Insurers keep proprietary databases on car prices, similar to the Blue Book or the National Auto Dealers Association (NADA) Official Used Car Guide. The insurer’s valuation of your car is mostly based on its age. So, for example, your car might be totaled if it’s thirteen years old and receives only minor damage, and it might not be if it’s a brand new Porsche that has been in a devastating collision. If your automobile is “totaled,” that means that it would cost more to fix your car then the car is worth. Most auto insurance contracts contain a provision that states if your car is damaged in an accident, your insurer does not have to pay you more than your vehicle is worth. So if your car is “totaled out” by your insurance company, what you will receive is a check for the value of the car. Unfortunately, this is usually not enough to replace your car or to fix the damage to your car. Additionally, if you get back your car and use the money to fix it, insurers may refuse to provide more than basic liability coverage on your vehicle since it has been deemed a total loss.
If your car is totaled by your insurance company, it will usually be taken to a salvage yard, auctioned off and disassembled (“chopped up”) for parts. The insurance company will keep the money the car was purchased for at the auction. However, if you decide to keep your car and repair it, you should be able to do so. Many insurers will return the car to you if you request it, but this may vary from carrier to carrier. Other insurers will let you buy back your vehicle at its salvage price. In these situations, the insurer may deduct the salvaged (buy back) amount from your “totaled out” sum when they send you the check for the value of your car. Alternatively, certain insurers won’t return a car if it’s rare or newer, and the insurer thinks it will get a substantial sum at auction. If your car is returned, you will have to repair it and pass a Department of Motor Vehicles inspection to get your car back on the road. It is important to be aware that insurers may refuse coverage for a totaled car beyond basic liability insurance unless the car passes the DMV inspection. In addition, in order to have complete coverage on your totaled car again, you will have to have it completely repaired.
The terms assault and battery are often erroneously used interchangeably. An assault can be defined as the threat to use unlawful force to inflict bodily injury upon another. The threat, which must be believed to be imminent, must cause reasonable apprehension in the plaintiff. Therefore, where the defendant has threatened some use of force, creating an apprehension in the plaintiff, an assault has occurred. The focus, for the purpose of determining whether a particular act is an assault, must be upon the reasonableness of the plaintiff’s reaction.
If the defendant threatens to use force against the plaintiff, but clearly states that the use of force will not be imminent, and will instead occur at some point in the future, then the plaintiff is unlikely to prevail on a claim of assault. If the threat is imminent, and the defendant appears capable and intent on carrying it out, the plaintiff will likely succeed in proving an assault occurred.
Battery is the intentional and unpermitted contact with another. A battery, for practical purposes, is the end product of an assault. A plaintiff in a battery claim does not need to prove an actual injury, as long as the plaintiff proves unlawful and unpermitted contact with his or her person or property. For example, plaintiffs have successfully proven a battery where the defendant grabbed onto the plaintiff’s coat. In addition, it is not necessary for the contact to be with an object in the possession of the plaintiff or the plaintiff’s body. An unpermitted contact with property of the plaintiff, located within the plaintiff’s proximity, may also constitute a battery.
Defamation includes both slander and libel. Generally, slander occurs when the reputation or good name of someone is damaged as a result of false statements that are made orally. Libel, on the other hand, occurs when false statements regarding another are put in writing.
Whether a particular statement, oral or written, constitutes defamation in the nature of slander or libel will depend upon the particular circumstances and the identity of the parties. To prevail in a defamation lawsuit, a plaintiff must prove that the defendant made a false and defamatory statement about the plaintiff that was communicated to a third party. Thus, a false and objectionable statement sent in an e-mail to the plaintiff’s co-worker may be libelous. The plaintiff can usually succeed by showing the communication was either intentional or negligent. Finally, it is also possible for the plaintiff to bring a libel suit where the plaintiff repeats the alleged defamatory statement. This is called self-publication. This can occur, for example, when an individual applies for a job and has to tell the prospective employer about something the previous employer said that was false.
Before beginning a libel or slander lawsuit, the plaintiff must determine whether or not the objectionable statement is true. No matter how damaging, insensitive, rude or inappropriate a statement may be, the plaintiff will lose if the statement is true.
The “public” plaintiff has additional hurdles to overcome to recover for libel or slander. An example of a public figure is a politician. Along with establishing all of the regular elements of the tort, a plaintiff who is a public figure must also show that the defendant knew the false statement was false, or at least acted with reckless disregard as to its truthfulness. Newspapers may escape liability for libel when they merely report false statements as long as the paper had no particular reason to doubt the statement at the time it was printed.
Finally, the plaintiff often has to prove economic harm in order to recover on a defamation suit. Therefore, the plaintiff may need to be able to demonstrate a loss of business as a result of the defamation in order to establish a right to the recovery of money. However, some types of statements are so damaging that the plaintiff does not have to prove any economic loss. These statements tend to be those that accuse the plaintiff of sexual impropriety or criminal conduct.
An owner of property has a duty to protect members of the public from injury that may occur upon the property. The injured person may be able to recover money for those injuries if he or she can prove that the property owner failed to meet that duty. The hurdle plaintiffs’ face is that the nature and extent of the property owner’s duty will vary depending upon the facts of the situation and the jurisdiction in question.
Some states focus on the status of the injured visitor to the property. These states divide the potential status into three separate categories: invitee, licensee and trespasser. An invitee is someone who has been invited onto the land because that person will confer some advantage to the property owner, such as a store patron. An owner of property is required to exercise reasonable care for the safety of the invitee. A licensee is someone who enters upon the land for his or her own purpose, and is present at the consent, but not the invitation, of the owner.. The owner’s duty to a licensee is only to warn of hidden dangers. Finally, a trespasser is an individual who enters onto the property without the knowledge or consent of the owner and who remains there without any right or permission. Trespassers have difficulty suing property owners because property owners’ duty towards trespassers is not to place traps and hazards on their property. In some cases, the owner must also warn trespassers of the hazards if they are unlikely to be discovered by the trespasser and could cause serious injury or death.
Other states focus upon the condition of the property and the activities of both the visitor and owner, rather than considering only the status of the visitor. In these states, a uniform standard that requires the owner of the property to exercise reasonable care to ensure the safety of invitees and licensees is generally applied. The plaintiff must prove that the duty of care has not been met, through an examination of the circumstances surrounding the entry on the property, the use to which the property is put, the foreseeability of the plaintiff’s injury, and the reasonableness of placing a warning or repairing the condition. Obviously, whether reasonable care has been rendered depends greatly upon the particular circumstances.
The property owner’s duty of care toward children is greater than the duty owed to adults. Even if the children are trespassers or engage in dangerous behavior, the property owner must still take precautions to prevent foreseeable harm to children. The classic example of a property owner’s greater duty of care to children arises in the context of backyard swimming pools. Owners must fence, gate, and lock their pools in a manner that keeps children out and if they fail to do so, they will be found liable for injuries to children, even if the children were trespassers that were warned to stay off the property.
Most individuals who are injured at work are prohibited from filing ordinary personal injury lawsuits against their employers. Instead, injured workers are generally required to file a claim under the state’s workers compensation procedure. An injured railroad worker must bring a claim for benefits under the Federal Employer’s Liability Act (FELA) for compensation for his injuries. FELA is similar to many state workers’ compensation systems with the exception that a railroad employee must be able to prove some level of employer negligence in order to make a recovery. In comparison, most state systems are based upon no-fault theories of recovery where neither the negligence of the employer or the employee is examined.
Laws, rules and regulations require a railroad to furnish a reasonably safe workplace for the benefit and protection of its employees. In keeping with this requirement, a railroad has a duty to inspect and discover defects that may result in injury. In some circumstances, this may include the duty to uncover defects that should be obvious to a railroad employee. A railroad also has a duty to warn its employees of any hazardous or unsafe conditions of which it is aware, or should be aware. A railroad is also required to take other steps to ensure the safety of its workers, including providing adequate training and supervision, appropriate tools and safe equipment and enforcing only reasonable work quotas.
No. Generally, most states that recognize a wrongful death cause of action limit the number of potential plaintiffs. Some states limit this group to the deceased’s primary beneficiaries, defined as the surviving spouse and the deceased’s children. Other states allow the parents of the deceased individual to bring a wrongful death claim. In addition to these individuals, some states recognize the rights of any dependent, whether closely related or not, to bring a wrongful death claim provided the person actually depended on the deceased for economic support.
Some states require any recovery gained in a wrongful death action to be divided amongst the deceased’s heirs at law or to be distributed to the deceased’s heirs at law as it would be in any normal probate proceeding. In these situations, distant relatives may receive some “trickle down” of damages, even though they were not financially dependent upon the deceased during his life. In addition, if more than one plaintiff is entitled to recover, all plaintiffs will share in the award. The manner in which the award is divided can be confusing and will depend upon the laws in the particular jurisdiction where the matter is brought.
Valuation problems arise in two ways. The most common problem is that the insurer’s valuation isn’t anywhere near enough to purchase an equivalent car in the marketplace. If you don’t agree with an insurer’s estimate of your car’s cash value, your best bet is to pay an independent appraiser to provide an estimate. You may need to bring in more than one, so the car will have to be fairly valuable to make this process worthwhile.
If an independent appraiser does not help you and your insurance company reach an agreement regarding valuation, you may try to resolve the matter either through arbitration or litigation. Arbitration is often less time consuming and less expensive than going to court. It is important to have an attorney during this process to look out for your rights and interests. If you choose litigation, be aware that going to court is rarely a cost-effective option. Unless the car was extremely valuable, and the insurance company’s offer is a tiny fraction of what you believe the vehicle was worth, you may spend more in attorney fees and costs than the amount you might recover. Speak to an attorney in your area to discuss your legal rights and options in pursuing litigation.
In general, the answer to this question is yes. An owner of a dog, or any animal for that matter, may be held liable for injuries the animal inflicts on others. However, the ease with which a plaintiff can win a “dog-bite” lawsuit differs from jurisdiction to jurisdiction depending on the legal theory of recovery available in the plaintiff’s location. Some jurisdictions require the plaintiff to show that the animal owner knew, or should have known, that the animal was inclined to attack or bite. In other jurisdictions, the plaintiff may only need to show negligence on the part of the owner in order to recover money for his injuries. If a wild animal, such as a lion, bear or monkey, injures the plaintiff, the animal’s owner may be held accountable under a theory of strict liability for plaintiff’s injuries regardless of the plaintiff’s conduct.
Some states have “dog-bite” statutes designed to address these matters. Additionally, some municipalities may also have their own statutes which address the responsibility of pet owners to answer for the actions of their pets.
If the plaintiff is an adult, the owner of an animal may offer as a defense to the plaintiff’s claim that the injured party provoked the animal. Where the plaintiff has been given clear warning that an animal should not be approached, petted or talked to, and still proceeds with that action, the owner may be able to avoid responsibility if the animal thereafter attacks the plaintiff. This defense is not available, however, if the plaintiff is a child.
Once the plaintiff has established that the animal owner is liable for his injuries, the plaintiff must also establish the amount of his or her damages. The plaintiff should introduce evidence of how much it has cost to treat the injury, such as doctor and hospital bills. In addition, the plaintiff may be able to recover lost wages if the injury kept the plaintiff out of work. The plaintiff is entitled to compensation for any permanent disability caused by the injury, as well as compensation for pain and suffering.
Yes. The average member of the public is entitled to privacy protections, although the strength of those protections will vary depending upon the particular factual circumstances.
Generally, there are four different actions that an injured plaintiff can allege to recover for an unlawful invasion of his privacy. The first concerns the unlawful appropriation of another’s image. The plaintiff could make this claim, for example, if the defendant, uses plaintiff’s picture in a commercial or advertisement without permission.
The second type of wrongful invasion of privacy is in the nature of intrusion. If the plaintiff can prove that the defendant intruded into his or her solitude, seclusion or private life in a manner that would be considered highly offensive to a reasonable person, the plaintiff is entitled to recover damages from the defendant. The issue of what actions are considered highly offensive depends greatly upon the factual circumstances under examination.
The third type of a privacy claim is the public disclosure of private facts. This cause of action requires that facts having no link to a legitimate public concern be disseminated by the defendant resulting in embarrassment, humiliation or offense to the plaintiff. Whether the public has a legitimate concern in otherwise private facts about the plaintiff is always dependent upon the particular circumstances.
A fourth type of privacy right is the right to be free from being placed in a false light in the public eye. This cause of action is very similar to a defamation action. In short, the plaintiff alleges that a communication about the plaintiff was made by defendant, it is untrue, and it was made to the public. The main difference between this cause of action and defamation is that for the invasion of privacy tort, the communication need not be defamatory, it need only be false and highly offensive to a reasonable person.
Generally speaking, an owner of property may not use deadly force to defend the property. Society values human life and bodily integrity much more than property. Therefore, the life, health and safety of an individual, even an intruder, is considered to be more valuable than the china or stereo, which that individual is trying to steal.
An owner is not prohibited, however, from invoking self-help methods in defending property from another. An owner of property is entitled to use reasonable force to prevent someone, or something, from entering onto his of her property or to remove something from his or her property. What, under normal circumstances, may constitute a battery, assault or other intentional tort, will not be considered unlawful in situations where it is performed as a reasonable use of self-help in defense of property. However, the use of force calculated to do great bodily harm, or cause death, is not permitted.
There is one narrow limitation upon the use of deadly force, where it is allowed. Where an intruder threatens personal safety, as well as a threat to property, or where the intruder is committing a forcible felony, deadly force may be appropriate.
A slip and fall action is a type of personal injury lawsuit filed by a plaintiff who has been injured by a slip and fall, usually on the defendant’s property. The plaintiff in slip and fall cases must usually show that the owner of the property had notice or knowledge of the condition, and failed to clean it up and rectify it within a reasonable amount of time. Additionally, if the plaintiff has knowingly encountered a hazard, then he or she may have trouble holding the defendant liable.
Personal injury actions require, by their very nature, that someone be injured. The requisite injury can either by physical or, in some cases, emotional. The general goal of personal injury actions is to place the blame for the injury on the party who caused it and to require them to compensate the injured person for the losses sustained.
Not every injured plaintiff is entitled to recover damages for the injury he or she has sustained. Besides an injury, the plaintiff must establish, through evidence, that the defendant is legally liable for his or her injuries. This requires proof of causation both in terms of actual, factual causation and legal causation. Whether legal causation is established depends on the facts and circumstances of the particular matter in question. The defendant can be held liable as a result of either the actions he or she took, or the actions he or she had a duty and failed to take.
Some personal injury actions revolve around intentional conduct, which means that if an individual intentionally harms another, or knows that the conduct he or she is engaged in has a substantial likelihood of harm, he or she may be liable for the resulting harm. Other personal injury actions are based on negligence. Under a negligence theory, an individual is liable for the injuries caused by his or her own actions, or inaction. Still other types of personal injury actions are based on strict liability, a no-fault system where liability may attach regardless of the fault of the various parties, including the plaintiff.
In some situations, the defendant’s conduct, while questionable, does not rise to a level that entitles the plaintiff to a recovery. For example, if a plaintiff knowingly and willfully chooses to encounter a known hazard, the law holds that he or she has “assumed the risk of injury” and therefore the defendant is not liable. Plaintiffs are denied recovery in other cases if their subjective belief about a situation does not match an objective “reasonable person” standard.
Personal injury law can involve many different types of claims, theories and principles. Some of the more common types of personal injury actions include:
Animal bites can result in the animal owner’s liability to the person who is bitten or who is injured while trying to avoid a bite.
Assault and battery are two intentional torts that involve improper contact with another, without permission or consent or the threat of such contact.
Aviation accidents often result in serious injury or death.
Defamation and privacy are two separate areas that concern the rights of individuals to have their names and reputations protected, and also to have their privacy preserved.
Motor vehicle accidents raise numerous questions as to the liability of one participant to another and also raise interesting questions regarding who should be responsible for covering the losses.
Premises liability concerns the responsibilities of owners of property to safeguard others from dangerous conditions or hazards on their property and to prevent others from being injured while on their property.
Property damage causes of action concern the rights of owners of property to protect their property from damage, theft or intrusion.
Railroad accidents may result in personal injury or death and may subject the railroad to liability.
Slip and fall cases relate closely to the duty of an owner or possessor of land to maintain their property in a safe manner for the benefit of others lawfully entering upon the land.
Wrongful death actions may be brought by the dependents or beneficiaries of a deceased individual against the party whose action or inaction caused the death of their loved one.
Motor Vehicle Accident FAQs
If you have been injured in a motor vehicle accident, you should see a doctor right away. First, you should see a doctor for your own well-being. You may not be able to discern the extent of your injuries yourself; a small ache could be something significant, or it could be nothing at all. Only a doctor can tell you for sure. Second, you should see a doctor because if you decide to bring a legal claim against the at-fault driver or another party, you will need documentation of your injuries and what you did to fix them.
Some states have no-fault insurance laws. This means that you may be able to make some recovery of economic damages from your own insurance company. In other states, if your fault is found to be over a certain level, it is more difficult to recover compensation. An attorney in your state can advise you on the rules in your area.
It is best to speak with an attorney right away. The time limits for taking legal action vary by state, and they may also be affected by insurance policy terms and conditions. The nature of your injuries may even change the amount of time you have to bring a claim.
Even though your state may require all drivers to carry a certain level of auto insurance, that doesn’t mean that everyone follows the law. This is why some states require insurance companies to offer drivers uninsured and underinsured motorist coverage. If your insurance policy has this coverage, then it may compensate you for some of your losses.
Maybe. Your case may settle even before your attorney files a lawsuit; on the other hand, it may go all the way to a trial and a jury verdict. The majority of lawsuits are settled before they get to trial, but what happens in your case depends on the facts, the law and the parties involved.
Your attorney can speak with you about this, but even attorneys can’t necessarily pinpoint what your case is worth until it is close to a resolution. Many factors, including the circumstances of the accident, the state of the drivers involved and the insurance companies influence on the outcome. So do your medical bills, your loss of income and the nature of your injuries. An experienced lawyer can work with you to decide whether to pursue legal action and how to proceed.
Before you accept anything — or sign anything — from an insurance company, be sure that you are aware of your legal rights and options. Accepting a check may mean that you are giving up your right to sue later on if you need extra medical care or you have to miss a lot of work. Consult an attorney before you negotiate with an insurance company.
If you have been injured in a motor vehicle accident, there may be parties other than the at-fault driver who share responsibility for what happened. If the accident occurred because the other driver was drunk, and a business served alcohol to the visibly intoxicated driver before the accident, your state’s dram shop law may allow you to hold the business liable; this varies from state to state. If a defect in one of the motor vehicles caused or worsened the accident, the vehicle manufacturer may be responsible for the injuries that resulted. Or a third party may have left debris in the road or caused one of the drivers involved in the accident to undertake a risky driving maneuver to avoid collision. Finally, if the owner of the car driven by the at-fault driver negligently allowed the driver to use the car, the owner may be liable, too.
If you have further questions about motor vehicle accidents and obtaining compensation for a personal injury, contact The Tadda Law Firm in Baton Rouge, Louisiana. We are eager to serve you.