Columbus Personal Injury Lawyer - Premises Liability

Personal Injury and Premises (injury while on another's property)Damages in Spinal Cord Injury Cases

Scott Smith — Sat, 05 May 2007 10:11:57 GMT

Event the slightest trauma to the spinal cord is usually devastating. The nature of a spinal cord injury (SCI) is such that the amount of damages that may be recovered against a party responsible for causing such injury is substantial. The average out-of-pocket cost of coping with a spinal cord injury in the first year can be as high as $572,000 for the most severe injuries. For each year after that, the average cost is approximately $102,000. The average spinal cord injury costs approximately $250,000 in the first year and $30,000 for each year after that. The figures below do not include any indirect damage such as lost in wages, pain and suffering, loss of consortium, loss of enjoyment of life, and mental anguish. All of these damages continue throughout the life of a victim.

Average Yearly Expenses (in 1999 dollars)
Severity of Injury First Year Each Subsequent Year
High Tetraplegia (C1-C4) $572,178 $102,491
Low Tetraplegia (C5-C8) $369,488 $41,983
Paraplegia $209,074 $21,274
Incomplete Motor Function $168,627 $11,817
at any Level

Estimate lifetime costs by Age at Injury (discounted at 2%)
Severity of Injury 25 years old 50 years old
High Tetraplegia (C1-C4) $2,185,667 $1,286,714
Low Tetraplegia (C5-C8) $1,235,841 $782,628
Paraplegia $730,277 $498,095
Incomplete Motor Function
at any Level $487,150 $353,047

In spinal cord injury cases it is essential that measures be taken promptly to preserve evidence, review the medical procedures in question, and to enable physicians or other expert witnesses to thoroughly evaluate the accident record and injuries. If you or a loved one is a victim of injury caused by a spinal cord injury, call Smith Phillips - Trial Lawyers at 614-846-1700 or 1-888-311-5297.

Originally posted at InjuryBoard by Scott Smith

Factors Affecting Damages Awards in Personal Injury, Medical Malpractice, Animal (Dog) and Premise (slip and fall) Cases

Scott Smith — Sat, 21 Apr 2007 08:56:39 GMT

Nature of Injury

It stands to reason that the most important fact which will affect the amount of damages that you can recover is the nature of the injury sustained. The more serious an injury is, the higher the value of the claim. If you are suffer from a soft tissue injury, such as with whiplash or neck strain, you will not recover ads much as someone who is injured more seriously, involving ligament tears, bone fractures and nerve damage. Injuries such as whiplash and back strains are known as soft tissue injuries because they involve muscle. Although the condition can be painful, it's usually because this condition through medical examination, whereas bone and ligament damage is easily seen on a standard x-ray, serious injuries that can be detected with a medical examination typically receive much higher damage awards. If you have medical documentation to prove your damages, you will usually receive more compensation for your injuries.

In addition, the amount of treatment required, as well as the degree of permanency of your injuries can significantly affect the amount you will recover. Conditions which require surgery and extensive rehabilitation will present more compelling evidence of damages than injuries which heal without the need for medical intervention.

Degree of defendant's liability

As noted in our articles on negligence, if the defendant is 100% at fault for causing the accident, the amount of the award will fully represent the value of the damages that are presented. The only issue at trial will normally be how much your damages are worth. However, if you in any way are accused of sharing responsibility for the accident with the defendant, the amount of your settlement or damage award may decrease.

Comparative negligence

If a plaintiff is found partially at fault for an accident, he or she has not lost his or case altogether. In Ohio, comparative negligence is used to calculate the degree of the plaintiff's negligence and reduce the plaintiff's claim reward according to Ohio Revised Code Â§2315.33. The plaintiff will be allowed to recover as long as the defendant or combined defendants fault is equal or greater to the plaintiff's apportioned fault. The plaintiff's negligence must be less than 51%. Ohio Revised Code Â§2315.33. The award for damages to the plaintiff will be reduced in direct proportion to the plaintiff's percentage of fault.

Example: Suppose a jury awards you $100,000 in damages after you fell down the stairs, however, it find you 30% at fault for your injuries because you did not hold the handrail. After applying comparative negligence, you would be entitled to $70,000 in damages - $100,000 minus 30%.

Joint Tortfeasors

The theory of joint and several liability is that when separate and independent acts of negligence of several persons combine to produce a single injury, the actors are considered joint tortfeasors. The plaintiff can sue these joint tortfeasors in the same action, and each individual defendant will be held responsible for the entire amount of damages. The purpose of this rule is to transfer the risk that one defendant will lack the resources to pay the damages from the plaintiff to the other defendant. If one defendant pays the entire judgment, the defendant can sue the other defendants to contribute the amount of the damage that the jury found then responsible for. Ohio Revised Code Â§2307.25. However, joint and several liability only apples to economic losses such as medical expenses and lost wages. It does not apply to pain and suffering damages. Each defendant is liable only for the amount of pain and suffering damages that are apportioned to them individually. Ohio Revised Code Â§2315.18.

Example: Suppose the jury awards you $100,000 in damages because you were injured in a car accident. If the jury finds the driver of the car 60% at fault and the municipality 40% at fault, you would be able to recover the full $100,000 from the other driver. However, you can only recover $40,000 from the municipality. If the other driver pays you $100,000 it can then sue the municipality for $40,000. This is called contribution.

Respondeat Superior

Generally, if an employee commits a negligent act during the "scope of his employment," that causes injury to a non-employed his employer will be liable (jointly with the employer). This is the rule of respondeat superior. Respondeat superior is applied to cases involving "employees," in which the employee is subject to the close control of the person who has hired him. This is distinguished from an independent contractor situation, where the hiring person does not control the "physical details" of the work but rather just the general manner that the work is carried in. Independent contractors generally do not fall under respondeat superior liability unless the employee retains the right to control the manner in which the contractor performs the work.

Plaintiff's and Defendant's credibility

Whether or not a jury or insurance company is likely to find you and your claim believable and of significant worth will strongly impact your claim. Can you accurately describe the events of the accident? Can you describe your injuries in detail, and in a convincing manner? Are you intelligent and well spoken? Would you make a good witness on your own behalf?

The term used to describe these intangible factors is "jury appeal." Remember that the jury members will judge both you and the defendant, and that their opinion of you will weigh into their decision on whether to award you damages, and if so, how much. It is important that all of the claims that you make are supported by the evidence, or you may quickly lose credibility with the jury.

The credibility and perception of the defendant will also affect the amount of money you receive. If the defendant in a car accident case is a 20-year-old driving a hot rod, jurors aren't likely to view the defendant favorably. This can also hope a plaintiff in cases where the defendant refuses to admit fault for the accident. Exposing the "holes" in defendant's version of the accident will damage the defendant's credibility, resulting in higher damage awards in most cases.

Plaintiff's age

Age plays a role in determining the value of a plaintiff's claim, particularly where permanency of injury is alleged. If you are a 20-year-old woman who lost her leg in an accident, the a jury will award a higher amount of damages than if you are a 80-year-old woman with the same injury. The basis for this is that the younger woman has more future pain and suffering, loss of enjoyment of life, loss of income, and mental anguish ahead of her than dos the older woman.

Witness testimony

The credibility of witnesses also plays a role in affecting the amount of any recovery. This relates not only to witnesses to the accident itself, where proof of fault can be affected by their testimony, but to witnesses who are called to testify as to your damages as well. It is helpful to have credible witnesses who can clearly describe your condition before the accident to the jury, so as to assist them in understanding the change in your condition post-accident. In addition, expert witnesses often play a critical role in the outcome of any personal injury trial. In cases where there are "dueling experts", the background and professional experience of your expert is critical to establishing his or her influence over the jury.

In all matters involving personal injury it is essential that measures be taken promptly to preserve evidence, investigate the accident in question, and to file a lawsuit prior to the deadline imposed by the statute of limitations. If you or a loved one is a victim of personal injury, call Smith Phillips - Trial Lawyers at 614-846-1700 or 1-888-311-5297.

The above is not legal advice. That can only come from a qualified attorney who is familiar with all the facts and circumstances of a particular, specific case and the relevant law.

Originally posted at InjuryBoard by Scott Smith

Frequently Asked Questions About Personal Injury, Medical Negligence, Slip and Fall, Animal (Dog) and Property (Premise Liability) Negligence

Scott Smith — Sat, 31 Mar 2007 16:17:56 GMT

What has to be shown in order to prove negligence?

In order for one to prove that a defendant (at fault party), was negligent (fault) and therefore responsible for damages to you, a plaintiff (person claiming injuries and damages) must show:

â€¢ the defendant had a duty to use reasonable;
â€¢ the defendant breached the duty by acting unreasonably;
â€¢ it was foreseeable that by acting unreasonably, defendant would cause injury to you; and
â€¢ the defendant's actions or inactions caused your injury

Once it is proven the defendant was negligent, a plaintiff has the right to be compensated for damages that were related to the negligent acts.

What is the duty to use care?

Generally, a person owes everyone else with whom he comes in contact a general "duty of care." Normally, you don't have to worry about this duty - it is the same in all instances, the duty to behave with the care that would be shown by a reasonable person. But there are several situations in which courts hold that people owe one another less than this regular duty. The most important of these situations are: 1) one generally has no duty to take affirmative action to help another; and 2) one generally has no duty to avoid causing unintended mental suffering to another.

A person generally cannot be liable in tort solely on the grounds that she has failed to act. This means that if you see that another person is in danger, and you fail to render assistance (even though you could do so easily and safely), you are not generally liable for refusing to assist.

Example: Sam, passing by, sees Mike drowning in a pond. Sam could easily pull Mike to safety without risk to Sam, but instead, Sam walks on by. Sam is not legally liable to Mike for any harm sustained by Mike.

There are a number of commonly-recognized exceptions to the "no duty to act" rule. In the above example, if the danger or injury to Mike is due to Sam's own conduct, or to an instrument under Sam's control, Sam has the duty of assistance. Similarly, in the event Sam started give Mike assistance, once Sam voluntarily begins to render assistance to Mike (even if he was under no legal obligation to do so), Sam must now proceed with reasonable care.

What is reasonable care?

The key to determining whether someone is negligent is to define what constitutes "reasonable" care in any given set of circumstances. Since there is no clear definition of what is reasonable in any given situation, what is reasonable to one person may not be reasonable to another.

Courts often decide whether someone has exercised reasonable care by asking what a person of average intelligence and judgment would have done under similar circumstances. For example, a "reasonable" driver preparing to make a left hand turn across oncoming traffic would not do so without first checking to make sure that there was ample time to safely make the turn. It would be negligence if a driver failed to check to make sure there was time to make the turn, made the turn anyway, and caused the accident.

Are different people held to different standards of care?

The level of reasonable care required varies, depending on whether you are an adult, child or professional.

Reasonable person standard - An adult is guilty of negligence if he or she fails to act the way a person of ordinary negligence and judgment would have acted in similar circumstances.

Reasonable child standard - Both a child and his or her parents can be held liable for a child's wrongful conduct. Children, however, are not held to the same level of care as adults. A child's conduct is measured against what would be expected from a similar child of like age, intelligence and experience under similar circumstances. Because a child does not have the same mental capacity or life experience as an adult, the courts recognize that in some instances a child should not be held responsible for otherwise "negligent" behavior. For this reason, children of very young ages generally cannot be held liable for negligence. The judge will decide a child's capacity for negligence. If the child is deemed capable of negligence, then the issue of whether or not the child actually was negligent will be decided by a jury.

One major exception to the rule is that a minor will generally be held to an adult standard of reasonableness if the child is engaging in "adult" activities. For the most part, a child will only be held to this standard in situations in which the child is operating a motorized vehicle.

Professional community standard - Professionals (lawyers, doctors, architects, engineers, psychiatrists, etc.) are held to a higher standard of care due to their specialized training and experience. Professionals and individuals who practice "skilled trades" (plumbers, carpenters, electricians, beauticians, etc.) may be found to be negligent if they do not exercise the same degree of skill and knowledge normally exercised by other qualified and competent members of their professional working in their communities.

What is causation?

In order for a person who is negligent to be liable to you for damages suffered from an accident, it must be proven that the negligence actually caused your injury. The negligent person's action or inaction can be the sole cause of your injury or one of a number of causes.

Example: Suppose a truck is speeding too fast along the road when it suddenly approaches a car left abandoned in the middle of the road. To avoid a collision, the driver of the truck attempts to apply the brakes. A local mechanic recently repaired the brakes, but forgot to change the old, worn out brake pads. As a result, the brakes fail and the truck barrels into the parked car, which in turn collides with you as you try to cross the street in an area that is not a designated crosswalk. The resulting injury you received had many causes, including the trucker's negligent driving, the negligent repair of the truck's brakes, the car negligently left in the middle of the road, and your own failure to cross the street in a safe manner.

What if I am partially at fault for my own injuries?

Comparative Negligence

In the above example, the judge or jury determines the degree of the each party's negligence and apportions to each party a portion of the total damages you suffered based on each party's percentage of fault for causing your injury. This process is called "comparative negligence", and is the method by which damages are awarded in Ohio.

Is it considered negligence if someone violates a law?

Violation of a Statute

In some circumstances, proof that an individual violated a statute or law is enough to prove that the individual is negligent. Under the doctrine of "negligence per se", an individual is negligent if he or she violates a legislative statute, regulation or ordinance and causes an injury or loss.

Example: Suppose an ordinance code prohibits people from making U-turns at a particular intersection. If an individual makes an illegal U-turn and injures someone while making the turn, the person who made the illegal turn can automatically be held responsible for the injuries, regardless of whether they used reasonable care when making the U-turn. The fact that they violated the ordinance makes them negligent per se.

The doctrine of negligence per se applies only if the accident is the type of accident the statute or ordinance was designed to prevent and the injured party is within the class of people that the statute or ordinance was meant to protect.

Example: A U-turn law is normally enacted to protect other drivers passing through the intersection. If a driver passing through the intersection is injured by someone making an illegal U-turn, the doctrine of negligence per se is applicable.

In certain situations an individuals violation of a statute or ordinance is excusable in certain circumstances. For the most part, these permissible excuses include physical circumstances beyond the individual's control, sudden emergency situations not created by the individual, and/or situations in which compliance with the law would create greater danger to those involved than would a violation of the law.

What are some common defenses to negligence?

Assumption of Risk

If you participate in activities that you know are risky or dangerous, and are injured as a result, it may be determine that you "assumed the risk" of injury associated with that activity. For example, a skier who knowingly skis down a steep mountain containing large moguls assumes the risk of harm inherent in such an activity. His claim for damages would most likely fail, unless his injury resulted from a condition unrelated to those for which he was fully able to appreciate and assess the risk. For example, the skier may have realized that skiing can be hazardous and have a full understanding of the dangers. However, he would not have anticipated that a ski-lift cable would break and fall in his path, causing him to fall and get injured. Assumption of risk does not protect the defendant in this type of situation.

Burden of Proof

The burden of proving a case in all negligence claims, including automobile accident claims, is on the plaintiff. This means that the person claiming injury (plaintiff) must go forward first with the evidence at the trial and must present evidence from which a fact finder (judge or jury) could reasonably conclude that the at fault person(s) (defendant) was negligent, that the defendant's negligence proximately caused the accident and that the plaintiff's injuries are causally related to the accident. The standard which plaintiff's are held to in civil cases, including automobile accident cases, is called the "preponderance of the evidence" standard. It is much less strict than the standard in criminal cases of proof "beyond a reasonable doubt". The "preponderance of the evidence" standard has been defined to mean that the evidence presented by plaintiffs must be more likely to be true or accurate than not true. In essence this means that plaintiff's evidence must convince a fact-finder mind more than 50% that the facts alleged by the plaintiff are true.

In all matters involving a personal injury it is essential that measures be taken promptly to preserve evidence, investigate the accident in question, and to file a lawsuit prior to the deadline imposed by the statute of limitations.

The above is not legal advice. That can only come from a qualified attorney who is familiar with all the facts and circumstances of a particular, specific case and the relevant law.

Originally posted at InjuryBoard by Scott Smith