Articles Posted in General Legal

Under certain circumstances, federal statutes limit a plaintiff’s damages in some way. Of course, first it is important to understand the different types of damages

Types of Damages

Compensatory damages are intended to make up for an injury sustained by a victim. There are two basic types of compensatory damages: actual and general. Actual damages compensate the victim for any money they paid out of pocket for medical treatments, lost wages, property replacement, and rehabilitation as a result of their injury. General damages include mental anguish, disfigurement, future medical expenses, future lost wages, long-term pain and suffering, loss of consortium and loss of opportunity.

Premises liability holds the owner or occupant of a piece of property legally responsible for any accidents or injuries that occur on the property. One recurring premises liability situation occurs when members of the public are injured on or by governmental property. A large number of properties, which many people will not consider, are government-owned, including public parks, government office buildings, public sidewalks, and bridges. Injuries on government property may also result from defects on a public sidewalk, faulty traffic signal, improperly cleared ice, or a cut from broken playground equipment.

“Sovereign immunity” previously protected governments from lawsuits. Now, the federal government and many state governments, including California, have tort claims acts that allow the government to be sued and found liable in a limited number of circumstances. Determining which tort claims statute applies will depend upon whether the injury resulted on or by federal government property, state government property, or local government property.

Under the California Tort Claims Act, the victim is required to file a claim against the state or local government entity within six months of the injury. If the victim misses the deadline, a claim may still be allowed but only in very limited circumstances. After the claim is filed, the government has 45 days to respond. If the government fails to respond to the claim, it is treated as rejected and the victim has six months to file a lawsuit. If the governmental entity fails to notify the victim of a decision within 45 days, then the victim has 2 years from the date of the injury to file a lawsuit. Under the California Tort Claims Act, the victim cannot recover punitive damages and the governmental entity can elect to make installment payments if it does not have commercial insurance.

The Consumer Product Safety Commission, an independent U.S. government agency tasked with regulating the sale and manufacture of more than 15,000 different consumer products, compiled information based upon medial reports regarding child drownings in pools and spas during the summer of 2012. One-hundred thirty-seven children under the age of fifteen years drowned in a pool or spa during the traditional summer swimming seas from Memorial Day to Labor Day during 2012.

In addition, one-hundred sixty-eight children, aged fifteen or younger, required emergency responses for near-fatal incidents in pools or spas during the same period. Specifically, during the summer of 2012, California had ten children under the age of fifteen drown in a pool or spa. While these figures cover only the summer of 2012, it is important to remember that with many indoor community pools, hotel pools and outdoor pools in warm-weather areas like southern California, the danger has does not necessarily end with summer. Typically, there are 390 pool or spa-related drownings that occur each year for children younger than fifiteen, based on statistics from the last few years. About 5,200 pool or spa-related emergency department treated submersion injuries occur each year for children younger than fifteen.

The Consumer Product Safety Commissions statistics indicate that fifty-four of the child drownings occurred soon after the children left an adult who was in their immediate vicinity. In addition, thirty-one children drowned despite the presence of others at the pool.

The number one question most personal injury lawyers get from clients is “what is my case worth?” It’s a delicate question that requires a delicate answer. No honest attorney can answer that questions with absolute accuracy, and the truth is that ten juries might give an injured plaintiff ten different verdicts.

The difficulty in valuing personal injury cases usually because general damages are so difficult to value. General damages are commonly referred to as “pain and suffering” damages, but are really much more than just the pain and suffering someone has endured due to a personal injury accident. Indeed, the California jury instructions describes those damages to include shock, anxiety, worry, embarrassment, disfigurement, grief, fear, the loss of enjoyment of life, in addition to pain and suffering. There is no set value on general damages and these damages are determined on a case by case basis.

An ongoing case here in San Diego illustrates the difficulty in valuing pain and suffering damages in injury and death cases. In 2008, a Navy jet malfunctioned and crashed into a suburban San Diego neighborhood. The crash was tragic, and claimed the lives of four people, the wife, mother-in-law, and two infant children of Don Yoon, who was not in the home at the time. As a result of the crash, Yoon sued the Navy, who has admitted its liability for the accident. The trial that began this week is simply about the value of the case.