1564 First Street, Napa, CA 94558 • 707-252-8644 • onecal1@saber.net
Personal Injury Practice
Personal injury covers a broad spectrum of injuries. Included in personal injury is everything from a slip and fall at your local grocery store, to the injuries resulting from an automobile accident.
The most common theory of recovery for personal injury is negligence. Negligence is the idea that some one has breached their duty of reasonable care under the given circumstances. In order to determine if some one was negligent you must determine what a reasonable person would do in a similar situation, and if your injury occurred because some one failed to live up to that reasonable standard then it is possible that you may be entitled to recover.
In many cases, while there may be injury, and clear cut liability on the part of one party, that does not mean that you are entitled to recover millions. Often times, especially in the instance of automobile accidents, insurance companies are involved, and any attempt at recover will often be done through negotiation with an insurance agent. Insurance companies are obviously in the business of paying out as little as possible, thus it is important to have clear evidence as to the damage caused to strengthen your negotiation position with the insurance company.
One of the important measures of how much you are likely to be able to recover, is the amount of the medical expenses which you have incurred. When going into an attorney’s office for a consultation it is a good idea to have some idea of how much your medical expenses are before heading in. Medical expenses mean the amount that the hospital or doctors office actually charges or attempts to charge you or your insurance, not the amount your insurance actually paid, or the amount of your co-pay.
In many cases you will also be able to recover for damages to any property you have that was damaged or ruined in the incident, and lost wages if the injury was serious enough to keep you out of work.
If you are not severely injured and are only pursuing a claim for a small amount you are at a serious disadvantage in your attempt at recovery. In many instances, the amount that you might be able to recover is too small for it to be worth while to have a lawyer help you with the case, but bigger than, the amount you could otherwise recover in small claims court.
Typically in small claims court you are limited to $5,000, but if you haven’t filed a small claims action in several years, and you are a natural person (ie not a corporation) you can file a claim for $7,500. Just because you file for $7,500 doesn’t mean that you will be granted the $7,500 as you still have to present your case in court, but it allows you a chance at recovery. This low small claims threshold however does a disservice to people who have damages in the $10,000 -$15,000 range as the insurance company is likely to settle for less in those cases because they know the best you can hope to recover in court is $7,500. This is something to keep in mind when speaking with agents for the insurance company, since worst case scenario they tell you to go file paperwork at the court house because they aren’t going to pay.
In some cases you do not have to prove that a party was negligent in order to recover. There is a second theory of liability which covers products. If a product was constructed poorly or designed poorly, and you are injured as a result of its use, then you can sue the manufacturer on a theory of strict liability. The theory of strict liability goes something like this: The company manufactured a product, you used it and were injured because it was poorly made or designed and you are therefore entitled to recover. In such a case your burden shifts from having to prove negligence to having to prove that the product was defectively manufactured, or defectively designed.
It isn’t quite that simple but that is the underlying premise of the theory. One thing to note is that warnings on products can have an impact on your ability to recover on a strict liability theory. This is why almost everything that you purchase these days has some sort of warning printed directly on the product, these warnings are an attempt by the manufacturer to limit their potential liability. Also there are defense if you were using the product in an unintended or unsafe manner.
In the typical case, you will not immediately know the full extent, and expense that your injury is going to cost. It often makes sense to wait several months before accepting a full settlement from an insurance company, so that you can more properly evaluate the full extent of your injury. However all personal injury cases have a statute of limitations, which means there is a specific amount of time you have before you either have to have the case settled or a law suit on file. It is important to determine what the statute of limitations is and make certain that you do not exceed it, or you will be completely denied any recovery. As long as you have filed a law suit before the statue of limitations has run, you will preserve your ability to pursue the case and obtain a recovery.
