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Frequently Asked Questions: Asbestos
Frequently Asked Questions: Personal Injury
Article: Wrongful Death
When someone dies due to the negligent or wrongful acts of another, his or her surviving dependants or beneficiaries can claim monetary damages against the… » More …
Article: Asbestos
Between 1940 and 1979, asbestos was commonly used in insulation and other building materials. » More …
Article: Slip and Fall Accidents
The National Center for Injury Prevention and Control estimates that in 2004 alone, more than eight million people were injured in slip-and-fall accidents. » More …
When someone dies as the result of the negligence or wrongful acts of another individual, company or entity, that person's surviving family, beneficiaries or dependents may bring a "wrongful death" action against the wrongdoer for damages that they have incurred as a result of the death. The person who died is typically referred to as the "decedent."
The damages available to the survivors in a wrongful death action generally cover the loss of support and services of the decedent, lost prospect of inheritance, medical and funeral expenses, and interest from the date of the death. Damages are determined based on a number of factors, including the decedent's age, character, condition, earning capacity, life expectancy, health and intelligence. A jury can consider the decedent's earnings at the time of death and potential future earnings based on the other factors. The determination can become very complicated, and despite a jury's finding of an appropriate damages award, the judge can usually adjust it up or down for a variety of reasons. If you believe you have a wrongful death claim, be sure to hire a knowledgeable attorney with particular experience handling wrongful death cases because he or she will understand how to maximize your damages.
While a wrongful death action is an action brought by the decedent’s survivors to recover for injuries they have suffered as the result of the death, a "survival action" is brought by the decedent himself. The actual plaintiff is the personal representative of the decedent's estate, who stands in the decedent's shoes to bring the action. A survival action enables the decedent (actually, the decedent's estate) to recover for pain and suffering that the decedent may have suffered due to the defendants' negligence or wrongful conduct prior to the decedent's actual death.
Every legal cause of action is limited by a "statute of limitations" -- a time limit within which you have to file a legal claim or forfeit your right to do so. The limitations period begins to run in wrongful death cases when the plaintiff discovers or should have discovered the connection between the defendant's conduct and the decedent's death. Plaintiffs are expected to use "reasonable diligence" to discover this connection.
Yes. Even if the decedent never held a job, the contribution that person made to the family would be given a value. For example, in the wrongful death case of a stay-at-home mother who never worked, her contribution to the home and family in terms of services, guidance and nurturing, would be assigned a value for purposes of determining damages.
Yes, although the damage awards in these cases are typically not as large as the damages awards in cases where working adults or parents have died. An elderly person typically has a much shorter life expectancy and, especially if they have retired, may not have a high earning capacity. Though a child has a much longer life expectancy, their potential earning capacity is largely unknown and therefore much harder to quantify.
Several types of injuries can result from exposure to dangerous levels of asbestos. Asbestosis is a non-cancerous but progressive injury that occurs when asbestos fibers are inhaled, causing scarring on the lower lobes of the lungs. The scar tissue prevents full and proper functioning of the lungs, and can get worse -- leading to disability and even death -- if not properly monitored and treated. There is no cure for asbestosis.
Mesothelioma is a painful, aggressive disease in which the cells of the membrane that protects many of the body’s organs become abnormal and start dividing uncontrollably. This cancer often starts in the lining of the lungs, but it is difficult to control and can metastasize to other areas of the body quickly. Because Mesothelioma often remains dormant for many years, by the time it is diagnosed, the individual usually has a very poor prognosis -- typically less than a year to live.
Asbestos is a known human carcinogen, and its exposure has also been linked to cancer of the lung, throat, esophagus, colon, kidney, larynx, gall bladder, and pancreas. In fact, people who have been exposed to asbestos are seven times more likely to develop lung cancer than those not exposed.
Anyone who was regularly exposed to asbestos has the risk of developing an asbestos injury. Of primary concern, are people who worked in the factory, railroad, mining, automotive, building and shipyard industries prior to 1980. Workers in plumbing, steel, insulation and electrical industries likely inhaled asbestos fibers. And because those workers brought home those fibers on their clothes and shoes, their family members are at risk as well.
Plaintiffs in asbestos cases are people who have suffered some injury as the result of asbestos exposure, and sometimes their loved ones as well (if there is a loss of consortium claim, for example). If the victim of asbestos exposure has passed away, the plaintiffs are usually his or her family members.
Defendants can include any and all parties who might be responsible for the asbestos exposure, including employers, asbestos manufacturers, asbestos sellers, asbestos installers, landlords, and more. In some notable cases, plaintiffs have included dozens of defendants, any or all of whom may be responsible for the exposure. It is important to include all potentially liable parties, because some asbestos companies declared bankruptcy after asbestos litigation became more prevalent. A good asbestos attorney will thoroughly investigate your case and find all potential defendants in order to maximize your ability to recover full compensation for your injury.
Yes. Asbestos alone can cause lung cancer. If you smoke now or smoked in the past, and you have been diagnosed with lung cancer, asbestos may also be a cause of your lung cancer. The combination of asbestos and tobacco significantly increase your risk of developing lung cancer.
Note that only asbestos, not smoking, causes asbestosis and Mesothelioma. If you have been diagnosed with either asbestosis or Mesothelioma, it was caused by asbestos, not by your smoking.
Immediately. Once you are diagnosed with an asbestos injury in California, you may only have one year from the date of that diagnosis to file a lawsuit, and you need to give your asbestos attorney time to properly investigate your claim so that it maximizes your chances of full compensation.
A "slip-and-fall" or "trip-and-fall" accident occurs when someone slips, trips or falls as the result of a dangerous or hazardous condition on someone else’s property -- residential or commercial, public or private, indoors or outdoors.
The condition that causes the slip-and-fall accident can be anything from ice or snow to darkness, from an obstruction to poor floor conditions. Property owners are responsible for injuries that occur on their property as the result of dangerous or hazardous conditions that they knew about, or should have reasonably known about. For a property owner to be liable, it must have been foreseeable that his negligence would create the risk or danger at issue.
The hazard may be obvious (like broken sidewalk) or not (a water spill on a floor or a partially covered hole); it can be somewhat permanent (like a pothole) or temporary (like a grocery store spill). Generally, property owners are expected to know about and be responsible for permanent conditions. For temporary conditions, like floor spills, the owner’s liability will depend greatly on how long the condition was there before the accident happened.
Property owners defending against slip-and-fall lawsuits may claim that the condition was temporary and so new that they could not have known about it or prevented the injury. They may also claim that the victim herself was negligent, intoxicated or otherwise failed to pay reasonable attention to care for her own safety – people are generally expected to be aware of and avoid obvious dangers.
If you are injured on someone else's property, the property owner and/or tenant may be liable for your injuries – you should consult with an experienced injury attorney to assess your legal rights and options.
Sometimes slip-and-fall victims are uncomfortable with making a damages claim against the property owner because he is a friend or acquaintance. But damages for slip-and-fall accidents are almost always paid by the property owner’s or tenant’s insurance company under their homeowners insurance policy or other property insurance coverage.
Victims involved in slip-and-fall accidents need to be especially careful when dealing directly with an insurance company. Do not give any recorded statements to the insurance company without first consulting an attorney. Do not admit any possibility of fault on your part (such as saying, “Well, I am really clumsy.”). Do not sign any document that an insurance company gives you without first reviewing it with an attorney – by signing it, you could be waiving any right you have to seek future compensation should your injury prove more serious than you think.
The damages available to slip-and-fall victims vary tremendously depending on the facts and circumstances of the accident, the seriousness of the injury, and many other factors. At trial, many of the damages available are up to the subjective opinion of a jury, so they can vary greatly depending on the facts, the victim, the defendant, the lawyers, and the jury itself. There are sometimes legal limits on the amount of some types of damages victims can get, and insurance companies will generally pay no higher than their policy limits.
Damages that may be available to a victim include the following:
- Lost past and future wages
- Pain and suffering
- Medical expenses and hospital bills
- Lost opportunities (like the loss of a promotion that the victim would have gotten if he had not been injured)
- Future medical expenses, such as the cost of rehabilitation or home care
- The cost of accommodating your injury (such as making your home wheelchair accessible)
- In cases of an egregious, known problem that should have and could have been corrected prior to the injury, punitive damages may also be available.
The state workers’ compensation system covers most workplace injuries resulting from slip-and-fall accidents on the job. Those systems generally prevent you from suing your employer for mere negligence outside of the workers’ compensation system. However, if your slip-and-fall occurred due to the acts of a third party, such as a delivery company, you may have a claim against that third party. You should consult with a slip-and-fall attorney to review your potential claim.
Medical malpractice is an act of professional negligence by a health care provider. In medical malpractice cases, the health care provider (doctor, nurse, intern, etc.) failed to follow the accepted standard of care or practice in some way, causing injury to the patient. Not every negative outcome of medical treatment equals malpractice - but if the health care provider failed to follow the standard procedures, that may lead to a malpractice claim.
Claims of medical malpractice practice come in several different forms, including the following:
- Surgical negligence: Performing an unnecessary or incorrect surgery, or failing to properly perform the required surgery
- Medication/treatment negligence: Prescribing or giving the wrong medication or treatment for a medical condition
- Diagnostic negligence: Failing to diagnose, or misdiagnosing a disease or medical condition
- Unreasonable delay: In treating a diagnosed medical condition
- Nursing negligence: Lack of quality and prompt attention in nursing care
- Oral/ dental surgery negligence: Performing wrong or faulty dental work
Every patient has a legal and ethical right to determine and direct what happens to her body, and, as a result, every physician has the duty to involve the patient in her health care by providing fully informed choices about healthcare alternatives. A patient who gives "informed consent" for a particular choice of healthcare has been fully informed of: the nature of the decision or procedure proposed; the reasonable alternatives to the procedure; and the relevant risks, benefits and uncertainties related to the patient's alternative choices. The information should be given to the patient in language that the patient can understand. If the patient is given this information, is competent to make a decision and understands the information, then her acceptance of a particular choice of treatment based on this information constitutes informed consent."
Not at all. Health care providers are not free to commit medical malpractice just because the patient signs a consent form. Even though consent forms show a patient's understanding that certain risks and complications may result from a given treatment or operation, a health care provider must still meet the accepted standard of care related to that treatment or operation. If you believe your health care provider failed to meet the appropriate standard of care, regardless of whether you signed a consent form, you should consult with an experienced medical malpractice attorney to help determine whether you have a viable medical malpractice claim.
A victim of medical malpractice can seek any or all of the following:
- The out-of-pocket cost of medical bills and expenses
- Loss of income
- Pain and suffering
- Loss of pension or other relevant benefits
- Debilitating emotional stress
- Disability
- Disfigurement
- Inconvenience
- Loss of consortium (for the spouse of the injured person)
- Wrongful death (if the patient died as the result of malpractice)
California places a cap, or limit, on the damages a medical malpractice victim can get for damages called “non-economic damages” – damages that are not related to losses that can be measured in dollars with certainty. Non-economic damages include damages for pain, suffering, inconvenience, physical disability, and disfigurement. An experienced, knowledgeable medical malpractice attorney should understand this limit and know how to work with it to maximize your recovery.
If you think you or a loved one has been the victim of medical malpractice, you should consult with an attorney as soon as possible. In California, adults have only one year from the date that they discover the medical negligence to file a lawsuit, with a maximum of three years from the date of injury in most cases. There is a slightly more flexible timeframe when the medical malpractice victim is a child. Nevertheless, because of the short time frames you have to file lawsuits in California, you should consult a qualified and experienced attorney as soon as possible.
Dog bite laws vary from state to state. In states that have no formal dog bite law, it is often said that the "One Bite" or "One Free Bite"rule applies. Generally speaking, that means that if the dog had previously bitten anyone, then the dog’s owner is strictly liable for any subsequent bites. However, if the dog had not previously bitten, the court will consider whether the dog’s owner had any reason to believe that the dog had a propensity to bite or injure anyone - if so, the dog's owner may be liable even if he had never bitten anyone. Because most states, including California, have adopted specific dog bite statutes, the “one free bite” rule is the exception rather than the rule in most states.
California’s dog bite statute (California Civil Code 3342) holds a dog owner liable for any damages to anyone bitten by the dog, regardless of "the former viciousness of the dog or the owner’s knowledge of such viciousness"; In other words, in California, no dog gets a free bite - that first bite can be the basis of automatic civil liability. A responsible dog owner is expected to make sure that his dog does not bite anyone. Of course, if the dog has previously exhibited vicious behavior, or if the dog’s owner knows that his dog has violent tendencies, the dog's owner will be strictly liable for damages caused by his dog. Furthermore, in California, a dog owner can be liable for any damages (not just bite-related) caused by his dog if the dog owner was negligent. For example, if the dog owner failed to control his dog or violated a leash law, and those failures resulted in the dog causing some damage, the dog owner may be found negligent and have to pay for the damages caused by his dog.
A dog bite victim can get money for all of the following:
- Future medical treatment for future surgeries and treatments, such as those for scar reduction;
- Medication;
- Loss of earnings from work or the victim’s business due to the injury;
- Property damage, such as torn clothing;
- Future disability;
- Pain and suffering;
- The cost of psychological counseling or therapy to help the victim overcome emotional trauma resulting from the attack;
- Other damages directly caused by and related to the incident.
If you have been the victim of a dog bite, you should consult with a dog bite attorney to determine what damages might be available to you and your family.
Even though the dog’s owner is technically liable for damages, in most cases, the dog owner has an insurance policy that covers damages from dog bite incidents. For example, the majority of dog bites occur on the dog owner’s property, so the dog owner's homeowner's or renter's insurance policy most likely covers all damages from the incident. If the incident involved a car (for example, the dog and victim were both in the car), an auto insurance policy may apply. There are only a few instances in which the dog owner may have to pay damages out of his own pocket - if the insurance amount is not high enough to cover the damages, if the dog owner had no applicable insurance, or if the dog owner acted maliciously and intentionally caused the injury.
In some instances, an individual who is not the dog owner may be found liable for injuries resulting from a dog bite if their negligence contributed to the injury. For example, if a landlord knows that his tenant has a dog, but fails to keep the property's gate or fence in repair, allowing the dog to escape and injure someone, the landlord might be liable for negligence. The landlord also might be liable if he knows that his tenant has a dangerous dog on the property and does nothing about it. To determine who might be liable for your injuries, consult a dog bite attorney.
Sexual harassment is unwelcome sexual conduct that affects the victim's employment, unreasonably interferes with their work environment, or creates an intimidating, hostile, or offensive work environment. Sexual harassment includes requests for sexual favors and unwelcome sexual advances, and depending on the circumstances, it can also include derogatory or inappropriate comments, dirty jokes, and inappropriate or embarrassing pictures, posters or cartoons. Both men and women can be the harasser or the victim of sexual harassment - victims may be anyone affected by the offensive conduct, not just the person targeted by the harassment. Although sexual harassment is primarily discussed in terms of the workplace, it also commonly occurs in school environments (from preschool through college).
Sexual harassment is illegal under both federal law and California state law. Title VII of the Civil Rights Act of 1964, a federal law, strictly prohibits two kinds of sexual harassment - "quid pro quo" harassment and "hostile work environment" harassment. Title VII applies to companies with more than 15 employees. In California, sexual harassment is prohibited by the Fair Employment and Housing Act ("FEHA"), which applies to employers who employ more than one person.
The general term "sexual harassment" includes inappropriate sexual conduct, as well as gender harassment and discrimination, sexual orientation harassment and discrimination, same sex harassment and discrimination, pregnancy discrimination, retaliation for reporting harassment, and more.
There are two main types of sexual harassment - "quid pro quo" and "hostile work environment" harassment. "Quid pro quo" harassment takes place when a supervisor or someone else with authority over your job demands sexual favors or contact from you in exchange for promoting, hiring or retaining you. It may be "express" - when the supervisor says "If you have sex with me, I will make sure you get a raise" - or "implied" from the supervisor's unwelcomed physical conduct such as touching or fondling.
"Hostile work environment" harassment occurs when the inappropriate or conduct in your workplace (whether it comes from a supervisor or not) unreasonably interferes with your work environment or creates an offensive or intimidating work environment. This may include being the subject of sexually-charged jokes or pranks, being grabbed or whistled at, being propositioned, being subjected to pornographic pictures or profanity, and more. In order to create a hostile work environment, the conduct does have to occur more than once and it does have to be unwelcome.
In 2007, the EEOC received 12,510 charges of sexual harassment - 16% of those were filed by men (11% of claims were men complaining about sexual harassment by a female supervisor). That same year, the EEOC resolved 11,592 sexual harassment charges, recovering $49.9 million for the victims of harassment, not including compensation victims received through litigation. Surveys have revealed estimates that between 40% and 60% of women are sexually harassed in the workplace in the U.S.
In California, there are numerous legal options available to victims of sexual harassment in the workplace, including: filing a complaint with the U.S. Equal Employment Opportunity Commission (EEOC), filing a claim under the U.S. Fair Employment Practices (FEP) statute, filing a claim with the California Department of Fair Employment and Housing (DFEH), mediation, filing a common law lawsuit directly against the responsible parties, and more. There are strict timelines that apply when filing any of these claims - it is important to take action as soon as possible to protect your rights. An experienced sexual harassment attorney can explain your options to you and help you determine the best legal option for your situation.
If you prove that you were the victim of unlawful sexual harassment, you are entitled to legal remedies that would put you in the same position you would have been in had the harassment never happened. Money damages might include compensation for lost wages or other job-related losses (such as loss of promotions or other favorable employment status and benefits you did not get because of the harassment), damages for pain and suffering, and/or attorneys' fees and costs. Other remedies might include a court order to stop the harassment, return you to your job, promote you, give you a raise, and/or order the employer to change its practices or policies. You may also be entitled to punitive damages against the company if the company authorized or ratified the conduct, or if it was undertaken by the managing agent, officer or director of the company. An experienced sexual harassment attorney can help ensure that you get the maximum remedies available for your situation.
If you feel that you are the subject of sexual harassment and/or that your work or school environment is offensive, intimidating or hostile, you should take the following protective steps:
1) Clearly inform the harasser that the conduct is unwelcome and must stop. This is necessary to ensure that the harasser does not mistakenly believe that you appreciate and welcome his or her conduct.
2) If the harassment continues, and if appropriate or available, use any complaint mechanism or grievance system your employer has in place. If you fail to complain to the employer about a co-worker's conduct, the employer may be able to escape liability by claiming he or she was unaware of the situation.
3) Record every fact you can in as much detail as possible - dates, times, places, potential witnesses, and any words used or actions taken by the harasser. These notes will be critical help for you if you have to later file a claim or lawsuit.
4) Contact the local EEOC (federal) or DFEH (California) office. It is always in your best interest to consult with an experienced attorney before contacting the EEOC or state agency, however, to ensure that you are fully aware of your rights and options.
California law requires anyone who operates a motor vehicle on public streets or highways to maintain some form of financial responsibility in case they are responsible for an accident - for most drivers, that takes the form of automobile insurance. However, about one-third of drivers on California roads today are uninsured or inadequately insured. Almost 50% of two-car accidents in the state are caused by uninsured or underinsured drivers, many of whom drive unreliable or unsafe cars and/or have unsafe driving habits.
If you are injured in an accident caused by an uninsured or underinsured motorist, that motorist may not have the financial ability to compensate you for all of your losses. However, if you have your own insurance, you can still be compensated. Almost every insurance policy sold in California contains uninsured/ underinsured motorist coverage to protect policyholders from losses they may sustain in these circumstances. This insurance coverage protects you and all members of your family, whether you were in a car, a pedestrian, on a bicycle, or even a bystander. To determine whether making a claim under this coverage is your best avenue to obtain compensation, consult with an experienced injury attorney to review all of your options.
If you have been injured in a motor vehicle accident, you should seek medical treatment as soon as possible. Of course you need to discover the scope and seriousness of your injuries and make sure that you get prompt and proper treatment for those injuries. Even something that seems small - a sore neck or back, for example - could be symptomatic of a larger problem. It is always best to let a doctor assess your condition. Also, if you do end up filing a claim for your injuries against another party, you will need documentation of your injuries and your efforts to get treatment.
Other than seeking medical treatment, you should try to take pictures of your vehicle, the other vehicle (if you can), the location where the accident took place, and the injuries that you and/or your loved ones sustained. Finally, contact a qualified personal injury attorney to make sure that you are aware of all of your legal rights and options.
If you have been injured in a car accident, parties other than an at-fault driver might share responsibility for your injuries. For example, if either of the vehicles involved had a defect that caused or worsened the accident, the vehicle manufacturer might be liable for your injuries. Any party who created dangerous driving conditions (such as leaving debris in the roadway) that caused or contributed to the accident may share liability. The California "dram shop" act holds responsible a business that sold alcohol to an obviously intoxicated minor who subsequently caused the accident. An experienced personal injury attorney will seek out all possible responsible parties to maximize your chance of full compensation for your injuries.
Even though you pay the insurance companies for coverage, they are still in the business of making money... they are not always in the business of making sure you get all the compensation you deserve for the full scope of your losses. If you need to make an insurance claim, proceed with caution. Anything you do or say when communicating with the insurance company may greatly impact the compensation you receive. Before you accept any settlement or sign any documents from an insurance company, consult with an experienced attorney to be sure you understand all of your legal rights and options. Your acceptance of a check or signature on a document from an insurance company may mean that you are permanently giving up your right to make a claim or sue the company later if you need additional medical care or miss more work than anticipated.
People who have been injured in motor vehicle accidents may be able to seek compensation for medical bills, future medical expenses, lost earnings, property damage related to the accident, pain and suffering, and other losses directly related to the accident. If your loved one suffered a wrongful death in an accident, additional compensation may rely on a detailed evaluation of his or her projected lifetime income, usually determined through expert analysis. Each case is unique, however, and an experienced attorney will review the facts and circumstances of each accident in order to help you determine what amount of compensation you should seek.
If you think you have been injured by a defective product, it’s important to seek the advice of experience legal counsel as soon as possible. Every jurisdiction has a “statute of limitations” – a time limit on how long you have to file a lawsuit after an injury occurs.
Though the statute of limitations usually begins to run from the time of the injury resulting from the defect, most states have a “delayed discovery” rule, which makes the statute begin running from the day the injury was “discovered.” This is important in cases where the injury may not be immediately obvious, like in cases involving exposure to asbestos, when the injury appears long after the exposure.
To find out about recent recalls, go the website of the Consumer Product Safety Commission at www.cpsc.gov. To learn more about product safety, the Food & Drug Administration website, at www.fda.gov, is a helpful resource.
Most importantly – if at all possible -- preserve the product after the accident without altering or changing it in any way. Immediately get the product to your attorney who can preserve it and have an expert evaluate it. If the product is not properly preserved, if it has been changed from the time of the accident, or if random people have handled it without following proper preservation standards, your right to compensation could be affected.
You should also gather together every document or piece of information you have on the product, from sales receipts to instruction manuals, as well as medical bills, wage records and other documents showing your damages. Your attorney will need all of these documents to present and support your claim.
Of course, you should consult with an experience product liability attorney as soon as possible. An attorney can evaluate your claim and give you instructions on the preservation of the product and your records. Also, the attorney will advise you about any legal time limits may prohibit your claim if it is not brought promptly.
Defendants in product liability cases have a few predictable arguments they can assert in their defense. The most common are:
1) That the product was not defective. They will hire experts to testify that the product was not unreasonably dangerous.
2) That the plaintiff’s injury was not caused by the defect, but by something else. They will likely investigate your medical and personal history as well as the circumstances of the accident to determine other possible causes of the injury.
3) That the injury was the plaintiff’s own fault, and the plaintiff should not be able to recover for her own negligence.
4) That the injury happened because the plaintiff was not using the product in any way that the manufacturer intended or could have reasonably foreseen.
California law says that every single business in the “chain of commerce” responsible for getting the defective or dangerous product to consumers can be held liable for injuries resulting from the defect. This includes component manufacturers (if that component caused or significantly contributed to the defect), product or assembling manufacturers, wholesalers, dealers and retailers.
Typically, product liability claims only apply to new products, so sellers of used or second-hand products are generally immune from these claims. However, if dealers of used goods offer warranties, guarantees or make representations that the product will work “like new,” there may be liability. Consult an experienced attorney.
Just like in other personal injury cases, if a product liability plaintiff proves her case, she will be entitled to money damages, which might include:
- Past, present and future medical bills that you incurred as a result of the injury caused by the defect
- Reimbursement from past, present or future income lost as a result of the injury caused by the defect
- Pain and suffering you experienced as a result of your injury
- If you are married and the injury has affected your relationship with your spouse, both you and your spouse may be entitled to “loss of consortium” damages
- Property damage relating to the injury
- Compensation for wrongful death – a special calculation applies when someone is wrongfully killed as the result of a defective product. If this applies to you, it is critical to obtain an attorney who is experienced in both product liability claims and wrongful death actions.
- Punitive damages – if the defendant’s conduct was so awful that the courts want to deter the defendant and other from ever repeating it, the court may award a plaintiff punitive damages to punish the defendant. Punitive damages are not available in every case, and many jurisdictions are placing strict limitations on the ability to obtain punitive damages.
If you have been harmed by a defective product, consult with an experienced attorney who can analyze your case and help determine what damages you might expect to recover if you successfully pursue your claim.
When filing a product liability claim against the manufacturer or seller of a defective product there are three main points a prospective plaintiff must prove to establish a product liability claim: 1) that the product is defective; 2) that the defect existed in the product when that product entered the marketplace; and 3) that the Plaintiff’s injury was caused as a direct result of the defect in the product. If the injury was not caused by the defect, then there is no valid defective products claim.
A plaintiff will also need to prove the extent of any damages he or she suffered as the result of the defect. A personal injury attorney who specializes in product liability claims will understand how to successfully prove these elements on your behalf.
A “defective product” is one that causes some injury as a result of a flaw or problem in the product, its labeling, or its predictable use. To be considered “defective,” a product must be “unreasonable dangerous” for some reason, meaning that it was dangerous beyond what an ordinary consumer would expect. A consumer is expected to know and understand that some products (guns, knives, power tools) are dangerous, but if an injury occurs when even those products are used in an ordinary and predictable way, that may be the basis of a product liability claim.
Any manufactured product can be the basis of a product liability claim -- from brake pads to breast implants … even fast food. The key is proving that the product was defective when it entered the market and that defect caused the injuries to the victim. If you have any question about whether a product that injured you might qualify as defective, contact a personal injury attorney who specializes in defective products claims.
The most important thing any adult can do upon disclosure by a child of a sexual abuse offense is to provide an immediately supportive environment - one that demonstrates to the child that you take them seriously and seek to calm, comfort and protect them. Children who receive negative, doubting or unhelpful reactions upon disclosure show significantly worse psychological damage resulting from the abuse. Although it is often highly uncomfortable to hear the accusations, it's critical for the child's wellbeing to respond effectively and ensure that the child feels supported and protected. Your next step should be to seek help from a guidance counselor, family therapist, law enforcement, a member of the clergy, an attorney... anyone you feel comfortable entrusting this information and the safety of your child.
Unfortunately, child molestation can have traumatic short- and long-term affects on its victims. The psychological effects include clinical depression, post-traumatic stress disorder, dissociative and anxiety disorders, eating disorders, poor self-esteem, somatization (a disorder in which the individual complains of physical symptoms that have no organic basis or explanation), neurosis, sexualized behavior, and school or learning problems. People who were sexually abused as children have a high likelihood for substance abuse, destructive behavior, criminality and suicide.
The risk of psychological damage is greater if the abuser is a relative, if the abuse involved penetration or attempted penetration, or if threats or force are used.
Children are also likely to suffer physical harm from sexual abuse, including infection, sexually transmitted disease, lacerations, and even damage to major internal organs. There have been cases in which young children have died as the result of trauma to the genitals and rectum and sexual mutilation. Numerous studies show that child sexual abuse also has a notable negative impact on brain functioning and development in its victims.
The vast majority of perpetrators are family members or close family acquaintances. Studies show that 30% of sexual abuse offenders are relatives of the child, such as often fathers, uncles or cousins - father-daughter and father-stepdaughter sexual abuse is the most common form of incest. About 60% of child molestation offenders are family acquaintances such as friends of the family, babysitters, or neighbors. Strangers are responsible for child sexual abuse in only about 10% of cases.
Most child sexual abuse is committed by men; women commit about 14% of offenses reported against boys and 6% of offenses reported against girls. Most child sexual abuse perpetrators are defined as "pedophiles" - an adult with persistent feelings of attraction toward prepubescent children, whether acted on or not.
No. Under the law, a minor is legally incapable of consenting to sexual activity. Even if they appear to consent, the law holds that they are incapable of doing so and therefore any apparent consent they give is void.
A range of indecent or sexual activities between an adult and a child fall into the category of child molestation:
- Penetrative contact with the minor's body for the purpose of sexual gratification
- Exposing a child to pornography or the sexual acts of others
- Victimizing a minor for the purpose of advancement, sexual gratification or profit, such as prostituting the child, or creating and trafficking in child pornography
- Exposing one's genitals to a child for the purpose of sexual gratification
- Internet/ chat room solicitation of a child
Child molestation refers to offenses in which an adult engages in sexual activity with a legal minor or exploits a minor for the purpose of sexual gratification. Commonly referred to as child sexual abuse, child molestation is a form of child abuse, with severe criminal and civil penalties.
"Offensive contact" is simply any contact that is not expressly or impliedly consented to. A person who gets bumped while walking through a crowd of people is said to have impliedly consented to such contact.
For the purposes of battery, there is no requirement that the victim was aware of the contact at the time it occurred. For example, a patient may sue his or her doctor for unconsented contact that occurred when the patient was unconscious. In contrast, a cause of action for assault requires that the victim be aware of the imminent contact at the time it occurs. For that reason, if the doctor in the prior example almost performed the wrong surgery but stopped before he made any contact, no cause of action for assault or battery exists. Furthermore, the plaintiff need not show fear of contact, just awareness of imminent contact.
The tort of battery extends beyond contact to your immediate body and includes anything you are in contact with. For example, if a defendant begins tugging at plaintiff’s purse, defendant can still be liable for battery.
Not usually. Battery and assault both require that the defendant acted intentionally. In cases where the plaintiff was harmed by defendant’s careless acts, a cause of action for negligence may arise. Like battery and assault, a plaintiff is entitled to recover for a defendant’s injury-causing negligent acts.
The apprehension of physical contact must be considered “reasonable.” A court will generally not protect a plaintiff who is overly sensitive or fearful, though there are some exceptions, such as when the defendant is aware of the plaintiff’s sensitive condition. A judge or jury will assess whether the conduct was reasonable by asking how a reasonable person in that situation would react to the defendant’s conduct. In providing the requisite standard of care, an experienced attorney who is familiar with judge or jury-mentality may be able to assess the reasonableness of the reaction.
Words alone are generally not sufficient to sustain a cause of action because the contact expected is not “imminent.” However, when threats are accompanied by overt acts such as the clenching of fists or the raising of hands, as if to strike a blow, such words and actions may qualify as an assault. A conditional threat may also give rise to a cause of action for assault, for instance, if a person threatens to hurt you if you do not pay them.
A minor can be liable for the actual damages inflicted, but a minor cannot be liable for punitive damages. Parents may be liable for injuries inflicted by their children when they have an opportunity to control their child, know of the child’s violent tendencies, and fail to exercise reasonable care in controlling their child. There are some additional special circumstances where parents can be liable for the wrongful actions of their child.
In simplest terms, a battery occurs when an aggressor actually makes harmful contact with a person. An assault occurs when no actual contact was made, but the victim feared that contact was imminent. In both cases, the aggressor must be acting intentionally.
Victims of batteries or assaults may sue for their past and future medical bills, lost wages, loss of earnings, as well as physical pain and mental suffering. In cases of egregious behavior, plaintiffs may be entitled to recover punitive damages.
Electric shock is the result of exposure to an electric current. Since the body is a good conductor of electricity, electric currents can pass through with ease. When a current passes through, an electric burn occurs. Burns can damage skin, tissue, bone, and muscle. One way to detect an electric burn is the presence of wounds on the body where the current entered and exited. Entry wounds typically appear on the hands and exit wounds appear on the hands or feet. Even though electrical burns may appear minor on the surface, there can be significant internal damage to vital organs and tissue.
The source of an electric current can be natural, such as lightening strikes. However, in the litigation context, the causes of electric shock tend to be mechanical. Some common mechanical sources of electric shock include defective or unsafe power outlets, wiring, appliances, and electrical equipment, overheated light-fittings, while drilling or coming into contact with power lines, biting or chewing on electrical cords, or inserting metal objects into power outlets.
A person exposed to an electric current will have burns where the current entered and exited the body. The most common places to find burns are on the hands, heels, and head. Shortness of breath, abdominal pain, and chest pain may indicate internal injuries. Pain in the hands and feet, or a deformity of the body, may indicate an injury to the bones.
If you've been exposed to an unsafe electrical current, you should immediately see a doctor. Try to preserve the area at work where the incident occurred as best as possible and collect any vital information. This will help you prove the circumstances surrounding your injury and any responsibilities neglected by your employer. A competent attorney can help guide you through this process and connect you with accident investigators to preserve your claim.
The primary injury is caused by the electric current passing through the body and vital organs resulting in internal and surface burns. If the current passes through the brain or spinal cord, neurological impairments can result that can affect thinking, sensation, coordination, movement, anxiety levels, and mood. Secondary injuries can result from muscle spasms that occur during shock, falls or collisions that occur due to the loss of control and balance, or arcs that are ejected by faulty electrical equipment.
Yes. Currents that pass through the vital organs, when strong enough (typically, greater than 500 volts), can result in death. This is called electrocution. The most common cause of death from electric shock is via infection following burn. Approximately 1,000 people in the United States die from electric shock each year. If an electric shock is fatal, California law allows for certain persons to sue and collect damages on behalf of the deceased victim (see Wrongful Death).
The prognosis depends on the percentage of the body burned. If the burns are not severe, the chances of survival are high. Currents that pass through the brain may have long-term affects on mood and anxiety, and can result in permanent seizure disorder.
On the surface of the body, severe burns may require surgery to clean the wound and removed damages skin and tissue. Severe burns may also carry a need for skin grafting.
Depending on the location of the injury, your injury may require the attention of a specialist. Specialists are used to observe and monitor the extent of the injury and are sometimes needed to operate on the particular area of the body.
The spinal cord runs from the base of the brain to the waist area and consists of a bundle of long, cord-like nerve fibers encased in segments of bone called vertebrae. There are 33 vertebrae that are arranged into one column called the spinal column. These vertebrae are group into 5 groups sections: cervical, thoracic, lumbar, and sacral.
The spinal cord is responsible for relaying sensory, motor and autonomic information between the brain and body.
The leading cause of SCIs is car accidents, followed by acts of violence, falls, sports, and diseases. During these injuries the spinal cord can become partially or completely severed.
The most common effect of a spinal cord injury is loss of functioning and feeling below the location of the spinal injury. About 45 percent of all SCIs result in a complete loss of feeling and sensation, while the remaining 55 percent lose partial sensation and functioning only. Both complete injuries and partial injuries occur in paraplegic and tetraplegic injuries.
The early stages of treatment for SCI may include medication, immobilization, and sometimes surgery. Later stages of recovery typically include physical therapy to assist the victim in maximizing mobility and independence and building remaining muscle. The rehabilitation team also includes occupational therapists, rehabilitation nurses, recreation therapists, psychologists, social workers, dietitians, and a doctor who specializes in physical medicine or spinal cord injury. The early stages of rehabilitation focus on building leg and arm strength, exercise, tuning fine-motor skills and learning coping strategies. Your doctors may prescribe medications to maintain muscle spasticity, control pain, and improve bladder and bowel control. Medications may also be used to assist sexual functioning.
Following SCI, the average expenses during the first year after the accident, including medical costs and living expenses, is $198,335. Each subsequent year costs an average of $24,154. The amount depends on the severity and location of the injury. For example, the estimated lifetime cost for a tetraplegic individual first paralyzed at age 25 can be as high as $1,349,029. An experienced and dedicated team of attorneys won't be able to repair your injury, but can help insure that you receive any due compensation to facilitate your recovery.
Some victims of SCI can recover from their injury. In these cases, recovery typically begins between one and 24 weeks after the injury. Impairments that persist after this period are likely to be permanent, though there are cases of people who show improvements even years after their injury.
Research and development into wheelchairs has produced chairs that offer greater mobility and stability. Modern wheelchairs are able to climb stairs, elevate, and travel over rough terrain. Computer-assisted technology can assist an individual in accomplishing daily chores like paying bills, making phone calls, and writing. Electronic devices can also assist in communicating, writing, reading, grooming, dressing, and bathing. Finally, electrical stimulation devices can be used to replace gaps in the nervous system. These devices, implanted under the skin, serve to electrically stimulate neurons to produce lost actions or functions. When used above the surface of the skin, these devices can be used to control arm and leg muscles to allow people to stand, walk, reach and grip.
An experienced spinal injury attorney understands the complex legal issues at play in a lawsuit to recover damages for SCI. This includes establishing fault and causation using an array of experts and professionals. A knowledgeable attorney is also familiar with the complications that can arise during the recovery process and can help you secure compensation for treatment, long-term care and your pain and suffering.
A personal injury is a physical, psychological, or economic injury that tends to have lasting effects and consequences.
Any child or adult is entitled to recover damages in personal injury case as long as they can prove that their injury was negligently caused by another person or entity. When the injured party is a minor, the law requires that a guardian be appointed on behalf of the minor. If the injured party is deceased, the law allows certain individuals to bring a "survival action" on behalf of the deceased party (see Wrongful Death). The law also allows the the spouse of a deceased victim of personal injury to recover for his or her own loss of companionship (see Wrongful Death).
A victim of personal injury may be partially at fault for causing his or her own injury and still recover part of the total damages. In these cases, juries award the victim the fraction of the total damages that corresponds to the other party's fault. For example, suppose an employee sues his employer for a work-related accident resulting in serious injury. The employee proves that his damages amount to $100,000. If the jury finds that the employee was 20% at fault for the accident, and the employer was 80% at fault, the employer will have to pay $80,000.
In most but not all civil cases, the burden is on the plaintiff (the victim) to prove "by a preponderance of the evidence" that the defendant breached a duty of care that caused the plaintiff's injuries. In other words, the injured party must show that the defendant had a responsibility to act with a certain level of care but fell below that level. Furthermore, the plaintiff must prove that the defendant's failure to act with that level of care was a significant factor in bringing about the plaintiff's damages. Proving that the defendant's care fell below the expected level of care often involves expert testimony from a variety of sources. If feasible, it is important to preserve the scene of the accident as best as possible in order to allow experts to document the incident thoroughly.
Victims are entitled to recover both general and special damages. General damages include physical pain and mental suffering, inconvenience, physical impairment, disfigurement. Special damages include past and future medical bills, expenses, lost wages, and lost earnings. Medical bills may include the price of physical as well as psychological therapy. In some cases, you may be entitled to the cost of modifying one's home, if necessary. In additional to lost wages, some individuals may be entitled to vocational rehabilitation. In cases of egregious behavior, you be entitled to punitive damages.
Pain and suffering are usually the largest component of a plaintiff's damages claim. While experts are used to establish past and future medical costs, they do not routinely testify to the amount of pain and suffering. There is no formula to calculate pain and suffering. The amount of the award is sensitive to a variety of factors including the nature of the injury, the location of the trial court, and the presentation of the case. It is recommended that you keep a journal to document your feelings and physical pain.
Punitive damages are intended to punish the wrongdoer and deter similar behavior. A plaintiff is entitled to punitive damages if he or she can prove that the conduct of the wrongdoer was fraudulent, malicious or despicable. A punitive damage award is assessed by examining the defendant's conduct as well as the defendant's economic means. Bigger corporations are fined more than smaller corporations, since a small fine cannot effectively punish a big corporation.
The time limits that govern when an action must be brought are complicated. When the injury resulted out of professional negligence by a health care provider, such as a doctor or hospital, a plaintiff has one year from the date he or she discovers the injury and its cause (or should have discovered the cause) or 3 years from the date of the injury, whichever occurs first. In all other cases, including work-related injuries or auto-accidents, a plaintiff has 2 years from date he or she discovers the injury and its cause (or should have discovered the cause). Only in rare circumstances will a court extend this time period.
Due to the severity of the injury as well as the amount of money at stake, it is wise to hire an experienced and knowledgeable law firm to prevent losing your claim needlessly. A good law firm will have access to a battery of experts to testify on your behalf. The defendant will likely retain experts to help establish that he was not at fault. A well-prepared law firm will hire accident reconstruction experts, human factor experts, or metallurgists to counter the defendant's experts and prove the defendant's liability. A good law firm will also have access to medical professionals including physicians, physical therapists, and psychotherapists who can testify on your behalf to the extent of your physical and psychological injuries. Finally, a good law firm will retain vocational rehabilitation therapists and economists who can evaluate the extent of your economic injuries and needs.
Most head injuries are minor, but the more serious injuries involve a traumatic brain injury, or "TBI." TBI can result from exposure to toxic chemicals, oxygen deprivation, tumors, infections, stroke, or hemorrhages, but the most common sources of TBI are bullet wounds, falls, and car crashes. TBI can result from a car accident even if the driver or passenger did not hit their head. If your injury was caused by another person's negligent act or failure to take proper precautions, you may be entitled to compensation.
The brain can become injured in a number of different ways. The most obvious way is through a direct injury to the head that penetrates the skull, such as a gunshot wound. Due to the brain's gelatin-like consistency, rapid accelerations and decelerations can cause the components of the brain to be pulled apart. If the brain is pushed against the inside of the skull, swelling can occur. If the swelling is profuse, it can become "trapped" in between the brain and skull and push against the brain causing further injury.
Traumatic brain injuries are typically classified as mild, moderate, or severe. Most traumatic brain injuries are mild. Mild injuries occur when the loss of consciousness or disorientation is shorter than 30 minutes. Victims of mild injuries exhibit cognitive deficits such as memory, attention and thinking difficulties, mood swings, irritability, depression, sleep disturbance, and headaches. Symptoms can last for a year or more but do not necessarily appear as soon as the injury occurs. Because the symptoms are subtle, doctors, family, and even the injured person often overlook them.
A moderate or severe trauma usually causes the same cognitive deficits outlined above, in addition to impulsiveness, language processing difficulties, and an impaired ability to construct and implement plans. Chronic pain, loss of energy, changes in appetite, and abnormal body temperature regulation are common. Victims may find it difficult to speak, comprehend spoken words, read, or write. Moderate and severe injuries may also pose sensory problems such as difficulty judging the position of limbs, difficulty judging distance, blurred vision, and difficulty integrating information, as well as hearing, smell, and taste complications. Finally, moderate and severe injuries may be accompanied by emotional disturbances such as depression, increased aggression, loss of inhibition, and irritability. Because the brain is the center of thinking, one peculiar consequence of TBI is that victims may lose their ability to recognize changes in their own personality and body.
If you've determined that you've suffered a traumatic brain injury, you should see a doctor immediately. A doctor can ensure that your injuries don't become aggravated due to poor oxygen supply or poor blood supply.
Half of all severe brain injury victims undergo surgery to remove or repair bruises and blood vessels that have ruptured as a result of the injury. The surgical team may include trauma surgeons, neurosurgeons, physicians to operate on head and neck injuries, and orthopedic surgeons to examine injuries to bone.
TBI cannot be reversed but it can often be treated through intense therapy. Victims of moderate or severe TBI are often provided with a treatment plan that includes physical, occupational, and speech therapists, physicians, psychiatrists, psychotherapists, and social workers.
The evidence regarding recovery is still to be ascertained. Some of the factors that doctors consider are the severity of the injury, duration of coma, post-injury amnesia, and age. Victims who suffer mild injuries, experience shorter comas and shorter periods of amnesia, and who are younger have better chances of recovery.
Some common theories of how the brain recovers from TBI are redundancy, diaschisis, and substitution. Recovery by redundancy occurs when two parts of the brain are able to perform the same function and one remains intact after the injury. Diaschisis is the process by which a part of the brain that was linked to injury but not injured itself stops functioning but resumes functioning at a later date. During substitution, an intact area of the brain takes over the functions of an injured area. Many individuals simply learn new techniques and strategies for coping with their injuries.
There are two types of amputation: complete and partial. A complete amputation occurs when a body part is completely severed from the rest of the body. In a partial amputation, the body part remains connected through bone, tissue, or muscle. The possibility of reattaching a limb often depends on the type of accident that caused the injury. A guillotine amputation, as the name suggests, involves a clean cut with clearly-defined boundaries. Damage to tissue, bones, nerves, and blood vessels is limited to the area where contact occurred. An avulsion amputation involves a stretching or tearing of tissue and involves significant damage to tissue, bones, nerves, and blood vessels. A crush amputation occurs when a limb is crushed in an accident that requires or results in amputation. Crush amputations cause extensive damage to the injured region.
Amputations mainly result from vascular problems, but when litigation is involved, the source of the amputation is usually an accident. These accidents are typically due to ordinary negligence, professional malpractice, infections, tumors, defective product design, or inadequate warning labels on products.
As with all major surgeries, patients run the risk of complications due to anesthesia, excessive blood loss and blood clots. Amputees also run the risk of infection, which may require a second amputation. If the stump fails to receive an adequate supply of blood, healing will be prevented. Additionally, amputees often experience phantom limbs.
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