Lawsuits and Settlements

Is there a difference between a lawsuit and a settlement?

Yes, there is. In any legal dispute, there are multiple avenues toward resolution. Depending on the circumstances of your injury, you may need to consider whether a lawsuit or a settlement is right for you.

A lawsuit begins with a civil complaint, which triggers the legal process. By contrast, a settlement may involve attorneys and an agreement, and may never involve a court or judge. Settlements are a method of resolving disputes in which both parties and their attorneys mutually agree to a single fair route to resolving the issue. They will draft up an agreement that outlines the damages and may include other terms such as a non-disclosure agreement.

Are lawsuits or settlements more common?

When it comes to disputes regarding personal injury law, settlements are far more common than lawsuits. In fact, less than 10 percent of personal injury cases ever proceed to trial. Typically, both sides will opt to resolve the matter without the time and expense of going to trial.

How are settlement amounts determined?

Settlement amounts can vary greatly depending on the specifics of the case. Settlements generally give consideration to the victim’s medical expenses, legal fees, lost income, and pain and suffering. Before a settlement is reached, it is extremely important to assess the full scope of your injuries and determine, to the best of your ability, how they will affect you later in life. If you sustained injuries that will require long-term care or rehabilitation, this will affect the final settlement value.

How will I determine which is right for me?

When you work with a personal injury lawyer, they will assess the details of your case. Although it is possible to finalize a settlement without legal representation, you will not have a full picture of your legal rights. Victims who represent themselves in settlements often receive far less than the amount they may be due.

Negligence Standard

What is negligence?

The most basic principle in many personal injury cases is negligence. Negligence is defined as failure to take proper care in doing something. To collect damages, you must first prove that another individual or company is responsible for your injury due to negligence or intention.

How do you prove negligence?

There are three major components of a successful negligence claim. First, you must prove that the defendant should reasonably have had some form of duty of care based on the circumstances. For example, someone driving a car that hits a pedestrian would have had a legal duty of care to avoid hitting pedestrians while driving. Next, you will prove that the defendant did not take the necessary care and precautions the situation would demand. Once a lack of care has been proven, you must then prove that the defendant’s careless action caused the injuries that the plaintiff alleges. Thus, you cannot recover for injuries that existed prior to the accident.

What happens if the court agrees the defendant was negligent?

If the defendant is found to be negligent, the court must then determine which form of negligence was exhibited. In California, most personal injury cases fall under gross negligence or comparative negligence. California Civil Jury Instructions 425 defines gross negligence as “the lack of any care or an extreme departure from what a reasonably careful person would do in the same situation to prevent harm to oneself or to others.” Additionally, a defendant may be subject to the legal doctrine of comparative negligence. Comparative negligence, also called shared fault, is when the plaintiff’s actions contributed to the injury they suffered.

The different forms of negligence are easiest to understand when they are applied to a real-world scenario. Let’s imagine that a sober driver runs a red light and is hit by a speeding drunk driver with the right of way. In this case, the sober driver has contributed to their own injury. The drunk driver defendant would then be evaluated under the doctrine of comparative negligence. The damage award would be reduced by an amount consistent with the plaintiff’s fault in the accident. On the other hand, if the sober driver had followed all traffic laws and was still hit by the drunk driver, the drunk driver would be responsible for the full amount of all damages due to his or her gross negligence.

What are the common defenses against claims of negligence?

If the defendant claims they were not negligent, they generally do so by saying they had no duty of care for the victim. The facts of the case tend to be much harder to dispute than the subjective judgment of fault. That means that a property owner may say that the victim assumed the risk themselves by virtue of their own actions. This is usually the case in circumstances involving sports or potentially dangerous activities, like skydiving, surfing, or any instance where the victim signed a liability waiver.

Is it possible to be compensated for negligence even if I signed a liability waiver?

Although it makes your case more difficult, a signed liability waiver is not necessarily a death sentence in a personal injury case. In 1992, the California Supreme Court established that you may pursue a lawsuit if the liability waiver did not cover the danger you were exposed to, or if the defendant did not take reasonable care to protect you.

Is negligence the same thing as recklessness?

Many people assume that negligence and recklessness are the same thing because they are used interchangeably in everyday conversation. In fact, you may have even heard the term “reckless endangerment” used in legal procedural shows or on the news. Legally speaking, however, recklessness and negligence are not the same thing. Someone can be reckless without necessarily being negligent. In order to be negligent, the individual committing the act must have had a reasonable duty to exercise caution. On the other hand, a person who acts recklessly does not necessarily have a legal duty of care.

Shared Fault Laws

What are shared fault laws?

California is a shared fault state. This means that personal injury cases are evaluated using the legal doctrine of comparative negligence. Shared fault laws prevent individuals and businesses from being unfairly forced to pay the full scope of damages when they are not entirely to blame.

Even if you think you have some responsibility for your personal injury accident, you should not be deterred from opening a case. For example, in California, a victim who is more than 50 percent responsible for their own injury may still recover certain damages.

Are all cases evaluated under shared fault law?

In California, all personal injury cases are assessed under the lens of shared fault. Fortunately, California no longer considers cases with the contributory negligence standard, which was far more harsh and unforgiving. Under the previous personal injury law, anyone who was partially at fault for their own injury would be unable to recover damages.

How is shared fault calculated?

According to California Civil Jury Instructions (CACI) 405, the jury gets to apportion fault when more than one party is to blame for the injuries. In a court case, the jury will first determine where the fault lies, and only after it has made that judgment, it will evaluate the total damages to the plaintiff. The percentage of the defendant’s fault will be determined based on the details of the case.

What happens if emergency services responded to my accident and determined I am at fault?

Many personal injury cases will require assistance from emergency services. For example, after a car crash, the responding police officers will likely write up an accident report. The police report will include an initial determination of fault. This determination may differ from that of the insurance adjusters and from the jury findings in court. The initial assessment is not definitive and does not represent a legal judgment or a final statement about your potential to recover damages. You can still pursue a civil case or a settlement even if the emergency responders believe you may be responsible after the initial contact.

Police reports are vital in recovering damages in many cases. In fact, some insurance claims processes will require a police report. You should not forgo filing a police report for fear that you will be found at fault.

What happens if I am countersued?

The doctrine of shared fault will still be used to determine your percentage of responsibility if you are countersued. The fact that you have filed a lawsuit does not prevent the other party from filing a suit as well. In this case, a judge or jury will consider all the facts as well as both arguments in order to make an award judgment. Each party will receive compensation in accordance with the percentage of the defendant’s fault in their damages. Although this sounds like a complicated formula, it’s pretty simple in practice.

Let’s use a car accident as an example. Imagine that John drives a semi-truck. He is very overworked, and his employer is pushing him to meet unreasonable productivity goals. He is exhausted and runs a red light. In the process, he hits Jill, who is driving a passenger car and has the right of way. Jill saw that the light was green but did not stop texting. Although her light was green, she was still partially responsible because if she had been vigilant, she would have seen John driving toward her.

Assume the semi-truck takes on $20,000 worth of damage whereas Jill’s vehicle is totaled. Jill also spends time in the hospital, representing $100,000 of damages. The judge might then determine that Jill is 20% at fault for the accident and award her 80% of her damages, which would be $80,000. If John is 80% at fault for his own accident, he would get 20% of the damages or $4,000.

Personal injury law can be extremely complicated. If you’d like more information about shared fault, we urge you to consult with a personal injury lawyer. They will help you make a preliminary determination of your own liability and assess your potential for compensation.

Product Liability

What is product liability?

Product liability is a branch of personal injury law. It deals with defective and malfunctioning products that have potentially dangerous consequences. Any injury or death that is derived from a poorly operating product justifies a product liability case. The manufacturer, supplier, distributor, and retailer can all be held liable for a defective or unsafe product.

How is product liability determined?

Product liability law exists at the state level. The federal government has not put forth laws or guidelines regarding the matter. In California, determinations of product liability typically take into account negligence, strict liability, breach of warranty or consumer protection claims. Liability may exist if the product contained a design defect, manufacturing defect, or if consumers were not sufficiently educated about the appropriate use and hazards of the product.

What is strict liability and how do I know if it applies?

The legal doctrine of strict liability holds the manufacturer of a defective product responsible, even if the injured party cannot prove that the manufacturer operated out of negligence. The injured party should be able to supply the product purchase date and prove that he or she stopped using the product after the injury occurred. In addition, the injured party must prove that the product was not modified and that the injury occurred during what is considered to be “routine use.”

For example, if you purchased a microwave and were injured due to an electrical fire it caused while heating food in microwave appropriate containers, this likely meets the criteria for strict liability. In general, you may sue the manufacturer or seller for damages resulting from a defective product within two years of when the injury was discovered.  However, some injuries (like injuries due to asbestos) have shorter time limits, so it is important to consult with an attorney as soon as you discover that you or a loved one have been injured.

Can I hold a business responsible if a product injured me but is not considered defective?

This is a complicated legal question and the answer is dependent on the specific circumstances. There is a legal precedent for holding businesses responsible for defects in marketing and warnings, rather than in the product itself. If you were injured, not as the result of a defect, but due to insufficient warnings, you should consult with a personal injury attorney. By law, manufacturer and distributor instructions and warnings need to be obvious, clear, and conspicuous. Unless the product is considered unavoidably unsafe, you may still be able to prove liability.

What does it mean if something is “unavoidably unsafe”?

In some cases, injury is an inherent risk of product ownership. Some examples of unavoidably unsafe products are guns, knives, prescription drugs, and products containing industrial strength chemicals. The inherent hazards of these products are not the result of a design defect or poor marketing. Furthermore, each product would forfeit its usefulness if it were made completely safe. The court determines whether a product is unavoidably unsafe by weighing its utility against the risk of harm.

If you were injured by a product you believe may qualify as unavoidably unsafe, it is a good idea to speak with a lawyer to determine if any liability exists. Product liability would also not apply in cases where the injured party was careless or modified and misused the product. For example, if you purchased a treadmill and modified it to allow a speed over the maximum limit, you could not claim product liability led to your injuries.

Wrongful Death

Wrongful death is an extremely painful and personal area of the legal system. While nothing can bring back a deceased loved one, the justice system allows you to hold the guilty parties responsible for their actions. A wrongful death claim may be applicable in any case of strict liability, negligence, or intentional harm that resulted in a death.

Does the death of my loved one qualify as a wrongful death?

To determine whether a wrongful death has occurred, it is best to consult with an experienced personal injury attorney. In general, if the death would not otherwise have occurred, and was due at least in part to a defective product, negligence, or intentional harm, it may be considered a wrongful death.

Am I eligible to receive damages for a loved one’s wrongful death?

The law is relatively flexible in determining the potential beneficiaries of a wrongful death claim. Most claims are initiated by spouses, life partners, parents, children, and immediate family members. If you were financially dependent on the deceased, you could make a case for loss of support.

Who can be held liable for wrongful death?

Determining fault in a wrongful death case can be extremely difficult, as many factors are often at play. Typically, an attorney will not pursue a claim against someone who has no significant assets and is uninsured. Fortunately, the law allows for shared liability. Multiple parties can be at fault for one accident. For example, John Doe was killed as a result of a semi-truck accident. In this case, the driver of the truck, the company that hired the driver, the insurance company that covers the transport company, and even the designer of the roadway could be liable.

There is one notable exception to general wrongful death liability rules. That exception is government agencies and their employees (such as police officers, firefighters, and postmen). Government employees receive qualified immunity in specific situations. For example, police officers may not be considered legally liable for a deadly shooting if they believe their life was in danger. In cases where immunity may be applicable, it’s important to discuss your case with an experienced personal injury attorney.

What damages are available in the event of a wrongful death?

As with most personal injury law, the specific damage amounts are dictated by the details of the case. Typically, the court issues both economic and noneconomic damages. The economic damages are designed to compensate survivors for medical bills, lost income, burial expenses, and other tangible expenses resulting from the death. Noneconomic damages, or pain and suffering damages, attempt to quantify suffering, loss of love and companionship. Please see the maximum damages section of this guide for further information or consult with a personal injury attorney.

Intentional Torts

The word “tort” is defined as any wrongful action or infringement of a right that causes harm knowingly. In an intentional tort case, a party causes suffering or infringes on the rights of another individual or party intentionally. A tort can be anything including fraud, copyright infringement, and even slander. A tort results in civil liability and often leads to personal injury claims. An intentional tort is different than a personal injury case that involves negligence or strict liability.

How can I identify an intentional tort?

The vast majority of personal injury cases do not fall under intentional torts. Instead are the result of strict liability or negligence. To identify an intentional tort, you must first define the intention of the person or party committing the tort. For example, if a toy manufacturer discovers that the paint they are using contains harmful chemicals and still chooses to distribute their toys, this would likely satisfy the threshold of intent. At this point, the company in question has surpassed simple negligence and is now intentionally putting consumers in harm’s way.

Are intentional torts the same thing as crimes?

This is a very common question. While not all intentional torts are crimes, many are.

The bigger difference is whether the case will be tried as a civil suit or a criminal case. A civil case deals with civil liability and often concerns monetary damages. Criminal charges on the other hand are charges brought by the state and usually involve fines or imprisonment. The overarching intention of criminal proceedings is to protect the public welfare, whereas civil cases are primarily about monetary damages.

Can an intentional tort be both a criminal offense and a civil case?

While circumstances like these are very rare, they do occur occasionally. The most common example in the legal field is the case of OJ Simpson. He faced both civil and criminal charges for the murder of Nicole Brown and Ron Goldman. Simpson was found not guilty on the criminal charges yet held liable in civil court. This illustrates not only the effect of concurrent charges but also the fact that the verdicts may be contradictory.

How do I determine if my injury is an intentional tort?

This question is highly dependent on the specifics of your circumstances. While many intentional torts can be the basis for a civil suit, this is determined by the laws in your district. If you were injured and you believe the perpetrator committed an intentional tort, it is best to consult with an experienced personal injury lawyer.  Your lawyer will make a determination based on the specific facts of your case.

What standard of proof is required?

Civil and criminal cases have different standards of proof. You may be more likely to win a civil case than a criminal proceeding. In criminal cases, guilt must be established “beyond a reasonable doubt.” In a civil suit, guilt is established by a “preponderance of the evidence.”

Police Misconduct

At Blackstone, we know that no one is above the law, and we believe it’s important that officers be held accountable for their actions. As civil servants, police officers have an obligation to guard and protect every citizen. When they fail in this duty, their victims are entitled to damages and a public trial. Police misconduct cases can quickly become more political and public than most personal injury cases, so it’s important to consult with a professional attorney to help you understand your legal rights.

What qualifies as police misconduct?

Police misconduct is a broad term that can encompass a variety of events, such as false arrest, sexual misconduct, unlawful imprisonment, and excessive force. Some other examples of police misconduct include:

• Improper use of weapons
• Coercing a confession
• Improper or unjustified use of police dogs
• Racially motivated arrests
• Torture
• Demand for sexual favors or bribes

This is not a comprehensive list, but it provides a basis for understanding the kinds of actions that constitute misconduct. Officers may not abuse their authority to coerce or exploit individuals. While some misconduct is blatant, oftentimes it is more subtle. As a result, many people are hesitant to claim police misconduct due to uncertainty about their own legal rights. If you believe you may have been the victim of misconduct, it’s important that you speak to an attorney.

Am I legally protected from police misconduct?

While police officers do have limited authority over most civilians, that does not give them the right to act with impunity. Whereas most personal injury statutes are governed on the state level, this protection is so important that it is governed on the federal level. According to USC §1983, individuals may sue the government for a violation of their civil rights. This statute would provide protection in more severe cases.

When bringing legal action against a police officer, it’s important to understand the term qualified immunity. Qualified immunity provides limited protection to officers while on the job. The purpose of qualified immunity is not to be a safe haven for potential misconduct, but rather to shield the government from lawsuits against officers who performed their duties within reasonable bounds. There are some actions for which an officer may not be sued, such as misleading a witness during questioning or using reasonable force. On the other hand, immunity is not a carte blanche. Officers may never violate constitutional rights or act unreasonably.

How can I pursue legal action if I was the victim of misconduct?

To pursue action against a governmental official, you must first exercise certain administrative channels. The incident in question should be reported to the division of internal affairs. In some cases, it may also be reported to the Department of Justice. Although most personal injury cases in California have a two-year statute of limitations, in this case, you must file a notice of claim within six months of the incident. It is important to consult with an attorney as soon as possible because evidence may be lost over time. For example, emergency recordings like 911 calls, which could prove relevant to your case, can be deleted after 100 days. Acting quickly ensures that as much evidence as possible is accessible during the trial.

What if deadly force was used against my loved one?

Police officers may not utilize deadly force except in extreme cases. To justify deadly force, the officer must have a reasonable belief that deadly force or serious bodily injury will be used against them. In recent years, more and more cases of deadly force have received media attention. In many of these cases, such as when someone is running from police or simply refusing to obey verbal instruction, deadly force is not justified.

There are very few cases in which deadly force is justified. If you believe you may have a wrongful death claim resulting from police misconduct, we urge you to reach out to an attorney.

Maximum Damages

In personal injury cases, there are generally three different kinds of damages: economic damages, noneconomic damages, and punitive damages. Economic and noneconomic damages are also called “compensatory” damages because they intend to compensate the victim for their losses. Punitive damages are “non-compensatory” because they are intended to punish the defendant when they have acted wrongly. In California, you can receive as many types of damages as are applicable to your case.

What are economic damages?

Economic damages are compensatory and can be visualized as more concrete. For example, if you were involved in a car accident, both your car repairs and medical bills would be considered economic damages. These are set and specific losses that you have suffered as a result of the personal injury incident. Economic damages can also extend to the future. In other words, if you were injured and were thus unable to perform your job duties, those lost wages would also be considered economic damages.

What are noneconomic damages?

Noneconomic damages are harder to define and encompass other forms of damage. This is where a change in your quality of life is considered. If, for example, your quality of life was affected because of the accident, these damages would be noneconomic. All forms of emotional and pain and suffering damages are considered noneconomic. It can be particularly difficult to quantify noneconomic damages because it involves a great deal of subjective judgment on the part of the jury.

What are punitive damages?

Punitive damages are non-compensatory damages specifically intended to punish negligence and wrongdoing. The court may decide to apply punitive damages in cases where it believes the defendant willfully committed fraud or exhibited malice. Punitive damages almost exclusively apply to businesses or extremely wealthy individuals. The application of punitive damages is not tied to the defendants economic or noneconomic suffering. Instead, they serve as a warning against similar behavior in the future.

Does California limit the amount of economic damages?

Economic damages are specifically tied to tangible expenses, such as medical bills. As a result, California does not limit the amount that can be awarded, even in cases (such as medical malpractice) where the accompanying noneconomic damages may be limited.

Does California limit the amount of noneconomic damages?

In California, only some kinds of noneconomic damages have a cap. For example, noneconomic damages are capped at $250,000 in medical malpractice cases. The state does not have a single, overarching upper limit. Instead, the court will consider the case type and individual circumstances in making a determination.

Does California limit the amount of punitive damages?

If the jury finds that punitive damages are justified, there can be a great deal of variability in the amount of damages awarded. While there is no specific standard for determining the amount of punitive damages, there are some general considerations given to the defendant’s finances and their conduct. The only limit on punitive damages is set forth by the Fourteenth Amendment, which outlaws grossly excessive or arbitrary punishments. Typically, punitive damages should not exceed a double-digit multiplier of the compensatory damages.

Independent Contractors

One of the most important but often overlooked components of personal injury law is the statute of limitations. The statute of limitations refers to the laws governing the amount of time that is allowed to pass before you are no longer able to file a case.

What is the statute of limitations for personal injury in California?

According to California Code of Civil Procedure section 335.1, the defendant must file a lawsuit within two years of the injury, except in certain cases. If the claim involves a government agency, the case must be filed within 6 months of the injury.

What are the exceptions to the statute of limitations?

The primary exception to the statute of limitations for personal injury law is called the discovery rule. The discovery rule extends the filing deadline in cases where the victim was unaware of either the injury itself or the defendant’s fault in the accident. While this may sound uncommon, it occurs rather frequently, particularly in cases where injuries develop over time. For example, if your job required you to interact with sources of radiation such as X-rays, you may later develop chronic radiation sickness. In this case, you may not experience symptoms for months or even years following exposure. The discovery rule protects the victim’s right to a lawsuit in situations like this where the damage is not immediately evident.

On the other hand, if the injury was apparent, but the defendant’s responsibility was not, this would also extend the deadline. For example, if you were involved in a car accident due to a mechanical issue and the manufacturer later issues a recall and admits their product was faulty, this would also fall under the discovery rule.

Exceptions may also exist in cases where the defendant has left the state where the incident occurred. Unfortunately, to exercise this exception, you must be able to prove the defendant was absent during that time. This can be particularly difficult with a hostile defendant. Few individuals are willing to supply information that would make them vulnerable to a lawsuit. If you believe this exception may apply to your personal injury case, our experienced attorneys would be happy to discuss your options with you.

Are there other exceptions to extend the filing deadline?

Aside from the exceptions named above, you must adhere to the two-year filing deadline.

The unfortunate truth is that judges and juries, no matter how compassionate, are unable to overlook the statute of limitations, or any hardship you may have faced in the course of bringing your case to the court. Personal injury law does not allow for deviations in this case, and therefore it is particularly important to act quickly and consult with an attorney as soon as an accident occurs. Fortunately, reputable personal injury lawyers will work on a contingency basis, meaning that their services are rendered at no upfront cost to you.