FAQs

Personal Injury – FAQ Archives

Medical procedures do not always have the desired outcome; sometimes unexpected or unpreventable results occur and are not the consequence of medical malpractice. In order to have a claim for medical malpractice, your injury (or undesired/harmful result of a medical procedure or treatment) must have been caused by negligence by a healthcare professional. Medical professionals must meet the industry’s standard of care when treating patients. This standard of care is determined by the level of care other medical professionals or workers would provide to an individual under the same or similar circumstances. Healthcare workers that are held to this standard may include doctors, nurses, hospital staff members, dentists, other medical related workers or the hospital itself. If the standard of care is not met and the patient is injured as a result of this failure, the injured party may have a claim for medical malpractice. To determine if the facts of your case merit a medical malpractice claim, it is important to speak to an attorney knowledgeable in this area of law.

If you do have a claim for medical malpractice, you must be able to prove certain elements of your case to the judge or jury. There are four elements to prove, the first is that the defendant (medical professional or hospital) had a duty to the plaintiff. The second is that the defendant breached this legal duty and (third) the breach caused the plaintiff’s injury. Lastly, the defendant’s failure to meet the industry’s standard of care (negligence) caused harm to the plaintiff. The third element (causation) is often the most difficult to prove in a medical malpractice case. The plaintiff must show that the defendant caused his or her injury due to negligence; that the injury was not a typical (or common) result of the plaintiff’s illness or medical condition that could not be prevented.
Accordingly, the cause of the plaintiff’s injury may be actual or proximate. If the causation is shown to be actual, the plaintiff’s injury was directly caused by an action (or nonaction) by the defendant. If the defendant had not been negligent, the plaintiff would not have suffered injury. Thus, proving actual causation uses what is called the “but for” test; the injury would not have occurred “but for” the defendant’s negligence (or action). Likewise, the cause of the plaintiff’s injury may be proximate if it can be shown that the defendant’s negligence was the legal cause of the plaintiff’s injury. The proximate cause set forth a sequence of events that caused the plaintiff’s legal injury. Since actual and proximate causation may be difficult to prove, it may be necessary to rely on the testimony of an expert witness to show causation in your case. The facts of your case and kind of injury will help determine the type of medical expert you should have. Additionally, an attorney knowledgeable in medical malpractice litigation will be able to assist you in deciding if expert testimony is in your best interests to prove causation in your case.

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DISCLAIMER: This site and any information contained herein is intended for informational purposes only and should not be construed as legal advice. Seek competent legal counsel for advice on any legal matter.

If you are in a car accident, there are some things you can do to protect yourself against any lawsuits that may arise from the incident. First, make sure you, and anyone else involved in the accident, is safe and call for medical assistance if needed. If you cannot get out of your car, wait for assistance to do so. If you can get out of your car, it is important to stay with your vehicle. This may be a safety issue, depending on the situation you are in, whether the area is dangerous or there is heavy traffic or other dangerous materials around you. Additionally, do not leave the scene of the accident before the police arrive or before exchanging information with the other person (or persons) involved in a minor accident. If you leave and someone was injured or killed you may be charged with criminal “hit and run” penalties.
The police should be called if the accident involves significant property damage, physical injury or death. Once the police arrive, ask the officer to file a police report and obtain the name and badge numbers of any police officers on the scene. You should also talk to the drivers of any other vehicles involved in the accident. Get their names, phone numbers, addresses, drivers’ license numbers, license plate numbers and basic insurance information. If there are passengers in any of the vehicles, obtain their names, telephone numbers and addresses as well. If there are witnesses at the scene, you may want to ask them what they saw and obtain their contact information, if possible. It is important when talking to other persons in the accident to be cooperative and exchange contact and insurance information, but do not admit fault or apologize for the accident itself.

After medical attention has been received and the police have arrived, you should inform your insurance company about the accident. Cooperate with your insurance company and tell them about the manner in which the accident occurred and the extent of your injuries. Build support for your case when discussing the matter with your insurance company and explain the facts of your case in a clear manner. Obtain and review a copy of the police report, if any, and give a copy to your insurance company if they do not already have one. The police report is useful to help determine who broke what traffic laws or who was at fault for the accident.

Next, you will want to keep a record of any care you receive after the accident and any expenses you incur due to the accident. This includes doctors, physical therapists, chiropractors, any other healthcare or treatment, medical bills or other expenses. Your insurance company may ask you for additional records as well, such as photographs of your vehicle before the accident and after (if you have them).

Lastly, you should not talk to anyone about the accident other than your attorney, your insurance company and the police. Do not talk to a representative of another insurance company without the knowledge of your attorney or your insurance company. If representatives from other insurance companies should call you, ask them to call your attorney or insurance company to arrange for an interview. Also, get the representative’s name and number, and tell your insurance company or attorney that someone seeking information about your accident contacted you.
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DISCLAIMER: This site and any information contained herein is intended for informational purposes only and should not be construed as legal advice. Seek competent legal counsel for advice on any legal matter.

Medical procedures do not always have the desired outcome; sometimes unexpected or unpreventable results occur and are not the consequence of medical malpractice. In order to have a claim for medical malpractice, your injury (or undesired/harmful result of a medical procedure or treatment) must have been caused by negligence by a healthcare professional. Medical professionals must meet the industry’s standard of care when treating patients. This standard of care is determined by the level of care other medical professionals or workers would provide to an individual under the same or similar circumstances. Healthcare workers that are held to this standard may include doctors, nurses, hospital staff members, dentists, other medical related workers or the hospital itself. If the standard of care is not met and the patient is injured as a result of this failure, the injured party may have a claim for medical malpractice. To determine if the facts of your case merit a medical malpractice claim, it is important to speak to an attorney knowledgeable in this area of law.

If you do have a claim for medical malpractice, you must be able to prove certain elements of your case to the judge or jury. There are four elements to prove, the first is that the defendant (medical professional or hospital) had a duty to the plaintiff. The second is that the defendant breached this legal duty and (third) the breach caused the plaintiff’s injury. Lastly, the defendant’s failure to meet the industry’s standard of care (negligence) caused harm to the plaintiff. The third element (causation) is often the most difficult to prove in a medical malpractice case. The plaintiff must show that the defendant caused his or her injury due to negligence; that the injury was not a typical (or common) result of the plaintiff’s illness or medical condition that could not be prevented.

Accordingly, the cause of the plaintiff’s injury may be actual or proximate. If the causation is shown to be actual, the plaintiff’s injury was directly caused by an action (or nonaction) by the defendant. If the defendant had not been negligent, the plaintiff would not have suffered injury. Thus, proving actual causation uses what is called the “but for” test; the injury would not have occurred “but for” the defendant’s negligence (or action). Likewise, the cause of the plaintiff’s injury may be proximate if it can be shown that the defendant’s negligence was the legal cause of the plaintiff’s injury. The proximate cause set forth a sequence of events that caused the plaintiff’s legal injury. Since actual and proximate causation may be difficult to prove, it may be necessary to rely on the testimony of an expert witness to show causation in your case. The facts of your case and kind of injury will help determine the type of medical expert you should have. Additionally, an attorney knowledgeable in medical malpractice litigation will be able to assist you in deciding if expert testimony is in your best interests to prove causation in your case.

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DISCLAIMER: This site and any information contained herein is intended for informational purposes only and should not be construed as legal advice. Seek competent legal counsel for advice on any legal matter.

There are many products on the market that we use today. Since the products are available to us, we assume that they have been tested, approved by the proper authorities and are safe. However, this is not always the case and injuries may occur. Products on the market that cause injuries may be found to be inherently unsafe and defective. A product may be defective in its design or in the way it was manufactured. The cause of the defect may determine the party responsible for any injuries you have suffered due to using the product. The liable parties will also depend on the type of product and the factual situation in which you were injured.

Generally, the defendant in a defective product claim will be the company who designed the product or manufactured the product. Design and manufacturing may have been done by different companies. Therefore, the source of the product’s defect is important to your cause of action. Additionally, the company in charge of testing the product, prior to being released to the public, may be a responsible party in your claim for injuries. If the company (often the product manufacturer) discovered harmful risks associated with the product and did not reveal those risks, or provide warnings of possible harmful side effects, they may in held liable for your injuries. The law provides a legal duty to warn consumers of any risks associated with a product; if the company failed to do this, they may be held accountable.

Furthermore, if the product you used was a medical drug or device, there may be additional parties held accountable for your injuries. Like with other products, the company who designed the product and the company who manufactured the product may be responsible for your injuries, depending on where the defect occurred. In cases of a medical product, the doctor who prescribed the defective drug or the pharmacist who dispensed the drug or device may also be held liable. If the doctor knew of potential harmful effects of the medical product and did not warn you, or did not adequately monitor you, he or she may have some responsibility. Additionally, your pharmacist must warn you of any known risks and dispense the drug correctly.

WHAT CAUSE OF ACTION COULD I HAVE IF I WAS INJURED BY A DEFECTIVE PRODUCT?

As the possible responsible parties may differ, so may the possible legal claims an injured party may bring. It depends on the situation and the injury sustained. Most likely you (or the injured party) may have claims for personal injury and product liability. However, if you were injured by a medical drug or device you may also have claims of professional/medical negligence against your doctor or pharmacist. Depending on the facts of your case, you could also have legal claims for negligence, breach of warranty, failure to warn or fraud. Lastly, in some cases, wrongful death may also be a possible cause of action. If the injured person dies as a result of their injuries, the decedent’s loved ones must provide evidence to the court that the victim died as a result of using the defective product.

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DISCLAIMER: This site and any information contained herein is intended for informational purposes only and should not be construed as legal advice. Seek competent legal counsel for advice on any legal matter.

Most states have statutes that require insurance companies to offer uninsured/underinsured motorist coverage as a part of each automobile/vehicle insurance plan. In most jurisdictions, an individual may be considered underinsured when his or her insurance policy coverage is not enough to fund the full amount of damages he or she is liable for due to an accident or other event covered by his or her policy. In other jurisdictions, a person is considered underinsured when his or her insurance coverage maximum is less than the coverage maximum of the other individual’s (in the accident) policy. Of course, uninsured persons are those that do not carry automobile liability insurance. The purpose of uninsured/underinsured motorist coverage is to protect against situations where one party to the accident does not carry enough insurance or does not carry insurance at all. Therefore, the intent of mandatory uninsured/underinsured motorist coverage is to protect people against monetarily irresponsible individuals who have injured others, due to their own fault, while operating an automobile. If the uninsured or underinsured individual is not at fault, most underinsured/uninsured motorist policies will not apply.

WHO IS USUALLY INCLUDED IN MY UNINSURED/UNDERINSURED MOTORIST COVERAGE?

Generally, uninsured/underinsured motorist insurance coverage will include the named insured (person who has the insurance policy) and the family members who reside in his or her household. Usually, the injured insured person and/or family member must be a passenger in the vehicle, a pedestrian injured by the vehicle or the driver of the vehicle in the accident. In the past, some insurance policies excluded coverage for the insured’s family members. However, these types of exclusions have been found invalid by most state laws. The only time such an exclusion may be found valid is when the family members already have a separate insurance policy of their own. This type of exclusion is valid by most state laws because it is in the interests of public policy and the insurer. Along these lines, an insurance policy may not exclude a family member of the insured who is not covered by the policy, but who is injured while in a automobile that is owned by a family member who is covered by the insured’s insurance policy. It is important to speak to an attorney in your jurisdiction to learn about the uninsured/underinsured motorist coverage and exclusion laws that may apply in your state.AS AN EMPLOYEE, AM I

COVERED UNDER MY EMPLOYER’S UNINSURED/UNDERINSURED MOTORIST INSURANCE POLICY?

The courts will look to the language of your employer’s uninsured/underinsured insurance policy to determine who is covered under that policy. The uninsured/underinsured motorist statute in your jurisdiction may also determine who is covered under your employer’s policy. In some jurisdictions, an employee will be covered by his or her employer’s corporate policy if the employee is using his or her own vehicle for business purposes, at the direction of his or her employer. The employee’s personal vehicle may be considered leased, or hired, by the employer. In other jurisdictions, an employee using his or her personal automobile for work purposes will not be covered under the state law’s definition of a “named insured” (person or persons covered under the insurance policy) under the corporate policy.

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DISCLAIMER: This site and any information contained herein is intended for informational purposes only and should not be construed as legal advice. Seek competent legal counsel for advice on any legal matter.

A wrongful death action is a claim for damages that stem from the conduct, action or omission by another party, which caused the decedent’s injury and ultimately his or her premature death. State and federal laws have wrongful death statutes, which give certain persons the right to bring a claim for damages they have sustained as a result of the loss of their loved one. Generally, this would be monetary losses, but it may also be loss of companionship, loss to the estate or additional losses depending on the circumstances of the case.

Family members or dependents of the decedent may bring a claim for wrongful death on their own behalf, or individuals may bring a claim for wrongful death as representatives of the deceased person. Therefore, a claimant (person bringing the wrongful death claim) may be the deceased individual’s parent, spouse, sibling, child, or an executor or administrator of the decedent’s estate. Additionally, aunts, uncles, nieces and nephews may have standing to bring a wrongful death claim if they are the decedent’s heirs at law. In some states, the claimant may also be the decedent’s domestic partner. Cohabiting partners usually may not bring a wrongful death claim, unless the applicable law recognizes common-law marriage and the decedent and potential claimant were considered married at common-law. In order for an individual (family member, spouse, partner or personal representative) to bring a wrongful death claim, he or she must be able to prove to the court who they are (in relation to the decedent), the relationship/connection he or she had with the victim and his or her right to bring a claim before the court for loss. If the claimant is able to bring a claim for wrongful death, the defendant (or responsible party) does not have to be an individual. The liable party – the party who would have been liable for the decedent’s injuries had he or she not died from them – may also be the decedent’s employer, a corporation/business or a governmental entity.

Wrongful death is often used by the court as a factor to consider when determining the amount of damages in a personal injury claim. Often the fact finder (judge or jury) will be able to consider the permanent loss of the decedent’s earnings, due to his or her wrongful death. The claimant may be entitled to the amount of wages the decedent would have earned for the remainder of his or her life. This is determined by the salary amount at the time of death (some jurisdictions will also allow foreseeable wage increases), or support payments, for the remainder of the decedent’s life (based on probable life expectancy). Punitive damages may be available in a wrongful-death action. These damages will give the claimant additional money to punish the responsible party; punitive damages are not intended to compensate the claimant for his or her loss. Not all jurisdictions will offer punitive damages for a wrongful death claim. It is important to know the law in your jurisdiction when determining what type of damages to pursue in your wrongful death action.

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DISCLAIMER: This site and any information contained herein is intended for informational purposes only and should not be construed as legal advice. Seek competent legal counsel for advice on any legal matter.

If your loved one has been injured while living in a nursing home facility, he or she has the right to bring a legal action for damages. You may also bring a claim on your loved ones behalf, if he or she is not able to do so. You may have different legal claims depending on the situation and type of injury your loved one has suffered. Most often, a personal injury claim against a nursing home will be based on the theory of negligence. Depending on the factual situation, some negligence claims may include negligent hiring of employees, building and/or equipment maintenance or neglect in resident care. If your loved one has been injured by a staff member, you (or your relative) may also have claims of assault and battery.Both state and federal statutes exist that protect nursing home residents against abuse, neglect and other forms of mistreatment. Forms of abuse may be physical or mental in nature and may be discovered in different ways. Neglect is usually the failure to provide an individual with basic needs, such as clothing, food, shelter and medical care. Mistreatment may also be nonphysical in nature, such as an employee taking advantage of a resident and stealing or taking control of his or her finances. These types of occurrences have become more common in recent years. For this reason, state and federal statues were created to provide protections and rights for care facility residents.Some rights and protections nursing home residents should possess are financial information and control of their own finances (unless incapacitated); medical knowledge and control over healthcare decisions; the right to socialize/communicate with doctors, visitors, other residents and participate in activities of their choosing; and the right to be fully informed of the administrative process in their facility and able to participate when they choose. Most jurisdictions have a Patients Bill of Rights that will describe specific rights each patent is entitled to while living in a care facility. If your loved one has been denied any of his or her rights, abused, neglected or exploited, he or she (or another individual on the injured person’s behalf) may have a claim for damages.

When bringing a claim for injuries sustained in a nursing home facility, you must be able to prove a personal injury case to the court. Elements that must be proven would include the establishment of a legal duty owed by the defendant (often the nursing home) to the resident and a breach of this duty. It must also be shown that the breach caused the injury that your loved one (the victim) suffered and that the injury did in fact occur. Furthermore, in such a case, additional damages may be proven such as mental pain and suffering, permanent disfigurement, malicious conduct by an employee or loss of quality of life. Depending on the facts of your case and the jurisdiction the court is in, you may also be able to ask for punitive damages. Punitive damages go beyond compensatory damages, which are generally the type of damages received in personal injury cases. If the court (judge or jury) awards punitive damages, they are intended to punish the defendant for wrongdoing and not to compensate the complaintent (the injured party or a relative on his or her behalf) for injuries sustained.

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DISCLAIMER: This site and any information contained herein is intended for informational purposes only and should not be construed as legal advice. Seek competent legal counsel for advice on any legal matter.

Most jurisdictions have statutes that pertain to animal bites and a majority of states have dog bite specific statutes. The type of recovery you may receive depends on the law in your jurisdiction. If you are in a state that has a dog bite statute, the owner may be liable for an injury their dog causes, even if they did not know that the dog was dangerous; this is called strict liability. There are exceptions to this general rule, such as if the injured person was trespassing at the time of injury, the owner may not be liable. If you are in a jurisdiction that does not have a dog bite statute, proving the owner’s knowledge of possible danger and control over his or her animal becomes more important.

In some animal bite cases, the injury may not have been caused by a dog. Most jurisdictions do not have statutes specific to other types of animals. In the case of another domestic animal, you may have a negligence action. In a negligence claim, you must show that the owner of the animal knew of the animal’s dangerous tendencies and did not prevent the foreseeable harm that occurred.

Less often, the animal bite was caused by a wild animal. If the wild animal is owned by an individual, that person will usually be held to an absolute liability standard. This means that even if they have safety measures in place, the owners will be held responsible for any harm caused by their animal. If the wild animal is not owned by a private person, but a government entity or a facility, such as a zoo, absolute liability will not apply. Instead, negligence must be proven to the court to show the facility’s/government’s liability.

WHO MAY BE LIABLE FOR ANIMAL BITE INJURIES?

Various parties may be liable for an animal bite. It depends on the situation that led to the injury. Most often, the animal’s owner will be the responsible for the wounded person’s injuries. In some jurisdictions, the owners will be liable for their animal’s actions without having to show fault. However, in other jurisdictions, the injured person must show that the owners knew that their animal was dangerous. Alternatively, in some cases the animal does not have an easily identified “owner.” The animal may be in a shelter, kennel or other facility. If the animal is in a facility, the court will have to weigh the facts of the case to determine who had control over the animal at the time of the attack. Likewise, the animal may be under the control of an entity, such as the government. If a government entity controls the animal, they may be a liable party in an animal bite injury case.

WHAT TYPE OF DAMAGES COULD I GET FOR AN ANIMAL BITE ACTION?

The amount and type of damages you may receive in an animal bite case will depend on the extent of your injuries, specific facts of your case and the jurisdiction you are in. In general, damages in animal bite cases include any medical costs, medical treatment for injuries (immediate treatment and future treatment), pain and suffering, compensation for property damage, loss of earning capacity or any lost earnings, if you were not able to work due to your injuries (physical or emotional).

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DISCLAIMER: This site and any information contained herein is intended for informational purposes only and should not be construed as legal advice. Seek competent legal counsel for advice on any legal matter.

During the delivery of a child, injuries sometimes occur. Often these injuries are not avoidable. However, at times injuries are the result of medical negligence and may have been prevented if responded to properly and with adequate care. If your child suffered preventable injuries during birth, there may be a number of people held responsible, including the doctor, other hospital employees and/or the hospital. It depends on the type of injury your child suffered and the circumstances surrounding the injury.

In many cases, the physician who performed the birth may be held accountable for his or her own actions (if negligent) or the actions of employees under his or her supervision, such as nurses, medical residents or interns, other physicians or other staff members. In a medical negligence claim against a doctor, the plaintiff (most often the parents on behalf of their child) must prove to the court that the doctor who delivered their child failed to meet the standard of care, which is the level of care other doctors would use in a similar situation. If the court confirms that medical negligence has been established, the doctor may be held liable for your child’s injuries.

Likewise, hospitals must also meet a standard of care used by other hospitals in the same/similar circumstances. Hospitals also owe patients receiving treatment a duty of care. If it can be shown that the hospital failed to meet their standard of care or breached the duty of care owned to their patients, the medical facility may be held liable for injuries. Moreover, a medical facility may be held responsible for the actions of their employees and may be found liable of corporate negligence in cases where the hospital has been negligent in their hiring practices, by hiring unqualified employees, or has not provided adequate supervision of their employees. In some cases, other staff members may be held liable for their negligent actions. Such as nurses who were found to be medically negligence. However, often hospitals may be held accountable for negligent actions of staff members as well.

WHAT DAMAGES MAY I BE AWARDED IF MY CHILD SUFFERED BIRTH INJURIES?

As parents, you may be awarded damages for your child’s injuries. The amount and type of damages will depend on the extent of the injuries, the circumstances that caused the injury and the law in your jurisdiction. Parents may receive damages for their own losses, such as loss of companionship, negligent infliction of emotional distress, medical costs and, in some cases, wrongful death. Additionally, parents may also receive damages for birth injuries on behalf of their child. Some examples may be damages for pain and suffering, mental or physical disability, loss of future income and/or loss of quality of life. Usually monetary damages for the child’s injuries will go to the child; a trust for the recovery the child is awarded may often be created for his or her benefit. The type of recovery available is dependent on many factors, it is important to speak to an attorney about the circumstances of your case for more information.

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DISCLAIMER: This site and any information contained herein is intended for informational purposes only and should not be construed as legal advice. Seek competent legal counsel for advice on any legal matter.

To have a personal injury action you must have suffered harm. The harm may be an injury to your person or personal property. It can also be the perception of harm, such as a threat (assault), which caused emotional injury. Your injury must be the result of an action or omission of another and must not have been caused by your own actions or negligence. If you feel you have suffered an injury at the hands of another, you may have a personal injury claim. It is important to discuss your possible claim with a personal injury attorney in your area. Different types of claims must be filed within a certain amount of time, or you cannot file your claim. This is called the statute of limitations; different jurisdictions and types of claims will have specific limitations that an attorney will have knowledge of and be able to communicate to you.

If you pursue your claim and meet with an attorney, there are certain documents and information that you should have to bring with you on your first meeting. The information will vary depending on your situation and your attorney may ask you to provide additional information then what is discussed here. In general, you should give your lawyer copies of any documents that may be related to your case. Documents may include, medical reports and bills, insurance information (policy and any communication you may have had with your insurance company or the other parties insurer) and any information you have about the incident. Information about the incident may include police reports, contact information of the other parties, insurer of the other parties, witness contact information and details about the situation when the occurrence took place. Any other information about the accident or event would be helpful for your attorney as well. This may include, photographs of your injuries or property damages and any other information you may have.

HOW DO I CHOOSE A PERSONAL INJURY ATTORNEY?

If you have decided to pursue your personal injury claim, you will want to start researching attorneys to assist you with your claim. There are a number of factors you should consider when choosing the right attorney for your situation. Most often, you will want to hire an attorney who has experience with claims similar to yours. Look for an attorney who practices personal injury law, this will help ensure he or she is knowledgeable in this area of law, keeps up to date on any new developments in the law, has a record of past successes and verdicts in personal injury law and may have relationship and reputation with other legal professionals in the personal injury law forum, which could be beneficial if you are seeking settlement or litigation.

Furthermore, you should try to find an attorney that you can afford and who you feel comfortable working with. Ask your potential lawyer about their billing and fee structure. Often in a personal injury case, fees will be paid on a contingency basis. This means your lawyer will be paid if he or she achieves a settlement/verdict in your favor. The fees will be paid out of your damages/recovery. Make sure you discuss if your potential attorney offers contingency fees or another fee arrangement. Additionally, it is important to have an initial consultation, prior to hiring, an attorney. This is an interview for both you and the attorney to make sure the attorney would accept your case and that you are comfortable with him or her. Most firms provide free initial consultations; it is important to ask about this prior to scheduling your meeting.

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DISCLAIMER: This site and any information contained herein is intended for informational purposes only and should not be construed as legal advice. Seek competent legal counsel for advice on any legal matter.

Insurers keep proprietary databases on car prices, similar to the Blue Book or the National Auto Dealers Association (NADA) Official Used Car Guide. The insurer’s valuation of your car is mostly based on its age. So, for example, your car might be totaled if it’s thirteen years old and receives only minor damage, and it might not be if it’s a brand new Porsche that has been in a devastating collision. If your automobile is “totaled,” that means that it would cost more to fix your car then the car is worth. Most auto insurance contracts contain a provision that states if your car is damaged in an accident, your insurer does not have to pay you more than your vehicle is worth. So if your car is “totaled out” by your insurance company, what you will receive is a check for the value of the car. Unfortunately, this is usually not enough to replace your car or to fix the damage to your car. Additionally, if you get back your car and use the money to fix it, insurers may refuse to provide more than basic liability coverage on your vehicle since it has been deemed a total loss.

If your car is totaled by your insurance company, it will usually be taken to a salvage yard, auctioned off and disassembled (“chopped up”) for parts. The insurance company will keep the money the car was purchased for at the auction. However, if you decide to keep your car and repair it, you should be able to do so. Many insurers will return the car to you if you request it, but this may vary from carrier to carrier. Other insurers will let you buy back your vehicle at its salvage price. In these situations, the insurer may deduct the salvaged (buy back) amount from your “totaled out” sum when they send you the check for the value of your car. Alternatively, certain insurers won’t return a car if it’s rare or newer, and the insurer thinks it will get a substantial sum at auction. If your car is returned, you will have to repair it and pass a Department of Motor Vehicles inspection to get your car back on the road. It is important to be aware that insurers may refuse coverage for a totaled car beyond basic liability insurance unless the car passes the DMV inspection. In addition, in order to have complete coverage on your totaled car again, you will have to have it completely repaired.

WHAT CAN I DO IF I DISAGREE WITH THE INSURER’S VALUATION?

Valuation problems arise in two ways. The most common problem is that the insurer’s valuation isn’t anywhere near enough to purchase an equivalent car in the marketplace. If you don’t agree with an insurer’s estimate of your car’s cash value, your best bet is to pay an independent appraiser to provide an estimate. You may need to bring in more than one, so the car will have to be fairly valuable to make this process worthwhile.

If an independent appraiser does not help you and your insurance company reach an agreement regarding valuation, you may try to resolve the matter either through arbitration or litigation. Arbitration is often less time consuming and less expensive than going to court. It is important to have an attorney during this process to look out for your rights and interests. If you choose litigation, be aware that going to court is rarely a cost-effective option. Unless the car was extremely valuable, and the insurance company’s offer is a tiny fraction of what you believe the vehicle was worth, you may spend more in attorney fees and costs than the amount you might recover. Speak to an attorney in your area to discuss your legal rights and options in pursuing litigation.

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DISCLAIMER: This site and any information contained herein is intended for informational purposes only and should not be construed as legal advice. Seek competent legal counsel for advice on any legal matter.

A class action lawsuit is an action where a group of people all has the same or similar injuries, which were caused by the same defective product, device, contamination, treatment, incident or occurrence. The group of people files one action and each member of the group is a class member of the lawsuit. It is logical and efficient to have only one action for injuries stemming from the same source, against the same defendant. If the plaintiff’s win the lawsuit, the damages will be divided among them in proportion to the injuries each individual has sustained. However, if the defendant wins the case, the class members (plaintiffs) are barred from filing a new claim, as either another class action or an individual action, against the same defendant for the same injuries.

In most cases, class action lawsuits are made up of a group of people with fairly minor injuries. Once added together, these injuries combine and count up, making the lawsuit more practical for injured parties. It is also more cost effective to litigate, what would be small claims, at one time. The court costs, attorneys fees and any witness fees will be absorbed by the group (or often paid from the winnings, only if the plaintiff’s win), as opposed to being paid by the individual plaintiff. However, if an individual has been severely injured and/or has the resources to pursue a separate claim, a class action lawsuit may not be the most appropriate choice for that individual. Therefore, it is important to speak to an attorney, knowledgeable in class action litigation, about your situation and the facts of your case if you are interested in initiating or joining a class action lawsuit.

COULD I BE IN A CLASS ACTION SUIT AND NOT KNOW IT?

Generally, all persons affected by a class action lawsuit should be notified. The court will order the class action representative (often the named plaintiff in the lawsuit) to notify all persons who may be affected by the action’s outcome. In situations where the class is very large, individual notification may not be possible and would be unrealistic to pursue. Depending on the number of possible class action members and the facts of the case, the type of notification must be reasonable. Therefore, notification will often be in the form of a letter, flyer, announced in a magazine, newspaper or television. It may not be possible for every single person to be made aware of the lawsuit, but all reasonable method of notification, specified by the court, should be followed. Consequently, if you are notified of a class option lawsuit that you may be affected by, you will have the right to “opt in” to the lawsuit (join the lawsuit as a class action member) or “opt out” of the lawsuit. Be aware that if the class action has been filed with the court, it may be too late to opt out of the group at the time you are notified and each member of the recognized class will be bound by the court’s outcome.

Copyright © 1994-2009 FindLaw, a Thomson business

DISCLAIMER: This site and any information contained herein is intended for informational purposes only and should not be construed as legal advice. Seek competent legal counsel for advice on any legal matter.

  • What must a plaintiff prove to recover for an assault or battery?
  • If a dog bites a person, is the owner liable for doctor’s bills?
  • What does a person have to prove to win a slander or libel claim?
  • Does the average member of the public have any privacy rights?
  • Can a person recover damages for injuries sustained on someone else’s property?
  • Is an owner of property liable for using deadly force to defend their property?
  • What remedies does a railroad worker, who is injured while working, have?
  • What is a slip and fall action?
  • Can anyone bring a wrongful death claim?
  • Learn More: Plaintiff’s Personal Injury Law

WHAT MUST A PLAINTIFF PROVE TO RECOVER FOR AN ASSAULT OR BATTERY?

The terms assault and battery are often erroneously used interchangeably. An assault can be defined as the threat to use unlawful force to inflict bodily injury upon another. The threat, which must be believed to be imminent, must cause reasonable apprehension in the plaintiff. Therefore, where the defendant has threatened some use of force, creating an apprehension in the plaintiff, an assault has occurred. The focus, for the purpose of determining whether a particular act is an assault, must be upon the reasonableness of the plaintiff’s reaction.

If the defendant threatens to use force against the plaintiff, but clearly states that the use of force will not be imminent, and will instead occur at some point in the future, then the plaintiff is unlikely to prevail on a claim of assault. If the threat is imminent, and the defendant appears capable and intent on carrying it out, the plaintiff will likely succeed in proving an assault occurred.

Battery is the intentional and unpermitted contact with another. A battery, for practical purposes, is the end product of an assault. A plaintiff in a battery claim does not need to prove an actual injury, as long as the plaintiff proves unlawful and unpermitted contact with his or her person or property. For example, plaintiffs have successfully proven a battery where the defendant grabbed onto the plaintiff’s coat. In addition, it is not necessary for the contact to be with an object in the possession of the plaintiff or the plaintiff’s body. An unpermitted contact with property of the plaintiff, located within the plaintiff’s proximity, may also constitute a battery.

IF A DOG BITES A PERSON, IS THE OWNER LIABLE FOR DOCTOR’S BILLS?

In general, the answer to this question is yes. An owner of a dog, or any animal for that matter, may be held liable for injuries the animal inflicts on others. However, the ease with which a plaintiff can win a “dog-bite” lawsuit differs from jurisdiction to jurisdiction depending on the legal theory of recovery available in the plaintiff’s location. Some jurisdictions require the plaintiff to show that the animal owner knew, or should have known, that the animal was inclined to attack or bite. In other jurisdictions, the plaintiff may only need to show negligence on the part of the owner in order to recover money for his injuries. If a wild animal, such as a lion, bear or monkey, injures the plaintiff, the animal’s owner may be held accountable under a theory of strict liability for plaintiff’s injuries regardless of the plaintiff’s conduct.
Some states have “dog-bite” statutes designed to address these matters. Additionally, some municipalities may also have their own statutes which address the responsibility of pet owners to answer for the actions of their pets.

If the plaintiff is an adult, the owner of an animal may offer as a defense to the plaintiff’s claim that the injured party provoked the animal. Where the plaintiff has been given clear warning that an animal should not be approached, petted or talked to, and still proceeds with that action, the owner may be able to avoid responsibility if the animal thereafter attacks the plaintiff. This defense is not available, however, if the plaintiff is a child.

Once the plaintiff has established that the animal owner is liable for his injuries, the plaintiff must also establish the amount of his or her damages. The plaintiff should introduce evidence of how much it has cost to treat the injury, such as doctor and hospital bills. In addition, the plaintiff may be able to recover lost wages if the injury kept the plaintiff out of work. The plaintiff is entitled to compensation for any permanent disability caused by the injury, as well as compensation for pain and suffering.

WHAT DOES A PERSON HAVE TO PROVE TO WIN A SLANDER OR LIBEL CLAIM?

Defamation includes both slander and libel. Generally, slander occurs when the reputation or good name of someone is damaged as a result of false statements that are made orally. Libel, on the other hand, occurs when false statements regarding another are put in writing.

Whether a particular statement, oral or written, constitutes defamation in the nature of slander or libel will depend upon the particular circumstances and the identity of the parties. To prevail in a defamation lawsuit, a plaintiff must prove that the defendant made a false and defamatory statement about the plaintiff that was communicated to a third party. Thus, a false and objectionable statement sent in an e-mail to the plaintiff’s co-worker may be libelous. The plaintiff can usually succeed by showing the communication was either intentional or negligent. Finally, it is also possible for the plaintiff to bring a libel suit where the plaintiff repeats the alleged defamatory statement. This is called self-publication. This can occur, for example, when an individual applies for a job and has to tell the prospective employer about something the previous employer said that was false.

Before beginning a libel or slander lawsuit, the plaintiff must determine whether or not the objectionable statement is true. No matter how damaging, insensitive, rude or inappropriate a statement may be, the plaintiff will lose if the statement is true.

The “public” plaintiff has additional hurdles to overcome to recover for libel or slander. An example of a public figure is a politician. Along with establishing all of the regular elements of the tort, a plaintiff who is a public figure must also show that the defendant knew the false statement was false, or at least acted with reckless disregard as to its truthfulness. Newspapers may escape liability for libel when they merely report false statements as long as the paper had no particular reason to doubt the statement at the time it was printed.

Finally, the plaintiff often has to prove economic harm in order to recover on a defamation suit. Therefore, the plaintiff may need to be able to demonstrate a loss of business as a result of the defamation in order to establish a right to the recovery of money. However, some types of statements are so damaging that the plaintiff does not have to prove any economic loss. These statements tend to be those that accuse the plaintiff of sexual impropriety or criminal conduct.

DOES THE AVERAGE MEMBER OF THE PUBLIC HAVE ANY PRIVACY RIGHTS?

Yes. The average member of the public is entitled to privacy protections, although the strength of those protections will vary depending upon the particular factual circumstances.

Generally, there are four different actions that an injured plaintiff can allege to recover for an unlawful invasion of his privacy. The first concerns the unlawful appropriation of another’s image. The plaintiff could make this claim, for example, if the defendant, uses plaintiff’s picture in a commercial or advertisement without permission.

The second type of wrongful invasion of privacy is in the nature of intrusion. If the plaintiff can prove that the defendant intruded into his or her solitude, seclusion or private life in a manner that would be considered highly offensive to a reasonable person, the plaintiff is entitled to recover damages from the defendant. The issue of what actions are considered highly offensive depends greatly upon the factual circumstances under examination.

The third type of a privacy claim is the public disclosure of private facts. This cause of action requires that facts having no link to a legitimate public concern be disseminated by the defendant resulting in embarrassment, humiliation or offense to the plaintiff. Whether the public has a legitimate concern in otherwise private facts about the plaintiff is always dependent upon the particular circumstances.

A fourth type of privacy right is the right to be free from being placed in a false light in the public eye. This cause of action is very similar to a defamation action. In short, the plaintiff alleges that a communication about the plaintiff was made by defendant, it is untrue, and it was made to the public. The main difference between this cause of action and defamation is that for the invasion of privacy tort, the communication need not be defamatory, it need only be false and highly offensive to a reasonable person.

CAN A PERSON RECOVER DAMAGES FOR INJURIES SUSTAINED ON SOMEONE ELSE’S PROPERTY?

An owner of property has a duty to protect members of the public from injury that may occur upon the property. The injured person may be able to recover money for those injuries if he or she can prove that the property owner failed to meet that duty. The hurdle plaintiffs’ face is that the nature and extent of the property owner’s duty will vary depending upon the facts of the situation and the jurisdiction in question.

Some states focus on the status of the injured visitor to the property. These states divide the potential status into three separate categories: invitee, licensee and trespasser. An invitee is someone who has been invited onto the land because that person will confer some advantage to the property owner, such as a store patron. An owner of property is required to exercise reasonable care for the safety of the invitee. A licensee is someone who enters upon the land for his or her own purpose, and is present at the consent, but not the invitation, of the owner.. The owner’s duty to a licensee is only to warn of hidden dangers. Finally, a trespasser is an individual who enters onto the property without the knowledge or consent of the owner and who remains there without any right or permission. Trespassers have difficulty suing property owners because property owners’ duty towards trespassers is not to place traps and hazards on their property. In some cases, the owner must also warn trespassers of the hazards if they are unlikely to be discovered by the trespasser and could cause serious injury or death.
Other states focus upon the condition of the property and the activities of both the visitor and owner, rather than considering only the status of the visitor. In these states, a uniform standard that requires the owner of the property to exercise reasonable care to ensure the safety of invitees and licensees is generally applied. The plaintiff must prove that the duty of care has not been met, through an examination of the circumstances surrounding the entry on the property, the use to which the property is put, the foreseeability of the plaintiff’s injury, and the reasonableness of placing a warning or repairing the condition. Obviously, whether reasonable care has been rendered depends greatly upon the particular circumstances.

The property owner’s duty of care toward children is greater than the duty owed to adults. Even if the children are trespassers or engage in dangerous behavior, the property owner must still take precautions to prevent foreseeable harm to children. The classic example of a property owner’s greater duty of care to children arises in the context of backyard swimming pools. Owners must fence, gate, and lock their pools in a manner that keeps children out and if they fail to do so, they will be found liable for injuries to children, even if the children were trespassers that were warned to stay off the property.

IS AN OWNER OF PROPERTY LIABLE FOR USING DEADLY FORCE TO DEFEND THEIR PROPERTY?

Generally speaking, an owner of property may not use deadly force to defend the property. Society values human life and bodily integrity much more than property. Therefore, the life, health and safety of an individual, even an intruder, is considered to be more valuable than the china or stereo, which that individual is trying to steal.
An owner is not prohibited, however, from invoking self-help methods in defending property from another. An owner of property is entitled to use reasonable force to prevent someone, or something, from entering onto his of her property or to remove something from his or her property. What, under normal circumstances, may constitute a battery, assault or other intentional tort, will not be considered unlawful in situations where it is performed as a reasonable use of self-help in defense of property. However, the use of force calculated to do great bodily harm, or cause death, is not permitted.
There is one narrow limitation upon the use of deadly force, where it is allowed. Where an intruder threatens personal safety, as well as a threat to property, or where the intruder is committing a forcible felony, deadly force may be appropriate.

WHAT REMEDIES DOES A RAILROAD WORKER, WHO IS INJURED WHILE WORKING, HAVE?

Most individuals who are injured at work are prohibited from filing ordinary personal injury lawsuits against their employers. Instead, injured workers are generally required to file a claim under the state’s workers compensation procedure. An injured railroad worker must bring a claim for benefits under the Federal Employer’s Liability Act (FELA) for compensation for his injuries. FELA is similar to many state workers’ compensation systems with the exception that a railroad employee must be able to prove some level of employer negligence in order to make a recovery. In comparison, most state systems are based upon no-fault theories of recovery where neither the negligence of the employer or the employee is examined.

Laws, rules and regulations require a railroad to furnish a reasonably safe workplace for the benefit and protection of its employees. In keeping with this requirement, a railroad has a duty to inspect and discover defects that may result in injury. In some circumstances, this may include the duty to uncover defects that should be obvious to a railroad employee. A railroad also has a duty to warn its employees of any hazardous or unsafe conditions of which it is aware, or should be aware. A railroad is also required to take other steps to ensure the safety of its workers, including providing adequate training and supervision, appropriate tools and safe equipment and enforcing only reasonable work quotas.

WHAT IS A SLIP AND FALL ACTION?

A slip and fall action is a type of personal injury lawsuit filed by a plaintiff who has been injured by a slip and fall, usually on the defendant’s property. The plaintiff in slip and fall cases must usually show that the owner of the property had notice or knowledge of the condition, and failed to clean it up and rectify it within a reasonable amount of time. Additionally, if the plaintiff has knowingly encountered a hazard, then he or she may have trouble holding the defendant liable.

CAN ANYONE BRING A WRONGFUL DEATH CLAIM?

No. Generally, most states that recognize a wrongful death cause of action limit the number of potential plaintiffs. Some states limit this group to the deceased’s primary beneficiaries, defined as the surviving spouse and the deceased’s children. Other states allow the parents of the deceased individual to bring a wrongful death claim. In addition to these individuals, some states recognize the rights of any dependent, whether closely related or not, to bring a wrongful death claim provided the person actually depended on the deceased for economic support.

Some states require any recovery gained in a wrongful death action to be divided amongst the deceased’s heirs at law or to be distributed to the deceased’s heirs at law as it would be in any normal probate proceeding. In these situations, distant relatives may receive some “trickle down” of damages, even though they were not financially dependent upon the deceased during his life. In addition, if more than one plaintiff is entitled to recover, all plaintiffs will share in the award. The manner in which the award is divided can be confusing and will depend upon the laws in the particular jurisdiction where the matter is brought.

LEARN MORE: PLAINTIFF’S PERSONAL INJURY LAW

Personal injury actions require, by their very nature, that someone be injured. The requisite injury can either by physical or, in some cases, emotional. The general goal of personal injury actions is to place the blame for the injury on the party who caused it and to require them to compensate the injured person for the losses sustained.
Not every injured plaintiff is entitled to recover damages for the injury he or she has sustained. Besides an injury, the plaintiff must establish, through evidence, that the defendant is legally liable for his or her injuries. This requires proof of causation both in terms of actual, factual causation and legal causation. Whether legal causation is established depends on the facts and circumstances of the particular matter in question. The defendant can be held liable as a result of either the actions he or she took, or the actions he or she had a duty and failed to take.

Some personal injury actions revolve around intentional conduct, which means that if an individual intentionally harms another, or knows that the conduct he or she is engaged in has a substantial likelihood of harm, he or she may be liable for the resulting harm. Other personal injury actions are based on negligence. Under a negligence theory, an individual is liable for the injuries caused by his or her own actions, or inaction. Still other types of personal injury actions are based on strict liability, a no-fault system where liability may attach regardless of the fault of the various parties, including the plaintiff.

In some situations, the defendant’s conduct, while questionable, does not rise to a level that entitles the plaintiff to a recovery. For example, if a plaintiff knowingly and willfully chooses to encounter a known hazard, the law holds that he or she has “assumed the risk of injury” and therefore the defendant is not liable. Plaintiffs are denied recovery in other cases if their subjective belief about a situation does not match an objective “reasonable person” standard.

Personal injury law can involve many different types of claims, theories and principles. Some of the more common types of personal injury actions include:
Animal bites can result in the animal owner’s liability to the person who is bitten or who is injured while trying to avoid a bite.
Assault and battery are two intentional torts that involve improper contact with another, without permission or consent or the threat of such contact.
Aviation accidents often result in serious injury or death.

Defamation and privacy are two separate areas that concern the rights of individuals to have their names and reputations protected, and also to have their privacy preserved.

Motor vehicle accidents raise numerous questions as to the liability of one participant to another and also raise interesting questions regarding who should be responsible for covering the losses.

Premises liability concerns the responsibilities of owners of property to safeguard others from dangerous conditions or hazards on their property and to prevent others from being injured while on their property.

Property damage causes of action concern the rights of owners of property to protect their property from damage, theft or intrusion.

Railroad accidents may result in personal injury or death and may subject the railroad to liability.

Slip and fall cases relate closely to the duty of an owner or possessor of land to maintain their property in a safe manner for the benefit of others lawfully entering upon the land.

Wrongful death actions may be brought by the dependents or beneficiaries of a deceased individual against the party whose action or inaction caused the death of their loved one.

Copyright © 1994-2009 FindLaw, a Thomson business

DISCLAIMER: This site and any information contained herein is intended for informational purposes only and should not be construed as legal advice. Seek competent legal counsel for advice on any legal matter.

As the victim of a sexual assault, you may have civil claims against more than one party. It depends on the circumstances surrounding the assault. You may have a claim for compensation against the assailant, the assailant’s employer or another individual. The injured party (male or female) may have a personal injury claim for damages sustained as a result of suffering a sexual assault. To prove a personal injury claim, the victim must show he or she was sexually assaulted by the defendant (assailant) and was injured as a result (physically or emotionally injured). It must also be shown that the defendant caused the plaintiff’s injuries, either intentionally or due to negligence.

If the victim has a negligence claim against an employer or another third party, there are different elements that must be proven to the court. These elements are that the defendant owed the plaintiff a duty to keep them safe and the defendant breached that legal duty. Additionally, the breach caused the plaintiff’s injuries and the injuries suffered by the plaintiff were physical or emotional in nature. Since these are civil actions, and not criminal, the victim may choose whether to pursue a personal injury or negligence claim against the defendant.

WHAT IF A SEXUAL ASSAULT OCCURS IN THE WORKPLACE?

If you were sexually assaulted in the workplace, you may have a negligence claim against your employer. You employer may have been negligent in keeping your building safe. For example, poor security measures, broken locks, poor parking lot lighting, etc. Similarly, your workplace may have been unsafe because it was a hostile environment. If you were being sexually harassed at work and your employer knew of this harassment, your employer may be held liable for allowing/permitting this environment, or failing to do anything to put a stop to it. An employer may also be held accountable for the actions of its employees without having knowledge of a hostile work environment and/or previous employee behavior. If your employers hired an employee with past sexual assault offenses, they may be liable for negligent hiring practices as well.

WHAT TYPE OF COMPENSATION COULD I EXPECT TO RECEIVE IN A SEXUAL ASSAULT CASE?

If the fact finder (judge or jury) finds the defendant responsible for your injuries in a civil sexual assault case, you may be awarded damages for your physical injuries, emotional injuries and expenses incurred as a result of your injuries. Your physical injuries, whether temporary or permanent, may be taken into account when the judge is deciding your compensation. This may include pain and suffering as well. Moreover, any emotional consequences of your assault may be compensated, including fear, anxiety, trouble eating or sleeping or difficulty with personal relationships. The result of physical and emotional injuries may add up monetarily as well. Any medical bills, costs of treatment, loss of earning (due to the inability to work or fear of your workplace) or any other expenses caused by the sexual assault may be included in your amount of compensation from the defendant. The severity of your injuries, amount of financial expenses/costs and the circumstances surrounding the sexual assault may all determine the type and amount of damages you may be awarded in a civil sexual assault lawsuit.

Copyright © 1994-2009 FindLaw, a Thomson business

DISCLAIMER: This site and any information contained herein is intended for informational purposes only and should not be construed as legal advice. Seek competent legal counsel for advice on any legal matter.