When a person or family is injured by the negligent or intentional acts of others, the law allows compensation for, among other items, out-of-pocket losses such as past and future medical bills and lost wages, as well as past and future pain and suffering endured as a result of the injury.
In personal injury cases, it is important to document all losses, including keeping copies of medical bills and receipts for out-of-pocket expenses, taking photographs of visible signs of injury, and documenting all days missed from work and how your every day life was impacted as a result of your injury. It is also important to remember that everything you say about the accident to anyone (your doctor, your friends, the police, the insurance company for the other side, etc.) can be used against you later in litigation, so accuracy is always important. Once you have retained an attorney, that attorney can assist you in communicating with outside entities, including insurance companies, regarding the accident.
PERSONAL INJURY DAMAGES
When a member of our community unlawfully causes harm, they are responsible for the harm caused. (Civil Code Section 3281)
The civil tort system provides a place where our most personal losses of health and family can be evaluated and compensated. We are at our weakest when we have lost so much, and our civil tort system provides a system and structure to protect those who are at their weakest and allow them full and fair compensation when they need it the most.
The following are the jury instructions which are read to a jury for use in determining the amount of damages to award.
3901. Introduction to Tort Damages – Liability Established
If you decide that the plaintiff was harmed and that defendant’s negligence was a substantial factor in causing the harm, you also must decide how much money will reasonably compensate the plaintiff for the harm. This compensation is called “damages.” The amount of damages must include an award for each item of harm that was caused by defendant’s wrongful conduct, even if the particular harm could not have been anticipated. Plaintiff does not have to prove the exact amount of damages that will provide reasonable compensation for the harm. However, you must not speculate or guess in awarding damages. The following are the specific items of damages claimed by plaintiff:
3903A. Medical Expenses – Past and Future
1) Past and future medical expenses. To recover damages for past medical expenses, plaintiff must prove the reasonable cost of reasonably necessary medical care that the plaintiff has received. To recover damages for future medical expenses, plaintiff must prove the reasonable cost of reasonably necessary medical care that they are reasonably certain to need in the future.
3903C. Past and Future Lost Earnings
2) Past and future lost earnings. To recover damages for past lost earnings, plaintiff must prove the amount of income they have lost to date. To recover damages for future lost earnings, plaintiff must prove the amount of income they will be reasonably certain to lose in the future as a result of the injury.
3903D. Lost Earning Capacity
3) The loss of plaintiff’s ability to earn money. To recover damages for the loss of the ability to earn money, plaintiff must prove the amount of money the plaintiff would have been reasonably certain to earn if the injury had not occurred. It is not necessary that they have a work history.
3903E. Loss of Ability to Provide Household Services
4) The loss of plaintiff’s ability to provide household services. To recover damages for the loss of the ability to provide household services, plaintiff must prove the reasonable value of the services the plaintiff would have been reasonably certain to provide to their household if the injury had not occurred.
5) No fixed standard exists for deciding the amount of these damages. You must use your judgment to decide a reasonable amount based on the evidence and your common sense. Plaintiff’s award for noneconomic damages should not be reduced to present cash value.
3924. No Punitive Damages
You must not include in your award any damages to punish or make an example of a defendant. Such damages would be punitive damages, and they cannot be a part of your verdict. You must award only the damages that fairly compensate plaintiff for their loss.
3925. Arguments of Counsel Not Evidence of Damages
The arguments of the attorneys are not evidence of damages. Your award must be based on your reasoned judgment applied to the testimony of the witnesses and the other evidence that has been admitted during trial.
3927. Aggravation of Preexisting Condition or Disability
Plaintiff is not entitled to damages for any physical or emotional condition that he had before defendant’s conduct occurred. However, if plaintiff had a physical or emotional condition that was made worse by defendant’s wrongful conduct, you must award damages that will reasonably and fairly compensate him for the effect on that condition.
3928. Unusually Susceptible Plaintiff
You must decide the full amount of money that will reasonably and fairly compensate plaintiff for all damages caused by the wrongful conduct of defendant, even if plaintiff was more susceptible to injury than a normally healthy person would have been, and even if a normally healthy person would not have suffered similar injury.
3930. Mitigation of Damages (Personal Injury)
If you decide defendant is responsible for the original harm, plaintiff is not entitled to recover damages for harm that defendant proves plaintiff could have avoided with reasonable efforts or expenditures. You should consider the reasonableness of plaintiff’s efforts in light of the circumstances facing him at the time, including his ability to make the efforts or expenditures without undue risk or hardship. If plaintiff made reasonable efforts to avoid harm, then your award should include reasonable amounts that he spent for this purpose.
430. Causation: Substantial Factor
A substantial factor in causing harm is a factor that a reasonable person would consider to have contributed to the harm. It must be more than a remote or trivial factor. It does not have to be the only cause of the harm. [Conduct is not a substantial factor in causing harm if the same harm would have occurred without that conduct.]
*These words of experience are not intended as legal advice or as a substitute for retaining an attorney, but again, are just words of experience that people who have been injured have found helpful when they are first making inquiries into how best to proceed.
*When a person or family is injured in an automobile accident that was caused by another party, the law allows compensation for, among other items, damage to vehicle including rental car expenses while car is being repaired or valued, out-of-pocket losses such as past and future medical bills and lost wages, as well as past and future pain and suffering endured as a result of the injury.
There are various types of insurance to potentially cover a person for injuries sustained in an automobile accident including their own automobile policy, which may or may not have medical payments coverage or uninsured/underinsured motorist coverage. The at-fault party may or may not also have coverage which may or may not be enough to compensate you for your loss. You may also use your own health insurance for your medical expenses, but they typically require that you pay them back out of any future settlement or judgment. An attorney can assist you in sorting through the available coverages.
As in any personal injury case, it is important to document all losses, including keeping copies of medical bills and receipts for out-of-pocket expenses, taking photographs of visible signs of injury, and documenting all days missed from work and how your every day life was impacted as a result of your injury. It is also important to remember that everything you say about the accident to anyone (your doctor, your friends, the police, the insurance company for the other side, etc.) can be used against you later in litigation, so accuracy is always important. Once you have retained an attorney, that attorney can assist you in communicating with outside entities, including insurance companies, regarding the accident.
*These words of experience are not intended as legal advice or as a substitute for retaining an attorney, but again, are just words of experience that people who have been injured have found helpful when they are first making inquiries into how best to proceed.
*
WRONGFUL DEATH LITIGATION
WHAT IS WRONGFUL DEATH?
A cause of action for the death of a person caused by the wrongful act or negligence of another may be asserted by any of the persons described in the next section, or by the decedent’s personal representative on his behalf [Code of Civ. Proc., §377.60]. Why do we need such a law? Because once a person’s death is caused by a civil wrong (a tort), the decedent cannot sue for his own damages. The decedent’s pain and suffering is no longer compensable. The decedent’s past and future loss of earnings are no longer compensable unless a third party would have recovered some benefit from those earnings. So, if the decedent no longer has a cause of action against the wrongdoer, who can sue?
WHO MAY RECOVER FOR THE WRONGFUL DEATH?
1. The decedent’s surviving spouse, domestic partner, children, and issue of deceased children, or, if there is no surviving issue of the decedent, the persons, including the surviving spouse or domestic partner, who would be entitled to the property of the decedent if he died without a valid will;
2. Persons dependent on the decedent, the putative spouse, children of the putative spouse, stepchildren, or parents. As used in this subdivision, “putative spouse” means the surviving spouse of a void or voidable marriage who is found by the court to have believed in good faith that the marriage to the decedent was valid.
3. A minor at the time of the decedent’s death, if the minor resided for the previous 180 days in the decedent’s household and was dependent on the decedent for one-half or more of the minor’s support [Code of Civ. Proc. 377.60]. In order for any of these claimants (plaintiffs) to recover, they must still prove that the wrongful act of the tortfeasor (defendant) was a substantial factor in causing of the wrongful death.
In the event a person entitled to recover for wrongful death damages dies away before a settlement or verdict, your losses cannot be recovered by another family member. A personal injury claim is a personal loss and when someone passes away, their right to pursue a personal injury claim such as a wrongful death claim passes away with them.]
WHAT CAN BE RECOVERED FOR THE WRONGFUL DEATH?
When an individual is injured, they can make a claim for economic damages, general damages and, occasionally, for punitive damages. General damages for a Plaintiff usually consists of compensation for pain, suffering and loss of enjoyment or quality of life. These general damages are not available in a wrongful death claim. Common sense would indicate that when you lose a loved one, the biggest element of a plaintiff’s damage is the grief, sorrow and mental anguish suffered as a result of the loss. However, in California the jury is specifically instructed that it cannot compensate for these damages [CACI 3921].
This is also true for any compensation for the decedent’s pain and suffering. Therefore, if the decedent was severely burned or became a quadriplegic from the accident and subsequently died from those injuries, no compensation can be awarded for the pain and suffering experienced by the decedent before his death [CACI 3921]. Similarly if a person who is entitled to wrongful death damages, themselves pass away before settlement or verdict, their wrongful death claim passes with them. For example, if a mother and father have filed a wrongful death claim for the loss of their minor child, and the mother passes away before the case has settled or reached a verdict, the value of the loss will then only be determined by the loss of the surviving father.
Punitive damages, those designed to punish the defendant rather than to compensate the family or others entitled to recover for the loss, can only be awarded in cases where plaintiffs prove the person or company which caused the death was “guilty of oppression, fraud, or malice” [Civil Code section 3294]. “Malice” means conduct that is intended to cause injury such as a battery, or despicable conduct carried out with a willful and conscious disregard of the rights or safety of another. “Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights. “Fraud” means an intentional misrepresentation, deceit or concealment of a material fact known to the defendant with the intention of causing injury.
The nature of the damages that can be awarded in a wrongful death case are found in the Judicial Council of California Civil Jury Instructions (CACI). The following are the instructions a potential jury would be provided to guide them in awarding damages.
3921. Wrongful Death (Death of an Adult)
If you decide that plaintiff has proved his claim against the defendant for the death of decedent, you also must decide how much money will reasonably compensate plaintiff for the death of decedent. This compensation is called “damages.” Plaintiff does not have to prove the exact amount of these damages. However, you must not speculate or guess in awarding damages. The damages claimed by plaintiff fall into two categories called economic damages and noneconomic damages. You will be asked to state the two categories of damages separately on the verdict form.
Plaintiff can claim the following economic damages:
1. The financial support, if any, that decedent would have contributed to the family during either the life expectancy that decedent had before his death or the life expectancy of plaintiff, whichever is shorter;
2. The loss of gifts or benefits that plaintiff would have expected to receive from decedent;
3. Funeral and burial expenses; and
4. The reasonable value of household services that decedent would have provided.
Your award of any future economic damages must be reduced to present cash value.
Plaintiff also claims the following noneconomic damages:
1. The loss of decedent’s love, companionship, comfort, care, assistance, protection, affection, society, moral support; [and]
2. The loss of the enjoyment of sexual relations.
3. The loss of decedent’s training and guidance.
No fixed standard exists for deciding the amount of noneconomic damages.
You must use your judgment to decide a reasonable amount based on the evidence and your common sense. [Your award for noneconomic damages should not be reduced to present cash value.]
In determining plaintiff’s loss, do not consider:
1. Plaintiff’s grief, sorrow, or mental anguish;
2. Decedent’s pain and suffering; or
3. The poverty or wealth of Plaintiff.
In deciding a person’s life expectancy, you may consider, among other factors, the average life expectancy of a person of that age, as well as that person’s health, habits, activities, lifestyle, and occupation. This information is evidence of how long a person is likely to live but is not conclusive. Some people live longer and others die sooner.
In computing these damages, consider the losses suffered by all plaintiffs and return a verdict of a single amount for all plaintiffs. It will be divided the amount among the plaintiffs.
Common sense would indicate that when you lose a loved one, the biggest element of a plaintiff’s damage is the grief, sorrow and mental anguish suffered as a result of the loss. However, in California the jury is specifically instructed that it cannot compensate for these damages [CACI 3921].
This is also true for any compensation for the decedent’s pain and suffering. Therefore, if the decedent was severely burned or became a quadriplegic from the accident and subsequently died from those injuries, no compensation can be awarded for the pain and suffering experienced by the decedent before his death [CACI 3921].
*These words of experience are not intended as legal advice or as a substitute for retaining an attorney, but again, are just words of experience that people who have been injured have found helpful when they are first making inquiries into how best to proceed.
When a person or family is injured in an automobile accident that was caused by another party, the law allows compensation for, among other items, damage to vehicle including rental car expenses while car is being repaired or valued, out-of-pocket losses such as past and future medical bills and lost wages, as well as past and future pain and suffering endured as a result of the injury.
There are various types of insurance to potentially cover a person for injuries sustained in an automobile accident including their own automobile policy, which may or may not have medical payments coverage or uninsured/underinsured motorist coverage. The at-fault party may or may not also have coverage which may or may not be enough to compensate you for your loss. You may also use your own health insurance for your medical expenses, but they typically require that you pay them back out of any future settlement or judgment. An attorney can assist you in sorting through the available coverages.
As in any personal injury case, it is important to document all losses, including keeping copies of medical bills and receipts for out-of-pocket expenses, taking photographs of visible signs of injury, and documenting all days missed from work and how your every day life was impacted as a result of your injury. It is also important to remember that everything you say about the accident to anyone (your doctor, your friends, the police, the insurance company for the other side, etc.) can be used against you later in litigation, so accuracy is always important. Once you have retained an attorney, that attorney can assist you in communicating with outside entities, including insurance companies, regarding the accident.
*These words of experience are not intended as legal advice or as a substitute for retaining an attorney, but again, are just words of experience that people who have been injured have found helpful when they are first making inquiries into how best to proceed.
The law provides fairly generous laws for protecting consumers against defective products. If you believe that you have been injured by a defective product, you may be entitled to recover compensation for, among other items, out-of-pocket losses such as past and future medical bills and lost wages, as well as past and future pain and suffering endured as a result of the injury.
In products liability accidents, it is important to document the condition of product alleged to have caused the injury, including keeping the product in the same condition as immediately after the accident if possible. If not possible, careful photographs and/or notes should be taken to document the defective condition. It is also important to gather and keep as much information as possible regarding where and when the product was purchased, as well as maintaining the original warning/instruction documents that came with product or attempt to find a duplicate set of such instructions/warnings if they are no longer in your possession. Photographs of the condition of the product and witnesses to the incident are oftentimes very important in these types of cases.
As in all personal injury cases, it is important to document all losses, including keeping copies of medical bills and receipts for out-of-pocket expenses. It is also important to remember that everything you say about the accident to anyone (your doctor, your friends, the police, the insurance company for the other side, etc.) can be used against you later in litigation, so accuracy is always important. Once you have retained an attorney, that attorney can assist you in communicating with outside entities, including insurance companies.
In California a manufacturer or distributor of a product is strictly liable for injuries caused by its product if it is defectively manufactured, designed or distributed without sufficient warning or instructions about its potential for harm. As explained by the California Supreme Court in Daly v. General Motors Corp. (1978) 20 Cal. 3d 725
A design flaw or defect exists when the product was designed with a defect that makes the entire line dangerous even if the manufacturing and assembly was flawless.
There are two tests for establishing a design defect: (1) the consumer expectations test, wherein the plaintiff proves the product failed to perform as safely as an ordinary consumer would expect when using the product in an intended or reasonably foreseeable manner; and (2) the risk-benefit test, wherein the trier of fact is asked to balance the risk of danger inherent in the challenged design versus the feasibility of a safer design, the gravity of the danger, and the adverse consequences to the product of a safer design. Karlsson v. Ford Motor Co. (2006)140 Cal. App. 4th 1202, 1208.
A manufacturing flaw or defect exists when a safely designed product becomes dangerous because the manufacturer failed to make the product in accordance with the plans and specifications.
Inadequate warnings or instructions are not complete and do not give clear directions for use of the product.
CACI 1203 sets forth the required elements for proving a claim of strict products liability based on consumer expectations as follows:
- Defendant manufactured/distributed/sold the product.
- The product did not perform as safely as an ordinary consumer would have expected it to perform when used or misused in an intended or reasonably foreseeable way.
- The plaintiff was harmed.
- The product’s failure to perform was a substantial factor in causing plaintiff’s harm.
Typically a product liability case will hinge on manufactured products, defective design, and failure to warn.
CACI 1223 provides that to establish a claim for negligence based on failure to recall or retrofit a product, the plaintiff must prove all of the following:
1. That defendant manufactured/distributed/sold the product;
2. That defendant knew or reasonably should have known that the product was dangerous or was likely to be dangerous when used in a reasonably foreseeable manner;
3. That defendant became aware of this defect after the product was sold;
4. That defendant failed to recall/retrofit or warn of the danger of the product;
5. That a reasonable manufacturer/distributor/seller under the same or similar circumstances would have recalled/ retrofitted the product;
6. That plaintiff was harmed; and
7. That defendant’s failure to recall/retrofit the product was a substantial factor in causing plaintiff’s harm.
*These words of experience are not intended as legal advice or as a substitute for retaining an attorney, but again, are just words of experience that people who have been injured have found helpful when they are first making inquiries into how best to proceed.
The law recognizes that people who buy insurance expect to be treated fairly and there are laws requiring insurance companies to treat the people who buy insurance from them in good faith and to deal with them fairly. There are very strict time deadlines that insurance companies must follow and guidelines regarding how they must treat their customers. Failure to treat their clients in good faith allows consumers to sue their insurance company for damages including out-of-pocket expenses and, in certain circumstances, also for the pain and mental suffering endured by being treated unfairly.
If you believe that you have been injured by the unfair treatment of your insurance company, it is important to document all of your communications with them and to keep track of your time, and the ways you believe you have been injured. Once you have retained an attorney, that attorney can assist you in communicating with outside entities, including the insurance company, regarding the problem issues.
*These words of experience are not intended as legal advice or as a substitute for retaining an attorney, but again, are just words of experience that people who have been injured have found helpful when they are first making inquiries into how best to proceed.
The law has come a long way in trying to protect consumers from the damage caused by inaccurate credit reports by providing very strict procedures which are to be followed by the credit reporting agencies and enhanced remedies for their failure to do so.
If you believe that you have been injured by the inaccurate reporting of a credit reporting agency, it is important to document all of your communications with them and to keep track of your time, efforts and the ways you believe you have been injured. Once you have retained an attorney, that attorney can assist you in communicating with outside entities, including the credit reporting agency and potential creditors, regarding the problem issues.
The law has come a long way in trying to protect the elderly and adults who depend on others for their care by providing enhanced remedies for cases involving physical abuse and neglect, as well as financial abuse.
Oftentimes the care givers who are suspected of the abuse or neglect are the ones who have the necessary evidence to determine whether wrongful conduct has occurred, but the law gives family members or members of the abused person’s estate the right to obtain the information in order to determine whether there is a viable claim.
As in all personal injury cases, it is important to document all losses, including keeping copies of medical bills and receipts for out-of-pocket expenses. It is also important to remember that everything you say about the accident to anyone (your doctor, your friends, the police, the insurance company for the other side, etc.) can be used against you later in litigation, so accuracy is always important. Once you have retained an attorney, that attorney can assist you in communicating with outside entities, including insurance companies and healthcare providers.
California Welfare and Institutions Code governs the area of Elder Abuse. Section 15610.07 provides, “Abuse of an elder or a dependent adult” means either of the following:
(a) Physical abuse, neglect, financial abuse, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering.
(b) The deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering.
Section 15610.27 defines “Elder” as being any person residing in the state of California, who is 65 years of age or older. Section 15610.23 (a) defines “dependent adult” as any person between the ages of 18 and 64 who resides in this state and who has physical or mental limitations that restrict his or her ability to carry out normal activities or to protect his or her rights, including, but not limited to, persons who have physical or developmental disabilities, or whose physical mental abilities have been diminished because of age. Section (b) further defines a “Dependent Adult” to include any person between the ages of 18 and 64 who is admitted as an inpatient to a 24-hour health facility, as defined in Sections 1250, 1250.2, and 1250.3 of the Health and Safety Code.
Section 15610.63 provides, “Physical abuse” means any of the following:
(a) Assault, as defined in Section 240 of the Penal Code.
(b) Battery, as defined in Section 242 of the Penal Code.
(c) Assault with a deadly weapon or force likely to produce great bodily injury, as defined in Section 245 of the Penal Code.
(d) Unreasonable physical constraint, or prolonged or continual deprivation of food or water. Section 15610.53 provides, “Mental suffering” means fear, agitation, confusion, severe depression, or other forms of serious emotional distress that is brought about by forms of intimidating behavior, threats, harassment, or by deceptive acts performed or false or misleading statements made with malicious intent to agitate, confuse, frighten, or cause severe depression or serious emotional distress of the elder or dependent adult.
*These words of experience are not intended as legal advice or as a substitute for retaining an attorney, but again, are just words of experience that people who have been injured have found helpful when they are first making inquiries into how best to proceed.
The law recognizes the general public’s right to privacy and provides damages, among other items, such as past and future lost wages, and damage to reputation and humiliation when we have been defamed or had our privacy invaded. In a balancing act trying to also protect freedom of speech, there are certain procedures that are sometimes required for demanding a retraction that must be timely made before damages may be sought. Therefore, it is important to act quickly whenever you suspect you have been defamed or your privacy has been invaded. Once you have retained an attorney, that attorney can assist you in communicating with outside entities, including possible demands for retraction.
*These words of experience are not intended as legal advice or as a substitute for retaining an attorney, but again, are just words of experience that people who have been injured have found helpful when they are first making inquiries into how best to proceed.
