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FAQs

In times of tragedy, clients often have a number of questions regarding their case. To better accommodate our clients’ needs, we have compiled a list of the most frequently asked questions and answers for many of the practice areas that the firm specializes in.

If you have a question about a particular kind of case, the topics below might be able to provide you with useful information. If after reviewing the information above you still have questions, please call the firm at (661) 616-9829.

General Questions—

Get the answers to some of the most common general legal questions we receive at our law firm, answered by Chain | Cohn | Clark senior partner and veteran attorney Matthew Clark.


FAQs by Case Type—

Aircraft Accidents

Who is entitled to bring a lawsuit based on injuriy or death stemming from airplane accidents?
Any passenger who is injured in an airplane accident, or the heirs of any passenger who is killed, are entitled to bring a lawsuit.

Do commercial airlines or companies that charge passengers to fly on their airplanes or helicopters owe a special duty of care to passengers?
Absolutely. Commercial airlines and companies that charge people to fly in their planes or helicopters are considered “common carriers” and owe passengers the highest duty of care under the law to make sure that their travel is safe.

Does an airplane have to crash for the airline to be found responsible for injuries?
No. Many serious injuries occur to passengers without an airplane crashing. For instance, injuries can be caused by severe turbulence, the negligent acts of flight attendants and can even occur before take-off or after landing. The airline maintains the duty of utmost care for the safety of its passengers.

Who can be held liable for airplane accidents?
There is a long list of potential defendants in any serious airplane accident case. They include pilots, owners and lessors of the airplane, employer of the pilot, manufacturers and suppliers of the airplane and component parts of the airplane, chart publishers, repairers, air traffic controllers, and the Federal Aviation Administration.

Are there any limitations on aviation accidents involving international flights?
Yes. Unless a passenger or the survivors of the passenger can prove that injury or death was caused by a commercial airline carrier’s willful misconduct, damages on any international flight are limited to $75,000. This limitation applies only to the airline and not to manufacturers or suppliers of the aircraft or other potential defendants. Further, a passenger cannot recover for a strictly psychological injury.

What is the importance of a thorough investigation in an airplane accident case?
It is critical that the plaintiff’s attorney does everything that he or she can to thoroughly investigate an airplane accident case. Governmental agencies will perform their own investigation, and attorneys should obtain these reports. However, it is also important to actually inspect what is left of the airplane and other evidence that is available after an airplane crash. The investigation may lead to a theory of recovery against entities other than the pilot or owner of the airplane.

How can I prove that the airline or the pilot of the airplane was at fault when there are no surviving witnesses to the crash?
Plaintiffs are aided by a legal doctrine known as “res ipsa loquitor” which holds that there will be a presumption of negligence on the part of the airline or pilot if the plaintiff can establish that the accident is of a kind that ordinarily does not occur absent someone’s negligence; the accident was caused by an agency or instrumentality within the defendant’s exclusive control; and, the accident was not due to any voluntary action or contribution of the plaintiff. Almost every airplane crash fits this description; thus, proof in the case shifts to the defendant to prove that it acted reasonably.

What damages are recoverable in aviation accident cases?
Except for international flights, the plaintiff who sustains an injury is entitled to recover damages for past and future medical expenses, past and future wage loss, past and future pain and suffering, and if it is deemed that conduct is bad enough, punitive damages (i.e., punishment damages against the defendant). If the passenger on the airplane dies, his or her heirs are entitled to recover full compensation for their economic losses that result from the passenger’s death as well as emotional distress damages which stem from the loss of society care and comfort of the decedent. If the survivors can prove that the plaintiff lived for a period of time between the negligent act and death, they can also bring an action for punitive damages.

Do I need an attorney to bring an aviation case?
Almost always. In major airline crash cases, the airlines will often attempt to settle with the heirs before they retain attorneys. Experience dictates that the offers from the airlines are generally low. Most plaintiffs do much better retaining attorneys. Aviation litigation is very complex and there usually needs to be an investigation to ascertain fault. This will require a skilled attorney. Even in cases involving international flights with a $75,000 damage cap for injuries or death arising out of the negligence of an airline, an attorney may be able to establish willful misconduct or establish liability against wrongdoers other than the airline and help you recover damages greater than $75,000.

Animal Attacks/Dog Bites

Who can sue in an animal bite or animal knock-down case?
Any person, whether a minor or adult, who has been bitten or knocked down by an animal who has been improperly or inadequately leashed or contained can sue for injuries or death caused by an animal bite or knock-down.

Who can I sue?
If you were injured or a family member was injured or killed by any animal, you can sue the person who has or should have had control of the animal. For a person to be responsible they need not be the owner of the animal. However, an owner who retains some control over the animal remains liable even if the animal is partly under the care of others.

Are there special protections under the law for people who are bitten by dogs?
Yes. California has a statute that holds that the “owner of a dog is liable for the damages suffered by anyone who is bitten by the dog while in a public place or lawfully in a private place, including the dog owner’s property, regardless of the prior viciousness of the dog or the owner’s knowledge of that viciousness.” Thus, the owner of a dog is strictly liable for anyone who is injured or killed by a dog bite. You do not have to prove that the owner was negligent. Although the dog bite statute does not apply to the person in possession or control of a dog, that person can still be found liable for your injuries if he or she was negligent in controlling or containing the dog.

Is there a law that protects me and my family if we are attacked by any animal other than a dog?
Yes. The keeper of an animal of a species that is dangerous by nature, or that the keeper knows or has reason to know has dangerous propensities or traits, is strictly liable to anyone injured as a result of those propensities or traits. This rule provides greater protection than the dog bite statute, because it applies to keepers other than owners and animals other than dogs, including horses.

My child suffered a severe injury after being knocked down by a large dog owned by a neighbor. Can my child bring a lawsuit and recover for his or her injuries?
Yes. If you can establish that the dog had dangerous propensities or traits you will be able to maintain a strict liability case against the owner and will not have to prove negligence. Further, the owner can be held responsible for negligence if you can prove that the owner failed to exercise ordinary care in controlling the dog. This can include failure to warn you and your child of the dog’s dangerous traits, failing to ascertain whether the dog had a dangerous propensity, failing to restrain a dangerous dog, or engaging in conduct likely to excite the dog causing him to knock down your child. Further, if the dog was unleashed and you were in a city with a leash law, there will be a presumption that the owner was negligent in causing your child’s injuries.

My aunt was walking down the street when a dog ran out of the house and charged at her. My aunt attempted to run away but tripped, fell and broke her hip. The dog never touched my aunt. Is she entitled to bring a lawsuit against the dog owner?
Although this may be a difficult case to prove, your aunt should be able to bring a case if she reasonably feared for her safety and she can prove that the owner or possessor of the
dog knew or should have known of the dog’s propensity to attack people walking on the sidewalk and failed to act appropriately.

My child was bitten by a dog when he crossed through my neighbor’s back yard to get to our house without being invited. Can he bring a lawsuit even though he was a trespasser?
Yes, but only if you can establish that your neighbor was negligent in leaving his dog in the back yard and that he knew or should have known that children would cross through his back yard. This will still be a difficult case, and you will not have the benefit of the strict liability rules that apply to other dog bite cases since trespassers are excluded under the dog bite statute.

My wife was killed when a neighbor’s dog mauled her to death. I have learned that my neighbor has no homeowner’s insurance and is not well off, merely renting his house. He only recently bought the dog, and I have learned that he bought the dog from a large pet store chain. Can I sue the pet store chain for causing my wife’s death?
Yes, if, and only if, you can prove that the store knew or should have known of the dangerous propensities of the animal and failed to warn your neighbor of the animal’s dangerous traits.

What damages are recoverable in animal bite cases?
A Plaintiff is entitled to recover damages for past and future and medical expenses, past and future wage loss, past and future pain and suffering, and if it is deemed that conduct is bad enough, punitive damages (i.e., punishment damages against the defendant). If the victim dies, his or her survivors are entitled to recover full compensation for their economic losses that
result from the victim’s death, as well as emotional distress damages which stem from the loss of society, care, and comfort of the decedent. If the survivors can prove that the victim lived for a period of time between the negligent act and death, they can also bring an action for punitive damages.

Automobile Accidents

Who can recover damages in a motor vehicle accident?
Anyone who is involved in a motor vehicle accident is entitled to bring a lawsuit against an at-fault driver, or any other person or entity who may be at fault.

What if more than one driver is at fault?
If multiple drivers are responsible for the accident, the injured person can sue all of the potential defendants. At some point between the settlement demand stage and a settlement and/or verdict, a decision is made as to the relative percentage of fault of each defendant. Each defendant then owes the injured person compensation for the injuries caused by his or her percentage of fault.

What if I am at fault for causing the accident?
If the injured person’s own negligence is the only cause of his or her injuries and the injured person is 100% at fault, the injured person will recover no money in a legal case. However, California is a comparative negligence state and any fault for an injury attributable to the injured person will reduce the injured person’s damages in proportion to that fault. Thus, if you are 50% at fault for your accident, and your damages are 100%, your recovery from the defendant would be only 50%.

How is fault determined?
This is a complicated question and differs from case to case. At the settlement demand stage, i.e. before a lawsuit is filed, attorneys and adjusters generally, at least initially, look to the police report and the conclusions of the investigating officers. If there is no police report, then the people evaluating the case will generally look to whatever physical evidence exists and the statements of the drivers and witnesses. Unfortunately, police reports are frequently inaccurate, and the conclusions of the investigating officers are sometimes wrong. Thus, a police report that is favorable to one side or the other may not be conclusive as to who is at fault and, in fact, the opinions of the police officer are usually not allowed into evidence if the case goes to trial.In serious cases, attorneys hire private investigators and expert witnesses to help prove fault. Ultimately, if the case does not settle, a judge, jury, or arbitrator will decide who is at fault and
the relative percentage of fault to the parties.

Can I sue the driver of the vehicle if I am a passenger?
Yes. The passenger in a vehicle, whether driven by a friend, relative or stranger, can sue the driver of the vehicle if the driver is at fault. However, even a passenger can be found to be comparatively negligent for an accident if, for instance, the passenger does not wear a seatbelt or contributes to the cause of the accident. If the passenger is a member of the same household as the driver, there may insurance coverage exclusions that could prevent the passenger from collecting against the driver’s insurance company.

Is there anyone other than the drivers and passengers involved in a motor vehicle collision that I can sue for my damages?
Yes. In some serious personal injury or death cases the drivers involved in a collision will not have enough insurance coverage or assets to fully compensate an accident victim or the victim’s survivors for all of their damages. In these cases it becomes particularly important to perform an investigation to determine if anyone other than the operators of the motor vehicles were also at fault. CHAIN | COHN | CLARK attorneys will do a thorough investigation of a serious personal injury or death case to determine if there are other factors involved in contributing to the accident.

What damages can I recover in a motor vehicle accident?
The injured person is entitled to recover damages for past and future medical treatment, past and future wage loss, damages for pain, suffering and emotional distress, and, if the injured person can establish bad enough conduct on the part of the defendant, punitive damages (i.e. damages intended to punish the defendant). If the injured person dies, his or her survivors are entitled to recover full compensation for their economic losses that result from the injured person’s death, as well as monetary damages which stem from the loss of society, care, and comfort of the decedent.

What if I have no insurance?
If you are a passenger in a motor vehicle or a pedestrian injured by a motor vehicle, the fact that you do not have insurance is irrelevant. However, if you are the driver of a vehicle involved in an accident, even if you are not at fault, under a new California law you are not allowed to recover damages for pain, suffering, and emotional distress. One must have an automobile liability insurance policy to recover those damages.

What if one of the other drivers has no insurance or insufficient insurance to cover the cost of my damages?
An injured plaintiff can attempt to attach the personal assets of an uninsured or underinsured motorist. However, in most of those situations the likelihood of recovery of sufficient monetary damages is not worth the time and cost to pursue the defendant. If the injured person has an uninsured or underinsured motorist policy of their own, then the injured person can recover from the their own insurance company the damages caused by an at-fault driver. If the at-fault driver is uninsured, the injured person can recover damages up to his or her own uninsured
motorist policy limit. If the at-fault driver has insurance, but not enough to cover the injured person’s damages, then the injured person can seek to recover from their own insurance company the difference between the at-fault driver’s policy limit and the injured person’s own policy limit

Do I need to retain an attorney if I am injured in a motor vehicle accident?
Usually, but not always. If liability is clear and your injuries are relatively minor, you may be better off attempting to settle the case with an insurance carrier. However, you should always be cautious because what might seem like a minor injury may become more serious. Generally speaking, in cases of difficult or questionable liability and/or cases with serious personal or psychological injuries or death, an accident victim or his or her survivors should retain an attorney who specializes in serious injury and wrongful death cases. A good attorney can usually
significantly increase the value of a case by a thorough work up and may be able to identify defendants other than the motor vehicle drivers who can be sued in situations where there is not enough insurance coverage to compensate the plaintiff for all of his or her damages.

How long do I have to bring a motor vehicle accident case?
That depends. If a potential defendant is a public entity, such as the state, county or a city, a claim for personal injuries must be filed with the public entity within six months of the date of your injury. If the defendant is a private entity, such as a business or an individual, a complaint must be filed within one year of the date of the accident for all accidents up to January 1, 2003; and for accidents occurring after January 1, 2003, a complaint must be filed within two years of the date of the accident.

If I am in an auto accident, do I have to stop?
Yes. California law says you must stop, whether the accident involves a pedestrian, a moving car, a parked car or someone’s property. If you drive away, you can be charged with “hit and run” – even if the accident is not your fault. If you hit a parked car, try to find the driver. If you cannot, the law says you may drive away only after you leave behind your name, address and an explanation of the accident – and you must notify the local police or California Highway Patrol either by telephone or in person. You must call the police or the CHP if the accident caused a death or injury. An officer who comes to the scene of the accident will make a report. If an officer does not show up, you must make a written report on a form available at the police department or CHP office.

What should I do if someone is injured?
The law requires you to give reasonable assistance to injured persons. If you are not trained in first aid, do not move someone who is badly hurt; you might make the injury worse. However, you should move someone who is in danger of being hurt worse or killed – even if you do make the injury worse. To avoid additional collisions, try to warn other motorists that an accident occurred. Placing flares on the road, turning on your car’s hazard lights and lifting the engine hood are good ways to warn oncoming traffic. Arrange to get help for any injured persons, and try not to panic.

How can I get help?
As soon as you can get to a telephone, call 911. Explain the situation and give your exact location, so help can arrive quickly. Be sure to mention whether you need an ambulance or a fire engine. Or, flag down a passing car, and ask the driver to go for help. Perhaps the driver will have a cellular phone in the car and can make an emergency call on the spot.

What information should I gather at the accident scene?
Since many records are now confidential under the law, you may not be able to obtain the information you want from the Department of Motor Vehicles (DMV). So be sure to get as much correct and complete information as you can at the scene of the accident. You and the other driver should show each other your driver’s licenses and vehicle registrations. Record:

  • The other driver’s name, address, date of birth, telephone number, driver’s license number and
    expiration date, and insurance company.
  • The other car’s make, year, model, license plate number and expiration date, and vehicle
    identification number.
  • The names, addresses, telephone numbers and insurance companies of the other car’s legal and
    registered owners (if the driver does not own the car).
  • The names, addresses and telephone numbers of any passengers in the other car.
  • The names, addresses and telephone numbers of witnesses to the accident. Ask them to stay and talk
    to the police. If they insist on leaving, ask them to tell you what they saw and write everything
    down.
  • The name and badge number of the law officer who comes to the accident scene. Ask the officer where
    and when you can get a copy of the accident report.
  • A simple diagram of the accident. Draw the positions of both cars before, during and after the
    accident. If there are skid marks on the road, pace them off. Draw them on the diagram, noting the
    distance they cover. Mark the positions of any crosswalks, stop signs, traffic lights or street
    lights. If you have a camera with you, take pictures of the scene.

If I think the accident is my fault, should I say so?
Do not volunteer any information about whose fault the accident was. You may think you are in the wrong and then learn that the other driver is as much or more to blame than you are. You should talk to your lawyer before taking the blame. Anything you say to the police or the other driver can be used against you later. Do not agree to pay for damages or sign any paper except a traffic ticket until you check with your lawyer. Be sure to cooperate with the police officer investigating the case. But, stick to the facts

What if I get a ticket?
Sign it. A ticket has nothing to do with your guilt or innocence. When you sign, you promise to appear in court. If you do not sign the ticket, the police officer can arrest you. While it is okay to sign the ticket, you may want to talk with your attorney before you pay a fine or plead guilty to the charges. Find out if you can attend traffic school instead. If you plead guilty, you may hurt your chances of collecting damages from the other driver later, or you may help the other driver to collect damages from you.

Do I need automobile insurance?
Yes. California law requires every owner of an automobile to have that vehicle insured. If you are in an automobile accident, you must share the name of your insurance

Should I get a physical check-up after the accident?
A check-up may be a good idea for both you and your passengers. You could be injured and not know it right away. At least call your doctor or another health care provider for help in deciding what your needs may be. Your automobile insurance may pay your health care bills.

Do I have to report the accident?
Yes. First, you may need to call the police. Second, report the accident to your insurance company. Ask your agent what forms you should fill out to help you make other necessary reports on the accident. Third, you and the other driver must report the accident to DMV within 10 days if:

  • The damage to either car is more than $500.
  • Anyone is injured or killed in the accident.
  • You may obtain an SR-1 Report of Traffic Accident form from your local DMV office, CHP, police, insurance company or CHAIN | COHN | CLARK.

Who pays if I am injured or my car is damaged?
That depends on who is at fault, whether you and the other driver have insurance and what kind of insurance you have. There are two major types of insurance “liability” and “collision”.

  • Liability. If you are to blame for an accident, your liability insurance will pay the other driver for property damage and personal injuries up to your policy’s limits. If you are not at fault, the
    other driver’s liability insurance pays for your car damage and/or personal injuries. Collision. No matter who is at fault, your collision insurance pays for damages to your car (not
    your medical expenses), minus the policy deductible. Most insurance companies do not offer collision coverage for very old cars.
  • You may have other insurance too. Your health insurance, for example, may pay your medical bills. Also, your automobile insurance may have medical payments coverage. If so, it will pay the cost of your medical treatment up to the medical payment limits. This coverage can be used in place of your other health insurance or in addition to it.

What should I do if the other driver does not have insurance?
If the other driver caused the accident and is not insured, your own policy will pay for your personal injuries – if you have “uninsured motorist” or “medical payments” coverage. If the other
driver’s insurance is not enough to pay for all of your damages, your own insurance may pay the difference – if you have “underinsured motorist” coverage. If you do not have these kinds of insurance or if your damages are more than the policy’s limit, you can sue the other driver. However, even if you win the case, you cannot be sure that the other driver has the money to pay. If you have collision insurance, it will pay for damage to your car, no matter who is at fault.

What if I want to make a claim for my injuries?
If the other driver was at fault, you may be entitled to compensation for your personal injuries, pain and suffering, property damage and other expenses, such as lost wages. You should make a claim with the other driver’s insurance company. But, if you are not satisfied with the amount they offer, you may want to sue. If you plan to sue, do not delay. There are time limits for filing various types of claims. Beginning in 1991, you can sue for $5,000 or less in small claims court. An attorney cannot represent you in this court, but you can talk with one beforehand. If you want to sue for a larger amount, you will need your own attorney.

Bicycle Accidents

If I am injured while riding my bicycle, can I sue the driver that hit me?
Yes, as long as you can establish that the driver was at fault.

Can I still bring a lawsuit against the driver if I was doing something I was not supposed to, such as riding on the wrong side of the street, not wearing a helmet or not having proper lights or reflectors at night?
Yes. You can bring a lawsuit as long as you can prove that the driver or some other person or entity was at fault. The bicyclist has the same duties and responsibilities on roadways as a motor vehicle driver. Further, there are some additional special requirements for bicyclists. Adult bicyclists are not required by law to wear helmets, although a jury can still find you negligent for
not wearing a helmet even if you are an adult. Further, not following the law by riding on the wrong side of the road or not having proper gear to ride at night can, and often will be found to be negligent behavior on your part. However, a bicyclist’s negligence does not eliminate their ability to sue another party; it simply reduces the recovery by the percentage of their fault.

My child was injured or killed while riding his bicycle. What are our rights?
Children, particularly young children, are not held to the same standard of care for their own safety as adults. Thus, drivers must be more cautious when they know that children riding bicycles are in the area. Even if your child was negligent, you may be able to recover against anyone responsible for causing the accident, including the driver of the vehicle that hit your child.

I was riding my bicycle when I rode over a pothole which threw me off my bike and caused a serious head injury. Do I have a case?
Yes. You have a potential case. If you can establish that public or private property was in a dangerous condition and that it was foreseeable that someone would be riding a bicycle over that property, you will be able to bring a case. However, to win the case you must prove that the possessor or owner of the property created, knew, or should have known, about the dangerous condition on the property and failed to repair or warn of the danger.

I brought my bicycle in for repairs shortly before my accident. I believe that the repair shop improperly repaired the brakes which caused me to lose control of my bicycle and run into a tree, causing a severe injury. Can I sue the repair shop?
Yes, as long as you can prove that the repair shop negligently repaired your brakes, and the brakes’ failure contributed to your accident. You will have to retain an expert to prove your case. In addition, you will have to prove that you or someone else did not cause the brake failure.

I bought a bicycle several years ago and always kept it in good repair. However, while I was riding one day I went over a bump and my front wheel collapsed, causing me
to crash into a parked car. Can I sue of the manufacturer of the bicycle?
Yes. As long as you can establish that the bicycle wheel was defectively manufactured or designed, you can prevail in a case against the bicycle manufacturer.

I recently brought a bicycle with reflectors. I rode the bicycle at night. A car did not see me and turned in front of me. I crashed into the car and received a severe injury. Can I sue the seller of the bicycle?
Maybe. There are special requirements under the California Vehicle Code for sellers of bicycles. It is illegal for a seller of a bicycle to sell a bicycle that does not have the types of reflectors that are required by law, therefore not meeting the requirements established by the Department of Motor Vehicles. If you can establish that your bicycle did not come with all of the reflectors required by the Vehicle Code, you can sue the bicycle seller as long as you can establish that the lack of required reflectors contributed to your accident and injury.

Can I repair or sell my bicycle and get a new helmet after a bicycle accident in which I have been injured?
Yes, but you may be doing irreparable harm to your case. If your case involves a head injury or traumatic brain injury, an examination of the helmet will be critical. Thus, you should always maintain your helmet. Further, the bicycle itself should be left in the exact condition it was in after the accident. Bicycle cases almost always involve disputed liability (fault) and an accident reconstruction expert or bicycle expert will be greatly aided in his or her evaluation of the case by being able to examine the bicycle. An expert will be able to determine speed of impact and all of the forces involved in the accident by inspecting the bicycle. If the bicycle is disposed of, hopefully you have a picture of the bicycle in its post-accident condition. If you do not, you should not give up on the case until you can consult with an attorney who may be able to prove the case even without the bicycle.

Is there such a thing as a bicycle expert?
Yes, absolutely. There are physicists, engineers, and other specialists who devote their life’s work to reconstructing bicycle accident cases, designing bicycles and determining whether or not a bicycle was improperly manufactured, repaired or maintained. In any bicycle accident involving a serious injury or death, the plaintiff’s attorney should retain such an expert.

What damages are recoverable in bicycle accident cases?
A Plaintiff is entitled to recover damages for past and future medical expenses, past and future wage loss, past and future pain and suffering, and if it is deemed that conduct is bad enough, punitive damages (i.e., punishment damages against the defendant). If the bicyclist dies, his or her survivors are entitled to recover full compensation for their economic losses that result from the bicyclist’s death as well as emotional distress damages which stem from the loss of society, care and comfort of the decedent. If the survivors can prove that the bicyclist lived for a period of time between the negligent act and death, they can also bring an action for punitive damages.

How soon do I need to bring a case after a bicycle accident?
A Bicycle Accidents and/or wrongful death action, under California law, must be brought within two years of the date of the accident, if the accident occurred on or after January 1, 2003;
and one year from the date of the accident if the accident occurred prior to January 1, 2003.In cases against public entities, a claim must be filed against the public entity within six months from the date of the accident. If the plaintiff is a minor, a minor has until their 19th birthday to bring case unless there is a government claim in which a minor should bring the claim within six months of the accident, or one year at the latest.

Will my bicycle accident case settle and does it make a difference if I hire an attorney?
It is always a good idea to consult or retain an attorney in a bicycle accident case because there usually will be some questions of comparative fault. In addition, expert witnesses may need to be retained to reconstruct the accident and help determine responsibility for the accident. Your case will probably settle and will be more likely to settle for an increased amount if you retain an attorney.

Big Rig Accidents

Is my case any different if I am injured, or a family member is killed, by a truck as opposed to any other vehicle driver?
Yes. Although the same laws of negligence will apply, there are special Vehicle Code sections which apply only to commercial truck drivers and trucking companies and there are special licensing and training requirements of truck drivers which generally make truck accidents harder to defend and easier to win for plaintiffs.

Who can sue in a truck accident injury or death case?
Anyone who is injured or has had a loved one killed in a truck accident can sue as long as some other person or entity is at fault for the accident. This includes adults and children (who can sue through guardians or parents); and even truck drivers if another person or entity was at fault for the accident.

Who can be sued in a truck accident case?
Any person or entity who was at fault for causing the accident can be sued. This includes the truck driver and the trucking company, the owner of the trailer, the shipper, as well as any other driver, person or entity who in anyway contributed to the accident, such as the manufacturer of one of the vehicles involved in the accident, the manufacturer of a tire that contributed to the
accident or the owner of any public or private property whose negligence contributed to the accident.

Can I still sue even if I was partially at fault for causing my own injuries in the accident?
California is a comparative fault state. A person can sue for serious Big Rig Accidents even if he or she are partially at fault, as long as he or she can prove that one or more parties are also at fault. However, the amount of a plaintiff’s recovery will be reduced by the amount of his or her fault. Therefore, if someone is awarded $5 million dollars in a serious Big Rig Accidents case, but are found to be fifty percent (50%) at fault, the recovery will be reduced to $2.5 million dollars.

Is investigation important in a truck accident case?
Yes. It is critical. If the truck was commercially owned, in most situations large trucking companies will perform their own investigation immediately after the accident. This puts you at a vast
disadvantage. It is important that you retain an attorney who immediately investigates the case to attempt to pin down liability on any potential at-fault defendants.

Are expert witnesses necessary to prove fault in a truck accident case?
Usually. Unless there is no question that one party was completely at fault, a plaintiff in any serious injury or death case involving a truck should usually retain an expert. Further, that expert should have special expertise in the design, manufacture and operation of trucks and the rules of the trucking industry.

What damages can I, or the survivors of a loved one, recover in a truck accident
injury or death case?
Under California law, a seriously injured plaintiff is entitled to recover all of his or her past and future medical expenses; past and future loss of income/earning capacity; past and future pain, suffering and emotional distress and in cases in which the defendant’s conduct is particularly bad, punitive damages which are awarded to punish the defendant. If a person dies in a truck accident, the survivors can recover monetary damages for their economic losses and emotional distress damages for loss of society, love and comfort.

How soon must I bring an injury or death case based on a truck accident?
A Big Rig Accidents and/or wrongful death action, under California law, must be brought within two years of the date of the decedent’s death, if death occurred on or after January 1, 2003; and one year from the date of decedent’s death if the death occurred prior to January 1, 2003.In cases against public entities, a claim must be filed against the public entity within six months from the date of death.

Do I need an attorney to litigate my truck accident case?
Yes. Unless you have a very minor injury, which is rare in truck accident cases, you will need to retain an attorney to establish liability against any potential defendants and help maximize your
damage recovery.

Burn Injury Accidents

Who can sue for a burn injury?
Anybody, child or adult, whose burn injury was caused by somebody else’s fault.

Who can be held responsible for a burn injury?
Any person whose negligent or intentional misconduct caused the injury can be held responsible to the injured plaintiff. This would include a large list of potential defendants from vehicle drivers, product manufacturers, construction site operators, owners of dangerous private or public property and others.

What if I was also at fault for the accident which caused my burn injury?
California is a comparative fault state. A person can sue for serious Burn Injury even if he or she are partially at fault, as long as he or she can prove that one or more other parties are also at fault. However, the amount of a plaintiff’s recovery will be reduced by the amount of his or her comparative fault.

Is it important to quickly investigate an accident that results in a burn injury?
Absolutely. Given the seriousness of the injury, you or your attorney will be doing yourselves a terrible disservice if the accident is not investigated quickly and thoroughly. A thorough investigation should include an examination of the scene, the instrumentalities involved in the accident, interviews with witnesses and the collection of reports from investigating agencies. Further, if at all possible, the instrumentalities causing the accident should be maintained in their post-accident condition, i.e., motor vehicles should not be repaired, malfunctioning machines should be preserved and not repaired, fire scenes should not be rebuilt until the cause of the fire and burn injury can be clearly established. The investigation will be important in order to establish fault on the most obviously culpable defendant; establish a lack of fault on the part of the plaintiff; and establish fault on wrongdoers other than the most clearly at fault defendant
who may be in a better position to fully compensate plaintiff for a serious burn injury.

Is the existence of insurance coverage important?
Yes. It is critical. It is usually unlikely that the person or entity that caused your burn injury will have the assets necessary to cover your enormous potential damages. Even a company with a relatively large insurance policy of $500,000 or $1,000,000, may not completely cover the damages in a clear liability case in which there is a serious burn injury. This is one of the reasons
why an early investigation is so important; that is, to develop evidence against multiple wrongdoers who, in totality, may be able to cover your damages either through assets or insurance.

Will my attorney need to retain experts to prove liability and damages even though my injury is so obvious?
Almost always. Because of the seriousness of your injury, it is critical that liability, i.e., fault, is pinned down as soon as possible after an accident against at least one potential wrongdoer and hopefully more. Liability experts will help you do this. These experts include mechanical engineers, metallurgists, fire investigators, accident reconstruction and human factors experts who can address the liability factors in the accident. In addition, if there is any issue as to whether a defendant’s wrongdoing caused your injury, the retention of biomechanical engineers and
biomedical engineers can be extremely helpful. With regard to damages, the answer is always yes. Although the fact that you are injured may be obvious, the consequences of the injury
will not necessarily be obvious and will usually be highly disputed by the defendants. At a minimum, you will need to retain at least one doctor to testify to the medical effects of your injury. You may need a vocational rehabilitation/life care need expert to testify to your loss of earning capacity and your need for future care and treatment. Finally, you may need an economist to testify to the amount of damages that are necessary to compensate you for all of your losses.

What damages am I entitled to recover in my burn injury case?
Under California law a plaintiff who has suffered a burn injury is entitled to recover all of his or her past and future medical care expenses; past and future loss of income/earning capacity; past and future pain, suffering and emotional distress and in cases in which the defendant’s conduct is particularly bad, punitive damages (damages which are awarded to punish the defendant).

Claims Against the Government

Can I sue a public entity if the public entity caused an injury to me or death of a family member?
Yes. In most circumstances a public entity can be sued for the acts of its employees just as if the misconduct had been committed by a private individual or company. However, there are significant limitations to a government entity’s exposure to lawsuits. Therefore, whenever you are considering a case against a government entity, you should quickly consult with an attorney to learn of your rights and limitations. Of particular concern, is a shortened statute of limitations. You only have six months in California to bring a claim against a public entity. If the claim is not brought within six months, in most cases you will lose your rights.

What type of agencies are considered public entities?
Government entities include almost every operation funded by taxpayers’ money. Public entities include public schools, hospitals, police departments, fire departments, bus companies and many other publicly funded institutions.

If my child is injured at school, can I bring a lawsuit on my child’s behalf against a public school?
Yes, under some circumstances. The school authorities have a duty to supervise the conduct of children on school grounds. If you can establish that the child’s injury was caused by a failure of the public school to adequately supervise children, you may be able to bring a case against the school district on behalf of your child.

If I am injured as a result of the dangerous condition of public property, can I bring a lawsuit?
Yes, as long as you can prove: (1) that the property was in a dangerous condition at the time of your injury; (2) that the injury was caused by the dangerous condition; (3) that the dangerous condition created a reasonably foreseeable risk of injury; (4) that the dangerous condition was created by a public employee’s wrongful act or omission; or (5) that the public entity had notice of the condition in time to take protective measures and failed to take those measures. Dangerous condition of public property generally falls into two classes:(1) Cases in which a person trips, falls or somehow injures himself on a sidewalk, crosswalk or other public property; or (2) Cases in which dangerous roadways contribute to accidents.

I have heard that public entities have immunity from lawsuits. What does that mean?
An immunity means that by operation of the law a public entity cannot be held responsible for certain negligent or wrongful acts even if its wrongful conduct clearly caused the plaintiff an injury. There are hundreds of immunities that may or may not apply in your case. Therefore, it is always important to consult with a lawyer early in the case to make sure that there are no immunities that bar your particular case.

Can I sue the police and correctional officers if they cause me an injury?
Rarely. Police and correctional officers are immune from liability in most circumstances as long as they are acting within the course and scope of their employment. There are a number of exceptions to this general immunity, including cases in which a police officer or correctional officer violates a person’s civil rights and cases in which a correctional officer or police officer injures someone in a car accident, although it is virtually impossible to sue a public entity if the plaintiff’s injury stems from a high speed chase situation or if the vehicle owned by the public entity is on an emergency mission.

If I am injured by an operator of a public entity vehicle, such as a bus, can I sue?
Yes. Other than police officers in chase situations, and emergency vehicles on emergency missions, the operator of any public entity vehicle, including a bus, owes the same duty of care as a private individual to pedestrians and occupants of other vehicles. Further, since a bus is considered a “common carrier”, the public entity owes the bus passengers the highest duty of care recognized under the law which makes cases involving injuries to passengers on a bus easier to win against the bus company than cases against other motorists.

Can I bring a case against the federal government?
Yes. Cases against the federal government are controlled by the Federal Tort Claims Act. The liability of the federal government is the same as that imposed upon a private individual under state law, with a few exceptions. There is no right to a jury trial in a case against the federal government. It can only be decided by a judge or magistrate. Further, plaintiff cannot recover punitive damages against the federal government.

What is the statute of limitations in a case against a government entity in California?
Although there are some exceptions, claims against governmental agencies must be brought within six months from the date of the incident. Therefore, it is very important in any case in which a government entity is a potential defendant to seek consultation with an attorney shortly after the incident. There are exceptions to the six-month claims rule. Therefore, even if you have waited more than six months after an accident to seek the advice of an attorney, you should still arrange for a consultation because you may fall within one of the exceptions.

What damages am I allowed to recover in a case against a public entity?
You are entitled to recover damages against a public entity in the same manner as you would be allowed to recover damages against a private company, with two exceptions. You are not
entitled to a recovery of punitive damages against the public entity. The other significant difference is that a government entity can elect to pay judgments that exceed $500,000 by making partial payments over a ten-year period.

Do I need to retain an attorney in a cases against a public entity?
Public entities will normally reject all claims. There are a certain number of people who will give up pursuing a claim after it is rejected. These people may believe that they don’t have a good claim because it was rejected. Therefore, it is worthwhile to consult with our office if you have been injured by a public entity.

Construction Accidents

I was working at a construction site and was injured. Who can I sue?
You should be able to sue any person or entity whose fault contributed to your injuries other than your employer. Your remedies against your employer are limited to Workers’ Compensation. Your remedies against a general contractor or owner may be limited to cases where you can prove active negligence on behalf of these parties.

Can I file a lawsuit against persons or entities that caused my injury even if I am collecting Workers’ Compensation benefits?
Yes. If you can establish that somebody other than your employer at the job site acted negligently and contributed to your injuries, you can bring a lawsuit even though you are collecting Workers’ Compensation benefits. However, your Workers’ Compensation insurance carrier may be entitled to get some or all of their money back out of your recovery against the other responsible parties.

What if my employer is at fault for causing my injuries?
If your employer is 100% at fault, you are out of luck. Your remedies will be limited to Workers’ Compensation. However, if there are parties at fault other than your employer, you can bring a civil lawsuit. Further, if your employer’s negligence was a major cause of your injury, you may be able to collect against the other responsible parties and not have to pay back the money awarded to you in the Workers’ Compensation case.

What if I was partly at fault for the accident. Can I still sue?
If your own negligence is the only cause of your injuries and you are one hundred percent at fault, you will not recover any money in a legal case. However, California is a comparative negligence state and you can still recover monetary damages for your injuries if there is at least one other party at fault. However, the amount of your recovery is reduced by the amount of your negligence.

I was injured while visiting or walking by a construction site. Who can I sue for my injuries?
You can sue any party who is responsible for your injuries, including the owner, general contractor and subcontractors at the site. Further, this duty is owed to you even if you are an uninvited guest at the site. Anybody who has control of the site owes you a duty of ordinary care.

I was working at a job site and received a severe injury which was mostly the fault of my employer. However, my employer did not carry Workers’ compensation insurance. What can I do?
You are actually in a much better position if your employer did not carry Workers’ Compensation insurance and is financially solvent. Under the law, if an employer does not carry Workers’ Compensation insurance, you are allowed to sue the employer in a civil case, just like you can sue any other defendant. Also, liability is actually easier to prove. Thus, you will be entitled to full compensation for your injuries, rather than the minuscule Workers’ Compensation recovery.

I was working as a subcontractor at a construction site and received a severe injury. What are my rights against the owner and general contractor in a lawsuit?
The answer to this question is rather complex, and the law has changed to the disadvantage of construction workers in recent years. Basically, the owner or general contractor may be found liable to workers at the site for failing to use ordinary care to provide them with a reasonably safe place to work, warn of dangers that are not obvious, and keep the construction site in a reasonably safe condition. Liability for a dangerous condition may be imposed upon an owner or general contractor who created the condition personally or through an employee and had notice of the dangerous condition or, by reasonable inspection, should have discovered it and had sufficient control to take reasonable safety measures. Further, if the owner or general contractor knew, or should have known, that a subcontractor’s work created a type of dangerous condition that may reasonably be expected to occur again unless appropriate precautions were taken, they may be found liable. Also, liability can be established by proof of violations of safety statutes and regulations. Still, it may be very difficult to sue the owner or general contractor for a dangerous condition created by another subcontractor which caused your injury. However, you can still sue the other subcontractor, and under certain circumstances bring a case against the general contractor and the owner.

How important is it for my attorney to retain highly qualified experts in construction cases?
It is critical. It is almost always necessary for a plaintiff’s attorney to retain construction practice experts and safety experts. There will be many insurance coverage issues, contract issues, and issues of liability between the various trades which require the retention of sophisticated experts to be able to explain to a jury the relative responsibilities of the parties. Further, a construction safety expert will be able to point to the negligent way in which the construction project was conceived and monitored.

What damages are recoverable in construction accident cases?
A plaintiff is entitled to recover damages for past and future medical expenses, past and future wage loss, past and future pain and suffering, and if it is deemed that conduct is bad enough,
punitive damages. If the plaintiff dies, his or her survivors are entitled to recover full compensation for their economic losses that result from the plaintiff’s death as well as emotional distress damages which stem from the loss of society, care and comfort of the decedent. If the survivors can prove that the plaintiff lived for a period of time between the negligent act and death, they can also bring an action for punitive damages.

Do I need to retain an attorney in a construction accident case?
Yes. Even if you believe that you were partly responsible for your own injuries or that your employer was solely responsible, it is generally wise to at least consult with an attorney who
handles construction accident cases to determine if there is a potential case against someone other than your employer. The law in construction accident cases is extraordinarily complex and you need an attorney who knows his or her way around construction accident litigation.

Dangerous Conditions on Private Property

Is there a name for cases involving personal injuries caused by the dangerous condition of property?
Yes. These cases are referred to in the law as “premises liability” cases.

Can I bring a lawsuit if I am injured or a loved one is killed as a result of a
dangerous condition in somebody’s home, or are premises liability cases limited to
cases against businesses?
Although premises liability cases are most commonly
filed against businesses such as stores, they can also be filed against the owner and
possessor of a private house or land. Most homeowners have insurance coverage to provide
protection against injuries or death caused on their property.

Who can I sue under premises liability law? The possessor of land and/or a
building is ordinarily the person responsible for injuries or death caused on the land or
building. However, a company or individual that carries on an activity on the premises on
behalf of the possessor will also be responsible. Thus, a janitorial firm or security firm
will be held responsible for an injury or death caused by the negligence of one of its
employees working in a building.

What if I am partially at fault for the accident? If plaintiff’s own
negligence is the only cause of his or her injuries and the plaintiff is one hundred
percent (100%) at fault, the plaintiff will not be able to recover money in a legal case.
However, California is a comparative negligence state and a plaintiff can still recover
monetary damages for their injuries if there is at least one other party at fault. However,
the amount of the plaintiff’s recovery is reduced by the amount of the plaintiff’s
negligence.

What do I have to prove in order to win a premises liability case? You
have to prove that the condition of the property in question exposed you to an unreasonable
risk of harm and that the possessor/owner of the property had no reasonable basis for
believing that you would discover the condition or realize the risks involved. Further, you
have to prove that the defective condition is significant and not trivial, and that the
defendant either created the defect or it was aware of it at the time you were hurt.

What are some examples of dangerous conditions that give rise to lawsuits?
There are many different circumstances in which a dangerous condition may be found. Some of
the most common are slippery floors, stairs and handrails not built to code, store displays
that fall on customers, inadequately fenced swimming pools, poorly maintained apartments,
houses, stores or other businesses.

Can I bring a case against a store or business owner if I am injured by another
person while I am on their property?
Sometimes. Generally speaking, a business
owner has a duty to protect you from wrongful acts of other people on their property if
they threaten your safety and an injury results from these acts which the property owner
should have foreseen. However, before a business owner will be held responsible, you must
prove that the owner had reasonable grounds to anticipate the wrongful conduct and that
there was a probability you would be injured as a result of the misconduct. These cases
generally involve criminal misconduct that result in serious injury or death to a person
visiting a premises. The cases are usually difficult to win unless the plaintiff can prove
that there were similar acts of criminal misconduct at the location of the plaintiff’s
incident and the defendant failed to take adequate measures to protect against the
predictable misconduct.

I am a tenant. Under what circumstances can I sue my landlord for injuries
resulting from the dangerous condition of property?
Landlords can be held
responsible for injuries that you receive inside your rental unit and in the common areas
of the building if you can prove that the premises was kept in a dangerous condition.

What damages am I entitled to recover in a premises liability case? An
injured person is entitled to recover damages for past and future medical treatment, past
and future wage loss, damages for pain, suffering and emotional distress, and, if the
plaintiff can establish bad enough conduct on the part of the business or homeowner
punitive damages (i.e. damages intended to punish the business or homeowner). If the
plaintiff dies, his or her survivors are entitled to recover full compensation for their
economic losses that result from the plaintiff’s death as well as emotional distress
damages which stem from the loss of society care and comfort of the decedent. If the
survivors can prove that the plaintiff lived for a period of time between the negligent act
and death, they can also bring an action for punitive damages.

What if I am injured at a friend’s house. Is it okay to sue? That will be
up to you. Most people who own homes have homeowner’s insurance for just this type of
occurrence. If you are seriously injured and your friend is clearly at fault, most people
will not take it personally as long as you do not sue for more than the amount of their
insurance coverage.

Drunk Driving Accidents

Does the law differentiate between people who are killed or seriously injured by
drunk drivers as opposed to people who are injured or killed by people driving under
the influence of street drugs or prescription drugs?
No. The law makes no
distinction between driving under the influence of alcohol, street drugs or prescription
drugs. That is why the term “DUI,” which means “driving under the influence” is used to
describe the crime rather than “drunk driving.”

Who can sue in a DUI case? Any person who is injured by the wrongful
conduct of a person driving under the influence, or the survivors of someone who was killed
by a defendant who was driving under the influence, can bring a lawsuit against the
defendant driver and any other person or entity who was responsible for the accident.

Is it easier to prove a drunk driving case than a case in which a person is driving
under the influence of drugs?
Yes. The relationship between a high blood
alcohol level and driver impairment is well known and well established. The same
relationship between prescription and street drugs has been far less studied and is not
within the common knowledge of most drivers and jurors. Thus, drunk driving cases are
easier to prove.

What if the person who injured me was found to be driving under the influence, but
I feel like I also was probably at fault. Can I bring a lawsuit?
Yes.
California is a comparative negligence State. This means that you can sue any responsible
party even if you are partially at fault in the accident. However, your damage award will
be reduced by the percentage of your own negligence.

How impaired must a defendant be for there to be a presumption under the law that
the defendant was negligent?
A defendant will be presumed to be negligent for
causing an accident if you can establish that the driver’s physical or mental abilities
were so impaired by the drug or alcohol use that they could not drive with the caution or
ability of a person of ordinary prudence and skill in similar circumstances. Thus, a person
can have a few drinks or drive under the influence of prescription drugs without being
presumed to be negligent.

Will expert testimony be necessary for me to establish that the other driver was
under the influence?
Probably. Usually a toxicologist will have to be called
at trial to establish the level of alcohol and/or drugs in a person’s body. In addition, a
human factors expert may be necessary to testify to the relationship between the blood
alcohol or drug level and driver impairment

What damages can I recover in a wrongful death or serious Drunk Driving Accidents
case stemming from the negligence of a defendant who was driving under the influence?

The injured person is entitled to recover damages for past and future medical treatment,
past and future wage loss, damages for pain, suffering, and emotional distress. Further,
plaintiff may be able to recover punitive damages. If the injured person dies, his or her
survivors are entitled to recover full compensation for their economic losses that result
from the injured person’s death, as well as monetary damages which stem from the loss of
society, care, and comfort of the decedent.

What do I need to establish to prove punitive damages in a case in which the
defendant was driving under the influence?
First of all, punitive damages are
not recoverable in California in any wrongful death case. If your loved one has died, you
can only claim punitive damages if they survived for at least a few moments after the
collision that killed them. To recover punitive damages in an injury or a “survivor” action
against a person who was driving under the influence, you must prove that:

That the defendant voluntarily drank or took drugs to the point of intoxication/impairment
before they knew that they would be driving;

That the defendant was convicted of a felony under Civil Code Section 3245(d).

They were aware of the probable dangerous consequences of their conduct; and,

They willfully and deliberately failed to avoid those consequences.

 

Special settlement considerations in drunk driving cases? Whether or not
an insurance company wants to admit it, the jurors’ focus in a case in which the defendant
was driving under the influence will be on the reprehensibility of the defendant’s conduct
more than it will be on the extent of a plaintiff’s damages. Thus, a plaintiff should never
settle a case against a person who was driving under the influence for the same amount of
money that they would settle any other case. The case will always be worth more money than
a typical Drunk Driving Accidents or wrongful death case, and may be worth many more times
the usual value of the case, depending upon the seriousness of defendant’s misconduct.

Do I need an attorney to pursue my case against a defendant who was driving under
the influence?
Yes. You will need an attorney to help you establish the degree
of impairment of the defendant. Further, a skilled attorney will understand that you will
receive all of the benefit of the doubt that you will need in a case against a person
driving under the influence and will prepare the damage part of your case accordingly. This
will help you achieve a larger settlement or verdict than you would be able to achieve on
your own.

Elder Abuse in California

What is Elder Abuse? Elder abuse law in California largely focuses on the
“Elder Abuse and Dependent Adult Civil Protection Act (EADACPA)”. Abuse under an EADACPA
claim in a civil action includes “physical abuse, neglect, fiduciary abuse, abandonment,
isolation or other treatment with resulting physical harm or pain or mental suffering, the
deprivation by a care custodian of goods or services which are necessary to avoid physical
harm or mental suffering.”

Who is considered an “elder” under the law? Elder abuse protection applies
to any resident in California who is 65 years of age or older; “dependent adults” who are
defined as any person residing in California between the ages of 16 and 64 who has physical
or mental limitations that restrict his or her ability to carry out normal activities or to
protect his or her rights, and any person between the ages of 18 and 64 who is admitted to
a 24-hour healthcare facility, including general acute-care hospitals, psychiatric
hospitals, chemical dependency recovery hospitals and skilled nursing and intermediate care
facilities. Therefore, while in a hospital of almost any kind, an otherwise young, healthy
adult is entitled to protection under the Elder Abuse laws.

Who can bring an elder abuse lawsuit? The following people can bring an
action for elder abuse: an elder or dependent individual who is living; the elder’s or
dependent individual’s estate or successors-in-interest if the elder or dependent
individual has died; the elder’s or dependent individual’s family members if they witness
the abuse and the conservator or guardian of an incompetent elder or dependent individual.

What constitutes physical abuse under the Elder Abuse and Dependent Adult Civil
Protection Act?
The following acts are considered physical abuse: assault,
battery, assault with a deadly weapon, force likely to produce great bodily injury;
unreasonable physical constraint or prolonged or continual deprivation of food or water;
any type of sexual assault and battery; use of physical or chemical restraint or
psychiatric medication for punishment.

What constitutes neglect under the Elder Abuse and Dependent Adult Civil Protection
Act?
Neglect includes a failure to act reasonably in the care of an elder or
dependent adult. This would include failure to assist in personal hygiene and the provision
of food, clothing and shelter; failure to prevent malnutrition or dehydration.

Where does elder abuse most frequently occur? Under the law, elder abuse
can occur in any setting. However, most cases arise out of nursing homes that are
understaffed, and the staff that exist are poorly trained.

What does a plaintiff have to prove to win an elder abuse case? To be
entitled to the special remedies in an elder abuse case, the plaintiff must prove by clear
and convincing evidence that the defendant is liable for physical abuse, neglect or
fiduciary abuse and that the defendant has been guilty of recklessness, oppression, fraud
and malice in commission of the abuse.

What are the enhanced remedies under elder abuse statutes? The plaintiffs
in an elder abuse case are entitled to recover monetary damage for the elder’s pain and
suffering, even if the elder dies before trial. This makes elder abuse cases different from
any other Elder Abuse case where the right to recover damages for pain and suffering dies
with the plaintiff.Further, if the plaintiff prevails in an elder abuse case, he or she is
entitled to recover attorneys’ fees. This is a particularly significant element of elder
abuse cases because frequently the attorneys’ fee award can be higher than the actual
damage awarded to the plaintiffs.

What damages are recoverable in elder abuse cases? If the elder is still
alive, he or she can recover past and future medical expenses which would include increased
care expenses, past and future wage loss if there is any, and damages for past and future
pain and suffering. In addition, the elder can be awarded punitive damages if the
misconduct is severe enough. In cases where the elder has died, the survivors are entitled
to recover all of the above damages plus damages resulting from the loss of society, care
and comfort which would have been provided to them by the elder. Further, plaintiffs are
entitled to attorneys’ fees.

Is it important to perform a thorough investigation in elder abuse cases?
It is critical that the plaintiff’s attorney performs a complete and thorough investigation
in elder abuse cases, particularly cases against nursing homes. The investigation should
include obtaining evidence of the actual abuse to the plaintiff, and other patients at the
facility both during the time that plaintiff was in a nursing home and before. Further, a
thorough investigation should be done to determine whether or not any of the many statutes
regulating nursing homes had been violated; and, whether the nursing home had been cited
for violations to the plaintiff and other patients and whether the nursing home took
corrective action.

Do I need to retain an attorney in an elder abuse case? Yes. These cases
involve complex legal, factual and damage issues, and if you win you will be awarded your
attorney’s fees.

Will my elder abuse case settle out of court? Probably. A high percentage
of elder abuse cases settle at some time before trial.

Electrical Accidents

Who can sue for an electrical accident? Any person injured or the
survivors of a family member killed by an electrical accident can bring a lawsuit if the
accident was caused by the negligence or wrongdoing of another, or at least partially
caused by the negligence or wrongdoing of another. This is true whether the injured person
or deceased family member was a minor or an adult.

What are my remedies if I am injured or a loved one is killed by the improper
conduct of a utility company?
Because of the high risk of serious injury or
death from escaping electricity, a power company or person maintaining electrical wires
must use increased care proportionate to the danger. The electrical company has a higher
standard of care because of the known danger of electricity. You will be able to recover
for your injuries or death to a family member if you can establish that the utility company
violated the expected standard of care in its electrical operations.

My child was electrocuted when he came in contact with power lines. What must I
prove to be able to win my case against the power company?
You will have to
prove that the power company was negligent. You may be able to establish liability against
the power company if you can demonstrate that the power company failed to perform thorough
inspections of its lines and failed to keep them safe from natural deterioration,
foreseeable uses of the underlying or adjacent property, and changed conditions that made
the power lines hazardous. The same rules that apply to children apply to adults. However,
a power company will have to use extra care if it knows children play in the area of its
lines.

Are there special rules and regulations pertaining to power companies, and if there
are what is the affect of these regulations on my injury or wrongful death case?

Power companies are heavily regulated by local, state and federal governments. Regulations
include the necessity of establishing sufficient clearance of an electrical line above the
road, sufficient clearance of an electric line above the ground, maintenance of insulation
material; specified markings on poles carrying high voltage lines; and, duties to raise a
line once the power company knows or should have known that it was too low.If you can
establish that one of these regulations was violated in your case, then there is a
presumption under the law that the power company was negligent, which means that the power
company has the burden of proving it acted reasonably under the circumstances.

I was injured by a negligently maintained power line. However, the power company is
denying responsibility because they say I was injured due to the negligence of a
contractor it had hired to maintain the lines. The contractor does not have any
insurance or significant assets. What can I do?
You can sue the power company.
They have an absolute “non-delegable” duty to construct and maintain their power lines.
This means that they are responsible for the negligence of a contractor they hire.

My neighbor hired a contractor to do some work around electrical lines. I assumed
that the lines had been de-energized, but they were not. When I went to pick one up, I
was electrocuted and received severe burn injuries. Who can I sue for my injuries?

You can sue the power company, if they were advised that the work was going to be
performed, and you can also sue your neighbor and the contractor if they failed to post
sufficient warnings or take safeguards or other necessary precautions which led to your
injury.

What damages am I entitled to recover in an electric accident case? A
Plaintiff is entitled to recover damages for past and future medical treatment, past and
future wage loss, damages for pain, suffering, and emotional distress, and, if the
plaintiff can establish bad enough conduct on the part of the business or homeowner,
punitive damages (i.e. damages intended to punish the business or homeowner). If the
plaintiff dies, his or her survivors are entitled to recover full compensation for their
economic losses that result from the plaintiff’s death as well as emotional distress
damages which stem from the loss of society, care, and comfort of the decedent. If the
survivors can prove that the plaintiff lived for a period of time between the negligent act
and death, they can also bring an action for punitive damages.

Motorcycle Accidents

Who can sue for a motorcycle accident injury and death case? The
operator of a motorcycle and his/her survivors in a wrongful death case can sue for their
damages if any other party is at fault. The passenger on a motorcycle can normally sue a
motorcycle operator if the operator is at fault and/or any other person or entity who is
responsible for their injuries. Any other person injured by a motorcyclist, such as a
pedestrian, can recover damages against the motorcycle operator and any other responsible
party.

Who can be held responsible for injuries or death to motorcycle operators and
passengers?
Any person or entity that in any way causes a motorcycle accident
through his or her wrongful conduct will be considered to be at fault and held responsible
for the injury or death. This includes a wide array of potential defendants including other
vehicle drivers, product manufacturers, owners of dangerous private or public property,
repair shops and any other person or entity that contributed to the accident.

What if I was partially at fault for causing the accident? California is a
comparative fault state a person can sue for serious Motorcycle Accidents even if they are
partially at fault, as long as they can prove that one or more other parties are also at
fault. However, the amount of a plaintiff’s recovery will be reduced by the amount of their
fault. Therefore, if someone is awarded $5 million dollars in a serious Motorcycle
Accidents case, but are found to be fifty percent (50%) at fault, the recovery will be
limited to $2.5 million dollars. This is also true in wrongful death cases in which the
award is reduced by the percentage of decedent’s fault.As a motorcycle operator, you should
be aware that there is a general public prejudice against motorcyclists that can affect the
amount of fault attributed to a motorcyclist in any given accident. This is one of the
reasons why it is important to retain an attorney and experts skilled in motorcycle
accident cases who know how to deflect this bias against motorcyclists.

Is an investigation of my motorcycle accident case important? It is
critical. Since there is almost a presumption in the general public that motorcyclists
assume the risk for their own injuries and they are usually at fault for causing accidents,
it is essential that a quick and thorough investigation is performed to establish fault on
other responsible people or entities and to establish that the motorcyclist did little or
nothing to contribute to the accident.Investigation should consist of an examination of the
scene, an examination of the instrumentalities that were involved in the accident,
obtaining statements from witnesses and obtaining the reports from investigating agencies.
Of prime importance is maintaining the motorcycle and helmet in the exact condition they
were in at the moment when the motorcyclist came to rest after an accident.

Is insurance coverage an important issue? It may be the most important
issue in your case. If you are a motorcycle operator and did not have liability insurance
at the time of the accident, you will not be able to recover damages for your pain and
suffering. Thus, you will be limited to recovery of damages for medical expenses and wage
loss. However, passengers on motorcycles do not have to carry insurance to be able to
recover all of their damages.Further, since motorcycle accidents usually involve serious
injuries or death, it is important that the at-fault party have enough insurance coverage
to cover all of your damages. If you have purchased an uninsured or underinsured motorist
policy, that policy might help compensate you if the responsible parties are uninsured or
underinsured. One of the reasons why it is so important to do an investigation in a
motorcycle accident case is to make sure that all potential defendants are included in the
case which will increase your likelihood of obtaining full compensation for your injuries.

Are liability experts important for my case? Yes. Most motorcycle
accidents that result in serious injury or death will require the retention of accident
reconstruction experts and human factors experts. It is helpful if the plaintiff retains an
expert who specializes in motorcycles and motorcycle accidents. There are unique aspects of
motorcycle accidents that many general accident reconstruction experts do not understand.

Is it important to retain experts on the issue of liability and damages?Yes.
In addition, biomedical and biomechanical engineers can be helpful in proving that the
accident caused your serious injury or a relative’s death and other experts such as
doctors, vocational/life care experts and economists can also be useful at trial in
wrongful death or serious injury cases.

How long do I have after my accident to file my motorcycle injury case? A
Motorcycle Accidents and/or wrongful death action, under California law, must be brought
within two years of the date of the accident, if the accident occurred on or after January
1, 2003; and one year from the date of the accident if the accident occurred prior to
January 1, 2003.In cases against public entities, a claim must be filed against the public
entity within six months from the date of the accident. If the plaintiff is a minor, a
minor has until their 19th birthday to bring a case unless there is a government claim in
which a minor should bring the claim within six months of the accident, or one year at the
latest.

Will my motorcycle accident settle out of court? Yes. About 90 percent of
motorcycle accident cases settle; however, they can be more difficult to settle than other
motor vehicle cases because defendants and insurance companies are more willing to try
them, hoping that the public’s bias against motorcyclists will help them win the case or
hold down damages.

Is it important to retain an attorney for my motorcycle accident case?
Yes, if the motorcycle accident has resulted in a serious injury or death. Without an
attorney, there will always be an assumption that the motorcyclist was at fault and
evidence will be gathered by the other side to support that contention. You need to hire an
attorney to perform investigation and retain the right experts to prove your case and your
injuries. Further, through the litigation, an attorney will be able to cross-examine
witnesses against you and hopefully turn their testimony to your favor.

Nursing Home Negligence

What is Elder Abuse? Elder abuse law in California largely focuses on the
“Elder Abuse and Dependent Adult Civil Protection Act (EADACPA)”. Abuse under an EADACPA
claim in a civil action includes “physical abuse, neglect, fiduciary abuse, abandonment,
isolation or other treatment with resulting physical harm or pain or mental suffering, the
deprivation by a care custodian of goods or services which are necessary to avoid physical
harm or mental suffering.”

Who is considered an “elder” under the law? Elder abuse protection applies
to any resident in California who is 65 years of age or older; “dependent adults” who are
defined as any person residing in California between the ages of 16 and 64 who has physical
or mental limitations that restrict his or her ability to carry out normal activities or to
protect his or her rights, and any person between the ages of 18 and 64 who is admitted to
a 24-hour healthcare facility, including general acute-care hospitals, psychiatric
hospitals, chemical dependency recovery hospitals and skilled nursing and intermediate care
facilities. Therefore, while in a hospital of almost any kind, an otherwise young, healthy
adult is entitled to protection under the Elder Abuse laws.

Who can bring an elder abuse lawsuit? The following people can bring an
action for elder abuse: an elder or dependent individual who is living; the elder’s or
dependent individual’s estate or successors-in-interest if the elder or dependent
individual has died; the elder’s or dependent individual’s family members if they witness
the abuse and the conservator or guardian of an incompetent elder or dependent individual.

What constitutes physical abuse under the Elder Abuse and Dependent Adult Civil
Protection Act?
The following acts are considered physical abuse: assault,
battery, assault with a deadly weapon, force likely to produce great bodily injury;
unreasonable physical constraint or prolonged or continual deprivation of food or water;
any type of sexual assault and battery; use of physical or chemical restraint or
psychiatric medication for punishment.

What constitutes neglect under the Elder Abuse and Dependent Adult Civil Protection
Act?
Neglect includes a failure to act reasonably in the care of an elder or
dependent adult. This would include failure to assist in personal hygiene and the provision
of food, clothing and shelter; failure to prevent malnutrition or dehydration.

Where does elder abuse most frequently occur? Under the law, elder abuse
can occur in any setting. However, most cases arise out of nursing homes that are
understaffed, and the staff that exist are poorly trained.

What does a plaintiff have to prove to win an elder abuse case? To be
entitled to the special remedies in an elder abuse case, the plaintiff must prove by clear
and convincing evidence that the defendant is liable for physical abuse, neglect or
fiduciary abuse and that the defendant has been guilty of recklessness, oppression, fraud
and malice in commission of the abuse.

What are the enhanced remedies under elder abuse statutes? The plaintiffs
in an elder abuse case are entitled to recover monetary damage for the elder’s pain and
suffering, even if the elder dies before trial. This makes elder abuse cases different from
any other Elder Abuse case where the right to recover damages for pain and suffering dies
with the plaintiff.Further, if the plaintiff prevails in an elder abuse case, he or she is
entitled to recover attorneys’ fees. This is a particularly significant element of elder
abuse cases because frequently the attorneys’ fee award can be higher than the actual
damage awarded to the plaintiffs.

What damages are recoverable in elder abuse cases? If the elder is still
alive, he or she can recover past and future medical expenses which would include increased
care expenses, past and future wage loss if there is any, and damages for past and future
pain and suffering. In addition, the elder can be awarded punitive damages if the
misconduct is severe enough. In cases where the elder has died, the survivors are entitled
to recover all of the above damages plus damages resulting from the loss of society, care
and comfort which would have been provided to them by the elder. Further, plaintiffs are
entitled to attorneys’ fees.

Is it important to perform a thorough investigation in elder abuse cases?
It is critical that the plaintiff’s attorney performs a complete and thorough investigation
in elder abuse cases, particularly cases against nursing homes. The investigation should
include obtaining evidence of the actual abuse to the plaintiff, and other patients at the
facility both during the time that plaintiff was in a nursing home and before. Further, a
thorough investigation should be done to determine whether or not any of the many statutes
regulating nursing homes had been violated; and, whether the nursing home had been cited
for violations to the plaintiff and other patients and whether the nursing home took
corrective action.

Do I need to retain an attorney in an elder abuse case? Yes. These cases
involve complex legal, factual and damage issues, and if you win you will be awarded your
attorney’s fees.

Will my elder abuse case settle out of court? Probably. A high percentage
of elder abuse cases settle at some time before trial.

Pedestrian Accidents

If I am injured by a motor vehicle or a loved one is killed as a pedestrian, can I
sue the motor vehicle that hit me, or my family member?
Yes. As long as you
can establish that the motor vehicle driver was at least partially at fault, you are
entitled to bring a lawsuit.

What if I was partially at fault for the accident because I was walking outside of
a crosswalk or running across the street?
You can still bring a lawsuit as
long as the driver that hit you was also partially at fault. However, your eventual
recovery will be reduced by your percentage of fault.

If I am a pedestrian hit by a motor vehicle, is there anyone else I can sue other
than the motor vehicle driver?
Yes. Anybody whose fault contributed to the
accident that caused your injuries can be sued. This can include a public entity if a
crossing was in an unsafe condition, the company that repaired the brakes on the motor
vehicle that hit you if the brakes were repaired negligently, or any other entity or person
that contributed to your injuries.

If I am a pedestrian, does a motor vehicle driver owe any special duty or care
toward me under law?
It is well recognized that although pedestrians and
drivers are both charged with a duty to exercise ordinary care, the amount of care required
of the driver is greater, since the driver is driving a vehicle capable of inflicting
injury or death. Motorists have a duty of having their vehicle under sufficient control to
enable them to avoid injury to pedestrians.

As a pedestrian, what duty is placed upon me to avoid accidents?
Pedestrians are required by statute to obey traffic signs and signals. Therefore, every
pedestrian has the duty, before entering a street, to make reasonably careful observations
to ascertain traffic conditions to be encountered. Pedestrians should not begin or continue
their forward course across a street if they are aware of approaching vehicles.

Is a driver always at fault for an accident if the pedestrian is in or near a
crosswalk?
No. Although a motor vehicle driver is required to yield the right
of way to a pedestrian in a crosswalk, the driver is not required to anticipate that a
pedestrian may suddenly run out from the curb directly into the path of the driver’s car.

If my child has been injured or killed by a motor vehicle when he or she was a
pedestrian, what are our rights?
The law recognizes that greater care must be
exercised for the protection and safety of young children than for adults possessing normal
and mature faculties. The law recognizes that children’s conduct is unpredictable and one
operating a motor vehicle should anticipate their thoughtlessness and impulsiveness. The
presence of children itself is a warning of danger requiring an exercise of care for their
safety.Thus, a motor vehicle driver must exercise a greater degree of care when they know
or should know that small children are at play in the immediate area. A driver even owes a
duty to anticipate the presence of the children he cannot see. Thus, with the exception of
a case in which a child darts out in front of a vehicle and a driver has no opportunity to
stop and had no reason to anticipate the dart-out, you should be able to prevail in a case
against the vehicle driver.

What if I, or one of my family members, is injured or killed by an
uninsured/underinsured motorist while we were pedestrians?
An uninsured or
underinsured motorist policy will probably provide coverage for the injuries or death to
you or your family. Thus, you will be able to recover damages up to the amount of your
uninsured/underinsured motorist policy limit.

What damages are recoverable in pedestrian accident cases? Plaintiff is
entitled to recover damages for past and future medical expenses, past and future wage
loss, past and future pain and suffering, and if it is deemed that conduct is bad enough,
punitive damages (i.e., punishment damages against the defendant). If the pedestrian dies,
his or her survivors are entitled to recover full compensation for their economic losses
that result from the pedestrian’s death, as well as emotional distress damages which stem
from the loss of society, care, and comfort of the decedent. If the survivors can prove
that the pedestrian lived for a period of time between the negligent act and death, they
can also bring an action for punitive damages.

Personal Injury

How much do you charge to review a case? An initial appointment to discuss
the facts of a potential case is free. In those cases where it appears that the claim is
meritorious, we will advance the costs necessary to investigate and prosecute the claim. In
the event we undertake formal representation, any costs advanced are reimbursed to your
attorney at the time your settlement is disbursed, assuming we are able to make a recovery
on your behalf. Additionally, your attorney will charge a contingency fee paid at the
conclusion of your case.

What is a contingency fee? A contingency fee is a legal fee that is
dependent upon the successful outcome of a claim. Most attorneys who specialize in personal
injury claims utilize a contingency fee agreement because injured clients often cannot
afford to pay an attorney for service rendered on an hourly basis. The attorney will agree
to take a certain percentage of the settlement from which the attorney’s fees are paid. If
there is no recovery, we receive no fee. Contingency fees are open to negotiation between
the attorney and client. However, in certain types of cases, such as claims on behalf of
children, a maximum fee limits is established by statute. Contingency fee agreements must
be in writing signed by both the attorney and the client.

What is the time limit (statute of limitations) for me to make a claim for
injuries?
Different statutes of limitation govern different types of cases.
Under most circumstances, statutes of limitation for children are longer than those for
adults. Special statutes of limitation governing the filing of claims against public
entities may be as short as six months from the date of injury. Where injury does not
manifest itself for many years after an event or exposure (such as during a period of
latency after exposure to harmful chemicals) the statute of limitations may not run for
many, many years. Because the running of the statute of limitations is dependent upon the
facts of an individual case, if you believe that you have a claim where the statute of
limitations may be running, we urge you to contact one of our attorneys as soon as possible
to arrange for a free consultation. However, as a general rule, a personal injury and/or
wrongful death action, under California law, must be brought within two years from the date
of the accident, if the accident occurred on or after January 1, 2003; and one year from
the date of the accident if the accident occurred prior to January 1, 2003. In cases
against public entities, a claim must be filed against the public entity within six months
from the date of injury or death.

How much will I recover from a settlement or judgment? There is no formula
or standardized method for evaluating the likely settlement value or jury verdict potential
in a given case. Case value is case-specific. It depends upon factors including liability,
nature and extent of injuries, nature and extent of permanent disability, economic losses
(including lost wages and medical bills), disfigurement, embarrassment, and a host of other
considerations. While we can provide ballpark evaluations based upon results in trials and
settlements of similar cases, no precise method exists for predicting how much an injured
individual will recover in a given case.

Will my case go to trial? The majority of claims handled by our office
settle before trial. Statewide, approximately 8 out of 10 cases settle without court or
jury trial. However, because we cannot predict whether or not a case will settle without
trial, our attorneys prepare all cases in the same way, assuming that if a reasonable and
fair settlement cannot be reached, we are prepared to take the matter to trial on behalf of
our clients.

Do you handle cases for children? Much of our work involves claims on
behalf of clients under the age of 18. Special rules govern the prosecution of children’s
cases. Any settlements or judgment are subject to court supervision, and all costs and
expenditures must also be approved by a Superior Court judge. Special statutes of
limitation govern the prosecution of children’s cases. Because the statutes of limitation
are different whether the case is one for product liability, vehicular
negligence, injuries occurring in the birth process, etc., it is important to contact our
office as soon as possible to determine when a child’s statute of limitations expires.

What if I was hurt at work? Whenever a person is hurt at work they are
automatically entitled to the benefits of Workers’ Compensation insurance. In addition to
Workers’ Compensation, many times the right to bring an action against someone other than
your employer also exists. These are called “third party cases.” Prompt investigation of
third party cases is critical. If you were hurt at work and you believe it was the fault of
someone other than your employer, it is critical that prompt investigation be undertaken to
secure evidence, identify witnesses, and determine whether sufficient facts exist to
justify a claim against another person or entity.

What if I have a claim against a city, county, state or other government agency?
Claims against public entities are subject to the California Government Code. This code
imposes special administrative claim filing requirements, and provides statutory immunities
and other protections to government entities. CHAIN | COHN | CLARK has handled thousands
of cases against cities, counties, school districts, water districts, states, federal
government, federal government agencies, branches of the military, and other government
bodies. Because the claims filing period against state and municipal agencies is the
shortest of all statutes of limitation (180 days) it is very important that a person who
believes he or she has been injured through government action contact an attorney at once.

I was injured in a traffic accident by an uninsured motorist; what are my options?
Although California motorists are required to have insurance, the fact of the matter is
that there are still drivers on the road who do not have insurance. By law, all California
insurers must offer uninsured motorist coverage, and underinsured motorist coverage, to
their customers. According to a statutory scheme set forth in Insurance Code §11580.2,
insured motorists arbitrate with their own carrier when they are injured by an uninsured
motorist. The carrier then has the right to seek reimbursement (subrogation) from the
uninsured motorist. CHAIN | COHN | CLARK has settled and arbitrated
thousands of uninsured motorist cases and are well versed with the special requirements of
the uninsured motorist law.

Products Liability

If I am injured, or a loved one is killed by a defective product, who can I sue?
You can sue the manufacturer of the product. Besides the manufacturer, you can sue every
company that was in the marketing chain of the product, i.e., wholesalers, distributors and
retailers. Any repairer of the product may also be liable.

What products are covered under California product liability law?
Virtually every product is subject to California product liability law. This includes
everything from cars, toys, chairs, refrigerators, clothing, industrial machines, household
equipment, etc. (There are some limitations in cases against medical device manufacturers
and prescription drug companies.)

Isn’t it hard to take on a product manufacturer in a legal case? Yes.
Product manufacturers spend hundreds of thousands of dollars attempting to defend the
design and manufacture of their products. If they lose a case, it can have monumental
consequences for the manufacturer far beyond your case. Therefore, manufacturers will spend
whatever money needed to win. The only way that a plaintiff can be successful in most
product liability cases is to hire an attorney who has the resources and ability to take on
a large manufacturer.

If the product manufacturers spend so much money defending cases, how does a
plaintiff ever win?
It is not easy, but the law is on the side of victims of
defective products. California applies a “strict liability” standard to defective product
cases. That means that a plaintiff does not have to prove negligence to prevail. Liability
(fault) will be found if the plaintiff can prove that the product was defective and that it
caused the plaintiff an injury.

What constitutes a defective product under California law? A product may
be found to be defective because of a manufacturing defect, a design defect, or a warning
defect. If plaintiff can prove any one of these defects, he or she can win the case against
the manufacturer.

What is a manufacturing defect? A manufacturing defect exists if, when the
product left the manufacturer’s control, it differed from the manufacturer’s intended
result or from apparently identical products of the same manufacturer and the product was
used in a manner reasonably foreseeable by the plaintiff, but nonetheless caused plaintiff
injury.

What is a design defect? A design defect exists when a product is
manufactured exactly as the manufacturer intended, yet the product is defective because of
a design flaw. There are two tests to determine whether a design is defective. One is the
“consumer expectation test” which asks if the product performed as safely as an ordinary
consumer would expect. The second is the “risk benefit test” where the question is asked if
the inherent dangers of the design outweigh its benefits – in other words, can it be made
safer without significantly increasing product cost.

If the product contained a disclaimer, does the manufacturer still have a duty to
warn?
A product manufacturer cannot avoid a strict liability claim by placing
any type of disclaimer on the product. Disclaimers are unenforceable for the purposes of
product liability law. Further, a product that is not otherwise defective in manufacture or
design may still be considered legally defective if a suitable warning about its dangerous
propensities is not given or the manufacturer fails to provide appropriate safe use
instructions.

What damages can I recover in a defective product case? The injured person
is entitled to recover damages for past and future medical treatment, past and future wage
loss, damages for pain, suffering and emotional distress, and, if the injured person can
establish bad enough conduct on the part of the manufacturer, punitive damages (i.e.
damages intended to punish the business). If the injured person dies, his or her survivors
are entitled to recover full compensation for their economic losses that result from the
injured person’s death, as well as monetary damages which stem from the loss of society,
care, and comfort of the decedent.

Workers’ Compensation

How do I get Workers’ Compensation benefits? California workers who are
injured or become ill because of work have the right to receive Workers’ Compensation
benefits. Unfortunately, many workers find that they lose their rights, are denied the
benefits that they are entitled to, or learn that they aren’t getting all of their Workers’
Compensation benefits. As soon as a worker knows or suspects that they have a work related
injury or illness, he or she should immediately report it to the employer. Within one day
after the injury is reported, the employer must give the worker a claim form. Waiting to
report an injury or illness can cause a delay or denial of Workers’ Compensation
benefits.After the worker completes and turns in a claim form, if an injury causes
temporary disability, the first payment of temporary disability indemnity shall be made not
later than 14 days after knowledge of the injury and disability. In the case of a dispute,
the employer has the right to investigate the claim. If the claim is not denied within 90
days from the date the claim is filed, the injury is presumed compensable.

The injured or ill worker should never be off of work without a written off work order from
the treating doctor. It is important that the doctor advises the employer of the workers’
disability status.

A claim which is not filed until the worker has been notified that they are being
terminated is not valid under California law unless it can be shown that, before the notice
of termination, the injury had already been reported to the employer, or that there is
evidence of the injury in the employee’s prior medical records.

In California, the injured or ill worker has the right to representation by an attorney. A
specialist in the field of Workers’ Compensation law will guide a client through the maze
of statutes and regulations that control the case. Initially consulting a Workers’
Compensation attorney costs nothing. If an attorney takes the case, the fee will generally
be 9-15% of any settlement or award at the end of the case.

The insurance company is providing all benefits, should I wait to hire an attorney?
Unfortunately, many injured workers wait until it is too late, or a crisis has occurred,
before they consider hiring an attorney. The injured worker should consider the following
facts:

1. The insurance company’s interests are not the same as those of the injured worker.

2. The Workers’ Compensation system is highly complex, with many procedural requirements and
time limitations.

3. The insurance company has attorneys who represent their interests regarding the extent of
your Workers’ Compensation benefits.

If an injured worker retains an attorney, there is no charge for the initial consultation. The
attorney’s fee is 9-l5% of any settlement or award at the end of the case (the fee may be higher in
complex cases). If there is no settlement or award at the end of the case, there is no fee.
Therefore, the fee will not be any higher if the attorney is retained at the beginning of the case.

Injured workers usually consider retaining an attorney if they feel they are at a disadvantage in
dealing with the insurance company, or any time those benefits are being denied. An injured worker
should also consider having an attorney when they are going to have a need for continuing or
lifetime medical care, or if they are going to end up with a permanent disability. If a worker has
a permanent disability but does not have an attorney, they are required to select a doctor off of a
three-doctor panel. The claim will be resolved based upon that doctor’s report. Unfortunately, if
the worker does not agree with this doctor’s opinion, they do not then have the right to get a
second medical opinion. Essentially, the injured worker is stuck with that doctor’s opinion.
However, if an attorney represents the injured worker, the attorney can refer the worker to any
qualified medical examiner. The attorney can select a doctor who will listen to all of the symptoms
of the injured worker and prepare a report for the injured worker, not the company.

If the injury was caused by the negligence of someone other than the employer or a co-employee, an
injured worker should consult with an attorney as soon as possible following an injury. In that
case, an injured worker may have the right to bring a Workers Compensation action in addition to a
Workers’ Compensation claim. There are strict time guidelines in which a claim would have to be
brought. Merely because a person is continuing to receive Workers’ Compensation benefits does not
mean that the statute of limitations against the negligent party does not run. As a result, it is
extremely important that an attorney be consulted in those types of cases.

Should I change treatment to a doctor of my own choice? In most cases in
California, the employer, or insurance company, has the right to control the choice of
doctors for the first thirty days following an injury. Doctors selected by employers or
insurance companies are often selected because the doctors are biased toward the employer.
As a result, the injured worker should consider changing physicians to a doctor of their
own choice.This is especially important for all injuries occurring before January 1, 2003,
since the opinion of the treating physician is presumed to be correct regarding all medical
issues. The treating physician is required to give an opinion on the following issues

 

1. The type, length and amount of medical treatment needed.

2. The ability of the injured worker to return to work.

3. The degree of any permanent disability suffered by the injured worker, which determines
the amount of any settlement or award.

4. The ability to permanently return to the pre-injury occupation, which determines the
need for vocational rehabilitation.

As a result, it is important that an injured worker exercise the right to change treatment to a
doctor who can report on behalf of the injured worker rather than the insurance company. If the
injured worker does not know a suitable free choice physician, a Workers’ Compensation attorney
should be consulted for a list of suitable physicians in the appropriate medical specialty

 

How long will the employer be responsible for my medical treatment? There
is no time limitation on the provision of medical treatment. The employer or their
insurance company is required to pay for all of the medical treatment that is reasonably
necessary to cure or relieve from the effects of the industrial injury. This treatment is
required to be continued for as long as it is medically necessary. This can be for months,
years, or even for the rest of the injured workers’ life.The treating physician’s opinion
regarding the ongoing need for medical care is presumed correct for injuries before January
1, 2003. Therefore, it is extremely important that a physician who will be reporting for
the injured worker rather than for the employer treat the injured worker. If the injured
worker does not know a suitable free choice physician, a Workers’ Compensation attorney
should be consulted for a list of suitable physicians in the appropriate medical specialty.

I received a list of three doctors, should I select one? Beware of
three-doctor panels! When a worker who was injured after January l, l994 is released by a
treating doctor, the worker has the right to a medical evaluation to determine the amount
of his or her award or settlement. However, if the worker does not have an attorney, he or
she is required to select a doctor from a three-doctor panel. Unfortunately, the law
changed in l994 to preclude an injured worker from getting a second opinion if they
disagree with the opinion of the doctor from the three-doctor panel. If the panel doctor
says that there is very little wrong with the injured worker, and that the worker does not
need future medical care, the injured worker does not have the right to hire an attorney in
order to obtain a second medical opinion, as workers injured before l994 could.
Essentially, the injured worker is stuck with that doctor’s opinion.On the other hand, a
worker who hires an attorney can be sent to any Qualified Medical Examiner. The attorney
can select a doctor who will listen to all of the symptoms of the injured worker and
prepare a report for the injured worker, not the company.As a result of this change in the
law, injured workers may want to consider hiring an attorney if they have a permanent
disability, instead of playing “Russian roulette” with the three-doctor panel.

Can my employer terminate me while I am out on disability? The law in
California states that it is illegal to terminate or in any manner discriminate against a
worker as a result of their industrial injury. If such conduct occurs, the employee may
have their compensation increased by one half up to a maximum of $l0, 000.00, plus costs up
to $250.00, reinstatement on the job, and reimbursement for lost wages and work
benefits.Proceedings under Labor Code Section l32 (a) for these benefits must be instituted
by filing the appropriate petition with the Workers’ Compensation Appeals Board within one
year from the date of the discriminatory act or the date of the employee’s termination.
Failure to file the appropriate petition with the Workers’ Compensation Appeals Board
within the proper time period will most likely prevent an injured worker from pursuing such
a claim. Not every act by an employer is found to violate Labor Code Section 132(a). There
are several exceptions in which the employer’s actions against the employee are not found
to violate the law. For example, it has been found discriminatory if the employer’s conduct
was necessitated by the realities of doing business.The issue of whether an employer’s
actions constitute a violation of Labor Code 132(a) is a highly complex and technical legal
issue. Therefore, if an injured worker believes that he or she has been wrongfully
terminated or discriminated against, they should consult with an attorney to be advised as
to whether sufficient facts and evidence exists to successfully pursue such a claim.

What happens if my doctor releases me to light work, but my employer refuses to
offer light work?
Often a treating physician will release an employee to
limited work restrictions before the healing period is over. If the employer does not
provide work within the doctor’s restrictions, the worker is considered to be temporarily
disabled from their usual and customary occupation and disability payments will continue.If
the worker returns to modified work, but at less hours, or less pay than prior to the work
injury, the worker may be entitled to temporary partial indemnity on a wage loss basis in
addition to the workers’ earnings during this period.If the partially disabled employee
refuses an offer of modified work, the refusal may be the basis for terminating payments of
temporary disability indemnity.

If the doctor releases the injured worker to modified work on a permanent basis, then the
employer must either provide work within the restrictions, or provide vocational
rehabilitation benefits to assist the injured worker in finding other work in the labor
market.

What types of settlement are available? There are two ways to resolve a
Workers’ Compensation case.The first type of settlement is called an Award. The Award
differs from other types of legal settlements in that the insurance company may continue to
be responsible for lifetime medical care to cure or relieve from the effects of the
industrial injury. Therefore, injured workers who will need a significant amount of future
medical care, and are concerned as to who will be responsible for the medical bills favor
this form of settlement. In addition, the injured worker is entitled to a monetary award
for any permanent disability he or she may have. The monetary award is payable weekly over
a period of time. The greater the degrees of disability, the longer the payments
continue.The second way to resolve a case is called a Compromise and Release. In this form
of settlement, the injured worker receives a lump sum of money, but the case is over for
good, and the injured worker is not entitled to any future medical care. There can only be
a Compromise and Release if both the injured worker and the employer, or insurance company,
agree to settle for a specified amount. If there is no agreement, then the injured worker
is entitled to an award. In an award, the injured worker has the right to reopen the case
for new and further disability within five years from the date of the award.

An experienced Workers’ Compensation attorney can advise an injured worker as to which form
of settlement is appropriate under the circumstances. In the case of an Award, the attorney
works to make certain that the injured workers’ access to appropriate future medical
treatment is preserved, as well as obtaining a monetary award. In the case of a Compromise
and Release, the attorney negotiates the highest settlement amount possible.

What is the amount of the attorney’s fees in a Workers’ Compensation claim?
There is no charge for the initial consultation in a Workers’ Compensation claim.
Attorney’s fees are payable on a “contingency basis.” This means that if there is no
recovery, there is no fee. The attorney receives a percentage of the settlement or award.
If a person chooses to be represented by an attorney, the attorney’s fees will be deducted
from the settlement at the end. Attorney’s fees normally range from 9-15% of the benefits
awarded. The actual amount of the attorney’s fee will depend upon the complexity of the
case. In complex cases, the fee may be higher. The fee has to be approved by the Workers’
Compensation Appeals Board.If the attorney also represents the worker before the vocational
rehabilitation unit, there may also be a fee in connection with this representation. In
that case, the employer or insurance company generally withholds l2-l5% of the vocational
rehabilitation maintenance benefit as attorney’s fees. At the conclusion of the
rehabilitation process, the Workers’ Compensation Appeals Board judge determines whether
the attorney receives all, part, or none of the monies withheld.There are no other fees or
costs charged. If the injured worker makes a complete recovery, and receives no settlement
or award, there is no charge for the attorney’s services.

My doctor has declared my condition to be permanent and stationary. What does this
mean?
The phrase “permanent and stationary” is a legal term, which means that
the disability has reached the point of maximum healing. Disability reaches this state when
change is not reasonably anticipated under usual medical standards. However, a condition
may be permanent and stationary even when further deterioration is anticipated. Reaching a
permanent and stationary status does not end the right to receive medical care.When the
treating physician determines that an injury has become permanent and stationary, the
doctor is required to give an opinion regarding the following additional issues:

 

1. What medical treatment will be reasonably required in the future?

2. Can the injured employee return to his or her previous occupation?

3. What permanent work restrictions, if any, have resulted from the industrial injury?

Depending upon the answers to the above questions, the injured worker may then be entitled to an
award of compensation for permanent disability, an award of future medical treatment, as well as
the possibility of a vocational rehabilitation program to assist in returning to the open labor
market.

Is the injured worker restricted to one change of doctor? No. There has
been a general misunderstanding that an injured worker only has the right to one free
choice of physician. That is incorrect. The Court of Appeal ruled in September 1995, in the
case of Ralph’s Grocery Company vs. WCAB (Lara) that after 30 days from the date of injury,
the injured worker can have many changes of physicians, limited only by reasonableness.For
the first 30 days after an injury, the employer usually controls who will be the treating
physician. The confusion arose from Labor Code Section 4601, which allows the injured
worker one change of physician during the first 30 days after the injury. However, the
injured worker has the additional right to change physicians in Labor Code Section 4600.
This statute does not limit the right to change his or her treating doctor on more than one
occasion.The Court of Appeal confirmed that while the injured worker can only change
doctors once in the first 30 days, they are not restricted as to the number of changes
after 30 days. The employer or insurance carrier does not have the right to unilaterally
deny the request to change a physician. The Court of Appeals in the Ralph’s case upheld a
substantial monetary penalty against the employer for unreasonably refusing a second change
of doctor. The court stated that the employer’s remedy, if they believe the requested
change is unreasonable, is to allow the change, and then petition the Administrative
Director of the Division of Workers’ Compensation to regain control or to request a hearing
before the Workers’ Compensation Appeals Board.

 

Making a false or Fraudulent Workers’ Compensation claim is a felony subject to up to 5 years in
prison or double the value of the fraud, whichever is greater, or by both imprisonment and fine.

Wrongful Death

What is a wrongful death case under California law?A wrongful death case
can be maintained under California law if a person dies as a result of the negligent or
intentional misconduct of another. The case can stem from a death caused by any type of
misconduct including accidents,
or murder.

Who can bring a wrongful death case? California law designates certain
survivors who are entitled to pursue a wrongful death case. If the decedent was married,
the spouse at the time of death can bring a lawsuit. If the decedent also had children, the
children can also bring a lawsuit. If the decedent has no surviving spouse or children,
then the decedent’s parents are allowed to bring a lawsuit. Brothers and sisters are
entitled to bring a wrongful death action if the decedent has no surviving spouse,
children, or parents. If the decedent was not married, but had a domestic partner, the
domestic partner can file suit. If a young child dies, the parents are entitled to bring a
wrongful death action.The answer as to who exactly can bring a wrongful death action in any
given case can be complex; therefore, anyone considering a wrongful death action should
consult with an attorney.

What if my relative lives for a period of time after the incident and then dies?
This is called a “survival action.” Whether a person dies before or after a lawsuit is
filed, their estate is entitled to bring a survival action. In a survival action, the
estate is entitled to recover the economic losses incurred by the decedent as a result of
the incident giving rise to the lawsuit, but is not entitled to recover for the decedent’s
pain, suffering and emotional distress.The only exception to this rule is a case in which
the estate can prove elder abuse in which case damages for pain, suffering and emotional
distress of the decedent are

When must a wrongful death action be brought? A wrongful death action,
under California law, must be brought within two years of the date of the decedent’s death,
if death occurred on or after January 1, 2003; and one year from the date of decedent’s
death if the death occurred prior to January 1, 2003.In cases against public entities, a
claim must be filed against the public entity within six months from the date of death.

What if one or more of the survivors who are entitled to bring a wrongful death
case decide that they do not want to sue?
The law provides that all of the
potential wrongful death claimants must be joined in one case. However, the law allows
survivors who do not want to pursue the case to opt out of the case as long as there is an
assurance to the potential defendants that they are giving up their rights.

What if the decedent was partially at fault in causing their own death?
California is a comparative fault state. Therefore, even if the decedent was partially at
fault in the incident, the survivors can still maintain an action against any other person
or entity who was also at fault. However, the recovery of the survivors will be limited by
the percentage of the decedent’s fault. Thus, if the survivors are awarded $2,000,000 but
the decedent is found to be 50% at fault, the recovery will be limited to $1,000,000.

What economic damages are survivors are entitled to in a wrongful death case?
The survivors are entitled to the value of future monetary contributions from the
decedent and the value of any personal service, advice, or training that would have
probably been given if the decedent had lived. This is determined by projecting the amount
of money the decedent would have earned in the future but for their death and subtracting
from that the amount that the decedent would have “consumed” on their own expenses.

Are the survivors entitled to recover damages for their emotional distress?
Yes and no. Under California law, the heirs are entitled to recover compensation
for loss of love, companionship, comfort, society, affection, solace, or moral support.
However, they are not entitled to recover for grief and sorrow.

In a case with multiple survivors, how are damages divided? If the case
goes to trial, the jury awards one lump sum of damages to all survivors. The judge divides
up the award based on a number of factors including the financial dependence of the
survivor on the decedent and the closeness of the relationship between the heir and the
decedent. If the case settles, then generally the survivors have to decide themselves how
to divide the proceeds or they can seek the assistance of a mediator. It is sometimes wise
for the survivors to determine amongst themselves how they will divide up the proceeds at
the very beginning of the case so that problems do not arise later.

Do I need an attorney to pursue a wrongful death case? In almost every
wrongful death case, the potential plaintiffs should consult with an attorney. The law in
this area is complex as to who is entitled to bring a case and who is entitled to a
recovery, and will usually need to be sorted out by an attorney. Further, even in a case in
which the decedent was killed by a person with a relatively low insurance policy limit, it
is wise to seek the advice of an attorney because an investigation may reveal other
potential defendants who are responsible for the death.

Can the survivors hire separate attorneys? The individual survivors can
retain separate attorneys, and that is sometimes necessary. However, even in this
situation, the heirs should limit their internal hostility because it will ultimately drive
down the entire value of the case.

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