Blog

personal injury attorneys

You should be aware of your rights, particularly on the subject of personal injury claims, even if you prefer to just simply reach an amicable settlement with the offending party than go to court. If you ever experience an accident, you will realize how disturbing the accident can be if you are suffering from the negative effects of what happened. Even if you want to simply put the accident behind you, there are many factors you cannot just forget.personal injury attorneys

The outcome of any injuries may be minimal or serious. You can forgive and forget or settle amicably quickly with the other party if you had suffered bruises and you believe that the pain will not significantly impact your daily life. However, you can never be sure what will occur once you find yourself in an accident. It is advisable to be armed for the fight ahead by the knowledge of what steps to take in case of an accident.

It is important to gain further knowledge about the subject. You can do this by conducting basic research. Look at books that discuss the subject. Browse through the pages before making your purchase to make sure you are getting a book written for people who are not very familiar with legalese. You can also check out websites that deal with personal injury claims. Personal blogs containing people’s experiences will be a lot of help. Also look up professionals’ websites that provide legal services and find out what you will experience once you have filed your injury claim.

If you lack the time to conduct basic research, here are some pointers that can help you when you find yourself in accident and have determined that you are eligible to file an injury claim.

1. Remember that if the accident is not your fault, you always have the option to file a compensation claim. Some people may just opt to put the accident behind them, especially if the injury is very minimal or the party is eager to settle immediately. If the injury is major and you think that it will cause more problems in the future, you have to do some serious thinking before you disregard the signs and before you decide to forget about the accident.accident injury law

2. Photograph all angles of the accident. Use your cellphone camera to take pictures of all evidence that is visible at the scene of the accident. If you are unable to take pictures, ask another person to perform this task for you.

3. Take note of all details that will be asked of you when the investigation of your case starts. Write down the time, date, weather condition, location and circumstances of the accident.

Seek the services of a lawyer to help you build a strong case for your personal injury claim. Make sure to hire the right lawyer who will handle your case for you. Consultation fees with a lawyer are usually waived. Lawyers will be compensated after they have won the case.

Incompetent Defendant Appeared Pro Se

Here’s a tip for all you trial attorneys out there: don’t proceed to trial against a (possibly) mentally incompetent defendant in her late eighties appearing pro se. And remember your Rule 10 notices. At least that’s the message from the Supreme Court recently.

The case is procedurally complicated enough that I won’t repeat it here, but here’s the gist of it: Juanita Stands was driving in “advanced twilight” on  the highway. Clark Rice was driving a tractor on that same road, and his tire extended in Stands lane. The tractor’s lights were not luminated and Stands struck the rear tire, which sent her spinning into Vianna Stewart, who was traveling in the opposite lane. Stewart and Stands sued everyone (inlcuding, initially, each other) and also named Rice’s mother, Edythe on the theories of respondeat superior and negligent entrustment.

At least initially, the Rices were represented by counsel. However, as the case drug on (it took five years until trial apparently) they could no longer afford their defense. In January of 2011, Clark’s counsel filed a motion to withdraw based on his inability to pay. Clark consented to the withdrawal, and the Court granted the motion. On January 10, 2011, Stewart served a Rule 10 notice on him.

On January 21, 2011, Edythe’s attorney filed a Motion to Withdraw and Motion to Continue. In addition to his request to withdraw, the attorney submitted an affidavit raising significant questions about Edythe’s mental health and requesting that a conservator be appointed prior to any further proceedings because it would be “an injustice to require [an] incompetent woman to proceed to trial without representation.”

On February 4, 2011, her attorney filed a motion asking the Court to allow Edythe to testify by deposition, again raising concerns about her mental health. On May 6 the District Court granted the motion to allow her to testify by deposition and on May 18 it allowed her attorney to withdraw. Both Clark and Edythe proceeded to trial pro se (without an attorney). Edythe was (mostly) physically present, but did not present any evidence or participate in the trial.

A bench trial was conducted, and the District Court concluded that Clark was negligent per se for violating three traffic statutes, and that each violation was an actual and proximate cause of the resulting collisions. Further, Edythe was found vicariously liable for the injuries because Clark was her agent and he was acting within the scope of his duties at the time of accident.

However, on appeal Edythe obtained counsel. The Supreme Court found that “that [Court’s] failure to evaluate Edythe’s competency prior to trial raises significant questions of the fundamental fairness of the proceedings with respect to her unrepresented participation in the trial.” Id., ¶ 31. The Court also ruled that the failure to provide Edythe with a Rule 10 notice “prejudiced her substantial rights and constitutes reversible error.” Id. ¶ 35. The Supreme Court passed on deciding the due process claims Edythe raised on appeal because the first two issues were already dispositive.

The Court reversed the judgment against Edythe and remanded the case for an evaluation of Edythe’s need for a conservator and new trial as to her vicarious liability only.

Negligence per se

Law holds us liable for both our intentional and negligent acts. Because intentional acts tend to be very obvious, most legal cases are more concerned with negligence. I’ve discussed it before on here, but negligence happens when a person fails to exercise “reasonable care.” But, deciding this happens after the fact and usually requires a jury. One exception to that is negligence per se.

Negligence per se translates to negligence in itself. Basically, some acts are so obviously problematic that it doesn’t matter whether or not they’re done with reasonable care. If something is negligence per se, the person who commits that act is liable for the reasonably foreseeable consequences of that action. No matter how careful they were. Basically, this refers to the violation of a statute. Specifically, this refers to the violation of a statute intended to protect the plaintiff that injures the plaintiff.

A plaintiff must establish five elements to bring a negligence per se claim: (1) that the defendant violated a particular statute; (2) that the statute was enacted to protect a specific class of persons; (3) that the plaintiff is a member of the class; (4) that the plaintiff’s injury is the kind of injury that the statute was enacted to prevent; and (5) that the statute was intended to regulated members of the defendant’s class.

If the plaintiff proves these elements, a defendant is negligent as a matter of law. But that’s just the first step. The plaintiff must still succeed in proving causation and damages to establish liability. If a plaintiff fails to do that, his claim fails as a matter of law. The defendant’s actions must have caused the alleged damages. Similarly, a claim fails as a matter of law if the plaintiff fails to establish the material elements of the claim, including damages.

What does all that mean? Basically that negligence law continues to apply. The four common elements of damages are duty, breach, causation, damages. Instead of a traditional duty analysis, we have the five factor test discussed above. But that’s only the first step – and the remaining three steps continue to apply. Because it short-circuits the duty requirement, negligence per se can be a powerful claim. But, it’s important to remember that it carries its own set of requirements and shouldn’t be reduced to just “breaking a law.”