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Archive - Ask Your Attorney

PRODUCT LIABILITY

 “Product liability law,” which is the legal rules concerning who is responsible for defective or dangerous products, is different from ordinary law  in that it makes it easier for those injured by defective products to recover damages.  Liability may be established if a manufacturing defect in the product caused the injury or if a design defect in the product led to injury. Moreover, “inadequate warning” may form the basis of a case. For instance, the product may have been known by the manufacturer to be potentially dangerous, yet it was still sold without a proper warning to the consumer. If you have suffered injury due to a product defect, consult with an attorney about your right of recovery.
HINT: Responsibility for a product defect that causes injury rests with all sellers of the product who are in the distribution chain.
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BITING COMMENTARY

Laws determining liability for dog bites vary according to state and are of two general types: The “one bite rule” focuses on whether the dog’s owner knew (or should have known) that his or her dog would bite and whether the necessary steps were taken to prevent the animal from biting. The recipient of the bite (plaintiff) must provide sufficient evidence to convince the jury that it was “more likely than not” that the defendant knew or should have known the dog might bite. States that have adopted the “strict liability” statutes hold the defendant liable  if a biting event occurs  regardless of whether the defendant could have done anything to prevent it. 
HINT: The “one bite rule” is actually a misnomer  in that it no longer allows dog owners “one free bite”  before they get into legal trouble.

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INJURIOUS FALLS

While we may find the classic banana-peel pratfall performed on stage to be comical, there’s nothing funny about a real-life “slip-and-fall” accident.  These mishaps can be more than just minor incidents for those who land on hard surfaces and suffer fractures, sprains, and strains. Once these injuries are medically addressed, a consultation with an attorney may be warranted to explore the legal concept of “premises liability.” This legal theory holds property owners liable for accidents and injuries that occur on that property. The fundamental question surrounding a slip-and-fall accident involves whether the conditions were unreasonably dangerous. It may also have to be determined what duty or responsibility a property owner owes to another on the basis of that person’s status.
HINT: Under premises liability law, it is necessary to determine if the plaintiff was an “invitee,” a “licensee,” or a “trespasser.” 
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WORKERS’ COMINGS AND GOINGS

While workers’ compensation insurance provides wage replacement and medical benefits to employees who are injured at work, it does not cover employees on the way to and from work. According to the “coming-and-going” rule, accidents that occur while employees are in transit to/from work are the employees’ own responsibility. This rule also pertains to employees who are running errands during the work day that are not substantially related to their employment. However, it should be noted that salespeople, nurses, and other employees for whom travel is a consistent part of their employment may be not be subject to the coming-and-going rule.  Lawyers well-versed in workers’ compensation law can help sort through the legal ramifications in these cases. 
HINT: If an employee runs a work-related errand on his or her way home from work and gets into an accident, any injuries may be compensable under worker’s compensation.
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DON’T BE DENIED

 Workers who have been injured on the job and find themselves confronted with a workers’ compensation carrier’s denial of their legitimate claim should not let the matter rest. The insurer may claim that a worker has not been injured at all or that his or her injury is not serious enough to qualify for disability. The insurer may issue these denials on the basis of the findings of its own private investigation. As aggressive as their stance may be, if an injured worker’s legitimate benefits are denied, he or she should immediately file an appeal with the state appeals agency. It is also probably in a worker’s best interests to hire an attorney to help pursue the claim. 
HINT: Because of the complexities associated with appealing a workers’ compensation decision, it is extremely important to work with an attorney who knows workers’ compensation laws.
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THE “BUT FOR” TEST

In order for plaintiffs’ personal-injury suits to be valid, they must establish that the defendant owed them a duty of care and breached that duty. Plaintiffs must also show that as a consequence of that breached duty, they suffered harm, and the burden of proof does not stop there. In addition, the test of causation requires the defendant to show that the loss or damage sustained by the claimant was not too “remote.” The claimant must prove that harm would not have occurred “but for” the negligence of the defendant. If a plaintiff’s harm could not reasonably be foreseen to be a consequence of the plaintiff’s actions, the law limits the amount of compensatory damages available for the wrong.    
HINT: In some cases, it may be sufficient for a plaintiff in a tort case to show that the defendant’s breach of duty made the risk of injury more probable. 
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CHOICE OF WORKERS’ COMP VENUE
Employees who are hired in one state and injured in another  may apply for workers’ compensation benefits in the other state. It is important to bear in mind that workers’ compensation is “statutory,” which means that each state has developed its own specific sets of laws and benefit levels for injuries subject to workers’ compensation laws. With these differences in benefits in mind, if employees are injured in another state that has higher benefits than their own state’s benefits, they may choose to file a workers’ compensation claim in the state in which the injury occurred. However, it is not always clear which state’s workers’ compensation benefits might apply, which is an issue best handled by an experienced lawyer.
HINT: The circumstances under which an injury is compensable under workers’ compensation may change as one passes from state to state.
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HOW MUCH TIME DO YOU HAVE?

Every state enforces strict time limits for filing a civil action, known as the “statute of limitations.” With few exceptions, if a lawsuit is not filed within the legally prescribed limit, then a plaintiff will be legally barred from suing. Thus, those who have been injured due to negligence or intentional wrongdoing have good reason to meet with an attorney as soon as possible. Statutes of limitation are generally set by state or federal legislatures and may vary with respect to the type of claim and who is the respondent in the suit. The longest statutes of limitation are generally those regarding the recovery of judgments after a lawsuit, which involve losing parties who fail to pay their judgments.
HINT: The general purpose of statutes of limitation is to make sure that convictions are arrived at on the basis of evidence (physical or eyewitness) that has not deteriorated with time.
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A WINNING STRATEGY

Nearly all attorneys take on personal injury cases on a “contingent fee” basis. Under this payment agreement, the lawyer receives a percentage of the judgment as a fee if his or her client wins. If the plaintiff loses, the lawyer receives no fee. Thus, would-be plaintiffs can be fairly certain that entering into a contingency fee arrangement fairly ensures that the lawyer taking the case thinks that it is winnable and fairly easy to prove. In addition, the lawyer will also want to ascertain that there is a fund from which any judgment would come. Because insurance companies usually have the money to pay a judgment or a settlement, it is preferable that the defendant be insured.
HINT: Regardless of whether they win or lose, plaintiffs in personal injury cases will likely have to pay court filing fees, the costs related to deposing witnesses, and other charges.
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SUING FOR MALPRACTICE

Patients who suffer harm as a consequence of a negligent act or omission by a physician and are contemplating initiating a “malpractice suit” against that doctor should understand the negligence standard that applies in these cases. Physicians owe a legal duty of care to their patients. Any injury emanating from an inability or lack of care will ordinarily cause the doctor to be liable for malpractice. The general rule that is employed to determine malpractice is what constitutes reasonable care, skill, and diligence in the community where the professional practices. In the event that community standard has not been met (and other defenses do not apply), the physician is liable for negligence, and malpractice is established.
HINT: One common type of medical malpractice is the “failure to diagnose” in which a competent doctor would have discovered the patient’s illness or made a different diagnosis, leading to a better outcome than the one actually achieved.
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FALLING EXPECTATIONS

Everyone is susceptible to slipping, falling, or tripping at one time or another. However, it is important to determine if someone might be responsible. Property owners are generally responsible for unsafe conditions; however, we all also have an obligation to avoid slips and falls by carefully watching where we are going. Thus, there is no all-encompassing rule for delegating responsibility. Each case depends on whether or not the property owner acted with sufficient care to avoid accident, as well as whether the person who fell acted carelessly by not seeing or avoiding obstructions or slippery surfaces. These are factors that a lawyer can help slip-and-fall victims clarify when assessing the merit of a case.
HINT:  Because it can complicate matters if a slip-and-fall accident occurs on a friend’s property, allow an attorney to separate fact from sentiment.
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INDEPENDENT MEDICAL EXAMS

Workers filing for workers’ compensation benefits will likely be asked to undergo an “Independent Medical Examination/Evaluation” (IME) that is supposedly intended to clarify their medical condition and whether or not their injuries were caused by work-related activities. The IME is supposed to provide a diagnosis, treatment recommendation, and an analysis of possible work restrictions and disability. However, injured workers should bear in mind that the doctors that the insurance companies use to conduct IMEs essentially work for them. Workers should therefore be prepared for questions that are designed to elicit answers that are favorable to the insurance company. Workers are advised to stick with the simple facts and not volunteer unnecessary information that may undermine their cases.   
HINT: To counter any aspects on an independent medical examination that an injured worker deems inaccurate, he or she should engage the services of an experienced lawyer, who can hire another doctor versed in the legal terms specific to worker’s compensation.