My Fellow Personal Injury Attorneys' Advice Was Wrong, and it May be Costing You Thousands of Dollars.Read Now
I am not blogging about this to throw my fellow personal injury attorneys under the bus. I'm doing it because the incorrect answers they've posted may be costing people with claims tens of thousands of dollars. I also would like to teach my readers a "life hack" for small claims or limited jurisdiction courts so they can increase their earning potential if a cause of action ever arises.
The other day I was browsing Avvo, when I noticed a question that was asked by someone seeking legal advice.
The question asked was:
These answers followed:
These answers are incorrect. In many other states, they may be applicable, but not in California, and the asker was from California.
First of all, in a nutshell, the generally accepted principal of res judicata states that you cannot sue twice for the same cause of action. Therefore, in most states, if Cartman is negligent and gets into a car accident with Kenny, thus injuring (but not killing) Kenny, Kenny can only sue Cartman for negligence once. In that suit, he must allege all damages. In most car accident cases the damages will be those arising from property damage to the vehicle, and those arising from the bodily injuries, such as medical bills, lost wages, and pain and suffering.
However, California has something called the primary rights theory (Crowley v. Katleman (1994) 8 Cal.4th 666, 681). What this theory states is that a cause of action consists of a right that is violated. The way this plays out is that the courts recognize that in the above accident, Kenny has the right to 1. A car without property damage and 2. A body free of bodily injury. By driving negligently, Cartman has violated each of those separate rights. This means that in California, Kenny can sue Cartman two separate times.
Why does this matter?
Let's say you're suing in small claims court. The most you are allowed to ask for in California Small Claims courts is $10,000.00. If your bodily injury claim is clearly worth more than $10,000.00, a good strategy would be to NOT claim property damage loss in the complaint. Leave it out, sue for the bodily injuries, and get the full $10,000.00. Then, sue separately for property damage, and ask once again for whatever the claim is worth, up to $10,000.00.
With this information, you can now get up to $20,000.00 in damages stemming from a single car accident rather than just $10,000.00. If you're in California Limited Jurisdiction court, the limit is $25,000.00 and this theory would apply as well, so you would be able to get up to $50,000.00 in damage stemming from one accident rather than just $25,000.00.
When I represent my clients for their personal injuries, I make sure that I am updated with the latest developments in the law so that my clients get what they deserve.
If you or your loved ones have been injured and need a personal injury that is fluent in English, Español and Hebrew, call the Law Offices of Yoni Weinberg at (818) 697-1079 for a free consultation. If you don't win, we don't charge.
Disclaimer - This is not legal advice. This is merely an opinion based on general legal principles.
Reports of a massive accident caused by a man playing the hottest application, "Pokemon Go" on the highway turned out to be false. However, because the likelihood of such an accident is pretty high, I've decided to analyze whether or not a person killed or injured by such an accident would prevail against the company that developed this application.
In case you're unfamiliar with the application, it involves finding Pokemon characters, which are laid out across the city. The application uses your GPS to track your location, and you can only capture the character if you are physically next to it. Thus, if a Pokemon Go enthusiast is driving on a busy highway, and notices a character, he must stop his vehicle and approach the character with his phone if he wants to capture it. This obviously raises the potential for some serious accidents to occur.
Although a lot of the accidents I deal with on a daily basis are clear cut, such as a driver accidentally rear ending another driver and thus being held solely at fault, the scenario described above would not be as clear cut.
The Pokemon Go player would clearly be at fault, but would likely have insufficient assets to cover a traumatic injury or wrongful death. If the player has zero assets and a $15,000/$30,000 minimum policy limit, his insurance would only be liable for the $15,000 policy limit, unless they offer less than that and are subsequently sued in court. In such a case, they have unlimited liability. However, assuming someone is killed or has medical bills far exceeding the $15,000, the insurance will pay the $15,000 and avoid being liable for a multimillion dollar verdict.
Therefore, as a personal injury attorney, I would attempt to go after the deeper pockets. Commercial policies are often $1 Million+.
In order to predict how a court will rule in the future, attorneys look at how the courts have ruled in the past.
A California case that comes to mind is Weirum v. RKO General, Inc. In that case, a radio station held a contest in which they would announce their DJ's location. The first listener to find the DJ would win a prize. This inspired two listeners to drive recklessly toward a broadcasted location, killing another driver in the process. The plaintiff in Weirum brought a wrongful death action against the radio station. The jury awarded the Plaintiff's family $300,000.00. The radio station appealed.
The Supreme Court of California affirmed the jury’s determination that the defendant radio station was liable under a negligence theory for the "foreseeable results of a broadcast which created an undue risk of harm".
The radio station argued that the listeners acted negligently and it was therefore solely their fault. The court rejected this argument, stating that the radio station should have foreseen that people would act negligently as a result of their contest.
It is important to note that courts in other states have rejected this notion.
I personally believe that in the case of an accident occurring due to Pokemon Go's placement of a Pokemon on the highway, a Plaintiff would have a good case based on the ruling in Weirum. I would take on such a case.
What do you think? Would this be a similar situation? What would you decide if you were on the Jury?
Would and should the child that was attacked by Harambe the Gorilla win in a lawsuit against the zoo?Read Now
Everyone seems to have an opinion about whether or not the parents of the boy who crawled into the gorilla exhibit at the Cincinatti zoo were bad parents, and whether the zoo made the right decision when they killed Harambe, the gorilla that was dragging the child in the water.
Personally, I do not have enough information to determine whether the parents were negligent. If the child was completely by himself at the zoo, they were surely negligent. If they lost sight of their kid for over 15 minutes, they were probably negligent. But what if they had only looked away for 5 seconds and when they looked back their kid was already hidden in the bushes on his way down the 15 foot drop to the gorilla exhibit? My nephew is only 19 months old and he could definitely run the distance from the rail to the 15 foot drop into the gorilla exhibit within 5-10 seconds. The boy that was involved in the incident was 4 years old.
However, I am quite certain that the Cincinnati zoo was in fact negligent and partially, if not totally, responsible for this incident.
How can I make such a bold claim without having personally inspected the site?
I make this claim this based on my experience with premises liability cases. Although I am only licensed to practice law in California, most states follow similar principal of negligence. In a nutshell, premises liability is a legal concept that typically comes into play in personal injury cases where the injury is caused by some kind of dangerous or defective condition on another's property.
In order to win a premises liability case, the injured person must prove that the property owner was negligent in regards to ownership and/or maintenance of the property. Generally, one is negligent when they fail to use reasonable care. Reasonable care is generally subjective and requires an analysis of the surrounding facts and circumstances.
It is a common misconception that one may sue a property owner if they get hurt on their property and win automatically, no matter what. This is not the case. Furthermore, simply because the property might have been in an unsafe condition does not automatically mean that the property owner was negligent. One has to show that the property owner knew or should reasonably have known that the premises were in an unsafe condition, and still failed to take proper steps to remedy the situation.
Here, it is a fact that a 4 year old child was able to, on his own, traverse a barrier that separates 1.2 million visitors every year from a 15 foot drop that leads into a family of large, sometimes angry (although sometimes very kind), potentially deadly gorillas.
The zoo knows how dangerous these gorillas can be, hence the reason why their procedures dictated that their employees shoot the gorillas to death in the case that they come into contact with a human.
The zoo also knows that it is very likely that out of 1.2 million visitors per year, it is very likely that one day, some brave kid will try to go play with King Louie from the Jungle Book.
There is absolutely NO reason why this barrier was not bigger and stronger then it was. It wouldn't be cost prohibitive for a zoo with the Cincinnati Zoo's budget, and they could still attract plenty of visitors and allow them to experience the Gorilla exhibit in a fun, but safe, way.
I do not know the exact nuances of Ohio law, but if this were to happen in California, I would definitely take on this case if the child's parents came to my office. The child and his parents should not have had to go through the pain and suffering that they went through. The child suffered both physical injuries and emotional distress, and the parents that had to watch their half-conscious child get dragged around by a gorilla surely suffered emotional distress.
And for those that believe that the parents were partially at fault, most states allow for comparative negligence. Thus, if the jury were to find that the parents and the zoo share the blame equally at 50% each, the zoo would still be liable for 50% of the damages. To use a round number, if the jury finds that the damages suffered by the child were worth $1 Million, the zoo would still have to pay $500,000.
Disclaimer - This is not legal advice. This is merely an opinion based on general legal principles.
If You Don't Have Auto Insurance and You Get Into a Car Accident, Make Sure it's With a Drunk Driver. (Or Better Yet, Get Auto Insurance and Don't Get Into a Car Accident)Read Now
During my first semester of law school, one of my favorite professors - Anthony Bocchino - once proclaimed during a lecture on the "Heat of Passion" defense to murder that "if you ever want to murder somebody, make sure you do it while they're sleeping with your wife" (in reference to a case in which a man walked into his bedroom to find his wife in bed with another man, killed him, and had his murder charge downgraded because of the surrounding facts).
Utilizing the same cheeky rationale, I've coined a personal injury version of this piece of "advice": if you don't have auto insurance, and you get into a car accident, make sure it's with a drunk driver. (or better yet, get auto insurance and don't get into a car accident.)
Why, you ask? Prop 213.
Prop 213 is a law that prohibits uninsured drivers from recovering noneconomic damages, such as pain and suffering, if they are involved in an accident, even if the accident was entirely due to the negligence of another driver.
This law was passed on November 5, 1996, after the insurance companies lobbied for this law in order to save themselves a lot of money. Some argue that it has the potential to incentivize drivers to obtain auto insurance. I happen to be of the opinion that a person who is considering whether or not to purchase insurance does not consider their ability to collect noneconomic damages in a future accident. I would much rather have the state collect a fine from uninsured motorists and place the proceeds of such fines into a fund that helps victims of uninsured motorists. But that's beside the point of this article.
One of the major exceptions to Prop 213 is that Prop 213 does not apply to uninsured motorists that are hit by a drunk driver.
So let's say Moe does not have auto insurance, and is rear-ended by Barney, who just downed a 12 pack of Duff. Barney is subsequently convicted of a DUI. Moe is seriously injured, and can no longer lift anything, such as his phone when he fields important calls from patrons at his business. Moe will be able to collect both economic damages such as property damage to his vehicle and medical expenses that he must undergo to take care of his injuries. He may also be able to collect a large sum of money for the pain and suffering that he has to go through due to his inability to do everyday things, such as lifting a phone.
However, if all facts remain constant with the exception of Barney being drunk during the accident, Moe will be denied the cash for pain and suffering.
Thanks Prop 213.
So do yourself a favor, avoid this whole mess, and get auto insurance. I heard some guy the other day showing off about how he saved 15% or more on his car insurance.
*Prop 213 is applicable only in California. Check local laws if you are injured in another state.
Why I Love Being a Personal Injury Attorney (or as those who are unfamiliar with the California Rules of Professional Conduct Rule 1-400 call us, Ambulance Chasers)Read Now
Years ago, before I made the decision to go to law school, I had a stint as a sales representative for a commercial energy broker. I left after approximately two months. I didn't leave because I wasn't making any money, or because I was treated badly. In fact, the company treated me to an all-expenses-paid cruise to Mexico.
I left because I was selling a service that I would not be able to recommend to my family and friends if they were ever to approach me. The contracts that I was supposed to convince potential clients to sign up for were very overpriced. In fact, a day before I quit, I sabotaged one of my own deals. I had a deal lined up with an elderly Vietnamese restaurant owner. The deal would have canceled his current contract at a hefty fee, and placed him on a new, more expensive contract that he could have gotten for much cheaper by merely going online and signing up.
Yes, I would have been paid handsomely for the sale. However, that would come at the expense of an innocent man that was working hard to make a living. I couldn't live with myself, so I returned to the restaurant owner and told him the truth - that cancelling at this point was inefficient, but that he should continue to check online towards the end of his contract to see if he could beat his current price. I went home, feeling much better about myself, went to sleep, woke up the next day, quit, started a career in banking, went to law school, moved to Los Angeles, and became a personal injury attorney.
So why do I love being a Personal Injury Attorney?
Because I actually feel good about what I do. I treat my family and friends with the same exact service that I treat clients that I've never met before.
Because I get to ensure that people that have been injured by the negligence of others are getting what they deserve. There is nothing more frustrating than seeing someone settle with an insurance company for $10,000, when the injuries they have will actually cost them $100,000.00. People oftentimes do not consider that the insurance companies aren't only responsible for paying for all of their medical treatment.
Your pain and suffering that you went through has a monetary value. No, money will not make the pain and suffering go away, but it can buy you a lot of Ben and Jerry's, which will make the pain and suffering go away.
People don't consider that the wages or vacation time they lost during those days that they missed work for medical and car appointments, and/or because they just were in too much pain to go to work are reimbursable.
People don't consider that there are certain things that could come up in 10 or 20 years as a result of this accident, way after the statute of limitations expires, that are reimbursable today.
My job is to make sure that the insurance companies do not take advantage of people's lack of knowledge, and leave them empty handed when the bills start adding up.
So essentially, I went from signing up people to devastating contracts, to preventing people from signing devastating contracts.
Although I have yet to receive a free all-expenses-paid cruise, I must say it feels pretty good.