**LITIGATION INVOLVING TRUCKING, MOTOR VEHICLE, MOTORCYCLE, BICYCLE ACCIDENTS, AND/OR PEDESTRIAN ACCIDENTS
The Law of Comparative Negligence:
In California, fault is not determined on an all or nothing basis because the law of comparative negligence applies. Thus, the persons involved in an accident may all be assigned some percentage of fault. For example, in a two car accident, the jury might find one driver 25% at fault for the accident due to speeding, and the other driver 75% at fault for making an unsafe lane change thereby cutting off the other driver and causing him to collide with some trash cans. Assuming that only the driver with 25% fault sustained damages, and also assuming those damages were in the total amount of $1,000, then the other driver would have to pay $750 in damages.
What Is the Measure of Damages, and What Types of Damages May Be Sought?
In general, the law attempts to provide for damages that will make the injured party whole. Such damages may include, but are not limited to, property damages, medical expenses (regardless of whether or not they are covered by insurance), lost earnings due to lost time from work (regardless of whether or not the injured party had disability insurance, etc.), lost earning potential (e.g., where the injured party is too injured to return to his former line of work as a construction worker, etc.), and pain and suffering. In some cases, an injured party may also be entitled to punitive damages – see discussion below.
How Much Evidence Do I Need to Prove My Case?
In respect to most issues, the plaintiff has the initial burden of proof. This means that if the defendant shows up to court on the date of trial and does nothing, he/she will prevail unless the plaintiff presents enough evidence to establish each legal element of his or her claim.
The next question becomes, how much evidence is needed? Absent certain exceptions such as in the case of punitive damages, generally the plaintiff must prove his/her case by a "preponderance of the evidence." This simply means that the matter is more likely true than not. For example, referring to the proverbial scales of justice, imagine there are equal amounts of grains of sand on each scale. The grains of sand represent the evidence. To prevail, all the plaintiff must do is add enough evidence (i.e., grains of sand) to tip the scale in his/her favor.
In the case of punitive damages, the relevant facts must be proven by "clear and convincing evidence." This standard is often described as meaning that it is highly probable that the fact is true. [See CACI 201.]
What are Punitive or Exemplary Damages?
Punitive or exemplary damages are intended to punish and to discourage the wrongdoer and others from engaging in similar conduct. In such instances, the plaintiff must meet a higher burden of proof. The claimant must establish his claim by "clear and convincing evidence" that the wrongdoer acted with malice, oppression, or fraud. In layman’s terms, this basically means that the wrongdoer knowingly, or recklessly acted with disregard for the rights and safety of others. [E.g., see CA Civil Code
§3294, CACI §3940.]
What Should I Do If I Am in an Accident?
Your first concern should be that of safety. This section is only intended to address legal considerations.
After an accident, you may be under the impression that the accident was completely your fault even though later investigation may prove otherwise. Remember that under the law of comparative negligence, all parties may have some degree of fault. Thus, you should not make statements implying or admitting you are at fault, because you may not be entirely correct, and because those statements (e.g, "sorry, it was my fault") may be admissible in court. Police reports are generally not admissible in court, however, the police can been of great assistance in collecting helpful information that may otherwise be difficult or impossible to obtain yourself, such as the other party’s, name, address, driver’s license number and insurance provider, the other party’s statement of how the accident occurred, photographs and measurements of the accident scene, names and contact information for witnesses, and so on. [Note: In addition, you may be required to file certain forms with the DMV, e.g., the SR-100 in the case of injury, death or property damage; see the DMV website.]
You should also take notes at your earliest opportunity of any admissions or other relevant statements by the other driver, as well as the statements and contact information of any witnesses. If you have a camera or portable telephone with a camera, take pictures of the damage (or lack thereof), the witnesses and parties, license plates, the accident scene and the presence of skid marks or lack thereof. Keep in mind that if litigation is commenced, you may be forced to produce to the opposing party any notes, diagrams and/or photographs you take. Thus, if you write anything down implying or stating you are at fault, it could be used against you in court.
After you are safely away from the accident scene, in most cases you should promptly notify your insurance company, and will need to decide whether you would be best served by retaining an attorney. If you are a defendant and have been served with a complaint, you should immediately notify your insurance company and request that they assign counsel to your case.
How Long Should I Wait Before Retaining An Attorney?
If you are a claimant (i.e., plaintiff), you should not delay consulting with an attorney once you have been injured. The reasons are two fold. First, the law imposes certain deadlines (statutes of limitations) by which you must file a complaint or lose your right to bring suit. Second, as time goes on, memories fade, and witnesses and evidence disappear.
If you are a defendant, you have probably already been served with a complaint, and now are looking for a suitable attorney to represent you. A defendant who has been personally served with a complaint, must file a response to the complaint within 30 days, or risk having a default taken against him/her. Thus if you are a defendant, it is critical that you act promptly to find an attorney to represent you. As discussed above, if there is any chance that you have insurance that may cover your claim (and you should under California’s mandatory minimum insurance requirements), you should immediately notify all applicable insurance companies and request that they retain counsel on your behalf before your default is taken. If you don’t have insurance or it appears your insurance company will not timely retain an attorney on your behalf, you should consider retaining an attorney on your own to avoid having plaintiff take your default for failing to timely file a responsive pleading. If your default is taken, you risk losing your rights.
What Are Statutes of Limitations?
Statutes of limitations set deadlines for bringing actionable claims. The amount of time you have to file any particular claim can vary depending upon the type of the claim, and the party or parties against whom you are asserting a claim or claims. If, for example, you are asserting a claim against a government entity (e.g., for a defective and inherently dangerous road condition that contributed to your accident), you may have as little as 6 months to file a notice of claim directly with that government entity or risk losing the right to assert a claim against that entity in court (e.g., see Govt. Code § 911.2). Other statues of limitations can be much longer (e.g., Code of Civil Procedure §335.1 sets a two year statute of limitations in some cases for claims for personal injuries; however, for a personal injury action against a doctor or other medical care provider (i.e., a medical malpractice claim), a one year statute of limitations may apply, see Code of Civil Procedure §340.5). Because several different statutes of limitations may apply to your claim, and because they are subject to legal interpretation, you should promptly consult with legal counsel to identify and interpret applicable statutes of limitations to avoid losing your rights.