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Personal Injury Law: Frequently Asked Questions

Attorney Michael D. Waks has more than 35 years experience helping accident victims and their families navigate the legal system. He has won numerous six- and seven-figure settlements and verdicts for clients in a wide array of tort cases. On this page, you will find answers to some of the most frequently asked questions about personal injury and wrongful death claims:

    • Personal injury claimants can pursue compensatory and, in some cases, exemplary damages. Compensatory damages include both economic and non-economic losses. Exemplary damages, also called “punitive damages,” may be awarded in cases involving a defendant who acted with malice, oppression, or fraud.

      Below is a breakdown of the compensatory damages that may be available in a California personal injury case:

      • Medical bills (past and future);
      • Property repairs or replacement;
      • Lost income;
      • Loss of future earnings;
      • Other objectively verifiable losses such as child care, domestic help, and home/vehicle modifications;
      • Emotional distress;
      • Loss of enjoyment of life;
      • Pain and suffering; and
      • Loss of consortium.

    • California law does not place caps on punitive damages awards, but the figure must be reasonable and proportionate to the harm suffered by the plaintiff and the value of the compensatory damages incurred.

    • If you suffered an injury or loss due to someone else’s negligence, you may have grounds for a personal injury claim. You might also have grounds for a claim if you were intentionally harmed or you were injured by a tort to which strict liability applies, which includes certain dog bite and product liability cases.

    • Yes. The state of California follows a pure comparative negligence system. That means if you were partially liable for your accident, you can still file a claim against the other liable parties, but your financial recovery will be reduced by your own percentage of fault. For example, if you incurred $500,000 in damages but you were 20% at fault for the incident, you could recover up to $400,000.

    • It’s important that you bring certain types of documentation to the initial consultation so your case can get off to a strong start. This documentation may include:

      • A written account of everything you remember about the accident;
      • Any relevant insurance policies;
      • Contact and insurance information from the liable party;
      • Eyewitness contact information;
      • Photos of injuries, property damage, and the accident scene;
      • Medical records;
      • The police and/or incident report;
      • Any correspondence you’ve had with the insurance company or opposing party;
      • Income tax returns, paystubs, and any other evidence of lost income; and
      • Receipts and invoices for any expenses you’ve incurred due to your accident and injuries.

    • Your attorney will ask questions to determine if you have grounds for a claim, the strengths and weaknesses of your case, and how to proceed with the investigation. Those questions may include:

      • When, where, and how did the accident occur?
      • What injuries did you sustain?
      • Have you visited a doctor yet?
      • What is your prognosis?
      • Have you provided a recorded statement to the insurance company?
      • What were you doing in the moments before the accident?
      • Do you have any reason to believe the opposing party might blame you for the accident?
      • What costs have you incurred due to the accident?
      • Have you had to take time off work to recover?
      • Are you active on social media? Have you mentioned your accident, injury, or case online?

    • More than 90% of personal injury cases never go to trial; however, going to court is the right decision under certain circumstances. For example, if you have strong evidence of liability and damages but the insurance company still refuses to pay a fair settlement, going to trial might be the only way to pursue the compensation you deserve. Your case might also end up in court if you’re seeking a substantial amount of compensation or if there’s a disagreement regarding pertinent facts.

    • The short answer: as soon as possible. Even if your injuries seem minor, it’s important that you get an official diagnosis to ensure your injuries are documented if you eventually decide to file a claim. Also, failure to seek immediate treatment could give the insurance company justification for arguing that you have not taken the necessary steps to mitigate your damages, which may reduce your financial recovery.

    • Insurance companies have incentive to pay claimants as little as possible, and that means they’ll look for any possible reason to dispute your claim. Here are just a few circumstances that might lead to a dispute:

      • Evidence suggests you may have been partially at fault for the accident;
      • You provided a recorded statement or posted something on social media that indicates you may have been partially liable or your damages are less extensive than you are claiming;
      • You have failed to produce adequate documentation of liability or damages;
      • You failed to pay your insurance premiums on time (in the case of a first-party claim);
      • The damages incurred or accident scenario is not covered by the policy in question;
      • The insurance company put you under surveillance and has evidence of you disobeying your doctor’s orders or participating in physical activities that shouldn’t be possible given the severity of your injuries;
      • The insurance company has any other reason to believe you haven’t been following your doctor’s orders; or
      • You had a pre-existing condition.

    • Every personal injury case is different. The potential value of your claim depends on a multitude of factors including:

      • The severity and permanence of your injuries;
      • Your pre-injury income and the amount of time you were put out of work due to your injuries;
      • The cost of repairing or replacing any property damaged in the accident;
      • The available insurance coverage;
      • Whether any damages caps apply to your case;
      • Whether you were partially liable for the accident; and
      • Whether the defendant acted with fraud, oppression, or malice, in which case punitive damages may be available.

    • Selecting an attorney to represent you is an important decision that should not be made lightly. There are several important qualities to consider before hiring a personal injury lawyer including:

      • Experience in Cases Like Yours: There are countless scenarios that could give rise to a personal injury claim. Even if two cases involve the same kind of tort, they might have nuances regarding the types of injuries sustained, the motivation of the tortfeasor, the evidence available, etc. Make sure the lawyer you hire has achieved successful outcomes in cases like yours.
      • Litigation Experience: Would the attorney be willing to go to trial if the insurance company refuses to pay a fair settlement? Does the lawyer have a track record of success in litigation that would garner respect from the insurer? Having a trial lawyer by your side has numerous advantages—even if your case doesn’t end up in court. Find out if the attorney you’re considering is an accomplished litigator.
      • Access to Expert Witnesses: How often and under what circumstances does the attorney consult with medical, financial, and accident reconstruction experts? If you suffered catastrophic injuries such as a permanent disability, make sure the lawyer you hire knows when and how to use expert witnesses to strengthen your claim.
      • Communication Skills: A personal injury attorney should be able to clearly communicate the strengths and weaknesses of your case, the potential outcomes, and the answers to any questions you have about the relevant statutes, case law, and proceedings. If the lawyer doesn’t seem confident, personable, or articulate, it might be best to look elsewhere for representation.
      • Compassion: The attorney you hire should genuinely care about your situation. If the lawyer seems apathetic, that might indicate he or she won’t be willing to invest the time and effort needed to achieve the best possible outcome. Also, working with a compassionate and personable attorney can make the claims process far less arduous.
      • Positive Online Reviews: If an attorney doesn’t have any online reviews, this might indicate they haven’t been in legal practice for many years. If they have negative reviews, this could signify the lawyer doesn’t provide effective representation or offers an uncomfortable client experience.

    • Personal injury proceedings can last from a few months to over a year. The amount of time it takes to resolve your case will depend on many factors such as:

      • Whether there’s a disagreement regarding the cause of the accident or the value of your claim;
      • The amount of compensation you’re seeking;
      • Whether you’ve given the insurance company a reason to dispute your claim by posting sensitive information about your injuries or case online or by providing a recorded statement;
      • The amount of time it takes for you to reach maximum medical improvement;
      • The strength of the available evidence to support your claim; and
      • Whether a settlement can be reached or your case proceeds to alternative dispute resolution or all the way to trial.

    • Negligence is a legal concept that serves as the framework of fault in most personal injury cases. A party is considered negligent when, through an act or omission, they breach a duty of care owed to another party. A duty of care is a legal obligation to exercise a level of care that a person of ordinary prudence would have exercised under the same circumstances.

      Common examples of negligence that may warrant a personal injury claim include:

      • A driver violating traffic laws, resulting in an accident;
      • A doctor failing to follow accepted standards of care during diagnosis or treatment, resulting in an injury to the patient; and
      • A business owner failing to fix known hazards on his or her property such as concealed holes, broken handrails, and uneven floor surfaces, resulting in an injury to a customer.

    • Although your attorney will handle the logistics of your case, there are steps you can take that might increase your claim’s chances of success such as:

      • Directing any correspondence from the insurance company to your lawyer rather than handling such correspondence personally;
      • Deactivating your social media accounts while your case is pending;
      • Not posting anything about your accident, injury, or case online;
      • Tracking all expenses you incur due to your accident or injury;
      • Keeping a personal injury journal about the effects your injury is having on your life and the lives of your loved ones; and
      • Following your doctor’s orders.

    • The short answer: as soon as possible. After you collect evidence at the scene and visit a doctor, your first call should be to a personal injury lawyer. Scheduling your consultation right away will allow your attorney to conduct the investigation while time-sensitive evidence is still available. Also, there are deadlines for filing tort lawsuits, and if the statute of limitations passes before you file suit, your case will almost certainly be dismissed. Finally, without the guidance of a personal injury attorney, you may be more likely to make a mistake that would harm your claim such as accepting fault, providing a recorded statement to the insurance adjuster, discussing your case on social media, disobeying your doctor’s orders, or accepting an unfair settlement.

    • Yes. It’s likely that the claims adjuster will review your social media accounts—and perhaps the accounts of your friends and family—to find posts that can be used to dispute liability or the value of your damages. Even if you think a post could only serve to strengthen your claim, you never know how it might be misrepresented. It’s best to disable your social media accounts until your case has been resolved.

    • Most personal injury attorneys offer free consultations and work on a contingency fee basis. Contingency fees mean your attorney won’t charge you anything unless he or she wins your case through a settlement or trial verdict. Usually, the fee amount is a percent of the financial recovery.

      You may also be responsible for court fees that arise during the litigation of your claim. You may be asked to pay these fees as they are incurred, or your attorney might cover them for you and then deduct the cost from your financial award.

    • As a precondition for recovery in most personal injury cases, the claimant must first prove the defendant’s negligence was the proximate cause of the injury or loss. Negligence refers to a breach of the duty of care owed to another party through an act or culpable omission. When strict liability applies, however, proving negligence is not a precondition to financial recovery. In the state of California, strict liability applies to certain dog bite and product liability cases.

    • There are many tactics the insurance company might use to reduce the value of your claim or deny it outright. Common strategies include:

      • Advising you against speaking to an attorney;
      • Disputing the cost or necessity of medical bills, treatments, and other expenses;
      • Searching your social media accounts for evidence to dispute the cause of your injuries or their severity;
      • Asking you to provide a recorded statement in order to obtain information that can be used against you;
      • Asking you for a blanket medical authorization;
      • Stalling until the deadline for filing a lawsuit passes; and
      • Arguing that you were partially or entirely liable for the accident.

    • Certain types of damages recovered in a personal injury settlement or verdict may be taxable. In most cases, compensatory damages, which include both economic and non-economic damages, are not taxable. Examples of compensatory damages include medical bills, lost income, property repairs, pain and suffering, emotional distress, and lost enjoyment in life.

      Punitive damages, however, are usually taxable. These are intended to punish the defendant and to deter similar conduct in the future. If you pursue compensation for non-economic damages (such as pain and suffering) but there was no underlying injury, those damages might also be taxable. A skilled personal injury attorney can structure your settlement to minimize tax liability and maximize your potential net recovery.

    • There’s no standard timeline that applies to all personal injury cases; each claim is unique and can vary significantly in duration. Some cases are resolved within a matter of months while others involve complex challenges and eventually go to alternative dispute resolution and litigation.

      Below is a general overview of the steps that might take place to resolve a personal injury case:

      • You research and hire a law firm to represent you;
      • The attorney conducts an investigation to determine the cause of your accident, gather evidence, and prepare for any disputes that might arise;
      • Settlement negotiations commence, usually after the claimant has reached maximum medical improvement;
      • If a settlement cannot be reached, a lawsuit may be filed;
      • Discovery and responses are conducted, possibly including medical examinations and depositions of involved individuals;
      • Hired attorneys research and retain expert witnesses, if necessary;
      • Expert witnesses conduct investigations, make disclosures of findings, and may be deposed;
      • Alternative dispute resolution occurs if negotiations between the parties remain unsuccessful;
      • Trial preparation and trial follow; and
      • The court rules or the jury issues a verdict at the trial’s conclusion.

    • The deadline for filing a lawsuit depends on the facts surrounding your case. In California, statues of limitations have been set for several types of personal injury lawsuits. If you miss the deadline that applies to your case and you try to file suit, your case will almost certainly be dismissed.

      The statute of limitations is usually two years from the date of injury for personal injury cases, or one year from the date the cause of action was discovered or should have been discovered through reasonable diligence. The statute of limitations for most wrongful death lawsuits is also two years, but no deadline applies to wrongful death cases involving murder.

      A three-year statute of limitations applies to most property damage lawsuits. Most medical malpractice lawsuits also must be filed within three years of the date the cause of action accrued or the date it should have been discovered. In cases involving a foreign object left inside the body, the patient has one year from the date the object was discovered to file suit.

      If you intend to sue a government entity, you must file an administrative claim within six months, or one year in some cases, of the accident. If your claim is denied and you receive a rejection letter, you’ll have six months from the date the letter was personally delivered or mailed to file suit. If such a letter was not received, the lawsuit deadline is two years from the date the cause of action accrued.

      There are several factors that may cause the statute of limitations to be “tolled,” or delayed. Those factors include:

      • The victim was a minor, in which case the statute of limitations does not start running until he or she turns 18;
      • The injured party was mentally incompetent at the time of the accident; or
      • Bankruptcy was filed and an automatic stay was put on legal proceedings.

    • Personal injury victims should make a concerted effort to avoid costly mistakes that could delay the proceedings, reduce their financial recovery, or lead to a claim denial. The insurance company and other involved parties will likely be searching for reasons to challenge your claim, so it’s important that you don’t give them a reason to do so.

      Here are a few common mistakes to avoid:

      • Failing to seek legal counsel right away;
      • Providing recorded or written correspondence to the opposing party or insurance company;
      • Signing documents from the insurance company or opposing party without your lawyer’s approval;
      • Returning to an active lifestyle without your doctor’s permission;
      • Returning to work without your doctor’s permission;
      • Failing to follow your doctor’s instructions in any other way;
      • Failing to keep appointments or see the doctor for pain;
      • Failing to mention medical problems resulting from the accident to your doctor;
      • Speaking to anyone except your attorney regarding subjects you and your doctor discussed;
      • Discussing your accident, injury, or case on social media; and
      • Failing to track damages incurred due to the accident or injury.

    • Below are a few records you should maintain while your claim is pending:

      • Receipts and invoices for all expenses resulting from your accident;
      • Photographs of the accident scene and any resulting injuries and property damage;
      • All medical items given or prescribed by your medical providers;
      • Documents related to lost work time and wages; and
      • A personal injury journal detailing how your injuries are affecting your life.

    • A tort is a legal cause of action arising from a civil wrong committed by one party and causing an injury or loss to another. There are different types of torts, but regardless of the type, a tort is committed when:

      • A tortfeasor owed a duty to act or not act in a specific way to the victim;
      • The tortfeasor breached the duty owed to the victim; and
      • As a result of the breach, the victim suffered an injury or loss.

      A tort claim is filed by the injured party or their surviving loved ones against the tortfeasor to recover damages arising from the breach of duty. If settlement negotiations are unsuccessful, a lawsuit may then be filed. The case may then continue to alternative dispute resolution and possibly all the way to trial.

    • Yes. Tort claims can be filed against federal, state, county, and city government entities. However, there are certain nuances to these claims that are best navigated with the help of a personal injury attorney who has experience handling cases filed against government agencies. There are procedural differences that don’t apply to tort claims against private citizens—for example, having to file an administrative claim within just six months of the accident (one year in some cases). Also, punitive damages are not recoverable against a government entity in California.

    • A medical lien is a claim for a right to payment asserted on the proceeds awarded in a settlement or judgment. A lien may be asserted by a government agency (such as Medicaid or Medicare), a healthcare provider, or a health insurance company. Any liens asserted on your financial recovery must be resolved before you receive any funds.

      In some cases, a medical lien can greatly reduce a personal injury claimant’s net recovery. An attorney can review any liens asserted against your settlement or judgment to find out if they’re valid and whether they can be reduced.

    • If you were involved in an accident that aggravated a pre-existing condition, you may be entitled to compensation for the resulting medical bills and other damages; however, the insurance company might use your medical history to argue that the injury existed before the accident and therefore you shouldn’t be awarded compensation, or the value of your claim should be reduced. Fortunately, there are many kinds of evidence a skilled personal injury lawyer may use to prove that your injury was worsened by the accident. Such evidence may include photos of the scene, video recordings of the incident, eyewitness and expert witness testimony, the police and/or incident report, and medical documentation.

    • Yes. You can bring a claim against anyone who may be liable for your damages. Two important concepts that apply to these cases are “pure comparative negligence” and “joint and several liability.”

      California follows a pure comparative negligence system, which means each defendant is responsible for paying the percentage of damages that corresponds to their percentage of fault. If, for example, your damages award totals $100,000 and two defendants are liable—one who was 80% at fault and another who was 20% at fault—the former would have to pay $80,000 and the latter would have to pay $20,000.

      The state of California also has a “joint and several liability” rule, which means each defendant can be held responsible for all of the victim’s economic damages. If one defendant lacks the insurance coverage or financial means to pay his or her share of the damages, the victim can seek the remainder from another defendant. Going with the example above, if the defendant who owes $80,000 only has the means to pay $60,000, the claimant can seek the remaining $20,000 from the other defendant, who would therefore be ordered to pay $40,000 even though he or she was only 20% at fault for the accident.

    • The most common approaches for calculating pain and suffering damages are called the “per diem method” and the “multiplier method.” The per diem method involves assigning a specific dollar amount to each day from the date of the accident to the date the victim reaches maximum medical improvement. This dollar amount may be the victim’s daily income or another figure the lawyer deems fair. The multiplier method involves multiplying the victim’s medical bills and lost income by a factor between 1.5 and 5, with higher factors typically used in cases that involve more severe and permanent injuries such as scarring, disfigurement, amputation, brain trauma, or paralysis.

    • A personal injury journal is essentially a record that the injured party keeps from the day of their accident (or as soon as possible) to the day their case is resolved. This journal should contain details about the victim’s pain and symptoms, medication side effects, and how the injuries are impacting quality of life and relationships. A personal injury lawyer might use this journal to prove the extent of your pain and suffering and to make your case more compelling.

Premises Liability FAQs

    • A warning sign might protect property owners from liability in some cases. However, just because the property owner posted a sign that says, “Use at your own risk,” “Not responsible for accidents or injuries,” or something similar doesn’t mean the disclaimer will effectively shift liability to the visitor.

      Whether or not a warning sign protects the property owner from liability depends on many factors. Generally speaking, these signs can only influence liability if:

      • They’re placed where visitors are likely to see them before they encounter the dangerous condition;
      • They’re clearly visible and not blocked by plants or difficult to read due to inadequate lighting;
      • Their lettering is large enough to read; and
      • They’re written in a language that most people who read it would understand.

      There are other criteria that must be met under certain circumstances. For example, state and local ordinances, rules, and codes require some warning signs to have certain features such as letters of a particular size. If those requirements are not met, the sign might not protect the property owner from liability.

    • Yes. People who are injured due to negligent security may have grounds for a premises liability claim. Examples of negligent security include lack of security personnel, inadequately trained security personnel, insufficient lighting, and lack of security cameras or alarms.

      To win a negligent security claim, you’ll have to prove that the circumstances leading to your injury were foreseeable yet the property owner didn’t take reasonable steps to prevent it. You’ll also have to demonstrate that the security measures required to prevent the injury wouldn’t have been unreasonably burdensome to the property owner.

      Many factors are considered when determining whether the circumstances that led to an injury were reasonably foreseeable. Examples include how frequently criminal activity is reported in the area, whether the area has seen a recent increase in criminal activity, whether similar criminal activity has taken place on the same premises, and whether the property owner was aware of risk factors such as a disgruntled employee or customer.

      There are different security standards for different types of property. For example, a business in a low-crime area might not have a duty to implement the stringent security measures that would be required for a business in a high-crime area. Because there are so many nuances that apply to these cases, it’s wise to seek legal counsel from an experienced premises liability attorney if you intend to bring a negligent security claim.

    • There are many parties who might be liable for a slip and fall at an apartment complex. These claims are usually brought against the landlord, property owner, or apartment complex manager. Pursuant to California Civil Code §1941, the apartment complex manager (which is typically the property owner or landlord) has a duty to ensure the rental units are tenable. The manager may therefore be held liable for any injuries resulting from inadequate lighting, defective railings, uneven floors, or other dangerous conditions.

    • In premises liability law, visitors on a property are classified as either an invitee, licensee, or trespasser. The property owner’s duty of care varies depending on the visitor’s classification. An invitee is someone who is invited onto the property for a business purpose—for example, a customer at a grocery store or a patron at a restaurant. Invitees are owed the highest duty of care. The property owner must take reasonable steps to ensure the premises are safe for invitees—for instance, by inspecting the premises regularly for dangerous conditions, fixing dangerous conditions in a reasonable amount of time, and posting warnings about hazards that could cause injuries.

      Licensees are social guests who are invited onto a property but not for the economic benefit of the property owner. Examples include a friend or neighbor who is visiting your home. Although property owners have a duty to remedy dangerous conditions that might injure a licensee and to warn licensees about such conditions, they don’t have a specific duty of inspection before inviting licensees onto the property. Also, property owners can only be held liable for injuries to licensees that are caused by dangerous conditions that the property owner knew or should have known about.

    • A person can file a premises liability claim if they suffered an injury or loss due to the negligence of a property owner, landlord, or manager. Property owners owe a duty of care to invitees to keep their premises reasonably safe by performing regular inspections, fixing dangerous conditions, and posting warnings about hazards. If you suffered an injury or lost a member of your family due to a breach of this duty, you may have grounds for a premises liability claim. Common scenarios that could give rise to such a claim include:

      • A person slipped and fell on a freshly mopped floor at a grocery store;
      • The parking lot of a business was negligently designed or poorly maintained, resulting in an accident;
      • A person fell due to faulty handrails, broken stairs, uneven floor surfaces, or inadequate lighting; or
      • A person was bitten by a dog in a bar or restaurant.

    • The following parties might be liable for injuries sustained at a swimming pool: the property owner or occupier, a government entity, or the company that designed, manufactured, or distributed a defective product.

      The property owner or occupier might be liable if the injury was caused by inadequate warning signs, insufficient supervision, or poor maintenance. Property owners and occupiers may also be held liable for injuries that result from a violation of laws or ordinances—for example, by failing to install the required fencing or by not using a pool cover.

      If the injury occurred at a public pool, the government entity responsible for maintaining the pool might be liable for the resulting damages. To prevail in such a case, the claimant usually has to prove that the relevant government employees had actual or constructive knowledge of the dangerous condition that caused the injury yet failed to take reasonable steps to remedy it, or that there was a lack of reasonable maintenance or supervision.

      If the injury occurred due to a faulty pool, equipment, or component, the designer, manufacturer, or distributor of that product might be held legally responsible. Strict liability applies to most product defect cases in California, so a finding of fault isn’t necessary to establish liability, meaning that you may not need to prove negligence or intent as a precondition to obtaining a financial award. If the defect was a result of faulty installation, the company or person who installed the product might be liable.

    • After being injured in a slip and fall, it’s important that you gather evidence at the scene if you are able to do so. Valuable evidence may include photographs of injuries and the hazard that caused your fall, eyewitness statements, and the incident report. If any structural deficiencies contributed to your fall, take photos of them, as well. Examples include broken handrails, uneven floor surfaces, or damaged stairs.

      Be sure to record the contact details of eyewitnesses in case your attorney or the insurance company wants to follow up with them. Ask for a copy for the incident report, and if you are not given one immediately, make a request in writing. You should also find out if any surveillance cameras recorded the incident. Ask to view the footage, record it with your cell phone, and request a copy. Also, be sure to store your shoes in a safe place in case the opposing party tries to argue that your footwear somehow contributed to the fall.

      After leaving the scene, you should visit a doctor right away so your injuries can be documented. Your attorney will need your medical records to prove damages. Other evidence that may contribute to your claim includes financial documentation to prove lost wages, receipts for injury-related expenses, and your personal injury journal. Your lawyer can perform an investigation to look for building maintenance records, documentation of past injuries at the same location, and other evidence that’s more difficult to access.

Bicycle Accident Claim FAQs

    • Yes. If you were hurt in a bicycle accident but you weren’t wearing a helmet, you may still be able to obtain compensation for your damages; however, the opposing party might contend that your choice not to wear a helmet was negligent and contributed to your injuries and, therefore, you shouldn’t be compensated for 100 percent of your medical bills and other losses.

      There are several arguments your attorney might use to overcome a liability dispute related to helmet non-use. For example, California law does not require bicyclists over the age of 18 to wear a helmet, so your attorney might assert that you had no duty to wear a helmet. Your lawyer might also contend that a reasonable person would not have worn a helmet in the same circumstances—for instance, if you were riding just a few blocks from your home to buy groceries. It may also be possible to argue that wearing a helmet would not have reduced the severity of your injuries. Bicycle helmets aren’t foolproof after all, and if you didn’t suffer a head injury, it might not be appropriate to reduce your damages for helmet non-use.

Product Liability FAQs

    • For a product liability case to result in a financial recovery, the claimant must prove the product’s manufacturing or design was defective, or the product was negligently labeled. There are two widely accepted tests to determine whether a product has a defective design: the consumer expectations test and the risk-benefit test.

      The consumer expectations test evaluates whether a product’s design meets the safety expectations of an ordinary consumer. The risk-benefit test evaluates whether the risks posed by a product’s design are outweighed by the benefits of the design. Factors that could influence the risk-benefit test include:

      • The likelihood that the design would cause harm;
      • The seriousness of the potential harm the design could cause;
      • Whether safer alternative designs could have provided the same benefit; and
      • Any disadvantages associated with proposed alternative designs.

    • The following products are involved in a disproportionately high number of defective product claims: automobile airbags and other automotive parts, gas heaters, portable generators, medications, medical devices, children’s toys, construction materials, and expired foods.

    • Under some circumstances, it’s possible to sue a pharmaceutical company or drug distributor for drug side effects. Generally speaking, the victim may have grounds for a claim if the side effects were unexpected, caused by negligence, or caused by a defect.

      Such a claim may be filed against the drug manufacturer if a defective formula was used to make the drug or there was a defect in the manufacturing process. For example, if the medication was contaminated due to unsafe manufacturing conditions, anyone harmed as a direct result of the contamination may have grounds for a claim.

      Drug side effects may also occur due to the negligence of the manufacturer, distributor, or reseller. One of these parties may be liable for damages if they failed to take reasonable steps to ensure the medication was safe.

      You may also have grounds for a claim if you took a medication that lacked adequate warnings. Drug manufacturers have a duty to warn customers about known risks. If they fail to do so, they can be held strictly liable for any damages that result.

    • To win a defective product case, claimants must prove they suffered damages as a direct result of a product defect. Several legal theories of liability may be used to prevail in a defective product case including the strict liability argument, the negligence argument, and the breach of express or implied warranty argument.

      The strict liability argument involves the assertion that product manufacturers are held strictly liable for damages caused by manufacturing defects, design defects, a failure to warn, or inadequate instructions. That means the manufacturer can be held liable for damages even without a finding of negligence.

      A product liability case may also be won by proving that the claimant’s damages were a direct result of negligence on the part of the product manufacturer, distributor, supplier, or another party who played a role in the development or distribution of the product. To prevail in a negligence claim, it must be shown that the defendant failed to exercise a level of care that a manufacturer, supplier, etc. of ordinary prudence would have exercised under the same circumstances.

      A claimant in a product liability case may also prevail by proving a breach of express or implied warranty, meaning the product did not work as intended.

      After proving liability, the claimant will have to demonstrate the types of damages incurred and their value. Important evidence of damages may include medical records, expert witness testimony, financial documentation, photos of injuries, receipts and invoices of injury-related expenses, and the victim’s personal injury journal.

    • Punitive damages may be awarded in a product liability case if the liable party (the product manufacturer, seller, distributor, or another party responsible for the defect) acted with fraud, malice, or oppression.

      Malice is despicable conduct done with a willful and conscious disregard of others’ safety or rights. Fraud is intentional misrepresentation, deceit, or concealment of a material fact the defendant knew to intentionally deprive someone of their rights or cause injury. Oppression is despicable conduct subjecting a person to unjust, cruel hardship in conscious disregard of their rights.

      Below are a few specific scenarios when punitive damages may be awarded in a product liability case:

      • The defendant did not take appropriate action in response to accident reports and consumer complaints;
      • The defendant knowingly or intentionally failed to conduct tests to confirm the product’s safety;
      • The defendant concealed facts about the product’s danger; or
      • The defendant knowingly allowed a dangerous product to enter the marketplace.

    • Any party that plays a role in the development or distribution of a product may be held liable for a defective product injury. Because strict liability applies to these cases, the claimant doesn’t need to prove negligence or intent in order to recover an award of damages; however, they must be able to prove when the defect most likely occurred. Depending on the circumstances, it may be possible to hold one or more of the following parties liable for a defective product injury: the designer, the manufacturer, the distributor, the retailer, design consultants, or quality control professionals. This list is non-exhaustive.

Car Accident Claim FAQs

    • The evidence you gather after a car accident could have a major impact on the outcome of your subsequent claim. You should take pictures of the driver’s licenses, license plates, and insurance cards of all motorists involved, as well as property damage, injuries, the insides of vehicles, the positions of vehicles, the weather conditions, and skid marks. Try to use an object to provide a sense of scale such as a penny or a dollar. You should also record the statements and contact information of eyewitnesses.

    • If you were involved in a car accident with an uninsured driver, you may still be able to recover compensation for your losses. One potential option is to file a claim against your own uninsured motorist policy. Although UM coverage is not mandatory in California, all car insurance companies are required to offer this coverage when they sell a liability policy.

      Another option for recovering compensation is to file a claim against your collision coverage. This, again, is an optional policy, but if you’ve purchased collision coverage, it should help pay for vehicle repairs or replacement. If the party who is liable for the accident has sufficient financial means, your attorney might suggest filing a lawsuit directly against that party.

    • If you were injured in a car accident as a passenger, you would bring your claim against the party who caused the crash. It’s not uncommon for two drivers to share fault for a single collision. If this applies to your case, bringing a claim against both drivers may increase your chances of recovering compensation for all your damages. Due to California’s joint and several liability law, one defendant can be held liable for all of a personal injury claimant’s economic damages, even if that defendant was only partially at fault. That means if one driver didn’t have insurance or had coverage levels that were too low, the other driver’s insurance policy might cover the difference.

    • Yes. You can file a car accident claim if you weren’t wearing a seat belt, but the insurance company might argue that your own negligence contributed to your damages. If your injuries would have been less severe had you been buckled up, it’s likely that you won’t be able to recover compensation for all your medical bills and other losses. Due to California’s pure comparative negligence law, your financial recovery would be reduced by your own percentage of fault.

    • Several parties might be liable for a car accident caused by poor road conditions. Depending on the facts surrounding the crash, potentially at-fault parties include a government entity, the owner of the road, or another driver.

      A government entity may be liable if the accident happened on a public road due to poor maintenance. If, for example, the wreck was caused by a pothole or uneven road surface, the state, county, or city government agency responsible for that aspect of road maintenance might be liable for the resulting damages. In some cases, multiple agencies may be held liable for a single crash.

      If the road was private, the party who owned the road might be liable for the accident. And if the crash happened because another driver failed to adjust his or her speed to unsafe road conditions, that motorist might be liable.

    • Yes. If you displayed characteristic symptoms of post-traumatic stress disorder and received an official diagnosis, it may be possible to recover compensation for any damages you’ve incurred due to your PTSD. Proving the existence of your PTSD and the value of the associated damages can be challenging without the help of an attorney since insurance companies often dispute psychological injuries. It may be necessary to bring in a psychotherapist and other well-credentialed medical experts to provide testimony.

    • There are many kinds of evidence your attorney might use to prove the other driver was texting behind the wheel. Examples include cell phone records, surveillance footage taken during the seconds leading up to the crash, the police report, and eyewitness testimony. Some of this evidence may be difficult to gather without applying legal pressure. This is where an attorney can help.

Pedestrian Accident Claim FAQs

    • Yes. Pedestrian accident victims can file a claim even if they were jaywalking, but it’s possible that their award of damages will be reduced. In California, a personal injury victim’s financial recovery is reduced by his or her own percentage of fault. For example, if you are determined to have been 20% at fault for the accident since you were jaywalking, your settlement or verdict may be reduced by 20%.

      Under some circumstances, a pedestrian can be found entirely liable for an accident. Pedestrians in California have a duty not to enter a roadway outside of a marked crosswalk or an unmarked crosswalk at an intersection so near to a vehicle as to cause an immediate danger. If a pedestrian breaches this duty and the driver wasn’t speeding, drunk, or otherwise negligent, the pedestrian might not be entitled to any damages at all. In fact, the pedestrian may be responsible for paying the damages incurred by the driver. In this scenario, the pedestrian might still be able to bring a claim against his or her own no-fault insurance policy (i.e. Personal Injury Protection) if such a policy was purchased.

Bus Accident Claim FAQs

    • There are several parties who could be held liable for a bus accident. Depending on the cause of the crash, whether the bus was public or private, and a variety of other factors, the following parties may be liable for the resulting damages: the bus company, the company that performs maintenance on the bus, a person driving another vehicle, a tour bus operator, a government entity, the bus driver, the school board, or the manufacturer of the bus or its parts.

      When an employee’s negligence causes an injury while he or she is performing work-related duties within the scope of his or her employment, respondeat superior usually applies. Therefore, if the bus was privately owned, the bus driver was an employee, and the bus driver’s negligence was the proximate cause of the crash, it’s likely that the bus company can be held vicariously liable for the accident. However, the doctrine of respondeat superior does not apply when the worker is an independent contractor.

Motorcycle Accident FAQs

    • Yes. You can file a motorcycle accident claim if you weren’t wearing a helmet, but the insurance company might argue that your own negligence has contributed to your injuries. Due to California’s pure comparative negligence system, a personal injury claimant’s financial award is reduced by his or her own percentage of fault. If your failure to wear a helmet contributed to the severity of your injuries, you might be held at least partially liable for the resulting damages, which could reduce your financial award.

      Your attorney may be able to overcome such a dispute by proving that you would have sustained the same injuries and they would have been just as severe even if you had been wearing a helmet. Evidence to support this argument may include medical records, testimony from medical experts, and photos and videos of your injuries and the accident scene.

    • Yes, you can file a motorcycle accident claim and pursue compensation for medical bills and other damages even if you were lane-splitting; however, the other party might dispute liability. In the state of California, there’s no law that states either that lane-splitting is legal or illegal. As such, a motorcyclist who practices lane-splitting wouldn’t be negligent per se, which means the other party would need evidence besides the fact that you were lane-splitting to hold you liable for the crash. If, for example, you were traveling significantly faster than adjacent vehicles, the insurance company might say that your own negligence was a contributing factor and therefore you shouldn’t be compensated for 100 percent of your damages.

Truck Accident Claim FAQs

    • There are several parties who might be liable for a truck accident. To determine liability, the insurance company and your attorney will review the police report and perform an investigation to identify the specific cause of the crash. Depending on the circumstances, the following parties may be liable: the truck driver, the company that employed the truck driver, the party that maintained the vehicle, an auto parts manufacturer, a government entity, or another motorist.

      If the truck driver’s negligence was the proximate cause of the accident—for example, if he or she was speeding, intoxicated, or distracted—you would most likely file the claim against his or her employer. Motor carriers can be held liable for the negligence of their employees through the doctrine of respondeat superior. However, if the trucker was an independent contractor, you would bring the claim against him or her directly.

      It’s not uncommon for motor carriers to hire independent contractors to perform maintenance on their fleet. If negligent maintenance was the proximate cause of the crash, that party may be liable for the resulting damages.

      Some truck accidents are caused by defective auto parts. Depending on the circumstances, it may be possible to bring a claim against the part designer, manufacturer, retailer, or another party who played a role in the development or distribution of the product.

      If poor road maintenance or negligent road design contributed to the crash, a government entity may be responsible. If another driver’s negligence was to blame, you would file the claim against that driver.

    • Much of the evidence that would strengthen a truck accident claim is the same as the evidence that would contribute to a normal car accident case. Evidence of liability may include the police report, dashcam and surveillance footage, eyewitness testimony, cell phone records, accident reconstruction expert testimony, and chemical test results. Evidence of damages may include medical records, income tax returns and other financial documentation, photos of property damage and injuries, receipts for accident-related expenses, testimony from medical and financial experts, and your personal injury journal.

      There are, however, certain types of evidence that are unique to truck accident claims. Examples include the truck’s electronic data recorder, or “black box,” which tracks data about speed, brake usage, and other metrics that might demonstrate the trucker’s negligence. Many truckers also use an electronic logging device to track their hours on the road. If this device reveals an Hours of Service violation, it may serve as valuable evidence to strengthen your claim. Other potential evidence includes timestamped bills of lading, toll booth receipts, maintenance and inspection records, GPS data, and documentation that breaks down the motor carrier’s operational and employee training procedures.

    • The Federal Motor Carrier Safety Administration introduced the Hours of Service regulations to prevent commercial truckers from spending an excessive number of consecutive hours behind the wheel. When truckers violate these regulations, they (or their employer) can be held liable for any accident that occurs as a result. Evidence of an Hours of Service infraction may include black box data, electronic logging device data, toll booth receipts, timestamped bills of lading, GPS data, and food receipts.