Articles Posted in Personal Injury Claims

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When personal injury cases in California go to jury trials, both the plaintiffs and the defendants are allowed to question potential jurors. The courts may also allow them to make opening statements so that they can present information about the facts and circumstances of their cases. However, as the case of Alcazar v. Los Angeles Unified School District, Cal. Ct. App. Case No. B281313 shows, the court is allowed to restrict the scope of the questioning and has discretion about allowing opening statements. People who have suffered injuries might benefit from consulting with experienced Los Angeles personal injury lawyers to obtain fair evaluations of their potential claims.

Factual background of the case

Edgar Alcazar was a 13-year-old middle school student with special needs. On May 7, 2013, Alcazar was swinging from a branch of a tree on the school’s campus that was growing inside of a concrete planter. Alcazar had been warned not to swing on the branches in the past and had been told that doing so was dangerous. Despite these warnings, he swang on the branch again, falling to the ground and striking his head on a pedestrian walkway during his lunchtime recess. The principal was called over a radio about the incident. When he got to the scene, he found Alcazar lying on his back next to a broken branch from the tree. The branch was about six feet long and 2 inches thick at its widest point.

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Corporate-Greed-Lawsuit-AvoidanceWhen corporations have potential liability in personal injury and wrongful death cases, they often aggressively litigate legal claims that are filed against them by the victims and their families. Businesses may try to limit their liability in several ways. The business owners may try to avoid personal liability by structuring their companies as LLCs or corporations.

Some businesses set up shell companies so that the businesses themselves have few assets and only minimal liability policies. Others, such as Ripley Entertainment in Missouri and MGM Resorts in Las Vegas, take aggressive approaches to the victims by filing lawsuits against them based on antiquated laws or novel interpretations of recent laws. Large corporations also use lobbyists to convince state and federal legislators to limit liability through tort reform. When a business entity is a defendant in a personal injury lawsuit, it is important for the victims to get help from personal injury attorneys who are experienced in handling complex tort litigation matters.

An attempt to avoid liability: Ripley Entertainment and the duck boat disaster

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When people in California are injured in accidents because of the negligence or recklessness of other drivers, they may face devastating injuries that require complex treatment. People who file lawsuits in California to recover damages may recover their past and future medical expenses. If they are insured, their damages recovery will be limited to the amounts that their insurance companies have paid rather than the actual value of the care that was provided. In Pebley v. Santa Clara Organics LLC, 2d Civ. No. B277893, the California Court of Appeals ruled in a case on whether an insured plaintiff is required to stay within his or her own medical plan when seeking treatment for injuries following an accident in order to mitigate the resulting damages.

Factual Background

Plaintiff David Pebley was returning with his wife from a camping trip in the couple’s motor home on May 9, 2011. While Pebley’s wife was driving the motor home east on the 126 Freeway in Ventura County, one of the tires flattened. Mrs. Pebley steered the motor home onto the right shoulder of the freeway, turned on her hazard lights and stopped. A portion of the motor home’s rear end was still extending into a part of the lane. Mrs. Pebley saw a tractor-trailer approaching the motor home while traveling at approximately 50 mph in her rearview mirror. The truck crashed into the rear of the motor home with enough force that the passenger seat where Mr. Pebley was sitting broke. David Pebley suffered serious injuries to his back, neck, face and teeth. He was treated at a hospital and then released, but he required ongoing follow-up treatment for injuries to the vertebrae in his cervical spine.

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mcdonalds-hot-coffee-caseMost people have heard about the McDonald’s coffee case and might have misconceptions about it. The case, Liebeck v. McDonald’s, in which a 79-year-old woman ordered a 49-cent cup of coffee in a drive-through and then burned herself by spilling it garnered national attention. The case is still the subject of debate about whether or not the claim was frivolous. Many people view the case as the classic example of a frivolous lawsuit, but the facts show that it was not.

Factual Background

On Feb. 27, 1992, Stella Liebeck was a passenger in her grandson’s vehicle. The pair pulled into the McDonald’s drive-through, and Stella Liebeck ordered a cup of coffee. Her grandson then pulled into a parking space so that she could add cream and sugar to it. When she did, she spilled some of the coffee onto her lap. Since she was wearing cotton pants, the coffee caused her third-degree burns to her thighs and her butt.

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Sports and recreational activity participants may be barred from recovering damages following injury accidents during those activities if what occurred was an inherent risk associated with that sport or activity. When people choose to engage in risky activities, California law says that they have assumed the risk of injury by participating in them. In Swigart v. Bruno, Cal.App.4, Case No. D071072, the court ruled that a woman who was injured by a horse while participating in an endurance riding event could not recover in a lawsuit alleging negligence against another rider.

Issue: Whether a participant in a sport or other recreational activity can sue another participant for negligence in the case of an injury accident?

The plaintiff, Kathleen Swigart, and the defendant, Carl Bruno, both participated in an endurance horseback riding event in Perris, California on March 3, 2012. The course was 50 miles long. Swigart dismounted at the eight-mile card checkpoint. While she was on the ground, Bruno’s horse contacted the horse in front of it, causing that horse to kick Bruno’s horse. Bruno’s horse then bolted, throwing Bruno off and striking Swigart, injuring her. Swigart filed a lawsuit against Bruno alleging negligence and gross negligence. Bruno filed a motion for summary judgment, and the trial court agreed, dismissing the action. Swigart then appealed to the Califonia Court of Appeals.

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U.S. Tort Law, Tort Reform, American Civil LibertiesAs an American, I am proud of our country’s heritage which embraces a broad spectrum of ideals including what are traditionally known as “liberal” or “progressive” values as well as “conservative” values.  I think both John F. Kennedy and Ronald Reagan were great leaders in their own right who probably embody these two traditions the best.  While it is apparent from the last few elections that Americans seem to be embracing many centrist views as well, there are many who, at least in part, have a stronger ideological lean towards what they believe to be “liberal” or “conservative” values.  In my opinion, no matter where you come down on the political spectrum, the notions promoted by “tort reformers” are not supported when you truly understand what this “reform” movement is all about.

What is “Tort Reform”?

Our American system of jurisprudence developed from Anglo-Saxon law over hundreds of years.  As I’ve blogged about before (see here) , our founding fathers fully supported the right of the individual to redress through the civil justice system by enacting the 7th Amendment to the U.S. Constitution which guarantees the right to a trial by jury in civil cases.  From colonial days until now, this system has continued to develop to allow individuals and classes of persons who have been harmed by wrongdoing or negligence (i.e. “torts”) to seek monetary compensation through a civil jury trial.  What “tort reform” aims to do is to issue, by government decree, that individuals and classes of people should not be able to bring civil actions in certain instances and/or should be limited in the amount they are able to recover by a predetermined structure as opposed to the judgment rendered by a jury of their peers.  It comes in many forms but, includes proposals to limit class action lawsuits, to shorten the statute of limitations (time deadline) for filing personal injury claims, and to put a cap on the amount of damages for out of pocket losses like medical bills and lost wages and/or general damages for the pain and emotional distress caused by a catastrophic injury or death caused by the wrongdoing of another individual or business.  The vast majority of “tort reform” advocates are large corporations that have disseminated false information that there is a “tort crisis” in America and that “run away juries” must be kept “in check”.  In fact, civil lawsuits related to personal injury claims and average jury verdicts have been declining for almost three decades and now constitute a mere 4-5 % of the total number of civil claims being filed in the U.S. (the vast majority of which are business to business disputes and not injury or death claims).

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“No man is above the law and no man is below it; nor do we ask any man’s permission when we ask him to obey it.” Theodore Roosevelt

As a personal injury attorney who represents people who have suffered catastrophic injuries or death of themselves or a family member, I am constantly asked many, common questions at the onset of representation.  Some of these come in the form of apprehension on the part of hurting or grieving people to enter the legal process of filing a personal injury or wrongful death claim.  Oftentimes, I hear that people’s personal moral or religious beliefs conflict with suing people or filing claims.  While I do not wish to invalidate such beliefs, I think that much of this thinking is based upon a misunderstanding of the fundamental purpose of our civil justice system in America and the principles upon which it is based.

Legal Origin of Tort Law in the United States Including CA

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