This is Part One in a series of blog articles on California Personal Injury (PI) law.
The body of law in California, known as Tort law, sets forth the criteria that a victim needs to follow in order to hold an entity or an individual(s) civilly liable for injuries resulting from the careless, reckless or intentional acts – or omissions (the failure to act) by an entity or individual(s). An assault is an example of an intentional tort, an auto accident is an example of a negligent tort, and a defective product is an example of a strict liability tort.
1) Statute of Limitations
The Statute of Limitations (SOL) is the body of law that places time limits on how long a person has to file a lawsuit in a court of law. The general rule in California is that most PI lawsuits have to be filed at a state courthouse within a two (2) year period from the date that you suffered harm – or within a one (1) year period of the date you discovered the injury. If your PI case involves a claim against a government entity, then you must file a special claim form with that entity, within a six (6) month period of the date you suffered or discovered your injury.
2) Establishing Liability or Fault
In California, a civil defendant (the party responsible for your injuries) can be deemed liable based upon his/her intentional conduct (i.e. battery against an individual) or negligent conduct (i.e. a business owner who fails to repair a dangerous condition at a brick and mortar store location).
The three (3) elements that must be established against a PI defendant in order to recover damages (an award of money from the Court) are as follows:
- A Duty of Care Was Owed by the Defendant;
- Defendant Did Not Act Reasonably to Remedy the Dangerous Condition;
- Defendant's Conduct Was the Direct or Proximate Cause of Your Injury;
In an auto or motorcycle accident scenario, for example, your attorney may have to consult or employ an Accident Reconstruction Expert in order to be able to establish to the Court and/or a Jury the amount or degree of fault that can be legally attributed to the defendant, for the injuries you suffered at the accident scene.
3) Comparative Negligence
Oftentimes in a PI case, you can have more than one entity or individual that may be responsible for injuries. Sometimes, the victim is even considered to be at fault – at least partially. The system that California uses to measure the percentage of fault to be assigned to each party is known as Comparative Negligence. The amount of damages (money) that you would be entitled to recover would be reduced by an amount equal to the percentage of fault you are assigned. If you suffered, for example, a combined total of $1,000,000 in medical expenses, lost wages, and pain & suffering, and the court considered you to be 30% at fault, you would only be allowed to recover up to $700,000. Note: Good news...California is a pure comparative negligence state. State courts will allow injured parties to collect damages, even if they are 99% at fault for an accident or injury.
4) What Can You Recover in Monetary Damages?
Monetary damages fall into two general categories: Compensatory and Punitive damages. Compensatory damages are further broken down into Special damages (aka economic damages) and General damages (aka non-economic damages). Punitive damages are designed to punish a defendant for reprehensible or egregious conduct (i.e. a manufacturer who recklessly dumps toxic chemicals into a nearby river which serves as a source of groundwater supply to local residential communities).
In certain types of cases, California has restrictions on the maximum amount of damages you can actually seek when you file a lawsuit. Here are some examples: Uninsured Drivers (UD) are not allowed to recover non-economic damages after a car accident, but would be allowed to recover any and all economic damages. Economic damages are those damages that have a monetary value attached to them (i.e. medical expenses, property damage, lost wages, etc.), and non-economic damages are those damages that do not have a monetary value attached to them (i.e. pain and suffering). The exception to this exclusion would be when the UD suffers an injury at the hands of an intoxicated driver who ultimately gets convicted of a DUI, in connection with the subject car accident. Medical Malpractice (MM) cases also come with a cap on the maximum amount of damages you can recover. You can recover all of your economic damages in an MM case, but you can only recover a maximum of $250,000 in non-economic damages.
5) Hiring an Attorney: The Contingency Fee Relationship
A good PI attorney will evaluate the merits (likelihood of succeeding) of your case, prior to entering into a written Retainer Agreement, which would establish the attorney/client relationship. The fee structure that most PI practitioners follow is the Contingency Fee – which simply means that the attorney will not receive any professional fees for his time and expertise, unless they are able to recover damages (money) for their client, through a settlement process, or after a court or jury trial proceeding. While the attorney would not be paid any professional fees unless there is a monetary recovery, the client (Plaintiff) would typically be responsible for legal costs, such as court filing fees, expert witness fees, and other litigation related costs. Some attorneys will advance these costs pending the outcome of a civil suit (and then seek reimbursement from the client), or they may request that the client pay these costs upfront.
6) Insurance Companies Will Usually Low-Ball You, and Ask You to Waive any Future Rights
PI cases typically involve the collection of valuable evidence, a full assessment of the incident, and the exchange of Discovery (documents and information each side has collected in the case) between the parties or their legal counsel. It is very important to at least set up a consultation with a California attorney, prior to making any decisions which may affect your ability to be fully compensated for your injuries, or affect your right to pursue any money damages in a court of law. Insurance companies may attempt to get you to admit to being partially or completely at fault, so they can deny your claim for compensation. The primary concerns for someone proceeding through a PI case are the bills from various creditors - insurance companies will often try to take advantage of a victim during this period. Do not agree to make any verbal statements, sign any written declaration about the incident or a waiver of your rights, without first discussing the circumstances with your attorney. All communications from the insurance company and/or their legal counsel should be funneled through and directly handled by your attorney’s office.
7) Judgment Collection
A
competent personal injury attorney will assess the merits of your case,
and also determine what assets (e.g. bank accounts, personal property,
real estate holdings) the defendant has available to satisfy a potential
monetary judgment against them. Insurance companies are often brought
in to defend an individual or entity against a lawsuit, depending upon
the type of liability coverage or insurance policy they maintain. In
this case, the insurance company would be responsible for satisfying a
monetary award of damages against their insured or policyholder.
Since everyone's case is unique to that individual and the specific circumstances, you should consult with a competent PI attorney to determine your best course of action. Our office has expertise in this area of the law, and we encourage you to reach out for a free consultation. Attorney Felicia Yates has been practicing law for over 35 years in California and may be contacted at (702) 817-4661, via e-mail at attorneyfeliciayates@gmail.com, or via website at https://www.attyfeliciayates.com.
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