The other day, a prominent legal show featured a storyline that involved a driverless car lawsuit against a large tech company. Plaintiff's attorney held a deposition and questioned the designer on artificial intelligence ("AI"), potential bugs, and knowledge regarding the risks of a collision. It was exciting, full of conflict, and made for a good episode.
Issues surrounding driverless technology are not new. Recent news articles have documented accidents that have occurred with driverless vehicles. Creators of the self-automated vehicle were quick to blame humans, instead of the AI. According to automobile insurance data, the tech gurus were right; the humans were found to be at fault.
But, conclusions also showed that driverless cars may be too cautious. Pedantically, driverless cars follow the rules of the road. They do not drive as humans do. And that may be one reason why accidents have occurred. When we drive, intentionally or not, humans have a way of adapting to the situation and bending the rules. Other drivers are aware of this phenomena and respond accordingly. AI vehicles are not programmed, at least not yet, for dealing with slight infractions (although some driverless companies have taken steps to tweak rule-following).
Regardless, accidents do occur. People get injured. With respect to personal injury law, driverless cars will lead to dramatic changes in how cases will proceed forward. Why? Our current system allows for human actors to open a claim (or sue) the other driver responsible for the accident. When there is no other driver, whom does the injured party seek redress? It will likely be the driverless car manufacturer. Suing car manufacturers falls under the umbrella of product liability. While it shares similarities with negligence cases, it is distinct.
The standard modus operandi for personal injury attorneys will be affected by technology. Ultimately, however, legislators will be responsible for creating the new laws/rules regarding self-automated vehicles. Until then, one can only speculate how this technological development will specifically impact injury accident cases.
Showing posts with label negligence. Show all posts
Showing posts with label negligence. Show all posts
Sunday, January 24, 2016
Friday, November 20, 2015
What is a Settlement in a Personal Injury Case?
Personal injury lawyers like to spit out legal terms. "We sent the defense a 998 offer to compromise." "I warned the Plaintiff's attorneys that I will have to file a MSJ." "Before the CMC, I need to run down to central to file an Oppo." I know. It can get confusing.
Some terms like "settlement" are widely recognized, but the mechanics of a settlement in a personal injury context is not well known. This blog post will go over a "settlement" in greater detail.
A settlement can occur prior to, during, or after a lawsuit is filed. Most motor vehicle accidents, for example, involve automobile insurance. When a person is injured as the result of another motorist, he or she will make a claim with the automobile insurance of the other motorist.
Once the insurance is involved, a claim could be "settled" before a lawsuit is filed. A civil lawsuit can be filed when there exists a "cause of action" against another individual, or entity. "Negligence" is the cause of action most utilized in automobile accidents. The other driver may have ran a red light, and thus been negligent. The negligence resulted in injuries to the plaintiff, who filed the lawsuit against the driver who ran the red light -- and the bad driver then becomes the defendant in the lawsuit.
But again, it might not be necessary to file a lawsuit. The negligent driver's insurance will contact the injured person to try to "settle" the claim. A number of factors go into the decision of when it is appropriate to settle a claim. Experienced attorneys can advise on when a settlement would be prudent.
As an illustration, let's say that it makes sense for the claimant to settle a claim. The other driver has no assets; he also has a low policy limit, $15,000 in bodily injury liability. So far, the claimant has over $8,000 in medical damages, and continues to experience excruciating pain. The insurance company, recognizing that the claim likely exceeds $15,000, offers to "settle" the claim for the policy limit of $15,000. Claimant accepts. What happens?
Well, the claimant must execute a release of all claims against the negligent driver, in exchange for a sum of money, which was in this hypothetical $15,000. A release prevents the claimant from filing a lawsuit against the negligent driver. No lawsuit was filed, but a "settlement" was reached.
After a lawsuit has been filed, "settlements" get a little more complicated. Automobile insurance will always provides liability coverage for a negligent driver. Insurance also pays for the cost of litigation, meaning that: if the negligent driver is sued, the insurer will pay an attorney to defend the negligent driver in the lawsuit.
Therefore, a settlement will involve a new party once a lawsuit has been filed: the defense attorney. The defense attorney represents the negligent driver, but answers to the insurance company. Once a defense attorney reaches an agreement with the plaintiff's attorney (and is authorized by the client), a few things must be done before settlement.
The defense attorney, or plaintiff's attorney, must file a "Notice of Settlement" with the court. This ensures that future court dates are vacated. Then, a release is executed, which, as explained above, will be a payment in exchange for the plaintiff to forfeit his cause of action against the negligent driver. Once payment has been satisfied, the plaintiff will file a "Request for Dismissal with Prejudice." Once a dismissal has been filed, the case is closed forever.
Settlements will always involve consideration, something in exchange for something else. Predominantly it is a sum of money in exchange for the injured party to forego pursuing money from the negligent party. It can occur at different stages of a claim, and will require different steps, but it will always result in the conclusion of a case.
Before you, a friend, or loved one settles a claim, it is important to contact an attorney to seek advice. One should not be quick to rush to a decision.
Some terms like "settlement" are widely recognized, but the mechanics of a settlement in a personal injury context is not well known. This blog post will go over a "settlement" in greater detail.
A settlement can occur prior to, during, or after a lawsuit is filed. Most motor vehicle accidents, for example, involve automobile insurance. When a person is injured as the result of another motorist, he or she will make a claim with the automobile insurance of the other motorist.
Once the insurance is involved, a claim could be "settled" before a lawsuit is filed. A civil lawsuit can be filed when there exists a "cause of action" against another individual, or entity. "Negligence" is the cause of action most utilized in automobile accidents. The other driver may have ran a red light, and thus been negligent. The negligence resulted in injuries to the plaintiff, who filed the lawsuit against the driver who ran the red light -- and the bad driver then becomes the defendant in the lawsuit.
But again, it might not be necessary to file a lawsuit. The negligent driver's insurance will contact the injured person to try to "settle" the claim. A number of factors go into the decision of when it is appropriate to settle a claim. Experienced attorneys can advise on when a settlement would be prudent.
As an illustration, let's say that it makes sense for the claimant to settle a claim. The other driver has no assets; he also has a low policy limit, $15,000 in bodily injury liability. So far, the claimant has over $8,000 in medical damages, and continues to experience excruciating pain. The insurance company, recognizing that the claim likely exceeds $15,000, offers to "settle" the claim for the policy limit of $15,000. Claimant accepts. What happens?
Well, the claimant must execute a release of all claims against the negligent driver, in exchange for a sum of money, which was in this hypothetical $15,000. A release prevents the claimant from filing a lawsuit against the negligent driver. No lawsuit was filed, but a "settlement" was reached.
After a lawsuit has been filed, "settlements" get a little more complicated. Automobile insurance will always provides liability coverage for a negligent driver. Insurance also pays for the cost of litigation, meaning that: if the negligent driver is sued, the insurer will pay an attorney to defend the negligent driver in the lawsuit.
Therefore, a settlement will involve a new party once a lawsuit has been filed: the defense attorney. The defense attorney represents the negligent driver, but answers to the insurance company. Once a defense attorney reaches an agreement with the plaintiff's attorney (and is authorized by the client), a few things must be done before settlement.
The defense attorney, or plaintiff's attorney, must file a "Notice of Settlement" with the court. This ensures that future court dates are vacated. Then, a release is executed, which, as explained above, will be a payment in exchange for the plaintiff to forfeit his cause of action against the negligent driver. Once payment has been satisfied, the plaintiff will file a "Request for Dismissal with Prejudice." Once a dismissal has been filed, the case is closed forever.
Settlements will always involve consideration, something in exchange for something else. Predominantly it is a sum of money in exchange for the injured party to forego pursuing money from the negligent party. It can occur at different stages of a claim, and will require different steps, but it will always result in the conclusion of a case.
Before you, a friend, or loved one settles a claim, it is important to contact an attorney to seek advice. One should not be quick to rush to a decision.
Saturday, October 24, 2015
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.
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.
Friday, July 24, 2015
Cell Phones May Impact a Personal Injury Case
Last week, our blog discussed unlawful searches of cell phones by law enforcement. This week we will be discussing cell phones but in the context of a personal injury case. How will evidence of cell phone use affect an injury accident matter?
Cell phones are widely used. Nowadays, it is difficult to find someone who does not own a cell phone that can text or search the internet. One report concluded that there are now more cell phones in the United States than people. Moreover, the National Safety Council has reported that 26% of all collisions involve a party using a cell phone while driving. Given these facts, personal injury attorneys should be prepared to investigate whether the at-fault party was using an electronic device, which helped cause the collision.
Cell phone cases are similar to DUI cases. Let me give some examples. One, it is unlawful in California to drive and use a cell phone (or manipulate a device with one's hands while driving), like it is unlawful to drive while under the influence of alcohol. Two, California has taken steps to notify the public of the dangers of driving while using a cell phone, just like with DUIs. Commercials are on all of the time -- some of them involve the victim speaking about how a cell phone has harmed them significantly. Three, a separate criminal case (DUI), or infraction case (cell phones), could help prove liability with respect to the negligent driver. In a lot of DUI cases, the district attorney makes the defendant admit liability for purposes of restitution.
Besides liability, cell phone use could potentially lead to punitive damages. Courts have held punitive damages are appropriate in some cell phone cases.
The argument to request punitive damages in a cell phone case relies upon the wisdom of the seminal case that involved a DUI driver: Tayor v. Superior Court (1979) 24 Cal.3d 890. In that case, the California Supreme Court found that certain conduct could give rise to a request for punitive damages. The opinion did not limit "malicious conduct" to DUIs. It stated, in part, that: "the circumstances in a [non-DUI case could involve] similar willful or wanton behavior..."
Injured parties should not only investigate cell phone use for purposes of liability, they should also consider whether it could impact the damage element of their case. Not all cases of cell phone use will merit punitive damages, however. "Malice" is difficult to prove. Nevertheless, plaintiffs should be generally aware of how cell phone use could potentially impact their own case.
Cell phones are widely used. Nowadays, it is difficult to find someone who does not own a cell phone that can text or search the internet. One report concluded that there are now more cell phones in the United States than people. Moreover, the National Safety Council has reported that 26% of all collisions involve a party using a cell phone while driving. Given these facts, personal injury attorneys should be prepared to investigate whether the at-fault party was using an electronic device, which helped cause the collision.
Cell phone cases are similar to DUI cases. Let me give some examples. One, it is unlawful in California to drive and use a cell phone (or manipulate a device with one's hands while driving), like it is unlawful to drive while under the influence of alcohol. Two, California has taken steps to notify the public of the dangers of driving while using a cell phone, just like with DUIs. Commercials are on all of the time -- some of them involve the victim speaking about how a cell phone has harmed them significantly. Three, a separate criminal case (DUI), or infraction case (cell phones), could help prove liability with respect to the negligent driver. In a lot of DUI cases, the district attorney makes the defendant admit liability for purposes of restitution.
Besides liability, cell phone use could potentially lead to punitive damages. Courts have held punitive damages are appropriate in some cell phone cases.
The argument to request punitive damages in a cell phone case relies upon the wisdom of the seminal case that involved a DUI driver: Tayor v. Superior Court (1979) 24 Cal.3d 890. In that case, the California Supreme Court found that certain conduct could give rise to a request for punitive damages. The opinion did not limit "malicious conduct" to DUIs. It stated, in part, that: "the circumstances in a [non-DUI case could involve] similar willful or wanton behavior..."
Injured parties should not only investigate cell phone use for purposes of liability, they should also consider whether it could impact the damage element of their case. Not all cases of cell phone use will merit punitive damages, however. "Malice" is difficult to prove. Nevertheless, plaintiffs should be generally aware of how cell phone use could potentially impact their own case.
Thursday, September 18, 2014
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.
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.
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