Personal Injury Law
I. VEHICULAR NEGLIGENCE
A. Vehicular negligence applies to all types of vehicles. This includes cars, trucks, motorcycles, bicycles, and all others moving on the roadway, including pedestrians. Negligence is a special term in the eyes of the law. California law defines negligence as the failure to use a reasonable amount of care under the circumstances. The statutes of California further provide rules that must be obeyed when operating a motor vehicle on a street or highway. Violation of any statute of the Vehicle Code would be considered negligence per se (by operation of law) and may be the basis for an award of damages. The most common violations are tail-gating, speeding, illegal lane changes, running red lights or stop signs, and failure to yield while merging. Vehicular accidents account for a large number of catastrophic injuries every year and a significant number of deaths. Driving under the influence of alcohol and drugs are frequently associated with the worst accidents.
B. Economic Damages. When the negligence of a defendant results in the damages suffered by the plaintiff, the plaintiff is entitled to recover economic damages for actual expenses caused by the accident. These will include costs of repair to vehicle, storage charges, rental vehicle charges, total loss payment (for vehicles that are a total loss), repair costs, alternative travel expenses (bus, taxi, etc.), and personal property damaged in or on a vehicle (e.g. equipment in trunk of car being damaged). Economic damages also include the cost of medical care, therapy, appliances, and future expenses for required medical care and appliances or supplies. Past and future loss of earnings is a frequently litigated issue in personal injury and wrongful death cases. The present value of future losses are recoverable in California, provided they can be shown to more than likely to occur in the future as a result of the negligence of defendant.
C. Non-Economic Damages. Pain and suffering damages, or non-economic damages, are recoverable in a personal injury case in California. There is no set standard for juries to determine general damages, however, the items considered by a jury will include evidence of physical and mental suffering, anxiety, worries, depression, and other mental or emotional forms of suffering caused by the negligence of the defendant. Pain and Suffering damages in California cases are shared proportionately between the defendants in relation to their share of fault (e.g. 70% and 30%).
D. The statute of limitations is the law that limits the time within which a lawsuit must be filed, or the claim will be permanently barred. Some general rules which apply in California are:
1. Adults (over 18) have 2 years from the date of the accident to file suit
2. Minors (under 18) have until their 20th birthday to file suit
3. Government Entity Cases are cases against any kind of governmental agency, e.g. San Francisco Police Department, or the City and County of San Francisco. All plaintiffs, including minors, have 6 months from the day of the accident to file a government claim (utilizing the proper claim form) with the appropriate governmental entity. Claimants have 6 months from the date of the rejection of the claim to file suit; but if no rejection of the claim is made, up to 2 years to file suit.
4. Uninsured Motorist and Hit and Run Claims. California has specific and strict requirements in the case of making a claim against one’s own auto insurer under the uninsured. A lawsuit must be filed within 1 year of the accident, or a demand for arbitration must be made within the year. For hit and run cases, a notice to the insurance carrier must be made, and a police report filed, within 30 days.
II. MEDICAL NEGLIGENCE.
A. Medical negligence or medical malpractice is a case brought against any health care providers who have breached the standard of care by providing services of a caliber which fall below the accepted standard of care in the community by similarly qualified people. These cases generally require the use of expert witness who can testify that the conduct involved fell below the applicable standard of care. Bad results of a medical procedure or surgery do not of themselves establish medical negligence. Costs involved in medical malpractice cases are very high due to the large number of expert witnesses (physicians, etc.) who charge up to $1,000 per hour for their time. Attorney’s fees in these cases were reduced by law in 1975 to dissuade attorneys from filing malpractice suits, and to protect the medical profession.
B. Damages. Damages against doctors and other health care providers are limited to $250,000 for pain and suffering, or non-economic damages. Recoverable economic damages include the costs of medical care (past and future) as well lost earnings (past and future). The present value of these losses are recoverable, without limitation.
C. Statute of Limitations. The time limitations in medical negligence cases can be very complicated. The shortest time allowed within which to file suit, is one year from the date of the negligence. Time may be extended in a variety of ways, e.g. the year starts to run from the last date on which the doctor treated the patient, even after the negligence occurred. In cases where the malpractice is not discovered for a period of time, the limit can be one year from the date that the malpractice could reasonably have been discovered.
III. WRONGFUL DEATH CASES.
A. Wrongful death cases are those where someone died as a result of the negligence or wrongdoing of another. Deaths are caused in a great number of ways. Common cases include vehicular negligence, dangerous conditions, defective products, medical negligence, elder abuse, negligent law enforcement as well as many others. The persons who have the right to sue over the wrongful death in California are the legal heirs. If the decedent was married, that means the widow is the plaintiff. If there is no spouse, the children are the heirs and plaintiffs. Minors need to be represented by a “guardian ad litem” for the lawsuit. The Court must approve of settlements for minors and the funds are preserved until the minor’s 18th birthday (unless otherwise structured and approved by the court).
B. If there is neither surviving spouse nor children, the heirs are the parents of the deceased. If none of these exist, then any brothers and sisters would be the legal heirs.
C. Damages in wrongful death cases include general damages for the loss of love, society, comfort and similar items. Damages recoverable also include economic damages for provable loss of financial support, subject to certain limitations. Plaintiffs are entitled to recover the “present value” of provable future losses of financial support. For example, a surviving spouse may show that the future loss of earnings of the remainder of the deceased’s life would have a present value of $2.5 million. These numbers are based on the earning history of the deceased as well as his or her life expectancy at the time of death.
D. The statute of limitations In cases of medical negligence the one year rule and other exceptions would apply. And in the case of wrongful death as a result of the negligence of a governmental entity would be subject to the six month filing deadline for Government Claims. In all cases involving governmental entities or agencies, all possible speed should be used in investigating and making claims!
IV. DOG BITES
A. Strict Liability. In California the doctrine of strict liability applies in the case of dog bites. To win in a dog bite case, the injury party only has to prove that the dog in question is owned by the defendant and that the injury claimed was caused by the dog biting plaintiff. Most cases involve significant wounds, frequently with surgeries or gaping open wounds due to the tearing off of flesh.
B. Damages. The same rules of economic and non-economic damages apply as in the case of vehicular negligence above. The present value of future economic losses, such as medical care or loss of earnings, is recoverable in these cases. The general damages or non-economic damages are for pain, suffering, mental distress, anxiety, worry and similar mental or emotional suffering. There is no rule for how to compute these general damages.
C. Statute of Limitations. The two year rule applies to these cases where the defendant is not a governmental entity. Minors have until their 20th birthday to file a lawsuit. Minor’s cases must be approved by a judge, and the funds do not become available to the plaintiff until his/her 18th birthday.
V. PRODUCTS LIABILITY.
A. Legal Theories of Recovery. There are three different theories that may apply in cases of a dangerous or defectively designed product causing injury or death. Firstly, there may be strict liability if the product is not fit for the intended purpose. Secondly, there may be liability based on negligence, if the product was negligently manufactured so as to be dangerous and cause the injury. Lastly, there may be a case of breach of warranty, based on either written warranty or implied warranty of the products. Cases where the manufacture had knowledge of the design defect that made the product dangerous, could lead to an award of punitive damages, to make an example of the defendant and to deter similar conduct in the future.
B. Statute of Limitations. Strict liability and negligence have the 2 year statute of limitations (from the date of injury). In the case of minors the limit is the 20th birthday of the minor.
C. Costs. The costs involved with defective products cases include expert witness testimony from designers, engineers and the like, as well as testing of sample products. Because of the extraordinary expenses associated with products liability cases, the firm will only handle cases when the damages involve catastrophic injury or death.
VI. ELDER ABUSE.
A. The law defines elder abuse as "physical abuse, neglect, financial abuse, abandonment, isolation, abduction or other treatment with resulting in physical harm or pain or mental suffering, or the deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering." (Welfare & Institutions Code, Section 15610.07 and in Penal Code 368) "Elders" are defined as persons 65 years of age or older.
B. Physical Abuse: Assault, battery, sexual assault, battery or rape, prolonged or continual deprivation of food or water, or use of physical or chemical restraints for punishment, convenience or without or beyond the scope of the doctor's order.
C. Neglect: The failure to exercise that degree of care that a reasonable person in a care providing capacity would exercise such as failure to assist in personal hygiene, provision of food, clothing or shelter, provision of medical care, or to protect from health and safety hazards or to prevent malnutrition or dehydration.
D. Note: This includes self-neglect; one of the most common forms of abuse occurring in community settings.
E. Financial Abuse: The illegal or unauthorized taking or using of an elder's funds, property or assets by an individual or entity
F. Mental Suffering: Fear, agitation, confusion, severe depression or other forms of emotional distress that is brought about by threats, harassment, or other forms of intimidating behavior.
G. Isolation: The intentional preventing or restraining an elder from receiving mail, telephone calls or visitors.
H. Types of Cases. The California statute is designed to protect people over the age of 65 and also people who are dependent or disabled. Common cases involve neglect at the nursing home resulting in bed sores and other complications of their health, or resulting in death. Sometimes the conduct of a nursing home is a pattern of denying certain types of care. Such that the authorities can fine the offending institution. Depending on the severity of the wrongful conduct different fines might be levied.
I. Survival of Damages Award. In a personal injury case the plaintiff is entitled to recover for pain, suffering, mental and emotional damages. However, if the plaintiff were to die in a personal injury case before the final verdict, the claim for general damages for pain and suffering would be lost and the heirs would be limited to suing for their allowable damages, which do not include compensation for pain, suffering and emotional distress. In an Elder Abuse case, however, the pain and suffering claim of the plaintiff survives the death, and the heirs are able to pursue the general damages claim. This is a major distinction between personal injury or medical malpractice cases and elder abuse cases under the California statute.
Statute of Limitations. The time limit for filing a suit in California for Elder Abuse is one year from the date of the offense or wrongful conduct.
