Bringing a Timely Action
Statute of Limitations
A statute of limitations is the deadline for filing a lawsuit. Most lawsuits MUST be filed within a certain amount of time. In general, once the statute of limitations on a case “runs out,” the legal claim is not valid any longer. The period of time during which you can file a lawsuit varies depending on the type of legal claim. For personal injury you must file the lawsuit within two years from the time of injury. If the injury was not discovered right away, then it is one year from the date the injury was discovered.
Tolling the Statute of Limitations
Sometimes the statute of limitations is suspended (“tolled”) for a period of time, and then begins to run again. For example, tolling may happen when the defendant is a minor, is out of the state or in prison, or is insane. When the reason for the tolling ends (if the minor turns 18, or the defendant returns to California or gets out of prison, or the defendant is no longer insane), the statute of limitations begins to run again.
Cases dealing with tolling may be very complicated and you need to talk to a lawyer.
In personal injury cases, “damages” is a term that refers to the amount of money awarded to the injured party who suffered harm due to the negligent, reckless, or intentional action of the defendant. Damages can be grouped as either general, special or punitive.
General damages flow naturally from the defendant’s wrongful action. There is a clear link between the defendant’s behavior and the plaintiff’s injury. While every personal injury case will look a little different, general damages can include: pain and suffering; mental anguish; and loss of consortium. It may be difficult to calculate or precisely quantify the amount of money necessary to compensate the injured person for general damages. Determining general damages often involves assigning an exact dollar amount to a subjective injury. Damages such as mental anguish are unique to each plaintiff and thus difficult to calculate.
Special damages financially compensate the injured person for losses suffered due to the defendant’s actions. Special damages are out-of-pocket expenses that can be determined by adding together all of the plaintiff’s quantifiable financial losses. However, these losses or expenses must be proven with specificity. Special Damages may include: loss of wages; medical expenses; and cost of repair or replacement of damaged property. Unlike general damages, special damages are often easy to calculate because an exact dollar amount has already been spent on these items.
Punitive damages are intended to reform or deter the defendant and others from engaging in conduct similar to that which formed the basis of the lawsuit. Although the purpose of punitive damages is not to compensate the plaintiff, the plaintiff will receive all or some portion of the punitive damage award. Punitive damages are generally only awarded when the defendant’s actions are so deplorable that they warrant the financial burden they impose.
A type of tort that can only result from an intentional act of the defendant. Depending on the exact tort alleged, either general or specific intent will need to be proven. Common intentional torts are battery, assault, false imprisonment, trespass to land, trespass to chattels, and intentional infliction of emotional distress.
Negligence is a failure to exercise the care that a reasonably prudent person would exercise in like circumstances. The behavior usually consists of actions, but can also consist of omissions when there is some duty to act. Primary factors to consider in ascertaining whether the person’s conduct lacks reasonable care are the foreseeable likelihood that the person’s conduct will result in harm, the foreseeable severity of any harm that may ensue, and the burden of precautions to eliminate or reduce the risk of harm.
Five elements are required to establish a prima facie case of negligence: the existence of a legal duty to exercise reasonable care; a failure to exercise reasonable care; cause in fact of physical harm by the negligent conduct; physical harm in the form of actual damages; and proximate cause, a showing that the harm is within the scope of liability.
Strict Liability requires only that you prove injury but you do not have to prove negligence by the defendant in order to recover damages. A common example in California is the dog bite case. The plaintiff only has to prove they were actually bitten by the dog and sustained injury, they do not have to prove there was any negligence by the defendant in care or control of the dog.
Product liability refers to a manufacturer or seller being held liable for placing a defective product into the hands of a consumer. Responsibility for a product defect that causes injury lies with all sellers of the product who are in the distribution chain. Potentially liable parties include: the product manufacturer; a manufacturer of component parts; the wholesaler, and the retail store that sold the product to the consumer. In general terms, the law requires that a product meet the ordinary expectations of the consumer. When a product has an unexpected defect or danger, the product cannot be said to meet the ordinary expectations of the consumer.
Products Liability is generally considered a strict liability offense. Strict liability wrongs do not depend on the degree of carefulness by the defendant. Translated to a products liability terms, a defendant is liable when it is shown that the product is defective. It is irrelevant whether the manufacturer or supplier exercised great care; if there is a defect in the product that causes harm, he or she will be liable for it.
Vicarious liability is where the employer (Superior) is liable for the damages caused by their employee (Respondeat). In order for the employer to be found vicariously liable, the injury must have occurred while the employee was acting within their scope of employment.
Joint and Several Liability
Under joint and several liability, a claimant may pursue an obligation against any one party as if they were jointly liable and it becomes the responsibility of the defendants to sort out their respective proportions of liability and payment. This means that if the claimant pursues one defendant and receives payment, that defendant must then pursue the other obligors for a contribution to their share of the liability.
Joint and several liability is most relevant in tort claims, whereby a plaintiff may recover all the damages from any of the defendants regardless of their individual share of the liability.
Why do I need an attorney?
There are many difficult issues when litigating a personal injury lawsuit. The specific procedure and timing in which the lawsuit must be filed; establishing the defendant’s liability; determining adequate compensation; and then collecting the court ordered award when the case has concluded. At Hunt Law Group we pride ourselves on making this complicated and emotional time as bearable as possible. We will represent you from the initial filing all the way until the court ordered award is in your hand.
Dru Vincent Hunt
Attorney at Law