California Requires Insurance Carriers to Offer UM / UIM Coverage

In some cases, an attorney may have to go an extra step in securing valid coverage for an accident. Like in life, not every person driving a vehicle is a perfect driver. Some may not have a valid driver's license. Some may not have liability insurance or proof of financial responsibility.  Even though California requires liability insurance with limits of a minimum: $15,000, some drivers disregard the law.

An accident that involves an uninsured driver will result in: (1) a license suspension for the uninsured driver; and (2) trigger coverage for the other driver pursuant to the uninsured motorist provision in the insured's own insurance policy.

Bad news is sometimes given to clients when it is confirmed that they waived their uninsured / underinsured motorist coverage. Thus, they are left with the sole option of pursuing damages from the uninsured driver directly, which typically means that they are left with no justice (most often, uninsured drivers have no recoverable assets and the costs of seeking a judgment outweigh any benefits).

But, a good attorney will go the extra mile. They will not take the insurance carrier's word without proper evidence. Trust, but verify.

California Insurance Code section 11580.2 subsection (a)(1) obligates the insurance carrier to offer uninsured motorist coverage. It also requires a written waiver of the insured when they do not want the coverage. An attorney must always request the written waiver when the carrier states that there is no UM coverage.

If the carrier cannot provide the written waiver with the client's signature, pursuant to subsection (p)(7), uninsured motorist coverage will exist for the insured. It enables the insured to recover a settlement to pay for medical bills and pain and suffering.

If you, or someone you know, has been involved in an accident with an uninsured motorist, contact an experienced attorney. He or she may be able to obtain UM coverage despite an insurance carrier's assertions that no UM coverage applies.

Managing Client Expectations in an Injury Case

A client is similar to a screenwriter. They have fantastical ideas, which turn into grandeur images in their head. Most of those ideas involve unrealistic expectations as to what the true value of their case is. For some reason they believe that an accident claim is a ticket to retirement. Most often, it is not.

Managing client expectations is not only important for the client, it is important for the attorney. For one, an attorney should never create a false impression. Controlling the narrative of what to expect will help an attorney remain disciplined in how he or she communicates with clients. Two, relationships are the foundation of a good law practice. One relies on referrals to survive. A happy client, which means a client who is not surprised with a result of a case, will refer family and friends in the future.

Communicating to the client about the value of his or her case can be difficult. Case value is subjective. That is why claims are fought over in litigation. As one may guess, the defense will value the case less than the plaintiff, and vice versa.

But evaluating a case can also hinge on objective factors. Any case has value when there are damages that can be proven. Damages can be shown via medical bills, lost earnings, etc. A bigger case may involve more medical bills because the accident required significant treatment. For example, if a plaintiff broke both legs, he or she will have higher medical bills than a person who only suffered whiplash (although many whiplash clients experience horrible nerve pain, which affects them for a lifetime). Indeed, the plaintiff with broken legs may not be able to work, while the whiplash plaintiff may continue on with work the very next day after the accident. Under the law, a plaintiff is compensated for those medical bills incurred and the earnings lost because of injury.

Other factors go into determining the value of a case. The reliability of the client will go a long way. Remember that the point of litigation is that both parties are satisfied with the case going to trial by jury. Each side is preparing for a jury trial, meaning that they are organizing when witnesses will testify, and what they will testify to. A client who comes across well-liked, truthful, sympathetic, and aggrieved will increase the value of a case. An attorney does not want a client who will testify poorly in front of a jury.

Putting all of the pieces together and telling a client what a case should settle for remains a risk. The judgment, or arbitration award, or agreed mediation proposal, could be lower than what was communicated. That is why an attorney should give a range, beginning with the worst case scenario (we could lose!) to the best case scenario (the best case scenario should be lower than what you actually think the best case scenario is). More importantly, the attorney should clearly communicate that it is an experienced guess but not a guaranteed opinion. Nothing in personal injury law is guaranteed. If someone tells you different, I would speak with someone else.

Always consult with an experienced injury attorney after an accident. An attorney should not only manage expectations, they should give you, or a loved one, peace of mind.

E-Filing in Los Angeles County for Personal Injury Cases

Stanley Mosk is the central court in Los Angeles County for civil cases. Thousands of cases are heard each year at the Hill Street courthouse. In addition, due to changes a few years ago, all personal injury cases are initially filed at Stanley Mosk. It is referred to as the personal injury hub.

Prior to February 2016, there were a few ways to file a case. One way -- the old fashion way -- was to walk it in and file it in person with the civil clerk in Room 102. A plaintiff could also file by mailing in the lawsuit, with a check for the filing fee. Finally, fax filing was an option as well. No more, however. Cases no longer can be filed by fax.

Personal injury cases can now be e-filed! It appears that e-filing may be rolled out for all civil cases, but as of now, it is limited to personal injury causes of action.

The technological change is welcomed. Los Angeles County falls behind Orange County and San Diego County with respect to e-filing. Los Angeles County certainly handles larger volumes of cases but one way to increase productivity and efficiency is to embrace technology.

Initiation of a personal injury case requires a complaint, summons, and cover sheet. A complaint is a legal document that contains the claims made against the defendant. It is meant to provide notice of why the plaintiff is seeking monetary damages. The summons is a procedural document that gives information as to the pending litigation against the defendant. It obligates the defendant to respond to the allegations made. The cover sheet helps the clerk determine where to assign the case.

If you or someone you know has a potential case, it is prudent to consult with a personal injury attorney. One should not e-file a case pro per unless they understand the ramifications of proceeding forward without representation.

Mediation and Alternative Dispute Resolutions in Motor Vehicle Accidents

After a motor vehicle accident, or other type of injury claim, there is a process that is routinely followed before there is formal litigation. In other words, a person does not sue the very next day after he or she is injured as the result of a negligent party. Because of liability insurance, there is an opportunity to settle a claim short of a lawsuit.

Settlement negotiations do not need to be formal. Indeed, opposing counsel can call the other side at any time to make an offer to settle. Other times, a claim may be ripe for mediation.

Mediation is a form of alternative dispute resolution. Due to congestion at the courts, and the long wait for a trial date (in central Los Angeles, the Superior Court will set a trial date two years from the date of filing), parties are using mediation, and other types of alternative dispute resolution. In fact, it is used frequently in motor vehicle accident cases. Plaintiff attorneys, defense attorneys, and insurance carriers see the value in using mediation before trial.

In a mediation, a neutral party (often a former judge) sits with the plaintiff and the defendant. The neutral is trained to facilitate a mutually beneficial result for both sides. Each mediator has a different style, but the basics remain the same. It is a voluntary process in which both parties agree to come together for the purpose of trying to reach a settlement. It is non-binding, and if one party does not want to settle at mediation, the claim can continue onto trial, or litigation, whatever stage of the case the claim may be in.

Costs of mediation are typically split between the two sides, but sometimes a persuasive plaintiff attorney can have the defense pay on behalf of the plaintiff. Anything said during the mediation is said pursuant to Evidence Code section 1152, meaning that it cannot be used against the party later on at trial, if there is not a settlement reached. Thus, each side can speak frankly and informally about the strengths and weaknesses of their respective cases.

There are a number of different mediation methods available. Parties can pay and use a professional mediation service. Sometimes the local court will have a free mediator (volunteer who wants to help) available to the parties. Alternatively, parties can use an independent attorney who also happens to mediate cases. Generally speaking, mediation is provided by a range of different providers.

Mediation can be extremely helpful in allowing the insurance adjuster put a face on the claimant. Often it is difficult to understand the severity of an injury until you see and hear it from the injured party himself/herself! Mediation allows the plaintiff to tell his/her particular story as only the plaintiff can.

If you or someone you know has an injury claim, speak with an experienced attorney to determine whether mediation would be beneficial.

Plaintiff's Motions in Limine Prior to an Injury Accident Trial

The purpose of a lawsuit is to afford parties an opportunity to resolve disputes before a tribunal. Litigation has its benefits. For one, the force of law controls. A party cannot ignore procedural rules without facing sanctions. Two, the result will be binding. A judgement from a court of law will be enforced. Finally, three, parties can have their day in court.

Lawsuits rarely result in a trial by jury, however. Most cases are resolved short of trial -- by way of mediation, or by settlement negotiated by the attorneys. Nevertheless, a trial attorney should treat every case as if it is going to trial. This mindset will help maximize the case value.

Part of preparing for trial lies in procedural strategies. One such strategy is controlling the evidence admitted during the trial. Motions, or requests to the judge, can be made before the jury is impaneled. Motions in limine are made to exclude certain evidence from being heard by the jury. There are a few motions in limine that should be considered in every case.

"Character evidence," or evidence of a person's past conduct unrelated to the case, is not allowed. Thus, if a plaintiff has been involved in prior lawsuits, or had been found at fault in another case, a motion should be made to protect the plaintiff. A jury may consider "character evidence" as evidence to prove conduct in the relevant case. The law prohibits that line of thinking. The present evidence should be considered alone without the information of what may or may not have happened in a separate case.

Another popular motion limits the ability of the defendant to introduce evidence not already disclosed to the plaintiff. During pre-trial litigation, discovery is completed by both sides. When a party responds to discovery, they should be held to their responses. New or contradictory evidence can be excluded with a motion in limine. For example, a defendant will assert his defense contentions during discovery. Let's say Danny the Defendant stated in his response to an interrogatory that he was not negligent because the plaintiff ran a red light. During trial though, Danny the Defendant tries to testify that he was not negligent because the signal was defective. His testimony can be excluded because it is inconsistent with his discovery response.

Motions in limine regarding experts are common as well. Medical experts are utilized in almost every motor vehicle accident case. In order for the plaintiff to prove damages, it is helpful to have a doctor discuss the plaintiff's medical treatment, and future medical treatment that may be necessary. It gives the jury information about the extent of money that has been spent or will have to be spent.

A plaintiff attorney should anticipate the content of the defendant's medical expert's opinions. An expert must disclose all of his opinions during a deposition when asked. If an expert tries to give a new or different opinion during trial, it could be devastating to the plaintiff's case. Thus, a motion in limine should be filed so that the defendant's expert's opinions are limited to the opinions given during deposition.

Trial results are unpredictable. Juries have been known to surprise attorneys. It is important, then, for attorneys to do everything in their power to control the process. Motions in limine are one way of giving the plaintiff an opportunity to win.

Injuries at a Hollywood Nightclub Could Lead to a Lawsuit

The Los Angeles Times and other local media have reported a homicide at Cashmere nightclub in Hollywood. The victim was DJ Steeze, who may have been involved in a brawl that occurred in the dance club. Police and city officials are concerned with the 21% increase of violent crimes, which can be attributed to drunk patrons pouring out into the streets.

Violence occurring in drinking establishments is nothing new. One can watch a classic Western to conclude that. However, the uptick of people visiting Hollywood clubs increases the risk of harm to visitors. Since 2000, Hollywood residency increased threefold. There is a greater chance of conflict.

A person injured, or even killed, at a nightclub could have legal recourse. Indeed, there are many different legal theories that could be advanced should there be facts that support it. 

Most injury cases against nightclubs are brought under the umbrella of negligence. That is, the plaintiff is able to prove that a duty was owed to them, there was a breach of that duty by the nightclub, and as a result of that breach, injury occurred to the plaintiff.

Negligence could be framed in different arguments. For example, some cases involve security personnel, or bouncers. When escorting patrons out, the bouncers get too aggressive or assault the patrons without cause. Those bouncers may lack the required licensing or training to be employed. The club potentially could be held liable for employing individuals who are not qualified to hold a position that could result in injury to guests.

There are other examples. Municipal ordinances require that businesses comply with safety regulations. Sometimes a club may not have the required lighting. Other times a club may exceed the maximum occupancy of a building, which makes things too crowded and dangerous for invitees. An exhaustive investigation should be done after an incident because oftentimes protocol was not properly followed. 

If someone is injured at a nightclub, it is important that he or she seek the medical attention that he or she needs. Proper treatment should be a priority. Then, the injured person should contact an attorney for a consultation. It is possible that medical bills could be recovered, in addition to pain and suffering, lost earnings, and future lost earnings and/or medical treatment.

Given the news, a person should always be careful when going to a nightclub. One should always remain vigilant and aware of his or her surroundings. With that, be safe and thank you for reading.

Motorcycle Accidents Have Become More Frequent and More Dangerous

An article from the Inland Empire pointed out that motorcycle accidents are occurring more often. It is obviously very dangerous for those who ride motorcycles, but it is also dangerous for everyone on the road. Incidents have occurred where drivers of regular cars suddenly swerve lanes to try to avoid a disabled motorcycle.

Motorcycles are smaller, lighter in weight, and afford less protection, i.e. airbags, seat-belts, protective engineering. People involved in motorcycle accidents die at a much larger rate than people involved in a motor vehicle accident. Cars are larger and safer. It goes without saying that motorcycle helmets are a must. The National Highway Traffic Safety Association (NHTSA) provided interesting statistics:

(1) Helmets, when worn, reduce the risk of death by 29 percent;

(2) Helmets, when worn, are 67 percent effective in preventing traumatic brain injury; and

(3) From 1984 to 1995, helmets saved the lives of more than 7,400 motorcyclists.

Besides wearing helmets, motorcyclists can remain cautious and attentive. Indeed, a lot of accidents involving motorcycles are caused by sleeping motorcyclists! The same laws for motor vehicles are applicable to motorcycles. Use common sense and be careful.

But what should you do if you, a motorcycle rider, are involved in an accident because of the fault of a motor vehicle? You should contact a personal injury attorney and open a claim immediately. It is important that everything is documented properly. Take pictures, make sure that the police are called to write a report, and be mindful of your pain.

Moreover, some bikes are custom, meaning that it is important for the owner to collect evidence of the value of the motorcycle if it is damaged. The property damage claim that will be made usually is disposed of prior to the bodily injury claim. Also, do not hesitate to contact your attorney with questions; it is important to communicate on a regular basis.

Like all accidents, motorcycle accidents are potentially harmful, inconvenient, and time-consuming. Motorcyclists should be ready to seek the advice of the attorney if necessary. But remember: wear a helmet, it can save your life.

Subrogation in Third Party Accident Cases

"Good news: your case has settled." The client asks in response, "When do you think I will get my portion of the settlement?" There is a pause over the phone. The personal injury attorney -- experienced and familiar with post-settlement -- was expecting the question. "We cannot disburse any funds until the liens are satisfied." "When will that be?" The lawyer's answer did not satisfy the client: "it depends..."

The general public is unfamiliar with the term, "subrogation." However, it is an important concept to attorneys and insurers. Subrogation allows insurers to recover costs that they may have expended on  behalf of their insureds. Simply put, when there is a third party accident, the first party's insurance carrier is able to recover monies from the third party who is at fault. The insurer steps into the shoes of the insured and gets the right to be paid what it has lost.

An example may help. Let's say Frank, the first party who was injured, retained Adam the attorney. Frank was hurt in an accident, so he needed medical treatment. Frank went to his primary care provider for help. All of the medical bills from his primary care provider were sent to Frank's health insurance carrier, "HealthIns."  HealthIns was made aware by Adam, Frank's attorney, that the treatment was related to a motor vehicle accident.

Meanwhile, Adam was able to prove that Tom, the third party, was at fault for the accident. Tom's insurance policy had a liability limit of $15,000. Due to the extent of injuries to Frank, Tom's liability insurer offered to settle Frank's claim for the full amount of $15,000. Adam relays the offer to Frank, and Frank accepts.

There is now $15,000 in settlement funds. Before the funds are disbursed, however, HealthIns reminds Adam that it will enforce its right to subrogation. HealthIns paid $5,000 to Frank's medical provider. Adam and HealthIns must now settle the subrogation lien prior to the disbursement of funds to Frank.

Sometimes it can take months for a case to be closed after it has been settled. It is frustrating but it is the law. In some circumstances, the insurer will not be able entitled to subrogation.

A health insurer may not be entitled to subrogation if the insured was "not made whole." The "made whole doctrine" is an equitable principle that states, absent an agreement to the contrary, an insurance company may not subrogate until the insured has been fully compensated for his or her injuries, or "made whole." See Sapiano v. Williamsburg Natl. Ins. Co. (1994) 28 Cal.App.4th 533. This principle will sometimes apply when there is a catastrophic injury and a low liability policy.

Needless to say it is obvious that personal injury law is complex. It is best to retain, or consult, with an experienced personal injury attorney after an accident. Not only should the attorney be able to recover a settlement or judgment, he or she will be able to advise on the intricacies of subrogation, liens, and rights to reimbursement.

Are You An Eggshell Plaintiff?

Not everyone is alike. Indeed, that is what makes society so interesting. Los Angeles is comprised of artists, athletes, professionals, skilled workers, and educators. Personalities vary. Some are outgoing and eccentric, others are introverted. People from all different types of backgrounds, and ethnicity,  make up the community that we live in.

Similarly, not all injured parties are the same. Regardless, under the law, a defendant is liable for all injuries caused, even if the plaintiff is more susceptible to injury than the average person. You "take the victim as you find him or her." So, if a plaintiff is hypersensitive or predisposed to injury, the defendant may be out of luck.

This doctrine is referred to as the "Eggshell Plaintiff" Rule. The foundations of the principle lie in common law. The Eggshell name originates in the following hypothetical (which has been changed slightly):

Danny Defendant is speeding and drinking a glass of wine while he drives down Ventura Boulevard. Pennny Plaintiff is stopped at a red light 20 feet in front of Danny Defendant. As Danny Defendant approaches, he doesn't have enough time to apply the brakes. Penny Plaintiff screams as she sees Danny Defendant's car quickly advancing. Sure enough, Danny Defendant's car rear ends Penny Plaintiff's vehicle. Unfortunately for both Danny Defendant and Penny Plaintiff, Penny Plaintiff has an eggshell skull. The slightest pressure on her skull can cause it to fracture. When Penny Plaintiff's vehicle was violently struck from behind, her head hit the steering wheel, which resulted in a severe skull fracture. All of the doctors consulted after the accident said that no other person would have suffered a skull fracture; it is only because Penny Plaintiff had an eggshell skull. Nevertheless, Danny Defendant will have to pay for all damages related to the fracture, which is the full extent of Penny Plaintiff's injuries.

California has a jury instruction available should a Eggshell Plaintiff case go to trial. California Civil Jury Instruction (CACI) 3927 provides:

"Plaintiff is not entitled to damages for any physical or emotional condition that he or she had before Defendant's conduct occurred. However, if Plaintiff had a physical or emotional condition that was made worse by Defendant's conduct, you must award damages that will reasonably and fairly compensate him or her for the effect on that condition."

A lot of cases that have been filed in a court of law will involve discovery. During discovery, it is common for defense attorneys to ask about "preexisting conditions" or prior accidents. A defendant will not be liable for injuries that existed before the accident. But, the defendant will be liable if the prior injuries of plaintiff are aggravated by the negligent conduct of defendant. Thus, it is important to determine whether a plaintiff has suffered an aggravation or if the injury was not related to the negligence of the particular incident.

In a nutshell, all eggshell readers need not worry. Should you be involved in an accident, the defendant or at-fault party will be responsible for all injuries incurred, even it is quite unusual.

Suing a DUI Driver for Personal Injury

Although I represent DUI defendants, and have been successful in dismissing a DUI criminal charge, there are times when a DUI can result in an accident where there is a victim. According to Mothers Against Drunk Driving, hundreds of individuals die each year from an accident involving a drunk driver. When an individual is injured in a motor vehicle accident because of the negligence of a drunk driver, he or she can pursue a civil claim.

Typically there will be a criminal proceeding against the alleged drunk driver. A restitution hearing may even take place. But, injured parties can also initiate their own civil claims. There is no requirement to wait for the criminal case to be completed, or even filed. However, a criminal conviction could positively impact the civil case, as the burden in a civil proceeding is much lower -- proof by a preponderance of the evidence, not proof beyond a reasonable doubt.

It is important to consult with a personal injury attorney after one has been injured as the result of a DUI driver. An attorney can investigate immediately, and determine whether there are other defendants besides the driver. Negligence may be apportioned to different individuals, or entities. Sometimes the accident could have been prevented had someone exercised good judgment and prevented the intoxicated person from driving.

A negligence cause of action could also be pursued against a bar, nightclub, or restaurant. Legislators have passed laws obligating operators of drinking establishments to use reasonable judgment when serving alcohol to its patrons. When a bartender keeps serving drinks to an intoxicated person when the bartender knew or should have known that the person was intoxicated, the bar could be held liable for the actions of that intoxicated person if he or she causes an accident later.

Similarly, hosts of parties can also be held liable for the negligence of a drunk guest. A party host cannot keep serving drinks to a guest who appears inebriated. Steps need to be taken by hosts to ensure that their guests do not harm others, especially when there are so many different opportunities to prevent a drunk driving incident.

Of course the driver may be sued, and his or her own insurance will need to be notified. The important thing is that in a DUI incident resulting in injuries, there are ways to be made whole again. Vehicle repair costs, medical bills, pain and suffering, and lost wages are all damages that can be claimed. If you or someone you know has been a victim of a drunk driving incident, call an experienced attorney.

Premises Liability Cases

Motor vehicle accidents make up a large number of cases on the personal injury docket in Los Angeles. However, there are other common ways that plaintiffs can be injured. Unfortunately, people are sometimes hurt when they are a guest, or customer, on someone else's property.

Owners of property owe a duty to those individuals who enter onto their property. Owners must exercise ordinary care in the use, maintenance, and management of their property to avoid exposing people to unreasonable risks of harm. Unreasonable risks of harm could include: spills, broken stairs, ditches, banana peels, etc. These type of risks can occur naturally or artificially, meaning that it can be caused by untrimmed trees, or an employee neglecting his duties to clean. Either way owners can be held responsible for injuries.

If an owner does not exercise ordinary care, he or she may be liable if the harm caused by the lack of ordinary care is "foreseeable." For example, if an owner of a business does not repair a large hole located on the store's floor, and a customer falls in the hole and breaks his leg, the owner of the business would be held liable. It is "foreseeable" that a customer could fall into a large hole because it was not repaired. An example when negligence may not be found is when an extraordinary event caused the injury.

In the hypothetical above, it does not matter whether the owner was "actually" aware of the large hole. Owners can be held liable if they had "constructive knowledge." Constructive knowledge means that the owner should have been aware of the large hole because a reasonable prudent owner would have checked for large holes.

Although it is counter-intuitive, owners can be held liable for injuries to trespassers. Owners can also be held liable for injuries to guests even if the injuries were caused by a criminal. The plaintiff  in such a case would have to show that the risk of criminal harm was foreseeable, and that the owner failed to take steps to prevent the foreseeable risk of criminal harm. One example: a large sports team holds a game. During the game, two drunk rivals threaten one another. "I will stab you when the game is over," one of them says. Two employees of the sports team overhear the exchange and witness the banter. After the game, the shouter stabs the rival, because nothing was done by the sports team employees.

Injuries incurred on a property can cost thousands of dollars in medical bills, particularly if there are broken bones involved. It is wise to contact a personal injury attorney if you, or someone you know, has been injured as a result of the negligence of a landowner. Our office welcomes your calls and inquiries.

Dog Bites and Strict Liability in California

We all love dogs. Well, most of us anyways. There is scientific evidence that supports that dogs are great mental health companions. Socially, they are important to a lot of dog owners' lives. Despite all of the love, dogs can also cause harm to individuals. Indeed, when I was young, and in Tennessee, a dog bit me. There were medical bills, and trauma that followed (even to this day at times).

Like other injury accidents, an owner of a dog can be sued for a dog bite. Under the common law, or laws developed through a number of cases, dog owners were routinely sued under a "strict liability" theory because their dog caused an injury to another. "Strict liability" means that the injured party did not need to prove negligence. It was much easier to prevail.

Dog bite lawsuits pursuant to strict liability under the common law required that the "domestic animal" exhibit dangerous propensities. Typically, dangerous propensities were proven by previous incidents when the dog harmed someone else. But, a dangerous propensity was also shown when the owner knew or should have known that the domestic animal could have caused injury to another person. Domestic animals also included cats, snakes, horses, and other pets. It's important to note that there was a distinction -- with wild animals.

If an owner of an exotic pet injured someone else, they could be held strictly liable without the dangerous propensity element. Thus, if a Las Vegas magician's tiger mauled someone, the magician could be held strictly liable even if the tiger never exhibited signs of having a dangerous nature before the incident. Contrast with the domestic animal lawsuit, a defendant could prevail if he could show that the domestic animal never exhibit dangerous propensities.

Fast forward to today. California enacted statutory law, which provides for strict liability in dog bite cases. There is no need to prove "dangerous propensities." California Civil Code 3342(a) states, in part that:

"The owner of any dog is liable for the damages suffered by any person who is bitten by the dog while in a public place or lawfully in a private place, including the property of the owner of the dog, regardless of the former viciousness of the dog or the owner' s knowledge of such viciousness."

Does this statute prevent defenses? What if the dog was provoked by the actions of the injured party before the dog bite? Nothing in the Civil Code prevents a defendant from raising "comparative fault" or "assumption of risk" defenses. Therefore, if the plaintiff was a bad apple who hit the dog, the defendant dog owner may have a good case against the mean injured plaintiff.

In the event that you, or someone you know, was injured by a dog bite, it is wise to retain an experienced persona injury attorney. A lot of dog bites are serious. In some instances, plastic surgery is required. Experienced counsel can pursue a claim, most often with a homeowner's insurance policy, after a dog bite. Dogs are important to our lives but medical bills and pain and suffering should be addressed, if you, or someone you know, was a victim of a dog bite. We welcome your calls and questions. 

The Elements of Negligence

There are a number of different ways to get injured, unfortunately. People may slip, or a person may be involved in a motor vehicle accident with someone else. Others may even fall from a shoddy building.

Injured persons all share a common possible cause of action: negligence. The person that slipped may have stepped on a banana peel left on the ground by a business employee; the person who struck the injured's vehicle may have been speeding; and the building, where the injured fell, may have not been up to regulatory code.

Negligence is common. Although there may be an infinite number of ways that negligence could occur, the elements of negligence are always the same. For a claimant/plaintiff to be successful, he or she must prove duty, breach of duty, causation, and damages. Let's go through the elements in more depth.

Duty and breach of duty is what makes a defendant "negligent." As individuals of society, we have duties to one another. We have a duty not to harm someone from our actions -- we must use reasonable care. Further, some individuals in society may have more duties than others. A business owner is obligated to provide safe products, i.e. he has a duty to ensure that what he or she is selling is safe. A driver of a motor vehicle must also ensure that he or she is obeying all laws, and driving with due care.

When someone does not live up to their duty to another, or breaches that duty, he or she may be "negligent." For example, let's take a motor vehicle accident. Person A was speeding, talking on his cell phone, and eating a burrito. Upon approaching Person B, Person A could not stop his vehicle in time. Person A's truck slammed into Person's B tiny car. The accident is intense. In this example, Person A breached his duty to drive with due care, and he was "negligent" to Person B.

Being "negligent" does not prove negligence though. There are four elements, not two. A claimant/plaintiff must also show causation and damages.

Causation must connect the "negligent" act with the injuries incurred (damages, which we will discuss shortly). For example, if a person fell from a shoddy building, the building owner still may not be liable for the injuries. Why? Maybe causation cannot be proved. Even though the building was not up to code, the breach of not following the building codes had nothing to do with why the person fell from the building. The falling person was pushed by a criminal. In this example, the building owner cannot be responsible because his failure to not keep the building up to code did not cause the person to fall -- the criminal who pushed him off was responsible for the fall.

Finally, any negligence claim must prove damages. Damages are those monetary costs that an injured person may face: medical bills, car repair bills, rental bills, pain and suffering, lost wages, etc. If someone is involved in an accident, but fortunately, the person is not harmed, he or she does not have a negligence case. There must be damages for any case to proceed.

Negligence may be a common occurrence in the law, and laypersons may be familiar with some of the concepts, but it is wise to consult with an attorney who has experience in personal injury. If you or a loved one has been injured as the result of someone else, contact our office for a free phone consultation. Be safe out there.