Tag Archive: Damages

FALSE IMPRISONMENT IN THE STATE OF CALIFORNIA; IT IS MORE THAN YOU MAY THINK!

Written on July 8, 2007 by in Damages, Editorial, Intentional Torts, Personal Injury

California Personal Injury Lawyer Norman Gregory Fernandez discusses the tort of false imprisonmentMost often when people think about false imprisonment, they think about people being falsely arrested by the police. Most people don’t know that non-police officers can be liable for false imprisonment under many different circumstances.

The purpose of this article is to give a brief synopsis of the civil tort of false imprisonment in the state of California.

A basic definition of civil false imprisonment is; “a person intentionally holding another person within the bounds of a fixed area, without the consent of the person being held, and without a privilege that would excuse the conduct.”

For instance, let’s say that a man locks a woman in a room without her permission. This would be a classic case of civil false imprisonment.

Another example would be a person holding something of value to another person with the intent to make them stay in a certain place, and without the consent of the person whose valuables are being held.

Civil false imprisonment could also include one person grabbing onto another person without their consent, and holding them so that they cannot leave.

There are many other examples of false imprisonment that I can provide, however, the above examples are meant to give you an idea of what the civil tort of false imprisonment is in the state of California.

One key element of the civil tort of false imprisonment is that the person being held must reasonably believe that they cannot leave. Reasonable is a legal term of art used in the legal world. What reasonable basically means is: what would a reasonable prudent person do or believe under similar circumstances.

Another key element of the tort of false imprisonment is that the person doing the imprisoning, must not have a privilege to do so.

Examples of privileges that would allow a person to hold another person within the bounds of a fixed area are: shopkeepers who are investigating shoplifting at a store; civilians who have witnessed a felony, and place the person who committed a felony under citizen’s arrests; or police officers who have probable cause to believe that a crime has been committed.

As with other intentional torts, victims of false imprisonment are entitled to not only compensatory damages, but they may also recover punitive damages. (Punishment)

If you feel you have been the victim of a false imprisonment in the state of California, feel free to call me for a free consultation at 818-584-8831 extension 1, or you may go to my personal injury website by clicking here now.

If you feel that you may have been the victim of a false imprisonment outside of the state of California, I highly recommend you consult with an attorney in your state and/or area.

By Norman Gregory Fernandez, ESQ. , Copyright 2006

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The Anatomy of a Slip and Fall / Trip and Fall Case in Plain Language!

Written on July 8, 2007 by in Damages, Dangerous Conditions, Editorial, Insurance, Personal Injury, Premises Liability, Slip and Fall, Trip and Fall

California Slip and Fall, trip and fall CasesA slip and fall, and or trip and fall case is pretty much self explanatory. The case arises from a person slipping and/or tripping and falling, and sustaining injuries as a result.

However, there are special circumstances involved in these types of cases which would give rise to you actually being able to pursue a legal case for damages against a person or entity.

THE NECESSITY OF A DANGEROUS CONDITION
The Slip and Fall, and/or Trip and Fall, must be the result of a dangerous condition either on Public or Private Property.

Obviously most human beings slip and/or trip and fall many times in their lives. The law will not allow you to recover each and every time you slip and/or trip and fall.

However, the law will allow you to recover damages for injuries that result due to a dangerous condition on public and/or private property, that the owners or persons responsible for the property knew or should have known about.

WHAT IS A DANGEROUS CONDITION? There are literally an infinite number of dangerous conditions that could result in your slipping and/or tripping and falling. Some examples of dangerous conditions we have dealt with are:
• Dangerously slippery surface
• Water or other wet substance on floor
• Cracks in a sidewalk or walkway
• Poorly maintained stairs or hand rails
• Holes in grass, sidewalk, street, or walkway
• Uneven stairs or surface
• Food and or other objects left on the floor
• Debris left on the floor
• Negligently placed parking stops in parking lots
• Unmarked steps
• Ice on walkway or in parking lot, etc.

THE NECESSITY OF NOTICE TO THE OWNER OR PERSON CONTROLLING THE PROPERTY WHERE THE DANGEROUS CONDITION EXISTS; The owner or person controlling the property where you suffer a slip and/or trip and fall must either know about the dangerous condition, or should have known about the dangerous condition through reasonable inspections, before you can legally recover against them in these types of cases.

This part of a slip and/or trip and fall case is the most difficult to prove, which is why many lawyers do not take or handle these types of cases.

The testimony of an expert witness is required in many of these types of cases to prove that a dangerous condition existed and that the owner or controller of the property either knew or should have known about the condition.

I handle these types of cases. If you have suffered a slip and/trip and fall injury in California you may call me for a free consultation at 818-584-8831 ext.1 or go to my slip and fall website by clicking here for more information.

If you have suffered a slip and/trip and fall injury outside of California I highly recommend that you consult with a lawyer in your area.

By Norman Gregory Fernandez, Esq. , Copyright 2006

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WHAT IS A WRONGFUL DEATH CASE IN CALIFORNIA?

Written on July 6, 2007 by in Assault and Battery, Car Accidents, Damages, Dangerous Conditions, Dog Bite, Editorial, Insurance, Intentional Torts, Motorcycle Accidents, Other Motor Vehicle Accidents, Personal Injury, Premises Liability, Products Liability, Slip and Fall, Trip and Fall, Truck Accidents, Wrongful Death

Norman Gregory Fernandez, Esq. Wrongful Death LawyerA wrongful death case is a case where a person dies due to the intentional or negligent act of another, or entity. The law allows relatives, domestic partners, and persons who depend upon the wrongful death victim for support to sue for wrongful death. The issue of who can sue for wrongful death is covered below.

Wrongful death cases are traditionally amongst the most emotionally charged cases in personal injury.

Wrongful death cases can take many forms. For instance; a loved one could be killed in a car or motorcycle accident that was not their fault; a loved one may have been killed due to excessive use of force by the police or a private security agency; a loved one may have been killed due to a dangerous condition on public or private property, including defective roads or improperly placed road signs; a loved one may have been killed due to the defective construction of a building on real property; an unborn child may have died due to the negligence of a doctor, or due to an assault and battery on the mother; a loved one may have been killed due to a defective product, or negligent repair.

A wrongful death case can arise when someone was injured in an accident, and then subsequently dies as a result of their injuries.

TIME LIMIT TO FILE A LAWSUIT FOR YOUR WRONGFUL DEATH (CALIFORNIA STATUTE OF LIMITATIONS)

The present Statute of Limitations for filing a lawsuit for wrongful death in the State of California is two (2) years from the date of the accident or incident causing the wrongful death. If you do not file a lawsuit within two (2) years, you lose your right to sue! CCP § 335.1

There are exceptions to the above rule if the wrongful death was caused by the negligence of a doctor or health care provider, or due to building defects.

If the defendant to the wrongful death action is a governmental entity, a claim must be filed with that governmental entity within 6 months from the date of the accident. If the entity rejects the claim, you must then file a lawsuit within six (6) months of the rejection.

WHO CAN SUE FOR WRONGFUL DEATH

A cause of action for the death of a person caused by the wrongful act or neglect of another may be asserted by any of the following persons or by the victims personal representative on their behalf:

(a) The victims surviving spouse, domestic partner, children, and offspring of deceased children, or, if there is no surviving children of the victim, the persons, including the surviving spouse or domestic partner, who would be entitled to the property of the victim by intestate succession (a person dying without a will).

(b) Whether or not qualified under (a) above, if they were dependent on the victim, the putative spouse, children of the putative spouse, stepchildren, or parents. ‘Putative spouse’ means the surviving spouse of a void or voidable marriage who is found by the court to have believed in good faith that the marriage to the victim was valid.

(c) A minor, if, at the time of the victims death, the minor resided for the previous 180 days in the victims household and was dependent on the victim for one-half or more of the minor’s support.
As you can see, there are many people that may qualify to sue for wrongful death. Our law firm handles wrongful death cases, and can tell you whether or not you have the right to sue for wrongful death.

Compensation That You Are Entitled To In a Wrongful Death Case
WRONGFUL DEATH DAMAGES

Financial Support – The financial support, if any, that the person who was a victim of wrongful death would have contributed to the family during either the life expectancy that the victim had before [his/her] death or the life expectancy of the person who is suing, whichever is shorter.

The Loss of Gifts and Benefits – The loss of gifts or benefits that the person who is suing would have expected to receive from the victim of a wrongful death.

Funeral and Burial Expenses – The cost of funeral and burial expenses.

The Reasonable Value of Household Services – The reasonable value of household services that the victim would have provided

The loss of love, companionship, comfort, care, assistance, protection, affection, society, moral support that the victim would have provided.

The loss of the enjoyment of sexual relations with the victim.

The loss of training and guidance of the victim.

If you believe you may have a California wrongful death case, it is important to call our office for a free consultation on your specific matter. You may call our office at 818-584-8831 extension 1 for a free consultation, or you may go to our Wrongful Death Website by clicking here. If the your case is outside of the State of California then you should consult with a competent wrongful death lawyer in your State.

By Norman Gregory Fernandez, Esq. , Copyright 2006

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What do I look for in a Motorcycle, Car or other Motor Vehicle Injury Case Before I take it on a Contingency Basis!

Written on July 5, 2007 by in Assault and Battery, Car Accidents, Damages, Dangerous Conditions, Editorial, Intentional Torts, Motorcycle Accidents, Other Motor Vehicle Accidents, Personal Injury, Premises Liability, Slip and Fall, Trip and Fall, Truck Accidents

Attorney Norman Gregory Fernandez, Esq.As a lawyer, I evaluate many factors before I decide to a take Motorcycle, Car, or other Motor Vehicle injury accident cases on a contingency basis.

The absolute first thing I evaluate is LIABILITY. Is the potential client that comes to me at fault or are they the victim? Although I handle cases for victims and at fault persons, I will not take a case on a contingency basis for at fault persons, and I doubt any other personal injury lawyer will either.

Liability is a tricky subject. In the State of California we use what is called a comparative negligence system to determine liability. In many accidents one or more persons will be 100% at fault in an accident. No problem if my other criteria are met, I will take the case on a contingency basis.

However, let’s say that liability is not crystal clear. Let’s say you have 2 persons who are in an accident and each one shares some fault in the accident. Let’s say one person is deemed to be 10% at fault and the other person is 90% at fault. In most situations I would consider representing the person who was only 10% at fault on a contingency basis.

However, let’s say both persons are 50% at fault, or equally at fault in an accident. Since each party would share the same responsibility for the accident, they could not recover against each other. This would be the type of case I normally would not take unless certain other factors are met.

Picture in your mind a nice pumpkin pie. Cut a piece for your percentage of fault, and the other parties percentage of fault. This will give you a good example of how a Jury or a personal injury lawyer would look at the case. If the other party gets the whole pie chances are that you have a good case that I would consider taking.

The second factor I consider is DAMAGES. How bad are you or the others with you injured? If there are no injuries, most Personal Injury lawyers including myself will not take your case on a contingency basis because the only issue would be property damage.

For a personal injury lawyer such as me, injuries are a paradox. We hate to see our clients injured in a motorcycle, car or other motor vehicle accident, and yet your injuries are directly proportional to how much money we can get for you. The nature and extent of your injuries in an accident is a major factor that I look at before I take a personal injury case on contingency.

The third factor that I look at is whether you have liability insurance. In California if you do not have liability insurance, you are only entitled to your out of pocket losses and that’s it. Most of the damages in personal injury cases usually come from none out of pocket losses such as pain and suffering, loss of enjoyment of life, emotional distress, etc.

If you do not have valid liability insurance, most personal injury lawyers including myself, will not take your case on a contingency basis.

The fourth factor I look at when deciding to take a case is all of the parties insurance policies, as well as the at fault persons assets. If they have a minimum policy of lets say $15,000.00 and no assets, chances are that all you will be able to recover is the $15,000.00 even though you might have $100,000.00 in medical bills. However, you may have Under Insured Coverage for $1,000,000.00. Each circumstance is different. Either way, it takes an experienced lawyer to get you what you are entitled to in a personal injury accident case.

There are about 10 other factors that I look at in evaluating cases. I will send my investigators out to the scene of the accident, as well as look at the property damage. We will evaluate your injuries and medical treatment. We do many things. The sole purpose of our doing personal injury on a contingency basis is to get you the absolute most money that is possible out of your case. We do not make money, unless we get you money, it’s as simple as that. If I have to, I will take your case all the way to a Jury trial if necessary to get you the most possible money.

I believe in cutting to the chase and being frank with my clients. If you have had a motorcycle, car, or other motor vehicle accident in the State of California you may give me a call for a free consultation at 818-584-8831 ext. 1, or visit my personal injury website by clicking here now.

If you have had an accident in a State outside of California, I highly recommend that you seek legal representation in the State in which the accident occurred.

No matter what, do not try to do these types of cases on your own without a lawyer. You may think that you are saving money. In the end, the insurance companies will know that they have a sucker on their hands. They love injured victims who do not have lawyers!

By Norman Gregory Fernandez, Esq. , Copyright 2006

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Car, Motorcycle, and other Vehicle Insurance / Why You Should Buy Under Insured Coverage!

Written on July 5, 2007 by in Car Accidents, Damages, Insurance, Intentional Torts, Motorcycle Accidents, Other Motor Vehicle Accidents, Personal Injury, Truck Accidents

The Law Offices of Norman Gregory Fernandez & AssociatesUnder Insured insurance coverage will cover you for the difference between your actual damages, and the at fault persons insurance coverage.

In other words, let say you are hit by a person who has minimum insurance coverage, (10k/15k/30k) who is at fault in the accident. Under normal circumstances the most you will be able to recover from their insurance company is for your injuries, and out of pocket loss, etc., is $15,000.00. Let’s say your actual medical bills and out of pocket loss is $100,000.00 (This does not include the other non-out of pocket damages you are entitled to!). What are you going to do?

If the person who hits you does not have any assets there is little chance that you will ever collect the $85,000.00 difference from them if you sue to get a judgment. If you do get a judgment, they could declare bankruptcy and discharge the debt they owe to you in its entirety.

We find that in many instances, an at fault persons coverage is not enough to cover our client’s actual damages and they get stuck in the catch 22 situation discussed above.

We believe that it is always better to error on the side of caution. We always recommend purchasing Under Insured Coverage for a minimum of $100,000.00 or more. The more the better. This is your way of insuring yourself, against an at fault persons deficient coverage.

By Norman Gregory Fernandez, Esq. , Copyright 2006

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Civil Assault and Battery in Plain Language

Written on July 4, 2007 by in Assault and Battery, Damages, Intentional Torts, Personal Injury

Assault and BatteryI have heard many people throw the term of assault around to describe someone being physically abused. The purpose of this article is to describe what the civil tort of assault and the civil tort of battery are in plain language.

The legal definition of civil Assault is; an intentional act which causes a reasonable and imminent apprehension of a harmful or offensive contact which is un-consented. I know, it sounds like a bunch of gibberish.

Civil Assault basically boils down to this; if someone gets in your face and raises their hand as though they’re going to hit you, and ordinary people in a similar circumstance would believe the same thing, you have just been assaulted. Civil assault does not require or an actual touching, or physical contact to be legally actionable.

The legal definition of a Civil Battery is; an intentional act which causes a harmful or offensive contact which is un-consented. Yes I know, what does that mean?

Civil Battery basically boils down to this; if someone hits you, and you have not consented to being hit, you have just been battered.

In the civil realm, battery can take many forms. For instance, a battery can occur if someone intentionally hits or touches something that is connected to you. An example of this type of battery would be; let’s say you are holding a paper plate full of food, and someone hits the plate purposely to knock the food at of your hand; you have just been battered. Another example of this type of battery would be; let’s say you are sitting in your car and someone comes up and hits your car purposefully; you have just been battered.

I am not going to go into a dissertation on the multitude of possibilities here. The purpose of this article is just to describe an assault and battery is in plain language. So you now know that assault, and battery, are two separate torts. Each is a distinct and separate tort, which is a separate legal cause of action.

In the civil realm, you have a right to sue for assault and battery if you are the victim of these torts. With respect to damages, you are not only entitled to all damages proximately caused by your being assaulted and/or battered, and you may also be entitled to punitive damages.

Punitive damages are punishment damages. Many of you have heard the term punitive damages and do not know what it means. In civil law, punitive damages are ordinarily allowed by statute, or for common law torts involving intentional acts. Punitive damages are allowed for particularly egregious conduct.

If you believe you been the victim of an assault and battery in the state of California, you may call me for a free consultation at 818-584-8831 extension 1, or visit my website at www.thepersonalinjury.com.

If you believe that you been the victim of an assault and battery in a state other than California, I suggest that you consult with an attorney from that state to determine if you have a cause of action.

By Norman Gregory Fernandez, Esq. , Copyright 2006

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Car and Motorcycle Insurance: Uninsured Motorist Coverage/Bodily Injury (UM/BI)

Written on July 4, 2007 by in Car Accidents, Insurance, Motorcycle Accidents, Other Motor Vehicle Accidents, Personal Injury

Norman Gregory Fernandez, Esq.The name speaks for itself. This type of insurance coverage will cover you for your “non-property” related damages (Bodily Injury, Pain and Suffering, Loss of Enjoyment of Life, Emotional Distress) in a Car or Motorcycle injury accident, if the other motorist who is “at fault,” has no liability insurance.

In the State of California we feel that this type of coverage is mandatory due to the vast amount of people driving around illegally without insurance. This coverage will also cover hit and runs.

We recommend purchasing the most UM/BI coverage you can afford, and at least a minimum of $100,000.00 if you drive a car, and a minimum of $500,000 if you ride a motorcycle.

If you are in an accident and the other motorist is uninsured, this coverage will be your only recourse in many instances. Do not drive in California without some kind of UM/BI coverage.

By Norman Gregory Fernandez, Esq. , Copyright 2006

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