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FAQ’s

PERSONAL INJURY

Unless you’re filing a claim against a government agency or employee, you need not notify the people you think are responsible for your injuries within a set number of days after an accident. But that doesn’t mean you should drag your feet. On the contrary, acting right away — within a few days, if possible — will increase your chances of receiving a quick and fair resolution to your claim.

Giving notice doesn’t obligate you to file a claim; it simply preserves your rights and prevents others from later saying that your claim is unfair because you waited too long to tell them about your injuries. If you promptly notify others that you intend to file a claim for your injuries, you can then move at your own pace in processing and negotiating the claim with the insurance company or government agency that winds up taking responsibility.

A slip and fall action is a type of personal injury lawsuit filed by a plaintiff who has been injured by a slip and fall, usually on the defendant’s property. Examples of very common slip and fall plaintiffs include the grocery store patron who slips on a spill or a piece of food laying on the floor, and falls, causing injury to himself; and a hotel guest who slips in the shower and injures her back in the process.

The plaintiff in slip and fall cases must usually show that the owner of the property had notice or knowledge of the condition, and failed to clean it up and rectify it within a reasonable amount of time. If the plaintiff slipped on a grape that had been lying on the floor for two hours, and the manager of the store had walked past it and inspected it five times before asking someone to clean it up, liability is likely.

If the plaintiff has knowingly encountered a hazard, then he or she may have trouble holding the defendant liable. For example, if a hotel guest squirts baby oil onto the floor of the shower; steps into the shower and attempts to do the jitterbug; and then falls and breaks an ankle, liability on the part of the hotel is highly questionable. However, if the cleaning staff in the hotel repeatedly tells management that the non-skid treads in the bathtub for room 212 are missing and the hotel fails to replace them, the hotel will probably be liable for damages to a guest who is injured.

An owner of property has a duty to protect members of the public from injury that may occur upon the property. The injured person may be able to recover money for those injuries if he or she can prove that the property owner failed to meet that duty. The hurdle plaintiffs face is that the nature and extent of the property owner’s duty will vary depending upon the facts of the situation and the jurisdiction in question.

Some states focus upon, solely, the status of the injured visitor to the property. These states divide the potential status into three separate categories: invitee, licensee, and trespasser. An invitee is someone who has been invited onto the land because that person will confer some advantage to the property owner, such as a store patron. An owner of property is required to exercise reasonable care for the safety of the invitee. A licensee is someone who enters upon the land for his or her own purpose, and is present at the consent, but not the invitation, of the owner. For example, a door-to-door salesman who enters the property and stays to chat with the owner about the product that he is selling is a licensee. The owner’s duty to a licensee is only to warn of hidden dangers. For example, if the owner knew the front step was rotten and did not warn the salesman, the salesman may be able to recover if he thereafter falls through the step and injures himself. Finally, a trespasser is an individual who enters onto the property without the knowledge or consent of the owner and who remains there without any right or permission. Trespassers have difficulty suing property owners because property owners’ duty towards trespassers is not to place traps and hazards on their property. In some cases, the owner must also warn trespassers of the hazards if they are unlikely to be discovered by the trespasser and could cause serious injury or death.

Other states focus upon the condition of the property and the activities of both the visitor and owner, rather than considering only the status of the visitor. In these states, a uniform standard that requires the owner of the property to exercise reasonable care to ensure the safety of invitees and licensees is generally applied. The plaintiff must prove that the duty of care has not been met through an examination of the circumstances surrounding the entry on the property, the use to which the property is put, the foreseeability of the plaintiff’s injury, and the reasonableness of placing a warning or repairing the condition. Obviously, whether reasonable care has been rendered depends greatly upon the particular circumstances.

The property owner’s duty of care toward children is greater than the duty owed to adults. Even if the children are trespassers or engage in dangerous behavior, the property owner must still take precautions to prevent foreseeable harm to children. The classic example of a property owner’s greater duty of care to children arises in the context of backyard swimming pools. Owners must fence, gate, and lock their pools in a manner that keeps children out and if they fail to do so, they will be found liable for injuries to children, even if the children were trespassers that were warned to stay off the property.

There are a number of things you can do in the first few days and weeks after an accident to protect your right to compensation should you want to file an injury claim. Except for filing a formal claim against a government entity, there’s no single step that you absolutely must take to obtain a fair settlement, and no set order in which you must proceed. However, the more of the following suggestions you can follow, the more smoothly your claim process is likely to flow.

  • Write down as much as you can about the accident itself, your injuries and any other losses (such as wages) you’ve suffered as a result of the accident
  • Make notes of conversations that you have with people involved in the accident or the injury claim
  • Preserve evidence of who caused the accident and what damage was done by collecting physical evidence and taking photographs
  • Locate people who witnessed the accident and who might be able to help you prove your case
  • Notify anyone you think might be responsible for the accident of your intention to file a claim for your injuries

In general, the answer to this question is yes. An owner of a dog, or any animal for that matter, may be held liable for the injuries that that animal causes to others. However, the ease with which a plaintiff can win a “dog-bite” lawsuit differs from jurisdiction to jurisdiction depending on the legal theory of recovery available in the plaintiff’s location. Some jurisdictions require the plaintiff to show that the animal owner knew, or should have known, that the animal was inclined to attack or bite. In other jurisdictions, the plaintiff may only need to show negligence on the part of the owner in order to recover money for his injuries. If a wild animal, such as a lion, bear or monkey, injures the plaintiff, the animal’s owner may be held accountable under a theory of strict liability for plaintiff’s injuries regardless of the plaintiff’s conduct.

Some states have “dog-bite” statutes designed to address these very matters. Additionally, some municipalities may also have their own statutes also address the responsibility of pet owners to answer for the actions of their pets.

If the plaintiff is an adult, the owner of an animal may offer as a defense to the plaintiff’s claim that the injured party provoked the animal. Where the plaintiff has been given clear warning that an animal should not be approached, petted or talked to, and still proceeds with that action, the owner may be able to avoid responsibility if the animal thereafter attacks the plaintiff. This defense is not available, however, if the plaintiff is a child.

Once the plaintiff has established that the animal owner is liable for his injuries, the plaintiff must also establish the amount of his or her damages. The plaintiff should introduce evidence, such as doctor and hospital bills, of how much it has cost to treat the injury. In addition, the plaintiff may be able to recover lost wages if the injury kept the plaintiff out of work. The plaintiff is entitled to compensation for any permanent disability cause by the injury, as well as compensation for pain and suffering.

The terms assault and battery are often erroneously used interchangeably. However, they are not the same things. An assault can be defined as the threat to use unlawful force to inflict bodily injury upon another. The threat, which must be believed to be imminent, must cause reasonable apprehension in the plaintiff. Therefore, where the defendant has threatened some use of force, creating an apprehension in the plaintiff, an assault has occurred. The focus, for the purpose of determining whether a particular act is an assault, must be upon the reasonableness of the plaintiff’s reaction.

If the defendant threatens to use force against the plaintiff, but clearly states that the use of force will not be imminent, and will instead occur at some point in the future, then the plaintiff is unlikely to prevail on a claim of assault. If the threat is imminent, and the defendant appears capable and intent on carrying it out, the plaintiff will likely succeed in proving an assault occurred. For example, a plaintiff may have difficulty proving an assault in cases where an individual such as a former spouse threatens him or her over the phone and thus is not present and capable of immediately carrying out the threat.

Battery is the intentional and unpermitted contact with another. A battery, for practical purposes, is the end product of an assault. A plaintiff in a battery claim does not need to prove an actual injury, as long as the plaintiff proves unlawful and unpermitted contact with his or her person or property. For example, plaintiffs have successfully proven a battery where the defendant grabbed onto the plaintiff’s coat. In addition, it is not necessary for the contact to be with an object in the possession of the plaintiff or the plaintiff’s body. An unpermitted contact with property of the plaintiff, located within the plaintiff’s proximity, may also constitute a battery.

What if you have a bad knee, which makes one leg a bit unsteady? Or if your eyesight, even with glasses, is not very strong? If you fall on a broken stair, are you still entitled to compensation even though someone with stronger legs or better eyesight might not have fallen?

Absolutely. All people, regardless of physical ability, have a legal right to make their way through the world without unnecessary danger. Owners and occupants of property must not put in unnecessary danger any person who might reasonably be expected to be on the property. The same goes for drivers and everyone else — no one may create unnecessary danger for anyone whose path they might cross.

Even if you might have partly caused an accident yourself, you can still receive compensation from anyone else who was careless and partly caused the accident. The amount of another person’s responsibility is determined by comparing his or her carelessness with your own. For example, if you were 25% at fault and the other person was 75% at fault, the other person must pay — through the insurance company — 75% of the fair compensation for your injuries. This rule is called “comparative negligence.”

A few states bar you from compensation if your own carelessness substantially contributed to the accident. (This is called “contributory negligence.”) But in practice, the question of whether your carelessness actually contributed to the accident is a point to negotiate with the insurance adjuster.

There is no formula for assigning a percentage to your carelessness — or that of the other person. During claim negotiations, you will come up with one number; the adjuster may come up with another and explain why you bear greater responsibility for the accident. The different percentages at which you each arrive then go into the negotiating hopper with all the other factors that determine how much your claim is worth.

Negligence is any careless behavior that causes, or contributes to, an accident. For most types of accidents, a person must be negligent in order to be held legally responsible for another person’s injuries.

A person is considered negligent if he or she had a duty to act carefully and failed to do so. (Generally, we all have an obligation to act with ordinary and reasonable care in any given situation — that is, in a manner that will not foreseeably injure those around us.) For example, a person would be negligent if she drove at night wearing sunglasses, because any reasonable driver would know that doing so would increase the chances of causing a traffic accident.

If a person behaves negligently and that behavior causes you harm, you can most likely recover compensation for your injuries.

AUTO ACCIDENTS

Unless you’re filing a claim against a government agency or employee, you need not notify the people you think are responsible for your injuries within a set number of days after an accident. But that doesn’t mean you should drag your feet. On the contrary, acting right away — within a few days, if possible — will increase your chances of receiving a quick and fair resolution to your claim.

Giving notice doesn’t obligate you to file a claim; it simply preserves your rights and prevents others from later saying that your claim is unfair because you waited too long to tell them about your injuries. If you promptly notify others that you intend to file a claim for your injuries, you can then move at your own pace in processing and negotiating the claim with the insurance company or government agency that winds up taking responsibility.

It is sometimes difficult to say that one particular act caused an accident. This is especially true if what you claim the other driver did is vague or seems minor. But if you can show that the other driver made several minor driving errors or committed several minor traffic violations, then you can argue that the combination of those actions caused the accident.

Special Rules for No-Fault Policyholders

Almost half the states have some form of no-fault auto insurance, also called personal injury protection. In general, no-fault coverage eliminates injury liability claims and lawsuits in smaller accidents in exchange for direct payment by the injured person’s own insurance company of medical bills and lost wages — up to certain dollar amounts — regardless of who was at fault for the accident. No-fault coverage often does not apply at all to vehicle damage; those claims are still handled by filing a liability claim against the one who is responsible for the accident, or by looking to your own collision insurance.

Under ordinary personal injury law, an injured person must claim that the defendant should pay for that person’s injuries because of some fault on defendant’s part. Even when the plaintiff is successful, there is often a long wait between the injury and the ultimate payment of money. To solve this problem, many states have enacted “no-fault” automobile insurance systems that seek to provide compensation to individuals injured in automobile accidents without regard to fault. Many of these systems are considered to be first-party insurance systems, which means that individuals who are injured in automobile accidents make a claim for recovery against their own insurance carrier, rather than the insurance carrier of one of the other party’s involved in the accident.

Many no-fault automobile systems require that every driver obtain a minimum level of insurance before being allowed to operate a motor vehicle. This purpose of this requirement is to limit situations in which an individual is injured in an automobile accident and does not have insurance to assist in compensating for the injuries. If an injured party’s insurance company has paid out a claim under the no-fault clause in the insurance policy, it can then recover at least a portion of the payment from the defendant’s insurance company. In states where insurance coverage is not required, the injured party’s insurance company can still bring a traditional personal injury law suit against the defendant to recover any payments it made pursuant to no-fault coverage.

Numerous types of benefits are available under most no-fault systems. Examples of the types of benefits available include coverage of medical and hospital expenses for injuries sustained in the accident, payment of lost wages, and payment, where applicable, of funeral expenses. These types of losses are generally considered to be economic in nature. Basic no-fault plans typically do not pay money for claims such as pain and suffering, loss of consortium, and permanent disability. However, individuals who purchase higher levels of insurance coverage may also be able to purchase additional types of coverage, such as coverage for these non-economic losses.

The total amount of benefits that may be recovered will vary by jurisdiction. Some states have no-fault systems that contain a cap on damages. Other systems do not have such a cap in place. Some systems also have a threshold of no-fault benefits that must be met before tort damages may be sought. No-fault plans can be complex and confusing, and it is therefore a good idea to carefully examine the particular requirements and limitations of any plan, and to seek the counsel of an experienced attorney, if necessary, to ensure proper application of the plan benefits.

Figuring out who is at fault in a traffic accident is a matter of deciding who was careless. And for vehicle accidents, there is a set of official written rules telling people how they are supposed to drive and providing guidelines by which liability may be measured. These rules of the road are the traffic laws everyone must learn to pass the driver’s license test. Complete rules are contained in each state’s Vehicle Code, and they apply not only to automobiles but also to motorcycles, bicycles and pedestrians.

Sometimes a violation of one of these traffic rules is obvious and was clearly the cause of an accident — for example, when one driver runs a stop sign and crashes into another. In other situations, whether or not there was a violation will be less obvious — a common example is a crash that occurs when drivers merge into a single lane of traffic. And at other times, there may have been a traffic violation that had no part in causing the accident, and therefore should not affect who is liable.

The most important thing you can do is to document the entire situation by taking careful notes soon after your accident. While this step is often overlooked, it can help make the entire claim process easier on you — and increase your chances of receiving all the compensation to which you are entitled. Having notes to remind you of all the details of what happened, and what you went through, is far easier and far more accurate than relying on your memory.

Write things down as soon as you can: begin with what you were doing and where you were going, the people you were with, the time and the weather. Include every detail of what you saw, heard and felt. Be sure to add anything you remember hearing anyone — a person involved in the accident or a witness — say about the accident.

Finally, make daily notes of the effects of your injuries. You may suffer pain, discomfort, anxiety, loss of sleep or other problems which are not as visible or serious as another injury, but for which you should demand additional compensation. These notes can be very useful two or six or ten months later, when you put together all the important facts into a final demand for compensation.

Reporting to the Department of Motor Vehicles

Many states have laws requiring that people involved in a vehicle accident resulting in physical injury or a certain amount of property damage report that accident in writing to the state’s department of motor vehicles. Check with your insurance agent or your local department of motor vehicles to find out the time limits for filing this report; you often have just a few days. Be sure to ask whether you’ll need any specific form for the report.

If you must file a report, and the report asks for a statement about how the accident occurred, give only a very brief statement — and admit no responsibility for the accident. Similarly, if the official form asks what your injuries are, list every injury and not just the most serious or obvious. An insurance company could later have access to the report, and if you have admitted some fault in it, or failed to mention an injury, you might run into some trouble explaining yourself.

WORKERS' COMPENSATION

Most workers are eligible for workers’ compensation coverage, but every state excludes some workers. Exclusions often include:

  • Business Owners
  • Independent Contractors
  • Casual Workers
  • Domestic Employees in Private Homes
  • Farm Workers
  • Maritime Workers
  • Railroad Employees
  • Unpaid Volunteers

Check the workers’ compensation law of your state to see whether these exclusions affect you.

Federal government employees are also excluded from state workers’ compensation coverage, but they receive workers’ compensation benefits under a separate federal law.

In addition, about one-third of the states do not require workers’ compensation coverage from employers having fewer than a designated number of employees — three to five, depending on the state. So, if you work for one of these employers, you may be excluded from the state program.

In most states, employers are required to purchase insurance for their employees from a workers’ compensation insurance company — also called an insurance carrier. In some states, larger employers who are clearly solvent are allowed to self-insure or act as their own insurance companies, while smaller companies (with fewer than three or four employees) are not required to carry workers’ compensation insurance at all. When a worker is injured, his or her claim is filed with the insurance company — or self-insuring employer — who pays medical and disability benefits according to a state-approved formula.

Most are. The workers’ compensation system is designed to provide benefits to injured workers no matter whether an injury is caused by the employer’s or employee’s negligence. But there are some limits. Generally, injuries caused because an employee is intoxicated or using illegal drugs are not covered by workers’ compensation. Coverage may also be denied in situations involving:

  • self-inflicted injuries (including those caused by a person who starts a fight)
  • injuries suffered while a worker was committing a serious crime
  • injuries suffered while an employee was not on the job
  • injuries suffered when an employee’s conduct violated company policy

Not necessarily. Your injury does not need to be caused by an accident — such as a fall from a ladder. Many workers, for example, receive compensation for repetitive stress injuries, including carpal tunnel syndrome and back problems, that are caused by overuse or misuse over a long period of time. You may also be compensated for some illnesses and diseases that are the gradual result of work conditions — for example, heart conditions, lung disease and stress-related digestive problems.

Most individuals who are injured at work are prohibited from filing ordinary personal injury lawsuits against their employers. Instead, injured workers are generally required to file a claim under the state’s workers compensation procedure. An injured railroad worker must bring a claim for benefits under the Federal Employer’s Liability Act (FELA) for compensation for his injuries. FELA is similar to many state workers’ compensation systems with the exception that a railroad employee must be able to prove some level of employer negligence in order to make a recovery. In comparison, most state systems are based upon no-fault theories of recovery where neither the negligence of the employer or the employee is examined. In practice, it is generally not difficult for an injured railroad employee to prove that the employer was, at least to some degree, negligent.

Laws, rules, and regulations require a railroad to furnish a reasonably safe workplace for the benefit and protection of its employees. In keeping with this requirement, a railroad has a duty to inspect and discover defects that may result in injury. In some circumstances, this may include the duty to uncover defects that should be obvious to a railroad employee. A railroad also has a duty to warn its employees of any hazardous or unsafe conditions of which it is aware, or should be aware.

A railroad is also required to take other steps to ensure the safety of its workers, including providing adequate training and supervision, appropriate tools and safe equipment, and enforcing only reasonable work quotas. The FELA claimant can usually show that at least one of the required regulations has not been met, thereby establishing the employer’s negligence.

Unless you’re filing a claim against a government agency or employee, you need not notify the people you think are responsible for your injuries within a set number of days after an accident. But that doesn’t mean you should drag your feet. On the contrary, acting right away — within a few days, if possible — will increase your chances of receiving a quick and fair resolution to your claim.

Giving notice doesn’t obligate you to file a claim; it simply preserves your rights and prevents others from later saying that your claim is unfair because you waited too long to tell them about your injuries. If you promptly notify others that you intend to file a claim for your injuries, you can then move at your own pace in processing and negotiating the claim with the insurance company or government agency that winds up taking responsibility.

WRONGFUL DEATH

No. Generally, most states that recognize a wrongful death cause of action limit the pool of potential plaintiffs. Some states limit this group to the deceased’s primary beneficiaries, defined as the surviving spouse and the deceased’s children. Other states allow the parents of the deceased individual to bring a wrongful death claim. In addition to these individuals, some states recognize the rights of any dependent, whether closely related or not, to bring a wrongful death claim provided the person actually a depended on the deceased for economic support. To those jurisdiction, it apparently makes little to no sense to allow the second cousin once removed of the deceased, who saw him once every five years at a family reunion, to recover for the loss of the deceased’s future earning potential.

Some states require any recovery gained in a wrongful death action to be divided amongst the deceased’s heirs at law or to be distributed to the deceased’s heirs at law as it would be in any normal probate proceeding. In these situations, distant relatives may receive some “trickle down” of damages, even though they were not financially dependent upon the deceased during his life.

If more than one plaintiff is entitled to recover, all plaintiffs will share in the award. The manner in which the award is divided can be confusing and will depend upon the laws in the particular jurisdiction where the matter is brought.

MISCELLANEOUS

Defamation is term that includes both slander and libel. Generally, slander occurs when the reputation or good name of someone is damaged as a result of false statements that are orally made. Libel, on the other hand, occurs when false statements regarding another are put in writing.

Whether a particular statement, oral or written, constitutes defamation in the nature of slander or libel will depend upon the particular circumstances in question and the identity of the parties. To prevail in a defamation lawsuit, a plaintiff must prove that the defendant made a false and defamatory statement about the plaintiff that was communicated to a third party. Thus a false and objectionable statement sent in an e-mail to the plaintiff’s co-worker may be libelous. The plaintiff can usually succeed by showing the communication was either intentional or at least negligent. Finally, it is also possible for the plaintiff to bring a libel suit where the plaintiff himself repeats the alleged defamatory statement. This is called self-publication. This can occur, for example, when an individual applies for a job and has to tell the prospective employer about something the previous employer said that was false.

Before beginning a libel or slander lawsuit, the plaintiff must determine whether or not the objectionable statement is true. No matter how damaging, insensitive, rude or inappropriate a statement may be, the plaintiff will lose if the statement is true.

The “public” plaintiff has additional hurdles to overcome to recover for libel or slander. An example of a public figure is a politician. Along with establishing all of the regular elements of the tort, a plaintiff who is a public figure must also show that the defendant knew the false statement was false, or at least acted with reckless disregard as to its truthfulness. Newspapers may escape liability for libel when they merely report false statements as long as the paper had no particular reason to doubt the statement at the time it was printed.

Finally, the plaintiff often has to prove economic harm in order to recover on a defamation suit. Therefore, the plaintiff may need to be able to demonstrate a loss of business as a result of the defamation in order to establish a right to the recovery of money. However, some types of statements are so damaging that the plaintiff does not have to prove any economic loss. These statements tend to be those that accuse the plaintiff of sexual impropriety or criminal conduct.

Yes. The average member of the public is entitled to privacy protections, although the strength of those protections will vary depending upon the particular factual circumstances.

Generally, there are four different actions that an injured plaintiff can allege to recover for an unlawful invasion of his privacy. The first concerns the unlawful appropriation of another’s image. The plaintiff could make this claim, for example, if the defendant, an owner of a car dealership, uses plaintiff’s picture in a commercial or advertisement without permission.

The second type of wrongful invasion of privacy is in the nature of intrusion. If the plaintiff can prove that the defendant intruded into his or her solitude, seclusion, or private life in a manner that would be considered highly offensive to a reasonable person, the plaintiff is entitled to recover damages from the defendant. The issue of what actions are considered highly offensive depends greatly upon the factual circumstances under examination.

The third type of a privacy claim is the public disclosure of private facts. This cause of action requires that facts having no link to a legitimate public concern be disseminated by the defendant resulting in embarrassment, humiliation, or offense to the plaintiff. Whether the public has a legitimate concern in otherwise private facts about the plaintiff is always dependent upon the particular circumstances. For example, the public may have a legitimate interest in knowing that a local surgeon has the AIDS virus, which is an otherwise private matter, due to the potential health risks involved with that condition. In comparison, however, the public may not have a valid interest in knowing the HIV status of the local cabdriver, as there is no threat to the public health or safety in that situation.

A fourth type of privacy right is the right to befrom being placed in a false light in the public eye. This cause of action is very similar to a defamation action. In short, the plaintiff alleges that a communication about the plaintiff was made by defendant, it is untrue, and it was made to the public. The main difference between this cause of action and defamation is that for the invasion of privacy tort, the communication need not be defamatory, it need only be false and highly offensive to a reasonable person.

Generally speaking, an owner of property may not use deadly force to defend the property. Society values human life and bodily integrity much higher than property. Therefore, the life, health and safety of an individual, even an intruder, is considered to be more valuable than the china or stereo which that individual is trying to steal.

An owner is not prohibited, however, from invoking self-help methods in defending property from another. An owner of property is entitled to use reasonable force to prevent someone, or something, from entering onto her property or to remove something from her property. What, under normal circumstances, may constitute a battery, assault, or other intentional tort, will not be considered unlawful in situations where it is performed as a reasonable use of self-help in defense of property. However, the use of force calculated to do great bodily harm, or cause death, is not permitted.

One narrow limitation upon the use of deadly force is authorized. Where an intruder threatens personal safety, as well as a threat to property, or where the intruder is committing a forcible felony, deadly force may be appropriate. For example, if a robber enters a home and, while stealing items, attempts to rape the homeowner, the owner may be justified in shooting the robber. However, an owner who witnesses a neighborhood child stealing a bicycle from the owner’s garage, without any threat of bodily harm, is not justified in shooting that child.