INJURED BY A PRODUCT?
Ordinarily, for plaintiffs to hold someone liable for their injuries, they must prove that the defendant was careless. However, because it’s very difficult for consumers to prove that a manufacturer or seller of a product was careless, the law developed a doctrine known as “strict liability.” It allows a person who is injured by a defective or dangerous product to recover compensation from the manufacturer or seller of the product if three conditions exist: The product had an “unreasonably dangerous” defect that injured the consumer of the product. The defect must also have caused an injury while being used in its prescribed manner. Lastly, the product must not have been substantially changed from the condition in which it was originally sold.
HINT: Strict liability is a way of holding someone accountable for behavior, regardless of fault. It only applies to civil, not criminal, law.
INFRACTION, MISDEMEANOR, OR FELONY?
Crimes are usually categorized in accordance with their level of seriousness. An “infraction,” the least serious type of crime, typically involves being handed a ticket for something like a traffic violation and paying a fine. “Misdemeanors” are more serious than infractions and may be defined as crimes that are punishable by a year of jail time spent in a local county jail. Prosecutors generally exercise a considerable amount of flexibility when deciding which crimes to charge and how to punish them, and negotiating plea bargains. “Felonies” are the most serious crimes, such as murder, rape, burglary, kidnapping, or arson. These crimes are punished in ways that may match the severity of the crime, with prison sentences greater than one year.
HINT: Punishment for misdemeanors can also include payment of a fine, probation, community service, and restitution.
Laws determining liability for dog bites vary according to state and are of two general types: The “one bite rule” focuses on whether the dog’s owner knew (or should have known) that his or her dog would bite and whether the necessary steps were taken to prevent the animal from biting. The recipient of the bite (plaintiff) must provide sufficient evidence to convince the jury that it was “more likely than not” that the defendant knew or should have known the dog might bite. States that have adopted the “strict liability” statutes hold the defendant liable if a biting event occurs regardless of whether the defendant could have done anything to prevent it.
HINT: The “one bite rule” is actually a misnomer in that it no longer allows dog owners “one free bite” before they get into legal trouble.
REPORTING YOUR ACCIDENT
While a “fender bender” accident may seem to be a minor incident, those involved shouldn’t hesitate to report these accidents to the police. Failure to do so, usually as part of a mutual agreement with the other driver to keep the incident among yourselves, leaves you vulnerable to being deceived. That is, the other driver may later decide to file an accident report, which afterwards contends that he or she was injured despite claiming not to be injured at the time of the accident. Without a police report, there is no official documentation to counter the other driver’s claims that his or her injuries were your fault or that any damage found on either vehicle was caused by the accident.
HINT: Use your smartphone to take pictures and document the damage caused by an auto accident. Also, be sure to collect the contact information of any eyewitnesses.
NURSING HOME ABUSE
It’s difficult enough to make the decision to place a loved one in a nursing home without learning that he or she has endured either verbal or physical abuse. Worse yet, the majority of violations are never reported, either because the abused have no practical way of reporting their complaint or they fear retribution. Thus, it is incumbent on visiting family and friends to look for any outward signs of physical abuse (including bruises and lacerations); neglect (significant weight loss, bed sores, dehydration, and unsanitary personal hygiene); or emotional or sexual abuse (depression, anxiety, or withdrawal behavior). If a direct discussion with the nursing home administration does not satisfactorily resolve concerns that the resident’s family has, an attorney should be consulted.
HINT: The most effective form of legal recourse that victims of nursing home abuse have is a negligence lawsuit.
As the plaintiffs in a personal injury case, those who have suffered an injury, property damage, or any other kind of loss may seek compensation from whomever caused or contributed to those losses. The legal term for this kind of compensation is “damages,” which are divided into a number of categories. “Compensatory damages” are designed to make a person “whole again,” that is, returned to the position which existed before the harm or loss occurred. One of the two main categories of compensatory damages is “general damages,” the amount needed to restore the fair market value of the property to its owner. The other is “special damages,” which include the cost of services and out-of-pocket items that can be documented.
HINT: “Punitive damages” are only awarded to an injured plaintiff when the wrongful behavior of the defendant was despicable or reprehensible.
Before a defendant can be held legally responsible for harm caused by his or her negligence, the plaintiff must prove four elements. The first is that the defendant owed the plaintiff a legal “duty” to follow an accepted standard of care. Next, the plaintiff must prove that the defendant “breached” that legal duty by acting or failing to act in the way that a “reasonably prudent person” would under similar circumstances. The third element requires that the plaintiff prove that the defendant’s negligence “caused” his or her injury. Lastly, the plaintiff must prove that the harm or injury sustained caused calculable and compensable damages. The plaintiff’s attorney must determine if all these elements apply.
HINT: If a defendant in a negligence case could not have reasonably foreseen that his or her actions would cause injury to the plaintiff, the defendant will not likely be held liable.
BREAKING DOWN A CASE
When prospective clients first consider filing a civil lawsuit, they may be most concerned about the worth of their cases. Experienced lawyers, on the other hand, are more interested in reviewing all the relevant information of the case before they venture an opinion. Even then, there is no way to attach a number to any expected recovery without knowing the full extent to which a person has been injured. Full analysis requires a comprehensive medical evaluation of injuries, along with any long-range prognoses. One of the most valuable services that an attorney can perform for prospective clients is to inform them of the proper procedures for evaluating, documenting, and treating injuries sustained in accidents. Every case must be evaluated individually.
HINT: While it may be relatively easy to quantify such compensatory damages as reimbursement for property damage and medical bills, it is more difficult to place a dollar figure on the pain and suffering caused by lingering accident-related injuries.
When a person dies as a result of another person’s negligence or wrongdoing, the surviving members of the victim’s family may sue for “wrongful death.” A wrongful death lawsuit alleges that the decedent was killed as the result of negligence on the part of the defendant. Under wrongful death statutes, the surviving family members or beneficiaries are entitled to monetary damages as a result of the defendant’s conduct. This includes damages for pain and suffering, as well as for reasonable burial expenses. The surviving spouse, child, or parent could also look to the wrongdoer for damages in the amount that would be commensurate with what the deceased would have provided in the way of economic support.
HINT: In some situations, government agencies and employees might be immune from a wrongful death lawsuit.
HOW MUCH TIME DO YOU HAVE?
Every state enforces strict time limits for filing a civil action, known as the “statute of limitations.” With few exceptions, if a lawsuit is not filed within the legally prescribed limit, then a plaintiff will be legally barred from suing. Thus, those who have been injured due to negligence or intentional wrongdoing have good reason to meet with an attorney as soon as possible. Statutes of limitation are generally set by state or federal legislatures and may vary with respect to the type of claim and who is the respondent in the suit. The longest statutes of limitation are generally those regarding the recovery of judgments after a lawsuit, which involve losing parties who fail to pay their judgments.
HINT: The general purpose of statutes of limitation is to make sure that convictions are arrived at on the basis of evidence (physical or eyewitness) that has not deteriorated with time.
If you were to be injured on the job, workers’ compensation laws are designed to handle your claims. These laws are strict liability, which means that you need not establish fault and/or negligence on the part of your employer in order to collect benefits, as long as the injury/illness was incurred in the course of employment. Because workers’ compensation law imposes strict liability on employers, it is the exclusive remedy for an employee’s injuries/illnesses arising out of the course of employment. However, if a third party (such as a delivery service) were to be responsible for a condition that caused you to slip, you might have a claim against that company. An experienced attorney can help you pursue a third-party lawsuit.
HINT: If a delivery person were to be struck and seriously injured by a drunk driver, on his work route, the delivery person is entitled to collect worker’s compensation benefits and pursue a personal injury claim against the drunk driver and his insurance company.
PRODUCT LIABILITY LAW
Many years ago, the operative phrase for those purchasing goods was “caveat emptor” (buyer beware). It was the purchaser’s responsibility to check the safety of the product before buying. A consumer could only sue a manufacturer if he or she could prove either negligence or that the product did not live up to its warranties. Today, it is not reasonable to expect that consumers should be able to check products such as electronic goods for defects. Thus, the law has evolved to the point where the consumer is protected against manufacturer negligence by “product liability law,” which allows a consumer to recover damages from a manufacturer or seller on the basis of strict liability, negligence, and breach of warranty.
HINT: Strict product liability means that the manufacturer of a product is liable for selling any defective product that is deemed “unreasonably dangerous” and results in injury to the buyer or to anyone who uses it.
Have you ever asked yourself what you would do if you were to find yourself on the receiving end of a civil complaint? If not, you should know that defendants in civil suits typically have no more than 20 days after receiving the complaint to file a response. Unless the plaintiff’s lawyer provides extra time to respond (“extension of time”), defendants should proceed quickly. Failure to file a response within the allotted time can result in serious consequences such as having the court deem the plaintiff as winner by default. The simplest response to a complaint is called an “answer,” which denies the most important factual allegations and legal theories of the complaint.
HINT: In their answers to complaints, defendants in civil cases must respond to every claim the plaintiff makes.
While we may find the classic banana-peel pratfall performed on stage to be comical, there’s nothing funny about a real-life “slip-and-fall” accident. These mishaps can be more than just minor incidents for those who land on hard surfaces and suffer fractures, sprains, and strains. Once these injuries are medically addressed, a consultation with an attorney may be warranted to explore the legal concept of “premises liability.” This legal theory holds property owners liable for accidents and injuries that occur on that property. The fundamental question surrounding a slip-and-fall accident involves whether the conditions were unreasonably dangerous. It may also have to be determined what duty or responsibility a property owner owes to another on the basis of that person’s status.
HINT: Under premises liability law, it is necessary to determine if the plaintiff was an “invitee,” a “licensee,” or a “trespasser.
WHAT IS YOUR CASE WORTH?
If you have suffered injury due to the (in)action(s) of someone else, it is in your best interests to rebuff any offer to settle the claim before consulting with a lawyer. This advice is predicated on the fact that you may not be aware of the full extent of your injuries or what therapy you might eventually need. Nor are you likely to fully appreciate the long-term impact of your injury. You may also be compensated for the “pain and suffering” that you experience as a result of your injury. Moreover, you cannot know with any certainty how much income you might stand to lose. It’s never a good idea to begin negotiating a settlement without knowing all the facts.
HINT: The extent to which a person is at fault is the primary factor determining how much an insurance company is willing to pay the injured party.
Lawyers usually take on personal injury cases on a “contingent fee” basis, which means that the attorney handling the case receives a percentage of any money recovered on the client’s behalf. So when the attorney wins, the client wins. Thus, attorneys have every incentive to win their clients’ cases. Generally, if no money is recovered, the client is not responsible for any attorney fees. Contingent fee arrangements are most beneficial to those injured parties who could not otherwise afford an attorney to protect their legal interests. Therefore, those injured as a result of another person’s negligence need not feel that they are not able to file a suit in civil court to recover damages for the injuries suffered.
HINT: Other cases that lawyers will commonly take on a contingency fee are those involving employment discrimination, sexual harassment, and malpractice.
STEPPING INTO THE INSURED’S SHOES
If you were injured due to another party’s negligence, review your insurance coverage even if you plan to sue for damages. If the other party is responsible for your injuries and you expect to win a lawsuit and collect damages, you may still collect on your own insurance policy. For instance, if you were in a car crash where the other party was at fault, your insurer has an obligation to reimburse you based on any coverage you had in place for medical bills and auto repairs. Some policies then have a “right of subrogation” clause, which entitles them to recoup some or all that they paid out on your behalf should you later collect a settlement or award from the responsible party.
HINT: A “waiver of subrogation” is an agreement between two parties in which one party agrees to waive subrogation rights against another in the event of a loss.
WHO WILL DECIDE YOUR CASE?
Civil cases involving personal injury, breach of contract, professional malpractice, libel, slander, etc., call for a jury trial. When selecting the jury, lawyers from both sides have the right to review prospective jurors in a questioning process (“voir dire”), with the goal of selecting an impartial jury. During this process, jurors may be challenged and excused in one of two ways: A challenge “for cause” asks the judge to excuse a prospective juror on the basis that a legal impediment to that person’s service as a juror exists. For instance, something in the person’s answers to questions may indicate that he or she is not fair and impartial. A “peremptory” challenge can be exercised for any reason whatsoever.
HINT: There is no limit to the amount of challenges for cause, while the number of peremptory challenges is limited.
YOU, THE DEFENDANT
Defendants in personal injury cases should know there are four elements to consider: duty of care, breach of duty, causation, and damages. In most civil cases, it is the plaintiff’s burden to convince a judge or jury that the facts are true “by a preponderance of the evidence,” which means that the plaintiff must establish that the chances are better than 50 percent that his or her facts are true. One way a defendant’s lawyer might argue that the plaintiff’s case fails to establish one of the essential elements is to challenge the causation claim. If the plaintiff’s case does not show a clear link between the defendant’s actions and the plaintiff’s injuries, the defendant will not be found liable.
HINT: A personal injury complaint is the first official document in a civil case, laying out in very broad detail what the plaintiff claims the defendant did.
While plaintiffs in personal injury cases may easily point to their physical injuries, psychological injury is more difficult to prove. Judges, juries, and insurance companies tend to view psychological injury claims with suspicion because they feel that the claims are either invalid or exaggerated. This does not mean that psychological injuries are not real and cannot be proven. For instance, “posttraumatic stress disorder” (PTSD) is a provable phenomenon that manifests itself in depression, irrational fears, and an inability to concentrate. PTSD can affect those who personally experience trauma or witness a catastrophic event. Claims involving this psychological problem and others can and should be pursued. If you have suffered psychological harm, you may have the basis for a personal injury case.
HINT: Symptoms of “posttraumatic stress disorder” (PTSD) include anger, irritability, mood swings, shock, confusion, difficulty concentrating, anxiety, fear, sadness, hopelessness, guilt, shame, and reliving the event that caused these symptoms.
COMPENSATING INJURED WORKERS
While workers’ compensation laws cover only work-related injury and illness, the injury or illness need not necessarily have occurred in the workplace. This means that, if a worker were to suffer an injury or illness while traveling on business, going on a work-related errand, or participating in a work-related function, he or she would be covered. With regard to the timing of the injury or illness, it can occur suddenly (as would be the case with a fall) or can happen over time (such as developing a repetitive stress injury). Workers may also seek compensation for conditions that develop as a result of exposure to workplace chemicals/radiation/air pollution or illnesses that gradually develop as a result of working conditions.
HINT: If an employer does not have the workers’ compensation coverage required by law, employees may seek compensation for work-related injuries or illnesses by filing a lawsuit in civil court.
LAW OF ATTRACTION
The attractive nuisance doctrine holds that landowners may be liable for injuries to children trespassing on their land if the injury is caused by an object on the land that is likely to attract children. Homeowners have an obligation to place fences and gates around backyard swimming pools, as well as warn and protect against other potential dangers. If the property owner does not take the proper measures to ensure the safety of children from an attractive condition, and a child should suffer an injury due to the condition, the property owner may be held liable if it can be shown that the property owner knew that the condition was both alluring and dangerous.
HINT: Many courts require that an attractive nuisance be man-made, and many require that landowners “maintain” the nuisance in order to be liable. Therefore, while pools may qualify under this definition, ponds and lakes may not.
WHOM DO YOU TRUST?
The person you name as “executor” of your will has the legal responsibility of taking care of any of your remaining financial obligations. He or she must handle a long list of tasks prudently and promptly. The most important factor in naming an executor, therefore, is trust. The person whom you choose should be honest, organized, and detail-oriented. In many cases, people select a person who will inherit a substantial amount of property because a person with an interest in how your property is distributed is likely to do a conscientious job of managing your affairs after your death. He or she will also come equipped with knowledge of where your records are kept and an understanding of your wishes.
HINT: It may be helpful to name an alternative executor of your will in case the original executor is unable to fulfill the obligations.
WHEN PETS BITE
In some states, the owner of an animal can be held liable for the injuries it inflicts as long as the owner knew (or had reason to know) that the animal had “dangerous propensities.” Thus, those who have been injured by an animal may base their claims of liability on the animal’s past behavior when providing evidence that the owner should have known of the danger presented by his or her pet. However, it may be difficult to determine whether an owner knew of an animal’s dangerous inclinations. In other states, strict liability laws may hold a dog owner legally responsible for an animal bite regardless of whether the owner did anything wrong with respect to protecting others from attack.
HINT: If an animal owner warned others that the animal was dangerous and a person ignored these warnings, it may be difficult for the injured party to successfully sue the owner.
COLLECTING THE JUDGMENT
After a plaintiff wins a civil case in court, he or she may be faced with the possibility that the losing party (debtor) may either refuse the court order or cannot afford to pay the amount of the judgment. Plaintiffs should take this matter into consideration when deciding to pursue a personal-injury case. As a practical matter, possibilities for the recovery of damages are limited if the defendant is not insured. Even if a plaintiff were to obtain a substantial verdict against an uninsured defendant of limited means, it may not be worth the effort. The reality of many civil cases is that damages are limited to insurance proceeds, one factor attorneys are sure to discuss with potential clients.
HINT: Those holding a judgment against another individual can garnish that individual’s wages to collect the judgment.
CRIMINAL ACT, CIVIL SUIT
Even though sexual assault can give rise to criminal prosecution that results in incarceration, victims may want to file civil lawsuits for compensation for the harm they have suffered. Because there is no cause of action called “sexual assault,” the plaintiff’s attorney must find another legal theory under which the perpetrator can be held liable, such as assault and battery or intentional infliction of emotional distress. Once the legal theory of the case is established, the plaintiff can seek damages for the physical and emotional harm that was suffered and continues to be endured as a result of the abuse. However, damages may be difficult to collect because most liability insurance policies usually exclude coverage for intentional acts.
HINT: A legal rule known as “collateral estoppel” may entitle the plaintiff in a civil lawsuit to bring in evidence that a jury in a criminal case has already found the defendant guilty of committing the crime.
UTTER DISREGARD FOR OTHERS’ SAFETY
While most civil lawsuits involve either negligence or intentional misconduct, there is a middle ground that may be termed “willful and wanton,” otherwise known as “reckless” conduct. This behavior is generally defined as unreasonable conduct committed under circumstances in which the person knew that his or her actions created an unreasonable risk of physical harm and that the probability was relatively high that harm would occur. Thus, the person who commits the willful and wanton tort is aware of the danger but is indifferent to it. In a sense, reckless conduct has some attributes of both negligence and intentional torts. Those who suffer injury as a consequence are advised to consult with an attorney.
HINT: Driving while drunk, drag racing in a residential area, and having unprotected sex while knowingly having a sexually transmitted disease are examples of reckless behaviors that could harm others.
INJURED BY A DEFECTIVE PRODUCT?
If a consumer suffers injury due to a defective or unexpectedly dangerous product, the legal doctrine of “strict liability” enables the injured party to recover compensation from the manufacturer or seller of the product, whether or not the maker or seller of the product was actually negligent. Under this doctrine, the plaintiff is not required to show that the manufacturer or seller was actually negligent. Strict liability operates against a non-manufacturer who rented or sold a product, but only if it is in the business of regularly renting or selling those particular kinds of products. Thus, strict liability might not apply if a consumer purchased a product at a place that does not carry the item on a regular basis.
HINT: Would-be plaintiffs may not be able to claim strict liability if they knew about the defect but continued to use the product.
When the defendant in a civil lawsuit does not respond to a summons or fails to appear in court, the plaintiff may win the case by default. Prior to entering a “default judgment,” the judge will ascertain whether the defendant was properly served with the summons and complaint and notified of the trial’s correct time, date, and place. If the defendant was properly served, the judge may ask the plaintiff to summarize his or her case and justify the amount of damages being claimed. After that, the judge may enter a default judgment, which means the plaintiff may collect damages from the defendant in the same manner as if the defendant had appeared in court, fought the case, and lost.
HINT: A defendant can have a default judgment “vacated” (set aside) by filing a motion in which the defendant explains why he or she failed to answer the summons and/or any other reasons why the default judgment should be vacated.
DON’T BE DENIED
Workers who have been injured on the job and find themselves confronted with a workers’ compensation carrier’s denial of their legitimate claim should not let the matter rest. The insurer may claim that a worker has not been injured at all or that his or her injury is not serious enough to qualify for disability. The insurer may issue these denials on the basis of the findings of its own private investigation. As aggressive as their stance may be, if an injured worker’s legitimate benefits are denied, he or she should immediately file an appeal with the state appeals agency. It is also probably in a worker’s best interests to hire an attorney to help pursue the claim.
HINT: Because of the complexities associated with appealing a workers’ compensation decision, it is extremely important to work with an attorney who knows workers’ compensation laws.
“Product liability law,” which is the legal rules concerning who is responsible for defective or dangerous products, is different from ordinary law in that it makes it easier for those injured by defective products to recover damages. Liability may be established if a manufacturing defect in the product caused the injury or if a design defect in the product led to injury. Moreover, “inadequate warning” may form the basis of a case. For instance, the product may have been known by the manufacturer to be potentially dangerous, yet it was still sold without a proper warning to the consumer. If you have suffered injury due to a product defect, consult with an attorney about your right of recovery.
HINT: Responsibility for a product defect that causes injury rests with all sellers of the product who are in the distribution chain.
BEYOND CRIMINAL PROSECUTION
Whether or not a criminal act results in injuring a person, the government will prosecute the person responsible since it is believed that any violation of the criminal laws harms society as well. Criminal prosecution is thus conducted not only to punish those who commit crimes, but also to deter others from acting similarly. As for the victim of a criminal act, he or she may file a civil lawsuit against the wrongdoer. In doing so, the plaintiff seeks compensation for his or her injuries or vindication of his or her rights. Any defendant found guilty in a civil case and found liable for harming the plaintiff will instead be ordered to pay compensation or to desist from some action.
HINT: It is more difficult to convict someone of a crime than to obtain a civil judgment against that person.
MAKING YOUR CASE
In most civil cases, the plaintiff’s ability to meet his or her “burden of proof” is measured by whether a reasonable person would have concluded that it was “more likely than not” that the defendant caused (and was liable for) the plaintiff’s injury or loss. According to this “preponderance of the evidence” standard, the defendant is entitled to a not guilty verdict if the evidence favors him or her by even the slightest amount. Prosecution of a criminal case must demonstrate the defendant’s guilt “beyond a reasonable doubt.” Anyone who entertains the idea of filing a civil suit should be mindful of this distinction regarding the burden of proof and not be deterred by any mistaken notion about what it takes to prove his or her case.
HINT: While criminal cases almost always allow for a trial by jury, many civil cases will be decided by a judge.
A WINNING STRATEGY
Nearly all attorneys take on personal injury cases on a “contingent fee” basis. Under this payment agreement, the lawyer receives a percentage of the judgment as a fee if his or her client wins. If the plaintiff loses, the lawyer receives no fee. Thus, would-be plaintiffs can be fairly certain that entering into a contingency fee arrangement fairly ensures that the lawyer taking the case thinks that it is winnable and fairly easy to prove. In addition, the lawyer will also want to ascertain that there is a fund from which any judgment would come. Because insurance companies usually have the money to pay a judgment or a settlement, it is preferable that the defendant be insured.
HINT: Regardless of whether they win or lose, plaintiffs in personal injury cases will likely have to pay court filing fees, the costs related to deposing witnesses, and other charges.
SUING FOR MALPRACTICE
Patients who suffer harm as a consequence of a negligent act or omission by a physician and are contemplating initiating a “malpractice suit” against that doctor should understand the negligence standard that applies in these cases. Physicians owe a legal duty of care to their patients. Any injury emanating from an inability or lack of care will ordinarily cause the doctor to be liable for malpractice. The general rule that is employed to determine malpractice is what constitutes reasonable care, skill, and diligence in the community where the professional practices. In the event that community standard has not been met (and other defenses do not apply), the physician is liable for negligence, and malpractice is established.
HINT: One common type of medical malpractice is the “failure to diagnose” in which a competent doctor would have discovered the patient’s illness or made a different diagnosis, leading to a better outcome than the one actually achieved.
When minors are involved in wrongdoing that results in injury to another person, their parents may be held responsible, depending on the child’s age. The term “parental liability” refers to parents’ obligation to compensate those who have suffered damage caused by negligent, intentional, or criminal acts committed by their child. Parental liability usually applies when the child reaches eight to ten years of age; it does not end until the child reaches the age of majority. Most states currently have laws relating to parental liability in various applications. Minors can be held responsible for having committed a tort because being underage does not allow one to harm other people or their property. So-called youthful indiscretions may have consequences.
HINT: The age of “majority” is the age at which a minor, in the eyes of state law, becomes an adult. This age is 18 in most states.
SETTLING YOUR WORKERS’ COMP CLAIM
If you were injured at work resulting in a lasting impairment, you may be able to negotiate a settlement. For instance, if the state allows injured workers to negotiate a lump sum settlement, you may prefer that over continuing to receive permanent weekly disability payments. You may also be able to settle any disputed amounts, past-due temporary disability payments, and unreimbursed medical expenses. In addition, it may be possible to negotiate an agreement for a structured settlement. However, by accepting a settlement, you may be giving up your right to receive compensation for future medical treatment. Because the wording of the settlement can be critical, it pays to have an experienced attorney on your side.
HINT: Estimating the value of a workers’ comp settlement is more complicated if you are on permanent total disability because the settlement value has to take into account the present value of your future entitlement to benefits.
OVER BEFORE IT STARTS
The vast majority of civil cases never go to trial either because both sides reach a settlement beforehand or cases are dismissed. A “motion to dismiss” may be filed by a defendant who asserts that the plaintiff has failed to state a viable cause of action. In short, the plaintiff has no case, or has missed the statute of limitations. Another way to avoid a lawsuit going to trial involves filing a “motion for summary judgment,” typically filed after discovery is completed. This motion is granted when a party can get the court to determine that there is no issue of material fact and the undisputed facts indicate that one party should win the case as a matter of law.
HINT: If a plaintiff in a malpractice suit fails to retain a qualified expert to testify that the defendant committed malpractice, the defense can bring a motion for summary judgment because the plaintiff cannot prove the case with an expert.
ARE YOU LIABLE FOR INJURIES ON YOUR PROPERTY?
Property owners have a responsibility to maintain a relatively safe environment that ensures that those entering the property have a reasonable expectation of not getting injured. This legal concept, known as “premises liability,” comes into play when an injury is caused by an unsafe or defective condition on someone’s property. Regardless of whether the accident takes place in a store or residence, or on public property, two basic rules determine who is legally responsible. First, the owner of the property has a legal duty not to expose those who enter to unreasonable risk due to faulty design, construction, or condition. However, property owners are not held liable for those entering the property in an unexpected, unauthorized, or dangerously careless manner.
HINT: If you are a guest or tenant who is injured in an accident on rental property, the party responsible for maintaining the area or condition that caused your accident is liable.
THE MAKE WHOLE DOCTRINE
When individuals are physically harmed as the result of the negligence of others, the “make whole doctrine” seeks to place the damaged parties back into the position they would have been in before the injury caused by another. Both economic (out-of-pocket) and non-economic (loss of physical and mental well-being) losses are restored through monetary compensation. The term “general damages” refers to non-economic losses such as “pain and suffering.” The valuation of such loss is left largely to the jury’s discretion. “Special damages” are those awarded for compensable harms such as medical expenses and lost wages. These can easily be quantified with the help of bills, pay stubs, and the like. Plaintiffs should give a full accounting of their losses.
HINT: “Nominal damages” is the term used to describe a damage award issued by a court when a legal wrong has occurred, but where there was no actual financial loss as a result of that legal wrong.
ARE YOU ENTITLED TO SEVERANCE PAY?
It is a common workplace misconception that workers are legally entitled to severance pay when they are discharged from a job. Whether it is given varies among employers, regions, and industry custom. However, an employer may be legally obligated to pay a worker some severance pay if there is a written contract stating that it would be paid. Otherwise, there may be a promise that employees would receive severance pay as documented in an employee handbook. In addition, although it may be difficult to prove, there may have been an oral promise that an employer would pay a worker severance. If so, the employer who reneged on a promise to pay severance may be sued for breach of contract.
HINT: Some companies demand that departing employees sign broad severance agreements, which typically include provisions requiring a former employee to waive the right to file a number of claims against the company before they receive any money.
In order for plaintiffs to win their negligence cases, they must prove that the defendant’s negligence caused their injuries. In some cases, the attempt to establish this link involves the presentation of “circumstantial” evidence. On the other hand, some negligence cases reveal the defendant’s negligence to be so inextricably linked to the plaintiff’s injuries that it is obvious to all. In such cases, the Latin phrase “res ipsa loquitur” (“the thing speaks for itself”) applies. That is, the court can assume that an accident occurred due to someone other than the plaintiff’s own negligence, the defendant owed the plaintiff a “duty of care,” and the defendant “breached” that duty by acting negligently or carelessly.
HINT: The “res ipsa loquitur” originally stems from a case in which a plaintiff suffered injuries from a falling barrel of flour while walking by a warehouse.
JUST DON’T DO IT
It has become increasingly clear in recent years that impaired drivers are responsible for hundreds of thousands of crash-related injuries and thousands of deaths annually in the United States. When it comes to driving under the influence of alcohol, every state has currently set .08% blood alcohol concentration (BAC) as the legal limit for driving under the influence (DUI) or driving while impaired (DWI). For commercial drivers, the limit is even more restrictive, as a BAC of .04% can result in a DUI or DWI conviction anywhere in the nation. Drinking among drivers under age 21 is not tolerated at all, as even the smallest amount of BAC is cause for arrest. Anyone facing DUI/DWI arrest should call an attorney.
HINT: Refusing a breathalyzer test does not necessarily help a drunk driver circumvent the law and avoid guilt, because “implied consent” means that once a driver gets in the car, he or she accepts an implied contract to take an alcohol test if deemed necessary.
DO YOU NEED A LAWYER?
Many people think they will never need the services of a lawyer because they lead quiet lives and never break the law. The fact is, however, that many individuals find themselves involved in civil lawsuits, the most common of which involve contract disputes. For instance, if a property owner were to contractually engage the service of a contractor who failed to keep up his or her end of the bargain, the two sides may find themselves arguing their cases in court. Other instances in which homeowners may find themselves in a legal argument involve disputes over property ownership and damages to one person’s property or real estate, which may be handled by a civil litigation attorney. Life can get contentious.
HINT: A lawyer may be needed to win a negligence case involving an accident or to litigate a discrimination or harassment case at work.
COMING TO A RESOLUTION
Civil lawsuits that arise from accidents and injuries are often resolved early in the litigation process through a negotiated settlement between the plaintiff and defendant, when parties agree to settle the case. This resolution between opposing parties can take place from the time the lawsuit is filed up to when the case has been tried but before the jury reaches a verdict. A settlement consists of an agreement by the plaintiff to give up the right to pursue any further legal action in connection with the accident or injury in return for monetary compensation from the defendant or insurance company. The final decision of whether or not to accept a settlement offer rests solely with the plaintiff.
HINT: The ability of a plaintiff to successfully negotiate a settlement to a civil case involving accident or injury is directly related to the strength of his or her case.
SUING FOR MALPRACTICE
When a patient has reason to believe that he or she was harmed by a doctor or other medical professional who failed to competently perform his or her medical duties, there may be grounds for filing a medical malpractice lawsuit. To prove such a case, the patient must first establish that a doctor-patient relationship existed. In order to hold the physician liable for medical malpractice, the patient must also show that the doctor deviated from the appropriate medical standard of care. In addition, the patient must show that it is “more likely than not” that the doctor’s incompetence directly caused the injury. Finally, the patient must show that the injury caused by the doctor’s negligence led to specific damages.
HINT: In accordance with the “duty of informed consent,” physicians have a duty to warn patients of known risks of a procedure or course of treatment.
Would-be plaintiffs in personal injury cases who point to the negligence of others as the cause of their injury might want to examine their own behavior before they initiate legal action. The notion of liability revolves around the simple fact that most accidents happen because someone was careless or negligent. To this carelessness the law applies the basic rule that the person who is less careful than the other involved in an accident must pay damages. However, even careless individuals may not necessarily be liable to someone injured by their carelessness. The concept of “contributory negligence,” which refers to conduct that creates an unreasonable risk to oneself, may be used as a defense to a negligence claim.
HINT: “Comparative negligence approach” weighs each party’s negligence when determining damages.
HOLDING CHILDREN TO A REASONABLE STANDARD
When a child commits a negligent act that leads to significant injury or property damage, some may wonder if the child can be held to the same legal standard that applies to adults. When differentiating an accident from a negligent act, adults are held to a “standard of care” that is required in a given situation. That is, if a person acts in a manner other than how a “reasonable person” would act in the same situation, the individual would be held liable for any resultant injuries. However, children are not expected to act as a reasonable adult would act. Instead, a child’s actions are compared with the conduct of other children of the same age, experience, and intelligence.
HINT: The exception to this altered duty of care for minors involves situations in which the child is carrying out an adult activity, such as driving a vehicle.
THE REAL DEAL
When it comes to making the largest purchase in their lives, home buyers should leave nothing to chance. It is important that an attorney who has real estate experience review a real estate contract and provide advice that could help avoid errors, omissions, misinterpretations, or even misrepresentations that could jeopardize a sale or lead to a legal problem. For instance, by making a sales contract not only contingent upon a professional home inspection, but also the full approval of its results, buyers can protect themselves from being faced with an unsatisfactory inspection and an obligation to purchase the property. In addition, it is important that buyers carefully review sellers’ disclosure statements to learn as much as possible about the property.
HINT: Real estate buyers should cross check the seller’s disclosures with the city building permit and zoning reports in an effort to identify work that was completed without a permit and may not have been performed to code.
BLOOD FROM A STONE
One of the most important aspects to be discussed with an attorney when contemplating filing a civil lawsuit is the matter of collection. Even if a plaintiff’s case ticks all the boxes (meeting the standards of proving that a defendant had a duty to the plaintiff, that the defendant breached that duty with regard to the plaintiff, that the defendant caused the plaintiff’s injury, and that the injury can be remedied by money damages), the question still remains as to whether the plaintiff can collect if he or she wins. While most reputable individuals and businesses will pay any damages they owe, those that are insolvent, go bankrupt, or disappear will be of no value to a winning plaintiff.
HINT: The court will not collect money from defendants who owe damages to plaintiffs.