California Personal Injury Law Case Notes : California Personal Injury Lawyer & Attorney : Kristine Meredith : The Danko Law Firm : Car Accidents & Product Liability

Of course a wife is entitled to recover against the wrongdoer who caused the death of her loving husband. But what if the husband had long ago abandoned her? Without a loving relationship or continuous support, is the "forgotten widow" entitled to any compensation at all?

In most cases, yes, because the forgotten widow or abandoned wife who has lost her husband is viewed as having lost her husband's financial support. Even if the husband had not been paying that support, the widow is entitled to compensation.

In the usual wrongful death case, an award for loss of support is based on the amount of support the widow proves her deceased husband would have provided to her in the future. But a California court has ruled that, in the case of the forgotten widow, that proof is not necessary.

The California court  in Powers v. Sutherland Auto Stage Co., considered a case where the deceased spouse had deserted his wife more than 13 years before his death. During that time, he had sent her only infrequent small checks, and for several years prior to the his death, the claimant wife had heard nothing from him and did not know his whereabouts. The spouse was entitled to no compensation for the loss of her husband's "care comfort or society.' But the court determined that the wife was entitled to be compensated for the loss of her legal right to support.

It made no difference that the wife had never attempted to enforce her rights. Her right to support was created by the marriage and would exist so long as the marriage itself existed. By causing the death of her husband, the wrongdoer deprived the forgotten widow of a right to which she was legally entitled.
 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

There's no longer any debate.  Tires older than six years should be discarded and replaced, even if they otherwise appear to be in good condition with plenty of tread.  In fact, they should be tossed out  even if they've never been used.  That's because tires older than six years are prone to "detreading."  Detreading is a type of tire failure where the tread peels from the tire much like the skin may peel from a banana.

Detreadings are more dangerous than flats or blow-outs.  Some vehicles, including SUV's, can become uncontrollable after a detreading and can roll over, especially if it's a rear tire that fails.

One need look no further than the vehicle's owner's manual for guidance.  Almost all the car manufacturers now warn to replace tires after six years, regardless of condition.  That includes Volvo, Nissan, Toyota, BMW, and even Ford. In fact, Ford posted a warning on its website: 

Tires degrade over time, even when they are not being used. It is recommended that tires generally be replaced after 6 years of normal service. Heat caused by hot climates or frequent high loading conditions can accelerate the aging process.  

Until recently, the tire manufacturers argued that tires were good for at least 10 years.  Maybe even indefinitely if they had adequate tread. It's only now that the tire makers agree that the "six-year" rule should be followed.

What gives?  Wouldn't a tire manufacturer want consumers to toss out tires sooner, so that they could sell more?

No.

Tire manufacturers make tires in batches and then store them until needed. That' means the tire you buy at a tire store as "new" may be up to 10 years old.   Sometimes even older.  If buyers began rejecting those tires, tire manufacturers would have to change their whole way of making and distributing their product to get them to market and sold while still "fresh."

Consumer groups have argued that tire makers should stamp the year of manufacturer on the outside tire sidewall, so the consumer would have no trouble telling how old the tire is.  Or at the very least, tire shops should be required to advise customers when the new tire they are buying isn't exactly "new." 

Tire makers and tire shops resist.  They say the code containing the tire's date of manufacture is stamped on the inside sidewall for anyone to see.  But the problem with that is the coded information is hard to find and is, well, in code.      

• Email This
• Print
• Comments
• Trackbacks
• Share Link

California's "financial responsibility" law requires that all motorists carry a minimum level of liability insurance in case they cause an accident. That includes an accident that hurts a cyclist. The problem is that the minimum coverage ($15,000) is enough to cover minor injuries only. If any hospital stay is involved, the minimum coverage is unlikely to be enough. The majority of accidents involving a bicycle and a car send the cyclist to the hospital. Cyclists are thus placed at particular financial risk by "underinsured" motorists. 

If the cyclist owns a car, he can protect himself by purchasing "Uninsured/Underinsured" coverage.  The benefits of this coverage applies whether the driver who caused the accident is uninsured, or insured but carries an inadequate amount to cover the injuries. The coverage will apply even though the cyclist was on his bicycle and not in his car.  Thus, in the appropriate case, the cyclist's UM/UIM coverage will step in and compensate the injured cyclist, up to the amount of the cyclist's coverage limits.

For the cyclist to take advantage of the UM/UIM coverage, the cyclist may not accept a settlement from the driver without first obtaining his insurer's permission. If the cyclist does accept a settlement, the UM/UIM may refuse to pay the cyclist's claim.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

To win a lawsuit, the victim must prove that defendant was negligent --  that is, that he did not exercise "due care."  That can be difficult.  But it can also be easy, such as when the doctrine of negligence per se comes into play.

When the doctrine of negligence per se applies, defendant's conduct will presumed to have been negligent with no need for plaintiff to present any further proof.  A defendant's conduct is negligent per se if:

1. The conduct violated a statute, ordinance, or regulation;
2. The violation caused the injury;
3. The statute, ordinance, or regulation was designed to prevent the type of injury that occurred; and
4. The person suffering the injury was one of the class of persons for whose protection the statute, ordinance, or regulation was adopted.

The doctrine of negligence per se may apply when a victim is injured on a construction site (or even a home remodeling project). For example, if the wrongdoer has violated an OSHA regulation, that may be enough to prove the wrongdoer was negligent.  The victim must still show that the violation caused his injury, that the regulation was designed to prevent his type of injury, and that he was of the class of persons for whose protection the statute was adopted.  But he need not prove, as he would need to in most cases, that the wrongdoer did not exercise due care.

If a jury determines that a defendant violated a regulation, the defendant can be found negligent per se even if the governmental agency did not charge him with a violation. Therefore, an attorney investigating a client's case must conduct his own research and investigation into whether the defendant may have violated any applicable statute, ordinance or regulation. 
 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

When a jury finds that a wrongdoer is responsible for the victim's injury, then the Judge will ask the jury to decide how much money will compensate the victim for his injuries.  The law refers to the compensation award as “damages” and has divided them into two categories: economic and non-economic.

Economic injuries/damages include:

·        Past medical expenses -- the reasonable cost of reasonably necessary medical care related to the victim’s injury.

·        Future medical expenses -- the reasonable cost of reasonably necessary medical care for the victim’s medical care in the future

·        Loss of earning capacity – Past and future  loss of  – the reasonable value of the victim’s loss of the ability to earn money as a result of the injury

Non-Economic injuries/damages include:

·        Pain and suffering as previously discussed here.

·        Loss of consortium -- loss of a spouse's companionship and services discussed in more detail here.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The spouse of a victim who has been physically injured may be entitled to compensation from whoever caused the injury. The spouse may be compensated for the following  losses of family relationship also known as "loss of consortium":

• love, 
• companionship,
• comfort, 
• care,
• assistance,
• protection,
• affection,
• society,
• moral support,
• enjoyment of sexual relations
• or the ability to have children. 

The wrongdoer who caused the injury need not compensate the victim's spouse for any of the following:

• The loss of financial support from the victim,
• Personal services, such as nursing, that the spouse has provided or will provide to the victim, or
• Any loss of earnings that the spouse has suffered by giving up employment to take care of the victim.

In California the following individuals may not recover for  the family relationship or "societal" losses due to  their loved one's injury.

• A parent may not recover relationship losses for injury to his or her child,
• Unmarried cohabitants may not recover damages for societal loss.

In the unfortunate situation where a married couple separates after the accident, the spouse of the victim may seek limited compensation (ie. the loss of assistance in parenting). 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

When a worker is injured on-the-job in California, his rights are limited by the workers’ compensation laws. Workers’ compensation is a “no-fault” system.  That means the employee is entitled to compensation from the employer's insurance carrier without having to prove the employer was at fault.   However, the workers compensation benefits are quite limited, and they seldom fully compensate an accident victim for his injuries.     

In an appropriate case, an injured worker can seek compensation for his on-the-job injury from other sources. For example:

• If a co-worker causes the injury, the injured worker may be permitted to seek compensation from the co-worker, but only (1) when co-worker’s actions are malicious with an intent to cause injury or (2) when co-worker is intoxicated.
• If someone other than the employer or co-worker (also known as third party) causes the injury, the worker may seek compensation from the third party.  The victim's lawsuit against the third party can proceed at the same time as the workers’ compensation claim against the employer.  In his third party lawsuit, the worker is not restricted to the limited benefits of worker's comp.   However, if the worker recovers against the third party, the employer is entitled to reimbursement for any benefits paid to the injured worker.

In some cases there may be multiple causes of a worker's injury and he should proceed against his employer, a co-worker and a third party.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

When a person is injured, the initial investigation might not provide all of the answers. For example, when a product such as a Blue Ember gas barbecue grill causes an injury, victims and investigators want to know: “When was the manufacturer first aware of the problem? And, should they have warned earlier about the potential to cause serious injuries? ” 
To get answers, the victim's attorney needs to review internal documents and interview employees and supervisors. Unfortunately, wrongdoers seldom allow their victims' attorneys to review their internal files voluntarily. To get their cooperation, the victims' attorney needs a subpoena. Only then will the manufacturer or other defendants be legally required to open up their files and submit to questions under oath. But to get the subpoena, the attorney needs to file a lawsuit.

 So, then, how much evidence does a victim need before he can file the lawsuit?

It's a bit of a catch-22. An attorney needs to file a lawsuit before he can conduct a thorough investigation. But he needs to investigate to unearth the facts that justify filing a lawsuit. So what facts must an attorney know before filing a lawsuit? In California, the law requires a mere "statement of facts constituting the cause of action, in ordinary and concise language."  What does that mean? Mere allegations of fact which, if true, would entitle the victim to be compensated, are good enough. At the beginning stages of the lawsuit, the victim’s ability to actually prove the allegations is of no concern.

Not true for federal court. The requirements for filing a lawsuit in federal court are more stringent. In federal court, the attorney needs a "good faith basis" for each allegation of fact. It is no excuse that the attorney cannot conduct an investigation into the facts until after the lawsuit is filed. And, recently, the U.S. Supreme Court made it more difficult. The defendant who is sued in federal court can ask the judge to review the initial complaint and draw upon his or her judicial experience and common sense to determine if the allegations are " plausible. " If the judge thinks the allegations are not, then he can throw the case out before the defendant has to answer any questions at all.

This stringent federal standard is one of several reasons victims’ attorneys prefer to file lawsuits in California state courts. Under the federal standard, the Judge may close the door to the victims before important questions are answered.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

A property owner must keep his property in a reasonably safe condition. He must discover any unsafe conditions and repair, replace or warn of any condition he could expect to harm others. 

His reasonableness will be measured by the following factors:

• Location of the property
• Likelihood that someone would come on to the property as the victim did
• Likelihood of harm
• Probable seriousness of such harm
• Whether he knew or should have known of the condition that created the risk of harm
• Difficulty of protecting against the risk of such harm
• Extent of his control over the condition that created the risk of harm.

But if the city, state or the federal government owns the property, then the rules are different and getting compensation for an injury is more difficult.
 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

When you lose a family member, the loss feels immeasurable. But for your family’s claim, it’s important to think about all of the ways your life has been affected. The law permits the family of a victim to be compensated for loss of support, services and companionship.

Loss of support (the amount that the victim would have provided to you after his death):

• income
• retirement benefits
• gifts
• rent
• transportation
• food
• health care
• tuition
• entertainment

Loss of services:

• household duties which may range from piano lessons to mowing the lawn
• personal service, advice, training
• Funeral and burial expenses

Loss of companionship

• love
• care
• assistance
• protection
• affection
• society
• moral support
• sexual relations

Unfortunately, you cannot be compensated for your . . .

• grief
• sorrow
• mental anguish.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Only certain family members are allowed to sue for the death of a loved one. Under California law, the following are allowed to sue:

• Victim’s spouse – Always
• Victim’s registered domestic partner – Always
• Victim’s parents – Only when the victim left no spouse or children, or when the parents were finanically dependant on the victim
• Victim’s stepchildren – Only when the stepchildren were financially dependant on the victim
• Victim’s children – Always
• Victim’s adopted children – Always
• Unrelated children in victim’s care – Only if the child lived with the victim for the 180 days before the victim’s death and was financially dependant on the victim.
• Victim’s brothers & sisters – Only when the victim left no other relatives with a right to sue.  

The following can never sue

• Victim’s unregistered domestic partner
• Victim’s ex spouse, even when dependant on the victim
• The victim’s “common-law” spouse. 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Most personal injury attorneys represent their clients under a contingency fee agreement.  The client pays nothing for attorneys' fees or the costs of the lawsuit until the end of the case when there is a judgment or settlement. Then the attorney is paid a percentage of the compensation recovered -- typically between 30 and 40%.  If there is no settlement and the case is lost, the client pays nothing to the attorney. 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

One of the first questions an attorney should ask, if she doesn’t already know it, “When did the accident occur?” The reason: the time for filing a claim is not unlimited. The limits are known in legal speak as “statutes of limitations”. The law provides a cut-off date for when a claim can be filed. The date will vary based upon many factors including the type of claim (personal injury, sexual molestation, medical malpractice) and the place the injury occurred. 

Generally, in California, the following limits apply:

- personal injury against a town or governmental agency - 6 months

- medical malpractice - 3 years

- personal injury or wrongful death - 2 years

- personal injury or wrongful death related to defect in construction - 4 years

For that reason it is important not to delay talking to an attorney about your potential claim.

• Email This
• Print
• Comments
• Trackbacks
• Share Link