The purpose of personal injury claims and lawsuits is to both hold someone responsible for damages to someone else caused by negligence, and to make that someone pay for those damages.   Negligence claims need to prove each of those elements in order to succeed; negligence, damages and causation.  If they are proven to the trier of the law then what remains is a determination of damages, how much are the elements of the damage worth in monetary terms?

We cannot go back in time and undo an act of negligence that might have caused injury to someone, we can only offer an equitable solution by way of civil litigation.  Once a negligence claim is determined to be valid, the court must then award an amount of money to fairly, in the eyes of the law, compensate the wronged party for their damages they suffered.

There are two types of damage awards; compensatory and punitive.  As a matter of public policy, the court must evaluate the behavior of the negligent party and financially punish them in a way that makes sense, taking into account the entire circumstances and mitigating factors of the negligent act or omission and the repercussions of that negligence.

Compensatory Damages

Cases that involve ordinary negligence, or ‘accidents’ most likely will be treated with an award of compensatory damages.  Compensatory damages would be an amount to make the injured party whole or as whole as possible, given the nature of the injuries.  Someone who loses a leg in a car accident, for example, cannot be given their leg back, however, the court may award enough money for a prosthetic limb and significant rehabilitation and other calculable damages.

Compensatory damages come in the form of payment for economic damages as well as non-economic damages.  Economic damages are losses that involve money; medical bills, income loss, property loss, essential service requirements, legal fees and other losses where money is spent or lost only because of the injuries resulting from the negligence.   Non-economic losses are more intangible, therefore, more difficult to determine.  Non-economic damages include emotional distress, pain, discomfort and suffering from the injuries sustained as well as any physical impairment and/or visible scarring.  Compensation may also be considered for inability to enjoy one’s hobby as before, or even the inability to act as ‘husband and wife’ due to injuries sustained by negligence.

Compensatory awards are the more common type of awards as the civil courts are generally thought to be the ‘courts of equity’.  Compensatory damages are more conservative in nature and not used to punish the negligent party as the act or omission was determined to be ordinary in nature.  For someone who is experiencing chronic pain from a negligent act, compensatory damages may seem to fall short of the mark from their prospective.  Judges and juries rarely offer further damage awards unless there are findings of a more serious negligence.

Punitive Damages

There are times when the negligence of a person rises to the category of gross carelessness or willful and wanton behavior.  It is for these more serious acts or omissions that punitive damages are considered and possibly awarded.

 

These are damages that can be awarded to an injured person in addition to any compensatory damage award.   Punitive damages are meant as a punishment.  The liable party is meant to ‘feel’ the loss of money as a real and lasting act of retribution propagated by the court system.  The facts of the case must demonstrate that there was willful disregard for the safety of the injured party and maybe the safety of others.

Punitive damages also are meant to send a message to the public at large.  The size of the award is in many instances equal to the disdain the court holds for that type of negligence the liable party was found responsible for.  Public safety may be at issue and others who might be engaging in, or likely to engage in, the same negligent behavior are put on notice that the courts do not approve of those actions and the courts will punish those who engage in them.

Punitive damage awards are not ordinary, yet they do make the news occasionally as the amount of money awarded can be very large and at times seem ‘over-the-top’.   A personal injury attorney would be able to assist an injured person in their claim for damages and help in determining if these facts would lead to a punitive damage award in addition to compensatory damages.

When a manufacturer produces a product, all of the potential dangers must be printed on a warning label before it can be distributed to consumers. Though the actual laws regarding manufacturer duties are broad and vary from state to state, there are two minimum duties that must be fulfilled:

1.  A manufacturer is required to warn consumers of any dangers that may be present while using a product.

2.  A manufacturer must provide instructions to users on how to safely use a product in order to avoid dangers.

When is a Warning Required?

A warning is required when:

• A product presents a danger to the consumer;
• The manufacturer is aware or should be aware of the danger;
• Danger is present when the product is being used in its intended manner, or through an anticipated misuse; and
• The reasonable user would not be immediately aware of the danger.

But what happens when a warning label is simply not enough to keep people safe? What if the dangers could be eliminated or significantly reduced before a product hits the store shelves? From a legal standpoint, there are two sides to product liability:

Point of view of minority of states - If a manufacturer warns of all the potential dangers, it is not liable for consumer injuries

Point of view of majority of states - A warning is not enough if a manufacturer recognizes potential dangers and a fix can be made, as long as:

1. It is cost efficient
2. The product remains desirable for its originally intended use

Two scenarios below will compare and contrast each point of view above.

Scenario 1 – An individual ruptures an eardrum while using a Q-Tip.  The Q-Tip box has a warning, but no safety feature to keep the eardrum safe.

Scenario 2 – A person cuts off a finger with a miter saw.  In this scenario, the miter saw has a warning, but no shield to keep the fingers from the blade.  (Pretend the picture doesn’t show a shield.)

Question 1 – Is there a foreseen harm while using the product either from use or misuse?

Scenario 1 – Yes. Potential harm to the ear from the Q-tip.

Scenario 2 – Yes. Potential harm to the hand from the miter saw.

Question 2 – Is a warning required for the product?

Scenario 1 – Yes.  A foreseeable danger that is present.

Scenario 2 – Yes. A foreseeable danger that is present.

Question 3 – This is where we will compare the two points of view.

Point of view #1 – Is a warning sufficient for each product?

Scenarios 1 and 2 – Yes. So long as the manufacturer warns of the danger, it is 100% up to the user to avoid accidents.

Point of view #2 – A warning is not enough sufficient if there is an easy fix.  So, is there an easy fix?

Scenario 1 – A warning is enough because there is no easy fix.  There is not an available fix or modification that would improve the safety of the Q-tip, while also preserving the desirability of the product.  If you make a Q-tip too big to fit in the ear, no one would want the Q-tip. Therefore, a warning is sufficient.

Scenario 2 – A warning is not sufficient because it is easy to add a shield. By adding a shield, the saw is safer to use. In this case, POV #2 shows that if an inexpensive modification can be made to a dangerous product, a warning is not sufficient.  (By the way, this is exactly why they put shields on miter saws.  Without lawsuits forcing manufacturers to put shields on the saws, most would still only have warnings – leading to more accidents.)

Which Point of View is Correct?

It is our point of view that the burden should be put on the manufacturer.  The real question is: Who is in the best position to stop the most accidents?  While individuals shouldn’t put their fingers in the way of saw blades and shouldn’t put Q-tips too far into the ear canal, we all know that some people will by accident.  In the end, it is the manufacturer who can, in certain situations, can stop accidents.  And if the manufacturer can stop accidents through cost effective means without damaging the function of the product, then the manufacturer should.  This is why we have seatbelts, airbags and child-safe pill bottles.  This doesn’t mean that individuals should be careless.  Instead, it means that society recognizes that the manufacturers are in the best position to prevent most accidental injuries.

 

After being involved in a personal injury accident, your primary concern should be seeking medical attention. Once you have been evaluated, be sure to take plenty of pictures of your injuries. Photographs constitute a significant part of a personal injury claim. They are considered valuable evidence that can help prove the extent of your injuries, determine who was at fault, and could lead to the compensation you deserve.

Here are some tips when taking personal injury photographs for your claim:

1. Take them promptly – Try to take photographs of your injuries as soon as possible. Some injuries may appear healed on the surface soon after they happen, but they could still cause long-term pain and suffering that you could be compensated for; so it is best to photograph each injury as soon as they appear.
2. No smiling – Personal injury photographs are considered legal documents and should be taken with professionalism.
3. No jewelry – Keep the viewers’ attention on the injuries, not on potentionally distracting accessories.
4. Keep the image free of other objects – Your photographs should be clear of clutter and other objects that are not related to your personal injury claim, e.g., household objects, other people, pets, etc.
5. A whole body picture – Be sure to take a picture of the whole person. This thoroughly identifies who has the injuries and where the injuries are located in relation to other parts of the body.
6. Medical devices – In your pictures, include any casts or braces that you are wearing that your doctor prescribed.
7. Surgical sites – Take a picture of any surgical sites that you have pertaining to your accident.
8. Close ups – Zoom in on pictures of bruises, burns, scars, and other ailments related to your accident. Pictures should be taken from various angles, as some skin marks can appear washed out when photographed at direct angles.
9. Take evolving pictures – Over time, your injuries will change in appearance and it is important to capture those changes for your claim.

Include a processing date on the pictures – When you get the pictures developed, be sure that a processing date is included on the back. This establishes the relative date that the pictures were taken. Also have your pictures backed up on a digital device such as a flash drive or cd.. They are considered valuable evidence that can help prove the extent of your injuries, determine who was at fault, and could lead to the compensation you deserve.

 

Following a motorcycle accident, there are necessary steps that you must take in order to protect yourself when it comes time to file claims. Once the accident occurs, check yourself for any injuries. Sometimes after a traumatic experience such as a traffic accident, it is common to be too shaken up to realize that you have been injured.

Once you have examined yourself, go check on any other motorists that were involved in the crash. Call 911 if necessary, and then wait for the responding officer to report to the scene. Make it a point to write down the make, model, color, and license plate number of all the vehicles involved. While you wait, get witness information from anyone who may have seen the accident. Take down their names and phone numbers, that way statements can be gathered from them later. Some of the questions that your attorney will ask the witnesses include: general descriptions of what they saw, speeds, distances, and their formal statements of the events.

One of the most important steps to take following an accident is to take pictures of everything, from every angle. Use your cell phone camera if you have one, or keep a disposable camera in a safe compartment in case of an accident. Pictures are valuable documentation that will make or break your case. Here is a list of what you should take pictures of:

• The accident scene in its entirety
• Your bike from all angles and distances
• The other vehicle(s) from all angles and distances
• All visible injuries you sustained, as well as those of the other motorists (if consented to)
• Skid marks, if any
• Any vehicle debris, including broken glass, that is on the ground
• Environmental conditions, such as sunlight or precipitation

Remember to never leave the scene of an accident before the responding officer determines who is at fault, as you could be criminally charged. The officer will write up a Traffic Collision Report (TRC) that includes the contact information for everyone involved in the accident, including the other driver’s insurance company, allowing you to take the necessary steps to file a claim.

As part of Nevada law, you must file a SR-1 report following an accident if there is over $750 in damage or if you were injured. This letter must be downloaded and taken to the Department of Motor Vehicles. This form can be found here.

FOLLOWING THE ACCIDENT

Once the accident scene has been thoroughly handled by the responding officer, go to the emergency room. If you do not report injuries and obtain medical documentation, you were not injured in the accident. Disregard hospital fees, as your attorney will work to get you reimbursed. Not only must you go to the ER directly following an accident, but you must follow up with your doctor to prevent insurance companies from claiming you had a “gap in treatment” that may be held against you when filing a personal injury lawsuit.

A variety of injuries can be sustained from a motorcycle accident, including but are not limited to:

• Bone fractures, with the most common injury being a broken leg
• Road rash, from mild to severe
• Head injuries, such as traumatic brain injury (TBI)
• Spinal injuries
• Disfigurement, such as facial fractures

 

After you take care of medical documentation, get your motorcycle out of impound. You are the owner will be responsible for all fees associated with the transport and storage of it regardless of who is at fault in the accident. If you wait too long to retrieve your motorcycle, it will go up for “Lien Sale,” and you will still be required to pay towing and storage charges. In general, pick up your motorcycle as soon as possible, and your attorney will work to get you reimbursed later.

Open a Claim with Your Insurance

While you may believe that you are not at fault for the accident, you are still required to file a claim with your insurance company. If your coverage includes property damage, get your motorcycle repaired or replaced and work with your attorney to get any fees reimbursed.

Keep in mind that if the other motorist’s insurance calls you for a statement, you must be extremely careful with what you say, ideally you should refuse to give a statement at all as you do not have a contractual obligation to cooperate with them.

Let Your Attorney Help

If you are injured following an accident, the most important thing you should focus on is your recovery. A trustworthy personal injury attorney will assist you with your documentation needs, as well as working with your insurance.

Consuming contaminated food can result in food poisoning, opening the door to a possible defective product liability claim or a personal injury claim. Food poisoning is defined as an illness caused by consuming food infected with bacteria, viruses, or parasites.  The most challenging part of food poisoning cases is proving the exact food that made you sick and where that food came from.

There are three main legal theories that food poisoning cases could fall under. Below are the descriptions of each theory:

Strict product liability – In most states, there are strict laws involving the food that manufacturers produce and for the suppliers who distribute that food; both parties are responsible for providing non-contaminated food. If you become ill upon eating their food and can prove that their food is what made you sick, you could make a claim against them.

Breach of warranties – Some packaged foods come with a statement of guarantee, which is a promise that the food manufacturer makes regarding the quality of the food. An express warranty or guarantee generally requires the following:

• A statement of fact and/or a promise;
• The inclination for a consumer to purchase the product; and
• The product buyer’s injury resulting from the reliance on the stated fact and/or promise

An example would be a “thoroughly washed” sticker on a produce product. If you can prove that this food item made you sick, there could be a breach of warranty claim brought against the manufacturer.

Negligence – If a manufacturer or supplier provided food that made you ill, proving that they were negligent by distributing a contaminated food could be another legal basis for making a claim. In this case, you must be able to show that a food manufacturer or supplier was not reasonably careful, or “failed to exercise reasonable care,” in the production or distribution of the contaminated food.

Chain of Food Distribution

The typical chain of distribution for food poisoning lawsuits is as follows:

Food processing company (farm or slaughterhouse)
Retailer (market, grocery store, or restaurant)
Suppliers or distributors in between.

The Challenge

In food poisoning cases, proving your claim is generally the most difficult aspect. In order to win your lawsuit against a food manufacturer or supplier, you will generally need to prove two things:

1. The food you consumed was contaminated

In most cases, there is a time delay between the time you consumed a contaminated food and when you became ill from it. Because of this, it is usually quite challenging to pinpoint the exact food that made you sick. However, when there is a public notification from a government agency regarding a specific food poisoning outbreak, it is easier to identify the contaminated food. Providing solid evidence will make your case much stronger, such as providing scientific testing results that identify the disease-causing microbes that were present in the food.

 

2. You became sick from the contamination
   The second part of your case is proving that the contaminated food is what caused you to become ill. Generally, a stool sample is the best method when linking the contaminated food to your illness. If the disease-causing microbes in your stool are the same as the microbes in the contaminated food, your case will stand much stronger in a lawsuit.

Timeline for Filing a Claim

For personal injury and product liability claims, there is a specific amount of time that you are legally able to file a lawsuit; this is called the “statute of limitations.” Every state has their own time limits, so be sure to find out how long you have. In Nevada, the statute of limitations for a product liability claim is 2 years.

Also be aware if there are class action lawsuits currently active regarding an outbreak of food poisoning. In most cases, joining a class action lawsuit is easier. Here are a few advantages of joining a class action lawsuit versus pursuing your own lawsuit:

1. The lawyers who have taken the class action lawsuit will become legal representation, releasing you from the burden of finding a knowledgeable and experienced lawyer on your own
2. Most likely, you will have minimal to no upfront costs or fees
3. Complicated legal issues will be figured out for you, such as where to file your claim and what type of lawsuit is most relevant

Get Legal Help

Once you have become ill, write down all of the facts surrounding the chain of events leading up to your illness. This includes what you have eaten, where you have eaten, whether others consumed the same food, as well as your symptoms. This information will help you figure out your next steps. Depending on your case, a personal injury claim may make more sense than a product liability claim. Contact a personal injury attorney to see what your options are.