Free Guide To Your Personal Injury Case

A Note on Negligence and Tort Law

Here is some basic information to give you a framework for understanding personal injury and wrongful death cases. There are two broad types of law: criminal law and civil law. Laws relating to personal injury and wrongful death are forms of civil law. In criminal law, the goal of the system is to punish a wrongdoer for committing an act that is offensive to the proper and ordered nature of society. Murder, burglary, arson, and robbery are just a few types of crimes that are recognized as criminal offenses. A person who is convicted of a crime or pleads guilty is punished, whether by a term in jail or prison, a fine, community service, restitution to the wronged person, or a combination of all or some of these. Death by lethal injection is the most severe punishment for a crime, and it is permissible only in certain murder cases that have special circumstances.

Civil law encompasses a wide variety of areas such as bankruptcy, corporate law, wills, trusts and estate planning, family law, probate, worker’s compensation, education law, business law, employment law, and that with which we will be concerned: personal injury and wrongful death law, also referred to as “tort” law. “Tort” is a French word meaning “wrong,” and that’s what a tort is: a civil wrong in which another person is injured or killed or his property is damaged. In civil law, rather than making a wrongdoer serve a sentence in jail or prison, he is ordered to pay the party who suffered the injuries an amount of money designed to make that person “whole” again. Of course, making the person whole again is not always possible, but a monetary award is the only way we know how to compensate the innocent victim.

For example, let’s say that a person has had her left arm amputated in an automobile accident caused by another person (the “defendant”). Unfortunately, medical science has not advanced to the point where the severed limb can be reattached and function good as new. Therefore, the law requires that the defendant pay the injured victim a reasonable sum of money to compensate for her loss.

The most often-used theory of liability in a tort (personal injury) case is what lawyers refer to as “negligence.” Probably the best plain English definition of “negligence” is carelessness. For instance, a driver may not be paying attention and therefore fail to see the taillights of the car in front of him as it comes to an abrupt stop, resulting in a rear-end collision; the inattentive driver would be guilty of the tort of negligence.

Perhaps an introductory lesson in law is appropriate here. Negligence is comprised of four parts: (1) the person was required to exercise a minimum amount of due care (safety) to avoid hurting others or causing an accident; (2) the person breached that standard of care by not acting safely (with the “requisite due care”); (3) the person’s breach of the standard of care was a “proximate cause” of the incident; and (4) someone else was injured because of the person’s negligence (or carelessness).

We are required to exercise sufficient due care at all times so that we do not subject others to an unreasonable risk of harm that may result in their injury or death. When we deviate from the standard of due care and that deviation results in injury to another person or damage to his property, then we are liable for all of the monetary damages to that person that arise out of our careless conduct.

Part I : Whose Fault Is It?

Determining Responsibility

A critical part of a successful personal injury case is proving the fault of the other person. Some cases of responsibility (“liability”) for an accident are pretty clear. For instance, if you have been rear-ended in a traffic collision, 99.99 percent of the time it is the fault of the driver who hit you.

In many cases, it is necessary to bring in an expert witness to establish that the other party was at fault. In a traffic accident case, for example, an “accident reconstructionist” may be necessary to prove the fault of the other driver. In a medical malpractice case, a doctor familiar with the procedure and standard of care in the area is vital to proving your case. In a defective product case, engineers or metallurgists may be among the experts called to testify that the product was improperly designed or manufactured, making the product dangerous.

To win in a personal injury case, you must prove that the other person is responsible for your injuries. The standard of care that is used in civil cases such as personal injury is a “preponderance of the evidence”—you must prove that it is more likely than not that the other party was at fault and caused your injuries. This standard of proof is quite a bit lower than that required in criminal cases, where the District Attorney must prove the guilt of the accused beyond a reasonable doubt.

Specifically, a skilled and compassionate attorney will investigate your claim, negotiate with insurance companies on your behalf, prepare and present your claim or lawsuit, and ensure your legal rights are protected. The best (STATE - LINK THIS TO INJURY PAGE) personal injury lawyers can provide peace of mind while you focus on your physical and emotional recovery.

What If Both of You Were at Fault?

What happens if you were partly to blame for the accident and are seriously injured? Does this mean that you can’t recover a dime from the other party? In the old days, the doctrine of “contributory negligence” applied to bar you from suing the other party, even if you were only one percent at fault! California now uses the “comparative negligence” rule, in which your percent of fault is compared to the other party’s percent of fault, and your damages are decreased accordingly.

California uses what is called the “pure” form of the comparative fault doctrine, which allows you to recover your percent of the damages regardless of the percentage of your fault. So if you were, say, 50 percent at fault for the accident, you can recover only 50 percent of the cost of your injuries, lost wages, pain and suffering, and other injuries and damages from the other party. If you were one-third at fault, then you would be entitled to receive only two-thirds of your damages and property damage from the other party. On the other hand, you would be liable for one-third of the other party’s personal injuries and property damage.

Let’s use as an example a lawsuit arising from the collision between a motor vehicle and a bicycle where the vehicle driver was primarily to blame (“at fault”) for the incident. The driver is nevertheless entitled to bring up any fault on the part of the bicyclist to reduce or nullify the bicyclist’s right to recover completely. For instance, say that the bicyclist had been riding on the wrong side of the road and the driver, entering the road via a right turn from an intersection or driveway, did not see the bicyclist approaching; the driver may assert the bicyclist’s act of riding on the wrong side of the road as a complete or partial bar to the bicyclist’s recovery.

The doctrine of comparative fault reduces the amount of money (“damages”) the injured bicyclist is entitled to recover. So if a jury determined that the bicyclist’s riding the wrong way was 50 percent at fault for the injuries, then the bicyclist’s damages are cut in half. In fact, where the bicyclist was riding on the wrong side of the road, a jury may well determine that he was the prime or sole cause of the accident, in which case the motorist might be relieved from all liability for the accident. However, a driver making a right turn onto a road from an intersection or driveway generally has a duty to look both ways before proceeding onto the road to make sure there are no pedestrians or others who might cross his path. Other factors that could be used to reduce or defeat the bicyclist’s recovery are: (1) the bicyclist’s failure to wear a helmet; (2) failure to have lights on the front and rear of the bicycle; or (3) not wearing a reflective vest while bike riding at night.

Part II: How Much Is My Case

Damages Recoverable in a Personal Injury Case

If you have been injured due to the carelessness of another, the negligent party is responsible for paying all necessary and reasonable medical costs associated with the injury or injuries. Examples could include: (1) the cost of an ambulance to transport you to the hospital; (2) doctors’ and hospital expenses; and (3) the costs of all other medical services. The negligent party is also legally responsible for all of your future medical costs attributable to the accident. Additionally, if you need a wheelchair or a full- or part-time attendant, the negligent party must also pay for these.

You are also entitled to recover monetary damages for all of your lost wages past, present, and future. If you are permanently disabled from working as a result of the accident, the amount of your lost wages will be determined by what you would have expected to earn had you not been injured, including raises, bonuses, and promotions. That amount, however, will be reduced (“discounted”) to its current value. This means that the amount you would have earned during your lifetime will be reduced to a lump sum that, if invested, would yield how much you would have earned over the next 10, 20, or however many years you would have expected to go on working. If you are permanently injured but are still able to work, although not at your old job and not for the same amount of money you were earning, you are entitled to recover the difference between what you would have made and what you are actually making, the difference being your loss of earning power.

In addition to all medical-related costs and lost earnings, you are entitled to be compensated for pain and suffering arising from the accident, as well as all psychological injuries you suffered as a result of the accident, which often must be supported by the testimony of a psychologist or psychiatrist.

There are two types of damages that can be recovered: economic and non-economic damages. Economic damages include such things as: (1) past, present, and future medical expenses (bills from emergency rooms, hospitals, doctors, physical therapists, rehabilitation therapists, prosthetist, prostheses, wheelchairs, special beds, personal attendants, etc.), and (2) the amount of lost wages or lost earning power, whether the victim will be able to return to work or will have to be retrained for a different profession or occupation, or will be permanently unable to work.

The so-called “non-economic” losses for which you can recover monetary damages include: (1) the intensity and duration of your pain and suffering, (2) emotional distress and mental anguish, (3) physical impairment, (4) grief (but not in wrongful death cases), (5) anxiety, (6) humiliation, (7) inconvenience, (8) fear, anger, and worry, (9) disfigurement, and (10) the “loss of enjoyment of life.” Loss of enjoyment of life covers things you used to be able to do but are no longer capable of doing. For instance, if a right-handed father has his right arm amputated and is no longer able to play catch with his son, this is considered part of his loss of enjoyment of life and he deserves to be compensated.

The amount of damages should not only compensate you for damages and injuries you have already suffered, but include compensation for future medical expenses, pain and suffering, new prostheses, complications, etc. Also considered in the amount of your monetary recovery are whether you were in any way responsible for the accident or your injuries (“comparative negligence”), and the amount of insurance and assets the party at fault has.

Damages Recoverable in a Wrongful Death Case

When someone is killed because of another person’s carelessness (negligence) or deliberate misconduct, this is called a “wrongful death.” For instance, if a person is killed in an automobile accident caused by another motorist who ignored a stop sign, we call that a wrongful death since the death was caused by another person’s carelessness.

Who Can Sue For The Wrongful Death of Another?

The wrongful death of a person often affects many other people: a spouse, children, grandchildren, employers, friends, and so forth, but only certain persons are entitled to sue the wrongdoer for specified damages. If a 35-year-old married man with three children is killed in an automobile accident caused by another driver’s negligence, the spouse (widow) and his three children (the survivors) can all sue the negligent driver. If the man was supporting someone else, such as his elderly parents or a minor under 18, they can also sue to recover their monetary losses, i.e., the money they reasonably could have expected to receive from the deceased person had he not been killed.

What Types of Damages Can the Survivors Sue For?

In a wrongful death jury trial in California, it is the jury who will ultimately decide how much money will reasonably compensate the survivor for the loss of the decedent. This compensation is called “damages.”

The monetary damages that the jury may award the survivors in a successful wrongful death lawsuit are those that “under all the circumstances of the case, may be just.” The survivors are entitled to sue for any and all medical expenses that may have been incurred in attempting to save the victim’s life, if such damages have not been recovered in a “survival action.” The survivors are also entitled to sue for the lost wages and earnings that the decedent would have contributed to the household during his working years, taking into account raises, bonuses, promotions, and any other types of compensation he would have received from his employer.

Suppose that instead of a 35-year-old working man, the person who was killed was the stay-at-home wife/mother. Since she wasn’t working at a paying job, can the survivors seek compensation for “lost earnings?” In the case of a non-working spouse who stays at home and takes care of the children and house, the surviving spouse and children are entitled to receive full and adequate compensation for the loss of services the decedent would have contributed to the household. Studies show that it would cost in the area of $100,000 to hire persons to take the full place of the deceased parent or spouse. For example, who would make the family’s meals, get the children ready for school, go shopping for groceries and clothes, do the laundry, prepare the meals, take the kids to dance rehearsals or Boy Scout meetings, etc.?

Although each heir’s loss will be different from the others, only one wrongful death lawsuit may be filed. The heir filing the lawsuit must include all of the other heirs entitled to a share of the estate. For instance, if a woman died leaving a husband and three children, if one of the children files a wrongful death action, she must list the decedent’s husband and other two children as claimants (“plaintiffs”) as well.

One issue with wrongful death cases involving more than one plaintiff is the division of the settlement or award. The jury (or judge, if the trial is by court) must compute the damages by considering the pecuniary loss suffered to all of the heirs and return a verdict for one lump sum. It is then up to the judge to divide the total amount of damages among the individual plaintiffs.

In making her determination as to how much to award each individual plaintiff, the judge will consider such things as the closeness of decedent and the heir, the nature of their relationship, how long they had known each other, the amount of support the decedent was providing for the heir, and other factors.

Evidence that the decedent was unhappy in his marriage and told others that he planned on getting a divorce from his wife does not defeat the wife’s claim for damages resulting from her husband’s death if no legal action had been taken by the deceased husband, such as obtaining a legal separation or filing for divorce, as couples frequently have disagreements or hard times that make them reassess whether it is worth staying in their marriage. Indeed, even the most happily married couples occasionally have spats in which one threatens to get a divorce. While evidence of a statement that a married person did not get along with his spouse and was going to get a divorce does not bar the other spouse from receiving a share of the wrongful death settlement or award, it may reduce the surviving spouse’s share if it bears on the nature and closeness of their relationship.

In California, if a wrongful death case involving multiple plaintiffs is settled out of court and the parties are unable to agree among themselves as to the division of the award, they will have to file an action in court and have a hearing before a judge who will make the ultimate determination as to the settlement’s allocation among the heirs. Alternatively, the heirs may agree to have the issue of the division of the settlement proceeds settled out of courts, such as by binding arbitration.

Among the damages recoverable in a wrongful death action in California are economic damages and non-economic damages.

Economic Damages in a Wrongful Death Action:

Financial support that the decedent would have contributed to the family during the life expectancy of the decedent
The loss of gifts or benefits
Funeral and burial expenses
Reasonable value of household services

Non-Economic Damages in a Wrongful Death Action:

Loss of love, companionship, comfort, care, assistance, protection, affection, society, and moral support
Loss of enjoyment of sexual relations (if applicable)
Loss of training and guidance

The following cannot be considered by a jury when determining loss:

Grief, sorrow, or mental anguish
Pain and suffering
Poverty or wealth of the plaintiff

Survival Actions

In California, a survival cause of action can be filed by the estate’s personal representative or the decedent’s successor-in-interest. A survival cause of action can only be brought if the decedent did not immediately die from his or her injuries. A wrongful death survival action may be appropriate even if the deceased lived for a short time after the incident.

Damages recoverable under the statute include “the loss or damage that the decedent sustained or incurred before death, including any penalties or punitive or exemplary damages that the decedent would have been entitled to recover had the decedent lived, and do not include damages for pain, suffering, or disfigurement.”

Essentially, the survival statute allows one to “step into the shoes” of the deceased and recover the damages the deceased person would have been entitled to had they lived, including medical expenses and lost wages, as well as penalties or punitive or exemplary damages. One cannot recover damages for pain, suffering, or disfigurement in a survival action.

How Lawyers Determine the Value Of Your Case

Unfortunately, there is no Kelley Blue Book website for lawyers where they can punch in the vital information of your case and the extent of your injuries and it will spit out the exact value. Each case is different. One case may be worth $250,000 while a similar case may be worth only $175,000. It is impossible to list all of the factors that go into deciding how much your case is worth. These factors can include:

Past and future medical expenses
Permanency of injury
Lost wages or disability
Loss of earning power
Pain and suffering
Loss of enjoyment of life
Chronic pain
Psychological trauma
Property damage
Which part of the state you were injured in (Some regions are known for their generous verdicts while others are known for their stinginess.)
Who the injured party is (Cute kids generally bring in a much higher award than the average adult.)
The makeup of the individual jury
The appearance, confidence, credentials, and believability of your witnesses as compared to those of the defendant
How you come across to the jury during your testimony
Last but not least, the appearance, presentation and competency of your attorney

One case can result in a jury’s verdict of $2 million, while a substantially similar case tried in front of another jury in a different part of the state may bring in only $500,000—or even a defense verdict! In fact, two cases involving basically the same set of circumstances may result in drastically different awards, even if they were tried in the same courthouse but before different judges and juries.

Lawyers subscribe to services that tell them how much similar cases are settling for or how much juries are awarding in like cases. However, when it comes down to it, this all depends on the variables of: (1) how sympathetic your client comes across, (2) who the defendant is and how evil she looks, and (3) how clear liability is. The clearer the liability, the more willing the jury is to put a higher amount on the injuries and damages you suffered.

Part III: Before You Speak to a Lawyer

Part IV: Working With Your Attorney

Finding the Right Attorney

Finding the right lawyer to handle your case can be a challenge. Being in a serious accident or having to deal with the death of a loved one is a traumatic and life-changing event. Choosing the right lawyer is one of the most important decisions that you can make on your path to recovery.

In serious injury and wrongful death cases, it is vital that you speak to a qualified personal injury lawyer as soon as possible. Witness statements should be taken by the lawyer or his or her associates and potential evidence needs to be preserved. Photographs of the scene of the incident and inspections of any products or machinery that was defective or malfunctioned need to be taken before changes occur or repairs are made. Your lawyer may want to have an expert in the field, such as a traffic accident reconstructionist or metallurgist, visit the scene of the accident or inspect the product and gather evidence in your favor.

An experienced personal injury lawyer or law firm will know the type of investigation and fact finding that needs to be done in your particular case. The longer you wait to retain a personal injury lawyer, the worse it will be for you. Witnesses may move out of the area, the product that injured you may be destroyed or repaired, and the company of the employee that hurt you may go out of business.

In California there are more than 160,000 active lawyers. While the State Bar of California provides certification in some specialized areas of law—such as family law, taxation, and criminal law—it does not provide specialization certificates in the area of personal injury and wrongful death law. However, if you have been seriously injured or had a loved one killed in an accident, you will want to focus your search for an attorney in the area of personal injury lawyers.

There are many places you can begin your search for an experienced personal injury lawyer. With just a few keystrokes, the Internet will pull hundreds of lawyers for you in seconds. Whether you are blindly searching the Internet or researching a lawyer or law firm that was recommended to you by a friend, it is important to choose a lawyer that you are comfortable with.

It is always a good idea to meet and speak with more than one lawyer before making your final decision on which lawyer to hire. You should make a list of questions to ask the lawyer prior to meeting with him or her in order to help in your determination if this is the right lawyer for you. Decide what matters the most to you and what you hope to achieve, and make a list of what to discuss with the lawyer.

Here are some suggested questions to get you started:

Have you handled this type of case before and what was the result?
What should I expect throughout the legal process?
How involved will I be in the case?
Will you keep me regularly informed of the progress of the case?
Will you be handling my case personally or will others in the law firm be handling much of the case?
Do you feel comfortable representing me?

Make sure that the law firm understands your objectives and goals, and knows what it means to be in your shoes. It is of the utmost importance that the lawyer representing you can effectively convey your message and your struggles to others. Whether it is to an insurance adjuster who will attempt to make a settlement or a jury that will make a monetary award, it is critical that your lawyer knows exactly how your life has been changed by the accident and can effectively communicate that to the insurance adjuster or a jury.

The Contingency Fee Agreement

Accident cases involving personal injury or wrongful death are usually taken on a “contingency fee” basis in the United States. This means that your lawyer gets paid only if she is successful in getting a settlement or jury award for you. Some lawyers use a hybrid form of fees in which they ask for a certain nonrefundable fee up front, such as $2,500, and then take their full percentage of the fee after the case has settled or a jury has awarded you a specific sum. Sometimes an attorney will ask the client to pay for costs and expenses as they are incurred, rather than waiting until the end of the case. This is especially true of newer lawyers or lawyers who do not have much confidence in your case and don’t want to put up a couple of thousand dollars getting expert witnesses to testify on your behalf.

In personal injury cases, the amount of the lawyer’s fees generally ranges from 25 to 50 percent of the gross settlement or jury award. Some lawyers have a standard 33 or 40 percent of the gross settlement or award regardless of when the case settles. Other lawyers have fees that increase as certain landmarks are passed. For instance, an attorney may charge 25 percent if the case settles before a complaint (the formal document filed in court to start a lawsuit) is filed, 33 to 40 percent after the complaint is filed but before a trial date is assigned, and 40 to 50 percent after the trial date is assigned. Some lawyers are now charging 50 percent of the gross settlement or award, regardless of when the case settles (e.g., before a complaint is filed).

Note that the lawyer’s fee normally comes out of the gross settlement or jury award, before any other costs are deducted. Costs and expenses that come out of your share after the lawyer has been paid can include:

An expert in traffic accident reconstruction
Medical doctors testifying to the extent and permanency of your injuries
Rehabilitation experts
Physical therapists
Court reporter’s costs
Court costs and expenses

You should try to negotiate with the lawyer for her contingent fee to be based on the net recovery, after costs and expenses have been deducted.

Part IX: The Past, Present and Future

The “Hot Coffee Lady” and “Frivolous” Lawsuits

Everyone knows the story of Stella Liebeck and her cup of McDonald’s coffee that was too hot. It’s been repeated over and over and used as an example of the “frivolous lawsuit.”

People look at Liebeck v. McDonald’s Restaurants and hold it up as an example that society has become too “sue-happy” because, of course, she should have known coffee is a hot beverage. Of course it had to be a cash-grab, and she was looking to squeeze a large corporation and make that payday we all dream of.

Well, hold on for one second. There’s more to the story. As it turns out, Ms. Liebeck spilled the coffee on her lap, which caused third degree burns over most of her legs and groin. She required a number of painful skin graft surgeries, and was disabled for a period of time.

The other part that tends to be left out of the anecdotal retellings of the story is the part where McDonald’s served her coffee they knew was dangerously hot because they had been told repeatedly to stop serving coffee at near-boiling temperatures.

Not only that, but Ms. Leibeck was not the first person to be severely burned by McDonald’s coffee. In fact, there were 700 reports of serious burns related to their coffee prior to hers. What about that part where Ms.Liebeck “sued for millions of dollars?” Also not entirely accurate.

Ms. Liebeck initially asked McDonald’s for $20,000 to cover her medical bills and lost wages. McDonald’s offered her $800. After retaining a lawyer, Ms. Liebeck offered a settlement of $90,000, no questions asked, end of story. McDonald’s also refused that and another settlement of $250,000 was offered at a settlement conference.

McDonald’s had already settled other scalding claims for upwards of $500,000.

When the case went to trial, Ms. Liebeck was again seeking nothing more than compensation for her medical bills. It was the jury who awarded her $200,000 in actual damages and added the $2.7 million in punitive damages. This was because the jury felt McDonald’s had prior warnings and knew exactly of the dangers and harm their coffee would cause if it were to spill. It was the jury who, after hearing all the evidence, believed that this would be ample punishment. A judge later reduced the punitive damages to $480,000. After appeals, the two parties settled on $600,000.

Ms. Liebeck just wanted her medical bills paid. It was the jury that held McDonald’s accountable for their actions by setting the high actual and punitive damage amount.

The public’s perception of the Liebeck v. McDonald’s Restaurants case was skewed because most people didn’t have the whole story. When presented with the full scope of the case, most people’s opinions change drastically. This was more than “my coffee is too hot, I think I’ll sue.” Her case centered around the negligence of serving coffee too hot after being told repeatedly not to because people were getting hurt. In lawyer speak, this is called “being on notice.”

In the wake of Liebeck v. McDonald’s Restaurants, a moral outrage over “frivolous lawsuits” has erupted, causing many injured parties to be hesitant to sue, despite being seriously injured. This campaign is spearheaded and financed by billiondollar insurance companies and corporations who want nothing other than to keep consumers from having a way to check their power.

There’s nothing wrong with holding a responsible party liable when you are injured due to their negligence. Thinking your lawsuit is “frivolous” just because of something you heard on TV could force you to deal with a life-altering injury on your own when you don’t have to.

In the future, the effects of Liebeck v. McDonald’s Restaurants could continue to skew people’s perception of personal injury cases. When you’re hurt and you’re seeking compensation for expenses you incurred because of someone else’s negligence, and someone who has no knowledge of your case accuses you of “looking for a fast payday,” you might get discouraged.

It’s important to remember the Liebeck case because it reminds us that detractors don’t usually know the full story. Hopefully, in the future we will see more people looking to understand the entire story, rather than just a soundbite.

Ford’s Pinto Fiasco and Defective Product Cases

In 1972, Lilly Gray was driving her Ford Pinto when she was rear-ended by another car. Her Pinto immediately burst into flames, severely burning her and her 13 year old passenger, Richard Grimshaw. Gray later died of her injuries and Grimshaw required multiple surgeries over 10 years to recover.

Cars don’t normally burst into flames just from being rearended, and further investigation revealed a design flaw in the Pinto.

As it turns out, even a minor rear-end collision would cause the oddly placed fuel tank to be pushed forward, and possibly burst. This also came with the risk of spraying fuel into the passenger compartment, as well as the risk of sudden ignition.

Ford was absolutely and completely aware of this fact, and sold the Pinto anyway.

Repairing this design flaw would have cost Ford a total of $45.39 per car. After crash tests revealed the flaw and engineers informed them of the cost to rectify the flaw, Ford declined to implement the changes in order to save money on production.

The ensuing court case, Grimshaw v. Ford Motor Company became one of the best examples of defective product cases in history. The idea of a company selling products they know to be dangerous or deadly is repulsive at best, but it happens. Corporations unfortunately continue to put their profits over the safety of the same people who buy and use their products.

While many people would figure the Grimshaw case to be the shake-up we needed for safe consumer goods, it unfortunately was not. Actually, it’s been getting worse.

In 2015, the Food and Drug Administration issued recalls for 32 different medical devices found to employ faulty designs. Some of these devices were implanted in people’s bodies, where they failed and caused catastrophic injuries, turning people’s lives inside-out. This was just in the medical field; consumer goods as a whole have been seeing more and more recalls for faulty designs.

Take for example, the Hoverboard craze. These self-balancing scooters seemed fun at first, until they started bursting into flame while people were riding them. A design flaw in the toys’ batteries was causing them to overheat and ignite. What seemed like a fun ride at first ended up being a horror scene as people’s Hoverboards were exploding under them.

There’s nothing wrong with holding a manufacturer responsible for selling you a product they knew to be dangerous. Reluctance to do so goes back to the fallout from the Liebeck case, where people are fast to accuse plaintiffs of making a “cash-grab” when they were legitimately injured.

As we look back on the mounting piles of defective product claims, a question of accountability arises. If you don’t hold these manufacturers responsible, who will? People have become reluctant to litigate because of the fear of being mocked in public.

Moving forward, it’s important for you, the consumer, to do two things. First, you must conduct research. Has this happened to other people who purchased this product in the past, and are the cases well documented? Second, you must communicate openly with your lawyer. When you decide to seek legal representation, listen to your lawyer’s advice. When it comes to cases like this, most lawyers will be very upfront with you regarding the value of the case. Lawyers don’t like wasting your time or theirs, and if they tell you there’s a case there, there’s a case. If there wasn’t, they’d be very clear that the case isn’t worth the time to fight it.

Changes to the Law

The law is an ever-evolving thing, and is constantly being updated and reinterpreted. Since the first edition of our book, there have been some changes to California’s laws that pertain to personal injury. Other rulings have changed how the courts view certain kinds of damages.

These are just a few examples of how the law has changed in the short time since our First Edition.

Leung v. Verdugo Hills Hospital

This was an interesting case that has changed the way shared or joint-liability is handled.

In 2012, the California Supreme court reversed a lower court’s decision, thus undoing a 200 year old concept regarding co-defendants and something called “good faith” settlements. With this decision, your lawyer has to change how they handle a case with more than one at-fault party. The change, however, benefits the victims in a major way.

Aidan Ming-Ho Leung was six days old when he suffered irreversible brain damage due to a mistake by his pediatrician. The case was complicated when it was revealed that the hospital was also at fault for not catching the preventable mistake, thus making the damage worse. Leung’s parents sued both the pediatrician and the hospital, seeking to hold both parties responsible.

The pediatrician agreed to a settlement with the Leung family of $1 million, the limit of the malpractice insurance policy. The hospital, on the other hand, did not settle and took the case to trial.

A jury found the pediatrician 55% at fault and the hospital 40% at fault, placing 5% of the fault on the Leung family. Before damages were awarded, the hospital appealed the ruling on the grounds of a common law “release rule.” This release rule stated that once a plaintiff settles with one co-defendant, the other defendant is off-the-hook, and cannot be held liable. The hospital used this rule to claim they could not be held liable for Aidan’s brain damage, since the family had accepted a settlement with the pediatrician.

The California Supreme Court decided that the family in fact did have the right to seek compensation from the hospital, despite having already settled with the pediatrician. This created what is now called the “setoff-with-contribution approach.”

After the Leung decision, if more than one party is responsible for your injuries, they both have to either answer to a jury or settle. If Party A decides to settle, Party B doesn’t get to just walk away scot-free. This eliminates the “waiting game” some co-defendants can use: waiting to see if the other co-defendant settles before making their next move.

Sherman v. Hennessy Industries, Inc.

In 2015, the California Supreme Court declined to review this case, thus upholding a lower court’s decision. What it did was protect workers from defective products they’re forced to use.

Michael Sherman was a mechanic for Hennessy Industries, building drum brake pads. One of the machines employed in the manufacturing process was ejecting asbestos dust while in operation. Sherman was bringing the dust home on his clothes, which eventually caused his wife to develop mesothelioma, a disease she later died from.

Sherman sued his employer, arguing they failed to properly notify him of the machine’s dangers and did not protect him fully. The employer argued they could not be held liable for a product they did not design or manufacture.

A jury initially ruled in favor of Sherman, and Hennessy quickly appealed. Hennessy argued again that they could not be held liable since they did not design the product, citing an earlier judgement. The courts found this to be an exception to the rule, since Hennessy knew the brake pads contained asbestos, that asbestos was harmful for you, and that the machine exposed workers to it.

Since the California Supreme Court would not review the case, this means that if you are exposed to a hazardous or faulty product, the party who placed you in that position can be held liable.

This has far reaching implications, since it removes protections from a number of situations. Imagine if a shopping mall uses an escalator they know is defective. Or if a car rental company rents you a vehicle previously shown to be faulty.

The “we didn’t design it” defense no longer keeps you from recovering damages from someone who exposed you to danger.

Howell vs. Hamilton Meats Inc.

Many people don’t realize that their medical care is often billed to their insurance provider at a substantial discount. You might rack up a medical bill of $70,000, but the hospital bills your insurance company at a discounted rate of $40,000 or so.

For a long time in California, this discount was ignored and a plaintiff would be awarded “fair market value” for the medical services rendered. While the hospital only billed for $40,000, you’d be awarded the full $70,000 in bills.

In 2011, the California Supreme Court made a landmark decision that changed all of this, in turn changing the entire face of Personal Injury law.

A woman named Rebecca Howell was injured in an accident caused by a truck owned and operated by Hamilton Meats Inc. When her case had gone to trial, she had received just short of $190,000 worth of billable medical care.

Howell’s insurance company however, received a discount from the hospital, and only paid $60,000.

With the law the way it was then, when Howell won the case, the meat company had to pay the full $190,000 of medical costs. After the judgement, they appealed the decision and said they should only have to pay the $60,000 the insurance company was billed, since that’s the actual amount that was paid.

After a long legal battle, the case ended up in front of the California Supreme Court, who sided with the meat company. They were only liable for the $60,000 the insurance company was billed.

This has effectively punished you for having insurance. You pay for your insurance to cover the costs of an injury, yet you are completely unaware that the hospitals are giving insurance companies such a discount. Nobody tells you this until it becomes vital information.

Howell vs. Hamilton Meats delivered a massive blow to the rights of accident victims. The California Supreme Court effectively endorsed the questionable practice of providing massive discounts to insurance companies as a way to cover themselves.

The Howell decision is basically insurance for the insurance companies.

Troy and Alana Pack Patient Safety Act of 2014 (Prop 46)

In the 1970s, the state of California placed a cap on the amount of money a plaintiff could be awarded in a medical malpractice suit. This meant that if someone was injured because of a doctor’s mistake, they could only recoup $250,000 in damages.

Even in the 1970s, people had a misconception that plaintiffs in personal injury cases were looking for a payday. This, of course, is not true. The political climate didn’t see it that way, however.

Fast forward to 2014, and the caps had not moved. While $250,000 may have been a substantial amount in the 1970s, it was nowhere near ample in the 2010s. The cost of living, inflation, changing medical climate, and other factors made that cap an absurdly inadequate amount. The cost of recovering from a major malpractice incident was several times that. But the cap remained.

Prop 46 aimed to raise this cap, to give victims and their family a much more realistic settlement. While a system with no cap would make much more sense, the proposition was just a start. The cap was to be raised to $1 million, giving juries freedom to award appropriate amounts.

The proposition was defeated based on two things. First, the opposition argued that the bill wouldn’t have been about protecting patients, but benefiting trial lawyers. The second issue hinged on pieces that were tacked onto the law regarding drug and alcohol testing for doctors and other such measures. Doctors were furious about this, as they felt it was an overreach by the government.

As the debate raged, the opposition kept repeating the idea that the law would only benefit “the greedy trial lawyers.” Proponents of the bill insisted this was about getting victims awards that made sense.

Proposition 46 would have made sure you were compensated for all expenses and damages you incurred from a malpractice injury. It also would have held doctors who committed malpractice accountable for their negligence. Doctors would no longer be able to hide behind the caps and their malpractice insurance, but would be held financially accountable.

Yet over and over, it kept coming back to this idea of “greedy trial lawyers”—an idea firmly rooted in the stigma left over from the Liebeck case. People still, for some reason, felt like there was a wave of cash-grabbing lawsuits out there—an idea that is entirely fictional.

Because of the drug testing clause and the public’s misconception of what these caps meant, Prop 46 is merely a memory.

This brings a chilling problem for the future. Malpractice cases aren’t going to be worth fighting anymore.

With the damages capped at the 1970s level they are now, merely mounting and fighting the case costs more than you could ever be awarded. Too many lawyers will end up passing on these cases, since they’d end up being a Pyrrhic victory at best.

With Prop 46 defeated, will victims of malpractice ever get the justice they deserve? It’s hard to say.

A Quickly Approaching and Unclear Future

The world is a very different place than it was when we wrote the first edition of Accidents Happen. There are things in the world now that simply didn’t exist then. Just as the record industry had to adapt their legal philosophy when streaming music services got started, there are plenty of new technologies that will change the face of personal injury law in the future.

Self-Driving Cars As Defendants

It sounds utterly absurd, but this is now a reality. Recently, one of Google’s experimental self-driving cars struck a city bus in Mountain View, CA. While this wasn’t the first accident involving a self-driving car, it was the first time the car was found to be at fault.

Yes, the car was at fault.

Because of the way the software recognized road hazards, the car moved to the left in order to avoid sandbags that were in front of a storm drain. This caused it to hit an approaching city bus. It was determined the car was at fault for not yielding to the bus. While thankfully there were no injuries, what if there had been? Who would be held liable?

It’s a question with no clear answer at the moment. These self-driving cars are essentially robots, which of course are not people. So if the robot car is at fault and someone is hurt, can a robot be held liable? If not the robot, would you hold the company that made the car’s software? It’s not like they could have planned ahead for that specific situation, since the car navigates on a series of decision-making algorithms and not pre-loaded scenarios. What about the person in the car? Should they have taken over the controls? What if the car malfunctioned?

Nobody as an answer for what to do about these self-driving cars in case of injury accidents. Ultimately, Google will most certainly have responsibility, but lots needs to still be developed in this new area of the law.

Are Uber Drivers Employees?

Uber is an interesting beast. The ride-sharing service allows people to use their own cars almost like a taxi service. Except that it is very much not a taxi service, since the cars are not owned or operated by Uber and are private vehicles. The drivers simply give rides to people in their car and are compensated for their time.

So what happens when that goes wrong?

In 2014, a Los Angeles woman accused an Uber driver of “abducting” her. After picking her up, the driver took her 20 miles out of the way, ignoring her as she told him this was the wrong route, finally stopping in an empty parking lot and locking the doors. As the woman shouted for help, the driver eventually drove her home, ending the two hour ordeal.

A case in the California courts about a year later established Uber drivers as actual “employees” after a former Uber driver sued for job-related expenses. This classification is not nationwide, however. Other states have ruled differently, and some haven’t had to rule at all yet.

This is going to begin coming into question more and more as the ride share service becomes more widespread and common. As convenient as Uber and other similar services are, who is liable when things go wrong? Do we have to just hope the driver carries insurance? Should Uber be providing insurance? If the driver is providing their own insurance, should the insurance policy treat passengers like any other passengers or correct for them as “customers”?

These questions are all up in the air right now, as the growing pains of the industry begin to iron themselves out. Many lawyers are keeping a close eye on these cases to see how they play out.

Complicating the matter is the issue of drivers with a checkered past. How thoroughly is Uber required to check the backgrounds of its drivers? Since they’re a type of independent contractor, is Uber liable if they miss something? Even if the driver’s record is clean, what if they commit a crime while on the job? As an independent contractor, does the blame lie solely on the driver?

Drone Flights On Public And Private Property

Unmanned Aerial Vehicles (UAVs) or “drones” have come out of nowhere and are becoming a huge legal issue.

Of course, there’s the “invasion of privacy” question that comes with any remote controlled vehicle that carries a camera. This is a question as old as the invention of binoculars. Yet, the drone question is deeper than that.

In 2015, a fire broke out on the 15 Freeway near the El Cajon Pass, north of Fontana, CA. Cars were stopped on the freeway as multiple vehicles burned right there on the road, including a boat trailer and a car carrier. As fire crews attempted to put the fire out, their efforts were hindered by private drones that were in the area as locals tried to film the fire.

These drones made it almost impossible for the fire crews to bring helicopters into the area to drop water and fire retardants on the burning vehicles. Since, at the time, the FAA hadn’t required registration for drones, nobody knew who the pilots were.

Should these drone pilots be held liable for keeping firefighters from doing their jobs? Should they have to pay for the damage to cars that were burned? What if there were injuries? What about certification? Should some sort of training and certification be required before someone can fly a drone? If an unlicensed drone pilot causes property damage or personal injury, how does that change the case? If they’re licensed and operate the drone in an unsafe manner, would this mean they’re especially negligent?

As the law evolves and changes, more of these questions will need to be asked. It won’t be easy, and like any other process of change, there will be bumps in the road. However, it’s worth noting that we’ve come through changes and questions in the past to get to where we are now. It’s not too much to imagine that we’ll figure it out from here as well.

Part V: How a Case Proceeds Through the Justice System

Before Filing a Lawsuit

The first step in a claim that will wend its way through the legal system is, of course, an injury or the death of one or more persons due to the fault of another person or persons. Part VI of this book discusses some of the more common causes of personal injury and wrongful death, while Part VII addresses some of the more common injuries encountered.

If your claim involves a public entity (a governmental agency), be it a city, county, the State of California, or the United States, you must act quickly. Claims must be made with the appropriate governmental agency within a certain time limit, usually six months (although, in some cases, it can be considerably less).

The first focus of a claim is ensuring that the injured victim has received or is receiving the proper medical care. An experienced personal injury law firm usually knows which doctors are considered the “tops” in their field and they can refer you to those doctors as appropriate.

As soon as you have retained (formally hired) the law firm or attorney, they will begin an immediate investigation into the cause(s) of the accident. In an automobile accident case, an investigation may include:

Sending an investigator to the scene of the accident to take pictures of the accident site at approximately the same time of day as the accident occurred
Taking pictures of the cars before they are repaired to show where and how badly the vehicles were damaged
Finding witnesses and taking their statements
Directing you to a good doctor to evaluate how badly injured you are, the type of treatment you will need in the future, etc.

Depending upon the type of accident that you were injured in and the severity of your injuries, various experts may be retained to discover the cause of the accident or to prove the extent and permanence of your injuries. This may involve hiring an accident reconstruction expert, medical doctors, experts in product design and manufacture, psychotherapists, economists, accountants, pain management specialists, etc.

After the initial investigation has been performed, the lawyer will contact the insurance company’s adjuster and begin preliminary settlement talks. Insurance company adjusters keep their jobs by settling cases for as little as possible, so it is typical for the insurance adjuster to blame part or all of the accident on you or argue that you are exaggerating your injuries.

As your injuries begin to heal (or if you have suffered paralysis, an amputation, and/or a traumatic brain injury), your attorney will start to calculate the value of your case. As we discussed in Part IV, Working with Your Attorney, your attorney will put a monetary value on your case based on a number of factors. The other driver’s insurance company should promptly pay the policy limits if your injuries and resulting disability run into the millions of dollars but all the person who hit you has is an insurance policy for $100,000 and there is no question that the other driver was at fault for the accident.

When the insurance policy is sufficient to pay the damages How a Case Proceeds Through the Justice System or your injuries and lost wages clearly exceed the amount of the policy limits, your lawyer may send a “demand letter” demanding that the insurance company pay the full amount to settle the case and avoid an expensive trial that it is likely to lose. On the insurance company’s part, the insurance adjuster may send your lawyer a letter offering to settle the case for a certain amount that is considerably less than the insurance limits. If the two figures are in the same ballpark, further settlement negotiations with the insurance company or their lawyer may prove fruitful. If, however, the two sides have drastically different views on the value of the case, then it will be necessary to resort to the legal system. Over 95 percent of all personal injury and wrongful death cases settle without going to trial—sometimes on the courthouse steps the day the trial is to begin. Also, many cases are settled at mediation or arbitration.

Taking the Case to Trial

If you are unable to reach a reasonable settlement with the insurance company, your lawyer will file a “Complaint for Damages” against the party or parties who injured you. The person who hurt you (or her insurance company) will then have to file a formal response (called the “Answer”) to the Complaint within a certain time, usually 30 days. If the defendant fails to file an Answer within 30 days, and your lawyer has not granted the defendant an extension of time in which to file, your lawyer may file for a Default Judgment.

After the Complaint and Answer have been filed, the fact-finding part of the lawsuit begins. This is formally known as “discovery.” Usually the first step in discovery is sending specific questions (“Written Interrogatories”) to the other party (the “defendant”). The defendant must answer the interrogatories under penalty of perjury. After interrogatories have been served and answered, your lawyer will want to take the deposition of the other party. Likewise, the lawyer for the defendant will usually want to take your deposition. A deposition is a formal examination of one party by the other party’s attorney.

If you are being deposed, the deposition will most likely take place in the other party’s lawyer’s office. A court reporter will swear you in just like in “real” court and will take down everything that is said during the deposition (except where the attorneys speak off the record). During the discovery process, the lawyers will also want to take the depositions of any expert witnesses the other lawyer plans on calling at trial, such as an accident reconstructionist or medical expert.

With input from the attorneys for both sides, the judge will set a trial date. Before the date for the trial arrives, the judge will hold a pre-trial settlement conference with the parties and their attorneys in an effort to reach an agreeable settlement. If the parties are unable to agree to settle the case for a certain amount, the case will proceed to trial. It is not all that unusual for the parties to settle the case on the courthouse steps on the morning that the trial is set to begin.

At the trial, you, the injured victim, are referred to as the “plaintiff.” As already noted, the person who hurt you is referred to as the “defendant.” As the plaintiff seeking compensation from the defendant, you have the burden of proving your case. You are required to prove to a “preponderance of the evidence” that your injuries and damages were caused by the defendant. Preponderance of the evidence means that you must prove that it is more likely than not that you were injured and that the defendant caused your injuries. All you need to do is tip the scales of justice in your favor ever so slightly. Thus, if you can prove that the defendant’s wrongful act was 51 percent or greater, you will win the case. Contrast this standard of proof with the criminal standard of proof, in which the District Attorney must prove “beyond a reasonable doubt” that the accused committed the crime. The civil standard of “more likely than not” is considerably lower than the criminal “reasonable doubt” test.

Before the trial begins, a jury must be selected. (In some personal injury and wrongful death cases, the parties will want to have the case heard and decided by the judge rather than a jury, but this is relatively rare in personal injury cases.) A group (“pool”) of potential jurors will be brought to the courtroom.

It used to be that 12 jurors heard a civil case and had to bring back a unanimous verdict. Now, in California, only nine of the 12 jurors must agree with the verdict for the plaintiff to prevail. Some judges prefer to do the bulk of the questioning of each juror themselves to decide whether the potential juror can be fair and impartial in making a decision in the case. Other judges let the lawyers do most of the questioning.

After the jury has been selected and sworn in (“empanelled”), the plaintiff presents his “case-in-chief.” Before the trial testimony begins, the judge may briefly tell the jury what the case is all about. The plaintiff’s attorney starts the trial with an opening statement. Opening statements are designed for the lawyers to state what facts they intend to prove to the jury. The attorneys may not argue any aspect of the case during opening statements. Arguments, such as what the facts prove or the credibility of a witness, are saved for the end of trial. After the plaintiff’s attorney has made an opening statement, the defendant’s attorney may wish to make an opening statement for the defense, or he may wait until the plaintiff’s case-in-chief is rested.

In the typical personal injury case, the plaintiff testifies under oath as to the facts leading up to and causing the accident, his physical injuries, property damage, pain and suffering, past and future medical expenses, loss of enjoyment of life, etc. The plaintiff’s attorney will present the testimony of experts in their various fields—e.g., accident reconstructionists, medical doctors, economists, accountants, and pain management specialists—to prove how the accident happened and why the defendant was as fault, the injuries and surgeries the plaintiff has had and any future surgeries the plaintiff may need to undergo, and how his medical injuries will impact the rest of his life. He will also introduce the testimony of forensic accountants to prove how much loss the plaintiff has had and will have in the future due to a diminished ability to work (or complete disability), and the costs of medical care the plaintiff will need in the future. At the end of each witness’s testimony, the defendant has the right to cross-examine the witness and try to discredit or poke holes in the witness’s testimony.

Once the plaintiff has finished presenting his case-in-chief, the defendant has the right to present her side of the case. At the close of the plaintiff’s case-in-chief, the defendant’s lawyer may ask the judge to enter a “nonsuit” against the plaintiff, based on the argument that the plaintiff failed to prove all of the elements of his case or failed to prove that the defendant was in any way responsible for the plaintiff’s harm. If the judge grants the defendant’s Motion for Nonsuit, the trial is over, the defendant being declared the winner.

If the trial judge denies the Motion for Nonsuit, the defendant presents her side of the case. The defendant may take the witness stand herself or present an accident reconstruction expert witness to contradict the plaintiff’s expert’s testimony, as well as putting on the stand expert physicians, accountants, and other witnesses in an attempt to prove that the plaintiff’s damages are nowhere near what he is asking the jury to award. After the defense counsel rests the defendant’s case, the plaintiff has the right to call any witnesses to dispute (“rebut”) any or all of the defendant’s witnesses.

After both sides have rested their respective cases and all rebuttal witnesses have been called and testified, the judge instructs the jury as to what law(s) to apply. (Before the trial even began, the lawyers for the plaintiff and the defendant will have submitted the jury instructions they would like the judge to read to the jury at the end of the case).

After the judge has read all of the jury instructions to the jury, the jury retires to the jury room for deliberations of the merits of the case. The first order of business for the jury is selecting the foreperson, who will be in charge of keeping the deliberations civil. In many cases, after the foreperson has been selected, the jury will immediately take a vote by private ballot to see how close they are to getting a consensus. Lawyers used to believe that if the jury reached a verdict quickly it was in favor of the defense, while longer deliberations benefited the plaintiff. However, that is just an old wife’s tale and nothing can be read into how long it takes for the jury to reach its verdict. As noted above, in civil cases, a unanimous verdict is not required; only nine jurors out of the 12 need agree for the plaintiff to win.

With the exception of plaintiffs in Small Claims Court actions, if you disagree with the verdict or with any of the judge’s rulings during the trial, you have the right to appeal it to an intermediate court, the District Court of Appeal (DCA) for your area. A panel of a DCA consists of three judges whose review is limited to facts and exhibits entered into evidence at your trial. If applicable, the DCA will also decide whether a trial judge’s decision was wrong regarding not allowing you to present helpful evidence to your case to the jury. The appellate judges read all of the transcripts relating to the trial, whether the testimony was made in open court in front of the jury or in the judge’s private chambers with just the judge, lawyers, and court reporter present. The court will not consider any testimony or evidence that you or your attorney forgot to bring up at trial. However, if there is newly discovered evidence since the trial, the DCA may consider it or, if it is important, the DCA may send the case back to the lower court for a retrial in light of the newly discovered evidence.

The DCA also reviews the law applied in the case, to make sure the trial judge did not make an erroneous decision based on a misinterpretation of the law or give an instruction to the jury that misstated the law. If the trial judge’s error is considered harmless (i.e., it didn’t affect the outcome of the case) the DCA deems such error harmless and affirms the verdict. If, however, the error was “prejudicial,” that is, it prevented either side from getting a fair trial, the DCA will call the mistake prejudicial and send the case back (“remand”) to the trial judge for a new trial or other reparative action.

If either party is dissatisfied with the DCA’s decision, they may try to appeal the case to the California Supreme Court. Unlike DCAs, which must consider and rule on every case appealed to them, the California Supreme Court only takes those cases it wishes to hear

Part VI: Types and Examples of Common Accidents

Automobile Accidents

Automobile accidents are the leading cause of death for Americans under the age of 34. Each year, there are about 6.5 million automobile accidents resulting in nearly 40,000 deaths and 3.5 million injuries. Age is a factor in many auto accidents. Drivers between the ages of 16 and 20 and those over 70 have a much higher percentage of accidents than people in other age ranges.

COMMON CAUSES OF MOTOR VEHICLE ACCIDENTS

The most common type of auto accident is the rear-end collision. For instance, a car stops at a stop sign, a red light, or in rush-hour traffic, and the vehicle behind it crashes into the back of the first car. The errant driver often simply wasn’t paying sufficient attention to the road in front of him; by the time he realized that the car in front had stopped, it was too late to avoid an accident. Abruptly reducing your speed to look at the aftermath of an accident (“rubbernecking”), causing the vehicle behind you to crash into your car, is another common cause of rear-end collisions.

If you were stopped at a stop sign or red light when your vehicle got rear-ended, in 99.99 percent of the cases the driver who hit you from behind will be legally responsible; the law requires that you drive a safe distance behind other cars so you won’t run into them if you have to stop suddenly. The one major exception to this rule is when a driver suddenly pulls in front of you and brakes hard, causing you to rear-end his vehicle. This type of case is used by criminals to defraud insurance companies out of money, because they know how hard it is to disprove liability in rear-end collisions. They have a network of seedy doctors who treat the “injured victim” until their bill reaches an astronomical amount, and then members of the group, which may be fronted by an unethical lawyer, negotiate with the insurance company for large settlements. This kind of bogus claim drives everybody’s insurance premiums up and is more common—and lucrative—than you may think.

The failure of a car turning left at an intersection to yield the right-of-way to oncoming traffic is the second most common cause of traffic accidents. A driver making a left turn must yield the right-of-way to oncoming traffic. The left-turning driver may not be paying attention and may not see an oncoming vehicle. Or she may see the oncoming vehicle but think (erroneously) that she has sufficient time to make a left turn. The driver may misjudge the speed and distance of the oncoming vehicle. The left-turning driver may speed up, thinking that she can make the turn before the other vehicle reaches the intersection. Sometimes the oncoming car is exceeding the posted speed limit by 10, 15, or more miles per hour, making it harder to judge how much time one has to make a safe left turn.

Another leading cause of automobile accidents is driver distraction or inattentiveness; the driver simply isn’t paying sufficient attention to the road in front of him, the flow of traffic, and/or the condition of the road. The driver may be distracted by changing the radio station or volume, picking up a dropped object, eating, grooming in the car, talking to passengers, tending to a small child, dealing with a pet, or engaging in a number of other activities that takes his eyes off the road. It only takes a few seconds of not watching the road and the cars in front of you for an accident to happen.

In California, the use of hand-held cell phones is banned when driving. Still, research shows that people who use handsfree cell phones are at a much higher risk of getting into an accident than drivers who don’t use cell phones. The problem is that the driver’s attention is focused on the telephone conversation she is having, rather than on the road in front of her and the surrounding traffic.

Alcohol is involved in approximately 40 percent of automobile accident cases. The legal limit of blood alcohol content (BAC) for criminal purposes is .08. But a person with a BAC of .05 or .06 (or even lower) may be sufficiently impaired to affect his judgment and reflexes, resulting in a traffic accident. Because automobile injury cases are tried in the civil courts, it is not necessary to prove that the at-fault driver met the criminal definition of impairment to hold him legally responsible (“liable”) for the monetary damages incurred by the victim, such as medical expenses, lost wages, and damages for pain and suffering.

Aggressive driving is a frequent cause of automobile accidents. This includes such high-risk activities as tailgating, speeding, excessive lane changing, failing to use signal lights to indicate a turn or a lane change, cutting off other vehicles, failing to yield the right of way, and blatantly ignoring traffic signals or signs.

Failing to maintain one’s vehicle in proper operating condition is another frequent cause of traffic accidents. Worn-out brakes are a major cause of many accidents. Tires that do not have enough tread left to stop the car—especially in an emergency—are a common cause of traffic accidents. The risk of getting into a traffic accident in a car with bald tires increases dramatically when there is water on the road, such as with rainfall or icing. Other mechanical causes of an accident may be a tire blowout; a failure of the steering system; axle failure; defects in the door latches, fuel system, airbags, seat belts, or seat backs; and insufficient roof strength to prevent a collapse in the case of a turnover. As you can see, in addition to carelessness on the part of the vehicle’s owner, the design or manufacturing of a vehicle may also be defective. This is true of Sport Utility Vehicles (SUVs), which have a high center of gravity and are more likely to roll over in an accident.

Weather conditions can lead to many accidents. Rain, ice, or snow on the asphalt can cause problems with traction and make it take longer to stop a car than if the road surface was dry. Southern California gets a relatively small amount of rain; when it does rain, oil seeps to the surface of the road, increasing the hazard of a slippery surface. Also, since it rains so infrequently in Southern California, drivers have little experience with how to drive safely on slick roads, resulting in a dramatic increase in accidents during rainy periods.

A growing number of automobile accidents in California involve street racing. In some cases, two drivers get into a race, and then a pedestrian or other vehicle starts to cross the road; the speeding street racer may not be able to stop in time to avoid the accident. Or one of the cars could lose control and hit a pole or tree straight-on, causing serious injury or death. In cases of death, the driver of the other vehicle may face serious criminal charges.

Sometimes an accident occurs on the freeway or a highway when someone is driving in the wrong direction and collides head-on with a vehicle coming from the opposite direction. Frequently the wrong-way driver is very drunk or high on drugs and unwittingly got on the wrong traffic ramp. But some of these drivers are intent on committing suicide and have no regard for the lives of the persons in the other vehicle who will be injured or killed in the collision.

Sometimes an auto accident will be due to the negligence of a public entity—the United States, the State of California, a county, or a city—in designing, constructing, or maintaining public roadways. For instance, a public entity may be liable for deaths or injuries related to road construction accidents resulting from its negligence, if the public entity created a dangerous condition with its property for which it had actual or constructive notice that the condition posed a risk of harm to persons using the road. Constructive notice means that the dangerous condition of the roadway had existed long enough that the public entity should have known about it, such as from a previous accident or a complaint.

Single-car accidents can happen for a number of reasons. Perhaps the driver was speeding or driving under the influence of alcohol or drugs, or there may be a defect in the car that caused it to go out of control. Another common cause of single-vehicle accidents is an unsafe and dangerous design of the road. Faulty signage or road painting can cause a traffic accident. Unsafe railroad crossings are responsible for a number of injuries and deaths each year. Single-vehicle accidents can also result from the negligent design of the vehicle, such as with 15-passenger vans and SUVs: both have a higher center of gravity and may roll over while the driver is negotiating a sharp turn.

Suppose a vehicle hits you and causes injuries to you and your passenger but it leaves the scene before you get a chance to exchange information such as name, address, insurance coverage, registered owner, and the like. Cases such as these are treated as uninsured motorist claims. Any recovery for the personal injuries suffered by you and your passengers must be made under the uninsured motorist clause of your own automobile insurance policy. But what if you didn’t purchase uninsured motorist coverage to save a few bucks on your policy? Then you are out of luck. If you were in any way at fault for the accident, and you have some assets, such as a house or investment portfolio, your passengers may end up seeking compensation for their medical bills, lost wages, pain and suffering, and other damages from you personally.

Sport Utility Vehicle (SUV) rollover accidents seriously injure or kill about 10,000 people in the United States each year, more than side and rear crashes combined. SUVs and 15-passenger vans are much more likely to roll over or flip over than standard passenger vans and automobiles. Rollover accidents are responsible for 51 percent of all deaths in SUVs, 36 percent of deaths in trucks (mainly pickup trucks), and 19 percent of deaths in passenger automobiles. SUVs were originally designed as off-road vehicles, and their high center of gravity makes them top heavy. An SUV traveling at freeway speeds or above is most likely to rollover when the driver performs a simple driving maneuver, like turning to avoid an object in the road or over-steering when passing another vehicle.

One of the main reasons for this high rate of death and serious bodily harm in rollovers, such as paralysis due to a spinal cord injury or head injuries including traumatic brain injury, is crushed roofs. The more the roof is crushed, the more severe the injuries and the risk of death. The current roof-strength standard is some 35 years old and many serious injuries or deaths could be averted by higher strength standards. A study by the National Highway Traffic Safety Administration (NHTSA) revealed a clear statistical correlation between the amount a roof collapsed into the passenger compartment and the severity of injury. In cases where the vehicle’s occupants were not injured, the vehicles averaged 16 centimeters of lost headroom due to roof intrusion. In accidents with the most serious injuries, the vehicles lost an average of 24 centimeters of headroom in the rollover crashes.

USING THE POLICE REPORT TO DETERMINE LIABILITY

Let’s suppose that you’ve been in an automobile accident and a police officer that arrived on the scene prepared an accident report. Is this the ultimate and final say on the cause of the accident? No. Unless the police officer was an eyewitness to the accident, the police report is considered to be “hearsay”— facts based on what the officer heard from others as opposed to seeing it himself—and it is not admissible as evidence in court. Of course, information contained in the police report may be extremely helpful to your attorney, such as the gathered names and statements of witnesses, diagrams of the accident scene, measurements of skid marks, showing where the car was struck, etc.

DOES THE OTHER PERSON HAVE INSURANCE OR SIGNIFICANT ASSETS?

Suppose you were seriously injured in a head-on collision caused by a drunk driver who crossed the double lines separating the directions of traffic. Liability is clear and your damages— financially, medically, and emotionally—run into the hundreds of thousands of dollars. But the problem is that the driver of the other car has no insurance (is an “uninsured motorist”) or low insurance policy limits (an “underinsured motorist”) and little in the way of possessions that could be sold to pay you. A million dollar judgment isn’t worth the paper it’s written on if the person doesn’t have insurance or significant assets to pay the judgment. We’ve all heard the axiom hundreds of times: You can’t squeeze blood from a turnip.

If the vehicle is registered to another person, you might receive some money under the “permissive user” statute that makes a registered owner monetarily liable to a set amount for damages caused by someone driving her car with permission. If you can prove that the registered owner knew the driver had a history of drunk driving or was a reckless driver, the registered owner may be held financially liable for all of the damages under the doctrine of “negligent entrustment,” that is, handing the keys over to a person she knows should not be driving. If the driver was employed and working at the time of the accident, such as transferring merchandise or parts between stores, you may have the right to sue his employer for your injuries and damage.

Depending on the situation, you may want to sue the uninsured or underinsured driver in court and get a judgment against him. Judgments are good in California for 10 years, and after that, they are renewable every 10 years until they are paid off (“satisfied”). That way, if the driver comes into any money— such as an inheritance—you will be able to collect from that.

Of course, finding a lawyer who will take a case in such a situation will be extremely hard, as the lawyer usually will not want to spend much time and energy chasing the wind and waiting for years for money that may never come. But before you decide against seeking compensation from the person who harmed you, regardless of how indigent he may appear to be, always consult an experienced personal injury lawyer, especially if your injuries are serious. The lawyer may know of various legal theories that can be used to get you a significant settlement or award from, say, the city for a negligently designed or maintained road, or the employer of the driver if the driver was running a business errand for his employer.

If you are injured by a driver who has no insurance, or has insurance but its limits are not enough to cover all of your expenses, you should be able to collect some or all of your damages and bills under the uninsured motorist coverage of your own automobile insurance policy, assuming you purchased such coverage. This coverage is highly recommended. Uninsured motorist coverage is usually paired with underinsured motorist coverage, which kicks in after the other driver’s insurance, if any, has paid its limits.

REPORTING THE ACCIDENT TO THE POLICE, THE DMV, OR YOUR INSURANCE COMPANY

Even if you were not at fault, you are generally required to promptly report the accident and your injuries, if any, to your own insurance company. One advantage to this is that, in an automobile case, they can arrange to have your vehicle repaired and provide you with a loaner car while your car is in the body shop. Of course, this applies only if you have collision insurance and you will be liable for the $250 or $500 deductible; however, you can recover that amount from the negligent driver that caused the accident.

If your accident is a slight “fender bender” and you have suffered no personal injuries and the property damage is minimal, the driver who caused the accident may beg you not to call the police or report the accident to the insurance companies for fear his insurance premiums will skyrocket. Even if you agree to this at the accident scene, ask to see the other driver’s insurance information and write down the name of the insurance company, the policy number, and the name and phone number of the agent. Also ask to see the registration to verify that the person who hit you does indeed own the vehicle. If the person who hit you is not the registered owner, write down the information on the registration regarding the registered owner and her address. Also write down the year, make, model, and color of the vehicle, as well as the license plate number.

Frequently a driver doesn’t want you to call the police and asks to work it out among yourselves because he doesn’t have any insurance or is driving on a suspended license. However, if the other driver does in fact have insurance and you don’t believe you were injured, a day or two later you may wake up with a stiff neck, back, and shoulders—typical soft tissue injuries that will require at least a doctor’s evaluation and probably four to six weeks of physical therapy. What are the chances that the other driver will pay out of his own pocket not only the costs of fixing your car (which are probably considerably more expensive to repair than you thought they would be), but also the medical costs you incurred?

In such a case, you will need to report the accident to your own insurance company (if you haven’t already) and to the other driver’s insurance company, despite his earlier protestations that he would take care of the expenses out of his own pocket. Keep in mind that if there has been any personal injury or death arising from the accident, or property damage in excess of $750, the law requires that a form (SR-1) must be filed with the Department of Motor Vehicles within 10 days of the accident.

DO YOU REALLY NEED A LAWYER?

If your case is a typical fender bender that results only in damage to your car, you may be able to handle the claim on your own. However, if a day or two after the accident you feel some stiffness in your neck, back, and shoulders, you should make an appointment with your doctor or chiropractor for a checkup and see whether you suffered any soft-tissue injuries as a result of the accident. If you have such symptoms, the doctor may prescribe a course of physical therapy for you. At this point, the insurance adjuster, who was so friendly and nice to you, and so quick to get your car fixed, will now take a more adversarial attitude with you. The adjuster may claim that when you talked to her, you didn’t have any problems in your neck, back, and shoulders and you’re making it up to pad your claim.

If your injuries are relatively minor, you may still wish to pursue the case on your own and negotiate with the insurance adjuster. In the typical automobile accident involving moderate damage to the car and minor whiplash or other soft-tissue injuries to the victim, insurance companies generally use a formula to compute the amount of damages they will pay. Insurance companies will usually take the amount of medical expenses, multiply that by two or three times to determine “pain and suffering,” add the amount of lost wages and property damage to that figure, and presto!—you have a settlement offer.

If you cannot come to a settlement agreement with the adjuster, you can sue in small claims court. If you suffer personal injury in addition to the damage to your car, you would be well served by making an appointment with an experienced personal injury lawyer to get a better idea of how much your case may be worth. Your damages may be more severe than you think and you may find yourself agreeing to let the lawyer handle the matter for you.

In the beginning, the insurance adjuster will be kind and nice to you, get your car fixed promptly and pay for a rental car, and may even pay for your doctor’s initial visit. The adjuster will add up these bills, include a small amount for your pain and suffering, and make you an offer to settle the claim. Don’t be fooled by the adjuster’s kindness. She is trying to settle the claim as quickly as possible for as little as possible. If you mention the possibility of having a lawyer review the case to see if the settlement offer is fair, the insurance adjuster will tell you that you don’t need to see a lawyer, that the adjuster is being fair with you, and the lawyer’s fees will be coming out of your pocket so you will end up with less money in the long run. Don’t fall for the insurance adjuster’s line. Studies show that persons represented by a lawyer end up with more money in their pockets after the case is settled or a jury award is obtained than people who represent themselves, and this is after the lawyer’s fee has been paid from the settlement or award.

SUING IN SMALL CLAIMS COURT

COMMON CAUSES OF MOTOR VEHICLE ACCIDENTS

USING THE POLICE REPORT TO DETERMINE LIABILITY

DOES THE OTHER PERSON HAVE INSURANCE OR SIGNIFICANT ASSETS?

REPORTING THE ACCIDENT TO THE POLICE, THE DMV, OR YOUR INSURANCE COMPANY

DO YOU REALLY NEED A LAWYER?

SUING IN SMALL CLAIMS COURT

California small claims court lets you sue for up to $10,000.00. If your case is valued at $10,000 or below, there are a number of reasons not to hire a lawyer but to handle the matter yourself. First of all, it may be difficult to find a lawyer to take a case that is only worth $10,000. Second, a small claims court trial takes place only a month or two after filing the complaint with the court and serving the court documents on the defendant. Compare this with being represented by a lawyer, in which event the case may drag on for months, even a year or more, and you will not be significantly better than if you had sued the guilty party in small claims court.

Municipal Transportation (Mass Transit) Accidents

Each day, hundreds of thousands of people rely on public or municipal transportation to get to work, go shopping, visit friends, or to otherwise get from one place to another. Every year, thousands of riders are injured when the public transit car they are riding in gets into an accident with another vehicle, pulls away from the curb too quickly while a person is trying to get on or off the mode of transportation, or when a passenger loses their balance because of a violent stop or jerk.

Mass transit accidents happen for a variety of reasons. For instance, perhaps a bus is following another vehicle too closely and crashes into the other vehicle when it suddenly stops. Of course, as far as passengers are concerned, it is not necessary for the bus or other form of public transportation they are riding to actually crash into the other vehicle. If the operator of the public vehicle was able to avoid crashing into the vehicle ahead of it, the public entity may still be legally responsible (“liable”) for injuries to its passenger who may fall or otherwise be injured due to the sudden stop.

Some other common causes of mass transit accidents are:

Sudden acceleration
Colliding with another vehicle when merging with traffic after making a stop
Turning too suddenly or too quickly
Improper maintenance of the vehicle (such as worn-out brakes that don’t stop the vehicle in time to avoid an accident)
Carelessness or recklessness of the driver or operator
Inattention of the driver
The driver being under the influence of alcohol or drugs (legal or illegal, prescription or over-the-counter)
Wire derailment
Equipment failure

The public entity has an obligation, both to its passengers and non-passengers alike, to hire only qualified drivers, operators, and other employees and to see to it that they are properly trained to do their job.

The liability of publicly owned or operated buses, the MUNI, light-rail systems, Metrolink, heavy-rail systems, subway cars, BART, electric trolleys, cable cars, trains, and other modes of mass transportation operated by a public entity (such as a city, county, the State of California, or the United States government) involves two “standards of care:” one to its passengers and another to non-passengers. In the relationship with its passengers, a government-operated transit system is considered a “common carrier,” and so it owes those individuals a higher degree of care. Toward non-passengers, the transit system owes only the duty of ordinary care.

WHO IS A PASSENGER?

It is not necessary for the person to be completely inside the bus or other form of mass transit and to have paid the fare to be considered a “passenger.” A person becomes a passenger when he demonstrates an intent to board the vehicle and the vehicle stops to let him on. A person who is in the process of getting off a public vehicle is still considered a passenger until he is safely off the vehicle. Thus, from the moment a person signals his intention to get on the vehicle and the vehicle stops to pick him up until he is safely discharged from the vehicle in a reasonably safe place, the public vehicle, as a common carrier, is required to use the utmost care and diligence for the passenger’s safety.

Suppose a public bus pulls away from the curb while someone is trying to get on, resulting in the person’s falling into the street and being run over by the back wheels of the bus. The public entity that owns or operates the bus can be held legally responsible (“liable”) for the injuries to or death of that person (who is legally considered to be a passenger) for failing to use the highest duty of care for the safety of the passenger trying to board the bus, even though he was not completely inside the bus and had not paid the fare at the time of the injury or death.

A person is considered a passenger until he has safely gotten off the public vehicle in a relatively safe place. The public vehicle’s operator’s responsibility to the passenger continues until the passenger has had sufficient time to get away from the vehicle without injury. The public entity is legally responsible for any and all injuries a passenger suffers if, for instance, a public bus starts pulling away at a stop while the passenger is still in the process of getting off the bus, and he is injured when he falls when the bus starts moving again. The public bus is not necessarily required to let the passengers off at the curb; however, the bus driver must let the passengers off in a safe place where there is no danger of their being hit by passing vehicles or being injured by a dangerous condition of the street.

A special relationship exists between the means of public transit and its passengers that imposes a heightened duty on the public entity and its operators to safeguard its passengers. As the California Supreme Court has stated in relation to buses: “Bus passengers are sealed in a moving steel cocoon. Large numbers of strangers are forced into very close physical contact with one another under conditions that are crowded, noisy, and overheated. At the same time, the means of entering and exiting the bus are limited and under the exclusive control of the bus driver. Thus, passengers have no control over who is admitted on the bus and, if trouble arises, are wholly dependent upon the bus driver to summon help or provide a means of escape. These characteristics of buses are, at the very least, conducive to outbreaks of violence between passengers and at the same time significantly limit the means by which passengers can protect themselves from assaults by fellow passengers. We believe these characteristics of public transportation, along with the duty of utmost care and diligence imposed by California law, provide a more than ample basis for finding that a special relationship exists between buses and their passengers.”

MASS TRANSIT AS COMMON CARRIER

A “common carrier” is a person, company, or public entity that basically agrees to transport anyone who can pay the fare (in legal terms, persons who “tender the price of carriage”). A publicly owned or operated mass transit system that transports passengers is a common carrier. As to its passengers, the public entity, as a common carrier, owes them the “highest degree of due care” and is liable for its passengers’ injuries and deaths resulting from even the slightest carelessness (“negligence”). Common carriers are required to do all that human care, vigilance, and foresight can reasonably accomplish under the circumstances to protect its passengers from being hurt or killed.

As to non-passengers, such as people in other vehicles, motorcyclists, bicyclists, or pedestrians not intending to board the mass transit vehicle, the government entity owes them only the “ordinary standard of care.” This is the duty to conduct its operations in such a manner so as not to put the people traveling via the other vehicles or pedestrians at an unreasonable risk of harm.

Being a common carrier, a public entity has a duty to use the utmost care and diligence to protect its passengers from assaults by other passengers. The public entity can be held legally responsible for injuries resulting from an assault by another passenger when the operator of the public vehicle knew or should have known that an assault on a passenger may be about to occur and had the ability to prevent the injury. This does not require that the public entity provide an armed security guard on every public mass transit vehicle. Rather, there are a number of precautionary measures the operator could take which would impose little, if any, burden on the operator. Some of the actions that could be taken include the operator: (1) warning unruly passengers to quiet down or get off the vehicle, (2) calling the police and asking for their assistance, or (3) ejecting the unruly passengers.

NECESSITY OF FILING A TIMELY CLAIM

One thing that is vitally important to know about injuries caused by a governmental agency or public employee is that, before you can sue, you must file a claim for damages with the appropriate governmental agency within a shortened period (usually six months). If you don’t, you will forever lose your right to hold the public entity responsible for your injuries or your loved one’s death. It is therefore extremely important that, if you want to pursue a case involving the fault of a government agency, you contact an experienced personal attorney as soon as possible.

Large Truck Accidents

A “large truck” is defined as one having a gross weight in excess of 10,000 pounds. According to the National Highway Traffic Safety Administration (NHTSA), in 2008, 380,000 large trucks were involved in traffic accidents in the United States. About 4,000 of the large trucks were involved in fatal crashes, resulting in approximately 4,250 fatalities. One of out every nine traffic fatalities in 2008 resulted from a collision involving a large truck. In addition to the people killed in a large truck accident, 90,000 people were injured in such crashes. In 2008, large trucks accounted for 8 percent of all vehicles involved in fatal collisions and 4 percent of all vehicles involved in injury and property-damage-only crashes.

Approximately nine million registered large trucks are on the road. There are two main categories of large trucks: (1) single-unit trucks, in which the engine, cab, drive train, and cargo area are all on one chassis, and (2) combination-unit trucks. A combination-unit truck is defined as a tractor pulling any number of trailers, or a straight truck pulling at least one trailer. In this configuration, a separate power unit is combined with a trailer. Conventional combination vehicles include a 5- or 6-axle tractor semi-trailer. The 5-axle tractor semi-trailer is the most popular configuration. It has a common maximum weight of 80,000 to 90,000 pounds when fully loaded and accounts for about 60 percent of all large trucks involved in a fatal collision.

When a large truck gets into an accident, it is rarely the typical fender bender. Because of the weight disparity between a large truck and the typical vehicle—be it a sedan or an SUV—or a motorcyclist, bicyclist, and pedestrian, the damage is usually severe and the injuries critical, even fatal. The average passenger vehicle weighing 2,500 to 3,500 pounds is no match for a fully loaded commercial truck weighing up to 80,000 pounds or more.

Of the deaths that resulted from crashes involving large trucks in 2008, 74 percent were occupants of another vehicle, 10 percent were non-occupants (e.g., pedestrians and bicyclists), and 16 percent were occupants of the large truck (that is, the truck driver himself or his passenger). Of the people injured in crashes involving large trucks, 71 percent were occupants of another vehicle, 3 percent were non-occupants, and 26 percent were occupants of the large truck.

Large trucks are more likely to be involved in fatal multiplevehicle crashes (as opposed to fatal single-vehicle crashes) than are passenger vehicles. In 30 percent of the two-vehicle fatal crashes involving a large truck and another type of vehicle, both vehicles were hit in the front. In half of the two-vehicle crashes involving a large truck and another type of vehicle, both vehicles were proceeding straight at the time of the crash. About one-third of two-vehicle fatal crashes involving large trucks are head-on collisions. In 9 percent of the crashes, the other vehicle was making a turn. In 9 percent of large-truck accidents, either the truck or the other vehicle was negotiating a curve at the time of the collision. In 8 percent, either the truck or the other vehicles was stopped or parked in a traffic lane.

Fatal truck accidents involving large trucks are most likely to occur during the daytime (67 percent) on a weekday (80 percent) in a rural area (64 percent) on dry road conditions. On weekends, 63 percent of truck-related crashes occur at night (6:00 p.m. to 5:59 a.m.).

In addition to the injuries caused by the impact of the collision, there will be the possibility of serious secondary injuries in cases where the large truck is hauling hazardous or flammable materials. A victim may come into contact with or breathe in caustic hazardous materials. She may be severely burned or suffer smoke or heat inhalation injuries if the tanker trailer spills its load of gas or other flammable fuel and catches fire.

CAUSES OF LARGE TRUCK ACCIDENTS

There are four broad reasons large trucks get into accidents: (1) driver error, (2) something is mechanically wrong with the truck (usually a problem involving the brakes, tires, lights, or steering, often due to negligent maintenance of the truck or trailer), (3) there is a defect in the condition or design of the road or traffic signs or signals, or (4) there is a defect in the design or manufacture of the truck and/or trailer.

DRIVER ERROR

As for driver error, there are a number of reasons the driver may make a mistake. Common reasons are:

Fatigue
Speeding or driving too fast for the conditions
Following too closely (tailgating)
Unfamiliarity with the road
Aggressive driving
Changing lanes unsafely
Being under the influence of alcohol or drugs (especially stimulants), including drugs that are prescription or over-the-counter which affect the driver’s concentration, reflexes, and judgment
Lack of experience or training
Misjudging the speed of other vehicles on the road
Being distracted by something inside or outside of the cab
Driving outside of designated truck lanes
Making an illegal maneuver
Not paying sufficient attention to the road ahead and traffic conditions
Backing up without taking appropriate precautions
Failing to signal a turn
Poor performance during an accident, such as panicking, overcompensating, or exercising poor directional control
The driver’s working environment, including wages, pay basis (i.e., by the hour, mile, or trip), and company safety record

Driver fatigue may result in up to 30 percent of truck accidents. The driver may have compensation incentives that encourage faster truck speeds and more hours of consecutive driving than would be normally allowed or advisable. Unrealistic schedules and expectations of trucking companies often encourage drivers to hurry, despite the safety risks involved.

There are federal rules and regulations on the number of hours an interstate commercial truck driver may drive each week, as well as the number of hours of sleep the driver is expected to get each night. The driver is expected to keep a log of his activities, such as hours and miles on the road and hours and time of sleep. However, drivers frequently falsify their log entries or complete their log books days after the fact, ignoring the regulations while en route to their destination. Before President George W. Bush changed the rules, truck drivers could spend 10 consecutive hours behind the wheel, and could drive a maximum of only 60 hours each week. The driver could return to work only after 50 hours off-duty.

In the last months of his administration, however, President Bush signed a regulation increasing the number of hours a truck driver could drive each day from 10 to 11 and increasing the total number of hours the driver could drive from 60 to 77 hours a week. After the driver has driven the maximum amount of hours, the Bush regulation requires that the driver must not drive for at least 34 consecutive hours, 16 hours fewer than the previous 50 hours the driver was required to be off-duty. As a result of the Bush changes, drivers are driving longer hours on less rest, resulting in an increase in the number of big truck accidents. The percentage of fatal crashes resulting from driver fatigue rose 20 percent from 2004 to 2005, the first year in which the longer driving hours were allowed. In October 2009, the Federal Motor Carrier Safety Administration signed an agreement with consumer groups, the Teamsters Union, and others vowing to revise the 11-hour rule. With the increase in driving hours, many drivers resort to stimulant drugs to help to keep them awake and aware.

Nearly one-fourth (24 percent) of all large-truck drivers involved in fatal crashes in 2008 had at least one prior speeding conviction, compared to 18 percent of passenger car drivers involved in fatal crashes. However, drivers of large trucks were less likely to have a previous license suspension or revocation than were passenger car drivers (7 percent and 15 percent, respectively). Only 2 percent of large-truck drivers involved in fatal crashes had a blood alcohol content (BAC) of .08 (the limit for driving under the influence) or higher. For drivers of other types of vehicles involved in fatal crashes in 2008, the percentages of drivers with BAC levels of .08 or higher were 23 percent for passenger cars, 23 percent for light trucks, and 29 percent for motorcycles.

MECHANICAL PROBLEMS WITH THE TRUCK

Worn brakes and tires, faulty steering, and light problems are the major mechanical reasons for large trucks causing an accident. If the brakes are worn, the driver is not able to stop the truck in time to avoid colliding with the vehicle in front of it or stopping at the limit line of an intersection. Worn or bald tires also prevent the truck from stopping properly and reduce the truck’s responsiveness in turns. Steering problems make it difficult, if not impossible, for the driver to control the truck, while burnt-out or otherwise inoperable lights fail to show other vehicles on the road that the truck is intending to turn, has applied the brakes, etc.

Other leading causes of large truck accidents due to problems with the truck or trailer include:

The failure to inspect the truck each day before it is used
The failure to perform regular maintenance on the truck
The failure to install blind-spot mirrors
Equipment failure
Improperly loaded trailers
Insufficiently secured cargo
The failure to maintain current inspection stickers
A tire blowout
Driving empty trailers in windy conditions
A defect in the design or manufacture of the truck or trailer

In one study, more than one-third of the large trucks inspected after a crash had maintenance defects that would have placed them out-of-service (OOS) if they had been inspected before the crash. Brake problems were found in 32 percent of the trucks, and violations of light/marker/signal regulations were present in 23 percent of the large trucks involved in accidents.

In July 2009, the National Highway Traffic Safety Administration (NHTSA) issued stringent new braking standards that will save lives by improving large truck stopping distance by 30 percent. The new standard requires that a tractortrailer traveling at 60 miles per hour come to a complete stop in 250 feet, rather than the old standard, which required a complete stop within 355 feet. The NHTSA estimates that the new braking requirement will save hundreds of lives annually, and will also prevent many serious injuries each year. It is estimated to reduce property damage costs by over $169 million annually. The new regulation will be phased in over four years beginning with 2012 models. The new rule applies only to truck tractors and does not include single-unit trucks, trailers, and buses.

Large trucks such as eighteen-wheelers have the risk of jackknifing if it is necessary for the driver to come to an abrupt stop to avoid a collision or make a sharp turn to avoid hitting another vehicle. Large trucks also pose a specific danger when they are making turns, as they must make a wider turn than the average motor vehicle and another car may not realize the danger and get involved in an accident.

Tragedy often strikes when the truck’s brakes are worn and can’t keep the large truck from running wild down a hill. The truck driver may be unable to stop at a stop sign or red light at the base of the hill, resulting in the runaway truck crashing into everything in its way, causing deaths, critical injuries, and tremendous property damage. Or the driver may not be able to negotiate a turn at the bottom of the hill, also resulting in personal injuries to those in its way, damage to property, and possible deaths.

DANGEROUS ROADS

Problems with the condition or design of the roadway or with traffic signs and signals are another cause of truck accidents. In those cases, the public entity that owns or controls the defectively designed or improperly maintained road may be found legally responsible for some or all of the damages. The roadway may be defective due to a lack of warning signs informing the truck driver of a sharp turn ahead (such as in the case of an off-ramp) or a downhill grade and the need to shift into a lower gear to prevent a runaway truck. If a governmental agency, such as a city, county, or state, is in charge of designing and maintaining the defective roadway, it is essential that you see a lawyer as soon as possible, as a claim for damages must be filed with the appropriate governmental agency within six months of the accident or your claim may be forever barred.

Roads may also be dangerous due to icy or wet surface conditions, the negligent design of off-ramps (such as being too sharp and not having any caution signs warning truckers to reduce their speed to a certain limit so they can navigate the turn safely without overturning), highway conditions and signals, lighting, and weather conditions. These factors can also be important in determining the parties liable for the collision.

DEFECTS IN THE DESIGN OR MANUFACTURE OF THE TRUCK OR TRAILER

Apart from mechanical problems that may arise with a truck or trailer through ordinary wear and tear, some accidents involving large trucks are the result of a defect in the design or manufacture of the truck. For instance, the truck’s gas tanks may be placed in an unsafe location, increasing the danger to the driver and other motorists from a breach of the gas tanks, causing them to rupture and catch fire, inflicting serious injuries or even deaths.

A defect in the manufacture of the truck is usually due to the carelessness (“negligence”) of a worker at the truck maker’s plant or at a company that modifies the truck’s chassis for a special use. For instance, a welder may not do a proper job of welding two metal plates together, causing the plates to separate while in use, resulting in injuries or deaths. Accident reconstruction experts are frequently able to pinpoint a defective weld or other problem with the truck. (See Chapter 21, “Defective Products,” for a more detailed discussion of a defect in design or manufacture.)

INDEPENDENT TRUCK DRIVERS

One issue that often arises in large truck cases is whether the driver of the truck was an employee of the company whose load she is transporting, or whether the driver is an “independent contractor.” If the driver is an employee of the company and causes an accident due to her carelessness (“negligence”), then the company she works for is on the hook for all damages caused thereby under the legal theories of “respondeat superior” and “vicarious liability.” However, if the driver is an independent contractor, such as a driver who owns her own tractor and is free to carry anybody’s goods, then ordinarily only the careless driver may be held legally responsible (“liable”) for the injuries or deaths she causes due to her mistakes or her failure to keep the tractor in good working condition.

The company whose load was being carried is generally not liable for any injuries or deaths when the driver is an independent contractor. However, the company can be held liable if it was negligent in its choice of this particular independent contractor driver. For instance, if the driver has a history of accidents or traffic violations, the company may be held liable for the injuries and deaths caused by the negligence of the driver while carrying the company’s product. Or if the driver had little or no experience in driving this type of truck configuration or the company’s employees carelessly loaded the truck, such as in a manner resulting in it being top heavy, the company may be held legally responsible for injuries caused by the inexperienced driver or the truck’s overturning because of the improper load. The company can also be liable for the carelessness of the independent contractor driver when it retains a certain degree of supervision or control over the driver. The company that owns the trailer can also be held liable if the trailer had worn or defective tires or other mechanical problems that contributed to the accident.

UNSAFE ACTIONS OF OTHER MOTORISTS

In many accidents involving large trucks and another vehicle, unsafe practices of the other driver are the cause of or a contributing factors to the accident. For instance, the driver of a car may try to pass a large truck on the right, not realizing that the truck has moved to the left in anticipation of making a wide right turn. Of course, if the truck driver does not properly signal his intention to make the turn, the conduct of the other driver may not be considered careless. Other examples of accidents that may not be due in part to anything the truck driver did or the condition of the truck include the other party: (1) driving alongside or behind a large truck in its blind spot so that the truck driver cannot see the vehicle, (2) changing lanes abruptly in front of a truck or merging improperly into traffic, which may cause the truck driver to maneuver or brake quickly, resulting in the truck’s jackknifing, and (3) making an unsafe left turn by not yielding the right-of-way to an oncoming truck. However, if both parties were at fault, then the legal doctrine of “comparative negligence” comes into play, which reduces, but does not extinguish, the injured party’s right to recover monetary damages for his injuries and related expenses and losses. (See Chapter 2 for a complete discussion of your rights when both drivers are at fault for the accident.)

Motorcycle Accidents

Motorcycles make up more than 3 percent—over 6.5 million— of all registered vehicles in the United States. There are almost twice as many motorcycles registered today as there were 10 years ago. Per vehicle mile traveled, motorcyclists are about 37 times more likely than passenger car occupants to die in a motor vehicle crash and eight times more likely to be injured.

CAUSES OF MOTORCYCLE ACCIDENTS

Approximately three-fourths of motorcycle accidents involve a collision with another vehicle, usually a passenger car. In two-thirds of such accidents, the passenger car driver violated the motorcyclist’s right of way. The most frequent passenger car-motorcycle collisions involve the motorcycle proceeding straight through an intersection and the passenger car making a left turn in front of the oncoming motorcycle.

In motorcycle accidents involving another vehicle, 27 percent of all fatally injured motorcycle operators had blood alcohol contents (BAC) of .08 percent (the national and state standard for drunk driving). Forty-one percent of motorcycle drivers who died in single-vehicle crashes had BAC levels of .08 percent or higher. Motorcycle drivers killed in traffic collisions at night were more than three times more likely to have BAC levels of .08 percent or higher than those killed during the day. Seventy-two percent of the fatalities in the operator age group of 40-49 involved alcohol. Almost half of all fatal motorcycleinvolved accidents have alcohol involvement.

The highest number of motorcycle fatalities involves people in the 20-29 age group, many of whom ride the “supersports” type of motorcycles: sleek and powerful machines that can reach speeds of 190 mph. Speeding is a main or contributing factor in many cases involving fatalities and injuries among this sector of the motorcycle riding population. The percentage of riders aged 40 and above who get injured or killed in a motorcycle accident has been increasing significantly in the last 10 years, and the number of deaths among this group is catching up to the 20-29 age group. Motorcycle accidents involving larger motorcycles with bigger engines have also been increasing significantly. One reason for this is the increase in over-40 men buying large cruisers—many of them Harley-Davidsons— for recreational riding on weekends and holidays.

Because of their vulnerability and the lack of safety features on motorcycles, motorcycle drivers and their passengers are at higher risk for more serious injuries than occupants of a passenger car. A motorcyclist is more likely to break bones, suffer head injuries, and sustain severe friction burn injuries in an accident, particularly if he was not wearing protective clothing. Fuel system leaks and spills are present in about 60 percent of motorcycle accidents, posing an undue hazard for fire and heat (“thermal”) burns.

LANE SPLITTING

Suppose you are operating a motorcycle at rush hour, and traffic is “stop and go.” You decide to ride in the space between cars. While you’re doing so, a car makes an abrupt lane change, crashing into you or causing you to lose control and go down. You suffer serious injuries. Can the driver of the car claim that you were at fault for “lane splitting” or “lane sharing?”

In California, a motorcyclist may drive between cars, whether the automobiles are stopped or moving, as long as it is safe to do so. Whether it was “safe” to drive between the cars is determined on a case-by-case basis. There are no hard and fast rules. However, the driver of the car may be negligent in failing to signal an upcoming lane change to warn lane-splitting motorcyclists of the impending danger. The car driver may also be negligent in failing to look in her rear-view and side mirrors to see whether any motorcycles were approaching from behind before changing lanes.

SINGLE MOTORCYCLE ACCIDENTS

A significant number of motorcycle accidents are single vehicle accidents in which the motorcyclist collides with the roadway or a fixed object. In accidents involving only the motorcycle, operator error is the main factor in approximately two-thirds of such accidents, the typical error being a slideout and fall resulting from over-braking or running wide on a curve due to excess speed or under-cornering. While such accidents are usually operator-caused, preventing the motorcycle operator from suing anyone for his injuries (unless there was a faulty design of the road or other condition of the road that caused or contributed to the accident), a passenger on the motorcycle generally may seek monetary damages for her injuries from the errant operator.

LICENSING, INSURANCE & HELMET LAWS

California law requires the operator/driver of a motorcycle on public streets to be properly licensed and insured. Statistics put out by the National Highway Traffic Safety Administration (NHTSA) reveal that 26 percent of motorcyclists were riding without a valid motorcycle license in 2007. Without a valid motorcycle license, a person may not be able to obtain insurance for operating a motorcycle. Proof of insurance is required to be submitted to the Department of Motor Vehicles (DMV) when registering a motorcycle.

According to the NHTSA, wearing a helmet reduces the chance of being killed in a motorcycle accident by some 30 percent, and it reduces the risk of suffering a traumatic brain injury by approximately 65 percent. California law requires the motorcycle operator and his passenger, if any, to be wearing an approved helmet. In California, an approved helmet must carry the seal of the federal Department of Transportation (DOT).

If you were not wearing an approved helmet or not wearing any helmet at all when involved in a motorcycle accident, the person who was responsible for the accident can use this fact against you to reduce the amount of monetary damages for your injuries. For instance, if a helmet would have prevented 45 percent of your injuries, your failure to be helmeted at the time of the accident will reduce damages by that percent. This is known as the doctrine of “comparative negligence,” discussed in Chapter 2. Similarly, if you were speeding at the time of the accident and the speeding contributed to the accident, your monetary award will be reduced by the percent that the speeding contributed to the accident. If your speeding was the sole cause of the accident, then you would not be entitled to any recover from the other party, and may indeed be held legally responsible (“liable”) for the other party’s injuries and damage to her vehicle.

NEGLIGENTLY DESIGNED OR MAINTAINED ROADS

Added to the inherent dangers of riding a motorcycle, the motorcycle operator must often deal with less than ideal road surfaces and various obstructions, such as uneven asphalt, potholes, poor surface conditions, bad road designs, and hazards such as blind corners, placement of light standards, speed bumps, low curbing, ruts, debris, uncovered drainage pits, and others. Where a defective design or condition of the roadway causes the motorcyclist to lose control of her bike and go down, suffering injuries, it may be possible to seek compensation from the city, county, or state that owns and/or maintains the road. You need to be aware, however, that if you wish to hold a state, county, or city liable for your injuries, a claim for damages must be made with the appropriate government agency within six months or less, or your right to sue the public entity may be forever lost.

Pedestrian Accidents

According to the National Highway Transportation Safety Administration (NHTSA), a pedestrian is injured every eight minutes by a motor vehicle (approximately 64,000 people a year), and about 4,500 pedestrians are killed each year when hit by a moving vehicle. There are a number of reasons why pedestrians are struck by vehicles: speeding, driving under the influence of alcohol and/ or drugs, improperly placed traffic signs, faulty traffic lights, and dangerous road conditions can all cause automobile-pedestrian encounters. But the number one cause of pedestrians being struck by a motor vehicle is driver inattentiveness. Other causes include disregarding a crosswalk, disregarding a traffic signal, disregarding a pedestrian already crossing the roadway, and failing to stop for a school bus that is flashing its red lights.

WHEN AND WHERE DO PEDESTRIAN ACCIDENTS OCCUR?

Crashes involving a motor vehicle and a pedestrian are highest among five-to nine-year-old boys, who tend to dart into the street. Accidents involving elder pedestrians (age 65 and up) are lower than most age groups, but older pedestrians are more likely to be severely injured or killed in a collision than younger victims. For instance, the percentage of pedestrian crashes resulting in death exceeds 20 percent for pedestrians over 75, compared to less than 8 percent for pedestrians under the age of 14. The vast majority of non-fatal crashes (86 percent) occur in urban areas, but the number of pedestrians killed on rural roads is double the rate of non-fatal rural crashes. The reason for this disparity is thought to be higher rural speed limits and a lack of sidewalks, paths, or shoulders to serve as separated pedestrian walkways.

Sixty-five percent of accidents involving pedestrians occur at non-intersections. This is especially true for pedestrians under age nine, primarily due to their darting out into the street. For ages 45 to 65, pedestrian accidents are approximately equal for intersections and non-intersections. Pedestrians 65 and over are more likely to be injured or killed while crossing the street in a crosswalk.

Pedestrian crashes are most frequent during morning and afternoon peak periods, when the volume of traffic is at its highest. Fatal pedestrian crashes often peak later in the day, between 5:00 and 11:00 p.m., when darkness and alcohol use are factors. Nearly one-half of all pedestrian fatalities take place on Friday, Saturday, and Sunday. Older persons are more likely to be involved in a crash during the daylight hours. The highest number of pedestrian fatalities occurs from September through January, when there are fewer daylight hours and more inclement weather. Child pedestrian fatalities are greatest in May, June, and July, thought to be due to the increase in the children’s outdoor activities.

CROSSING THE STREET

Pedestrians have the right of way while crossing the street in a crosswalk. The crosswalk may be marked with paint, or it may be an unmarked crosswalk where two roads come together. However, when a pedestrian is crossing the street in the middle of the block and there is no crosswalk, this does not make the pedestrian open game to motor vehicles. The vehicle operator must still use “due care” to avoid hitting the pedestrian.

Of course, when a pedestrian attempts to cross the street outside of a crosswalk, she may bear some of the blame for the accident and the amount of her recovery will be diminished accordingly under the doctrine of “comparative negligence.” In some cases, the pedestrian’s failure to cross the street at a crosswalk is the sole cause of the accident, in which case the pedestrian would not be entitled to any compensation.

A pedestrian should always be alert to her surroundings and nearby traffic. If there is a sidewalk, the pedestrian should use it rather than walking in the road. If there is no sidewalk, then the pedestrian should walk on the side facing traffic. The pedestrian should also wear brightly colored clothes when walking on the edge of a road to make herself more visible to passing traffic.

INJURIES TO THE PEDESTRIAN

Because of the weight disparity between a human being weighing one to two hundred pounds and a motor vehicle weighing several tons, it is easy to see that, even in a slight accident, the pedestrian can be severely injured, even killed. The pedestrian may suffer broken legs or arms or serious internal injuries due to the impact. The pedestrian may suffer a spinal cord injury that leaves her a quadriplegic or paraplegic.

If the pedestrian is thrown to the ground, she may suffer serious traumatic brain injuries. If the pedestrian is dragged until the car comes to a stop, the pedestrian may suffer serious friction burns to her body. Of course, when a moving motor vehicle strikes a pedestrian, there is always the risk that the pedestrian will be killed due to the injuries suffered in the collision. The deceased victim’s legal heirs have the right to sue the careless (“negligent”) driver for the wrongful death of their loved one.

Medical Malpractice

Medical malpractice involves the negligence of a physician or surgeon, or anyone else in the business of providing physical and mental health care services. The error may be one in diagnosis, such as where the doctor misses or misinterprets (“misdiagnoses”) a condition as benign rather than the beginnings of a serious problem. Sometimes the error is obvious, such as when the surgeon mistakenly removes a healthy kidney rather than the diseased one. Sometimes the malpractice is more subtle, such as where the doctor fails to heed the warning signs of diabetes and treat the patient with medication and exhort her to check her blood sugar frequently, watch her diet, lose weight, and/or exercise more. Expert testimony of physicians or surgeons in the same field of medicine as the doctor you are suing are usually necessary to prove the degree (“standard”) of care and how the physician deviated from it.

ELEMENTS OF A SUCCESSFUL MEDICAL MALPRACTICE CASE

Three elements need to be proved to be successful in a medical malpractice case:

The victim must prove what the “standard of care” was; that is, what would a reasonable doctor acting under the same or similar circumstances in the same or similar locality have done?
The victim must prove that the doctor failed to meet the standard of care, in that his conduct was below the acceptable standard of care of other doctors acting under the same or similar circumstances.
The victim (or her heirs) must prove that she was injured or killed due to the health care provider’s negligence.

LIMITATION ON DAMAGES

Most good medical malpractice lawyers will not take a medical malpractice case unless he believes it is a meritorious case and is worth at least $500,000 or more. The reason for this limitation is a law that was passed back in 1975, known as the Medical Injury Compensation Reform Act of 1975 (usually referred to by its acronym, MICRA). MICRA has several provisions that make it harder to sue negligent physicians, surgeons, hospitals, and other health care providers. For instance, although you can collect in full for all of your medical expenses, past and future, and all of your lost wages and loss of earning power (so-called “economic damages”), the most you can recover for so-called “non-economic damages” such as pain and suffering and loss of enjoyment of life is only $250,000. The statute also limits the amount of fees the lawyer may charge for representing you, which is less than what he could charge in other types of personal injury and wrongful death cases.

MICRA was passed during a time when doctors were complaining about the sudden and steep increases to their malpractice insurance premiums. Insurance companies said the rise was justified due to the number of frivolous cases brought by unscrupulous, smooth talking attorneys who could sway and convince a jury that the doctor made a mistake and that the client had suffered an astronomical amount of financial and medical expenses and had undergone severe and prolonged pain and suffering. The insurance companies conveniently avoided bringing up the facts that they were suffering because of some bad investment and underwriting practices they had made, and the cyclical nature of personal injury payouts.

Another reason medical malpractice lawyers are hesitant to take cases worth less than $500,000 is that it takes a lot of time and money to prosecute a medical malpractice case through trial. Medical malpractice cases often turn into an expensive “battle of the experts.” The injured victim’s expert doctor will say it was malpractice, while the defendant doctor’s expert witnesses will testify that the care was proper and appropriate. The lay jury—most of them unschooled in medical matters—are left to make heads or tails out of the experts’ testimony. In most cases, especially those dealing with complex medical or surgical issues, the jury will believe the doctor who comes across as the most knowledgeable and confident of all the expert witnesses, rather than trying to sort out and deal with the technical medical testimony itself.

Doctors have long looked out for each other, one major reason being that if they were ever accused of malpractice themselves, they would not want any of their fellow colleagues to testify against them. Accordingly, a code or “conspiracy of silence” among the medical profession arose and existed as early as the start of the 20th century. Thus, in medical malpractice cases, it is often necessary to bring in an out-of-town doctor who is familiar with the medical standards of the area in which the defendant doctor was practicing.

Doctors charge high fees to review medical records to determine whether or not there was malpractice, and their fees for testimony at a deposition or trial is exorbitant. Indeed, some doctors make a very lucrative living just acting as experts in medical malpractice cases. It is much easier for the defendant doctor—whose malpractice insurance carrier is paying the bills—to get doctors to testify on his behalf.

Part VII: Injuries and Damages

Whiplash and Soft-tissue Injuries

Whiplash has been the butt of many jokes and parodies over the years. However, the fact is that it can be a serious injury requiring medical attention and extensive physical therapy. Whiplash occurs when the head is snapped suddenly and violently forward then backward, as would happen if you collided with a car that suddenly pulled out in front of you. Severe whiplash can result in injury to the intervertebral joints, discs, ligaments, and nerve cases. In especially severe cases of whiplash, surgery may be necessary to repair damage to the soft tissue. Between 15 and 40 percent of people who suffer whiplash will continue to have pain months after the injury was sustained. There is an 18 percent chance that a whiplash victim will still be experiencing some symptoms more than two years after the accident.

Whiplash injuries may not show up right away; a person may awaken several days or a week or two later with classic signs of whiplash, such as neck pain, shoulder stiffness, and headache. Usually, the sooner the symptoms of whiplash appear, the more serious the injuries tend to be. Depending on the severity of the whiplash, the doctor may order the patient to wear a cervical (neck) collar, take anti-inflammatory drugs such as aspirin, ibuprofen (e.g., Advil or Motrin), or naproxen (Aleve). For people who are suffering greater than normal pain, the doctor may prescribe strong prescription pain relievers, such as Vicodin and Norco, as well as muscle relaxants. The doctor may also prescribe physical therapy for the victim for a period of several months or more, depending upon how the victim is recovering. While the majority of whiplash victims recover in six to twelve weeks, for some people, regardless of the brace, medications, and physical therapy, whiplash results in longterm symptoms which can be extremely painful and disabling.

In addition to “simple” whiplash, there is the more serious Whiplash-Associated Disorder (WAD). In the more severe and chronic cases of WAD, the person may experience depression, anger, frustration, anxiety, stress, drug dependency, alcoholism, substance abuse, Posttraumatic Stress Disorder (PTSD), insomnia, and social isolation. In some cases, the snapping motion of the neck is so strong that it may cause the dislocation or even a fracture to a cervical vertebra, causing paralysis. (See Chapter 29 for a discussion of Spinal Cord Injuries.)

Broken Bones

If you were injured in an automobile collision or other type of accident caused by another person that resulted in broken bones, you have the right to recover monetary compensation for all of your injuries and associated costs. Common causes of bone fractures include motor vehicle accidents, falls from a height, a direct blow to the bone, child abuse, and repetitive forces, such as those produced by running, causing stress fractures of the foot, ankle, tibia, or hip.

One source says that the most commonly fractured bone is the collar bone (“clavicle”), usually as the result of an automobile accident. Another source lists breaks of the wrist, hip, and ankle as the most common fractures. A break or a crack in a bone is known as a fracture and can affect any bone in the body. A simple (or “closed”) fracture is a clean break to the bone that does not damage any surrounding tissue or break through the skin. The only way of certainty in diagnosing a closed fracture is with an X-ray, CT scan, or MRI.

A compound (or “open”) fracture occurs when the surrounding soft tissue and skin is damaged, such as where the broken bone penetrates through the skin. The attending emergency room physician will order X-rays or other imaging studies performed so she can find out exactly the extent of injury. This kind of fracture is more serious in large part because there is a high risk of infection since it is an open wound.

Additionally, a “simple” fracture is one that occurs along one line, splitting the bone into two pieces, while “multi-fragmentary” fractures, known as “comminuted fractures,” involve the bone splitting into multiple pieces. A simple closed fracture is much easier to treat and has a much better prognosis for full recovery than an open comminuted fracture. Another type of bone fracture is a “compression fracture,” which usually occurs in the vertebrae (the bones that make up the spinal column). There are approximately 14 different types of fractures.

Fractures are most frequently a result of an accident such as a bad fall or motor vehicle collision. The time it takes for a bone to heal depends on the type of fracture, where it is, and if it is an open or closed fracture. Healing of a broken bone is a gradual process, and it can take anywhere from a few weeks to several months. The healing process may, in fact, take even longer in some cases, such as in the presence of chronic diseases like osteoporosis and diabetes. As a person gets older, their bones become weaker making the individual more prone to fractures if they fall. Young children get different types of fractures because their bones are more elastic. They also have growth plates at the ends of the bones that can be damaged.

In order for a fracture to heal as well as possible, a good placement (“reduction”) of the bones must be attained. When doctors talk about “reduction” of a fracture, or “reducing” the broken bone, they are talking about improving the alignment of the broken ends of the bone. In most cases reducing a fracture may involve a little pulling and tugging of the bones to attain optimal alignment. Once the bones are properly aligned, a plaster or fiberglass cast will be applied to hold the bones in the proper position while they heal.

A plaster cast molds to the skin better and is preferred if the broken bone needs to be held in a specific place. If the fracture is not unstable, or if some healing has already taken place, a fiberglass cast may be used. In many cases, physical therapy is required after the fracture has healed and the cast is taken off to strengthen the muscles and restore mobility in the affected area. Fractures near or through joints may result in the joint becoming permanently stiff or being unable to bend properly. In such a case, the lawyer will argue that the patient/client is entitled to recover a higher monetary award to compensate the injured person for the added pain and suffering, lack of enjoyment of life, and work prohibitions that the victim will experience.

If the bones cannot be properly aligned or are not sufficiently stable, and reduction cannot be satisfactorily achieved, then surgery is often necessary. In one type of surgery, “internal fixation,” an orthopedic surgeon aligns the fractured bones with pins, plates, screws, or rods. A second type is “external fixation.” Here, the pins or screws are placed into the broken bone above and below the fracture site. The orthopedic surgeon then repositions the bone fragments, and the pins or screws are connected to a metal bar or bars outside the skin. The external fixation devices hold the bones in the proper position so they can heal. After an appropriate amount of time, the external fixation devices are removed.

Occasionally the orthopedic surgeon uses “bone grafting” to treat a fracture. A bone graft is surgery to place new bone into spaces around a broken bone or bone defects. The new bone can be taken from the patient’s own healthy bone (an “autograft”), from frozen, donated bone (“allograft”), or an artificial, synthetic, or natural substitute for bone. Bone grafting is used to repair bone fractures that are extremely complex, pose a significant health risk to the patient, or fail to heal properly. The new bone is held in place with pins, plates, or screws. Stitches are used to close the wound, and a splint or cast is usually used to prevent injury or movement while the bone is healing.

Bone grafts are used to fuse joints to prevent movement, repair broken bones (fractures) that have bone loss, and to repair bone that has not healed. Surgeons use bone grafts to repair and rebuild diseased bones in the hips, knees, spines, and sometimes other bones and joints. Most bone grafts help the bone defect to heal with little risk of graft rejection, and recovery time generally varies from two weeks to two months, depending on the injury or defect being treated. Vigorous exercise is usually prohibited for up to six months.

If you have suffered a broken bone due to another person’s carelessness (“negligence”), you are entitled to recover your medical expenses, lost wages, pain and suffering, and loss of enjoyment of life you endured from the party that negligently injured you, as well as the lost wages for the time you are off work for surgery, recovery, and physical therapy. Recoverable medical expenses include visits to the emergency room, your primary care provider, an orthopedic specialist, and the costs of having a cast made for you. If the break results in a deformity or limp that you will have to live with for the rest of your life, you are entitled to receive damages for that as well.

Spinal Cord Injuries: Quadriplegia and Paraplegia

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Psychological Injuries

Monetary compensation for psychological injuries such as Posttraumatic Stress Disorder (PTSD), depression, anxiety, and phobias needing professional help are recoverable in most cases with proper psychiatric or psychological care and the use of psychoactive medications in many cases.

In one automobile accident case, a father and his 16-yearold daughter were seriously injured in a horrendous head-on collision. However, a 15-year-old cousin who was sitting in the back seat with her seatbelt on escaped with just a few cuts and bruises. The newspaper that covered the crash dubbed her lack of serious injuries a “miracle.” Fast forward six months: the father and daughter are well on their way to full recoveries. However, things could hardly be worse for the “miracle girl” who avoided any physical injury with nary a scratch.

Soon after the accident, the girl began getting anxious when riding in a car. These feelings of general anxiety progressed to full-blown panic attacks that prevented the girl from riding in a car at all. Eventually, the girl’s anxiety and panic became so strong that she was afraid to leave the house without a safe companion, and she was becoming frightened of leaving the house even with a safe person. The girl had developed a psychiatric condition known as panic disorder with agoraphobia that rendered her housebound. While she needed mental health care to overcome her fears, the girl was too scared to leave home to travel to the office of a psychiatrist or psychologist. She also developed severe depression.

The point of this case is to demonstrate that even when a person escapes serious physical injury, he may develop severe psychological damages that significantly impair his functioning in and enjoyment of life. And it doesn’t have to be a serious accident to cause severe psychological injuries.

People who get in serious accidents can develop Posttraumatic Stress Disorder (PTSD), the same type of anxiety that combat soldiers often develop. The person may suffer nightmares about being in the accident, wake up in the middle of a summer’s night in a cold sweat, duck for cover at loud noises such as a car backfiring, etc.

Many people who have been involved in an accident develop major depressive disorder (MDD), even if they were not physically harmed or suffered only superficial physical injuries. The outgoing, high-achieving high school student who was a passenger in a car that was involved in an accident but escaped with only a few cuts and bruises may turn sullen, lose interest in activities she used to enjoy, sleep too much or too little, experience fatigue or tiredness throughout the day, feel worthless or guilty, or have a diminished ability to think or concentrate. At its most serious, depression may result in having recurrent thoughts of death and suicidal ideations. In the worst case scenario, if the depressed individual does not get adequate mental health care in time, she may commit suicide, all stemming from an accident she was involved in but didn’t suffer any serious physical injuries.

Psychological damage resulting from another person’s careless conduct is real, debilitating, and sometimes deadly. If you find that a family member or loved one is acting differently since he has been involved in an accident of any type, encourage that person to see a psychiatrist or a psychologist for a mental health evaluation. A psychiatrist is a medical doctor (M.D.), while a psychologist is either a Ph.D. or Psy.D. Only a psychiatrist can prescribe medication, such as antidepressants or anti-anxiety drugs. Without a proper mental health checkup, your loved one may suffer excruciating psychic pain and lose all interest in others, things he used to enjoy, and even life itself. With proper psychotherapy and/or psychoactive medication, your loved one should be back to his old self again in several months.

Pain and Suffering

In many personal injury cases, compensation for the physical pain and emotional suffering you experienced and will continue to suffer because of another person’s negligence often constitute a significant portion of the damages you are entitled to receive. Indeed, monetary compensation for physical and psychological pain and suffering constitutes the lion’s share of many personal injury awards. Note, however, that in medical malpractice cases, awards for pain and suffering (and other “non-economic” damages) are limited to $250,000.

The amount of compensation the jury will award for pain and suffering depends upon the type and nature of the injury. For instance, a jury will award a person who has suffered serious burns over 30 percent of her body a significantly higher amount of compensation for pain and suffering than it will award a person who has suffered a typical whiplash injury. Pain and suffering is a catch-all phrase that includes such things as:

Past and future physical pain
Mental suffering
Loss of enjoyment of life
Disfigurement
Physical impairment
Inconvenience
Grief (except in wrongful death cases)
Anxiety
Fright
Humiliation
Discomfort
Fear
Anxiety
Embarrassment
Anguish
Other emotional distress the victim has suffered and will continue to suffer in the future

The Texas Court of Appeals once stated, “In a world so full of pain and suffering, it is strange that no one has perfected a gauge that will accurately measure its value.”

At the end of a personal injury trial, when giving the jury its instructions, the judge will inform the jury not to speculate and that neither emotion nor prejudice has a place in their deliberations. The judge further instructs the jury that the only award permissible in a personal injury case is one lump sum for all time, in precise, cold, hard dollars and cents. Continuing his instructions to the jury, the judge will say further that “pain and suffering,” “ridicule,” “humiliation,” “embarrassment,” and the like all shall be evaluated, and only “in terms of dollars and cents.” Then, as the jurors expectantly wait for further instructions of what is the evaluator or yardstick of the pain and suffering they are to award, the “kilowatt” of pain and suffering, they learn that the judge can give them no such yardstick because none exists. Every case must be determined on its own merits.

After telling the jury that they must return a verdict only in “dollars and cents” for pain and suffering, one judge said: “Under the head of this matter of pain with suffering and humiliation, I am unable to give you any definite rule by which you can assess damages. However, the law allows jurors to assess damages for pain and suffering and humiliation. Nobody can measure pain and suffering in damages. No one can value them particularly. If a man said to you, ‘What would you take to suffer this or that,’ usually they would tell you they would not take anything. There is no way of measuring pain and suffering definitely. But I say to you, ladies and gentlemen of the jury, it is a proper measure of damages. The only thing I can say to you about assessing damages in this kind of case for pain and suffering is that it is just a question of plain common sense. One judge has said it was just a matter of plain horse sense, and that particular statement was approved by the Supreme Court. Allow just such a sum as you think should be allowed in dollars and cents.”

Loss of enjoyment of life can be a major element of pain and suffering for which monetary compensation is available in a personal injury case. For example, assume that you’re an active man in his mid-twenties, playing basketball and tennis several times a week and running in the occasional marathon or taking part in triathlons. Because of another person’s carelessness, you suffer an injury to your right leg that, due to its severity, prevents you from engaging in the activities you used to enjoy. You are entitled to receive fair compensation for this “loss of enjoyment of life.”

In California, the victim’s lawyer cannot argue to the jury how much money they would take to trade shoes with the injured person and ask what they would charge or expect as compensation for the pain and suffering endured by the injured plaintiff if it happened to them. This is known as the “Golden Rule” argument and is considered prejudicial to the defendant.

The jury is instructed merely that they are required to award an amount for pain and suffering that is reasonable in light of the evidence admitted at the trial, and that they must not let bias, sympathy, prejudice, or public opinion influence their decision.

In one case, the plaintiff’s lawyer, during closing argument, asked the jury to assess damages from their own perspective, to act as “a personal partisan advocate for the injured party, rather than any unbiased and unprejudiced weigher of the evidence.” The appellate court found this was an improper argument, because it was essentially a plea to apply the Golden Rule standard.

However, although the law prevents the victim’s lawyer from asking the jury to put themselves in the victim’s place when the injury results in an injury that will cause the victim pain and suffering for the future, even for rest of his life, California law permits the victim’s lawyer to argue a per diem standard to determine the amount of her client’s compensation. Under the per diem rule, an amount for hourly or daily pain is multiplied by the number of hours or days of the plaintiff’s life expectancy. For instance, the victim’s attorney can argue that the injured victim is entitled to, say, $100 a day for his pain and suffering, multiplied by the plaintiff’s life expectancy. This means that a person suffering $100 per day of pain and suffering would be entitled to compensation of $36,500 per year, multiplied by the number of years of his life expectancy. Thus, if the plaintiff’s life expectancy is 10 years, the plaintiff would be allowed $365,000 for pain and suffering. If his life expectancy were 20 years, he would be allowed $730,000 and so forth.

As the California Supreme Court has stated, there is no definite standard or method of calculation prescribed by law by which to fix reasonable compensation for pain and suffering. No method is available to the jury by which it can objectively evaluate such damages, and no witness may express his subjective opinion on the matter. In a very real sense, the jury is asked to evaluate in terms of money a detriment for which monetary compensation cannot be ascertained with any demonstrable accuracy. Translating pain and suffering into dollars can, at best, be only an arbitrary allowance, and not a process of measurement, and consequently the judge can give the jury no standard to go by; the judge can only tell the jury to allow such amount as in their discretion they may consider reasonable. The chief reliance for reaching reasonable results in attempting to value suffering in terms of money must be the restraint and common sense of the jury.

The jury must impartially determine pain and suffering damages based upon evidence specific to the victim, as opposed to statistical data concerning the public at large. The only person whose pain and suffering is relevant in calculating a general damage award is the victim. How others would feel if placed in the victim’s position is irrelevant.

Damage to Your Vehicle and Its Contents

Suppose that you are in an accident which is entirely the other driver’s fault and your two-year-old car is totaled. Is the other driver responsible for buying you a new car? No. When a car or other personal property is damaged or destroyed, the measure of damages is: How much will it cost to fix it? If it can’t be fixed, how much is its replacement value? For instance, let’s say you paid $25,000 for your car two years ago, but the fair market value of a two-year-old car of the same make and model was $17,500 at the time of the accident that destroyed your car. Under these circumstances, the most you can recover from the other driver is only $17,500. This is true even though you are likely to still owe more on your car loan than $17,500. Or if the cost of repairing your vehicle after such an accident exceeds its fair market value, the defendant would nevertheless only have to pay you the fair market value of the vehicle.

Likewise, if any contents you had in your car were damaged or destroyed during the accident, the party at fault must compensate you for their fair market value at the time of the accident. If the party at fault is uninsured, you will ordinarily have to recover the value of the contents by submitting a claim to your homeowner’s insurance company.

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Free Guide To Your Personal Injury Case

A Note on Negligence and Tort Law

Part I : Whose Fault Is It?

Part II: How Much Is My Case

Part III: Before You Speak to a Lawyer

Part IV: Working With Your Attorney

Part IX: The Past, Present and Future

Part V: How a Case Proceeds Through the Justice System

Part VI: Types and Examples of Common Accidents

Part VII: Injuries and Damages

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