Comparative Negligence

Recovering for Damages If You Were Partly At Fault

Few accidents happen for a single reason. Instead, most situations resulting in an accident have many moving parts from many contributing parties. If you are injured in an accident for which you are partly to blame you may want to know if you are barred from filing a claim for damages against other involved parties. According to Los Angeles personal injury attorney Joshua Glotzer, “California follows a theory of pure comparative negligence, which allows injured accident victims to file a claim for damages even if they were partly to blame for the accident that caused their injury(ies).” If you or someone you know has been injured in a California accident you should contact an experienced lawyer to learn about your legal rights.

Understanding Pure Comparative Negligence in California

Before we can understand the standard of pure comparative negligence we must have a basic understanding of what negligence is. Negligence is a basis for legal liability that is proved by showing:

  1. A defendant has a duty to others;
  2. A defendant breached this duty; and
  3. This breach caused the plaintiff to sustain an injury.

An injured plaintiff must also have suffered actual damages as a result of the injury. Actual damages are generally what a plaintiff seeks to recoup in a California personal injury lawsuit: costs incurred for medical expenses, prescriptions, rehabilitation, or to account for lost wages if a plaintiff missed work to recover.

In California, victims of an accident may seek to recover damages regardless of whether or not they played a role in causing the accident in question. Pure comparative negligence basically means that an injured plaintiff can seek to recover damages equal to the percentage of damages that are attributed to the defendant.

Here’s an example. Let’s say X is driving along the Pacific Coast Highway when Y runs through a traffic light at an intersection. X and Y collide. If X was abiding by all traffic laws and Y was entirely at fault, X would be permitted to seek 100% of the damages she sustained in the accident. If, however, it is later determined that X was speeding and/or texting at the time of the accident, the amount she would be able to recover through a lawsuit against Y would be reduced by the percentage of fault attributed to her. Let’s say X was determined to be 15% at fault for the accident. If she sought damages in the amount of $100,000 for hospital bills and lost wages, her ability to recover from Y would be capped at $85,000.

Or, let’s say that X is visiting a restaurant in Los Angeles, slips on a wet floor, and is injured. If the restaurant had taken no precautions to dry the floor or warn guests of a possible hazard, and X was paying proper attention to her surroundings, she would probably be able to seek 100% of the damages she incurred to tend to her injuries.

If, however, X is involved in a heated phone conversation and drinking heavily, which causes her to ignore several “wet floor” signs posted around the hazardous area, her ability to recover may be significantly reduced. Her ability to recover could even be prohibited if it is determined that the restaurant exercised the proper degree of care in tending to the hazard and warning customers.

The theory of pure comparative negligence allows any injured victim to seek damages, so long as they were not entirely at-fault for an accident.

Damages in a California Personal Injury Lawsuit

After you suffer an injury in a Los Angeles accident you may suffer significant financial burdens. You may also wonder which costs and damages you may be able to recover through a claim for damages against an at-fault party. California permits injured accident victims to seek both economic and non-economic damages.

Economic damages are those that are awarded for verifiable expenses related to an injury. These may include hospital bills, ambulance costs, prescription medication, follow-up visits with specialists, labs and bloodwork, lost wages, or funeral costs.

Non-economic damages are those that are awarded for intangible injuries that are more difficult to value. These may include pain and suffering, loss of consortium, loss of companionship, diminished earning capacity, or mental anguish.

Regardless of the type of damages sought in a California personal injury lawsuit, an award will be limited if you are partly to blame for an accident. Pure comparative negligence is applied to all damages, regardless of classification.

Learn More About Your Legal Rights 

If you have been injured in an accident you should contact an experienced personal injury attorney, regardless of your level of culpability for the incident. Even if it determined that you are 99% at-fault for an accident, you are still legally entitled to seek damages from other involved parties.

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Brain Injury

‘The Pretzel’ Faces Lengthy And Costly Brain Injury Recovery

Renown snowboarder Kody Williams will not be on the slopes at Squaw Valley or Mammoth Mountain anytime soon, but his family and friends are confident that hey will eventually recover from a traumatic brain injury. For now, the 22-year-old snowboarder known as “the pretzel” for his acrobatic moves lies in a medically-induced coma.

Mr. Williams was filming stunts for an upcoming movie when he fell on the mountain. He has been hospitalized for more than a month, although Lenny Mazzotti, a close personal friend and fellow snowboarder from California, said Mr. Williams is showing “slow and steady” improvement. According to Curtis Quay, a San Diego personal injury lawyer familiar with brain injury cases, “these types of injuries take time heal and it might be even longer before he fully regains his full motor functions.”

Along with Brett Wilkinson, Mr. Mazzotti started a GoFundMe campaign that has so far raised over $35,000 for Mr.Williams’ rehabilitation. “Kody is the most selfless, most caring person, always in high spirits and shows so much love for everyone he meets… and it shows with the support,” he remarked.

Mr. Williams’ family echoed this sentiment in a statement. “Kody is so loved and he will be wowed by the support he has received. Being out of province, this allows us to be with him as he fights his way [through] this life-altering injury. We cannot even fathom not being with him.”

Traumatic Brain Injuries

Long term, the prospects for TBI victims are very good. Some scientists believe that stem cells might one day help victims re-grow dead brain cells, something that is medically impossible today. Furthermore, researchers at Loma Linda Medical School believe that certain glucocorticoids can help some cerebral palsy victims regain brain function following severe birth injuries. Among newborns and infants, HIE (hypoxic-ischemic encephalopathy, or oxygen deprivation-induced brain damage) is perhaps the leading cause of serious injury and deaths.

Overall, about 2.2 million people a year seek emergency treatment after a TBI. Many more people probably need treatment and do not get it. Most victims are either very young or very old, and head injury symptoms often mimic shock, dementia, and other non-TBI conditions. Furthermore, the human brain is very good at concealing its own damage, which is why many football players say “put be back in, coach, because I’m fine” even after they suffer head injuries. Most TBIs occur following:

  • Motor Vehicle Wrecks: Some victims hit their heads against steering wheels, dashboards, and other hard objects. Moreover, after a sudden wreck, cellphones and other small objects keep traveling at their previous speed until they hit something solid, so they essentially become high-speed projectiles.
  • Falls: Children often hit their heads on poorly-placed tables and other everyday objects; older adults often easily lose their balance on floor wet spots and other hazardous surfaces.
  • Loud Noises: Researchers speculate that sudden loud noises create shockwaves that interrupt brain functions, which is why some practitioners call traumatic brain injuries the “signature wounds” of the Afghanistan and Iraq wars.
  • Sports Injuries: These TBIs receive lots of press even though, statistically, they account for only a small percentage of head injuries.

Most damaged tissue, in areas like skin and bone, eventually regenerates, given the proper treatment and sufficient time. But unless and until the advanced procedures mentioned earlier become available, dead brain cells do not regenerate. So, the only available treatment is long-term physical therapy that trains other non-damaged parts of the brain to take over the lost functions. So, the $35,000 that the family raised will probably not go very far.

Fortunately, negligence lawsuits compensate TBI victims for all their economic losses, such as past and future lost wages, medical bills, physical therapy expenses, and medical devices. Moreover, victims are entitled to compensation for their emotional distress and other noneconomic damages.

Legal Issues

To obtain these damages, victim/plaintiffs must prove that the tortfeasor (negligent actor) violated the duty of care, and that breach caused injury. Largely because of the low standard of proof in civil court, negligence cases are rather easy to prove, especially if the tortfeasor broke certain kinds of laws. However, there are several defenses that insurance companies often assert.

In falls and motor vehicle crashes, defense lawyers typically raise the contributory negligence defense. For example, in a slip-and-fall case, the insurance company might argue that the victim should have seen the wet spot on the floor and avoided the area, and by failing to do so, the victim is responsible for the accident. In these cases, juries will divide liability between the parties according to the facts. California is a pure comparative fault state, so judges apportion damages based solely on the percentage of fault.

In sports injuries, swimming pool drownings, and other such incidents, insurance company lawyers nearly always assert the assumption of the risk defense. Essentially, this doctrine states that victims who voluntarily assume a known risk are liable for their own injuries. Whether the victim signs a waiver or participates in the activity, the defendant has the burden of proof to establish both these elements. Additionally, some courts consider some waivers to be against public policy and therefore unenforceable.

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Brain Injury

New Frontiers In TBI Treatments

Researchers believe they are closing in on a surgical intervention which can permanently restore damaged cells in Traumatic Brain Injury victims. Recently, German scientists transplanted embryonic neurons into brain-damaged rats, and within a month, the animals were fully responsive and the new connections seemed to be developing normally. Although the potential is there, these treatments can be costly. As attorney Sherwin Arzani tells us, “a brain injury victim will icill need to extensive therapy that comes at a great cost.

Traumatic Brain Injuries

At this point, “dead brain cells do not regenerate” is the medical equivalent of death and taxes, because there is simply no way for the estimated 1.7 million people who suffer TBIs every year to fully regain lost function. Part of the problem is that these injuries are often misdiagnosed, because doctors sometimes ascribe confusion to early-onset dementia and not all victims react the same way (e.g. some are completely unconscious while others remain semi-conscious).

Later, the confusion and unconsciousness give way to sleeplessness, personality changes, and other symptoms that make it difficult or impossible to function at home, at work, or at school. Eventually, victims will develop dementia-like symptoms and experience loss of function.

Currently, extensive physical therapy is usually the best treatment option. Until recently, many doctors stopped such therapy after a few weeks or months, because they believed most patients would show only incremental improvement. However, San Diego researchers recently discovered that long-term physical therapy yields up to 50 percent better results, so many doctors may have ended therapy too soon. Moreover, long-term therapy actually realigned some molecules, creating a platform for even more treatment as new techniques arise.

Damages Available

All these developments are very exciting, and they also cost money. Indeed, some patients may have prematurely ended their physical therapy because they could no longer afford it. Financially, injury recovery is a very trying time, because as medical bills pile up, there is often little or no income coming in. Making matters worse, some health insurance companies do not cover injury-related losses, for liability reasons.

An attorney helps tremendously in both the short and long terms, particularly with TBIs. To ensure that victims get the medical treatment they need, an attorney sends letters of protection to third-party providers. This correspondence guarantees that the providers will be paid when the dispute is resolved, so victims can go to the doctor and therapist without cost. Additionally, an attorney will negotiate with these providers to reduce their fees, which means more money in the victim’s pocket.

The final award covers a wide array of direct and indirect damages. For example, if Victor Victim is partially paralyzed because of a TBI, he must modify his home with wider halls, wheelchair ramps, and other accommodations, and a jury will normally award money for all these expenses.

TBI Causes

Statistically, older people over 65 and younger children under 10 are the most at-risk age groups, mostly because of the types of incidents that normally bring about TBIs.

  • Falls: 2.8 million older Americans fall each year. Many of them sustain TBIs because they are already physically frail. If the fall happens in a public place, the landowner is probably responsible for damages; if the fall occurs at home because of a defective product, the manufacturer may be liable.
  • Pedestrian-Auto Collisions: Older adults are often unable to avoid oncoming cars, and tortfeasors (negligent drivers) often do not spot young children.
  • Auto-Auto Collisions: When a vehicle strikes a solid object and stops suddenly, people and objects inside the car keep moving at the same speed until they too strike solid objects, like a window or a person’s head.
  • Explosive Blasts: Scientists speculate that sudden loud noises create shock waves and disrupt brain functions; the same thing may occur after short-term exposure to very loud noises or long-term exposure to lower noise levels.

To establish liability in any of these cases, the victims must prove that the tortfeasors violated a legal duty of care, and that said violation caused damages. Victims are entitled to economic and noneconomic damages, and punitive damages as well, in some cases. TBIs are serious, but they often improve after expensive and long-term treatments.

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