The world is a very different place than it was when we wrote
the first edition of Accidents Happen. There are things in the
world now that simply didn’t exist then. Just as the record
industry had to adapt their legal philosophy when streaming
music services got started, there are plenty of new technologies
that will change the face of personal injury law in the future.

Self-Driving Cars As Defendants

It sounds utterly absurd, but this is now a reality. Recently, one
of Google’s experimental self-driving cars struck a city bus in
Mountain View, CA. While this wasn’t the first accident involving
a self-driving car, it was the first time the car was found to
be at fault.

Yes, the car was at fault.

Because of the way the software recognized road hazards,
the car moved to the left in order to avoid sandbags that were in
front of a storm drain. This caused it to hit an approaching city
bus. It was determined the car was at fault for not yielding to
the bus. While thankfully there were no injuries, what if there
had been? Who would be held liable?

It’s a question with no clear answer at the moment. These
self-driving cars are essentially robots, which of course are not
people. So if the robot car is at fault and someone is hurt, can a
robot be held liable? If not the robot, would you hold the company
that made the car’s software? It’s not like they could have
planned ahead for that specific situation, since the car navigates
on a series of decision-making algorithms and not pre-loaded
scenarios. What about the person in the car? Should they have
taken over the controls? What if the car malfunctioned?

Nobody as an answer for what to do about these self-driving
cars in case of injury accidents. Ultimately, Google will most
certainly have responsibility, but lots needs to still be developed
in this new area of the law.

Are Uber Drivers Employees?

Uber is an interesting beast. The ride-sharing service allows
people to use their own cars almost like a taxi service. Except
that it is very much not a taxi service, since the cars are not
owned or operated by Uber and are private vehicles. The drivers
simply give rides to people in their car and are compensated
for their time.

So what happens when that goes wrong?

In 2014, a Los Angeles woman accused an Uber driver of
“abducting” her. After picking her up, the driver took her 20
miles out of the way, ignoring her as she told him this was the
wrong route, finally stopping in an empty parking lot and locking
the doors. As the woman shouted for help, the driver eventually
drove her home, ending the two hour ordeal.

A case in the California courts about a year later established
Uber drivers as actual “employees” after a former Uber driver
sued for job-related expenses. This classification is not nationwide,
however. Other states have ruled differently, and some
haven’t had to rule at all yet.

This is going to begin coming into question more and more as
the ride share service becomes more widespread and common.
As convenient as Uber and other similar services are, who is
liable when things go wrong? Do we have to just hope the driver
carries insurance? Should Uber be providing insurance? If the
driver is providing their own insurance, should the insurance
policy treat passengers like any other passengers or correct for
them as “customers”?

These questions are all up in the air right now, as the growing
pains of the industry begin to iron themselves out. Many
lawyers are keeping a close eye on these cases to see how they
play out.

Complicating the matter is the issue of drivers with a
checkered past. How thoroughly is Uber required to check the
backgrounds of its drivers? Since they’re a type of independent
contractor, is Uber liable if they miss something? Even if the
driver’s record is clean, what if they commit a crime while on
the job? As an independent contractor, does the blame lie solely
on the driver?

Drone Flights On Public And Private Property

Unmanned Aerial Vehicles (UAVs) or “drones” have come out
of nowhere and are becoming a huge legal issue.

Of course, there’s the “invasion of privacy” question that
comes with any remote controlled vehicle that carries a camera.
This is a question as old as the invention of binoculars. Yet, the
drone question is deeper than that.

In 2015, a fire broke out on the 15 Freeway near the El Cajon
Pass, north of Fontana, CA. Cars were stopped on the freeway
as multiple vehicles burned right there on the road, including a
boat trailer and a car carrier. As fire crews attempted to put the
fire out, their efforts were hindered by private drones that were
in the area as locals tried to film the fire.

These drones made it almost impossible for the fire crews to
bring helicopters into the area to drop water and fire retardants
on the burning vehicles. Since, at the time, the FAA hadn’t
required registration for drones, nobody knew who the pilots
were.

Should these drone pilots be held liable for keeping firefighters
from doing their jobs? Should they have to pay for the
damage to cars that were burned? What if there were injuries?
What about certification? Should some sort of training and
certification be required before someone can fly a drone? If an
unlicensed drone pilot causes property damage or personal
injury, how does that change the case? If they’re licensed and
operate the drone in an unsafe manner, would this mean they’re
especially negligent?

As the law evolves and changes, more of these questions will
need to be asked. It won’t be easy, and like any other process
of change, there will be bumps in the road. However, it’s worth
noting that we’ve come through changes and questions in the
past to get to where we are now. It’s not too much to imagine
that we’ll figure it out from here as well.

The law is an ever-evolving thing, and is constantly being
updated and reinterpreted. Since the first edition of our book,
there have been some changes to California’s laws that pertain
to personal injury. Other rulings have changed how the courts
view certain kinds of damages.

These are just a few examples of how the law has changed in
the short time since our First Edition.

Leung v. Verdugo Hills Hospital

This was an interesting case that has changed the way shared or
joint-liability is handled.

In 2012, the California Supreme court reversed a lower
court’s decision, thus undoing a 200 year old concept regarding
co-defendants and something called “good faith” settlements.
With this decision, your lawyer has to change how they handle
a case with more than one at-fault party. The change, however,
benefits the victims in a major way.

Aidan Ming-Ho Leung was six days old when he suffered
irreversible brain damage due to a mistake by his pediatrician.
The case was complicated when it was revealed that the hospital
was also at fault for not catching the preventable mistake,
thus making the damage worse. Leung’s parents sued both
the pediatrician and the hospital, seeking to hold both parties
responsible.

The pediatrician agreed to a settlement with the Leung
family of $1 million, the limit of the malpractice insurance
policy. The hospital, on the other hand, did not settle and took
the case to trial.

A jury found the pediatrician 55% at fault and the hospital
40% at fault, placing 5% of the fault on the Leung family. Before
damages were awarded, the hospital appealed the ruling on
the grounds of a common law “release rule.” This release rule
stated that once a plaintiff settles with one co-defendant, the
other defendant is off-the-hook, and cannot be held liable. The
hospital used this rule to claim they could not be held liable for
Aidan’s brain damage, since the family had accepted a settlement
with the pediatrician.

The California Supreme Court decided that the family in
fact did have the right to seek compensation from the hospital,
despite having already settled with the pediatrician.
This created what is now called the “setoff-with-contribution
approach.”

After the Leung decision, if more than one party is responsible
for your injuries, they both have to either answer to a jury
or settle. If Party A decides to settle, Party B doesn’t get to just
walk away scot-free. This eliminates the “waiting game” some
co-defendants can use: waiting to see if the other co-defendant
settles before making their next move.

Sherman v. Hennessy Industries, Inc.

In 2015, the California Supreme Court declined to review this
case, thus upholding a lower court’s decision. What it did was
protect workers from defective products they’re forced to use.

Michael Sherman was a mechanic for Hennessy Industries,
building drum brake pads. One of the machines employed in
the manufacturing process was ejecting asbestos dust while in
operation. Sherman was bringing the dust home on his clothes,
which eventually caused his wife to develop mesothelioma, a
disease she later died from.

Sherman sued his employer, arguing they failed to properly
notify him of the machine’s dangers and did not protect him
fully. The employer argued they could not be held liable for a
product they did not design or manufacture.

A jury initially ruled in favor of Sherman, and Hennessy
quickly appealed. Hennessy argued again that they could not
be held liable since they did not design the product, citing an
earlier judgement. The courts found this to be an exception to
the rule, since Hennessy knew the brake pads contained asbestos,
that asbestos was harmful for you, and that the machine
exposed workers to it.

Since the California Supreme Court would not review the
case, this means that if you are exposed to a hazardous or faulty
product, the party who placed you in that position can be held
liable.

This has far reaching implications, since it removes protections
from a number of situations. Imagine if a shopping mall
uses an escalator they know is defective. Or if a car rental company
rents you a vehicle previously shown to be faulty.

The “we didn’t design it” defense no longer keeps you from
recovering damages from someone who exposed you to danger.

Howell vs. Hamilton Meats Inc.

Many people don’t realize that their medical care is often billed
to their insurance provider at a substantial discount. You might
rack up a medical bill of $70,000, but the hospital bills your
insurance company at a discounted rate of $40,000 or so.

For a long time in California, this discount was ignored and
a plaintiff would be awarded “fair market value” for the medical
services rendered. While the hospital only billed for $40,000,
you’d be awarded the full $70,000 in bills.

In 2011, the California Supreme Court made a landmark
decision that changed all of this, in turn changing the entire
face of Personal Injury law.

A woman named Rebecca Howell was injured in an accident
caused by a truck owned and operated by Hamilton Meats Inc.
When her case had gone to trial, she had received just short of
$190,000 worth of billable medical care.

Howell’s insurance company however, received a discount
from the hospital, and only paid $60,000.

With the law the way it was then, when Howell won the case,
the meat company had to pay the full $190,000 of medical
costs. After the judgement, they appealed the decision and said
they should only have to pay the $60,000 the insurance company
was billed, since that’s the actual amount that was paid.

After a long legal battle, the case ended up in front of the
California Supreme Court, who sided with the meat company.
They were only liable for the $60,000 the insurance company
was billed.

This has effectively punished you for having insurance. You
pay for your insurance to cover the costs of an injury, yet you
are completely unaware that the hospitals are giving insurance
companies such a discount. Nobody tells you this until it
becomes vital information.

Howell vs. Hamilton Meats delivered a massive blow to the
rights of accident victims. The California Supreme Court effectively
endorsed the questionable practice of providing massive
discounts to insurance companies as a way to cover themselves.

The Howell decision is basically insurance for the insurance
companies.

Troy and Alana Pack Patient Safety Act of 2014 (Prop 46)

In the 1970s, the state of California placed a cap on the amount
of money a plaintiff could be awarded in a medical malpractice
suit. This meant that if someone was injured because of a doctor’s
mistake, they could only recoup $250,000 in damages.

Even in the 1970s, people had a misconception that plaintiffs
in personal injury cases were looking for a payday. This, of
course, is not true. The political climate didn’t see it that way,
however.

Fast forward to 2014, and the caps had not moved. While
$250,000 may have been a substantial amount in the 1970s, it
was nowhere near ample in the 2010s. The cost of living, inflation,
changing medical climate, and other factors made that cap
an absurdly inadequate amount. The cost of recovering from a
major malpractice incident was several times that.
But the cap remained.

Prop 46 aimed to raise this cap, to give victims and their
family a much more realistic settlement. While a system with
no cap would make much more sense, the proposition was just
a start. The cap was to be raised to $1 million, giving juries freedom
to award appropriate amounts.

The proposition was defeated based on two things. First,
the opposition argued that the bill wouldn’t have been about
protecting patients, but benefiting trial lawyers. The second
issue hinged on pieces that were tacked onto the law regarding
drug and alcohol testing for doctors and other such measures.
Doctors were furious about this, as they felt it was an overreach
by the government.

As the debate raged, the opposition kept repeating the idea
that the law would only benefit “the greedy trial lawyers.”
Proponents of the bill insisted this was about getting victims
awards that made sense.

Proposition 46 would have made sure you were compensated
for all expenses and damages you incurred from a malpractice
injury. It also would have held doctors who committed
malpractice accountable for their negligence. Doctors would no
longer be able to hide behind the caps and their malpractice
insurance, but would be held financially accountable.

Yet over and over, it kept coming back to this idea of “greedy
trial lawyers”—an idea firmly rooted in the stigma left over
from the Liebeck case. People still, for some reason, felt like
there was a wave of cash-grabbing lawsuits out there—an idea
that is entirely fictional.

Because of the drug testing clause and the public’s misconception
of what these caps meant, Prop 46 is merely a memory.

This brings a chilling problem for the future. Malpractice
cases aren’t going to be worth fighting anymore.

With the damages capped at the 1970s level they are now,
merely mounting and fighting the case costs more than you
could ever be awarded. Too many lawyers will end up passing
on these cases, since they’d end up being a Pyrrhic victory at
best.

With Prop 46 defeated, will victims of malpractice ever get
the justice they deserve? It’s hard to say.

In 1972, Lilly Gray was driving her Ford Pinto when she was
rear-ended by another car. Her Pinto immediately burst into
flames, severely burning her and her 13 year old passenger,
Richard Grimshaw. Gray later died of her injuries and
Grimshaw required multiple surgeries over 10 years to recover.

Cars don’t normally burst into flames just from being rearended,
and further investigation revealed a design flaw in the
Pinto.

As it turns out, even a minor rear-end collision would cause
the oddly placed fuel tank to be pushed forward, and possibly
burst. This also came with the risk of spraying fuel into the passenger
compartment, as well as the risk of sudden ignition.

Ford was absolutely and completely aware of this fact, and
sold the Pinto anyway.

Repairing this design flaw would have cost Ford a total of
$45.39 per car. After crash tests revealed the flaw and engineers
informed them of the cost to rectify the flaw, Ford declined to
implement the changes in order to save money on production.

The ensuing court case, Grimshaw v. Ford Motor Company
became one of the best examples of defective product cases
in history. The idea of a company selling products they know
to be dangerous or deadly is repulsive at best, but it happens.
Corporations unfortunately continue to put their profits over
the safety of the same people who buy and use their products.

While many people would figure the Grimshaw case to be
the shake-up we needed for safe consumer goods, it unfortunately
was not. Actually, it’s been getting worse.

In 2015, the Food and Drug Administration issued recalls
for 32 different medical devices found to employ faulty designs.
Some of these devices were implanted in people’s bodies, where
they failed and caused catastrophic injuries, turning people’s
lives inside-out. This was just in the medical field; consumer
goods as a whole have been seeing more and more recalls for
faulty designs.

Take for example, the Hoverboard craze. These self-balancing
scooters seemed fun at first, until they started bursting
into flame while people were riding them. A design flaw in the
toys’ batteries was causing them to overheat and ignite. What
seemed like a fun ride at first ended up being a horror scene as
people’s Hoverboards were exploding under them.

There’s nothing wrong with holding a manufacturer responsible
for selling you a product they knew to be dangerous.
Reluctance to do so goes back to the fallout from the Liebeck
case, where people are fast to accuse plaintiffs of making a
“cash-grab” when they were legitimately injured.

As we look back on the mounting piles of defective product
claims, a question of accountability arises. If you don’t
hold these manufacturers responsible, who will? People have
become reluctant to litigate because of the fear of being mocked
in public.

Moving forward, it’s important for you, the consumer, to
do two things. First, you must conduct research. Has this happened
to other people who purchased this product in the past,
and are the cases well documented? Second, you must communicate
openly with your lawyer. When you decide to seek legal
representation, listen to your lawyer’s advice. When it comes
to cases like this, most lawyers will be very upfront with you
regarding the value of the case. Lawyers don’t like wasting your
time or theirs, and if they tell you there’s a case there, there’s
a case. If there wasn’t, they’d be very clear that the case isn’t
worth the time to fight it.

Everyone knows the story of Stella Liebeck and her cup of
McDonald’s coffee that was too hot. It’s been repeated over and
over and used as an example of the “frivolous lawsuit.”

People look at Liebeck v. McDonald’s Restaurants and hold it up
as an example that society has become too “sue-happy” because, of
course, she should have known coffee is a hot beverage. Of course
it had to be a cash-grab, and she was looking to squeeze a large
corporation and make that payday we all dream of.

Well, hold on for one second. There’s more to the story.
As it turns out, Ms. Liebeck spilled the coffee on her lap,
which caused third degree burns over most of her legs and
groin. She required a number of painful skin graft surgeries,
and was disabled for a period of time.

The other part that tends to be left out of the anecdotal retellings
of the story is the part where McDonald’s served her coffee
they knew was dangerously hot because they had been told
repeatedly to stop serving coffee at near-boiling temperatures.

Not only that, but Ms. Leibeck was not the first person to be
severely burned by McDonald’s coffee. In fact, there were 700
reports of serious burns related to their coffee prior to hers.
What about that part where Ms.Liebeck “sued for millions of
dollars?” Also not entirely accurate.

Ms. Liebeck initially asked McDonald’s for $20,000 to cover
her medical bills and lost wages. McDonald’s offered her $800.
After retaining a lawyer, Ms. Liebeck offered a settlement of
$90,000, no questions asked, end of story. McDonald’s also
refused that and another settlement of $250,000 was offered
at a settlement conference.

McDonald’s had already settled other scalding claims for
upwards of $500,000.

When the case went to trial, Ms. Liebeck was again seeking
nothing more than compensation for her medical bills. It was
the jury who awarded her $200,000 in actual damages and
added the $2.7 million in punitive damages. This was because
the jury felt McDonald’s had prior warnings and knew exactly
of the dangers and harm their coffee would cause if it were to
spill. It was the jury who, after hearing all the evidence, believed
that this would be ample punishment. A judge later reduced the
punitive damages to $480,000. After appeals, the two parties
settled on $600,000.

Ms. Liebeck just wanted her medical bills paid. It was the
jury that held McDonald’s accountable for their actions by setting
the high actual and punitive damage amount.

The public’s perception of the Liebeck v. McDonald’s
Restaurants case was skewed because most people didn’t have
the whole story. When presented with the full scope of the case,
most people’s opinions change drastically. This was more than
“my coffee is too hot, I think I’ll sue.” Her case centered around
the negligence of serving coffee too hot after being told repeatedly
not to because people were getting hurt. In lawyer speak,
this is called “being on notice.”

In the wake of Liebeck v. McDonald’s Restaurants, a moral
outrage over “frivolous lawsuits” has erupted, causing many
injured parties to be hesitant to sue, despite being seriously
injured. This campaign is spearheaded and financed by billiondollar
insurance companies and corporations who want nothing
other than to keep consumers from having a way to check
their power.

There’s nothing wrong with holding a responsible party
liable when you are injured due to their negligence. Thinking
your lawsuit is “frivolous” just because of something you heard
on TV could force you to deal with a life-altering injury on your
own when you don’t have to.

In the future, the effects of Liebeck v. McDonald’s Restaurants
could continue to skew people’s perception of personal injury
cases. When you’re hurt and you’re seeking compensation for
expenses you incurred because of someone else’s negligence,
and someone who has no knowledge of your case accuses you of
“looking for a fast payday,” you might get discouraged.

It’s important to remember the Liebeck case because it
reminds us that detractors don’t usually know the full story.
Hopefully, in the future we will see more people looking to
understand the entire story, rather than just a soundbite.

Suppose that you are in an accident which is entirely the other
driver’s fault and your two-year-old car is totaled. Is the other
driver responsible for buying you a new car? No. When a car or
other personal property is damaged or destroyed, the measure
of damages is: How much will it cost to fix it? If it can’t be fixed,
how much is its replacement value? For instance, let’s say you
paid $25,000 for your car two years ago, but the fair market
value of a two-year-old car of the same make and model was
$17,500 at the time of the accident that destroyed your car.
Under these circumstances, the most you can recover from the
other driver is only $17,500. This is true even though you are
likely to still owe more on your car loan than $17,500. Or if the
cost of repairing your vehicle after such an accident exceeds its
fair market value, the defendant would nevertheless only have
to pay you the fair market value of the vehicle.

Likewise, if any contents you had in your car were damaged
or destroyed during the accident, the party at fault must
compensate you for their fair market value at the time of the
accident. If the party at fault is uninsured, you will ordinarily
have to recover the value of the contents by submitting a claim
to your homeowner’s insurance company.

In many personal injury cases, compensation for the physical
pain and emotional suffering you experienced and will continue
to suffer because of another person’s negligence often
constitute a significant portion of the damages you are entitled
to receive. Indeed, monetary compensation for physical and
psychological pain and suffering constitutes the lion’s share of
many personal injury awards. Note, however, that in medical
malpractice cases, awards for pain and suffering (and other
“non-economic” damages) are limited to $250,000.

The amount of compensation the jury will award for pain
and suffering depends upon the type and nature of the injury.
For instance, a jury will award a person who has suffered serious
burns over 30 percent of her body a significantly higher
amount of compensation for pain and suffering than it will
award a person who has suffered a typical whiplash injury. Pain
and suffering is a catch-all phrase that includes such things as:

  • Past and future physical pain
  • Mental suffering
  • Loss of enjoyment of life
  • Disfigurement
  • Physical impairment
  • Inconvenience
  • Grief (except in wrongful death cases)
  • Anxiety
  • Fright
  • Humiliation
  • Discomfort
  • Fear
  • Anxiety
  • Embarrassment
  • Anguish
  • Other emotional distress the victim has suffered and will
    continue to suffer in the future

The Texas Court of Appeals once stated, “In a world so full
of pain and suffering, it is strange that no one has perfected a
gauge that will accurately measure its value.”

At the end of a personal injury trial, when giving the jury its
instructions, the judge will inform the jury not to speculate and
that neither emotion nor prejudice has a place in their deliberations.
The judge further instructs the jury that the only award
permissible in a personal injury case is one lump sum for all
time, in precise, cold, hard dollars and cents. Continuing his
instructions to the jury, the judge will say further that “pain
and suffering,” “ridicule,” “humiliation,” “embarrassment,”
and the like all shall be evaluated, and only “in terms of dollars
and cents.” Then, as the jurors expectantly wait for further
instructions of what is the evaluator or yardstick of the pain
and suffering they are to award, the “kilowatt” of pain and suffering,
they learn that the judge can give them no such yardstick
because none exists. Every case must be determined on
its own merits.

After telling the jury that they must return a verdict only
in “dollars and cents” for pain and suffering, one judge said:
“Under the head of this matter of pain with suffering and
humiliation, I am unable to give you any definite rule by which
you can assess damages. However, the law allows jurors to
assess damages for pain and suffering and humiliation. Nobody
can measure pain and suffering in damages. No one can value
them particularly. If a man said to you, ‘What would you take
to suffer this or that,’ usually they would tell you they would not
take anything. There is no way of measuring pain and suffering
definitely. But I say to you, ladies and gentlemen of the jury,
it is a proper measure of damages. The only thing I can say to
you about assessing damages in this kind of case for pain and
suffering is that it is just a question of plain common sense.
One judge has said it was just a matter of plain horse sense, and
that particular statement was approved by the Supreme Court.
Allow just such a sum as you think should be allowed in dollars
and cents.”

Loss of enjoyment of life can be a major element of pain and
suffering for which monetary compensation is available in a
personal injury case. For example, assume that you’re an active
man in his mid-twenties, playing basketball and tennis several
times a week and running in the occasional marathon or taking
part in triathlons. Because of another person’s carelessness,
you suffer an injury to your right leg that, due to its severity,
prevents you from engaging in the activities you used to enjoy.
You are entitled to receive fair compensation for this “loss of
enjoyment of life.”

In California, the victim’s lawyer cannot argue to the jury
how much money they would take to trade shoes with the
injured person and ask what they would charge or expect as
compensation for the pain and suffering endured by the injured
plaintiff if it happened to them. This is known as the “Golden
Rule” argument and is considered prejudicial to the defendant.

The jury is instructed merely that they are required to award an
amount for pain and suffering that is reasonable in light of the
evidence admitted at the trial, and that they must not let bias,
sympathy, prejudice, or public opinion influence their decision.

In one case, the plaintiff’s lawyer, during closing argument,
asked the jury to assess damages from their own perspective,
to act as “a personal partisan advocate for the injured party,
rather than any unbiased and unprejudiced weigher of the evidence.”
The appellate court found this was an improper argument,
because it was essentially a plea to apply the Golden Rule
standard.

However, although the law prevents the victim’s lawyer from
asking the jury to put themselves in the victim’s place when
the injury results in an injury that will cause the victim pain
and suffering for the future, even for rest of his life, California
law permits the victim’s lawyer to argue a per diem standard to
determine the amount of her client’s compensation. Under the
per diem rule, an amount for hourly or daily pain is multiplied
by the number of hours or days of the plaintiff’s life expectancy.
For instance, the victim’s attorney can argue that the injured
victim is entitled to, say, $100 a day for his pain and suffering,
multiplied by the plaintiff’s life expectancy. This means that a
person suffering $100 per day of pain and suffering would be
entitled to compensation of $36,500 per year, multiplied by the
number of years of his life expectancy. Thus, if the plaintiff’s life
expectancy is 10 years, the plaintiff would be allowed $365,000
for pain and suffering. If his life expectancy were 20 years, he
would be allowed $730,000 and so forth.

As the California Supreme Court has stated, there is no
definite standard or method of calculation prescribed by law by
which to fix reasonable compensation for pain and suffering.
No method is available to the jury by which it can objectively
evaluate such damages, and no witness may express his subjective
opinion on the matter. In a very real sense, the jury is asked
to evaluate in terms of money a detriment for which monetary
compensation cannot be ascertained with any demonstrable
accuracy. Translating pain and suffering into dollars can,
at best, be only an arbitrary allowance, and not a process of
measurement, and consequently the judge can give the jury no
standard to go by; the judge can only tell the jury to allow such
amount as in their discretion they may consider reasonable.
The chief reliance for reaching reasonable results in attempting
to value suffering in terms of money must be the restraint and
common sense of the jury.

The jury must impartially determine pain and suffering damages
based upon evidence specific to the victim, as opposed to
statistical data concerning the public at large. The only person
whose pain and suffering is relevant in calculating a general
damage award is the victim. How others would feel if placed in
the victim’s position is irrelevant.

Monetary compensation for psychological injuries such as
Posttraumatic Stress Disorder (PTSD), depression, anxiety,
and phobias needing professional help are recoverable in most
cases with proper psychiatric or psychological care and the use
of psychoactive medications in many cases.

In one automobile accident case, a father and his 16-yearold
daughter were seriously injured in a horrendous head-on
collision. However, a 15-year-old cousin who was sitting in
the back seat with her seatbelt on escaped with just a few cuts
and bruises. The newspaper that covered the crash dubbed her
lack of serious injuries a “miracle.” Fast forward six months:
the father and daughter are well on their way to full recoveries.
However, things could hardly be worse for the “miracle girl”
who avoided any physical injury with nary a scratch.

Soon after the accident, the girl began getting anxious when
riding in a car. These feelings of general anxiety progressed to
full-blown panic attacks that prevented the girl from riding in
a car at all. Eventually, the girl’s anxiety and panic became so
strong that she was afraid to leave the house without a safe companion,
and she was becoming frightened of leaving the house
even with a safe person. The girl had developed a psychiatric
condition known as panic disorder with agoraphobia that rendered
her housebound. While she needed mental health care
to overcome her fears, the girl was too scared to leave home
to travel to the office of a psychiatrist or psychologist. She also
developed severe depression.

The point of this case is to demonstrate that even when a
person escapes serious physical injury, he may develop severe
psychological damages that significantly impair his functioning
in and enjoyment of life. And it doesn’t have to be a serious
accident to cause severe psychological injuries.

People who get in serious accidents can develop
Posttraumatic Stress Disorder (PTSD), the same type of anxiety
that combat soldiers often develop. The person may suffer
nightmares about being in the accident, wake up in the middle
of a summer’s night in a cold sweat, duck for cover at loud
noises such as a car backfiring, etc.

Many people who have been involved in an accident develop
major depressive disorder (MDD), even if they were not physically
harmed or suffered only superficial physical injuries. The
outgoing, high-achieving high school student who was a passenger
in a car that was involved in an accident but escaped
with only a few cuts and bruises may turn sullen, lose interest
in activities she used to enjoy, sleep too much or too little, experience
fatigue or tiredness throughout the day, feel worthless
or guilty, or have a diminished ability to think or concentrate.
At its most serious, depression may result in having recurrent
thoughts of death and suicidal ideations. In the worst case scenario,
if the depressed individual does not get adequate mental
health care in time, she may commit suicide, all stemming from
an accident she was involved in but didn’t suffer any serious
physical injuries.

Psychological damage resulting from another person’s careless
conduct is real, debilitating, and sometimes deadly. If you
find that a family member or loved one is acting differently
since he has been involved in an accident of any type, encourage
that person to see a psychiatrist or a psychologist for a
mental health evaluation. A psychiatrist is a medical doctor
(M.D.), while a psychologist is either a Ph.D. or Psy.D. Only a
psychiatrist can prescribe medication, such as antidepressants
or anti-anxiety drugs. Without a proper mental health checkup,
your loved one may suffer excruciating psychic pain and lose all
interest in others, things he used to enjoy, and even life itself.
With proper psychotherapy and/or psychoactive medication,
your loved one should be back to his old self again in several
months.

Traumatic injury is the most common reason for an amputation
among people younger than 50. The leading causes of
those injuries include motor vehicle and motorcycle accidents,
farm machines, power tools, and factory/industrial machines
and equipment. Another source can be products that are dangerously
designed, do not have sufficient safety measures built
in, and/or lack a properly placed “off” switch. Traumatic amputation
usually occurs at the scene of the accident, when the
limb is completely or partially severed. Sometimes the injured
person will make it to the hospital with the limb still attached
but so badly crushed or mangled that amputation is necessary.

The amputation may be of one or more toes or fingers, a foot
or a hand, a leg below or above the knee, or an arm below or
above the elbow. A person may sustain amputations of more
than one limb, such as both legs, both arms, or one of each. For
instance, when a person comes into contact with an exposed,
downed high-voltage power line, it is not at all unusual for the
person to suffer the amputation of more than one limb as the
electricity seeks paths to leave the body. Hemicorporectomy,
or amputation at the waist downward, is the most radical—and
rare—of all the types of amputations.

The majority of trauma-related amputations are of the arms
(approximately 65 percent compared to 35 percent for leg
amputations), and men are at a significantly higher risk than
women for trauma-related amputations. However, the number
of amputations in women is on the rise, as is the age of the
victim who requires an amputation. If an accident or other
trauma results in the complete amputation of a limb (i.e., the
body part is totally severed), that part sometimes can be reattached,
especially when proper care is taken of the severed part
and the stump. However, often the victim will have a better
outcome from having a well-fitting, functional prosthesis than
a nonfunctional reattached limb.

The long-term outcome for persons who have lost a limb has
improved greatly due to a better understanding of the management
of traumatic amputation, early emergency and critical
care management, new surgical techniques, early rehabilitation,
and new prosthetic designs. But make no mistake about
it: the loss of a limb is still a serious injury that requires major
changes to your life. No amount of money and no prosthesis
can ever replace a natural, fully functional limb.
Severe and persistent pain can be a fact of life for someone
who has suffered a traumatic amputation. Up to 80 percent of
all amputees still experience pain in their residual limb (the
“stump”) and in the part that is now missing, known as “phantom
pain.” Doctors are unsure exactly how this works, but to
the injured victim the phantom pain in his missing limb feels
as real and painful as if the missing limb were still attached.
Rather than feeling pain in the missing limb, some amputees
feel only phantom sensations, such as itching, burning, aching,
pressure, touch, wetness or dryness, hot or cold, or movement
in the missing limb.

Pain management is essential to the proper medical treatment
of amputees. There are two types of pain in amputation
cases: acute and persistent. Acute pain is usually severe in
intensity but lasts a relatively short time. Persistent pain generally
ranges from mild to severe and lasts for long periods of
time, sometimes years. In the beginning of treatment, when
pain is new and at its peak, it may be necessary to prescribe a
drug from that group of pain medications known as “opioids.”
This category of drugs includes morphine, oxycodone, and
codeine. Because of the risk of becoming addicted to an opioid
drug, after the critical stage has ended and the pain is less
intense, the doctor may switch the victim to a non-steroidal
anti-inflammatory drug (NSAID), such as ibuprofen (e.g., Advil
or Motrin), aspirin, acetaminophen (Tylenol), or naproxen
(Aleve). If severe pain persists despite the use of medications
and physical therapy, the victim may be referred to a pain management
doctor or clinic.

In many cases, a prosthesis (artificial limb) will enhance
an amputee’s mobility and ability to perform the “activities of
daily living” (ADLs), such as using the restroom by themselves,
dressing themselves, making their own meals, showering,
brushing their teeth, etc. A prosthesis must be fitted to the individual
and should be comfortable, functional, and cosmetically
appealing. Training by a skilled physical and/or occupational
therapist is necessary before and after receiving a prosthesis.
This training will help to maximize the functional use of the
artificial limb, and it will also help to prevent the development
of bad habits that may be difficult to break later.

While advances in medical treatments and surgical techniques
continue, over the past decade, improved outcomes
following amputation have largely been the result of advances
in prosthetic technology. For instance, for lower-limb (i.e.,
leg) amputees, the number of prosthetic feet that provide
“dynamic response” and the ability to maneuver on uneven
surfaces continues to increase. Additionally, at least one
microprocessor-controlled prosthetic foot-ankle unit is now
available. For above-the-knee amputees, there are currently
five different prosthetic knee units that use microprocessorcontrol.
These units allow for more normal knee motion and
stability through computerized parts that monitor motions
and forces and make extremely rapid real-time adjustments
while walking. This results in improved walking ability that
requires less effort.

For upper-limb (i.e., arm) amputees, the original bodypowered
(i.e., cable controlled) prosthetic designs remain in
common use, are the most durable, and continue to improve.
Although using electrical signals from the muscles (“myoelectric
componentry”) to control prostheses for the upper limb
has been in use for over 40 years, this technology continues to
advance, with associated further enhancements in function. To
improve the ability of high-level (close to or through the shoulder)
upper-limb amputees to use a myoelectric prosthesis, in
2006 a surgical technique called “targeted reinnervation” was
introduced, in which motor and sensory nerves are transferred
to the part of the body that needs healing in order to improve
motor control and sensory feedback during prosthetic use. The
application of this technique is still in its early stages.

In most cases, the amputation victim is measured for a prosthesis
several weeks after surgery, when the wound has healed
and the tissue swelling is decreased. The medical team will be
concerned with maintaining the proper shape of the residual
limb, as well as increasing overall strength and function. The
amputee will most likely need to make several visits for adjustments
with the professional who made the prosthesis (the prosthetist),
as well as extensive training with a physical therapist
to learn how to use it. They can help the amputee ease pressure
areas, adjust alignment, work out any problems, and regain the
skills the amputee needs to adapt to life after limb loss.

Some people are not good candidates for prostheses, and
these amputees will need to rely on mobility devices, such as
a wheelchair or crutches. For instance, a person who has had
both legs amputated (a “bilateral” amputee) may opt for a
wheelchair, while a person who has had only one leg amputated
(a “unilateral” amputee) may opt for a prosthesis. Of course, a
unilateral lower-limb amputee who has had a prosthesis made
for her may find it useful to use a cane or crutches for balance
and support in the early stages of walking. Whether to use a
prosthesis or a mobility device such as a wheelchair may be an
individual decision based on such factors as the person’s age,
balance, strength, and sense of security, as well as the location
and extent of the amputation.

Once the amputee has been fitted for a prosthetic limb, has
mastered (or is well on her way to mastering) its use, and feels
comfortable with its function, this is not the end of the road
for the amputee. She will still need to make periodic follow-up
visits to her doctor and prosthetist as a normal part of her life.
Proper fit of the socket and good alignment will ensure that the
prosthesis is still useful to the amputee and is not causing her
discomfort, pressure sores, or other problems. Artificial limbs
can break down over time and with continued use, and changes
in the physical shape and condition of the amputee’s residual
limb (i.e., the stump) may require the amputee to go in and have
adjustments made to an old prosthesis or get a new one made.
Even small problems with the prosthesis should be brought to
the immediate attention of the prosthetist. That way, the issue
can get attention before that small problem suddenly results
in the failure of the prosthesis and becomes a large problem,
resulting in further injury to the amputee.

After the amputee has had her surgery and has been fitted
for an artificial limb, she will need to keep a focus on the care
of the wound site and maintenance of the residual limb. Any
skin opening, whether it be for surgery or due to an improperly
fitted prosthesis, runs the risk of becoming infected by germs
entering the bloodstream through the opening. Infections can
cause tenderness or pain, fever, redness, swelling, and/or discharge.
These infections can lead to further complications that
will require medical intervention, even surgery. If the infection
is not treated in a timely manner, it is possible that the infection
will grow and spread, causing death.

The amputee will always need to pay special attention to
the hygiene of her residual limb, as it will be enclosed in the
socket or liner of the prosthesis and thus will be more prone
to skin breakdown and infections. If an amputee suspects that
she is getting an infection, she should promptly see her medical
doctor before it gets out of hand. If you are being fitted for a
prosthetic limb, ask your prosthetist for information on caring
for your residual limb to prevent infections and what to do if
you suspect you have one.

In addition to the intense physical pain and emotional discomfort,
the victim may suffer severe psychological trauma
that will require intensive and prolonged mental health care
intervention. Studies show that civilians suffering the loss of
a limb in, say, a traffic accident have a greater risk of experiencing
serious psychological problems than servicemen and
women who have suffered a traumatic amputation as a result
of, for example, the explosion of a roadside explosive device
while serving her country in the Middle East.

From a psychological viewpoint, losing a limb is one of
the most traumatic psychic events and losses you can suffer.
Initially, the victim will feel tremendous grief over the loss of
the limb. When the amputation is due to another person’s careless
act, the victim will at some point usually feel anger, even
rage, toward that person. And as time goes by, the victim may
fall into a deep clinical depression stemming from the loss of the
limb. A victim suffering from mental and emotional problems
arising from the loss of a limb should be treated by a psychologist
and/or psychiatrist. The victim will need psychotherapy
and, particularly in the case of depression, psychoactive medication
to treat her mental condition. An amputee may become
so despondent over the loss of her limb(s) that she attempts or
completes suicide.

Approximately 2.4 million burn injuries are reported each
year. About 650,000 of the injuries are treated by health care
professionals. Approximately 75,000 burn victims are hospitalized
each year. Of those hospitalized, 20,000 have major
burns involving at least 25 percent of their total body surface.
Between 8,000 and 12,000 patients with burns die, and several
hundred thousand sustain substantial or permanent disabilities
resulting from these injuries. Burn injuries are the second
leading source of accidental death in the United States, following
only the number of deaths resulting from motor vehicle
accidents.

TYPES OF BURNS

There are five major of types of burns: thermal burns, friction
burns, electrical burns, chemical burns, and radiation burns.

  1. Thermal Burns These are the most frequent type of burns
    and are caused by fire or excessive heat coming from such
    sources as steam, hot liquids, or contact with hot objects. In
    automobile collisions or motorcycle accidents, there is always
    the risk of a ruptured gas tank or loosened gas line igniting and
    catching fire, burning the people in the vicinity. Even when the
    person is removed from the source of the thermal burn, damage
    to his skin is still taking place and therefore the prompt administration
    of first aid is required. Depending upon their severity,
    thermal burns can cause anywhere from the minor discomfort
    of first-degree burns to life-threatening third-degree burns.
    In thermal burns, as well as other types of burns, the swelling
    and blistering of the burned skin is caused by the loss of fluid
    from damaged blood vessels. In severe cases, such fluid loss
    can cause shock. Immediate blood transfusion and/or intravenous
    fluids may be needed to maintain blood pressure. Due to
    the damage to the skin’s protective barrier, burns often lead to
    infection, which, if not treated promptly and appropriately, can
    result in life-threatening consequences, even death.
  1. Inhalation Burns Fire and heat have been associated
    with several types of inhalation injuries as well as burns to
    the flesh. (Inhalation injuries also occur with different types
    of burns, such as the inhalation of a caustic chemical.) When
    inhalation injuries are combined with external burns, the
    chance of death increases significantly.

The three types of inhalation injuries are:

    1. Damage from Heat Inhalation True lung burns
      occur only if the person directly breathes in hot air or a
      flame source, or high pressure forces the heat into him.
      In most cases, thermal injury is confined to the upper
      airways. However, secondary airway injury can occur if a
      person inhales steam, as it has a greater thermal capacity
      than dry air.
    2. Damage from Systemic Toxins Systemic toxins
      affect our ability to absorb oxygen. If someone is found
      unconscious or acting confused in the surroundings of
      an enclosed fire, the inhalation of systemic toxins could
      be a possible cause. More than a hundred known toxic
      substances have been identified in fire smoke. Toxin poisoning
      can cause permanent damage to internal organs,
      including the brain. Carbon monoxide poisoning can
      appear without symptoms up until the point where the
      victim falls into a coma.
    3. Damage from Smoke Inhalation Injuries that
      were caused by inhaling smoke can easily be missed
      because of more visible injuries, such as burns as a result
      of the fire. Sometimes this leads to the victim not receiving
      the necessary medical treatment due to the rescue
      teams taking care of the more severely burned victims
      whose injuries are more apparent. People who appear
      unharmed can collapse due to a major smoke inhalation.
      60 to 80 percent of fatalities resulting from burn injuries
      are due to smoke inhalation. Signs of smoke inhalation
      injury usually appear within 2 to 48 hours after the
      burn occurred. Symptoms of smoke inhalation include:
      (1) fainting, (2) evidence of respiratory distress or upper
      airway obstruction, (3) soot around the mouth or nose,
      (4) singeing of nasal hairs, eyebrows, and/or eyelashes,
      and/or (5) burns around the face or neck. Upper airway
      swelling (“edema”) is the earliest consequence of inhalation
      injury, and it is usually seen during the first 6 to
      24 hours after the injury. Early obstruction of the upper
      airway is managed by intubation. Initial treatment consists
      of removing the patient from the smoke and allowing
      him to breathe air or oxygen.
    4. Friction Burns This type of burn commonly occurs when
      a person is dragged along a surface. For instance, in a motor
      vehicle-motorcycle accident in which the motorcyclist is
      dragged a certain distance, he will likely sustain friction burns
      caused by the asphalt or cement unless he was wearing protective
      clothing. Joggers, pedestrians, and bicyclists are at high
      risk for friction burns when they are injured by an automobile
      or other motor vehicle. When a person has been dragged in an
      accident, he usually sustains abrasion injuries as well as a friction
      burn.
    5. Electrical Burns Contact between a person and an exposed
      live wire line or other electrical source is the cause of electrical
      burns. Contact with a high-voltage power source often results
      in limbs being severely burned as the electricity seeks a way out
      of the body. With some voltage sources, the person is unable
      to release his grasp on the power line or object, often resulting
      in electrocution. Besides the damage to the skin and limbs,
      electrical burns can severely affect the internal organs as well.
    6. Chemical Burns Chemical burns are caused by acids and
      other caustic substances, many of which are found in household
      cleaning products.
    7. Radiation Burns Radiation burns are caused by exposure
      to the sun, tanning booths, sunlamps, X-rays, radiation treatment
      for cancer, and nuclear medicine.

DEGREES OF BURNS

The severity of burns has traditionally been described in terms
of degree. First-degree burns are the most shallow (superficial),
and they affect only the top layer of the skin, the epidermis.
First-degree burns are red, moist, swollen, and painful, and
such burns may result in peeling and in severe cases, shock.
Second-degree burns extend into the middle layer of the skin,
the dermis, and often affect the sweat glands and hair follicles.
Second-degree burns are red, swollen, and painful, and they
develop blisters that may ooze a clear fluid. The skin may
be white or charred, and the person may go into shock. If a
deep second-degree burn is not properly treated, swelling and
decreased blood flow in the tissue can result in the burn receiving
a third-degree burn classification as the body’s condition
worsens.

Third-degree burns involve all three layers of the skin—the
epidermis, the dermis, and the fat layer—and usually destroy
the nerve endings as well. In third-degree burns, the skin
becomes leathery and may be white, black, or bright red, with
coagulated blood vessels visible just below the skin surface.
There is usually little pain with third-degree burns, as the
nerves have been destroyed, but the victim may complain of
pain. This pain is usually due to second-degree burns. Healing
from third-degree burns is very slow due to the skin tissue and
structures having been destroyed. Burns of this severity usually
result in extensive scarring. There are also fourth-degree
burns, which involve damage to muscle, tendon, and ligament
tissue.

The categorization of burns in terms of degrees is being
phased out in favor of one reflecting the need for surgical
intervention. The new language refers to burns as superficial,
superficial partial-thickness, deep partial-thickness, and
full-thickness.

Twenty-five years ago, people who suffered burns over
25 percent or more of their bodies were likely to die of their
injuries. Today, advances in medicine make it possible to save
many victims who have been burned over 90 percent of their
bodies. Of course, these survivors will have long-term impairment,
disability, scarring, and disfigurement, and they may
never get back to leading a normal life.

When burn damage is due to another person’s negligence,
that person must compensate the victim for all of her injuries:
financial, physical, and emotional. Over half of serious burn
victims are now treated in the approximately 200 hospitals
or clinics specializing in burn treatment. Many hospitals now
have trauma teams that are specially educated in the treatment
and management of burns.

TYPES OF SCARS

As burns heal, scars develop. There are three major types of
burn-related scars: (1) keloid (2) hypertrophic, and (3) contracture.
Keloid scars are an overgrowth of scar tissue that grows
beyond the site of the burn. Generally red or pink at first, they
become a dark tan over time. They occur when the body continues
to produce collagen, a tough fibrous protein, after the
wound has healed. Keloid scars are thick, nodular, ridged, and
itchy during formation and growth. Extensive keloids may
become binding and limit the person’s mobility. Additionally,
clothing rubbing or other types of friction may irritate this type
of scar. Dark-skinned people are more likely to develop keloid
scars than those with fair skin, and the possible occurrence
of keloid scars reduces with age. Keloid scars may be reduced
in size by freezing (cryotherapy), external pressure, cortisone
injections, steroid injections, radiation therapy, or surgical
removal.

Hypertrophic scars are red, thick, and raised, but unlike
keloid scars these do not develop beyond the site of injury or
incision. Additionally, hypertrophic scars will improve over
time. This time can be reduced with the use of steroid application
or injections.

The third type of scar, a contracture scar, is a permanent
tightening of skin that may affect the underlying muscles and
tendons; this can limit mobility, and there can be possible
damage or degeneration of the nerves. Contractures develop
when normal elastic connective tissues are replaced with inelastic,
fibrous tissue. This makes the tissues resistant to stretching
and prevents normal movement of the affected area. Physical
therapy, pressure, and exercise can help in controlling contracture
burn scars in many cases. If these treatments do not control
the effects of contracture scars, surgery may be required.
A skin graft or a flap procedure may be performed. The doctor
may recommend a newer procedure, such as Z-Plasty or tissue
expansion.

SURGICAL PROCEDURES TO IMPROVE SCARS

There are two major types of surgical procedures that can help
to conceal scarring and replace lost tissue for severe burn victims:
(1) dermabrasion and (2) skin grafts.

Dermabrasion is a surgical procedure to improve, smooth,
or minimize the appearance of scars, restore function, and
correct disfigurement resulting from a burn injury. Even with
dermabrasion, scars are permanent but their appearance will
improve over time. Dermabrasion may be performed in a dermatologic
surgeon’s office or in an outpatient surgical facility.

A skin graft is a surgical procedure in which a piece of skin
from one area of the person’s body is transplanted to another
area of the body. Skin from another person or animal may be
used as a temporary cover for large burn areas to decrease fluid
loss. The skin is taken from a donor site, which has healthy
skin, and it is then implanted at the damaged recipient site.
Skin grafts and flaps are more serious than other scar revision
surgeries, such as dermabrasion. They are usually performed
in a hospital under general anesthesia. Depending on the size
of the area and severity of the injury, the treated area may need
six weeks to several months to heal. Within 36 hours of the
surgery, new blood vessels will begin to grow from the recipient
area into the transplanted skin. Most grafts are successful,
but some may require additional surgery if they do not heal
properly.

The success of a skin graft can usually be determined within
72 hours of the surgery. If a graft survives the first 72 hours
without an infection or trauma, the body in most cases will not
reject the graft.

Before surgery, the recipient and donor sites must be free of
infection and have a stable blood supply. Following the procedure,
moving and stretching the recipient site must be avoided.
Dressings need to be sterile and antibiotics may be prescribed
to avoid infection.

For many severely burned persons, skin grafts using their
own healthy skin are not possible. These patients tend to have
very little healthy skin or they may not be strong enough for
the surgery. When other sources of skin must be used, options
can be cadaver skin or animal skin. The body will usually reject
both of these procedures within a few days and the surgery
will need to be performed again. A synthetic product called
Dermagraft-TC is made from living human cells and it is being
used now instead of cadaver skin. The FDA has approved
Dermagraft-TC and two artificial “interactive” burn dressings
for use in treating third-degree burns. Unlike traditional bandages,
some new dressings promote wound healing by interacting
directly with body tissues.

Other substitute skin products may become available soon.
Already, in addition to artificial skin, there is cultured skin.
Doctors are able to take a postage-stamp-sized piece of skin
from the patient and grow the skin under special tissue culture
conditions. From this small piece of skin, technicians can grow
enough skin to cover nearly the entire body in just three weeks.

COST OF TREATMENT/GETTING LEGAL HELP

Serious burns are one of the most expensive catastrophic injuries
to treat, and they can lead to lasting physical disability and
emotional damages. For instance, a burn of 30 percent of total
body area can cost several hundred thousand dollars in initial
hospitalization costs and physician fees. For more extensive
burns, there are additional significant costs, such as the cost of
multiple hospital admissions for reconstruction and rehabilitation.
Scars may heal physically but they remain visible and
last emotionally. Hence, it is of utmost importance if you have
been severely burned due to another person’s carelessness, that
you retain an experienced personal injury lawyer who understands
serious burn injuries. This type of lawyer can help you
get full compensation for the physical and emotional trauma
associated with the burns. You are entitled to recover all of your
medical expenses—past and future—lost wages, pain and suffering,
loss of enjoyment of life, and other damages.

A person who suffers a severe blow or jolt to the head or a penetrating
head injury may frequently develop a condition that
disrupts the function of the brain. This is known as a traumatic
brain injury (TBI). Auto accidents are a leading cause of TBIs,
as are falls, such as a slip and fall accident in a grocery store or
a trip and fall due to a defective walkway. TBI is a leading cause
of death and disability in the United States. Each year, 1.4 million
people sustain a traumatic brain injury. Fifty thousand of
those die from the TBI, 235,000 people are hospitalized, and
1.1 million people are treated and released from an emergency
room. The injury may be relatively minor, such as a minor concussion
or brief period of unconsciousness, or it may be severe,
such as a lengthy period of unconsciousness (a coma) or amnesia
after the injury. Each year, 80,000 to 90,000 people will
sustain a long-term disability as the result of a TBI. The Centers
for Disease Control and Prevention estimate that at least 5.3
million Americans currently have a long-term or lifelong need
for help to perform activities of daily living (ADLs) as a result
of TBIs.

The leading causes of traumatic brain injury are falls and
motor vehicle accidents, being struck by or against an object,
and assaults by another person involving traumatic injury to
the head. But TBIs need not be caused by a blow to the head. A
violent jolt of the head such as one might experience in a rearend
collision (“whiplash”) may result in serious brain injury. In
a violent collision, the head snaps forward and the brain hits
the front of the skull, then the head snaps backward and the
brain hits the back of the skull. These impacts can cause a serious
TBI. “Shaken-baby syndrome” is an example of a serious
brain injury being inflicted without a direct blow to the head.

Even in this age of advanced medicine and neurobiology,
there is no cure for a TBI. Improvement from a brain injury
depends on the brain’s “plasticity,” that is, the brain’s ability to
“rewire” itself and have other areas of the brain take over the
functions of the damaged areas.

Brains do not heal like broken limbs, and each person’s
brain is different. Although they may superficially appear alike,
no two brain injuries are the same and the consequence of two
similar traumatic brain injuries may be vastly different.

Health care professionals who deal with TBIs do not talk
in terms of “recovery,” but rather “improvement.” The word
“recovery” implies that that the effects of a TBI will disappear,
whereas the reality is that improvement is usually all that can
be expected. With a TBI, some of the effects may disappear
after a couple of years or more, but more frequently these longterm
changes linger on, changing only slowly—if at all—over
the person’s lifetime.

CATEGORIES OF TBI

TBIs are classified into three categories: mild, moderate, and
severe.

  1. Mild Traumatic Brain Injury A person with a mild TBI
    is one who has suffered trauma to the brain and: (a) had any
    period of loss of consciousness and/or confusion, (b) was
    disoriented or confused for less than 30 minutes, and/or (c)
    suffered from Posttraumatic Amnesia (PTA) (loss of memory
    for events immediately before or after the accident). Mild TBI
    is the most common type of TBI, and it is often missed at the
    time of the initial injury. Fifteen percent of people with mild
    TBIs have symptoms that last one year or more.
  2. Moderate Traumatic Brain Injury Moderate TBI exists
    when a person has suffered trauma to the brain and: (a) lost
    consciousness for at least 20 minutes to six hours and/or (b)
    suffered from Posttraumatic Amnesia for more than 30 minutes
    but less than 24 hours. It also applies where the person has
    suffered a skull fracture. Moderate TBI may result in long-term
    physical or cognitive deficits, depending on the type and location
    of the brain injury. Rehabilitation will help to overcome
    some deficits and provide skills to cope with any remaining
    deficits.
  3. Severe Traumatic Brain Injury A severe brain injury is
    a life-threatening condition in which: (a) the person loses consciousness
    for more than six hours or (b) has Post Traumatic
    Amnesia lasting longer than 24 hours. If the person lives, she
    will typically be faced with long-term physical and cognitive
    impairments, ranging from a persistent vegetative state to less
    severe impairments that may allow the person, with extensive
    rehabilitation, to continue to function independently.

DAMAGES DUE TO TBI

Symptoms common to mild TBIs include fatigue, headaches,
visual disturbances, memory loss, poor attention and/or concentration,
sleep disturbances, dizziness and/or loss of balance,
irritability, feelings of depression, and, rarely, seizures.
Other symptoms associated with mild TBIs include nausea,
loss of smell, sensitivity to sound and lights, getting lost or
confused, and slowness in thinking. Sometimes the cognitive
symptoms are not readily identified at the time of the injury,
but instead may show up as the person returns to work, school,
or housekeeping. Friends and colleagues may notice changes in
the person’s behavior before the injured person realizes anything
is wrong.

A person who has suffered a moderate or severe TBI may
suffer from such cognitive deficits as difficulties with attention,
concentration, distractibility, memory, speed of processing
information, confusion, impulsiveness, language processing,
and what are often referred to as “executive functions.”
Executive functions refer to the complex processing of large
amounts of intricate information that we need to function creatively,
competently, and independently as beings in a complex
world. After a severe TBI, the person may be unable to function
well in her social roles because of difficulty in planning ahead,
keeping track of time, coordinating complex events, making
decisions based on broad input, adapting to changes in life, and
otherwise “being the executive” in her own life.

Some of the difficulties resulting from a moderate to severe
TBI include speech and language problems, such as not understanding
the spoken word, difficulty speaking and being understood,
slurred speech, speaking very fast or very slowly, and
issues with reading and writing. Sensory problems include
difficulties with the interpretation of touch, being aware of
changes in the temperature, and limb position. Partial or total
loss of vision, weakness of eye muscles and double vision,
blurred vision, difficulties judging distance, involuntary eye
movements, and intolerance of light are other problems frequently
found with moderate to severe TBIs.

Physical changes include paralysis, chronic pain, loss of
bowel and bladder control, sleep disorders, loss of stamina,
changes in appetite, difficulty regulating body temperature,
and menstrual problems. Moderate to severe TBIs can cause
a wide range of functional changes affecting thinking, language,
learning, emotions, behavior, and sensation. TBIs can
also cause seizures and increase the risk for such conditions
as Alzheimer’s disease, Parkinson’s disease, and other brain
disorders that become more likely as the person grows older.

A common complaint among persons who sustain a TBI
is fatigue. Studies of people with TBIs found that between 37
and 98 percent of them said they had some type of fatigue.
There are three types of fatigue: (1) physical fatigue: feeling
tired and a need to rest and having muscle weakness, (2)
psychological fatigue, in which the person can’t get motivated
to do anything, is often accompanied with depression (50-60
percent of people who suffer a TBI develop major depression,
which affects only about 5 percent of the general population
at any one time), anxiety (about twice the rate of the general
population), Posttraumatic Stress Disorder (PTSD) and other
psychological conditions, which may take months or years of
psychotherapy to treat and may require psychoactive medication,
and (3) mental or cognitive fatigue, in which the person
has difficulty concentrating and finds it hard to stay focused,
becomes irritable, or has headaches.

LONG TERM EFFECTS OF TBI

The long-term effects of a TBI depend on a number of factors,
including: (1) the severity of the initial injury, (2) the rate and
completeness of physiological healing, (3) the types of functions
affected, (4) the resources available to aid in the recovery
of function, and other factors. Most spontaneous improvement
from a TBI occurs within the first month after a brain injury.
Some additional gains may occur over the next three to six
months. The long-term effects of a TBI are different for every
person. Some may experience only subtle difficulties, others
will have moderate dysfunction, while to still others the TBI
may be life-threatening. With TBIs, the systems in the brain
that control our social-emotional lives are often damaged. The
consequences for the individual and his significant others may
be very difficult, as these changes may imply to them that “the
person who once was” is no longer there. Personality can be
substantially or subtly modified following injury. The person
who was once an optimist may now be depressed. The previously
tactful and socially skilled negotiator may now be blurting
comments that embarrass those around them. The person
may also be characterized by a variety of other behaviors:
dependent behaviors, emotional swings, lack of motivation,
irritability, aggression, lethargy, lack of inhibition, and being
unable to modify behavior to fit varying situations.

The severity of the injury and the resulting direct effects on
the individual’s body systems and cognitive abilities may not
predict the amount of impact the TBI has on a person’s life.
For example, a severe injury to the frontal brain area may have
less impact on an agricultural worker’s job performance than a
relatively mild frontal injury would have on a physicist’s work.
Hence, the extent of injury and damages in a specific person’s
life will depend on his pre-injury lifestyle, personality, goals,
values, and resources, as well as his ability to adapt to changes
and to learn techniques for minimizing the effects of brain
injury.

WORKING WITH A LAWYER

If you or a loved one has suffered a traumatic brain injury due to
another person’s carelessness—such as an automobile accident
caused by another person’s inattentiveness or a slip and fall on
a store’s slippery floor—it is important that you promptly seek
representation by a personal injury law firm experienced in this
type of injury. Monetary damages you are entitled to receive
when you have sustained a traumatic brain injury include all of
your medical and rehabilitation costs, lost wages because you
were unable to return to work, loss of enjoyment of life due to
your impaired condition, pain and suffering, and psychological
damage.

If you suffer an injury that severs or compresses the spinal cord
in your neck or back, there is a good chance that you will be
paralyzed from the point of injury downward for the rest of
your life. This is called a “spinal cord injury,” or SCI for short.
A little neurology and anatomy will be of immense help here.

The central nervous system (CNS) is made up of two parts:
the brain and the spinal cord. The spinal cord runs from the
base of the brain down the back to the tailbone. The spinal cord
is protected by the spinal column, which consists of bones with
a hole in the middle of them. These bones are called the vertebrae.
At the top of the spinal cord are seven vertebrae known
as the cervical vertebrae (C-1 to C-7, in descending order).
Running down the back are the 12 “thoracic” vertebrae (T-1 to
T-12), which are in turn followed by the five “lumbar” vertebrae
(L-1 to L-5). The “sacrum” (S-1 to S-5) and the “coccyx” (tailbone)
make up the remainder of the spinal column. Injuries
to the cervical spine resulting in paralysis of the body below a
certain point are known as quadriplegia (also called tetraplegia),
while injuries to the spinal column at or below the thoracic
level are classified as paraplegia.

The cervical spinal nerves control signals to the back of the
head, the neck and shoulders, the arms and hands, and the diaphragm.
The thoracic spinal nerves control signals to the chest
muscles, some muscles of the back, and parts of the abdomen.
The lumbar spinal nerves control signals to the lower part of
the abdomen and the back, the buttocks, some parts of the
external sex organs, and parts of the leg. Sacral spinal nerves
control signals to the thighs and lower parts of the legs, the
feet, most of the external sex organs, and the area around the
anus. As you can see, the higher the SCI to the spine, the more
disabling—and potentially fatal—the injury. For instance, a
spinal cord injury at the neck level may cause paralysis in both
arms and legs and make it impossible for the victim to breathe
without a respirator, while a lower injury may affect only the
legs and lower parts of the body.

SCIs involving the cervical vertebrae usually cause loss of
function in the arms and legs, known as quadriplegia (or tetraplegia).
If the SCI is at or above the C-3 level (C-1 to C-3),
then the ability to breathe on one’s own is affected, and it will
probably be necessary to have a mechanical ventilator for the
person to breathe, as was the case for actor Christopher Reeve
after his tragic accident until his death. Many people with SCI
at or above C-3 die before receiving medical treatment because
of their inability to breathe. C-4 is a critical level, as it is the
level where nerves to the diaphragm—the main muscle that
allows us to breathe—exit the spinal cord and go to the breathing
center.

Besides allowing for regulation of the breathing process,
injuries at C-4 may also allow the person some use of his biceps
and shoulders, but this will be fairly weak. Injuries at the C-5
level often result in shoulder and biceps control, but no control
of the wrist or hands. If the SCI is at the C-6 level, the victim
usually has wrist control, but no hand function. Victims with
SCI at the C-7 level can usually straighten their arms, but may
still have dexterity problems with the hands and fingers. Injury
at or below the C-7 level is generally considered to be the level
for functional independence.

If the SCI is at the T-1 to T-8 levels, the victim usually has
control of his hands, but poor trunk control resulting from a
lack of abdominal muscle control. Lower thoracic vertebra injuries
(L-9 to L-12) allow good trunk control and good abdominal
muscle control, and the victim’s sitting balance is very good.
SCI to the lumbar and sacral regions result in decreasing control
of the legs and hips, urinary system, and anus.

It is often impossible for the doctor to make a precise prognosis
right away, and emergency doctors are advised not to make
prognoses on the question of paralysis. There is no cure for an
SCI, but the sooner the intervention, the better the chances of
minimizing the damage. For example, a corticosteroid drug
(methylprednisolone) administered within eight hours of the
time of injury may reduce swelling, which is a common cause
of secondary damage. An experimental drug currently being
studied appears to reduce loss of function.

On about the third day of hospitalization following the
injury-producing incident, the doctors give the victim a complete
neurological examination to determine the severity of
the injury and predict the likely extent of recovery. X-rays, CT
scans, MRIs, and more advanced imaging techniques are also
used to visualize the entire length of the spine.

Recovery, if it occurs, typically starts between a week and
six months after the injury is sustained, especially as the swelling
goes down. The majority of recovery occurs within the
first six months after injury. Impairment remaining after 12
to 24 months is usually permanent, although with incomplete
SCIs, the person may recover some functioning as late as 18
months after the injury. However, some people experience
small improvements for up to two years or longer. For instance,
Christopher Reeve regained the ability to move his fingers and
wrists and feel sensations more than five years after he sustained
a SCI to his cervical spine in a horse-riding accident. But
the fact remains that only a very small fraction of persons who
sustain an SCI will recover significant functioning.

Besides a loss of motor functioning and feeling below the
level of injury, depending upon the level of the SCI, persons
with SCI may experience other difficulties, such as:

  • Pain or an intense stinging sensation caused by damage
    to the nerve fibers in the spinal cord
  • Loss of sensation, including the ability to feel heat, cold,
    and touch
  • Difficulty breathing, coughing, or clearing secretions
    from the lungs
  • Loss of bladder or bowel control
  • Pressure sores from sitting or lying in the same position
    for a long period of time (also called bedsores or “decubitus
    ulcers”)
  • Inability or reduced ability to regulate heart rate, arrhythmias
    (irregular heart beats), blood pressure, sweating,
    and, hence, body temperature
  • Exaggerated reflex activities or spasms (spasticity)
  • Atrophy of the muscles
  • Blood clots, especially in the lower limbs (e.g., Deep Vein
    Thrombosis, commonly known as DVT) and in the lungs (pulmonary embolism)
  • Osteoporosis (loss of calcium) and bone degeneration
  • Mental depression, often resulting in suicide or attempted
    suicide

The damage to the nerve may be complete or incomplete.
With complete damage, there is a total loss of sensory and
motor function below the level of the SCI; there is no movement
and no feeling below the level of injury, and both sides of
the body are equally affected. With incomplete damage, there
is some functioning and/or sensation below the site of the SCI.
For instance, a person with incomplete damage may be able to
move one leg more than the other, may be able to feel parts of
the body that cannot be moved, or may have more functioning
on one side of the body than the other. The extent of an
incomplete spinal cord injury is generally determined after
spinal shock has subsided, approximately six to eight weeks
after the injury is sustained. With advances in acute treatment
of SCI, incomplete injuries are becoming more common than
complete SCI injuries.

Accidents involving automobiles, motorcycles, and other
motor vehicles, especially with Sport Utility Vehicles (SUVs)
and 15-passenger vans rolling over, are the most common
causes of SCIs. Spinal cord injuries due to violent acts—such
as being shot or stabbed—are the second-most common type
of SCI, and they are the leading type of SCI in some urban
settings in the United States. SCIs due to falls are the thirdmost
common type, occurring most frequently in persons aged
65 years or older. Recreational sports injuries (discussed in
Chapter 15) are the fourth-most common cause of SCIs, with
diving in shallow water being the sport that causes the most
SCIs of all recreational sports, followed by impact in high-risk
sports such as football, rugby, wrestling, gymnastics, surfing,
ice hockey, and downhill skiing.

There is the risk of an earlier death for a person who suffers
a SCI. The most common cause of death of SCI victims is
diseases of the respiratory system, especially pneumonia. The
second leading cause of death is non-ischemic heart disease;
this almost always involves unexplained heart attacks, often
occurring among young persons who have no previous history
of underlying heart disease. Suicide is the cause of death in a
substantial number of persons who sustain a SCI. Other leading
causes of death involving an SCI are pulmonary emboli and
septicemia (infection of the blood stream). Death rates are significantly
higher during the first year after injury than during
subsequent years, particularly for severely injured persons.

The financial and emotional costs associated with paraplegia
and quadriplegia are enormous. The average length of the
initial hospitalization following injury in acute care units is 15
days. The average stay in a rehabilitation unit is 44 days. The
victim of a serious SCI will often have to go through extensive
and exhaustive rehabilitation and physical therapy. Persons
suffering from a serious SCI are generally treated at a regional
SCI spine center. The initial hospitalization costs following an
SCI are in the range of several hundred thousand dollars for
paraplegics and over half a million dollars for quadriplegics.
The average lifetime medical costs for victims becoming paraplegics
at the age of 25 can easily top $1 million. The average
lifetime costs for victims who become quadriplegics at age 25
easily reaches into the area of several million dollars.

If you were injured in an automobile collision or other type
of accident caused by another person that resulted in broken
bones, you have the right to recover monetary compensation
for all of your injuries and associated costs. Common causes
of bone fractures include motor vehicle accidents, falls from a
height, a direct blow to the bone, child abuse, and repetitive
forces, such as those produced by running, causing stress fractures
of the foot, ankle, tibia, or hip.

One source says that the most commonly fractured bone is
the collar bone (“clavicle”), usually as the result of an automobile
accident. Another source lists breaks of the wrist, hip, and
ankle as the most common fractures. A break or a crack in a
bone is known as a fracture and can affect any bone in the body.
A simple (or “closed”) fracture is a clean break to the bone that
does not damage any surrounding tissue or break through the
skin. The only way of certainty in diagnosing a closed fracture
is with an X-ray, CT scan, or MRI.

A compound (or “open”) fracture occurs when the surrounding
soft tissue and skin is damaged, such as where the broken
bone penetrates through the skin. The attending emergency
room physician will order X-rays or other imaging studies performed
so she can find out exactly the extent of injury. This
kind of fracture is more serious in large part because there is a
high risk of infection since it is an open wound.

Additionally, a “simple” fracture is one that occurs along one
line, splitting the bone into two pieces, while “multi-fragmentary”
fractures, known as “comminuted fractures,” involve the
bone splitting into multiple pieces. A simple closed fracture is
much easier to treat and has a much better prognosis for full
recovery than an open comminuted fracture. Another type of
bone fracture is a “compression fracture,” which usually occurs
in the vertebrae (the bones that make up the spinal column).
There are approximately 14 different types of fractures.

Fractures are most frequently a result of an accident such
as a bad fall or motor vehicle collision. The time it takes for a
bone to heal depends on the type of fracture, where it is, and
if it is an open or closed fracture. Healing of a broken bone is
a gradual process, and it can take anywhere from a few weeks
to several months. The healing process may, in fact, take even
longer in some cases, such as in the presence of chronic diseases
like osteoporosis and diabetes. As a person gets older,
their bones become weaker making the individual more prone
to fractures if they fall. Young children get different types of
fractures because their bones are more elastic. They also have
growth plates at the ends of the bones that can be damaged.

In order for a fracture to heal as well as possible, a good
placement (“reduction”) of the bones must be attained. When
doctors talk about “reduction” of a fracture, or “reducing” the
broken bone, they are talking about improving the alignment of
the broken ends of the bone. In most cases reducing a fracture
may involve a little pulling and tugging of the bones to attain
optimal alignment. Once the bones are properly aligned, a plaster
or fiberglass cast will be applied to hold the bones in the
proper position while they heal.

A plaster cast molds to the skin better and is preferred if the
broken bone needs to be held in a specific place. If the fracture
is not unstable, or if some healing has already taken place, a
fiberglass cast may be used. In many cases, physical therapy is
required after the fracture has healed and the cast is taken off
to strengthen the muscles and restore mobility in the affected
area. Fractures near or through joints may result in the joint
becoming permanently stiff or being unable to bend properly.
In such a case, the lawyer will argue that the patient/client is
entitled to recover a higher monetary award to compensate
the injured person for the added pain and suffering, lack of
enjoyment of life, and work prohibitions that the victim will
experience.

If the bones cannot be properly aligned or are not sufficiently
stable, and reduction cannot be satisfactorily achieved,
then surgery is often necessary. In one type of surgery, “internal
fixation,” an orthopedic surgeon aligns the fractured bones
with pins, plates, screws, or rods. A second type is “external
fixation.” Here, the pins or screws are placed into the broken
bone above and below the fracture site. The orthopedic surgeon
then repositions the bone fragments, and the pins or screws are
connected to a metal bar or bars outside the skin. The external
fixation devices hold the bones in the proper position so they
can heal. After an appropriate amount of time, the external
fixation devices are removed.

Occasionally the orthopedic surgeon uses “bone grafting” to
treat a fracture. A bone graft is surgery to place new bone into
spaces around a broken bone or bone defects. The new bone
can be taken from the patient’s own healthy bone (an “autograft”),
from frozen, donated bone (“allograft”), or an artificial,
synthetic, or natural substitute for bone. Bone grafting is used
to repair bone fractures that are extremely complex, pose a significant
health risk to the patient, or fail to heal properly. The
new bone is held in place with pins, plates, or screws. Stitches
are used to close the wound, and a splint or cast is usually used
to prevent injury or movement while the bone is healing.

Bone grafts are used to fuse joints to prevent movement,
repair broken bones (fractures) that have bone loss, and to
repair bone that has not healed. Surgeons use bone grafts to
repair and rebuild diseased bones in the hips, knees, spines,
and sometimes other bones and joints. Most bone grafts help
the bone defect to heal with little risk of graft rejection, and
recovery time generally varies from two weeks to two months,
depending on the injury or defect being treated. Vigorous exercise
is usually prohibited for up to six months.

If you have suffered a broken bone due to another person’s
carelessness (“negligence”), you are entitled to recover your
medical expenses, lost wages, pain and suffering, and loss of
enjoyment of life you endured from the party that negligently
injured you, as well as the lost wages for the time you are off
work for surgery, recovery, and physical therapy. Recoverable
medical expenses include visits to the emergency room, your
primary care provider, an orthopedic specialist, and the costs
of having a cast made for you. If the break results in a deformity
or limp that you will have to live with for the rest of your life,
you are entitled to receive damages for that as well.

Whiplash has been the butt of many jokes and parodies over the
years. However, the fact is that it can be a serious injury requiring
medical attention and extensive physical therapy. Whiplash
occurs when the head is snapped suddenly and violently forward
then backward, as would happen if you collided with a car
that suddenly pulled out in front of you. Severe whiplash can
result in injury to the intervertebral joints, discs, ligaments,
and nerve cases. In especially severe cases of whiplash, surgery
may be necessary to repair damage to the soft tissue. Between
15 and 40 percent of people who suffer whiplash will continue
to have pain months after the injury was sustained. There is an
18 percent chance that a whiplash victim will still be experiencing
some symptoms more than two years after the accident.

Whiplash injuries may not show up right away; a person may
awaken several days or a week or two later with classic signs of
whiplash, such as neck pain, shoulder stiffness, and headache.
Usually, the sooner the symptoms of whiplash appear, the
more serious the injuries tend to be. Depending on the severity
of the whiplash, the doctor may order the patient to wear
a cervical (neck) collar, take anti-inflammatory drugs such as
aspirin, ibuprofen (e.g., Advil or Motrin), or naproxen (Aleve).
For people who are suffering greater than normal pain, the
doctor may prescribe strong prescription pain relievers, such
as Vicodin and Norco, as well as muscle relaxants. The doctor
may also prescribe physical therapy for the victim for a period
of several months or more, depending upon how the victim is
recovering. While the majority of whiplash victims recover in
six to twelve weeks, for some people, regardless of the brace,
medications, and physical therapy, whiplash results in longterm
symptoms which can be extremely painful and disabling.

In addition to “simple” whiplash, there is the more serious
Whiplash-Associated Disorder (WAD). In the more severe and
chronic cases of WAD, the person may experience depression,
anger, frustration, anxiety, stress, drug dependency, alcoholism,
substance abuse, Posttraumatic Stress Disorder (PTSD),
insomnia, and social isolation. In some cases, the snapping
motion of the neck is so strong that it may cause the dislocation
or even a fracture to a cervical vertebra, causing paralysis. (See
Chapter 29 for a discussion of Spinal Cord Injuries.)

Approximately 7 million people worldwide go on cruises every
year. Some go on long-weekend three-day cruises, others take
six-month cruises, while many take cruises of two to four weeks.
While the vast majority of passengers will have a delightful,
memorable, and uneventful cruise, for some the dream cruise
they had been planning for months, if not years, turns into
tragedy when they are seriously injured or killed due to the
carelessness (“negligence”) of the cruise line and its employees.

Any one of the following factors can cause injury or death,
turning a fun cruise into a nightmare:

  • “Slip and fall” or “trip and fall” incidents
  • Hazardous decks, stairways, and walkways
  • Inadequate ship maintenance
  • Water slide, wave pool, and swimming pool accidents
  • Contaminated food and food poisoning, resulting in serious
    injuries
  • Passengers who fall overboard
  • Unsafe doors that close too quickly or too forcefully
  • Drownings
  • Head and traumatic brain injuries
  • Spinal cord injuries
  • Infectious diseases and viruses
  • Sexual or other physical assaults by crew members
  • Explosions and fires
  • Unseaworthy conditions
  • Injuries incurred during on-shore activities and excursions
    arranged or sanctioned by the cruise ship company

THE INJURED PASSENGER’S RIGHTS

The legal rights of a passenger who has suffered an injury on a
cruise ship, or of the heirs of a passenger who has been killed,
depend largely on two things: maritime law and the provisions
of the passenger’s contract/ticket for carriage. Deaths occurring
more than three miles off the United States’ shore come under
the jurisdiction of the Death on the High Seas Act (DOHSA),
discussed separately. Under maritime law, a ship owner owes
passengers a duty to take ordinary reasonable care under the
circumstances.

YOUR TICKET AND CONTRACT WITH THE CRUISE LINE

A passenger’s contract/ticket is carefully drafted by the cruise
line not only to tell you of your rights, but just as importantly—
if not more so—to govern such things as what you can sue the
cruise line for, the location where you must bring suit, how soon
after the incident you must give written notice of your claim to
the cruise line (usually six months), and the length of time you
have to sue the cruise line (usually one year). What law applies
to your ability to bring suit also depends on where the ship was
at the time of the injury. For instance, the type and amount of
damages you may be entitled to may vary greatly if the injury or
death occurred while the ship was docked at Long Beach, was
in Mexican territorial waters, or was on the high seas (more
than three miles off most countries’ shores).

A passenger’s cruise ticket for an ocean voyage constitutes a
maritime contract. Most ticket/contracts require that any lawsuits
against the cruise ship must be filed only in certain places,
usually cities or counties where the cruise line has its offices.
The top places designated by the contract/ticket for filing a
suit for personal injuries or death arising out of a domestic
cruise ship’s negligent conduct are Miami, Los Angeles, New
York, and Seattle. For purely international cruises, such as a
Mediterranean cruise aboard a Greek cruise ship, if you should
be injured or a loved one killed on the cruise, you are probably
going to have to prosecute the claim in Greece, even though the
ticket was purchased in the United States. But if the passenger
set off aboard a cruise line out of the Port of Miami and went on
a Caribbean cruise and returned to the Port of Miami, chances
are that the contract/ticket provides that lawsuits against the
cruise line for injury or death must be brought in Florida.

In determining where you can and must file your lawsuit
against the cruise line, the contract/ticket contains language of
where you must sue the cruise line if you have been injured or
a loved one killed on a cruise. The standard applied is that the
ticket must reasonably communicate the existence of important
terms and the passenger must have the opportunity to become
meaningfully informed of those terms. The court will also look
to the location of any restrictive provisions and simplicity of
the language used to limit a passenger’s rights.
The question boils down to whether, taken together, the
various notices and provisions of the cruise contract/ticket
are legally sufficient to give effect to the various liability and
claim procedures it contains. For example, a passenger who
claims that requiring the case to be filed thousands of miles
away is unreasonable has a heavy burden of demonstrating
why enforcement of the site specified by the contract/ticket is
unreasonable. Whether the terms and conditions of the passage
contract were reasonably communicated is a question of
law for the court to determine.

TYPES OF DAMAGES RECOVERABLE

A cruise ship passenger who has been injured because of a
cruise ship’s employee’s negligence is entitled to recover monetary
damages for past, present, and future medical expenses,
lost wages—both past and present—loss of earning power, and,
if within three miles of the U.S. coastline, her pain and suffering
and loss of enjoyment of life. Outside the limit of three
nautical miles, the passenger must allege a physical injury to
recover damages for purely emotional distress, mental anguish,
and psychological injuries. In one case involving a cruise ship,
approximately 210 passengers brought suit against the cruise
line and its captain for extreme emotional distress. The gist of
the cases was that their emotional injuries occurred because
the captain sailed into bad weather that the ship’s officer was
aware of but did not avoid. The cruise line proved that some
140 of the passengers did not have any objective physical injuries
and were therefore not entitled to recover for their purely
emotional distress.

WHAT TO DO IF YOU HAVE BEEN INJURED

If you are injured or a loved one killed on a cruise ship, you
should report your injury or loved one’s death to the cruise
ship employees as soon as possible. If there is a medical
doctor or other health care professional aboard the ship, you
should contact him for immediate treatment in the case of an
injury. It may be necessary for you to be taken off the ship by
a helicopter, or the ship may have to change its destination
and head to the nearest port of call so that you can get prompt
medical treatment.

If you are able to, take pictures of the area where you were
injured. If you’re not able to do it yourself, then you should
instruct your spouse or traveling companion to take pictures
for you. Don’t forget to take pictures of your injuries. If you
didn’t bring a camera and your mobile phone doesn’t take pictures,
a disposable camera can be purchased in the ship’s gift
shop for around $10. If you are unable to do so, your spouse
or traveling companion should get the names and addresses of
all witnesses to the accident, and if possible, a brief statement
from them relating what they saw. The cruise ship employees
have a duty to assist you in collecting this information when
you are unable to do so yourself.

If you have been injured or a loved one killed while aboard
a cruise ship, you should contact a personal injury lawyer with
experience in maritime law and cruise ship injuries and deaths
as soon as possible so your claim is not barred by the “statute
of limitations.” The statute of limitations tells you how long you
have to file a lawsuit in federal court or you will lose the right
to sue forever. Maritime law and the contract/ticket with the
cruise ship determine the amount of time you have to sue the
cruise line for injuries or death. Although the normal time a
person has to file under maritime law is three years, by signing
the contract/ticket with the cruise line, that time is generally
shortened to one year. And before you can bring a suit in court,
the contract/ticket usually requires that you must first file a
claim with the cruise line within six months of the incident.

The contract/ticket may also require you to submit a “Bill of
Particulars” with your claim to the cruise ship within six months
of the injury or death. Typically, in the Bill of Particulars you
must send notice of your injuries or loved one’s death and tell
them why you feel the cruise line is liable to you. If a satisfactory
settlement cannot be reached with the cruise line, you must file
a lawsuit within one year of the incident. The ticket inevitably
will provide that you must present your claim to the cruise line
within six months, and if you don’t, you lose your right to sue
the cruise line forever. Unless your claim is very small, you
should not attempt to negotiate with the cruise line itself. If you
do send notice to the cruise line of your claim, you should send
it and your Bill of Particulars via certified mail and request a
return receipt to prove that you sent notice of your claim in
on time. The cruise line is usually identified at the top of your
ticket. Do not make the mistake of sending notice to the travel
agent or ticket agent. The lawsuit is against the cruise line, and
timely (i.e., usually six months) written notice of the accident
and injury must be sent to it.

If your injuries are serious, or a passenger died on the cruise,
you should contact an attorney promptly after you return home.
An attorney experienced in cruise ship liability will know how,
what, and where to file the notice and Bill of Particulars. Don’t
forget to gather your contract/ticket and all other written
information, pamphlets, brochures, receipts, documents, and
pictures so you will have them ready when you meet with your
lawyer. If you are injured and unable to go to the lawyer’s office,
the lawyer will usually come to your home or the hospital. If
your injuries are serious or a death is involved but you think
you can handle the case yourself, think again. One respected
study of injured and deceased victims demonstrated that, even
after paying the lawyer’s fees, injured persons who had lawyers
handle their case for them ended up with more money in their
pockets than people who handled their cases by themselves.

In cases involving injuries or deaths from dangerous conditions
existing aboard the ship, a cruise line is liable for injuries
to its passengers only where it has actual or implied (“constructive”)
notice of a dangerous condition. Without knowledge of
any unreasonable risk or danger, the cruise line has no duty
to warn of or remove the dangerous condition. In maritime
law, constructive notice of an onboard dangerous condition is
shown when it has existed long enough to give rise to an inference
that crew members must have noticed it.

INJURIES OR DEATHS RESULTING FROM AN EXCURSION OR SIDE TRIP

Suppose you are on a cruise that stops at an island and offers
passengers various excursions, from souvenir shopping to
paragliding or Jet Skiing. One passenger goes out on the Jet
Ski and is injured by another person on a Jet Ski that deliberately
ran into her. Can the injured passenger sue the cruise
line? Generally not.

The contract/ticket usually states that the cruise line is not
liable for injury caused by any act not shown to be caused by
its negligence or the negligence of its employees. The contract/
ticket usually provides that shore excursions and other tours
may be owned and/or operated by independent contractors
and the cruise line makes no representation and assumes no
liability for the wrongful conduct of the provider/operator of
the shore excursion. The contract/ticket may state that if the
passenger takes part in organized activities, whether on the
ship or as part of a shore excursion, she assumes the risk of
injury and the cruise ship is not liable or responsible for it.

DEATH ON THE HIGH SEAS

When a passenger has died, for example, due the negligence
of an employee of a cruise ship, and the incident occurs within
three nautical miles of the United States, the death is said
to have occurred within the state’s territorial waters and the
wrongful death laws of the state apply. However, if the incident
occurs more than three nautical miles off the U.S. coast,
then the action is governed by the Death on the High Seas Act
(DOHSA). In most such cases, DOHSA preempts general maritime
law and limits the types of damages the heirs can recover.

DOHSA was originally enacted in 1920 to make it easier for
widows of seamen to recover damages for future earnings when
their husbands were killed in international waters. The cruise
industry has since used the law to limit damages when a passenger
aboard a cruise ship is killed on the high seas. In 2006,
the Death on the High Seas Act was revised and reenacted
(United States Code Title 46, sections 30301 et seq.). Under
the new provisions, the Death on the High Seas Act states:

When the death of an individual is caused by wrongful act,
neglect, or default occurring on the high seas beyond three
nautical miles from the shore of the United States, the personal
representative of the decedent may bring a civil action in admiralty
against the person or vessel responsible. The action shall
be for the exclusive benefit of the decedent’s spouse, parent,
child, or dependent relative.

DAMAGES YOU CAN SUE FOR UNDER DOHSA

Damages under DOHSA are primarily determined based upon
the actual or projected value of the financial benefit that would
have been received from the decedent, so-called “pecuniary
damages.” A spouse can recover for the actual value of the
financial contribution the deceased spouse would have made
to the family had he lived, reduced by the amount determined
to have provided for the care and maintenance of the decedent
personally. DOHSA does not provide for a loss of society or consortium,
but the surviving spouse and dependents can recover
for the monetary value of the household services the decedent
would have provided. This portion of recovery is based on the
number of hours the beneficiaries would have expected to
receive in services from the decedent and are calculated based
upon an hourly rate for those services projected over the decedent’s
life expectancy.

Under the 2000 Death on the High Seas Amendment, the
victim’s family can recover for the non-pecuniary loss of care,
comfort, and companionship resulting from the death of their
loved one in addition to such pecuniary damages as lost past
and future wages. But recovery is still not permitted either by
the families or the passenger’s estate for the pre-impact pain
and suffering experienced by the passenger in the cruise line
disaster.

Under the 2000 amendment, dependent children can
recover for the value of parental care, nurturing, training, and
guidance they would have received from the deceased parent,
as well as the loss of an expected inheritance. Pecuniary damages
for the death of a loved one include pre-death medical
expenses, as well as funeral and burial costs. However, DOHSA
does not authorize recovery for non-pecuniary losses, such as
pre-death pain and suffering (in most cases), loss of comfort and
society, grief, sorrow, and other “intangible,” or non-pecuniary,
damages. The only damages available to other eligible persons
(parents and dependent relatives) are the lost monetary sums
the deceased person would have contributed to them had he
survived. Under DOHSA, a lost monetary sums claim related
to an older, retired person who is not employed, or a child who
is not working, would likely result in only minimal damages,
since they were not making any or much money or making a
significant financial contribution to the family.

SURVIVAL ACTIONS NOT ALLOWED

DOHSA does not allow for a “survival” action. A survival action
covers the period from the time the person is injured until she
dies. For example, if a person is severely injured and suffers
intense pain for two weeks before succumbing to her injuries,
the survivors are not allowed to bring a survival action to get
compensated for the physical and emotional pain and suffering
their loved one endured before dying. (They would, however,
be able to recover the medical expenses incurred during this
time as they are pecuniary damages.) The exception to the rule
that damages for pre-death pain and suffering are not recoverable
is that, if an injured person files a DOHSA lawsuit and dies
before it is resolved, the personal representative of the deceased
person can be substituted as the plaintiff and the lawsuit is not
otherwise affected.

RESTRICTIONS REGARDING THE FILING OF A DOHSA LAWSUIT

Actions based on DOHSA must be filed within three years,
although cruise lines may shorten that time to as little as one year
in their contract/ticket. DOHSA lawsuits can only be brought by a
deceased person’s personal representative, for the exclusive benefit
of the decedent’s spouse, parent(s), child(ren), and dependent
relative(s). Additionally, before a DOHSA lawsuit may be filed,
the ticket/contract with the cruise line often requires that the
cruise line be given notice within six months after the injury or
death of the passenger, along with a “Bill of Particulars”—a statement
of what injuries the passenger suffered and what the alleged
cause(s) of such injury were or what the bases are for holding the
cruise line liable for the death of the passenger.

Where the DOHSA case must be filed does not depend on
where the person lives. Rather, it depends on where the negligent
act that ultimately caused the death occurred. So if the
person was injured on the high seas but taken to a hospital in
California where he died of the injuries, the case is governed by
DOHSA rather than California state law. In the case of cruise
ships, usually the place(s) where the cruise line can be sued is
specified on the contract/ticket.

Suppose a personal representative files a DOHSA lawsuit on
behalf of a widow and her three children. The case is successful
and a single monetary amount is awarded. How is the award
divided among the four plaintiffs? It is up to the court (i.e., the
judge) to apportion the recovery among those individuals in
proportion to the loss each has sustained.

Aircraft accidents—whether involving a four-seat private small
plane or a commercial jumbo jet—can present difficult questions
of fact and law regarding whether the owner and/or operator
of the plane is legally responsible (“liable”) for injuries or
death arising from his carelessness or the carelessness of his
employees. And even if the owner or operator of the aircraft is
liable for the injuries, there may be laws that limit the amount
of money the injured passenger or the survivors of a passenger
who was killed can recover.

PRIVATE AIRPLANES

Hundreds of thousands of Americans own small aircraft that
they use for pleasure flying, attending fly-ins with airplane
clubs, and taking vacations, among other things. Suppose your
friend owns a small plane and asks you if you’d like to go for a
ride. You enthusiastically agree. However, while in mid-flight,
there is a problem with the engine and it stops the propeller
from turning, and you crash land. Can you sue your friend
for injuries you suffered in the crash? Or in the case of fatal
injuries, can your loved ones sue your friend’s estate for your
“wrongful death?”

A privately-owned noncommercial plane owner does not
regularly charge a fee for transporting persons—whether the
flight is just for a couple of hours of sightseeing or your friend is
taking you from one place to another—and so she is considered
a “private carrier.” As such, your friend has the legal obligation
(“owes you a duty”) to use ordinary and due care in making sure
the plane is airworthy and that she is qualified and fit to be at
the controls and not make any careless errors that would result
in the passenger’s harm or death. In legalese, the “standard of
care” applicable to private pilots flying pleasure craft is one of
“ordinary care” for the safe transportation of their passengers.
Ordinary care is that degree of care that an ordinarily prudent
person would use under like circumstances when charged with
a like duty. Ordinary negligence is a lack of due care; and due
care means commensurate care, under the circumstances,
tested by the standard of reasonable prudence and foresight.

The pilot of the small plane must perform a careful and
thorough pre-flight inspection of the plane to ensure that it is
indeed safe to fly, i.e., airworthy. She must also be familiar with
the weather conditions on the route to your destination. If the
pilot is qualified to fly only under visual flight rules (VFR), she
must avoid flying into a storm, fog, or other inclement weather
that requires an instrument flight rating and the appropriate
instruments, indicators, and gauges in the plane to allow her to
fly under instrument flight rules (IFR).

Because small planes are not required to have cockpit recording
devices or flight data recorders, it may be more difficult to
pinpoint the cause of a small plane’s crash than the crash of
a commercial airliner. However, the National Transportation
and Safety Board (NTSB) has jurisdiction over the investigation
of accidents involving planes of all sizes, and can often
determine the cause of the accident.

COMMERCIAL FLIGHTS

Commercial aviation involves transport “for compensation or
hire.” This includes airlines, commuter airplanes, and charter
aircraft, but does not include corporate aircraft or privately
owned airplanes. Commercial flying is considered to be one of
the safest—if not indeed the safest—means of transportation
going. You have a much greater chance of being injured in an
automobile accident on your way to the airport than you do of
being involved in a commercial aircraft accident. Unfortunately,
when there is a commercial aircraft accident, it tends to be a
major disaster resulting in tens, even hundreds of injuries and
deaths and significant property damage.

When a commercial aircraft is involved in an accident that
results in loss of life or serious personal injuries, there may be
a number of possible defendants who may be legally responsible
(“liable”) for the injuries or death. First there is the airline
company itself. Because commercial airliners offer to the general
public to carry goods or persons and are bound to accept
anyone who offers to pay the “price of carriage” depending on
seat availability, they are considered by law to be “common
carriers.”

As a common carrier, an air carrier and its employees are
required to use the “utmost due care and diligence” for the safe
passage of, and to prevent injuries to, its passengers, and it can
be held financially responsible for injuries resulting from even
its slightest carelessness (“negligence”). Commercial airlines
are bound to do all that, which with human care, vigilance, and
foresight, they can reasonably do under the circumstances to
protect their passengers from harm. “Passengers” include not
only persons who are on board the aircraft when it crashes,
but also passengers who are injured or killed while getting on
(“embarking”) or off (“disembarking”) the plane. However, as
to other planes and persons who are not passengers, the airliner
owes them only the ordinary standard of care, that is, the duty
not to expose them to an unnecessary risk of harm (ordinary
negligence).

A common carrier is one who holds itself out to the public
as engaged in the public business of transporting persons for
compensation from place to place, offering its services to those
members of the public generally who choose to employ it and
pay its charges. The distinctive characteristic of a common carrier
is that it undertakes to hold itself out to the public, either
expressly or as a course of conduct, as a business to carry for
hire on a uniform tariff all persons wanting transportation, so
long as it has the room to accommodate them.

“Holding oneself out to the public” means that the carrier
in some way makes it known to its prospective patrons the fact
that its services are available. This may be done in various ways,
as by advertising, solicitation, or the establishment in a community
of a known place of business where requests for service
will be received. However the result may be accomplished, the
essential thing is that there must be a public offering of the
service, or, in other words, a communication of the fact that
service is available to those who may wish to use it.

For a transporter of passengers such as an airplane to be a
common carrier, it is not necessary that it have a regular schedule
of flights, a fixed route, or a relatively unlimited carrying
capacity. For example, a carrier that provides air transportation
may limit its operations solely to charter flights and still be
legally considered to be a common carrier. Important factors
used to determine whether an operation is a common carrier
include an established place of business, engaging in the operation
as a regular business and not merely as a casual or occasional
undertaking, and a regular schedule of charges.

To be a common carrier, it is not necessary for the carrier to
leave one place and transport its passengers to another place.
A sightseeing tour that embarks from and returns to the same
point can be considered a common carrier. Hence, an airplane
pilot who offered sightseeing flights to the ocean and back was
held to be a common carrier, even though the flights took off
and landed at the same airport. Similarly, a company that provides
sightseeing helicopter rides for a fee is a common carrier,
even though it takes off and lands at the same helipad.
Commercial hot air balloons that advertise or otherwise promote
their business of sightseeing trips from Point A to Point B
are also considered common carriers.

Although common carriers must use the utmost care and
diligence for their passengers’ safe carriage, must provide
everything necessary for that purpose, and must exercise to
that end a reasonable degree of skill, a common carrier is not
an insurer of its passengers’ safety, and does not give them an
absolute guarantee that nothing will go wrong and they will not
be injured or killed in any way whatsoever.

The airline, as a common carrier, is also legally required
to provide vehicles (in this case, aircraft) that are safe and fit
for the purpose to which they are put, and is not excused for
default in this respect by any degree of care. Also, the passenger’s
motive for seeking transportation is not relevant in
determining the carrier’s liability. The common carrier owes
the same high duty of utmost care whether the passenger rides
for pleasure or business. A passenger’s purpose in purchasing
transportation, whether it be to get from one place to another
or to travel simply for pleasure or sightseeing, does not determine
whether the provider of the transportation is a carrier for
reward. Undisclosed purposes on the passengers’ part do not
affect the duty of the common carrier to exercise the highest
degree of care for the safety of the passenger.

The major causes of a commercial aircraft accident are:

  • Pilot error
  • Mechanical failure due to faulty equipment
  • Bad weather
  • Failing to properly de-ice the plane before take-off
  • Air traffic controller error
  • Improper maintenance or repair of the aircraft or its
    component parts
  • Violating Federal Aviation Administration (FAA)
    regulations
  • Structural or design problems with the aircraft
  • Sabotage (bombs, hijacking, shoot-downs)

Other causes include improper loading of the aircraft and
fuel contamination.

The airline company may be held responsible for the errors
of its pilots in operating the aircraft, its maintenance crew for
failing to maintain the aircraft properly or failing to detect
a crack or other structural problem with the aircraft, or its
employees for improperly loading or over-loading the aircraft.
The manufacturer of the aircraft or supplier of a component
part may be held liable under the doctrine of “strict product
liability” (discussed in Chapter 21, “Defective Products”) for
any and all defects in the manufacture or design of the plane
or its defective parts that caused or contributed to the accident.
Similarly, the United States government may be liable
where the accident is due to the negligence of one or more of its
employees, usually the air traffic controllers. In a collision with
another aircraft, the other aircraft may be sued if its pilots were
negligent in failing to avoid the crash.

An all-too-frequent yet completely preventable cause of
injuries and deaths in aircraft accidents involve “runway incursions.”
The FAA defines a runway incursion as “any occurrence
at an airport involving an aircraft, vehicle, person, or object
on the ground that creates a collision hazard or results in loss
of separation with an aircraft taking off, intending to take off,
landing, or intending to land.” Runway incursions are frequently
the result of the carelessness (“negligence”) of air traffic
controllers in managing the flow of air traffic on the ground.
Research has shown that the first three minutes of a flight
and the last eight are when about 80 percent of airplane accidents
take place. This is often referred to as the rule of “Plus
Three/Minus Eight.”

A professor in England analyzed the seating charts of more
than a hundred plane crashes and interviewed 1,900 survivors
and 155 cabin-crew members. He found that the people most
likely to survive a plane crash are those sitting right next to the
exit row or one row away. He discovered that survivors usually
move an average of five rows before they can get off a burning
aircraft. The professor’s study concluded that beyond a fiverow
cutoff from the exit, your chances of surviving an aircraft
fire are greatly reduced.

The National Transportation Safety Board (NTSB) is the
governmental agency vested by Congress with the power to
investigate all civilian aircraft accidents, whether it be a major
airline disaster involving hundreds of deaths or a small, singleengine
plane that goes down. Since its creation in 1967, the
NTSB has investigated over 115,000 civilian aircraft accidents.
After it has made a thorough investigation of the accident, the
NTSB releases its report identifying the cause(s) of the crash—
if a cause can be determined—and issues safety recommendations
designed to prevent future accidents from the same cause.

In conducting its investigation, the NTSB gathers data from
the plane’s cockpit voice recorder and flight data recorder if
the aircraft was equipped with them. In major air disasters,
the NTSB attempts to piece together the remaining parts of
the plane in a hangar or other facility to try to reconstruct
the plane and find the cause of the accident. The Federal
Aviation Administration (FAA) usually also takes part in the
investigation to determine what accident prevention steps it
should implement to prevent another occurrence of the same
cause. The FAA provides the NTSB with technical advice about
the aircraft and flight conditions as well.

Commuter planes and regional jets are generally mid-sized
planes that connect smaller cities with large ones having major
airports. On February 12, 2009, during Continental Connection
Flight 3407, a flight operated by Colgan Air under contract to
Continental, a commuter turboprop crashed into a home outside
Buffalo, New York, killing 50 people—45 passengers, four
crew members, and one person on the ground in the house. The
plane involved was a Bombardier Dash 8 Q400, a 74-seat twinengine,
medium-range turboprop airliner. The plane was less
than one year old and had flown for only about 1,500 hours.

Early speculation was that a buildup of ice on the wings was
the most probable cause of the tragedy. However, approximately
a month and a half after the disaster, the NTSB investigators
stated that ice was not the likely cause of the crash and
that it was looking at the actions of the pilot immediately before
the crash. It was reported that the Flight Data Recorder indicated
that the pilot’s control column—basically, the device used
to steer the plane—moved sharply backward, pitching the nose
of the turboprop upward, causing the aircraft to stall. It is hard
to recover from a stall like this, and the crew had only 1,600 to
1,800 feet to do so before the plane hit the ground. This was the
deadliest American disaster in more than five years.

A fairly recent crash involving a commuter aircraft happened
in the early morning hours of August 27, 2006. During Comair
Flight 191, marketed as Delta Connection Flight 5191, a 50-seat
Bombardier Canadair Regional Jet CRJ-100ER bound for
Atlanta crashed while trying to take off from Blue Grass Airport
in Fayette County, Kentucky, four miles west of Lexington.
Forty-nine of the 50 occupants of the plane perished in the
crash, with only the first officer (the copilot) surviving the crash.

In the Comair disaster, Flight 5191 was cleared for take-off on
Runway 22. However, for some reason, the aircraft attempted to
take off on Runway 26, a much shorter runway. The aircraft ran
off the end of the runway, crashed through the airport perimeter
fence, and came to rest in trees on an adjacent horse farm.
The aircraft was destroyed by impact forces and a post-crash
fire. The NTSB determined that the probable cause of the disaster
was the flight crew’s failure to use available cues and aids to
identify the aircraft’s location on the airport surface during taxi,
as well as their failure to cross-check and verify that the aircraft
was on the correct runway before take-off. Contributing factors
were the flight crew’s non-pertinent conversations during taxi,
which resulted in a loss of positional awareness and the FAA’s
failure to require that all runway crossings be authorized only
by specific air traffic control clearances.

In 1993, a commercial jet at Blue Grass Airport was cleared
for take-off on Runway 22 but mistakenly went to the shorter
Runway 26 instead. Fortunately, tower personnel noticed the
mistake and cancelled the aircraft’s take-off clearance just as
the crew realized their error. The aircraft subsequently made
a safe departure from Runway 22. On September 1, 2006, the
FAA issued a Safety Alert for Operators (SAFO), titled “Flight
Crew Techniques and Procedures that Enhance Pre-takeoff
and Takeoff Safety.” This alert highlights existing FAA aircraft
ground operation guidance and reminds flight crews that maximum
attention should be placed upon maintaining “situational
awareness” during taxi operations.

DOMESTIC FLIGHTS

A domestic flight is one occurring entirely within the United
States, with no stopovers in another country, whether for refueling
or to let off or take on passengers. Unlike crashes involving
international flights, passengers on domestic flights do not
face any limitations on the amount of recovery the passengers
can receive for their injuries or the survivors can receive for the
death of their loved ones. Additionally, an injured passenger
on a domestic flight can recover damages for purely emotional
and mental injuries without having to prove any accompanying
bodily injury, as she must do to recover such damages on an
international flight.

When a passenger on a domestic commercial flight is killed
in a crash, it may be possible for her next of kin to bring a “survival”
action to recover monetary damages for the pain, suffering,
and mental anguish the passenger experienced from the
time she realized that something was seriously wrong with the
flight until the time of her death.

When a commercial aircraft crashes, causing a loss of life or
serious injuries, the air carrier and its insurance company will
usually contact the injured passenger or next of kin right away
and provide immediate medical or grief support. The airliner
will often pay for the hotel costs of a deceased passenger’s next
of kin and help make and pay for funeral arrangements. The air
carrier’s representative or its insurance company’s agent will
frequently tell the survivors that there is no need for them to
obtain a lawyer to represent them, as they will do right by them.

The insurance company may offer to pay what appears to
the family to be a fair settlement. Do not accept any settlement
offer from an insurance company without the advice of
a skilled and experienced aviation accident lawyer. A grieving
family is susceptible to accepting a much lower offer than an
experienced aviation lawyer can get for them. Although the
airliner or its insurance company will try to dissuade you from
getting a lawyer saying that a lawyer’s fee will come out of your
share, the truth is that studies consistently show that victims of
accidents end up with more money in their pockets even after
paying the lawyer his fee.

An experienced personal injury law firm can also help with
seeing to it that you obtain appropriate and thorough medical
care for your physical, emotional, and psychological injuries
suffered as a result of the accident. They can also do everything
possible to ensure that you obtain full compensation for your
medical expenses, pain and suffering, mental anguish, property
damage, lost wages, psychological injuries, loss of society, affection,
and comfort, and all of your other injuries and damages.

INTERNATIONAL FLIGHTS

If you are injured or a loved one killed in an international flight,
your rights are much more complicated than if you or your
loved one were flying on a domestic flight. Up until 1997, the
maximum recovery for damages due to injuries to or death of
a passenger on an international flight was $75,000. This limit
came from a series of treaties and agreements between airline
companies and was known as the “Warsaw System.”

In 1929, a treaty was formed in Warsaw, Poland that was
intended to protect the new air industry from having to pay
excessive damages in the event of an accident. Under its terms,
the maximum amount an injured passenger or the family of a
deceased passenger could recover was 125,000 francs (about
$8,300 in U.S. currency at the time), unless the injury or death
was caused by the “willful misconduct” of the airline or its
employees, something that was extremely difficult to prove.
According to the terms of the Warsaw Convention, an air carrier
could escape liability by proving that it took “all necessary
measures to avoid the damages or it was impossible for him or
them to take such measures.”

In return for the limitation on the amount of money the air
carrier would have to pay to compensate injured passengers or
families of deceased passengers, the Warsaw Convention created
a basis of liability (a “cause of action”) and established a
presumption of air carrier liability for passenger death or bodily
injury resulting from an accident occurring while the passenger
was on board the aircraft or was in the process of embarking or
disembarking the aircraft.

In 1955, the Hague Protocol increased the limit of liability to
approximately $20,000. Then in 1966, in what is known as The
Montreal Agreement, international air carriers agreed to enter
into a “special contract” with passengers, giving them higher
limitations on liability on international flights originating, terminating,
or having a connection point in the United States.
As a result of the Montreal Agreement, the damage amount on
such international flights was raised to $75,000. The air carriers
also agreed not to invoke the defense of having taken “all
necessary measures,” and they agreed as well that the $75,000
limitation would not apply if the airline or an employee engaged
in willful misconduct that injured or resulted in the death of a
passenger.

The Warsaw System led to some unfair results. Suppose
two women were sitting side-by-side in an airliner. The plane
was traveling from Los Angeles to London with a stopover in
Bangor, Maine. One of the women planned on getting off the
plane in Bangor; that was the end of her trip. The other woman
intended to fly all the way to London. Now suppose that due to
mechanical problems, the plane crashes while flying over the
United States, killing all on board. For the woman who planned
to end her trip at Bangor, Maine, her survivors could bring a
wrongful death case against the airline with no limits on the
amount of money her survivors could recover. However, for the
passenger who intended to continue on the flight to London,
the most her survivors could recover under the Warsaw System
was $75,000.

In 1996, some 30 years after the Montreal Agreement, at
the urging of the United States, many international air carriers
considered whether their liability limits were too low.
Finding that to be the case, a number of international air
carriers, through the International Air Transport Association
(IATA) and in cooperation with the United States Department
of Transportation, signed a series of agreements designed to
change the limits of liability for injured or killed passengers.
Over 120 airlines signed the agreement, which removed the
$75,000 limit of liability and allows passengers to recover
full compensatory damages for physical injury or death in an
“accident,” according to the laws of the passenger’s “domicile,”
which is usually the permanent place of his residence. The IATA
Intercarrier Agreement provides that the international air carrier
must pay up to 100,000 Special Drawing Rights (SDRs)
to each injured passenger or the survivors of a deceased passenger
without raising any defenses. (Special Drawing Rights
are a mix of currency values established by the International
Monetary Fund, and on June 1, 2009, the exchange rate was 1
SDR = 1.548 U.S. dollars.) This is a form of strict or absolute
liability, in that the victims need not prove the air carrier was
careless or negligent in any way to recover up to 100,000 SDRs.
(approximately $154,800.00 U.S. currency). The international
air carriers voluntarily waived the Warsaw System limits of
liability for passenger injury and death, and allowed victims to
make a claim for damages equal to what they could make if it
had been a domestic flight. However, the Montreal Agreement
continued the prohibition against recovering damages for emotional
injuries and mental distress and anguish without some
type of physical injury. It also continued the rule barring the
recovery of punitive damages from the air carrier.

Then, in 1999, came The Montreal Convention for the
Unification of Certain Rules for International Carriage by Air.
The Montreal Convention is the new uniform and exclusive
recovery method for applicable recoveries and purports to
replace the entire patchwork Warsaw System. The Montreal
Convention applies to all “international carriage” of persons,
baggage, or cargo performed by aircraft for reward. It applies
equally to gratuitous carriage by aircraft performed by an air
transport undertaking.

Paragraph 1 of Article 17 of the Montreal Convention states
that “[t]he carrier is liable for damages sustained in the case
of death or bodily injury of a passenger upon condition only
that the accident which caused the death or injury took place
on board the aircraft or in the course of any of the operations of
embarking or disembarking.”

The Montreal Convention of 1999 sets up a two-tiered system
of liability. The first tier requires the air carrier to pay up to
100,000 Special Drawing Rights (SDRs) regardless of whether
or not the air carrier was negligent or otherwise at fault in any
way. All the injured passenger or survivors of a deceased passenger
need prove is that the passenger was in fact injured or
killed, and that such injury or death was caused by an “accident.”
This is a form of absolute or strict liability, except that
the air carrier can raise the defense that the passenger was also
at fault (“contributory” or “comparative” fault) for his injuries
or death. The second tier (i.e., claims above 100,000 SDRs)
allows for unlimited recovery, up to the amount the victim can
prove he suffered as a result of the injury or death. However,
the air carrier is not liable if it can prove that the injury or death
was not due to the negligence or other wrongful act or omission
of the air carrier or its employees, or that the injury or death
was solely due to the negligence or other wrongful acts or omissions
of a third party.

The Montreal Convention went into force on November 4,
2003, the 60th day following the date of deposit of the instrument
of ratification, acceptance, approval, or accession by
the 30th country, the United States on September 5, 2003.
As of August 2009, there were 92 signatories to the Montreal
Convention, including most European countries, the European
Union, Japan, Canada, Australia, China, Korea, Mexico, and
the United States. The Montreal Convention has been ratified
by those countries that cumulatively make up the largest share
of international air transport. Under the Montreal Convention,
the air carrier may agree to higher limits of liability, or even no
limits on liability; however, it may not undercut the limits provided
by the Montreal Convention. Additionally, the air carrier
may waive defenses under the Montreal Convention.

Two conditions must exist in order to hold an airline liable
for injuries or deaths arising in an international flight. First,
there must be an “accident,” which the United States Supreme
Court has defined as a “happening or event”—including negative
conduct, such as an omission or failure to do something,
such as the failure of airline personnel to respond to a medical
request of a passenger, resulting in the passenger’s injury or
death—that is external to the passenger, unexpected from the
passenger’s point of view, and not associated with the normal
operation of the airplane. Second, there must be an actual
physical or bodily injury. Mental anguish or emotional distress
cannot be the sole basis for a claim. The Montreal Convention
also does not allow the recovery of “punitive, exemplary or
any non-compensatory damages.” As mentioned above, the
Montreal Convention also gives the air carrier the right to
raise the passenger’s own wrongful conduct (“contributory” or
“comparative” negligence) as a defense to reduce or eliminate
its liability.

Victims of air crash disasters are usually entitled to receive
the full economic (“pecuniary”) damages suffered. Pecuniary
damages are those items of damage upon which a value can be
reasonably placed, such as hospital and medical expenses, lost
past and future wages, lost earning power, etc. Non-economic
damages (“non-pecuniary”) include such things as pain and
suffering in the case of an injured passenger, and the loss of
care, comfort, and society in the case of a passenger who is
killed. Punitive and similar type damages are not recoverable.
The right to all claim types is extinguished if not brought within
two years from the arrival or date of scheduled arrival. The time
limit is an absolute “condition precedent” to bringing a lawsuit
and is not subject to extension.

The Montreal Convention of 1999 applies only if the trip
involves a point of origin and point of ultimate destination
in countries that are parties to the Convention. For instance,
suppose the country Xanadu is not yet a party to the Montreal
Convention. An Air Xanadu flight ticketed from Xanadu to San
Francisco International Airport with a return to Xanadu is not
governed by the Montreal Convention, since Xanadu is not a
party to the Convention. However, a passenger on an Air Xanadu
flight ticketed from San Francisco to Xanadu with a return to
San Francisco would be governed by the Montreal Convention
of 1999, because the point of origin and point of ultimate destination
is in the United States (a contracting State), with an
agreed stopping place in Xanadu (a non-contracting State).

The Montreal Convention and Warsaw System apply only
to international air carriers and do not control damage claims
by victims against other defendants. For instance, if the crash
is due to a faulty design or manufacturer of a component in
the airplane, the victim or his survivors can sue the manufacturer
of the airplane and/or the manufacturer and supplier of
the component part for all damages they can prove, without
limitation. Airports, private security companies, and other
service providers can be sued without having to worry about
the Montreal Convention or Warsaw System’s limitations on
damage. Indeed, even the United States can be sued without
limitation for, e.g., the negligence of its air traffic controllers.

FATAL CRASHES AT SEA

If a passenger dies in an aircraft crash on or above the “high
seas,” the Death on the High Seas Act (DOHSA) applies in
United States courts. Under admiralty law, the survivor’s
damage was previously restricted to pecuniary loss only, that
is, the financial loss the family suffers as the result of the death,
reduced by the amount of expenses that would be incurred by
the decedent. However, under the 2000 Death on the High Seas
Amendment, the victim’s family can now recover for the nonpecuniary
loss of care, comfort, and companionship resulting
from the death of their loved one in addition to such pecuniary
damages as lost past and future wages. But recovery is still not
permitted either by the families or the passenger’s estate for
the pre-impact pain and suffering suffered by the passenger
in the airline disaster. The “high seas” are defined as the seas
and oceans more than 12 miles from the shore of the United
States and its islands. In most other countries, the high seas
are defined as those seas more than three nautical miles off the
country’s shore.

If the aircraft crashes within 12 nautical miles of the shores
of the United States and results in death, then the cases will be
determined using the laws in effect in the various states and
under federal law. Crashes on or above the high seas outside
12 nautical miles from the shores of the United States will fall
within the Death on the High Seas Act.

PARTICIPATION IN RECREATIONAL SPORTS

Suppose you’re playing in a friendly game of pickup basketball
at your local park. Another player misses a shot and you go
for the ball on the rebound. However, a player on the opposing
team goes after the ball, too. The other player starts flailing
his arms and hits you in the eye with an elbow, causing you to
become blind in that eye. Can you sue the other player for the
lost vision in your eye and all that comes with it? Well, you can
sue him but you won’t win.

According to the California Supreme Court, careless conduct
(“negligence”) by other players is an inherent risk in
many sports, and holding co-participants liable for resulting
injuries or deaths would discourage vigorous competition. The
California Supreme Court held that those involved in a sporting
activity do not have a duty to reduce the risk of harm that is
inherent in the sport itself. They do, however, have a duty not
to increase that inherent risk through behavior that is intentional
or is “so reckless as to be totally outside the range of the
ordinary activity involved in the sport.”

Whether a person assumes the risk of being injured depends
on the nature of the sport or activity in question and the person’s
relationship to that activity. In the context of sports, the question
turns on whether a given injury is within the “inherent risk
of the sport.” Conduct is totally outside the range of ordinary
activity involved in the sport if the prohibition of that conduct
would neither deter vigorous participation in the sport nor otherwise
fundamentally alter the nature of the sport.

In a landmark case, a player carelessly knocked over a coparticipant
and stepped on her hand during a touch football
game. The California Supreme Court ruled that the conduct was
an inherent risk of the sport and therefore rejected the injured
player’s complaint for monetary damages on the basis that she
had assumed the risk of being injured. The Court reasoned that
vigorous participation in such sporting events likely would be
chilled if legal liability were to be imposed on a participant on
the basis of his ordinary careless conduct.

By choosing to participate in the sport, a person assumes
that level of risk inherent in the sport. In a sports context, a
court does not look at which risks a particular participant subjectively
knew of and chose to encounter. Rather, the court
evaluates the fundamental nature of the sport and the offending
player’s role in or relationship to that sport in order to determine
whether the player owed a duty to protect a participant
from the particular risk of harm.

The degree of the risk anticipated varies from sport to sport.
While bodily harm is expected in prize fighting, the fighters do
not consent to or assume the risk of being stabbed or shot in
the ring. At the other extreme, in bridge or table tennis, bodily
harm is not contemplated at all. As one court stated: “The correct
rule is this: If the defendant’s actions, even those which
might cause incidental physical damage in some sports, are
within the ordinary expectations of the participants—such as
blocking in football, checking in hockey, knock-out punches
in boxing, and aggressive riding in horse racing—no cause of
action can succeed based on a resulting injury.”

For example, in baseball, a batter is not supposed to carelessly
throw the bat after getting a hit and starting to run to
first base. However, the “assumption of risk” doctrine recognizes
that “vigorous bat deployment” is an integral part of the
sport of baseball and a risk players assume when they choose
to participate. Especially in the heat of competition, and in an
effort to get to first base quickly, a batter may be careless in
getting rid of the bat. Under the assumption of risk doctrine,
the hitter does not have a duty to other players or spectators to
avoid carelessly throwing the bat after getting a hit.

A chilling effect on players participating in the sport would
result from imposing liability on players for ordinary careless
conduct. The California Supreme Court stated that “even
when a participant’s conduct violates a rule of the game and
may subject the violator to internal sanctions prescribed by the
sport itself, imposition of legal liability for such conduct might
well alter fundamentally the nature of the sport by deterring
participants from vigorously engaging in activity.” Accordingly,
the California Supreme Court has held that co-participants’
limited duty of care is to refrain from intentionally injuring
one another or engaging in conduct that is so reckless as to be
totally outside the range of the ordinary activity involved in the
sport.

It doesn’t make a difference if one of the participants is penalized
for such actions by the officials. Routine rule violations,
such as clipping in football, low blows in boxing, and fouls in
horse races are common occurrences and within the scope of
the athletes’ expectations. In an intercollegiate baseball game,
a pitcher on the Rio Hondo Community College team hit a
batter on the Citrus Community College team with a normal
pitch. The next inning, the Citrus pitcher allegedly retaliated by
hitting a Rio Hondo batter with a “beanball.” The Rio Hondo
player sued the Citrus Community College District for negligence.
The California Supreme Court ruled that the suit was
barred by the assumption of risk doctrine, stating that while it
is against the rules of baseball to intentionally throw at a batter,
being intentionally thrown at is a fundamental part and inherent
risk of the sport of baseball. The Court commented that it
is not the function of personal injury (“tort”) law to police such
conduct.

As for non-contact sports such as golf, the California Supreme
Court held that the “assumption of risk” doctrine applies and
that being struck by a carelessly hit golf ball is an inherent
risk of the sport. In determining whether the defendant acted
recklessly, the trier of fact (i.e., the jury) must consider both
the nature of the game and the totality of circumstances surrounding
the shot. In making a golf shot, the player focuses on
the ball, unlike other sports in which a player’s focus is divided
between the ball and other players. That is not to say that a
golfer may ignore other players before making a shot.

Ordinarily, a golfer should not make a shot without checking
to see whether others are reasonably likely to be struck. Once
having addressed the ball, a golfer is not required to break his
concentration by checking the field again. Nor must a golfer
conduct a head count of the other players in the group before
making a shot. Many factors will bear on whether a golfer’s conduct
was reasonable, negligent, or reckless. Relevant circumstances
may include: (1) the golfer’s skill level, (2) whether topographical
undulations, trees, or other impediments obscured
his view, (3) what steps he took to determine whether anyone
was within range, and (4) the distance and angle between a
plaintiff and defendant.

In one case, a student rock climber was killed after a fall
allegedly caused by his instructors’ improper placement of
rope anchors. The court rejected the survivors’ lawsuit, stating
that “Falling, whether because of one’s own slip, a coclimber’s
stumble, or an anchor system giving way, is the very
risk inherent in the sport of mountain climbing and cannot
be completely eliminated without destroying the sport itself.”
That court further found that the defendant met the burden
of proving that the climber was not taken beyond his level of
experience and capability in the activity culminating in his fall,
and that the risk to him was not beyond that inherent in any
climbing activity.

A sport instructor may be found to have breached a duty of
care to a student or athlete only if the instructor intentionally
injures the student or engages in conduct that is reckless in the
sense that it is totally outside the range of the ordinary activity
involved in teaching or coaching the sport. A 14-year-old novice
on a school swim team broke her neck during a meet when she
executed a practice dive into a shallow racing pool located on
school property. The California Supreme Court held that the
case should go to trial as a jury could find that the coach’s conduct
was reckless in that it fell totally outside the range of ordinary
activity involved in teaching or coaching the sport.

The injured girl presented evidence of the coach’s failure to
provide her with training in shallow-water diving, his awareness
of the girl’s intense fear of diving into shallow water, his
conduct in lulling the girl into a false sense of security by promising
that she would not be required to dive at competitions, his
last-minute breach of this promise in the heat of competition,
and his threat to remove her from competition or at least from
the meet if she refused to dive. The girl’s evidence also supported
the conclusion that the maneuver of diving into a shallow
racing pool, if not done correctly, posed a significant risk
of extremely serious injury, and that there is a well-established
mode of instruction for teaching a student to perform this
maneuver safely. The court found that the evidence presented
by the injured girl raised a disputed issue of fact as to whether
the coach provided any instruction at all to the girl with regard
to the safe performance of such a dive, as well as to the existence
and nature of the coach’s promises and threats. Thus, the
court concluded the girl was entitled to a trial in front of a fair
and impartial jury and her lawsuit should not be thrown out.

In the context of snow skiing, the courts have held that the
participant assumes the risk of being injured by moguls on a
ski run, snow-covered stumps, variations in terrain, changes in
surface or subsurface snow conditions, bare spots, other skiers,
snow-making equipment, and many other hazards which must
be considered inherent in the sport of skiing. Generally, a skier
is not liable for running into another skier, because it is not
done recklessly or deliberately, but is usually the result of mere
ordinary carelessness (negligence). However, while inadvertent
collisions are an inherent risk of skiing and therefore assumed
by the participants, a skier does not assume the risk that other
skiers will ski while intoxicated. The increased risks of injury
created by the consumption of alcohol are not inherent in the
sport of skiing.

However, not all risks of being injured while using the slopes
are assumed. For instance, a skier who was struck and injured
by a runaway snowboard that was not equipped with a retention
strap was not barred from suing the careless snowboarder.
The court held that the assumption of risk doctrine was not an
absolute bar to recovery on the facts presented, as the jury could
find that the lack of a retention strap increased the risk of harm
to the victim beyond what was inherent in the sport of skiing.

Although a snow skier or snowboarder assumes the risks
inherent in the activity, that does not include assuming the risk
that he may be injured by a defective chair lift. A snow skier or
snowboarder puts his life and limbs in the hands of the owner
or operator of a chair lift, gondola, or tram that takes people up
to the top of the mountain. In California, a chair lift or tram is
deemed to be a “common carrier” of skiers and others up (or
down) the hill. As such, it owes its riders the duty of utmost
care and diligence. A cable car company that, for a fee, shuttles
passengers up the snowless slopes of a mountain for downhill
bike riders, sightseeing, and other activities is a common carrier,
too.

A commercial operator of a horse-riding facility has the
duty to supply horses that are not unduly dangerous, to warn
patrons renting a given horse of its predisposition to behave in
certain ways which add to the ordinary risk of horse riding, to
not provide faulty saddles, and to not provide dangerous trails.
Being cut by the blade of another skater during a group figure
skating session is an inherent risk of the sport, and the injured
skater cannot recover for personal injuries under the doctrine
of “primary assumption of risk.”

Bungee jumping is a popular pastime for many people who
want to feel the experience of flying and the freedom it brings.
Unfortunately, sometimes the bungee cord is not secured
properly, or otherwise fails to stop the rider’s fall, causing the
rider to free-fall a total of hundreds of feet, resulting in serious
injuries, even death. Owners and operators of bungee jumping
companies must check the bungee cord regularly to ensure that
it is still safe and sound. The person who is actually securing the
bungee cord to the stationary surface—such as a bridge—must
make sure that the bungee cord is properly fastened and will
not slip or break when the person stretches the bungee cord
to the limit, putting the most pressure on the site where the
bungee cord is secured.

The operator must also make sure that the bungee cord and
equipment are property fastened to the jumper’s leg and foot,
ensuring that it will not break or the jumper’s leg will not come
out of the equipment. Often, a person who participates in a
bungee jump is given a “written release of liability” or waiver
to sign, in which she promises not to sue the bungee-jumping
company if she is injured in the jump, even if the injury is due
to some carelessness (negligence) on the bungee-jumping
company’s part. Such releases of liability, sometimes called a
waiver, are discussed below.

NEGLIGENT DESIGN OF COURSE

Although a person may be barred from recovery on the basis
that he assumed the risks inherent in the sport, one risk that
is not assumed is that the playing field or course has been
negligently designed, thereby increasing the risk of harm
to the participant beyond what is inherent in the sport. This
was the case in a lawsuit that involved a 17-year-old boy who
was injured while racing his bicycle on the defendant’s bicycle
motocross (BMX) course. By its nature, BMX racing includes
bumps, jumps, turns, straight-aways and obstacles. The boy
was injured on the “million dollar jump,” which consisted of
two bumps joined together in a saddle-like configuration.

Both parties (the victim and the BMX operator) submitted
declarations of experts that conflicted on the cause of the
injury. The injured boy’s expert stated that the “million dollar
jump” was defectively designed in that the slope of the first
hill of the jump was too steep and caused the rider’s center of
gravity to rise too abruptly, leading to the accident. The BMX
operator’s expert witness submitted a declaration in which he
stated that the jumps at the BMX park were of the type that
could be expected at any BMX track. The court held that there
is a duty to refrain from using BMX jumps that by design pose
an extreme risk of injury, and it was a question of fact for the
jury to decide whether that duty was breached by virtue of the
design of the million dollar jump.

The court stated that it is not unreasonable to expect a BMX
course to refrain from utilizing jumps that by design create an
extreme risk of injury. Certainly the jumps and falls are inherent
to the sport, and there is no duty to eliminate the jumps
entirely. Nor is there a duty to protect a participant from injury
arising from reasonably designed jumps. However, the sport
does not inherently require jumps that are designed in such a
way as to create an extreme risk of injury. The court concluded
that a duty to exercise due care is owed to a bicycle racer injured
on a bicycle jump that by its design creates an extreme risk of
injury.

Likewise, a golfer assumes the risk that she may be hit by an
errant golf ball; however, she doesn’t assume the risk that the
golf course has been negligently designed in such a way that
increases the risk of being injured beyond what is reasonably
expected.

EXPRESS RELEASES OF LIABILITY

Before you are allowed to participate in a recreational activity—
be it rock climbing, horse riding, participating in a baseball
league, a bicycle race, a running marathon, bungee jumping, or
parachuting, for example—you may be asked to sign a written
“express release of liability” (also known as a “hold harmless”
contract, a waiver agreement, or an exculpatory clause). An
express release of liability is an assumption of risk by which
you, in advance, take your chances of injury from known (and
sometimes unknown) risks arising from what the other party is
to do or leaves undone. A well-drafted release relieves the other
party of his legal duty to you; that is, he cannot be held liable
to you even if he was careless (“negligent”). However, a release
that does not clearly and unambiguously inform an ordinary
person untrained in the law that its purpose and effect is to
relieve the owner/operator of the business of responsibility is
not enforceable and will not bar a lawsuit by a person who was
injured by the other party’s negligence.

A release—no matter how well written—cannot relieve the
party from wrongdoing more serious than negligence, such
as gross negligence, recklessness and intentional misconduct.
The release agreement is usually given on a take-it-or-leaveit-basis,
and you have no negotiating or bargaining power; the
release is valid unless it involves the “public interest.” However,
California courts have uniformly refused to find a public interest
or to invalidate releases from liability for ordinary negligence
for injuries that occur in the context and course of sports
and recreational activities.

Just because you may have signed a release or received a
pass or ticket with a waiver or release written on it does not
necessarily mean that you are out of luck. To be effective to
relieve a party from future carelessness or misconduct, the
release must be clear, explicit, and comprehensible in each of its
essential details. If the language is ambiguous or convoluted so
that it does not clearly notify you that you cannot sue the party
even if he was negligent, the release is invalid. If the release is
printed in fine print on a portion of a document you are not
likely to notice, the release may not apply. Under contract law,
if there is any ambiguity about the meaning of a word, phrase,
sentence, or entire paragraph, it is construed against the party
that drafted the release.

A release that was both broad and explicit and through
which a rock climber not only expressly acknowledged and
assumed “all the risks” of rock climbing activities, both known
and unknown, “whether caused or alleged to be caused by the
negligent acts or omissions” of the rock climbing facility was
enforceable and provided a complete defense to the lawsuit
filed by a seasoned rock climber who was injured in a fall.

INJURIES TO SPECTATORS AT SPORTING EVENTS

Foul balls hit into the spectators’ area clearly create a risk of
injury at baseball games. But if such foul balls were to be eliminated,
it would be impossible to play the game. Thus, the risk of
being hit by a foul ball is an inherent risk to spectators attending
baseball games. The owner of a baseball stadium has no
duty to protect spectators from the natural hazards generated
by the way in which the game itself is played. In determining
whether an individual should be compensated for her injury
and in crafting a rule that would permit or reject such compensation,
there is a group of persons other than the immediate
parties whose interests are worthy of consideration. Those are
the literally millions of people who attend baseball games all
over the country.

In one lawsuit by a spectator who was hit by a foul ball, the
court stated,

As we see it, to permit plaintiff to recover under the circumstances
here would force baseball stadiums to do one of
two things: (1) place all spectator areas behind a protective
screen thereby reducing the quality of everyone’s view, and
since players are often able to reach into the spectator area
to catch foul balls, changing the very nature of the game
itself; or (2) continue the status quo and increase the price
of tickets to cover the cost of compensating injured persons
with the attendant result that persons of meager means
might be “priced out” of enjoying the great American pastime.
To us, neither alternative is acceptable. In our opinion
it is not the role of the court to effect a wholesale remodeling
of a revered American institution through application
of [personal injury] law.

One of the natural risks assumed by spectators attending
professional baseball games is that of being struck by batted
or thrown balls. The management is not required, nor does it
undertake, to insure patrons against injury from such sources.
All that is required is the exercise of ordinary care to protect
patrons against such injuries and, in doing so, the management
is not obliged to screen all seats, because many patrons prefer
to sit where their view is not obscured by a screen. Moreover,
the management is not required to provide screened seats for
all who may apply for them. The duty imposed by the law is
performed when screened seats are provided for as many as
may be reasonably expected to ask for them on any ordinary
occasion.

If a spectator chooses to occupy an unscreened seat or is
unable to obtain a secured seat and consequently occupies one
that is not protected, she is considered to be sufficiently warned
of the risk of being hit by a foul ball or a thrown or broken bat by
common knowledge of the sport, and assumes the risk of being
struck by thrown or batted balls. If such a spectator is injured
thereby, she is therefor barred from recovering damages. The
courts reason that a person who fears being injured always has
the option of not attending a baseball game or sitting in a part
of the park that is out of reach of balls traveling with enough
speed to cause them harm.

One woman who was an ardent Los Angeles Dodgers fan
was injured when she was struck in the head by a foul ball and
filed a lawsuit to recover the costs and expenses of her injuries
and other damages. The court held that the woman had
impliedly consented to take her own chances that she would
not be injured by voluntarily electing to sit in a seat that was
clearly unprotected by any form of screening. The court stated
that, rather than request a seat in a section where injury was
unlikely to occur, the woman chose to accept a highly sought
after seat, close to the “sphere of action,” where the likelihood
of foul balls entering the stands remained a possibility. She was
sufficiently warned of the risk by the common knowledge of the
nature of the sport and by the warning provided on the back
of her ticket. Thus, the court concluded that the Dodgers were
under no duty to do anything further to protect her from that
hazard.

However, not all risks of being hit by a foul ball are necessarily
assumed by the spectators. A spectator at a minor
league professional baseball game was sitting in an uncovered
section of the stadium when a foul ball struck
Immediately before being hit, the team’s mascot (a man dressed
in a dinosaur costume as a character named “Tremor”) was
behind the victim and the mascot’s tail was hitting the victim
on the head and shoulders. The victim turned to see what the
mascot was doing, and as he was turning back around to face
the field, a foul ball hit him before he could react to it. The court
agreed with the general rule that the risk of being hit with a
foul ball was inherent in the sport of baseball and such risk was
therefore assumed by spectators.

However, the court found that in this case the antics of the
mascot may have increased the inherent risk to the victim and
was a question of fact for the jury to decide at a trial. The court
noted that the antics of a mascot were not an essential or integral
part of the playing of a baseball game, and the game could
be played in the absence of such antics. Indeed, the person who
dressed up as the mascot submitted a sworn written statement
(a “declaration”) that there were occasional games when he had
not been there, but the game was nevertheless played.

Of course, if a person chooses to sit in a seat that is protected
by a screen, but the screen turns out to be defective and lets a
foul ball through to hit and injure the spectator, the spectator
may have the right to sue the owner/operator of the stadium
for her injuries.

The rule against spectators being hit by flying debris does not
apply solely to baseball stadiums. A woman was injured when,
during pre-game warm-ups at a Los Angeles Kings ice hockey
game, a puck flew off the ice and struck her in the mouth. The
woman claimed that the “assumption of risk” doctrine did not
apply in her case. She asserted that while the risk of being hit
by a puck at an ice hockey game is an assumed risk, the risk of
having her view blocked by large groups of spectators congregating
near the ice so she could not see the playing surface or
the puck was not an inherent risk of the game. The court denied
her claim, stating that just as baseball stadium owners owe no
duty to eliminate the risk of injury from foul balls, the owner of
an ice rink owes no duty to eliminate the inherent risk of injury
from flying pucks during a hockey game or warm-ups.

As for the injured spectator’s contention that she did not
assume the risk that her view would be blocked by groups
of people milling around in front of her, the court held that
obstructions of view caused by the unpredictable movements
of other fans are an inherent and unavoidable part of attending
a sporting event. The court noted that views are blocked
whenever fans spontaneously leap to their feet or move to and
from their seats.

Millions of Californians and out-of-state visitors annually
visit the Golden State’s permanent amusement parks, such as
Disneyland, Magic Mountain, Universal Studios, and Knott’s
Berry Farm, and go on amusement rides. In addition to visiting
permanent amusement parks, millions of people visit annual
county fairs or other traveling carnivals that bring with them a
mobile midway equipped with dozens of amusement rides for
young and old. Then there are church fairs and private birthday
parties where people rent inflatable slides and “moon bounce”
castles for youngsters to frolic on.

Unfortunately, a significant number of people are seriously
injured or killed by amusement park or carnival rides that malfunction
because of faulty operation; operator inattentiveness
or carelessness; faulty design, construction, or maintenance;
or lack of warnings regarding the required age, height, weight,
and medical condition of a prospective rider.

Some amusement ride users are injured when they are
thrown from their car because of the lack of a safety bar or a
defective seat belt, or the car itself may detach from the ride
causing serious injury to or even death of the riders or other
fairgoers who are walking or standing in the area. In some
cases, the rider is killed because of a defective ride or the negligence
of the owner or operator in inspecting and maintaining
the ride every day to ensure its safety.

Sometimes a rider who is injured because the ride isn’t in
safe working condition will escape with only a few bumps and
bruises. A number of others, however, will lose fingers or toes, a
hand or foot, or even an arm or leg if the limb gets trapped in a
tight space while the ride is moving. Or they may suffer broken
bones, such as in an arm or leg. Some riders who get into an
accident with a faulty amusement or recreational ride may sustain
an injury to their spinal cord that leaves them paralyzed
from the neck down (“quadriplegic”) or paralyzed from the
waist down (“paraplegic”). Some riders will be killed due to a
defective amusement ride.

At times, riders—especially those who ride the high-speed
roller coasters and similar “thrill” rides—suffer traumatic brain
injury (TBI, discussed in depth in Chapter 30) as a result of
the ride. Severe TBI can result even if the rider didn’t strike
his head on anything during the course of the ride. Rather, the
force of the violent shaking of some rides is enough to result
in severe TBI by causing the rider’s brain to move around and
hit the inside of the skull. Often, a person who has ridden on a
thrill ride will get off the ride feeling dizzy or nauseous. These
are symptoms of possible serious brain injury and the person
should be checked out by a physician (not just the park’s nurse)
as soon as possible to prevent serious brain injury. (This method
of brain injury is the same mechanism that works to cause brain
damage in “shaken baby syndrome,” when the child isn’t struck
but is violently shaken back-and-forth and from side-to-side.)

AWS PERTAINING TO AMUSEMENT RIDES

There is no single government body that oversees all types
of amusement rides throughout the United States. The U.S.
Consumer Products Safety Commission (CPSC) has jurisdiction
over traveling carnival rides, like the kind that follow county
fairs throughout the state. The CPSC does not have jurisdiction
over permanent amusement parks or water parks. The CPSC
does, however, have jurisdiction over inflatable rides, such as
inflatable slides and bounces.

Unlike the federal government, California has many rules
and regulations regarding most permanent amusement parks
and rides therein to ensure that they are safe and will not subject
the riders to an undue risk of harm. The California Division
of Occupational Safety and Health (Cal-OSHA) Elevator, Ride
& Tramway unit regulates rides and devices at large theme
parks, smaller parks, fairs, traveling carnivals, and places offering
bungees (see the next chapter for more on bungee jumping)
or waterslides. Dry slides are explicitly exempt from regulation.
Inflatables, whether they are located at a traveling carnival
or permanent amusement park, or are rented from a private
business, do not meet the definition of amusement ride under
California law and therefore are not regulated by the state, but
are regulated by the federal CPSC.

For permanent park rides, state inspectors perform an
annual records audit, unannounced operational inspections,
and physical inspection of the ride each year. In addition, ride
owners are required to have a Qualified Safety Inspector certify
annually that each ride meets industry standards and state
regulations.

All portable amusement rides are inspected before they are
originally put into operation for the public’s use and at least
once every year thereafter. Additionally, portable rides may be
inspected each time they are disassembled and reassembled.
Cal-OSHA regulations require all ride owners to report accidents
resulting in death or injuries requiring medical attention
other than ordinary first aid. As of 2008, portable ride owners
must report major mechanical failures and any accident in
which a patron falls or is ejected from the ride mid-cycle,
regardless of injury.

California law requires the owner/operator of an amusement
ride to be familiar with the ride manufacturer’s information on
assembling and maintaining an amusement ride and follow the
manufacturer’s recommendations, service bulletins, warnings
of defective conditions, recalls, etc. Of course, the ride-owner/
operator’s failure to read and follow all of the manufacturer’s
instructions and warnings regarding the assembly, construction,
operation, maintenance, and take-down of an amusement
or recreational ride can lead to an injury to or death of riders
and provide a basis of carelessness (“negligence”) on the part of
the ride’s owner or operator.

AMUSEMENT RIDES AS “COMMON CARRIERS”

In one case, a 23-year-old woman suffered a severe brain
injury and eventually died from her injuries several weeks after
riding on the Indiana Jones amusement ride at Disneyland
in Anaheim. The deceased woman’s estate sued Disneyland,
claiming that the woman had suffered serious brain injuries
due to the violent shaking and stresses imposed by the ride.
The estate alleged that the Indiana Jones attraction utilized
jeep-style ride vehicles that were computer-controlled with
160,000 different combinations.

The estate alleged that the ride was “fast, turbulent, combining
the ups and downs of a roller coaster with jarring jumps,
drops, and unpredictable movements,” and that the Indiana
Jones attraction shook and whipsawed riders “with such fury
that many passengers are forced to seek first aid and in some
instances hospitalization.”

The woman’s estate claimed that the ride’s sudden changes
in direction could and did cause bleeding in the woman’s brain
similar to what happens in “shaken-baby syndrome.” The case
was appealed to the California Supreme Court on the question
of whether or not the amusement ride was a “common carrier.”
The reason for designating a ride as a common carrier goes to
the duty of safety (standard of care) the owner/operator of the
amusement ride owes its riders. If designated a “common carrier,”
the amusement ride owner/operator is held to a higher
standard of care than would normally be applied (i.e., ordinary
carelessness or negligence). Examples of common carriers are
buses, trains, and subways that carry passengers for a fee.

The Supreme Court of California ruled that the Indiana
Jones ride met the “common carrier” criteria, despite the
fact that it started and ended in the same place and did not
transport passengers from one site to another. The fact that
a passenger begins and ends the ride in the same place does
not mean that she has not been transported. As the California
Supreme Court stated in one case, “A tourist in San Francisco
who takes a round-trip ride on a cable car solely for entertainment
has been transported and is no less entitled to a safe ride
than another passenger on the same cable car who disembarks
to visit a store or restaurant.”

As a common carrier with regard to its rides, the amusement
park, traveling ride owner/operator, or other ride owner/operator
owes its riders the highest degree of care for their safety and
is legally responsible (“liable”) for all of the costs and expenses
caused by even the slightest bit of carelessness (“negligence”)
of the ride’s owner/operator. An amusement park or traveling
carnival must use the utmost degree of care and diligence for
the safe passage of its riders, must provide everything necessary
for that purpose, and must exercise to that end a reasonable
degree of skill. Owners and operators of amusement rides
are legally required to do all that human care, vigilance, and
foresight reasonably can do under the circumstances.

Owners and operators of amusement rides are liable to their
riders for injuries or death if they were even the slightest bit
careless (“negligent”) in the operation, maintenance, design,
construction, or warnings associated with the ride. Further, the
owner or operator of an amusement ride is required to provide
vehicles and rides that are safe and fit for the purposes to which
they are put, and is not excused for default in this respect by
any degree of care.

Roller coasters have been considered “common carriers”
in California since at least 1934 when the California Supreme
Court so ruled in a personal injury case. In that case, the court
described the ride upon which the victim was injured as a
“roller coaster” that was “in the nature of a miniature scenic
railway consisting of a train of small cars constructed to carry
two passengers each.” The owner and operator of a scenic railway
in an amusement park is subject, where he has accepted
payment from passengers on such railway, to the liabilities of
a carrier of passengers generally, i.e., a common carrier. The
common carrier’s higher standard of care originated in English
common law, and is based on a recognition that the privilege
of serving the public as a common carrier necessarily entails
great responsibility, requiring common carriers to exercise a
high duty of care toward their customers.

The common carrier rule that applies to amusement rides
is not limited to roller coasters and high-speed thrill rides. In
one case, the court held that the operators of a horse-drawn
stagecoach ride at Disneyland were common carriers, and
were therefore held to the higher standard of care when the
horses became frightened and ran, causing the coach to tip
over, injuring the riders. The common-carrier rule was also
applied in a personal injury case arising out of the “Pirates of
the Caribbean” amusement ride at Disneyland. Several riders
were injured when the boat in which they were riding was
struck from behind by another boat. The appellate court held
that the boat ride came within California’s broad definition
of a “common carrier,” as Disneyland offered to carry riders
from the mass public and therefore owed the riders the duty of
utmost care and diligence.

The operator of a mule train that took passengers from Palm
Springs to Tahquitz Falls and back was considered a common
carrier and therefore was held to a higher standard of care for
protecting his customers from harm. Holding that the mule
train was a common carrier, the court concluded: “The only
reasonable conclusion to be drawn from these facts is that
a person who paid a roundtrip fare for the purpose of being
conducted by mule over the designated route between fixed
termini, purchased a ride; that the [owner/operator] offered to
carry such a person by mule along that route between these
termini; and that the transaction between them constituted an
agreement of carriage.”

The owner and operator of an amusement ride, be it at a
set permanent place, such as Disneyland, or a traveling ride
such as the ones that follow county fairs across the state, is
required to provide its riders with rides that are “safe and
fit for the purposes to which they are put.” This means that
the ride and its cars must be in good working condition and
are safe to carry riders. For instance, the owner/operator of
the amusement or recreational ride owes its customers the
duty to ensure that the brakes on the ride are in good working
condition so that it will stop at the end of the ride without
careening into other cars in front of it, that all cables are in
good condition so that the cable pulling a car up a rise doesn’t
break, causing the car to travel back downward into another
car, and that seatbelts and safety bars are working properly
in general and are properly secured by the owner/operator or
his employees when a rider sits in the car. The owner/ operator
of an amusement ride also has the obligation to inspect
the entire ride periodically to see if there are any cracks, failing
welds, or other defects in the ride that could fail or break,
causing injury to or death of the riders.

Amusement rides have inherent dangers due to speed and
mechanical complexities. They are operated for profit and
are held out to the public to be safe. They are operated in the
expectation that thousands of visitors, many of them children,
will occupy their seats. Riders of roller coasters and other thrill
rides seek the illusion of danger while being assured of their
actual safety. The rider expects to be surprised and perhaps
even frightened, but not hurt. The rule that carriers of passengers
are held to the highest degree of care is based on the recognition
that “to his diligence and fidelity are entrusted the lives
and safety of large numbers of human beings.” The California
Supreme Court has stated that this rule applies equally to all
common carriers, be it an amusement park ride bus, airplane,
train, or other form of transportation.

INFLATABLE SLIDES AND BOUNCY CASTLES

Each year, inflatable rides account for approximately 5,000
users being injured or killed nationwide. Inflatable slides and
bouncy castles of the type one might find at a church fair or
a private birthday party are not subject to the “common carrier”
rule, as they do not transport the users. Nevertheless, the
owner/operator of the inflatable attraction has the obligation
to use reasonable care in ensuring the inflatable is safe for use
and is required to maintain, erect, and operate the attraction
in a reasonably safe condition to prevent users of the inflatable
from an undue risk of harm.

For instance, if the inflatable is improperly erected and
secured, or is old and worn, if it deflates causing a user to suffer
injuries—such as broken bones or head or brain injuries—then
the company that rented, erected, maintained, or operated the
ride may be legally responsible (“liable”) for the user’s injuries
or death. The owner/operator of the inflatable is required to
give the renter of the inflatable complete instructions on the
proper use of the inflatable and any warnings as to how it
should not be used or weight limits to protect the users from
undue harm.

If the owner/operator of the inflatable attraction fails to
use due care in setting up the inflatable, making sure that it is
properly secured to the ground so that is does not move around
or can be blown over by the wind, and is properly inflated, she
can be liable for all injuries and damage caused by her negligence.
An inflatable castle or other “moon bounce” attraction
must be securely anchored so that a gust of wind will not blow
it over, causing injuries to or death of the users. Sometimes the
inflatable will suddenly deflate, causing the users to fall hard to
the ground, suffering broken limbs, internal injuries, traumatic
brain injury, and even death.

WHAT TO DO IF YOU HAVE BEEN INJURED ON AN AMUSEMENT RIDE

If you have been injured on an amusement park ride, on a
traveling carnival ride, or at a private birthday party or other
event that rented defective rides and inflatables, you should
seek medical attention as soon as possible. That dizziness or
headache you feel after a thrill ride may be symptomatic of a
traumatic brain injury that requires immediate treatment. Pain
in the back or limbs should be evaluated as soon as possible
at the nearest emergency department to ensure that no bones
are broken. Be aware that if you injured your neck or back and
cannot move your legs or arms, or have tingling in your hands
or feet, you should not move or be moved but should rather
call the paramedics right away and stay immobilized until they
arrive. The paramedics will properly secure you to a hard spine
or cervical board before transporting you to the hospital. If
your spine is not immobilized properly before you are taken to
the hospital, your spinal cord could be injured further resulting
in serious injury, such as quadriplegia or paraplegia. (This type
of injury is discussed in detail in Chapter 29.)

If you have been injured or a loved one killed in an amusement
ride accident, you should contact an experienced personal
injury lawyer as soon as possible. This gives the lawyer the
chance to see the accident scene and check out the ride before
the owner/operator has the chance to make any modifications
to it. Hiring a lawyer immediately is especially important when
you have been injured by an amusement ride at a traveling
midway or carnival so the lawyer can send out his investigators
before the ride has been dismantled and moved to another part
of the state or country, resulting in the loss of key evidence.

Medical malpractice involves the negligence of a physician or
surgeon, or anyone else in the business of providing physical
and mental health care services. The error may be one in diagnosis,
such as where the doctor misses or misinterprets (“misdiagnoses”)
a condition as benign rather than the beginnings
of a serious problem. Sometimes the error is obvious, such as
when the surgeon mistakenly removes a healthy kidney rather
than the diseased one. Sometimes the malpractice is more
subtle, such as where the doctor fails to heed the warning signs
of diabetes and treat the patient with medication and exhort
her to check her blood sugar frequently, watch her diet, lose
weight, and/or exercise more. Expert testimony of physicians
or surgeons in the same field of medicine as the doctor you are
suing are usually necessary to prove the degree (“standard”) of
care and how the physician deviated from it.

ELEMENTS OF A SUCCESSFUL MEDICAL MALPRACTICE CASE

Three elements need to be proved to be successful in a medical malpractice case:

  1. The victim must prove what the “standard of care” was; that
    is, what would a reasonable doctor acting under the same or
    similar circumstances in the same or similar locality have done?
  2. The victim must prove that the doctor failed to meet the
    standard of care, in that his conduct was below the acceptable
    standard of care of other doctors acting under the same or similar
    circumstances.
  3. The victim (or her heirs) must prove that she was injured or
    killed due to the health care provider’s negligence.

LIMITATION ON DAMAGES

Most good medical malpractice lawyers will not take a medical
malpractice case unless he believes it is a meritorious case and
is worth at least $500,000 or more. The reason for this limitation
is a law that was passed back in 1975, known as the Medical
Injury Compensation Reform Act of 1975 (usually referred to
by its acronym, MICRA). MICRA has several provisions that
make it harder to sue negligent physicians, surgeons, hospitals,
and other health care providers. For instance, although you can
collect in full for all of your medical expenses, past and future,
and all of your lost wages and loss of earning power (so-called
“economic damages”), the most you can recover for so-called
“non-economic damages” such as pain and suffering and loss
of enjoyment of life is only $250,000. The statute also limits
the amount of fees the lawyer may charge for representing you,
which is less than what he could charge in other types of personal
injury and wrongful death cases.

MICRA was passed during a time when doctors were complaining
about the sudden and steep increases to their malpractice
insurance premiums. Insurance companies said the
rise was justified due to the number of frivolous cases brought
by unscrupulous, smooth talking attorneys who could sway and
convince a jury that the doctor made a mistake and that the
client had suffered an astronomical amount of financial and
medical expenses and had undergone severe and prolonged
pain and suffering. The insurance companies conveniently
avoided bringing up the facts that they were suffering because
of some bad investment and underwriting practices they had
made, and the cyclical nature of personal injury payouts.

Another reason medical malpractice lawyers are hesitant to
take cases worth less than $500,000 is that it takes a lot of time
and money to prosecute a medical malpractice case through
trial. Medical malpractice cases often turn into an expensive
“battle of the experts.” The injured victim’s expert doctor will
say it was malpractice, while the defendant doctor’s expert witnesses
will testify that the care was proper and appropriate.
The lay jury—most of them unschooled in medical matters—are
left to make heads or tails out of the experts’ testimony. In most
cases, especially those dealing with complex medical or surgical
issues, the jury will believe the doctor who comes across as the
most knowledgeable and confident of all the expert witnesses,
rather than trying to sort out and deal with the technical medical
testimony itself.

Doctors have long looked out for each other, one major
reason being that if they were ever accused of malpractice
themselves, they would not want any of their fellow colleagues
to testify against them. Accordingly, a code or “conspiracy of
silence” among the medical profession arose and existed as
early as the start of the 20th century. Thus, in medical malpractice
cases, it is often necessary to bring in an out-of-town
doctor who is familiar with the medical standards of the area in
which the defendant doctor was practicing.

Doctors charge high fees to review medical records to determine
whether or not there was malpractice, and their fees for
testimony at a deposition or trial is exorbitant. Indeed, some
doctors make a very lucrative living just acting as experts in
medical malpractice cases. It is much easier for the defendant
doctor—whose malpractice insurance carrier is paying the
bills—to get doctors to testify on his behalf.

Millions of Americans are injured or killed each year due to
defective, faulty products that are dangerous even when being
used for their intended purposes. Unlike other types of cases,
such as automobile accidents or “slip and fall” cases, it is
not necessary to prove that the manufacturer, distributor, or
retailer of the product—or anyone else involved in the “stream
of commerce”—was careless (“negligent”) in designing or
making the product. Rather, the manufacturer, distributor, or
retailer is “strictly liable” for injuries, deaths, and damage to
other property caused by a product that is dangerous because
of a defect in its design or manufacture when it is being used for
an intended or “foreseeable” use.

The rationale behind holding a manufacturer, distributor,
or retailer strictly liable for a defective product without regard
to whether it was negligent or not is that the manufacturer and
others in the stream of commerce are in a better position to
protect themselves from the costs associated with a defective
product than are the users of the product. For instance, the
manufacturer, distributor, or retailer can obtain insurance to
protect themselves and spread the cost of the insurance premiums
across the board by raising the price of its product a
few cents or dollars. Putting the brunt of liability for defective
products on the manufacturer, wholesaler, or retailer simply
makes this part of its cost of doing business that it can pass
along to the purchasers of its product.

WHAT IS A PRODUCT?

The definition of “product” is expansive. Products include
everything from automobiles to bottles to elevators to massproduced
residential homes and apartment buildings. But it
is not necessary that the product be mass-produced. The fact
that a product is unique does not render its maker, distributor,
or seller any less liable for any injuries or damage caused
by it if the product is defective, if the company is otherwise in
the business of manufacturing and selling products as part of
its full-time commercial activity. Thus, a company that makes
a one-of-a-kind device for a customer is bound by the laws of
strict liability. Indeed, some companies are in the business of
making specialized products for each job. This does not make
them any less subject to the laws of strict product liability.

Strict product liability, however, does not apply to the onetime
or occasional seller. For instance, if you hold a yard sale
and sell an item that turns out to be defective and causes injury,
you are not held strictly liable for the victim’s injuries. The
victim will have to prove that you were somehow negligent in
causing the defect that injured her. Proving negligence requires
a much higher standard of proof than strict liability. (Used
goods sold by non-dealers are usually “as is” sales, and come
with no warranties or guarantees.) Similarly, if a neighbor sells
you a one-time batch of tomato sauce, he would not be considered
a “seller” under products liability law. If you became
sick after eating the sauce, you would have to prove that your
neighbor was careless (“negligent”) in making the sauce, and
such negligence was the cause of your injuries.

WHO IS LIABLE?

A person or entity involved in the manufacturing, distributing,
or retailing of a product is strictly liable if: (1) the person
or company places the product on the market, (2) the person
or company knows that it is to be used without inspection for
defects, (3) the product proves to have a defect, and (4) the
defect causes injury to a person or damage to property. The
defective product must be dangerous and unsafe when used
not only for its intended purpose, but also for uses that can
be reasonably anticipated by the manufacturer, distributor, or
retailer of the product (“foreseeable” uses).

A product may be defective because of a flaw in its design or
a defect in its manufacture. The difference between a product
that is defectively designed and one that is defectively manufactured
is that, in the first case (i.e., design defects), all of the
products—even if made to the manufacturer’s exact specifications—are
defective and dangerous. When a product is dangerous
because of its design, then all products of that type are
dangerous and the product is subject to recall, and a warning
is given not to use the product and to take it back to the place
where you bought it for a full refund.

On the other hand, when there is a defect in manufacture,
that means that the product, when properly made, is safe for its
intended use, but due to a mistake in its fabrication or assembly,
the specific individual product is defective and dangerous. A
common type of error that makes an individual product unsafe
is a faulty weld. If welded properly, the product is safe for use,
but if welded improperly, the product poses an unreasonable
risk of harm to users of the product and persons nearby.

DEFECTS IN DESIGN

Mass injuries can result when products are mass produced
but defectively designed in a manner that makes them dangerous
when used in their proper way. A product is defective in
design if either: (1) the product fails to perform safely as an
ordinary consumer would expect when the product is used in
an intended or reasonably foreseeable manner or (2) the risks
inherent in the dangerous design outweigh the product’s benefits.
The first test is known as the “consumer expectation” test,
while the second test is known as the “risk-benefit” test.

Under the consumer expectation test, when a product fails
to meet an ordinary consumer’s expectations as to the safety
of the product in its intended or reasonably foreseeable use,
a manufacturer is strictly liable for the resulting injuries or
property damage. The consumer expectation test is based on
the theory that when a manufacturer places a product on the
market, it makes an implied representation that the product is
safe for the tasks it was designed to accomplish.

The risk-benefit test of a defective design involves a balancing
of the danger posed by the product’s design against
the product’s usefulness (“utility”). This doesn’t necessarily
require that the product’s risk of harm outweigh the product’s
benefits. Liability may be imposed where the product’s design
has an “excessive preventable danger,” and it would have been
feasible for the manufacturer to reduce the risk of harm by
using an alternate, safer design. For example, a glass bottle of
apple juice marketed for infant use could be made safer by an
alternative design, such as the use of plastic instead of glass,
thereby preventing injuries to infants who might be injured by
broken glass if the bottle was accidentally dropped.

DEFECTS IN MANUFACTURE

A product is defective in its making when something happens
during the manufacturing process that makes the particular
item unsafe and dangerous, even though it has been designed
safely. Some of the problems could be a faulty weld, lose or
missing screws or bolts, or the use of materials that are inferior
in quality to those called for by the specifications. The manufacturer
or supplier of a defective part that is used in the product
(a “component product”) is strictly liable for any and all
injuries and damages caused by its defective part, even though
it is incorporated into a larger product.

CHANGES TO THE PRODUCT AND LIABILITY OF RAW MATERIAL SUPPLIERS

One major criteria of strict product liability law is that, at the
time of the injury, the product was in substantially the same
condition as it was when it left the manufacturer. If the company
was in the business of supplying raw materials that would
be incorporated into the final product, the questions then are
whether the raw material met the specifications the manufacturer
set and whether the product was materially changed. If
the manufacturer ordered raw material of quality “A” but the
supplier sent an inferior quality of product, the supplier can
be held liable for strict product liability. If the supplier sends
product meeting the standard requested by the manufacturer,
but the design is faulty in not requiring a higher standard of
raw material, the supplier is not strictly liable.

If what was sent by the supplier is a dangerous material in and
of itself, the supplier can be held liable under the laws of strict
product liability if the material retains its inherent quality. The
most common example of this is asbestos. For years, asbestos
was used by many manufacturers in a number of products and
in many of them the raw asbestos was processed, yet the asbestos
(particularly its dust) retained its toxic qualities. In such a
case, the supplier of the raw asbestos is held strictly liable for
injuries resulting from the inhalation of asbestos dust.

A product may also be defective when, although the product
was properly designed and manufactured, it fails to include
adequate instructions for its use or sufficient warnings regarding
its dangers when used in a proper or foreseeable way.

IMPROPER USE OF PRODUCTS BY CONSUMERS

Note that the law does not impose absolute liability. If the
consumer were using a product in a way the manufacturer,
distributor, or retailer could not have foreseen, strict products
liability does not apply. Also, where the victim was partially at
fault for his injuries or death, the legal doctrine of “comparative
fault” applies to reduce the amount of monetary damages
the manufacturer, distributor, or retailer must pay. The fault
of the victim is weighed against (compared to) the fault of the
manufacturer, distributor, or retailer.

For instance, if the victim was 25 percent at fault for causing
his injuries, then the amount of his financial recovery is
reduced by that amount. Hence, if a jury concluded that the
total damages amounted to $100,000 but found that the victim
was 25 percent responsible for the accident, then the victim’s
award would be reduced by the percent of his fault (in this case,
25 percent), so that instead of receiving the full $100,000, the
victim would receive only $75,000.

INJURIES CAUSED BY A DEFECTIVE PRODUCT

Sometimes when a person is injured by a defective and dangerous
product, her injuries will be obvious, such as a broken arm, burns,
or head injuries. However, in some cases, it is not at all unusual
for injuries to take a few days to a few weeks—even years in the
case of asbestosis—to show up. Therefore you should contact an
experienced personal injury law firm as soon as possible after the
accident. The attorney is familiar with the types of injuries that
may arise as a result of being injured by a defective product, and
oftentimes can help find a skilled doctor to treat you.

RETAIN THE PRODUCT AND ALL DOCUMENTATION

If you have been injured or a loved one killed by a defective
product, you should promptly consult an experienced personal
injury law firm. The defective property should not be reused,
repaired, destroyed, or otherwise changed or disposed of without
first giving the attorney and her investigator the opportunity
to inspect and evaluate it. All instructions, warnings, other
packaging materials (such as the box the product came in, if
any), and receipts and warranties should not be thrown out,
but rather given to the attorney so she can evaluate the sufficiency
of assembly instructions, danger warnings, and other
important information. The attorney or her investigator will
want to talk to any witnesses of the incident while the facts are
still fresh in their minds.

In most products liability cases, the attorney will want to
keep the product in the same condition it was in when it caused
the injuries until the case is completely over. In many cases,
the attorney will want to hire an expert the appropriate certain
field to evaluate the defective product and testify at trial. The
attorney will often need to have the product and/or assembly
instructions or warnings evaluated by a professional such as an
engineer or human factors expert to see whether the product
posed an unreasonable risk of harm. For instance, if a product
failed because of metal fatigue and caused serious injuries, the
attorney will likely want to have the product tested and evaluated
by a metallurgist.

Over 4.7 million people are bitten or otherwise attacked by
dogs annually, with 800,000 of them bitten seriously enough
to require medical attention. Each year, roughly 370,000 victims
go to the emergency room for treatment of injuries due to
being bitten by a dog.

STRICT LIABILITY FOR DOG BITES

Section 3342 of the California Civil Code makes the owner of
a dog legally responsible (“liable”) for all damages suffered
by any person who is bitten by the dog while in a public place
or legally in a private place. The owner can be held liable for
injuries from a dog bite even if they occur on the dog owner’s
own property, if the person who is bitten was on the property
lawfully, such as in the performance of his lawful duty (e.g., a
postal carrier or public utility meter reader). The dog’s owner
is also liable for any bites by the dog to persons on her property
if the person was on the dog owner’s private property with the
express or implied invitation or consent of the owner.

Although California Civil Code section 3342 imposes liability
against the dog’s owner for its bites, this does not mean that
the dog’s owner cannot raise any defenses that may cut off or
reduce her liability. For instance, if the person was pulling the
dog’s tail, kicking it, or otherwise annoying it, which led to the
dog biting him, the person may be banned from recovery or the
amount of his recovery may be reduced under the legal doctrine
of “comparative negligence,” discussed in Chapter 2.

YOUNG CHILDREN AND DOGS

Young children are the most common victims of a dog bite.
Children are especially vulnerable to being bitten by dogs
because they don’t understand the danger involved when a
person approaches a dog, even if they have petted or played
with the dog before without incident. Almost 80 percent of
injuries to children bitten by a dog are to their face, neck, and
head. Even a small dog can inflict serious injuries on a defenseless
child. Note that, generally speaking, a child under the age
of five is considered by the law to be incapable of being comparatively
negligent. So if a child under five years old is bitten
or mauled by the dog, it is no defense that the child may have
been teasing the dog, pulling its tail, or otherwise harassing the
dog. Whether an older child is capable of understanding the
risks involved in approaching a dog, petting it, pulling its tail,
and so forth, is determined on a case-by-case basis.

INJURIES RESULTING FROM A DOG BITE

Dog bites can range from a superficial bite that does not break
the skin to a fatal mauling by the dog. Frequently the dog attacks
the victim’s face, inflicting severe and disfiguring injuries. The
dog may go after the arms and torso of a victim who is trying
to protect himself. In many cases, it will be necessary to get a
tetanus shot, and if the dog is not current with its rabies shots,
the dog will have to be quarantined until it can be tested. If the
dog is found to have rabies, the bite victim will have to undergo
a series of painful anti-rabies injections to ward off the disease.

PIT BULLS AND OTHER DANGEROUS BREEDS

Certain breeds, such as pit bulls, have acquired a reputation as
unusually aggressive and dangerous. In one study, the Centers
for Disease Control (CDC) found that pit bulls and Rottweilers
accounted for 67 percent of human dog-bite-related fatalities,
with pit bulls being responsible for the greater share of fatalities.
The term “pit bull” actually refers to several breeds of dog
in the same family. Most laws specifically define the category of
“pit bull” to include the American Pit Bull Terrier, the American
Staffordshire Terrier, and the Staffordshire Bull Terrier, and
dogs with significant mixes of these breeds. A few jurisdictions
also include the American Bulldog and Bull Terrier as falling
within the definition of a pit bull.

Pit bulls frequently attack without provocation or warning,
and the victim may be a family member as easily as it may be a
stranger. As a fighting breed, pit bull dogs were bred to conceal
warning signs before an attack. For instance, they rarely growl,
bare their teeth, or issue a stare before they strike. While some
pit bull proponents contend that they are only dangerous to
other animals, media reports show otherwise.

Some people take the view that the pit bull has a “locking
mechanism” in its teeth or jaw so that once the jaw clamps shut, it
is practically impossible to get the dog to release its prey. Pit bulls
often show “bite, hold, and shake” behavior when biting a person
or other animal. Accordingly, some pit bull rescue organizations
and advocacy groups recommend that owners of pit bulls carry
a “break stick” with them to lever the dog’s jaws open if the dog
does bite and clamp down on a person or another animal.

Some cities have passed laws prohibiting the ownership of pit
bulls and certain other dangerous breeds, such as Rottweilers
and Doberman Pinschers. Some laws prohibit these breeds
of dogs from going into certain public areas, and other laws
require that the dog be muzzled when out in public.

Accordingly, if you have been seriously injured or a loved
one killed by a dog belonging to one of these dangerous breeds,
the insurance company is more likely to settle the case and
to settle for a higher amount than if, say, a Collie or Springer
Spaniel inflicted the damage. (Generally speaking, the amount
of damage a Collie or Springer Spaniel can inflict pales in
comparison to what pit bulls, Rottweilers, hybrid wolves, and
Doberman Pinschers can do.) Also, because of the severe injuries
they can cause—such as serious damage to the face requiring
extensive reconstructive surgery—it is important that you
obtain a law firm with experience in dog bite cases to help
arrange that you get the best medical care possible for your
often disfiguring injuries. In severe maulings, plastic surgeon
and other medical expenses can run into tens, even hundreds
of thousands of dollars in reconstructive surgery, such as skin
grafting, tissue expansion, and scar diminishment.

LEASH LAWS

Let’s say that you are walking down the street and a playful
dog comes bounding toward you and jumps on you, knocking
you to the ground, causing a broken limb, or hip or head injuries.
Most cities and counties have laws requiring dogs to be on
leashes and under the control of their owner or walker when off
the owner’s or caretaker’s private property. The fact that this
is the first time the dog has ever done something like this is no
defense. The failure to have the dog on a leash, resulting in the
dog causing injury, is called in legal terms “negligence per se.”
It is not a defense to a violation of the leash law that the dog
is trained to obey verbal commands or hand signals. Nor is it
necessary for the victim to prove that the owner knew that her
dog had a propensity to run at large, chase bicycles, or jump on
strangers to hold her liable for injuries caused by her dog while
it was running loose throughout the neighborhood.

LIABILITY OF A LANDLORD FOR INJURIES FROM A TENANT’S DOG

A landlord generally is not liable for the injuries inflicted by his
tenants’ dogs (or other animals), unless the landlord has actual
knowledge of the presence of the tenant’s dog and its vicious
nature. If the landlord knows of the vicious propensities of the
dog and has the ability under the lease to order it removed or to
terminate the lease altogether, the landlord may be held liable
for allowing the dangerous dog to remain on the property without
doing anything about it. For instance, if the landlord knows
that a tenant on a month-to-month lease has a dangerous dog,
the landlord may be required to give the tenant notice either
to get rid of the dog or, if that fails, give the tenant notice of
termination of the lease.

THE “VETERINARIAN’S RULE”

A veterinarian, kennel operator, or her employees generally are
barred by the “veterinarian’s rule” from suing the owner of a
dog for bites or other injuries inflicted by a dog while under
their care. According to the veterinarian’s rule, a veterinarian
or other person who by his profession works with dogs and
other animals is held to have assumed the risk that he may be
bitten or otherwise harmed by the animal.