Lokey v. Breuner and A.M. Welles Inc.
One who assumes to act, even though gratuitously, may thereby become subject to the duty of acting carefully, if he acts at all. Restatement of Torts, § 323.
In September of 2006, Charles Lokey was bicycling through Bozeman when a Welles dump truck pulled along side him, but did not completely pass. The two rode like that for “an uncomfortable amount of time.” Ahead, the dump truck driver saw Andrew Breuner who had been driving the opposite direction and was stopped, waiting to turn left. Cars were lining up behind Breuner and were beginning to pass him on his right.
The dump truck stopped and motioned for Breuner to make his turn, which Breuner did, and collided with Lokey who had not stopped along with the dump truck. Lokey sued both drivers for his injuries.
At the District Court, Judge Swandal ruled that the dump truck driver was “no more responsible for Lokey than he was for any of the hudreds of other drivers on the road,” and that there is “no authority for Lokey’s proposition that a driver who courteously yields his right-of-way to a left-turning driver is responsible for determining if all other lanes of traffic are clear of pedestrians or bicycles or whatever may be there.” Lokey appealed this decision to the Montana Supreme Court.
The Montana Supreme Court re-iterated its adoption of the restatement of torts section quoted above. By making the decision to act, the dump truck driver assumed the responsibility of making sure that his action was reasonably prudent. The Court ruled that it was reasonably foreseeable harm could come to those traveling behind the dump truck from the driver’s decision to waive for Breuner to turn.
In deciding to direct traffic, the dump truck driver assumed the responsibility of directing traffic safely. The jury should be allowed to decide whether the truck driver breached that duty and whether that breach caused Lokey’s injuries and damages.
Negligence is a legal concept that anyone who has been injured is likely to hear a lot about. It is central to injury law in Montana and across the country. Broadly speaking, negligence is a failure to exercise reasonable care. The law likes to talk about reasonableness and pretend that it is a concept that can be described concretely. You can think of reasonable care as the care that a reasonably prudent person would exercise in the same situation.
The basic idea behind negligence is that everyone should exercise reasonable care when they act, and doing that means taking into account the potential harm their actions could foreseeably cause others. Those who fail to take reasonable care, are liable for the reasonably foreseeable results of their actions. So, for example, if you fail to tie down some furniture in the back of your pick-up truck which then falls out while you’re driving down the highway and hits the driver behind you, you were negligent and responsible for the foreseeable results of your actions. And since it doesn’t take a Stephen King to imagine that driving with loose furniture could be a danger to those behind you, the damages you caused were probably foreseeable.
But often, it’s not so clear whether or not someone was negligent. In that situation, it may take a Court to determine whether a party was negligent and liable for the damage they caused. Injury lawsuits in Montana can be fought over liability, damages, or both. If the parties are arguing over whether someone was negligent, they are arguing over liability.
The thing to remember is that when you go out in the world, you are expected to behave in a reasonably prudent manner. Be careful. And watch out for everyone else too. The law may presume that people will act with reasonable care, but you’ll probably be safer if you assume the opposite.
A question that all too many Montana injury victims ask is whether their criminal history will hurt their case. Usually, this is actually two questions: 1) can the insurance adjuster find out about my criminal history; and 2) will it hurt my case that I was arrested before? I know that a past crime has nothing to do with whether you were injured in a car accident. But most people have some facts in their past that they would rather not come out in front of a jury or insurance investigator.
The truth is that a criminal history, even a past conviction, usually won’t hurt your personal injury case. But what can really hurt your case is lying. Lying about anything can be devastating to your case. So while a criminal conviction won’t necessarily do any harm to your case, lying about it certainly could.
This goes back to a common refrain on this blog. Tell your injury lawyer the truth, the whole truth, and nothing but the truth. Whatever you tell him is covered by the attorney client privilege anyway. You may be embarrassed about your arrest, but some temporary ego bruising is better than a lifetime of inadequate damages because you hampered your attorney’s ability to help you.
The Montana Rules of Civil Procedure, the rules we have to play by in Court for an injury case, can generally be used to keep past convictions out of trial. But your Montana accident lawyer needs to know about everything in order to use it effectively. Give your lawyer all the facts and let him do his job.
If your injury case has proceeded to the point where a lawsuit has been filed, you may come across the word interrogatories. More specifically, you may come across a long list of questions you need to answer in a certain period of time. Interrogatories are written questions that one party in a lawsuit sends to another.
Your lawyer will help you in answering the questions, and it’s very important that you tell the truth in this process. We’ve talked before how important it is that you tell the truth to your Montana injury attorney and the same applies here. Let your lawyer work for you, don’t tie his hands behind his back with facts that he doesn’t know.
Interrogatories are a part of the discovery process which is governed by the Montana Rules of Civil Procedure in state court and the Federal Rules of Civil Procedure in federal court. The basics of the rules are the same, but there can be some differences. The point of discovery is for the parties to make a full and open exchange of all the information relevant to the case. The scene in Matlock where the secret witness suddenly testifies to seeing the murderer in a different town the night of the killing just doesn’t happen. And for as much of a pain as answering all those interrogatories may be, remember that a full exchange of information also lets the other side know just how strong your case is.
It’s important to remember that discovery in general, and interrogatories specifically, are a legal process governed by statutes and case law. Your injury lawyer is there to guide you through the process, so make use of the resource. Ask questions if you’re confused and keep asking them until you understand.
Montana car accident attorneys see a lot of serious injury from auto crashes and we know that some of the worst are not from high speed crashes on the highways. Many of the worst tragedies, and most tragic deaths are a result of busy intersections in cities like Kalispell, Missoula, and Billings. Usually, these come from a careless driver running a red light and causing an accident. And in cases like this, there may be no witnesses other than the drivers involved.
As the person bringing the injury claim, the victim bears the burden of proof in the case. In a red light runner case, it means that they must convince the jury that the other driver ran the light be a preponderance of the evidence. The victim has the persuade the jury until they are 51% convinced that the victim is correct. Red light runners often use the confusion of the accident, and the lack of witnesses, to their advantage by exploiting the burden of proof.
That’s why it’s so important that you hire the best car accident lawyer that you can to help with a case like this. On scene investigation and a keen eye for inconsistencies is vital to prove a he-said/she-said case like this. A private investigator to track down and interview witnesses can mean the difference between a compensated victim and no recovery.
Car accident lawyers are a growing field lately. Bad driving, it turns out, won’t just go away on its own. The need for personal injury attorneys in Montana is unfortunate, but that doesn’t make it unnecessary. The U.S. Department of Justice did a comprehensive study that shows over half of all personal injury trials across the country are a result of a car accident. Let that sink in for a minute.
Of all the ways to get injured in life, car accidents account for half of the injury trials going on across the country. That’s scary. And emphasizes how important it is to get a good car accident attorney at the beginning of your case. Insurance companies stay in business by denying claims and offering as little to settle as possible. Without a lawyer to help you down the path, it’s easy to fall prey to their bullying tactics and stalling procedures.
It’s also important that you hire an attorney willing to go to trial. When you see how many car accident cases end up in trial, it really hammers home how important it is that they attorney you hire be willing to take the case all the way to a jury verdict if necessary. Settlement factories that will dump you if your case gets at all complicated or difficult just won’t cut it. You need professional representation from a law firm who’s in it for you. Call us today to schedule a free appointment to discuss your case.
Before, I discussed compensatory damages in Montana. The idea behind compensatory damages is to put the victim in the position he would have been in if the injury had never happened. So if you’ve been in a car accident, the compensatory damages are intended to make it like the accident never happened. Part of your car accident lawyer’s job is to help you completely ascertain the amount of those compensatory damages so that you receive the full amount to which you are entitled.
Punitive damages in Montana are another story. Under Montana law, the purpose of punitive damages is to have an impact on the defendant in the form of punishment and deterrence. In some cases, the defendant’s conduct is so unacceptable that they should be punished for their actions.
Montana law allows for punitive damages where the defendant is guilty of actual malice. A defendant acts with malice if he has knowledge of facts or intentionally disregards facts that create a high probability of injury to the plaintiff and proceeds to act in disregard or indifference to the high probability of injury. Under Montana law, a plaintiff must prove punitive damages with clear and convincing evidence.
Punitive damages aren’t necessarily tied to the loss that the plaintiff sustained. Instead, they are sometimes measured against what amount will encourage the defendant to act differently in the future. So, while the net worth of a defendant can not be considered when deciding whether punitive damages should be imposed, it is a valid consideration when deciding what size of punitive damages are appropriate.
One of the first questions I hear from clients, or people just interested in what I do, is “how long does it take to finish a case?” For starters, every case is different. That’s why it’s so important that you consult with a Montana Injury Lawyer about the specifics of your situation. But in general, the hands of justice are not swift.
Negotiating with an insurance company takes time. And before we can even start getting down to the nitty gritty of really settling your case, we need to make sure your injuries are at their maximum. It may sound awful, but if things are going to get worse for you – that means settling your claim while things are still good would be a huge mistake.
And once your case is ready to proceed, the other side has no interest in a quick resolution. Montana’s bad faith laws require insurance companies to proceed at a reasonable pace. But as they say: reasonable minds can differ. The reality is that insurance companies have a strong interest in making even simple cases very time consuming and difficult to pursue: they think it will deter lawyers from taking those cases. Add to that the fact that defense attorneys are paid by the hour, and you have an adversary that is interested in stretching things out as long as possible.
I never counsel my clients to recommend a quick settlement. And anytime I speak with someone who seems only interested in a fast pay-day, I get suspicious. Anything worth doing is worth doing right, but that doesn’t mean the process should take any longer than it has to. I work hard for my clients to push the insurance companies and their attorneys to make a reasonable settlement offer as quickly as possible. And if that doesn’t work, I move on to trial because you deserve to be able to move on with your life.
How would you feel if your surgeon told you that he never actually performed surgery? Probably not exactly what you were looking for. But this is exactly what some personal injury lawyers in Montana do. They take an injury case, negotiate with the insurance companies involved, and hopefully reach a settlement for you. But if that doesn’t work out, well – they hit the road.
When the going gets tough, you deserve to know that your injury attorneys will stand by you and do what it takes to see your case through to the end. You see, we became lawyers to try cases, not just negotiate from behind a desk. And that’s important, because more and more insurance companies are refusing to just settle cases. Partly because they know a number of injury lawyers out there will balk at going to trial and convince their clients to take a smaller result.
This doesn’t mean we won’t settle a case. It means that we will do whatever it takes to get you the best possible result. Sometimes the best result comes from a settlement offer. But sometimes, it requires going to the mat for our clients and doing the work to tell their story to a judge and jury.
At Measure Law Office, we are trial lawyers who love taking cases to trial. Give us a call today at (406) 752-6373 to discuss your case and whether you need a trial lawyer to represent you.
Watch CNN or any courtroom drama on TV and before long you will hear about the burden of proof and the words “beyond a reasonable doubt.” In fact, you’ll hear it so many times that it’s easy to believe that it applies to every court case that gets filed. But, it actually only applies to criminal cases – the kind of cases where there’s a chance that the defendant will go to jail.
In a Montana injury lawsuit, while the stakes are high and the issues important, at the end of the day no one goes to jail. That’s because injury cases are civil cases, and the burden of proof is very different. Instead of beyond a reasonable doubt, the burden in civil cases is a preponderance of the evidence standard. That means that in order to prevail on your injury case in Montana, you don’t need to persuade the judge or the jury of your side of things 100%, you just need to do so by a preponderance of the evidence.
So what does that mean for your accident case in Montana? It’s often described as 51%. If the jury is just slightly more convinced that your side is correct rather than your adverse, then you win. Think of a scale with a pile of sand on each side. If they’re perfectly balanced, it’s split 50/50. But if you take a pinch of sand and move it from one side to the other, then the balance will be tipped that way.
In a Montana Injury case, that’s exactly what we need to do. End up with enough sand on your side that the scale tips in our direction. The same standard applies to all the different aspects of your case: Liability (who caused the accident), Damages (who much your are entitled to receive for your injuries), and anything else.
Whatever type of injury case you have, you need a personal injury attorney to represent you. Measure Law Office is ready to provide complete and aggressive representation across Montana to help get you the compensation and restitution you deserve. Call us at (406) 752-6373 today to schedule a free meeting.