Personal Injury Overview

Personal injury is derived from tort law. The purpose of tort law is to give private parties a legal mechanism through which the aggrieved party can recover for harm inflicted by the “at-fault” party. Whether you’re in California or Nevada, personal injury cases have similarities that transcend state lines.

DUTY

The first question one must understand is whether the person who caused the harm owed you a duty of care. In general, one is held to the “reasonable person” standard. In other words, if you injure someone in the course of your daily activities, the question becomes whether you acted in a reasonable manner.

On the other hand, someone might be held to a higher duty of care based on their relationship to you or professional standing. A doctor will be held to a higher standard when aiding a person in distress than a non-medical professional.

BREACH OF DUTY

A defendant is negligent if he breaches the duty of care owed to the plaintiff. This occurs when the defendant fails to use reasonable care in the performance of his or her duty. Whether the defendant breached the duty care is a question of fact for the jury.

CAUSATION

Causation is an often overlooked, but critical component, of tort law. If the defendant failed to use reasonable care and is found to have been negligent, you must also prove that the defendant’s actions were the cause of your damages. An important concept connected to this is the plaintiff’s duty to mitigate. In other words, after being in a car accident you have a duty to mitigate the damages by seeking medical assistance. If you suffer a broken leg in a car accident, fail to seek medical care, and the injury becomes more serious, the at-fault driver would not be required to pay for additional medical treatment required by your failure to seek prompt medical treatment.

Additionally, the at-fault party is only responsible for the damages directly caused by his or her negligence. In other words, assume again you’re in a car accident. After the accident you drive yourself to the hospital and get into another accident because the first accident resulted in damage to your vision. While you would not have gotten into the second car accident had it not been for the first, the at-fault party in the first accident would not be held liable for the damages you incurred in the second accident.

DAMAGES

Once it is established that the other party was negligent caused your damages, you have the right to seek financial recovery for both economic and non-economic damages. Economic damages include lost wages, medical expenses, and property damage. Non-economic damages includes pain and suffering, loss of consortium, and punitive damages.

However, your reward may be reduced if the court finds that you were partly at-fault for the accident. For example, assume you were in a car accident and it is determined that you were 20% at-fault. In that case, your award will be reduced by twenty-percent.

 

Slip and Fall Accidents

Understanding Landowner Liability In California

One of the most persistent urban legends in premises liability law is the burglar who breaks into someone’s home, is injured, and sues the property owners. In a few cases, California landowners do owe a duty of care to trespassers. But such instances are quite limited. With that said, landowner negligence victims are often entitled to significant compensation.

Legal Responsibility

To determine duty, many states use a common-law sorting system that classifies victims as:

  • Invitees (guests with permission to be on the land and whose presence benefits the landowner),
  • Licensees (guests with permission to be on the land), and
  • Trespassers (guests without permission to be on the land).

However, this system is rather unwieldy, because many of the categories overlap, and arcane, because few people know or care who or what a “licensee” is. So, a little over a decade ago, most California courts started applying a general duty of care in these cases, which varies according to several factors:

  • Property Location: Business-owners and others who encourage people to come onto their property must take better care of it than private homeowners, or commercial owners at least have more of a responsibility to warn about possible safety hazards.
  • Likelihood of Similar Visits: Older adults go to nursing homes and teenagers go to high school athletic fields, so the required degree of care is different.
  • Likelihood of Harm: Generally speaking, swimming pools and construction sites are more dangerous than churches and synagogues.
  • Probable Severity of Harm: For the most part, the possible injuries at construction sites and swimming pools are also much more serious than the ones worshippers may sustain at synagogues and churches.
  • Knowledge of Hazard: Such knowledge can be actual (did know) or constructive (should have known).
  • Possible Protection: Owners could effectively prevent dog bites by digging moats around their property and hiring security guards, but such efforts are clearly too costly.
  • Extent of Control: Owners who lease property to a third party have less liability for falls and other incidents than owners who actually control the premises.

The jury may also consider any other factors that the judge considers to be relevant.

Slip and Falls

Falls are the leading cause of accidental injury in the United States, as there are twice as many fall-related emergency room visits as motor vehicle crash-related visits. The injuries are quite serious, especially among young children and older adults.

Knowledge is often a key issue in landowner liability cases in general, and slip-and-fall cases in particular. Most California court still use the analysis first set forth in Anjou v. Boston Elevated Railway Company (1911), which is also known as the banana peel case.

Ms. Anjou slipped on a banana peel at a busy Boston train terminal. At trial, witnesses consistently testified that the offending peel looked as if it had been “tramped over a good deal,” because it was “flattened down, and black in color;” in fact, “every bit of it was black.” These details loom large in the holding of the case. For its part, the railroad company denied that it knew anything about the peel, and therefore argued that it was not responsible for Ms. Anjou’s injuries.

In finding that the railroad company was indeed liable, Justice Arthur Rugg concluded that knowledge of the defect could be imputed depending on the color of the peel.

  • Yellow Peel: If the hazard had just occurred recently, the plaintiff needs to provide direct evidence of knowledge, such as a bathroom cleaning report about a wet spot on the floor.
  • Black Peel: Since the banana peel was black, the court concluded that it had been on the floor quite some time, and therefore the owner should have known about the hazard.
  • Brown Peel: Pardon the expression, but brown peels are in a grey area, and more evidence is needed to establish or disprove knowledge.

Victims in these case are normally entitled to compensation for both economic losses, such as medical bills, and noneconomic losses, such as pain and suffering.

If you have been injured in California, see our guide on finding a good personal injury lawyer.

Understanding Wrongful Death in California

In the 2002 film Minority Report, a trio of psychics could predict murders before they happened. When someone asked their caregivers why the psychics could not predict assault, rape, or other crimes, the police officers in charge basically responded that the psychics could only predict murder because no other crime tore the fabric of life greater than the untimely death of a person.

For that reason, homicide is nearly always punishable in criminal court, and wrongful death is nearly always actionable in civil court. What are some common causes for wrongful death, and what compensation is available to the victims?

Poisoning

A few years ago, poisoning overtook motor vehicle crashes and became the leading cause of injury-related death in the United States. In 2014, over 47,000 people died in such incidents, and the vast majority of them were accidental.

That number has doubled since 2000, largely because prescription drugs are so much more powerful today than they were just a few years ago. Specifically, painkillers and antidepressants contain very strong ingredients that are highly addictive. Moreover, especially with regard to painkillers, some physicians order their patients to take these drugs regularly whether they are experiencing discomfort or not. These medicines also have a number of well-documented side effects that can cause serious injury or even be fatal. While many poisoning incidents occur because the medicine is either mis-prescribed or misused, unplanned drug combinations cause even more deaths. Although it is illegal in California, doctor-shopping is a serious problem. Finally, in a few cases, patients have serious allergic reactions to certain kinds of medicine.

Thanks to technology, medical history is much easier to verify. Until a few years ago, new patients could tell doctors almost anything, and it was quite difficult for them to verify that information. Now, most medical records are online, so after just a few clicks, physicians know why kind of medicine to prescribe, as well as the proper dosage.

Failure to follow this protocol can be considered a breach of the duty of reasonable care, especially since the doctor-patient relationship is a fiduciary one that involves a high standard of care.

Vehicle Crashes

Most drivers have a duty of reasonable care; common carriers, like bus drivers, Uber drivers, and other commercial operators, have a higher duty to the passengers they transport and the owners of the cargo they haul.

Impairment is one of the leading causes of vehicle crashes, and the Global Road Safety Partnership has identified three main types of impairment. They are:

  • Drugs: As mentioned earlier, many prescription drugs have side-effects, like drowsiness, that make it unsafe to drive a motor vehicle. Additionally, many over-the-counter antihistamines and sleep aids have similar dangerous side-effects.
  • Alcohol: After just one drink, many people are impaired for legal purposes, and each drink thereafter essentially has a multiplying effect.
  • Fatigue: Lack of sleep affects the brain much like alcohol, and most old tricks, like turning up the air conditioner or radio, are not particularly effective and may actually make the problem worse.

Many times, impairment comes about because of a combination of two or more of these items; for example, a person may take a painkiller after a long day of work and then drink alcohol at happy hour.

In some other cases, drivers are well-rested and sober before they start driving, but their driving habits violate the duty of reasonable care. Traffic laws, like obeying the speed limit, maintaining a proper distance between vehicles, and following traffic control devices, are in place for driver safety. The same thing goes for distracted driving, like using a cellphone while operating a motor vehicle.

Job Injuries

The constantly-expanding population in the Golden State also means ongoing construction. Particularly in melting pot states like California, English is not the first language of many workers, so there may be issues in properly using safety equipment. Moreover, in competitive environments, a few dollars is often the difference between making money and losing money, and some companies are tempted to put profits above people and cut corners when it comes to safety.

The result is an often dangerous environment for California construction workers. The Occupational Safety and Health Administration estimates that most workplace deaths could be eliminated by addressing the “fatal four:”

  • Falls: Almost four in ten construction site deaths occur when the victim falls from a height, and nearly all these falls occur because of missing or misused safety equipment.
  • Electrocution: At busy worksites, it is often difficult or impossible to tell the difference between a live wire and a dead one.
  • Struck By: There is a lot of truth in that old adage that a penny dropped from the top of the Empire State Building can crush a person’s skull on the ground.
  • Caught Between: Power lifters make construction work much easier, but they are also incredibly dangerous if they malfunction.

Injured workers are normally entitled to workers’ compensation benefits; in some cases, injured victims may sue outside workers’ compensation and obtain additional damages.

Legal Issues

California has a wrongful death statute that allows family members to obtain compensation for their economic losses, including funeral and burial expenses, the decedent’s medical bills, and lost future wages. Many attorneys partner with financial professionals to determine the extent of future economic damages. Additionally, plaintiffs may recover compensation for loss of consortium (companionship) and other noneconomic losses. There is generally a two-year statute of limitations in these cases.