Introduction to Personal Injury in California

If you have been injured, and your injury is due to another’s fault, then you may have an actionable personal injury claim against the person (or business, or government apparatus) who is at fault.

Each state has its own set of personal injury laws, and California is no exception. It is therefore crucial that we examine the law of personal injury from multiple perspectives (general and specific).

Statute of Limitations

Warning: if you believe that you have an actionable personal injury claim, you should speak with a qualified California personal injury attorney as soon as possible. If you fail to bring your claim within the applicable statute of limitations timeframe (see below), your claim will no longer be legally actionable.

The law of personal injury varies from state-to-state, and similarly, the statute of limitations period – the timeframe under which your potential claim is legally actionable – varies too. In California, the standard statute of limitations period for personal injury claims is two years from the date of injury. The injured party therefore has two years to file their lawsuit.

Depending on the facts surrounding your personal injury claim, the statute of limitations period may change. For example, if you are bringing your claim against a government employee (who injured you during the course of their employment), then the applicable statute of limitations period will shrink even further to six months. It is common for injured persons to sit on their claims for too long. Medical care, physical recovery, work problems, and depression – all of these issues and more can contribute towards a delay in filing the claim. Thus, it is worth reiterating: if you have been injured due to the fault of another person, contact a qualified personal injury attorney quickly. Your case must be assessed and a complaint formally filed to preserve your claim.

What if you only discovered your injury years and years after the accident occurred? Perhaps you’ve discovered, years later, that your spinal alignment was influenced by the accident, threatening long-term physical problems. Thankfully, California law provides a safe harbor for these kinds of claims. If an injured party does not immediately discover the injury on or near to the date of injury, then the statute of limitations will instead begin to run for one year from the date of discovery. Just remember, once you have become aware of the injury – whether through self-discovery or thanks to the opinion of a medical professional – don’t delay!

The Types of Personal Injury Torts

There are several different types of personal injury claims. Your attorney will have to pursue a legal strategy properly tailored to address the unique issues each type of claim presents.

Intentional Torts

When an at-fault party intends for their actions to cause harm to the victim, such willful, purposeful conduct comes under the umbrella of intentional tort. Intentional tort not only includes personal injury claims against a direct, violent assailant (such as in an assault and battery situation), but also for claims against a person who indirectly creates the circumstances necessary for an injury to occur. For example, a man could be found liable under intentional tort if he were to leave glass marbles out on a busy sidewalk, and if a passersby slipped and injured themselves due to the marbles. The attorney for the victim could effectively argue that the man intended to cause harm by knowingly and purposefully placing the marbles out on the sidewalk where someone would likely step on the marbles and fall.

For an intentional tort, the plaintiff has to prove that: a) the defendant intentionally acted in a manner such that injury was likely to occur; and b) the plaintiff suffered harm as a result.

Negligent Torts

Negligence is based on the existence of a basic duty of care that a person owes to others. The duty of care analysis is highly fact-specific – for example, the duty of care that a butcher owes his customers (that his meat be clean and free of disease-causing agents) is fundamentally different to the duty of care that a driver owes a crossing pedestrian. Because of the wide variety of factors involved, a personal injury victim should consult a qualified personal injury attorney for guidance on their negligence claim.

To prove negligence, the plaintiff must show that: a) defendant owed a duty of care to plaintiff; b) defendant breached his or her duty of care; and c) the defendant’s breach caused, in substantial part, plaintiff’s injuries.

Criminal Law and Torts – Will There Be an Issue?

In many intentional tort cases (and cases of criminal negligence), the government will criminally prosecute the at-fault party, which may confuse the personal injury victim. It is not entirely uncommon for victims to believe that there is no need to file their own personal lawsuit. “It’s already covered,” they might think. This is incorrect.

A crime is a wrong committed against society. A tort is a wrong committed against a private entity: a person, group of persons, or an organization.

When a person commits an intentional (or criminally negligent) tort, they are committing two wrongs: one against society, and one against the victim. Each of these violated parties – society and the victim – may therefore bring their own claim against the at-fault party. Society’s claim forms the foundation of the criminal suit, whereas the victim’s claim forms the foundation of the personal injury suit.

Don’t worry. If there is a criminal and civil lawsuit, they will be kept separate, and the goings-on of one will not typically affect the other.

Strict Liability Torts

In a strict liability case, the at-fault party is liable so long as they are at least partially responsible for the injury. They need not have intended to cause the injury. The at-fault party need not have even negligently caused the injury! For a personal injury victim to succeed under a theory of strict liability, he or she simply has to show that the at-fault party caused the injury – in other words, that the at-fault party is actually at-fault.

In California, strict liability applies in a few limited circumstances:

• Product Liability

• Strict liability is common in defective product cases. For example, if you are using a microwave and it explodes and injures you due to a defect in the manufacturing process, you will likely be able to bring a personal injury claim under a theory of strict liability. To succeed in a product liability case, one must prove that: a) the product was defective in manufacture or design; and b) said defect was the substantial cause of plaintiff’s injury.

• Animal Attacks

• In California, dog owners are strictly liable for the damages caused by their dog’s bite attacks (California Civil Code section 3342).

• Ultrahazardous Activity

• Defendants engaging in ultrahazardous activity may be found strictly liable for any resulting injuries.
  *Though certain ultrahazardous activities are explicitly defined in certain statutes (California Health & Safety Code section 12005.5, California Water Code section 13350(b)), in most cases, the Court will make a determination based on several factors (including, but not limited to the risk of harm presented by the activity, how easy it is to limit the risk of harm, and the positive value to the community of engaging in the ultrahazardous activity).

Shared Fault

In personal injury, it is not at all uncommon for there to be multiple, potentially at-fault parties (defendants). To assign fault, California law divides the liabilities according to a theory of pure comparative negligence. Each defendant is liable for a percent of total damages equal to their faultiness, or put differently, for their share of responsibility for the injury.

Consider this example: imagine a unique premises liability case, in which a personal injury victim slips and falls at a restaurant on the slick floor due to a standing puddle of water. This victim may be able to sue multiple defendants – the restaurant owner, for failing to implement a reasonable water cleanup protocol at the restaurant, and the person at the next table, who, perhaps, has an intense hatred for the victim and intentionally splashed the water on the ground near the victim fifteen minutes prior to the slip and fall incident.

In this example, both of the defendants are likely at-fault. Suppose that the victim wins her case and the damages are $100,000. The Court finds that the restaurant owner is 30% at-fault, and that the water splashing patron is 70% at-fault. The restaurant owner will therefore be liable for $30,000, and the other patron will be liable for $70,000.

Damages Breakdown

In California, personal injury plaintiffs may be entitled to claim up to three different categories of damages: special damages, general damages, and punitive damages.

Special Damages

Special damages are economic damages, including but not limited to medical expenses, wage loss (due to getting demoted or fired, or having hours reduced by a supervisor), loss of future earning capacity, loss of employment opportunities, property damage and repair, and potentially long-term household care and rehabilitative care. Special damages are the simplest damages to prove in a lawsuit as they are commonly documented and do not usually require further explication, as with general, noneconomic damages. A qualified personal injury attorney will help you to identify and gather the necessary documentation so that an accurate demand for compensation can be delivered the opposing party.

General Damages

General damages are noneconomic damages, and may therefore be more difficult to prove than economic damages. A great deal of one’s general damages claim will depend on the ability of one’s attorney to formulate a convincing argument for the specific amount demanded. General damages may include (but are not limited to) claims for damages based on pain and suffering, mental difficulties and emotional distress, social problems and public humiliation, spousal issues, and more. It is important that you gather together documentation from visits with relationship and career counselors, psychiatrists, psychologists, and other relevant professionals, as such documentation will help your attorney to better assess and assert a convincing claim for general damages.

Punitive Damages

Unlike special and general damages, punitive damages are used to punish the at-fault party rather than to compensate the victim (though it is worth noting that the ultimate punitive damages award will be given to the victim anyway). The concept behind punitive damages awards is that their implementation helps to discourage certain behaviors due to their high economic costs. Punitive damages awards can go as high as seven times the total compensatory damages award (special + general damages). Many extremely high-value lawsuits in the public eye thus involve a claim for punitive damages. Despite their mainstream visibility, punitive damages are rarely awarded, and only then in cases in which the defendant has acted in a particularly egregious, malicious, violent, oppressive, fraudulent, wanton, or reckless manner.