Understanding Personal Injury

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fingers-injuryThere is an old saying that “a rose by any other name would smell as sweet.” But when it comes to the difference between a car crash and a car accident, that principle may not apply.

Some safety advocates want to replace “car accident” with “car crash,” since trains wreck, ships sink, and cranes collapse. Furthermore, according to Caroline Samponaro, deputy director of Transportation Alternatives, authorities are less inclined to the investigate the root causes of “accidents,” and so such incidents are likely to occur in the future. Not everyone agrees, since many people believe that “crash” implies fault and “accident” implies innocence.

Early 20th century factory owners were among the first people to use “accident” in this context, because they wanted to shift the focus away from dangerous conditions in their factories and blame the victims for “industrial accidents.”

Elements

There are other kinds of negligence cases besides car crashes. In fact, motor vehicle collisions are not even the leading cause of injury-related death in the United States. That dubious distinction belongs to poisonings (in 2013, 38,351 people died in poisoning incidents and 35, 398 died in motor vehicle wrecks); at 31,959, falls are the third leading cause of injury-related death.

All these cases have several things in common. First, like car crashes, poisonings and falls are rarely “accidental.” For example, the warning labels on prescription and nonprescription medication are often incomplete, misleading, or inaccurate, and many falls occur because of poor lighting, loose stairway rails, wet spots on floors, and other avoidable hazards. Second, all three of these negligent incidents have the same legal elements:

  • Duty: Most drivers and property owners have a duty of reasonable care under California law; common carriers, such as taxi drivers, truck drivers, and other operators who ferry goods and/or people for fees, have a higher duty.
  • Breach: Drivers violate the duty of care when they violate a safety-related provision in the Vehicle Code or elsewhere in the law; such violations include speeding, ignoring traffic lights, and DUI. There are some non-Vehicle Code breaches as well, such as certain forms of distracted driving (like eating or applying makeup while driving) and fatigued driving.
  • Cause-in-Fact: Lawyers sometimes refer to this element as “but-for causation,” because the plaintiff must show a connection between the breach and the damages. For example, failure to wear a seat belt is a violation of the Vehicle Code, but such failure usually does not cause car crashes.
  • Proximate Cause: The damages must be a foreseeable result of the conduct or misconduct. It is foreseeable that if Car A rear-ends Car B, then Car B may be pushed into oncoming traffic and injure another motorist or pedestrian.
  • Damages: Victims must sustain actual injuries, because close calls and near misses are not actionable, even if they do result in injury.

The victim may also recover noneconomic damages, as compensation for pain and suffering, loss of enjoyment in life, emotional distress, loss of consortium (companionship), and other intangible injuries. In some cases, punitive damages are available as well. To win additional damages, the victim must basically establish that the tortfeasor intentionally disregarded a known risk.

How Lawyers Can Help

Most attorneys do not charge upfront legal fees in negligence cases; rather, most attorneys take a percentage of the final recovery as payment in full. According to Curtis Quay, attorney at Injury Trial Lawyers, APC, the percentage typically depends on the amount of work performed. For example, many cases settle after an attorney sends a demand letter to the insurance company and negotiates with the insurance company’s lawyers, and in these cases, most personal injury attorneys in California charge about 25 percent. If lawsuits are filed, the percentage increases, because attorneys put much more time into these cases; if the lawsuits proceed to trial, most lawyers will take a higher percentage.

Attorneys are well worth the investment. Lawyers have ready access to private investigators, who gather additional evidence and help attorneys build winning cases. While that process unfolds, attorneys can ensure that victims continue to receive medical treatment without any immediate out-of-pocket costs. Finally, attorneys can make the proper legal arguments at the proper time and also refute the insurance company’s arguments, thus helping to ensure fair and full compensation.

Time to File

In most negligence and tort cases, victims have two years to file suit before they lose their claims forever.

There are a few exceptions, such as the discovery rule. The two-year countdown does not begin until victims know, or reasonably should have known, about their damages. If Victor Victim was in a car crash in January 2016 and doctors did not properly diagnose his injuries until March 2016, Victor probably has until March 2018 to file a lawsuit. This rule gets a little tricky in dangerous drug and defective medical device cases. Assume doctors prescribed Victor some pills in March 2016, Victor gets sick in March 2017, and in March 2018, doctors tell Victor the medicine made him sick. If Victor promptly filed suit, the insurance company will almost certainly argue that the statute of limitations had lapsed, although it is questionable whether the clock started ticking in March 2017, when he got sick, or in March 2018, when he was diagnosed.

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