How Much Is My Auto Accident Case Worth?
Car accident lawyers in San Jose, like personal injury attorneys everywhere, make recommendations to settle a case or take it to trial based on their estimate of the verdict a jury would return if the case were to go to trial. Using that figure as a starting point, an experienced lawyer can calculate a “break-even point” that represents the settlement value of the case.
It makes sense to accept the best offer an insurance company will make if that offer equals or exceeds the break-even point. If the insurance company’s best offer does not come reasonably close to the break-even point, an auto accident lawyer will usually recommend taking the case to trial.
Calculating the Break-Even Point
The break-even point is the dollar amount the injury victim will probably receive if the case goes to trial, after taking into account comparative negligence, the risk of losing, and the expense of litigation. Calculating the break-even point requires the injury lawyer to ask four questions:
- What damages would a jury award at the conclusion of a trial?
- How would a jury assess the comparative negligence of the drivers?
- What are the odds of losing?
- How much will it cost to take the case to trial?
The first question represents the starting point in the settlement calculation. It is based on a personal injury lawyer’s experience in bringing similar cases to trial, as well as an awareness of what juries in the county where the accident occurred have awarded in other cases with similar facts.
The second question allows the attorney to calculate how much of the verdict will actually be awarded to the injury victim. In California, the court reduces the jury’s determination of damages in proportion to the jury’s assessment of how much the injury victim’s negligence contributed to the accident. San Jose personal injury lawyers use their knowledge and experience to decide how the jury would assess comparative negligence.
The third question is similar to the second, but it takes into account the possibility that a jury might award nothing. That doesn’t happen often in car accident cases, but there is a risk that it will happen in cases where the facts of the accident are substantially disputed.
The last question recognizes that it is more expensive to take a case to trial than to settle. Assume that a jury would award compensation of $60,000 and that it would determine the injury victim to be 20% at fault. The injury victim would receive a judgment for $48,000. The lawyer decides that there is no serious risk that the injury victim will lose the trial so no further deduction is made from the $48,000. If it will cost an extra $6,000 to bring the case to trial, the injury victim will receive compensation of $42,000. If the insurance company will not agree to pay more, it makes sense to accept a $42,000 settlement, because that is the what the injury victim will probably receive after a trial.
Examining each of those four questions in detail will help car accident victims understand how a lawyer decides what their case is worth.
What Damages Will the Jury Award?
By the time a case is ready to settle, a San Jose car accident lawyer will have gathered evidence needed to calculate the jury’s probable award of damages. Components of the award may include:
- The amount of lost wages to the date of trial
- The present value of any future wage loss that the injuries are likely to cause
- Medical expenses incurred to the date of trial, including pharmacy expenses, physical therapy, and related health care expenses
- Future medical expenses related to the injury
- The expense of coping with a permanent injury (wheelchair purchases, caretaker salaries, vocational training, etc.)
- Past and future pain, suffering, emotional distress, and loss of enjoyment of life
Past economic losses can usually be calculated by adding them up. To calculate future economic losses and expenses, car accident attorneys often enlist the help of physicians, economists, and vocational experts.
Calculating pain and suffering is more difficult. The assessment depends on the severity of the injury, the duration of pain or disability that the accident caused, and the impact of accident-related suffering on the victim’s life. Lawyers consider all of those facts and then determine what San Jose juries have awarded for pain and suffering under comparable circumstances.
How Will the Jury Assess Comparative Negligence?
A rear-end collision may involve no negligence on the part of the driver who was rear-ended, particularly when that driver was stopped at a red light or was waiting for traffic to move. In other kinds of accidents, a jury will often award at least some degree of fault to the injury victim for failing to anticipate the negligence of the other driver. Seasoned lawyers are able to estimate how the jury will assess comparative negligence based on jury verdicts in similar cases.
What Is the Risk of Losing?
In California, an injury victim can recover damages even if the victim was primarily responsible for the accident. An injury victim who strayed across a centerline and collided with a truck might be 90% responsible for the accident, but if the jury finds the truck driver to be 10% at fault for driving too close to the centerline, the injury victim can recover 10% of the his or her total damages.
However, a lawyer will need to consider the risk that the jury will place all the fault on the injury victim. If that happens, the victim will recover nothing. If winning the case will probably result in a finding that the victim was 90% at fault, the lawyer will calculate 10% of the damages as the likely value of winning the case. But if there is a 50/50 chance that the victim will be found 100% at fault, that value will be reduced by 50% to account for the odds of losing.
What Will a Trial Cost?
Some expenses, such as the cost of obtaining medical records, must be incurred whether or not the case goes to trial. However, every trial involves extra expenses. The greatest expense usually involves the fee charged by expert witnesses, including doctors, accident reconstruction engineers, economists, and other experts who are needed to prove fault or damages. Since those costs are saved by settling, they must be factored into the calculation of the break-even point.
Calculating the break-even point requires experience and a keen awareness of how local juries have decided cases. Choosing a car accident lawyer with a good reputation, a track record of success, and years of experience will help a car accident victim obtain a fair settlement.
One of the first questions an accident victim asks a San Jose personal injury lawyer is: How much is my case worth? If the question is asked at the first meeting with the lawyer, the only honest answer is: I don’t know.
The settlement value of a personal injury case depends upon several factors. Until full information is available, the best any lawyer can do is to suggest a minimum amount or a range that seems reasonable. As more facts become available, however, that estimate will likely be revised.
Here are some things that experienced San Jose personal injury attorneys consider when determining the settlement value of an injury claim.
California law requires an accident victim’s compensation to be reduced in proportion to the accident victim’s responsibility for the accident. For example, suppose the accident victim entered an uncontrolled intersection without slowing down and didn’t notice that a car was coming from the left. If the accident victim is T-boned, most of the fault rests with the other driver, because the accident victim had the right of way. But the accident victim was also negligent, and is therefore partially at fault, because the accident victim failed to slow down and anticipate that the other driver might not yield.
In that example, the driver who failed to yield might be 80% at fault and the injury victim might be 20% at fault. If the injury victim’s insurance claim has a value of $20,000 without regard to fault, that claim is reduced by 20% to account for the victim’s negligence, giving the claim a final value of $16,000.
Economic losses are the easiest factor to measure. Those losses generally consist of medical expenses and wage loss.
Medical expenses include the accident victim’s out-of-pocket costs (expenses not paid by insurance) and a projection of future medical expenses (such as surgery that will likely be needed a few years in the future to replace a damaged knee joint). But injury victims usually have an obligation to repay their health insurance companies for medical expenses that the insurer paid as a result of the accident, so the settlement must also recover those costs.
Wage loss includes earnings that were not paid because the injury victim could not work while recovering from the accident. Even if the injury victim used vacation pay to cover the time away from work, those replacement wages can usually be included in the settlement.
The loss of future earning capacity is also factored into the settlement when a permanent or long-term injury will prevent the accident victim from resuming full-time employment at the victim’s former occupation. The cost of vocational rehabilitation should also be included if the victim will need job training before pursuing a new career.
When an injury is catastrophic, the cost of coping with the injury is also a factor. Those costs might cover widening doorways or adding a ramp to accommodate a wheelchair, hiring a caretaker to help with daily activities, or room and board at an assisted living facility.
Nature and Extent of Injury
Serious injuries naturally result in larger settlements and verdicts than injuries that resolve quickly. Most car accident injuries produce symptoms that resolve in a few months. The injury victim is entitled to compensation for pain and suffering in addition to economic losses, but an accident victim who experiences four to six months of neck or back pain will obviously receive a smaller settlement than a car accident victim who has experienced nerve damage or some other painful condition that will probably last a lifetime.
The largest settlements involve catastrophic injuries that permanently reduce an accident victim’s quality of life. Limb amputations, paralysis, and brain damage are examples of catastrophic injuries.
Fortunately, most injuries are not catastrophic, but many injuries produce significant suffering and mental anguish, even if the symptoms are not expected to be permanent. Where an injury falls along the continuum from minor to catastrophic is an important factor that determines settlement value.
Compliance with Medical Treatment
Injury victims maximize the settlement value of their insurance claims when they follow a doctor’s advice. That means keeping follow-up appointments, obtaining consultations from specialists, and completing a course of physical therapy if one is recommended.
People who live busy lives often prioritize work, family, or other responsibilities rather than taking care of their injuries. They miss doctor’s appointments and never get around to rescheduling. They stop going to physical therapy because it is time-consuming and painful. They may decide it is easier to live with a nagging injury than to obtain the treatment needed to hasten recovery.
Unfortunately, when patients stop seeing their health care providers, the providers assume that the patient is cured and close the patient’s file. More importantly, insurance claims adjusters (and possibly juries) assume that the patient stopped receiving treatment because the patient no longer had symptoms of the injury.
When it comes time to settle the case and a patient says “I still have pain,” the personal injury lawyer will report that fact to the insurance adjuster, but the adjuster will assume that the patient is malingering. And without medical records to support the patient’s continuing efforts to treat the pain, the adjuster will be unwilling to pay full compensation for the injury.
Personal injury victims owe it to themselves to take care of their health. That means cooperating with treatment providers and following a doctor’s advice. Following through on recommended medical care also allows injury victims to maximize the settlement value of their cases.
Unfortunately, a real-world factor that determines how much a case is worth is often the amount of insurance that is available. A driver who carries California’s minimum bodily injury coverage of $15,000 for one injury victim may not be in a position to contribute to the settlement. If an accident victim’s insurance claim has a value of $50,000 but there is only $15,000 in insurance coverage available, the accident victim may have no realistic choice other than accepting $15,000 to settle the claim.
Personal injury lawyers in San Jose always look for other sources of insurance coverage when bodily injury coverage is inadequate, but sometimes no other insurance is available. We recommend that drivers carry as much uninsured and underinsured coverage as they can afford, so that compensation will be available if they are injured by an underinsured driver.
Other factors, such as whether the drivers involved in the accident are likable and the skill of the personal injury lawyer also affect settlement values. Having an experienced San Jose personal injury attorney review the case is the best way to determine how much a personal injury case is worth.
San Jose has implemented a safety policy, known as Vision Zero, in an effort to reduce the number of car crashes that result in injuries or fatalities. As San Jose car accident lawyers, we applaud that effort while recognizing that thousands of people are injured every year in San Jose car crashes.
What should you do if you have been in a San Jose car accident? You should obey the law while protecting your health and your rights. Here are some ways you can accomplish those goals.
Stay at the Scene
California law requires drivers who are involved in an accident that injures another person or damages another person’s property to stop at or near the accident scene. Failing to obey that law can result in a hit-and-run prosecution.
If you are injured by a driver who fails to stop at the accident scene, try to get the license plate number of the vehicle that struck yours. If you can’t do that, do your best to get a description of the vehicle. If you have a chance, use your cellphone to take a picture of the fleeing vehicle. Then call the police immediately and report that information.
Report the Accident
The best way to protect your rights is to ask the police to come to the accident scene. Call 911 or the local police department to report the accident.
Everyone who is involved in an injury accident has the duty to make a written report of the accident to the Highway Patrol or (if the accident was within the city limits) to the San Jose Police Department. That report must be made within 24 hours. A standard form is available. You may want to obtain legal advice before filling out the form.
Drivers who are involved in a car accident that causes an injury must exchange certain information. You might want to wait until the police arrive to do that, particularly if the other driver is reluctant to comply with that law.
The driver who injured you must tell you:
- His or her name
- His or her current residential address
- The names and addresses of all other occupants of the driver’s vehicle
- The vehicle’s license plate number
- The name and address of the vehicle’s owner
You must give that same information to the driver who hit you.
Both of you must give that information to a police officer who arrives at the scene to investigate the accident. If no officer arrives, you should make sure to write down the required information (or record it on your smart phone).
If you were struck by the other vehicle, you have the right to ask the other driver to produce a driver’s license. A police officer will do that if an officer responds to the accident, but if no officer comes, you should write down or record the driver’s license number, its expiration date, and the name shown on the license.
If an officer comes to the scene, you should explain the circumstances of the accident to the officer if the accident was not your fault. If you caused the accident (or if you are not sure how it occurred), you might want to tell the officer that you need to obtain legal advice before you discuss the accident. You have the right to do that. If you lie to the police, you can be charged with a crime, but the only information you are required to give to the police is listed above.
Get Medical Attention
If you are seriously injured, call 911 (or ask someone to do it for you) and ask for an ambulance. If you cannot move (or if moving is painful), do not let anyone else try to move you. Wait for the arrival of paramedics who are trained to move accident victims without worsening their injuries.
If paramedics tell you that should take an ambulance to the hospital to be evaluated, follow their advice. Even if you do not think you have been seriously injured, paramedics are trained to recognize injuries that need a prompt evaluation.
For example, a concussion can lead to bleeding inside the skull or brain swelling. Both of those conditions can be fatal even if the accident victim does not feel intense pain in the immediate aftermath of the collision.
Make sure you tell the paramedics about every pain or problem you are experiencing. If you later testify about an injury that doesn’t appear in the paramedics’ report, an insurance adjuster might not believe the injury is real.
If you do not need the attention of paramedics, visit your doctor (or an urgent care clinic) as soon as you feel any pain. Some injuries, such as neck injuries resulting from a rear-end collision, might not become painful until a few days have passed. Delaying treatment of those injuries may prolong your recovery while making it more difficult to convince insurance companies and jurors that your pain is real.
Render or Ask for Assistance
All drivers involved in an accident have a duty to render assistance to injury victims. That usually means calling an ambulance. It does not mean providing medical treatment, because only trained paramedics or doctors should treat an injury victim.
Upon request, a driver has a duty to transport an injury victim to a physician or hospital. If you are injured and nobody has a cellphone with which to call an ambulance, asking for a ride to a hospital may be your best option.
Take note of people at the accident scene who may have seen the accident. Try to get their names and telephone numbers in case they leave before the police arrive.
If you have a camera (even a cellphone camera), take pictures of the accident scene from several angles and distances, including damage to both vehicles. Try to take pictures of the vehicles in contact with each other before they are moved. You should also take pictures of skid marks, gouges in the pavement, debris from the vehicles, and everything else you see that pertains to the accident.
Contact a San Jose Personal Injury Lawyer
Take care of your health immediately, but as soon as you are able to do so, contact a personal injury attorney in San Jose. Do that before you talk to any insurance adjuster. Your lawyer will give you advice that will help you protect your rights while maximizing the compensation you will receive for your injuries.
Injuries and property damage caused by trucking accidents often lead to high-dollar lawsuits. The forces produced by a large truck in a collision are more likely to cause catastrophic injuries and death than a typical accident involving two cars. If the truck driver is at fault, a trucking company with inadequate insurance could lose everything. Here are some tips trucking companies and owner-operators can follow to protect themselves from lawsuits.
Get the Right Insurance
The only way to avoid an insurance claim for a trucking accident is to avoid being negligent. When negligence leads to an accident, the only way to minimize the likelihood of being sued is to have an insurance company that pays claims fairly and promptly.
Some insurance companies claim that they offer lower premiums by fighting against accident victims who make insurance claims. Insurers that try to avoid paying fair compensation are interested in increasing their profits, not in lowering their premiums.
Insurance companies say that vigorously contesting insurance claims discourages frivolous claims. In reality, that strategy encouraging lawsuits by injury victims who receive low-ball settlement offers.
Every day a driver spends in depositions, in meetings with lawyers, or in court is a day that the driver isn’t making money for the company. Finding a responsible insurance company that takes a reasonable approach to settling liability claims is the first step toward avoiding lawsuits.
Inspect Trucks Regularly
Most lawsuits against truckers or trucking companies result from a claim that the driver was negligent. Some accidents, however, are caused by problems with the truck itself.
Two federal agencies funded the Large Truck Accident Causation Study, a comprehensive analysis of truck accidents. The study determined that about 10% of truck accidents occur when a problem with the truck causes the driver to lose control. Examples include:
• Cargo shift due to improper loading
• Brake failure
• Tire failure
• Wheel falling off
• Hood flying open
Problems of that nature can only be avoided by careful inspections. Cargo should always be inspected to be certain that it is loaded securely and distributed properly. Each truck should be inspected before every trip and should undergo routine maintenance on a regular schedule. Regular brake inspections and tire replacement are critical. A trucking company is at risk of being sued whenever an accident could have been avoided by proper inspection and maintenance of a vehicle.
Hire Trained Drivers
There are more long-haul driving positions available than there are drivers to fill them. The best way to attract highly-qualified drivers is to offer higher pay than competitors. In the long run, that cuts down on accidents and keeps insurance premiums under control.
Unfortunately, many companies think only in terms of short-term profits. It’s tough to stay competitive, but hiring unqualified drivers is not the way to boost the bottom line. Hiring untrained drivers will only lead to higher verdicts when a personal injury lawyer presents evidence that a trucking company should have known that its drivers were not properly trained but hired them anyway.
A shocking number of companies take an applicant’s word for the fact that the driver has a valid commercial driver’s license (CDL). A trucking company should not only make a copy of the license, but should check with the Department of Motor Vehicles to verify that the CDL is still valid. The company should also verify that the driver has appropriate certificates or endorsements for the kind of vehicle he or she will be driving.
The company should also run a check on the driver’s driving record to make sure the driver has not been ticketed for serious moving violations. It is also prudent to review the driver’s medical record to make sure that the driver does not suffer from epilepsy, sleep apnea, or some other disqualifying condition.
Checking the driver’s references and verifying past employment is essential. If a driver was fired for misconduct or ineptness, it is important for the company to consider that fact when deciding whether to make a job offer.
In addition to confirming the credentials of a new hire, companies should road test every driver, both when hired and at periodic intervals, to make sure the driver possesses necessary skills. The fact that a driver obtained a CDL does not assure that the driver is capable of handling the rigs that he or she will be asked to drive.
Enforce Compliance with Rules
Every commercial driver must keep a log that satisfies state and federal standards. The log should indicate that the driver does not exceed the maximum number of driving hours each day. Although the log doesn’t assure that the driver is getting an adequate amount of sleep, it at least provides some evidence that the driver is meeting mandated standards for rest periods.
Trucking companies often have the tools to verify log entries to assure that the driver hasn’t falsified the record. A company that does not have those tools should acquire them.
A GPS tracking device that wirelessly transmits a truck’s location allows trucking companies to learn whether the truck is in operation for more hours than the law allows. The device also allows the company to monitor a truck’s speed to assure that the driver is not breaking speed limits in an effort to meet a deadline.
A trucking company that does not monitor compliance with the law may be negligent, given the ease with which monitoring devices can be acquired and installed in a fleet of trucks. The absence of monitoring devices may be seen as encouraging drivers to falsify their logs, to speed, and to place deadlines ahead of safety.
Owner-operators should carry adequate insurance, should inspect their vehicles, and should obtain necessary certifications and endorsements. But the first line of defense for a driver who wants to avoid a lawsuit means driving safely.
Fatigue and “highway hypnosis” are the enemies of drivers. Stopping, resting, and keeping eyes constantly in motion help drivers stay fresh and alert.
Of course, drivers should never consume drugs or alcohol in the hours before driving. They should not text, operate portable electronic devices, or program a GPS device while their vehicle is moving.
Many trucking accidents occur when a truck is merging or changing lanes. Be aware of blind spots and of other traffic. The fact that you’re in the biggest vehicle on the road doesn’t necessarily mean that drivers of smaller vehicles will get out of your way.
Other common trucking accidents are front-end collisions when a truck strays across a centerline and rear-end collisions when a truck fails to stop in time to avoid a collision with vehicles that are stopped in bumper-to-bumper traffic. Avoiding a lawsuit means being aware at all time of other vehicles on the road and understanding the amount of time it takes to bring a heavy truck to a stop in an emergency.
Injuries resulting from slip and/or trip and fall incidents is one of the more frequent reasons why customers assert claims against restaurants. Serious injuries such as broken bones, torn ligaments and even brain injuries can result from unsafe conditions in restaurants that establishments can easily avoid with proper training and policies. Unfortunately, many restaurants ranging from fast food places to high-end restaurants fail to take appropriate measures to maintain the safety of their floors, which can lead to serious injury. These failures are typical whether the business is owned by a sole proprietor or part of a large chain.
How can a restaurant protect the safety of its customers and avoid liability for slip and trip injuries? Here are some key tips to keep in mind and follow to avoid accidents and unnecessary lawsuits. These are the areas we look at when evaluating a potential case:
- Inspect the floor regularly to identify slip or trip hazards, especially in high traffic areas such as near the entrance, kitchen, bathrooms and bar. Don’t expect staff to conduct floor inspections while performing other duties. They will forget, they may do a haphazard job, or they may think someone else did it. Designate someone to conduct the inspection. That doesn’t mean the rest of the staff shouldn’t remain vigilant for hazards. This is a must-have best practice.
- Clean and/or sweep the floors regularly to remove hazards. Restaurants with tile floors should wash the floor at the end of every shift; this includes restrooms. Restaurants with carpeting should vacuum and clean restrooms regularly.
- Keep a posted schedule and log all cleanings. Retain these documents of floor inspections and “sweeps” so you can prove you conducted reasonable inspections and floor clearing in the event of an incident.
- Immediately clean or clear any spills or tripping hazards. If the hazard can’t be cleared immediately, place a warning sign or bright cones near the hazard so customers can easily notice the problem; this includes restrooms.
- Make sure all mats and rugs on the floor have beveled edges that lie flat and are designed for commercial use.
- Draft policies for your employee handbook that reflect the above points and make sure they’re provided to (and reviewed) with employees on a regular basis.
If you have an unfortunate accident in a restaurant, one of the first things you should do is take out your phone and take pictures of what caused the fall (or have someone else do it if you’re incapacitated). There may be lots of people taking pictures since it’s now an ingrained habit in this society. If so, ask them to stay near you and send you the pictures they have on their devices. Don’t move, even if you can, until the management witnesses the situation and has come to your aid. If the restaurant doesn’t call for or offer medical help, you can call for yourself or someone else can.
If the restaurant refuses in any way to rectify the situation, you can follow these steps.
- Speak with an attorney at Bohn & Fletcher. There’s no charge. In fact, we work on what’s called a contingency fee, which means we receive a percentage of the recovery we obtain for you as compensation. If we don’t recover any compensation for you, the representation we receive no fee for services.
- Give us as much information about your fall as you can, including any photos, drawings, or written documents, especially from the restaurant. Witness names and contact information is critical. Also be sure to keep records of all medical treatment and billing statements, as well as anything else you believe is pertinent.
- Let us work for your benefit so you can concentrate on healing.
With this information for both restaurants and their customers we hope to prevent incidents that result in injury to customers and litigation for businesses.
If you are injured after being hit by a golf ball, can you bring a lawsuit? As is true of many legal questions, the answer is: It depends.
Assumption of Risk
California, like most states, follows a rule of law known as “assumption of risk.” The general rule is that people who knowingly and deliberately engage in dangerous activities assume the risks that are inherent in those activities. A football player knows he might be tackled and understands that tackles can lead to knee injuries, so a player who is tackled can’t bring a successful lawsuit against the player who tackled him.
But like most legal rules, the “assumption of risk” doctrine is subject to exceptions. Football players assume known risks that are inherent in the game, but not all risks are known and not all risks are inherent. For example, if newly installed artificial turf in a football stadium is defective and a player slips and injures a knee because the turf comes apart at the seams, the player may be able to sue the stadium owner, the manufacturer of the turf, and the team that is responsible for its maintenance. In that example, the risk does not concern a known danger that is inherent in a contact sport, but arises from an unknown defect in a turf surface that players expect to be safe.
Golf and the Assumption of Risk
Is golf an inherently dangerous sport? It certainly isn’t as dangerous as football or other contact sports. Nor is it as dangerous as soccer or other fast-moving non-contact sports. Everyone who plays those sports understands that collisions are part of the game. But golf is sedate. Players rarely crash into each other, even while maneuvering their golf carts.
Still, the risk of being hit by an errant golf ball is part of the sport. Players might reasonably expect other golfers to refrain from hitting the ball toward them, but golf balls do not always travel in the direction that a golfer attends. In deciding that the assumption of risk doctrine applies to golf, the California Supreme Court held that there would be little sport in the sport of golf if every ball behaved as the golfer wished.
The court noted that golf is beneficial for players and the community. It described golf as a social event that brings people together who share common interests. The court also suggested that “physical exercise in the fresh air with the smell of the pines and eucalyptus renews the spirit and refreshes the body” — at least for those who can afford it.
The court worried that imposing legal liability upon golfers who make bad shots would discourage participation in the sport and thus deprive golfers and the community of golf’s many virtues. Accordingly, the court decided that golfers assume the risk of being hit by a misaimed golf ball and cannot usually sue a golfer who makes a bad shot, even if the golf ball causes a serious injury.
Exceptions to Assuming the Risks of Golf
The court did, however, recognize exceptions to that general rule. First, if a golfer deliberately hits someone with a golf ball, the golfer can be held liable. Oddly, in a different case, the court held that a pitcher who deliberately throws a ball at a batter is not liable for causing an injury because throwing at batters is a time-honored tradition in baseball (albeit one that is against the rules) and thus an inherent risk of the sport.
Second, golfers can be held liable if they “engage in conduct that is so reckless as to be totally outside the range of the ordinary activity involved in the sport.” Hitting a ball that does not go where it is aimed will not meet that standard, but aiming a ball into a crowd of people, even when the golfer has no intent to hit someone in the crowd, might be considered extraordinarily reckless conduct. And since golfers are supposed to wait for other golfers to move out of range before striking the ball, hitting a drive while other golfers are still in the fairway might be considered reckless conduct.
In yet another exception to the rule, a California appellate court decided that a golfer who inadvertently hit someone with his club could be held liable for negligence. Being hit by a golf ball is an inherent risk of the sport that everyone appreciates, but being hit by a golf club is not.
Golfers may assume the risk of playing golf, but what about innocent bystanders who are not playing the game? That question arose in a recent case before California’s Fourth District Court of Appeal. Miguel Leyva was walking along an unpaved recreational hiking path that runs parallel to a private golf course when he was hit in the eye with a golf ball. The path is shielded from the course by a line of trees and a six-foot fence.
Leyva had no warning that he was about to be struck, or even that he was walking next to a golf course. He clearly assumed no risks, but the court held that Leyva could not recover damages from the golf club. The club had granted an easement (the right to use its property) to the public for the purpose of a nature trail. A California law protects property owners from injuries that occur on public easements they have granted for recreational uses. That law shielded the golf club from liability.
But what if Leyva had been walking on a city sidewalk? In that case, the golf club might have been liable if it should have known that its fence was not tall enough to protect the public from stray golf balls.
Each case turns on its own facts. The only way for an injured party to know for sure whether someone can be held responsible for an injury caused by a golf ball is to seek legal advice from a California personal injury firm.
Any car crash can be disastrous, but when a passenger car collides with a heavy truck, the results are often lethal. That is particularly true when the car crashes into the rear of a truck that has unexpectedly stopped on a highway.
Since commercial trucks ride higher off the ground than typical cars, the car may roll under the truck at a high speed. An “underride” accident usually results in the rear of the truck smashing the windshield and tearing the roof from the car. Drivers and front seat passengers almost always suffer lethal head injuries in underride accidents.
Underride accidents defeat a vehicle’s crash protection. Airbags may inflate, but they provide no protection when the rear of the truck slams into the windshield as the car slides under the truck. Crumple zones that provide protection in other front-end collisions are ineffective in underride accidents, because the front of the passenger car does not hit a solid object and therefore doesn’t crumple.
Federal and state laws require most large commercial vehicles to have rear underride guards. An underride guard hangs down below the bottom edge of the truck. When they work as intended, a passenger car that hits an underride guard will not travel beneath the truck.
Unfortunately, federal regulations do not specify the size of the guards, the materials from which they are made, or the manner by which they are attached to the truck. When an underride guard does not cover the entire width of the rear end, when it is constructed from flimsy materials, or when it is not braced in a way that sustains the guard’s position during a crash, the guard might fail. The results of an underride guard failure are usually fatal.
Federal regulators have asked for comment about proposed changes to regulations of underride guards. Trucking companies are complaining that stronger guards and better bracing will be more expensive, but the value of the lives that would be saved by better underride guards is immeasurable.
In addition, trucks are not generally required to have side underride guards. When a truck jackknives on a highway, oncoming vehicles are at risk of rolling under the side of the truck during a collision. Federal regulations should require side underride guards on all commercial vehicles that ride higher off the ground than a normal passenger car.
Crash Test Data
The Insurance Institute on Highway Safety conducted a series of crash tests, comparing underride guards on American trucks to those on Canadian trucks. The Canadian underride guards performed significantly better than the American underride guards. The IIHS concluded that Canada’s more stringent manufacturing requirements save lives.
Lawsuits Involving Underride Guards
A federal appellate court recently affirmed a $1.2 million verdict against the manufacturer of a rear underride guard. The family of a woman who was killed in a rear-end collision with a truck that stopped on a highway contended that the underride guard was improperly designed.
The family hired an engineer who had substantial experience with underride guards to testify as an expert witness. The engineer told the jury that the guard should have been braced in a way that would have prevented its collapse when the driver collided with the truck. The jury accepted that testimony and returned a wrongful death verdict in the family’s favor.
In another recent case, a truck pulled in front of a driver at an intersection. The driver’s car rolled under the truck. The collision caused a serious head injury leading to brain damage. The driver died after being in a coma for several months. In addition to suing the trucking company, the driver’s family sued the manufacturer of the trailer for failing to install side underride guards.
Many successful lawsuits have been based on the failure to install underride guards or on the installation of inadequate underride guards. Any injured driver, or the family of a deceased driver, who was involved in an underride accident should contact a personal injury attorney who understands the need to seek compensation from all parties that share responsibility for injuries or deaths in motor vehicle collisions.
California injury victims who have suffered harm caused by another person or business can seek compensation by bringing a lawsuit against the responsible party. However, the injury victim will lose that opportunity if the lawsuit is not filed within the time permitted by California law.
The deadline for filing a lawsuit is determined by the applicable statute of limitations. Those statutes are enacted by the California legislature. They are meant to assure that legal claims are brought to court before evidence becomes stale. As time passes, memories become less reliable and witnesses are more difficult to find. In addition, the legal system has long recognized that people who are responsible for injuries should not experience prolonged anxiety as they wait to see if they will be sued.
Different deadlines apply to different kinds of lawsuits. The deadlines that apply in California are often different from those that apply in other states.
The time during which a lawsuit can be filed is known as the “limitations period.” If a lawsuit is not filed within the applicable limitations period, the injury victim will usually lose the right to bring a claim for compensation in court.
Determining the applicable limitations period is not always easy. The facts of the case, as well as facts about the victim, must be assessed to determine which limitations period applies. Injury victims should consult a personal injury attorney as soon as possible to avoid losing the right to file a lawsuit due to the expiration of the limitations period.
Only the lawyer who represents you can advise you about the limitations period that applies to your case. This article provides some general information about California limitations periods, but it is no substitute for legal advice. Every case is different and all the facts must be assessed to determine which statute of limitations applies to your injury.
Injuries caused in traffic accidents and injuries caused by hazardous property conditions are usually the result of someone’s negligence. In the case of collisions, the negligent party is a driver. In the case of a hazardous condition, the negligent party is usually a business or property owner. Sometimes injuries are caused by defective products. Those are usually the responsibility of the manufacturer or seller.
Bodily injuries and emotional distress caused by negligence or product defects are known as personal injuries. In most cases, the limitations period for filing a personal injury lawsuit in California is 2 years. The same limitations period applies if the injuries result in death.
The 2-year period generally begins on the day the accident occurred. If the injury is not immediately apparent, however, the 2-year period might begin on the day the injury is (or should have been) discovered. Injury victims should consult a personal injury attorney as soon as they realize they suffered an injury due to an accident or product defect.
Accident victims may be entitled to a longer limitations period if they are suing their own insurance company to recover the benefits of uninsured or underinsured motorist coverage. Victims should obtain legal advice to determine the applicable limitations period.
When a doctor commits malpractice, the injury is not always obvious. The failure to diagnose a disease, for example, might not be discovered until the disease is correctly diagnosed. In those cases, the patient can bring a malpractice lawsuit within 1 year after the malpractice is (or should have been) discovered. However, the limitations period usually expires 3 years after the injury occurs, even if it is not discovered.
There are exceptions to the 3-year period, primarily involving medical professionals who deliberately conceal or lie about their malpractice. A longer limitations period may also apply when a surgeon leaves a foreign object inside the patient’s body. A victim of a healthcare provider’s negligence should contact a personal injury attorney immediately after learning of (or suspecting) medical malpractice.
The limitations period to bring a claim for property damage caused by another person’s negligence is usually 3 years. Although a collision victim usually has 2 years to bring a lawsuit for personal injuries and 3 years to bring a lawsuit for damage to the victim’s car, the law usually requires claims against the same party arising out of the same accident to be brought in the same lawsuit. The personal injury limitations period does not become longer simply because the lawsuit includes a property damage claim.
Accident victims who are seeking reimbursement for property damage from their own insurance company have 4 years to bring a claim in court. That’s because a longer limitations period applies to lawsuits based on contracts. An insurance policy that provides for collision or comprehensive coverage is a contract.
Different rules may apply when the injury victim is a minor, suffers from a mental infirmity, is unable to being a lawsuit because of a disability, or in certain other cases. Different rules may also apply when a city, county, or government agency is guilty of negligence.
Since determining the applicable limitations period is not always easy, injury victims should not guess. Injury victims should always consult a personal injury attorney immediately to be certain that they do not lose their opportunity to recover compensation.
If you were injured in a California car crash, you have certain rights and responsibilities. You should report the accident to the police if nobody else did so. You should remain at the accident scene until the police arrive.
Of course, if you are seriously injured, your first priority is to obtain the healthcare you need. If paramedics arrive before the police, follow their instructions. You can always talk to the police later.
To protect yourself and to assure the best outcome if you need to make a personal injury claim against the driver who caused the accident, there are certain things you need to do right away. Since it is difficult to make decisions in stressful situations, you should give some calm thought now to the actions you should take if you are ever injured in a traffic accident.
Stop and Stay
Every California driver who is involved in an accident, even if it only involves damage to someone else’s property, is required to stop. A driver who strikes your car and fails to stop is guilty of hit-and-run.
If a driver leaves the accident scene without stopping, don’t chase the driver. You’ll only make a bad situation worse. Try to get the driver’s license plate number and recall as many details as you can about the car, including its make and model, its color, and any distinguishing features (such as dents or broken lights). Call the police to report the collision as soon as you can, but don’t use your cellphone unless you are out of your car or the car is parked.
Every driver involved in an accident that causes an injury is required to offer assistance to the injury victim. That doesn’t mean that the driver should provide medical care, but it does impose a duty to call an ambulance or to take the injury victim to a hospital.
If you were injured in an accident, don’t let the other driver try to move you. Only a trained paramedic should decide whether you can be moved safely. Trying to move someone who has a neck or back injury can worsen the injury, potentially leading to paralysis.
As an injury victim, you have the right to ask the other driver to call an ambulance on your behalf. If nobody at the scene has a cellphone and if you can move safely, you can ask the driver to take you to a nearby hospital or other healthcare facility.
The basic information you need to bring an injury claim will be included in an accident report that an investigating police officer will prepare. Since it may take some time before you gain access to that report, you should write down as much pertinent information as you can.
You and the other driver should exchange:
- Your names
- Your addresses
- Your dates of birth
- Your driver’s license numbers and expiration dates
- Your auto liability insurance companies
If the other driver does not own the car that struck you, ask for the same information about the car’s registered owner. Make a note of the other driver’s license plate number. Ask the other driver to identify the year, make, and model of the vehicle involved in the accident.
If you see people who probably witnessed the accident, ask them for their names and telephone numbers. The investigating officer might also talk to them, but the witnesses might leave before the police arrive. You can help your personal injury attorney investigate the collision by taking note of the witnesses who saw it.
It’s important to give those names to your attorney as soon after the accident as you can. Witnesses may forget important details if they aren’t interviewed quickly. Your lawyer might want to get their statements while their memories are still fresh.
Talk to the Police
The law requires you to identify yourself to the investigating officer. You should answer the officer’s questions unless you committed a traffic crime. If you think you did something wrong, say “I need to talk to my lawyer before I answer questions about the accident.”
While it is usually best to avoid offering any opinions to the officer, don’t be afraid to describe any facts that establish the other driver’s fault. “The light was green when I entered the intersection” is an example of a fact that you would want the officer to know.
Contact a Personal Injury Lawyer
Don’t talk to an insurance adjuster about the accident until you’ve discussed it with your personal injury lawyer. An adjuster will often try to put words in your mouth. Any mistake you make when you talk to the adjuster will be used against you later.]
After you obtain any urgent medical attention you need, your first call should be to a California personal injury attorney. The attorney can begin an investigation to preserve evidence of the accident and can contact the other driver’s insurance company to keep adjusters off your back. The attorney can also give you advice that will help you maximize the recovery to which you are entitled under California law.
A surprising number of bus drivers in California cause accidents that injure passengers. Whether the bus is operated by a school district or a private business, injured passengers have the right to make a claim for compensation when negligent bus drivers or bus owners are responsible for the accident.
A Deadly Crash
One of the deadliest crashes in California history occurred in October, when a tour bus crashed into the rear of a refrigerated tractor-trailer. The bus driver and 12 passengers were killed, while 31 other passengers were injured.
The big rig was moving slowly on I-10, reportedly because of utility work on the freeway. The bus was traveling at 65 miles per hour when it collided with the semi. Most of the deaths involved passengers who were seated in the front of the bus.
Older busses rarely have seatbelts to protect passengers from being ejected from their seats during a crash. Nearly all of the tour bus passengers were thrown from the seats they occupied when the bus struck the tractor-trailer.
The cause of the accident was not immediately apparent. The driver may have fallen asleep or the bus may have experienced a brake failure. The last stop the bus made was at a casino, where the passengers and driver spent several hours. Whether the bus driver slept or consumed alcohol during that stop is under investigation.
It may be that the driver of the tractor-trailer was partially at fault for driving at such a slow speed on a freeway, although news reports suggest that the truck driver was responding appropriately as he approached utility workers. In any event, it is clear that most of the fault resides with the bus driver (who may have failed to see the semi) or the bus company (if the accident is attributable to poor maintenance of the bus). In this unusual case, the driver owned the bus company, so passengers will be able to pursue the driver’s estate and his corporation as they seek compensation.
Casino Bus Tour Accidents
Accidents involving tour busses that visit casinos have become so prevalent that the National Transportation Safety Board (NTSB) is studying the crashes to determine whether they have anything in common. Most of the crashes involve smaller bus companies.
Smaller companies might be responsible for the majority of casino bus tour accidents for a couple of reasons. Larger companies may enforce safety standards more rigorously, while smaller companies may be more likely to organize casino tours. Fortunately, California requires even small bus companies to carry liability insurance.
Charter Bus Accidents
Earlier this year, a charter bus in Merced County crashed into a sign pole, slicing the bus in half. Five of the thirty passengers died. Other passengers were injured when they were ejected from the bus.
Charter bus companies tend to be small. With less revenue than a company like Greyhound, charter companies may be tempted to spend less on bus maintenance. Companies might also be willing to overlook poor driving records in order to attract drivers who are willing to work for low wages. Some companies have even failed to verify that a driver’s commercial driver’s license is current.
School Bus Accidents
Few accidents are as tragic as school bus crashes that kill or maim children. California school busses have crashed into bridges, trees, and other vehicles. A school bus that goes off the road on a hill or near a body of water endangers the lives of the children, even if the bus driver was not speeding.
California requires seatbelts on school busses made after 1995. The state also requires school bus drivers to participate in more intensive training than most states require. Unfortunately, all of those laudable efforts do not prevent California school bus accidents from occurring.
Causes of Bus Accidents
Most bus accidents are attributable to driver error. Examples include:
- Falling asleep at the wheel.
- Operating under the influence of drugs that the driver consumes to stay awake.
- Distracted driving, including cellphone use.
- Speeding in order to stay on schedule.
- Disregarding traffic signals.
- Failing to stop and make a careful observation before entering a railway crossing.
- Losing control on a curve or while cornering.
- Starting the bus or letting it roll forward while passengers are embarking or disembarking.
- Starting to move before passengers are fully seated.
In addition to injuring passengers, negligent bus drivers may cause injuries to pedestrians by failing to stop at crosswalks, and to other drivers by failing to obey traffic laws.
Larger companies tend to maintain busses more carefully than smaller companies, but some bus accidents are caused by poor vehicle maintenance. Driving on tires that should have been replaced and failing to maintain braking systems are among the mechanical issues that lead to bus accidents.
Compensation for Bus Accidents
Passengers experience a variety of injuries in bus accidents, ranging from broken ankles to serious spinal injuries. Some accidents are caused by other drivers who crash into a bus, but many are caused by negligent bus drivers or by bus companies that fail to maintain their busses.
A passenger who is injured in a bus accident should contact a personal injury attorney immediately. A lawyer’s prompt investigation will help determine the cause of the accident while memories are still fresh, and will assure that crucial evidence is preserved. An experienced personal injury attorney can also provide important advice that will help injury victims maximize the compensation they receive.