safe worksite. The suit further stated the company had a legal duty of care to the worker and that it was negligent in not providing proper safety measures to protect the workers onsite.

In addition, the language used in the lawsuit suit by the wrongful death attorney indicated that the company further neglected to administer safety protocols that may have saved the pot welder’s life. The man’s wife and their son are suing for the loss of love, support and affection by the husband and father.

Their wrongful death attorney will tell them that there are other areas in which they may also claim compensation, for instance pain and suffering, medical bills, funeral expenses, loss of future income of the husband and punitive damages. Punitive damages are generally awarded if the conduct of the defendant was grossly negligent. If the driver of the pot hauler was texting on his cell phone or speeding inside the plant without regard to others, this conduct may classify as gross negligence.

Restitution in wrongful death cases usually comes in the form of a verdict handed down by a jury, although that isn’t always the case, as a settlement may be another alternative. A wrongful death case is one like this one, in which a person’s dependents (here, the wife and son) are asking the courts for compensation for the negligence of another. Cases like this are handled by a wrongful death attorney with experience in dealing with this area of the law.

At one time, if a person was killed due to the negligence of another, any claim they may have had was considered to have died with them. Over time, this point of view changed, because the survivors were often left in difficult financial positions with the death of a provider. Most states realized if another’s negligence killed someone, those left behind deserved compensation for the wrongdoing/wrongful death of that person. To this end, most states now have wrongful death statutes. They tend to vary from state to state, and you should ask your wrongful death attorney what laws are applicable in your case.

When this family contacted a wrongful death attorney to talk about filing a lawsuit, he outlined a variety of ways personal injuries may be sustained while at work: being exposed to hazardous materials (manganese or asbestos), defective equipment, improper safety protocols, or no safety protocols and reckless or negligent workers. The bottom line is that the person or persons responsible for the death of this worker may be charged with negligence because their actions contributed or caused death.

In this instance, the widow acted quickly in calling a wrongful death attorney, which is good, because they need to make sure the case is filed before the Statute of Limitations runs out. If the suit is not filed in time, the plaintiff loses the option to sue the wrongdoer. This is something else that varies from state to state as well, so don’t wait to talk to an experienced attorney.

Usually, one of the first things a wrongful death attorney will attempt is to negotiate with the defendant’s insurance company. However, if they can’t reach a fair and equitable settlement, the plaintiff has the right to go to court. This often is the better route, as the judge is the final arbiter of the award, which in many cases is higher than what the insurance company was willing to agree to.

As you can see, a wrongful death attorney has a lot of skill and experience when it comes to handling cases of this nature. In any instance where you have lost a loved one due to an accident that was someone else’s fault; don’t wait to speak to a wrongful death attorney. Time is crucial in cases like this.

Tags: , , , , , ,
Posted in Wrongful Death Lawyer | No Comments »

Which Form of Compensation Can I Qualify for After An Auto Accident?

Tuesday, February 9th, 2010

Millions of people figure into car accidents each year, resulting to personal injury and damage to property. Should the accident be minor, what most injured victims would do is simply to file police reports, contact their insurance company, but shoulder the losses themselves. But major accidents are a league of their own. If you sustained injuries under this category, you should be informed that you can be compensated not only for the damage to your car, but for other related damages as well.

If you suffered injuries from a car accident, you will most likely incur expenses that are connected to the accident such as medical treatment, rehabilitation, transportation expenses while the car is sent to repairs. It is common occurrence among auto accidents that victims’ expenses suddenly increase and you may lose potential earnings as a result of physical injuries. Moreover, you may find it difficult, if not impossible, to perform your daily activities, be it for a shorter or longer period. You may also experience pain and suffering on top of it all.

The good news is you can receive compensation for these types of injuries and expenses. On a general note, auto accident victims claim what is known as compensatory damages. Compensatory damages are intended to indemnify you as a way of ‘making you whole again,’ just like the way you were before figuring into an accident. This kind of damage comes in two types: economic and non-economic. The first is awarded to you for the expenses you incurred as a result of the accident while the second is granted as indemnification for any pain and suffering that the accident caused you. You can claim both if applicable.

Extreme accident cases also entitle you to punitive damages. These are available if the injury was on account of the driver’s recklessness or irresponsibility, or if the accident was caused by the car’s poor or defective condition which can be attributed to the manufacturer’s breach of warranty.

Compensation claims arising from auto accidents are beneficial but only if you know how to proceed. A good number of people do not opt for such claims either because they are not aware of it or granting that if they do, they do not want to get caught in a legal battle to get it.

But compensation claims arising from auto accidents are within your right and it would be a waste not to take advantage of that right. You are the victim—the one who has been inconvenienced by the onslaught of someone’s palpable mistake and you deserve to be indemnified of that inconvenience. Had the accident not happened, your life may have proceeded in the usual manner. And people who were responsible for this should own up to answer for their faults.

If you are concerned about the hassle of claiming for compensation, you need not worry further as it is easy. If you want to be spared from all the process this will bring, you can easily locate an experienced lawyer to handle this process for you. Go for the trusted lawyers who have established names as trustworthy and competent litigators who can help you get your claim in the most efficient and effective way possible.

Tags: , , , , , , , , , , , , , , , , , , ,
Posted in Attorney-Lawyer | No Comments »