In addition to statute of limitations restrictions, there are defenses that may be used to combat a wrongful death suit. The available defenses are limited to those that could have been made against the decedent had he lived and brought his or her own claim for personal injuries. The main defenses are causation, comparative negligence, and imputed comparative negligence. If either of these defenses is viable, it may bar a plaintiff from recovery or reduce the amount of damages awarded.
Causation
In order to hold a defendant responsible for wrongful death, you must prove that the defendant’s conduct was the cause of the decedent’s death. The defendant does not have to be the sole cause of death, but they must be implicated somehow. There has to be at least be a connection between the defendant’s conduct and the injury, such that the injury would not have occurred without the defendant’s actions.
Here is an example: If a person was killed on Super Fun Land’s amusement ride in part due to improper maintenance of a seat belt, but also because another rider pushed the decedent off the seat, Super Fun Land may still be found liable for damages.
Often, the period when the fault occurred and when death results can take seconds, as in the case of a car accident where a victim dies at the scene but it can also be a matter of months, as where a doctor prescribes the wrong medication that over time results in the patient’s death. The period between the fault and the injury, however, is not a controlling factor necessary to show proximate cause. For example, if a decedent died due to injuries he received in an accident three months ago, the negligent wrongdoer is still liable.
The continuous causal connection between the fault and the injury is the important element necessary to prove causation in a wrongful death suit. The continuous causal connection is a direct line that links the fault to the injury. The line represents the sequence of events that occur from the point of fault to the point of injury. In a car accident case, the defendant’s car crashed into the victim’s car and the victim died. In that instance, there was an obvious connection between the fault (the auto crash) and the injury (death).
The defendant will not be found responsible if there is no direct causal connection. If prior to death, the decedent did not exercise reasonable care in obtaining treatment for the injury, it might be found that the proximate cause of the decedent’s death was not due to the defendant’s conduct or activity, but rather due to the decedent’s own actions.
Here is an example: A person gets a serious head injury and does not get immediate medical attention. After trying to deal with the injury themsevles, the person goes to the hospital. While at the hospital, the person dies from his or her injuries, while the hospital was delayed in trying to diagnose the injury. Although, the hospital may have been negligent in its treatment, the proximate cause of death may be found to be the person’s failure to seek medical attention if earlier treatment may have prevented his or her death.
Comparative Negligence
Comparative negligence is conduct by the decedent that contributed to his or her own death. Here is an example: A person riding a bicycle at night without brakes or light reflectors who is later struck and killed by a truck may be comparatively negligent.If a decedent is comparatively negligent, the amount of any damages awarded may be reduced by the percentage of fault assigned to the decedent. If the decedent is found to be 50% at fault, their damages awarded would be reduced by 50%. The defense of comparative negligence, however, is a fact for the jury to consider and it generally cannot be determined until after a case begins.
Imputed Comparative Negligence
In some instances, one of the beneficiaries may be comparatively negligent or responsible for the decedent’s death. In some states, if one beneficiary is partially or wholly at fault in the decedent’s death, the other beneficiaries cannot sue for wrongful death. In Florida, however, only a beneficiary who is partially at fault cannot recover damages. If a suvivor is found to be negligent, the non-negligent survivor’s recovery cannot be reduced due to another survivor’s negligence. Frazier v. Metropolitan Dade County, 701 So.2d 418, 420. (Fla. 3d DCA 1997).
Tuesday, October 27, 2009
Friday, October 23, 2009
Damages for Wrongful Death
Damages in wrongful death cases are intended to compensate for losses resulting from the death of a family member. Some losses are measurable a widow in a wrongful death suit could seek to recover the financial support that she would have received had her spouse lived. Other damages are more general and abstract in nature.
Types of recoverable damages include:
Direct Expenses: medical bills and funeral cost.
Loss of Companionship: what the person who died would have emotionally provided to a relationship, and the mental pain and suffering resulting from the decedent’s death.
Punitive Damages: what amount the defendant should be punished for his or her action resulting in the victim’s death.
Loss of Benefits: what the person could have received in pension/retirement benefits had they lived.
Loss of Future Earnings: what the person who died would have earned in salary if he or she had lived.
Amount of Damages
Calculating damages is a complex process involving multiple factors. Some factors include (1) how dependent the plaintiff was on the decedent; (2) the nature of the relationship with the decedent; (3) the anticipated lifespan of the decedent, (4) the anticipated earnings and other benefits of the decedent, and (5) the presence of any comparative fault. Often, determining the appropriate amount of damages for a particular element can be difficult. For example, when addressing damages for loss of companionship, a jury must attempt to come up with a dollar amount for the emotional loss you suffered from the decedent’s death.
An important element in wrongful death damage calculations is in estimating expected or future income losses. Future losses are the amount of earnings and benefits the decedent would have earned if he or she had lived. The common practice is to take the victim’s earnings at the time of his or her death and calculate the remaining years until retirement (or expected death) to determine future loss of earnings.
Here is an example: Suppose a spouse, 35 years of age, was earning $25,000 a year at the time of his death. Since he was not expected to retire or die for another 35 years, his yearly earnings at the time of his death would be multiplied by the number of years he was expected to work before retirement or expected death ($25,000 X 35 years). In this instance, his future loss is $875,000.
This is only a simple explanation of how future loss calculations are made; most of the time these calculations can get very complicated. In most cases, a life expectancy table is used to estimate the number of years the decedent would have lived had they survived. Instead of just using retirement age as a standard for life expectancy, a life expectancy table may consider other factors that may increase or decrease the number of years the decedent would have been expected to live, which would then affect the amount of damages you would receive for future loss.
Present Value
When using a life expectancy table to calculate future losses, courts will often reduce the total future loss to a present dollar value. Because most wrongful death damage awards are paid in a lump sum, a beneficiary essentially receives the total amount of earnings and benefits the decedent would have made over the course of his/her life, reduced to a single amount which is discounted to present dollars.
How is present value calculated?
In order to calculate present value, the future loss is first calculated using the life expectancy table. Once the future loss amount is calculated, it is then discounted using a mathematical table. The mathematical table estimates today’s value of one dollar in the future based on the number of years the decedent was expected to live and an agreed upon annual interest rate. After that is determined, the estimate from the table is multiplied by the decedent’s yearly salary.
The purpose for using present value is that a successful plaintiff will receive a sum that, if invested at a reasonable interest rate, should equal the value of the future loss amount and cover expenses that may eventually arise if it is conservatively invested. Unfortunately, figuring out the present value of future loss is not as simple as it first appears.
Here is an example: A spouse works in a department store earning $20,000 a year. Assuming he works there for the next 40 years, he will make a total of $800,000 by the 40th year. The spouse suddenly dies as a result of a wrongful death. The surviving spouse would recover a lump sum payment designed to compensate her for the $800,000 loss, discounted to present dollars.
Types of recoverable damages include:
Direct Expenses: medical bills and funeral cost.
Loss of Companionship: what the person who died would have emotionally provided to a relationship, and the mental pain and suffering resulting from the decedent’s death.
Punitive Damages: what amount the defendant should be punished for his or her action resulting in the victim’s death.
Loss of Benefits: what the person could have received in pension/retirement benefits had they lived.
Loss of Future Earnings: what the person who died would have earned in salary if he or she had lived.
Amount of Damages
Calculating damages is a complex process involving multiple factors. Some factors include (1) how dependent the plaintiff was on the decedent; (2) the nature of the relationship with the decedent; (3) the anticipated lifespan of the decedent, (4) the anticipated earnings and other benefits of the decedent, and (5) the presence of any comparative fault. Often, determining the appropriate amount of damages for a particular element can be difficult. For example, when addressing damages for loss of companionship, a jury must attempt to come up with a dollar amount for the emotional loss you suffered from the decedent’s death.
An important element in wrongful death damage calculations is in estimating expected or future income losses. Future losses are the amount of earnings and benefits the decedent would have earned if he or she had lived. The common practice is to take the victim’s earnings at the time of his or her death and calculate the remaining years until retirement (or expected death) to determine future loss of earnings.
Here is an example: Suppose a spouse, 35 years of age, was earning $25,000 a year at the time of his death. Since he was not expected to retire or die for another 35 years, his yearly earnings at the time of his death would be multiplied by the number of years he was expected to work before retirement or expected death ($25,000 X 35 years). In this instance, his future loss is $875,000.
This is only a simple explanation of how future loss calculations are made; most of the time these calculations can get very complicated. In most cases, a life expectancy table is used to estimate the number of years the decedent would have lived had they survived. Instead of just using retirement age as a standard for life expectancy, a life expectancy table may consider other factors that may increase or decrease the number of years the decedent would have been expected to live, which would then affect the amount of damages you would receive for future loss.
Present Value
When using a life expectancy table to calculate future losses, courts will often reduce the total future loss to a present dollar value. Because most wrongful death damage awards are paid in a lump sum, a beneficiary essentially receives the total amount of earnings and benefits the decedent would have made over the course of his/her life, reduced to a single amount which is discounted to present dollars.
How is present value calculated?
In order to calculate present value, the future loss is first calculated using the life expectancy table. Once the future loss amount is calculated, it is then discounted using a mathematical table. The mathematical table estimates today’s value of one dollar in the future based on the number of years the decedent was expected to live and an agreed upon annual interest rate. After that is determined, the estimate from the table is multiplied by the decedent’s yearly salary.
The purpose for using present value is that a successful plaintiff will receive a sum that, if invested at a reasonable interest rate, should equal the value of the future loss amount and cover expenses that may eventually arise if it is conservatively invested. Unfortunately, figuring out the present value of future loss is not as simple as it first appears.
Here is an example: A spouse works in a department store earning $20,000 a year. Assuming he works there for the next 40 years, he will make a total of $800,000 by the 40th year. The spouse suddenly dies as a result of a wrongful death. The surviving spouse would recover a lump sum payment designed to compensate her for the $800,000 loss, discounted to present dollars.
Tuesday, October 20, 2009
Automobile Damage FAQ
Car Repair Questions
Can I control whether my car is repaired or replaced?
How is the market value of my car determined?
What if I am “upside down” on the loan for my car?
Can I choose my own repair shop?
What kind of parts will be used in the repair?
What if my car already had some damage before the accident?
Will I have to pay the towing and storage costs?
What about license and registration fees that I had to pay to drive the car?
Rental Car Questions
What if I need a rental car? Do I have to pay for it while my car is being repaired?
What kind of rental car am I entitled to?
Should I purchase any extra insurance on the rental car provided to me?
Can I control whether my car is repaired or replaced?
Like most individuals, not having the use of your car due to an accident is a major inconvenience. Normally, the insurance company has the option to either repair or replace your vehicle, depending on whether it costs less to replace your vehicle than to repair it. If this is the case, the insurance company will declare your vehicle a “total loss,” and take action to replace your vehicle. If your car is declared a “total loss,” the insurance company buys your car for its market value, which may be determined by a source such as the Kelley Blue Book. If you wish to keep the wrecked car, you may purchase it back from the insurance company for its salvage value. The insurance adjuster can deduct the salvage value from the settlement and you can keep the car if this is the case, you may choose to use your own money to repair your car to bring it back to a safe and drivable state.
Often the situation is reversed, and the insurance company chooses to repair a vehicle rather than replace it. In this case, if you are concerned about the safety of the repaired vehicle, you should contact our office to discuss your options.
How is the market value of my car determined?
You are entitled to recover the “fair market value” or the “actual cash value” of your vehicle immediately before the accident. One common source used to estimate fair market value is the Kelley Blue Book. Other sources of information are the local newspaper or the Auto Trader, which may list the for-sale price of cars of the same make, model, and year as yours. Occasionally, an expert vehicle appraiser is used to help prove the value of your vehicle.
What if I am “upside down” on the loan for my car?
If you are upside down on a loan, it means that you owe more money on the loan than the fair market value of the car. Unfortunately, if your vehicle is a total loss, the insurance company is not required to pay more money to you simply because you are “upside down” with your car loan. They are only required to pay the “fair market value” of your car.
Can I choose my own repair shop?
Yes. You are allowed to take your car wherever you wish to have it repaired, however the cost of the repair is not always determined by the estimate given by the repair facility of your choosing.
What kind of parts will be used in the repair?
You have the right to demand that only original manufacturer parts be used in the repair, so if your car is a Saab, you should receive genuine Saab parts. Your car was likely not brand new at the time of the accident, so the mechanic repairing your car may choose to use refurbished or reconditioned parts.
What if my car already had some damage before the accident?
Your vehicle may have had damage prior to the accident, and it can be difficult to determine exactly what portion of the damage was caused by the accident itself. For example, if your car has a mechanical problem, the insurance company may claim that it was a preexisting problem if some evidence indicates that the vehicle may have sustained substantial wear and tear. Therefore, it is important that you prove the connection between the auto accident and the damage you are claiming. Normally, mechanics and collision repair personnel can help to prove the age of body damage or the cause of a mechanical failure. They can assist to convince the insurance company that the auto accident caused the damage you are claiming.
Will I have to pay the towing and storage costs?
The insurance company for the driver who caused the accident will customarily pay the reasonable towing and storage costs, unless there is a dispute as to who was at fault in the accident. If the insurance company declares the car a total loss, they will have the car moved to a wrecking yard or a free storage area. If you do not wish to allow the insurance company to move your car, you will have to pay the storage costs from the day of your refusal forward, or you can pay to have it towed to your home.
What about license and registration fees that I had to pay to drive the car?
To drive and operate a motor vehicle in the United States, one has to pay license and registration fees. In some states, you are entitled to be reimbursed for the prorated amount of these costs that are unused. The insurance company may reimburse you for tag transfer fees and, in some cases, a prorated amount of sales tax on the actual cash value of the car at the time of the accident. You may choose to contact a Florida auto accident lawyer to learn whether license and registration fees are recoverable in your case.
What if I need a rental car? Do I have to pay for it while my car is being repaired?
You must pay for your own rental car if you were the cause of the accident, or if there is some dispute over who is to blame. You may seek coverage under your own insurance policy to see if rental coverage is available. Many insurance contracts do not provide for rental coverage for their own customers, so you need to contact your insurance agent to determine what coverage exists.
If the other driver is at fault, then your attorney may demand that the insurance company for the person who caused the accident provide you with a rental car for the time needed to repair your vehicle. On certain occassions, you must pay the rental car bill first, with reimbursement coming from the insurance company later.
What kind of rental car am I entitled to?
The insurance company has to pay for the reasonably incurred rental cost of a substitute vehicle. Often, there are disputes as to what qualifies as a “substitute” vehicle. Essentially, it should be a vehicle of similar quality, within the confines of what is available for rent.
Should I purchase any extra insurance on the rental car provided to me?
Your own insurance policy should cover you while driving the rental car, but you should call your insurance agent to be sure that you are covered. The other driver’s insurance company is not required to pay for additional insurance if you choose to purchase it from the car rental company.
Can I control whether my car is repaired or replaced?
How is the market value of my car determined?
What if I am “upside down” on the loan for my car?
Can I choose my own repair shop?
What kind of parts will be used in the repair?
What if my car already had some damage before the accident?
Will I have to pay the towing and storage costs?
What about license and registration fees that I had to pay to drive the car?
Rental Car Questions
What if I need a rental car? Do I have to pay for it while my car is being repaired?
What kind of rental car am I entitled to?
Should I purchase any extra insurance on the rental car provided to me?
Can I control whether my car is repaired or replaced?
Like most individuals, not having the use of your car due to an accident is a major inconvenience. Normally, the insurance company has the option to either repair or replace your vehicle, depending on whether it costs less to replace your vehicle than to repair it. If this is the case, the insurance company will declare your vehicle a “total loss,” and take action to replace your vehicle. If your car is declared a “total loss,” the insurance company buys your car for its market value, which may be determined by a source such as the Kelley Blue Book. If you wish to keep the wrecked car, you may purchase it back from the insurance company for its salvage value. The insurance adjuster can deduct the salvage value from the settlement and you can keep the car if this is the case, you may choose to use your own money to repair your car to bring it back to a safe and drivable state.
Often the situation is reversed, and the insurance company chooses to repair a vehicle rather than replace it. In this case, if you are concerned about the safety of the repaired vehicle, you should contact our office to discuss your options.
How is the market value of my car determined?
You are entitled to recover the “fair market value” or the “actual cash value” of your vehicle immediately before the accident. One common source used to estimate fair market value is the Kelley Blue Book. Other sources of information are the local newspaper or the Auto Trader, which may list the for-sale price of cars of the same make, model, and year as yours. Occasionally, an expert vehicle appraiser is used to help prove the value of your vehicle.
What if I am “upside down” on the loan for my car?
If you are upside down on a loan, it means that you owe more money on the loan than the fair market value of the car. Unfortunately, if your vehicle is a total loss, the insurance company is not required to pay more money to you simply because you are “upside down” with your car loan. They are only required to pay the “fair market value” of your car.
Can I choose my own repair shop?
Yes. You are allowed to take your car wherever you wish to have it repaired, however the cost of the repair is not always determined by the estimate given by the repair facility of your choosing.
What kind of parts will be used in the repair?
You have the right to demand that only original manufacturer parts be used in the repair, so if your car is a Saab, you should receive genuine Saab parts. Your car was likely not brand new at the time of the accident, so the mechanic repairing your car may choose to use refurbished or reconditioned parts.
What if my car already had some damage before the accident?
Your vehicle may have had damage prior to the accident, and it can be difficult to determine exactly what portion of the damage was caused by the accident itself. For example, if your car has a mechanical problem, the insurance company may claim that it was a preexisting problem if some evidence indicates that the vehicle may have sustained substantial wear and tear. Therefore, it is important that you prove the connection between the auto accident and the damage you are claiming. Normally, mechanics and collision repair personnel can help to prove the age of body damage or the cause of a mechanical failure. They can assist to convince the insurance company that the auto accident caused the damage you are claiming.
Will I have to pay the towing and storage costs?
The insurance company for the driver who caused the accident will customarily pay the reasonable towing and storage costs, unless there is a dispute as to who was at fault in the accident. If the insurance company declares the car a total loss, they will have the car moved to a wrecking yard or a free storage area. If you do not wish to allow the insurance company to move your car, you will have to pay the storage costs from the day of your refusal forward, or you can pay to have it towed to your home.
What about license and registration fees that I had to pay to drive the car?
To drive and operate a motor vehicle in the United States, one has to pay license and registration fees. In some states, you are entitled to be reimbursed for the prorated amount of these costs that are unused. The insurance company may reimburse you for tag transfer fees and, in some cases, a prorated amount of sales tax on the actual cash value of the car at the time of the accident. You may choose to contact a Florida auto accident lawyer to learn whether license and registration fees are recoverable in your case.
What if I need a rental car? Do I have to pay for it while my car is being repaired?
You must pay for your own rental car if you were the cause of the accident, or if there is some dispute over who is to blame. You may seek coverage under your own insurance policy to see if rental coverage is available. Many insurance contracts do not provide for rental coverage for their own customers, so you need to contact your insurance agent to determine what coverage exists.
If the other driver is at fault, then your attorney may demand that the insurance company for the person who caused the accident provide you with a rental car for the time needed to repair your vehicle. On certain occassions, you must pay the rental car bill first, with reimbursement coming from the insurance company later.
What kind of rental car am I entitled to?
The insurance company has to pay for the reasonably incurred rental cost of a substitute vehicle. Often, there are disputes as to what qualifies as a “substitute” vehicle. Essentially, it should be a vehicle of similar quality, within the confines of what is available for rent.
Should I purchase any extra insurance on the rental car provided to me?
Your own insurance policy should cover you while driving the rental car, but you should call your insurance agent to be sure that you are covered. The other driver’s insurance company is not required to pay for additional insurance if you choose to purchase it from the car rental company.
Monday, October 12, 2009
What to Do if You Slip and Fall
1. Make sure to write down the names, addresses and phone numbers of anyone in the vicinity where the incident occurred – both those who saw you fall, and others who were there after the incident—since you will likely need them as witnesses on your behalf. Even if someone did not see you fall, he or she could, if necessary, describe your pain and the conditions of the floor, lighting, or other hazard immediately after you fell.
2. Inspect the area where you fell, and try to determine what caused you to fall.
3. Have someone take photographs of the area as soon as possible, so a record is made. Dangerous conditions have a way of changing if the property owner thinks that you might file a claim for injuries.
4. If you slip on any substance on the floor, obtain a sample of the substance if possible.
5. After receiving appropriate initial medical treatment, contact an attorney with experience in handling claims for personal injury resulting from slip and fall accidents.
6. If the incident occurred in a store or place of business, speak with the manager or supervisor on duty, and have them make a record of the incident, being sure to get a copy of anything prepared. If anyone (especially an employee, supervisor or manager) makes a comment suggesting that this has occurred before, or that they were aware of the condition before your fall, obtain this person’s name and job title. Make sure to get the name, address and phone number of anyone else who heard him or her make the statement.
2. Inspect the area where you fell, and try to determine what caused you to fall.
3. Have someone take photographs of the area as soon as possible, so a record is made. Dangerous conditions have a way of changing if the property owner thinks that you might file a claim for injuries.
4. If you slip on any substance on the floor, obtain a sample of the substance if possible.
5. After receiving appropriate initial medical treatment, contact an attorney with experience in handling claims for personal injury resulting from slip and fall accidents.
6. If the incident occurred in a store or place of business, speak with the manager or supervisor on duty, and have them make a record of the incident, being sure to get a copy of anything prepared. If anyone (especially an employee, supervisor or manager) makes a comment suggesting that this has occurred before, or that they were aware of the condition before your fall, obtain this person’s name and job title. Make sure to get the name, address and phone number of anyone else who heard him or her make the statement.
Wednesday, October 7, 2009
Causation
A medical professional may have been negligent in providing care to a patient, it’s not always possible to link that negligence to an injury. Because the law requires a connection between fault and injury, not all instances of medical malpractice allow for an award of damages. It is usually very difficult to determine causation in medical malpractice cases and reaching a verdict may require the assistance of expert witnesses.
Expert witnesses are usually required in medical malpractice cases to establish the standard of medical care in the geographical area or in the area of medical specialty at issue. Unless the cause is obvious to a layperson, such as where a wrong arm is amputated or similar error, expert testimony is required to establish that the malpractice caused the patient’s injuries.
In many cases, the cause of injury is less clear, and can be spread among many health care providers. For example, a patient may be treated by a number of doctors, nurses, and medical technicians in the course of a hospital stay. Determining when the negligence occurred and who was responsible for the patient’s injuries can be a very daunting task.
The first doctor may have incorrectly diagnosed a patient, but a subsequent doctor may have been negligent in failing to correct the diagnosis. A subsequent series of mishaps in the operating room, each by a different technician, may require naming each technician as a defendant because each mishap contributed to the injury. Additional injury may have been caused by the use of a defective medical device or drug, or the negligence of an operating room doctor. In such cases, experts are needed to determine the cause of injury in light of the unfortunate sequence of events.
Expert witnesses are usually required in medical malpractice cases to establish the standard of medical care in the geographical area or in the area of medical specialty at issue. Unless the cause is obvious to a layperson, such as where a wrong arm is amputated or similar error, expert testimony is required to establish that the malpractice caused the patient’s injuries.
In many cases, the cause of injury is less clear, and can be spread among many health care providers. For example, a patient may be treated by a number of doctors, nurses, and medical technicians in the course of a hospital stay. Determining when the negligence occurred and who was responsible for the patient’s injuries can be a very daunting task.
The first doctor may have incorrectly diagnosed a patient, but a subsequent doctor may have been negligent in failing to correct the diagnosis. A subsequent series of mishaps in the operating room, each by a different technician, may require naming each technician as a defendant because each mishap contributed to the injury. Additional injury may have been caused by the use of a defective medical device or drug, or the negligence of an operating room doctor. In such cases, experts are needed to determine the cause of injury in light of the unfortunate sequence of events.
Thursday, October 1, 2009
Negligence
While negligence is known as the most common tort, it also has the distinction of being the most difficult one to define. Negligence is defined as the failure to use reasonable due care to avoid a foreseeable harm to a person, place or thing. If you are negligent and your negligence causes injury to another person to whom you have a “duty of care,” you may be liable to pay any damages resulting from the injury caused by your carelessness.
A person may be considered “careless” or “negligent” if they do not issue the appropriate level of care for a particular situation in question. For example, a higher level of care is called for if you are pouring boiling coffee into a friend’s glass over his lap than is called for if you are pouring cold lemonade over the kitchen sink. Generally, the law requires that individuals exercise the same kind of “due care” that a reasonable person would exercise under the same circumstances. This is called the “reasonable man” or “reasonable person” standard.
Some common negligence claims involve:
A person may be considered “careless” or “negligent” if they do not issue the appropriate level of care for a particular situation in question. For example, a higher level of care is called for if you are pouring boiling coffee into a friend’s glass over his lap than is called for if you are pouring cold lemonade over the kitchen sink. Generally, the law requires that individuals exercise the same kind of “due care” that a reasonable person would exercise under the same circumstances. This is called the “reasonable man” or “reasonable person” standard.
Some common negligence claims involve:
- alcoholic beverage liability (a provider of alcohol either a social host or bartender serves too many drinks to an underage or noticeably intoxicated individual who is then involved in an accident that causes injury to a third person)
- motor vehicle accidents (accidents caused by reckless or careless driving)
- slip and fall accidents (a person slips, falls and is injured on someone else’s property)
- medical malpractice (when a doctor doesn’t maintain the level of skill and knowledge commonly exercised by other doctors)
Product Liability
The law of product liability is the area of law that deals with the liability of the manufacturer, wholesaler or retailer of a product for injuries resulting from that product. This includes the manufacturer of component parts of the product, an assembling manufacturer, the wholesaler, the retail store or other ultimate seller of the product, and any other party in the distributive chain, regardless of whether you actually purchased the item yourself.
Here is an example: You borrow an power saw with a design defect from a friend. The cord’s wires cannot carry the electrical load it indicates that it can. The result is an electrical fire that burns down your house. You can file a product liability lawsuit against the maker of the power saw, its distributor, its wholesaler, and the retail store where it was originally purchased by your friend.
Product liability law gives consumers the ability to sue for and be compensated for damages from manufacturers, distributors and vendors for injuries resulting from accidents caused by defective products. Nearly all products are subject to products liability law, not just items on the store shelves – products subject to the law include food, drugs, appliances, tobacco, gases, real estate, automobiles, blood, writings, maps, medical devices, medical implants, and even commercial jets.
Research from the U.S. Consumer Product Safety Commission indicates that defective or unsafe products cause 29.4 million injuries and 21,400 deaths each year. You or a family member may be injured by something seemingly harmless or something you use every day, such as a coffee maker, air conditioner, baby chair, toy, car, hair dryer, toaster, iron, hand tool or even your clothing. Products liability claims are tort-based claims that can arise from negligence, strict liability, or breach of warranty, though products liability is often focused on strict liability claims.
Strict Liability
Strict liability is the term used to describe situations in which a person can be held liable for damages caused to another person even if they are not negligent or found to be at fault. Strict liability means “liability without fault” – therefore a person is liable whether or not they were negligent and whether or not they intended to do any harm.
Strict liability is usually imposed on manufactured products, under the law of product liability. Strict liability claims do not involve proof of whether or not someone acted reasonably or used appropriate care in manufacturing a certain product. Translated to products liability terms, a defendant in a product liability claim will be found liable for damages to a plaintiff if it is found that the product is defective, regardless of whether the manufacturer or supplier exercised great care when designing and manufacturing it.
The law imposes strict liability on inherently or abnormally dangerous activities, or activities that are likely to cause particular kinds of harm. A prime example of this type of activity is the use of explosives – if injury results from the use of explosives, regardless of the purpose for which they are used and the care exercised, the operator of the explosives is liable to those damaged by their use.
In lights of these facts, a plaintiff does not have to demonstrate that the manufacturer or vendor was negligent or careless, only that:
Here is an example: A supermarket has a contract with a manufacturer to make a line of soft drinks for the store. The manufacturer uses a bottle that does not properly release pressure upon opening. If somebody is injured by an exploding bottlecap, then the supermarket is liable as well as the manufacturer. Even if the supermarket was unaware that the bottles were defective, they are still held liable.
A breach of warranty claim arises under the law of contracts, where the law imposes certain “implied warranties” on the sale of products. These implied warranties include the warranty of merchantability (that the goods are in proper condition for use and free of defects), and the warranty of fitness for a particular purpose (e.g., the refrigerator must be able to keep food cold and fresh; the chair must be capable of supporting a person’s weight). These warranties are called implied warranties because the law assumes that they apply even if they are not expressly stated on the packaging or manuals. If a product does not meet these standards, the purchaser may have the right to return it to the place of purchase and receive a refund, or sometimes file a case and receive monetary damages.
The law of contracts covers economic loss caused by the breach of warranties in the sale of goods. The Uniform Commercial Code, Article 2, also deals with the sales of goods and the implied and express warranties of merchantability in the sales of goods. U.C.C. §§ 2-314 and 2-315.
In a negligence claim, a plaintiff must show that a manufacturer, seller, wholesaler or other party involved in the distributive chain had a duty to exercise reasonable care in the process of manufacturing or selling a product and failed to fulfill that duty, resulting in injury to the plaintiff. Negligence consists of doing something that a person of ordinary prudence would not do under the same or similar circumstances; or failing to do something that a person of ordinary prudence would do under the same or similar circumstances.
This can take the form of negligence in drawing up or reviewing plans for a product, negligence in failure to inspect or test the product adequately, negligence in issuing inadequate warnings, negligence in maintaining the machines that make the component parts of the product, negligence in failure to anticipate probable uses of the product, or instructions regarding the use of the product, or any other aspect of the manufacturing or distribution process where due care is not used.
Here is an example: You borrow an power saw with a design defect from a friend. The cord’s wires cannot carry the electrical load it indicates that it can. The result is an electrical fire that burns down your house. You can file a product liability lawsuit against the maker of the power saw, its distributor, its wholesaler, and the retail store where it was originally purchased by your friend.
Product liability law gives consumers the ability to sue for and be compensated for damages from manufacturers, distributors and vendors for injuries resulting from accidents caused by defective products. Nearly all products are subject to products liability law, not just items on the store shelves – products subject to the law include food, drugs, appliances, tobacco, gases, real estate, automobiles, blood, writings, maps, medical devices, medical implants, and even commercial jets.
Research from the U.S. Consumer Product Safety Commission indicates that defective or unsafe products cause 29.4 million injuries and 21,400 deaths each year. You or a family member may be injured by something seemingly harmless or something you use every day, such as a coffee maker, air conditioner, baby chair, toy, car, hair dryer, toaster, iron, hand tool or even your clothing. Products liability claims are tort-based claims that can arise from negligence, strict liability, or breach of warranty, though products liability is often focused on strict liability claims.
Strict Liability
Strict liability is the term used to describe situations in which a person can be held liable for damages caused to another person even if they are not negligent or found to be at fault. Strict liability means “liability without fault” – therefore a person is liable whether or not they were negligent and whether or not they intended to do any harm.
Strict liability is usually imposed on manufactured products, under the law of product liability. Strict liability claims do not involve proof of whether or not someone acted reasonably or used appropriate care in manufacturing a certain product. Translated to products liability terms, a defendant in a product liability claim will be found liable for damages to a plaintiff if it is found that the product is defective, regardless of whether the manufacturer or supplier exercised great care when designing and manufacturing it.
The law imposes strict liability on inherently or abnormally dangerous activities, or activities that are likely to cause particular kinds of harm. A prime example of this type of activity is the use of explosives – if injury results from the use of explosives, regardless of the purpose for which they are used and the care exercised, the operator of the explosives is liable to those damaged by their use.
In lights of these facts, a plaintiff does not have to demonstrate that the manufacturer or vendor was negligent or careless, only that:
- a defect in the product caused the accident
- he or she was using the product in a manner consistent with the way it was meant to be used
- the product was not substantially changed between the time it left the seller or manufacturer’s hands and the time it reached the plaintiff
- You should be aware that even if you are not the original owner of the merchandise you can sue for product liability. For example, if a friend lends you a lawnmower that turns out to be defective and injures you, you can file a product liability claim against the manufacturer, distributor, wholesaler, and/or vendor of the item. Even if a company doesn’t actually make the product, but simply puts its label on it, they can be held liable for injuries.
Here is an example: A supermarket has a contract with a manufacturer to make a line of soft drinks for the store. The manufacturer uses a bottle that does not properly release pressure upon opening. If somebody is injured by an exploding bottlecap, then the supermarket is liable as well as the manufacturer. Even if the supermarket was unaware that the bottles were defective, they are still held liable.
A breach of warranty claim arises under the law of contracts, where the law imposes certain “implied warranties” on the sale of products. These implied warranties include the warranty of merchantability (that the goods are in proper condition for use and free of defects), and the warranty of fitness for a particular purpose (e.g., the refrigerator must be able to keep food cold and fresh; the chair must be capable of supporting a person’s weight). These warranties are called implied warranties because the law assumes that they apply even if they are not expressly stated on the packaging or manuals. If a product does not meet these standards, the purchaser may have the right to return it to the place of purchase and receive a refund, or sometimes file a case and receive monetary damages.
The law of contracts covers economic loss caused by the breach of warranties in the sale of goods. The Uniform Commercial Code, Article 2, also deals with the sales of goods and the implied and express warranties of merchantability in the sales of goods. U.C.C. §§ 2-314 and 2-315.
In a negligence claim, a plaintiff must show that a manufacturer, seller, wholesaler or other party involved in the distributive chain had a duty to exercise reasonable care in the process of manufacturing or selling a product and failed to fulfill that duty, resulting in injury to the plaintiff. Negligence consists of doing something that a person of ordinary prudence would not do under the same or similar circumstances; or failing to do something that a person of ordinary prudence would do under the same or similar circumstances.
This can take the form of negligence in drawing up or reviewing plans for a product, negligence in failure to inspect or test the product adequately, negligence in issuing inadequate warnings, negligence in maintaining the machines that make the component parts of the product, negligence in failure to anticipate probable uses of the product, or instructions regarding the use of the product, or any other aspect of the manufacturing or distribution process where due care is not used.
Drunk Drivers
According to the National Highway Transportation Safety Administration, drunk drivers injured more than 250,000 individuals during 2005. Although the law can never replace a loved one, it does provide a means of recovery for victims. Victims can sue the drunk driver under the general laws of negligence, but it may be difficult to collect from a drunk driver if they are uninsured or underinsured and/or have few assets to support a lawsuit.
Injury or death caused by a drunk driver is perhaps the most upsetting, anger-provoking of all kinds of personal injury cases. The thought of an innocent victim suffering serious or fatal injury at the hands of an irresponsible individual can evoke outrage among members of the community.
Even if it is difficult or impossible to pursue recovery against the drunk driver, there may be a way to pursue recovery against the person or establishment who provided the alcoholic beverage to the drunk driver. People who serve alcoholic beverages may be liable under Florida law for damages resulting from the consumption of alcoholic beverages. Fla. Stat. § 768.125. Liability may be imposed either under specific state laws (“dram shop acts”) or under the general law of negligence. Dram shop acts (“dram” was once a common term for “liquor”) are laws that impose liability for negligence on the sellers of alcoholic beverages for sales to persons under the legal drinking age or to those who are intoxicated.
Florida requires that the bar, liquor store, or restaurant have notice that the person is a habitual alcohol abuser in order to impose liability. Fla. Stat. § 562.50. This rule is different, however, if the intoxicated person is under the drinking age. A liquor store, bar or restaurant may be liable for any damages caused by a person’s drinking if it sold alcohol to a person under the age of 21. Fla. Stat. § 562.11.
Liability can attach to “social hosts” as well. A social host is somebody who serves alcoholic beverages in a social setting, such as a home or a party, or as where an employer serves alcoholic beverages at a company picnic. The social host is not required to make sure that no one is consuming more alcohol than they can handle unless the host can reasonably be aware of a problem and prevent it. However, under Florida law, the social host cannot be held liable. Dowell v. Gracewood Fruit Co., 559 So.2d 217 (Fla. 1990).
Injury or death caused by a drunk driver is perhaps the most upsetting, anger-provoking of all kinds of personal injury cases. The thought of an innocent victim suffering serious or fatal injury at the hands of an irresponsible individual can evoke outrage among members of the community.
Even if it is difficult or impossible to pursue recovery against the drunk driver, there may be a way to pursue recovery against the person or establishment who provided the alcoholic beverage to the drunk driver. People who serve alcoholic beverages may be liable under Florida law for damages resulting from the consumption of alcoholic beverages. Fla. Stat. § 768.125. Liability may be imposed either under specific state laws (“dram shop acts”) or under the general law of negligence. Dram shop acts (“dram” was once a common term for “liquor”) are laws that impose liability for negligence on the sellers of alcoholic beverages for sales to persons under the legal drinking age or to those who are intoxicated.
Florida requires that the bar, liquor store, or restaurant have notice that the person is a habitual alcohol abuser in order to impose liability. Fla. Stat. § 562.50. This rule is different, however, if the intoxicated person is under the drinking age. A liquor store, bar or restaurant may be liable for any damages caused by a person’s drinking if it sold alcohol to a person under the age of 21. Fla. Stat. § 562.11.
Liability can attach to “social hosts” as well. A social host is somebody who serves alcoholic beverages in a social setting, such as a home or a party, or as where an employer serves alcoholic beverages at a company picnic. The social host is not required to make sure that no one is consuming more alcohol than they can handle unless the host can reasonably be aware of a problem and prevent it. However, under Florida law, the social host cannot be held liable. Dowell v. Gracewood Fruit Co., 559 So.2d 217 (Fla. 1990).
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