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

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

·        Loss of consortium -- loss of a spouse's companionship and services, including:

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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). 

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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.

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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.

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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.
 

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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.

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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. 

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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. 

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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.

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