Tuesday, May 31, 2011
Of course, if someone damages you, and your car, through no fault of your own, you entitled to recover damages for personal injury, and for damages to your property as well. Many Baltimore personal injury lawyers don't get involved in the "property damage" aspect of the typical motor vehicle accident. If your car can be fixed, you're entitled to reasonable repair costs plus a reasonable amount for loss of use [e.g. rental]. If your car is a total loss, you're entitled to the fair market value of the car, plus loss of use. The prudent driver will carry "GAP" insurance on all vehicles they do not own outright. There is also a separate type of property damage dealing with loss of value called "diminution of value" discussed in another chapter. An experienced Baltimore personal injury lawyer can provide insight into a reasonable property damage offer, and ware of alternatives for you.
Thursday, May 26, 2011
Our civil justice is premised on the idea that although money is a poor substitute for ones physical health and peace of mind, it is how the law measures the magnitude of your loss. Every day Baltimorepersonal injury lawyers use this idea, that in our legal system money is substituted for an intangible loss, to obtain financial recoveries for their injured clients. The amounts of money recovered are "damages". Specific strains of damages are discussed in more detail in specific chapters of this volume. All damage types [e.g. lost wages, pain and suffering, medical bills] have one thing in common. Experienced Baltimore personal injury lawyers know the damages one seeks to recover must have been a foreseeable consequence to a reasonable person in the defendant's shoes at the time of the accident. All of us must exercise reasonable care to keep our fellow citizens safe from harm. We cannot engage in conduct that directly injures others. Moreover, we must conform our conduct so that is does not create a zone of danger into which other may venture. But the scope of potential liability is limited by the concept of forseeability.
Wednesday, May 25, 2011
Of course the rules of the road, including the duty to use due care, apply to the operators of bicycles. Some Baltimore personal injury lawyers will tell you that is has come as a surprise to some of their clients that a bicyclist has all the rights of a motorist. [Note: bicyclist cannot operate on as highway with a speed limit of greater than 50 mph, and, if there is a separate bike lane, the bicyclist must use it]. There are some exceptions to that general rule. A bicyclist traveling at less than the speed of traffic must stay as far to the right as possible, unless passing or making a left turn, the street is one-way, the right lane is a turn only lane or too narrow for two vehicles, or the lane is otherwise blocked. Experienced Baltimorepersonal injury lawyers know that at least one case has determined that a bicyclist failing to stay to the right, who is injured by a motorist, has no claim on contributory negligence principles. Longie v. Exline, 659 F.Supp. 177 (D. Md., 1987).
Monday, May 23, 2011
As discussed in other chapters, each of us, whether in the operation of a car, in our work activities, or in just simply going about the tasks of everyday life, owes each of our fellow citizens an obligation to conduct ourselves in a way that will not harm them, or created an unreasonable risk of harm for them. Experienced Baltimore personal injury lawyers will tell you that the law calls this obligation a "duty or care", and that if that duty is breached, and harm results, so will liability. This is negligence. The duty owed is one of reasonable care and prudence, but it is not fixed. The duty owed will vary depending on the attendant circumstances, as well as the level of skill, age and experience of the individual owing the duty. The law requires each of us to act reasonably under the circumstances, whatever those may be. Effective Baltimore personal injurylawyers that the violation of a statue [e.g. cannot switch lanes until safe to do so] can constitute evidence of negligence. The argument here is that the wording of the statute constitutes the nature of the duty. If the injury victim is a member of the group intended to be protected by the statute, and the injury is of the type the statue was drafted to prevent, then a violation of that statute that causes injury is evidence that negligence has occurred.
Friday, May 20, 2011
It is usually clear in the case of car accidents, which vehicles were involved, although who was at fault may be hotly disputed. In fact, experienced Baltimore personal injurylawyers will tell you that the mere fact that an accident happened does not mean someone anyone at fault. But what about a situation where it is not entirely clear how an accident happened, the vehicles involved, or where the specific mechanism of the accident is not clear [e.g. a car running off a roadway with dry pavement under good weather conditions [Haines v. State, 202 A.2d 364] or a pedestrian hit by a car while standing on the side of a road [UCJFB v. Bowles, 334 A.2d 532]. In such circumstances, the law may provide a shortcut to proving who was at fault, or exactly how they were at fault. Baltimore personal injury lawyers sometimes argue that if the event is one that would not normally occur without negligence, the cause of the event was an instrumentality causing the harm was within the exclusive control of a defendant, and no one else, including the injury victim, could have caused the accident, than Res Ipsa Loquitor ["the thing speaks for itself"] permits an inference that the defendant was the cause of the harm. Knowledgeable Baltimore personal injury lawyers know, though, that this is only half the battle. The defendant then has the opportunity to present a reasonable alternative explanation as to the cause of the harm- that does not involve negligence. The jury can accept that explanation, and give defense verdict, or applying Res Ipsa Loquitor, find the defendant liable, even without direct proof of negligence.
Wednesday, May 18, 2011
Experienced Baltimore personal injury lawyers have heard this argued one more than one occasion. Whether it is phrased in terms of "act of god", "unavoidable accident" or some strain of "sudden incapacity of a driver", Baltimore personal injurylawyers representing the insurance companies do argue to juries that although there was an accident, and although there were injures, no one should be held responsible. In order to recover for an automobile accident, the negligence of that at-fault driver must be what the law calls the "proximate cause" of the collision. [there is more material on proximate cause in other chapters of this volume]. The notion that some other mechanism –other than negligence- caused the accident lies at the core of all of these defenses. For example, the presence of ice on the roadway, it could be argued, is an unforeseeable circumstance, making a collision between vehicles on that roadway inevitable, and something that could not be prevented. Or, "the drive of the other car had a heart attack, or a seizure". However, knowledgeable Baltimore personal injury lawyers know that a defendant claiming this type of incapacity has the burden of proving that there is no way they could have foreseen it coming. For example- a person suffering from a seizure disorder controlled by medication may have a reason to anticipate a seizure if they neglected to take that medication.
Monday, May 16, 2011
WHAT IS THE VALUE OF MY PERSONAL INJURY CASE? Who can I sue? Is the automobile manufacturer responsible?
Experienced Baltimore personal injury lawyers will tell you the law requires vehicle makers to use reasonable care in the design, manufacture, testing and inspection of the automobile, and and ensure that it is safe for foreseeable uses. If they fail, that is evidence of negligence. Anyone who has received a recall notice, even for seemingly minor matters, knows that automakers are well aware of their potential liability. Of course, a claim involving a defective care is more elaborate than a simple negligence claim involving the unsafe operation of a vehicle. If you've been injured in an auto accident and you believe defective part or design is to blame, consult a knowledgeable Baltimore personal injury lawyer to fully understand the possibilities.
Wednesday, May 11, 2011
Experienced Baltimore personal injury lawyers will tell you the law requires vehicle owners to make sure their automobiles are equipped with the parts and systems required by the Transportation Code, and at all times must be in such condition so as not to put any person in danger. So, as opposed to liability for the unsafe operation of a vehicle, the improper or unsafe maintenance of a vehicle may provide a basis of liability for an accident as well. Discuss with a knowledgeable Baltimore personal injury lawyer whether inadequate brakes, worn tires, or the failure of another vehicular system played a role in the accident that caused your injures.
Tuesday, May 10, 2011
A recent case shows the "Last Clear Chance" doctrine in action. The Maryland Daily Record [volume 122/Number 151] is reporting that a Baltimore personal injury lawyer has convinced a jury that the last clear chance principle should allow a negligent plaintiff to recover for his injuries. The plaintiff, an electrician, was severely injured when a circuit breaker exploded. The insurance company for the installer of the power system argued that the plaintiff was negligent for not having shut off the power prior to repairs, and therefore was barred from recovery. Plaintiff's Baltimore personal injury lawyer successfully argued that the representative of the defendant, present at the inspection, should have warned the plaintiff to turn off the power, and this was their last clear chance to avoid the injury.
Monday, May 9, 2011
Experienced Baltimore personal injury lawyers know solace from the harsh application of contributory negligence principles may sometimes be found in notion of last clear chance. A plaintiff who caused or contributed to an accident would normally be barred from any recovery from the defendant, unless that defendant had a new opportunity – a last clear chance- and failed to prevent the harm to the plaintiff. A knowledgeable Baltimore personal injury lawyer may be able to successfully argue for and obtain a financial recovery for a negligent plaintiff using this concept.
Friday, May 6, 2011
WHAT IS MY PERAONAL INJURY CASE WORTH Should the Insurance Company Pay for the Diminished Value of My Car?
My personal injury clients sometimes ask, in addition to their medical bills, pain and suffering and the cost of repair of their vehicle, if they can recover for the diminished value of their car? An experienced Baltimore personal injury lawyer may be aware the Insurance Information Institute defines as diminished value as "[t]he idea that a vehicle loses value after it has been damaged in an accident and repaired." The argument is that, in the future, you decide to sell that previously wrecked car, but can't get what you believe fair market value because the car has been "wrecked and repaired" That's Diminution in Value / Diminished Value. Of course it makes sense that the purchaser of a used car wants one that hasn't been wrecked, but are there any objective reasons
supporting the concept? A variety of reasons are typically offered for why diminution in value occurs: every car loses value after being wrecked and repaired; the insurance company approved body shop used inferior parts, or, uses improper repair techniques. [Diminished Value, Harry Hitzeman, Insure.com 2010.] Imagine a scenario where someone else hit you, and they-or their insurance company- is responsible for the loss. This is typically referred to a "third-party" claim – you make it against someone else's insurance company. Should that insurance company pay for the loss in value due to the wreck, at the time of the repairs, as part to the claim? In many states, the answer is "NO". However, an experienced Baltimore personal injury lawyer will know the answer in Maryland is "YES" "[I]f the plaintiff can prove that after repairs his vehicle has a diminished market value from being injured, then he can recover in addition to the cost of repairs the diminution in market value, provided the two together do not exceed the diminution in value prior to the repairs." Fred Frederick Motors, Inc. v. Krause, 12 Md.App. 62, 277 A.2d 464 (Md. App., 1971) Of course careful documentation is vital, and an appraisal from a professional to prove the loss in value might be necessary. Be sure to discuss the possibility, and viability, of a diminished value claim with your personal injury attorney, as part of your claim.
What if there is no other insurance company? Say for example, you crash your car into a tree. Your insurance company agrees to pay for the repairs. This is typically referred to a "first-party" claim – you make it against your insurance company. The question becomes, in the that scenario, should your insurance company make good on my loss. i.e. pay for this diminished value. In most states, the answer is again "No". Id. However, if your vehicle is insured in Maryland, coverage for diminished value may be available under your policy. Be sure to mention it to your adjuster and get something in writing from them if they tell you such coverage is not available.
WHAT IS MY PERAONAL INJURY CASE WORTH Uninsured or Underinsured. What if My Insurance Company Won't Pay?
Let's say you have the misfortune of being injured in an automobile accident, and you sustain personal injuries, incur medical bills, and experience wage loss. What if the at-fault-driver had only 20,000 in coverage, and your losses well exceed that amount? What if the at-fault-driver had no coverage at all? You'll want to consult with a Baltimore personal injury lawyer. In the scenario where the at-fault driver did not have enough coverage, you would look to you insurance company and your [first party] coverage for "underinsured motorists" as an additional source of funds for you to recover. In the scenario where the at-fault driver had no coverage, you would again look to you insurance company and your coverage for "uninsured motorists" as an additional source of funds for you to recover.
What if you insurance company refuses to pay you?You'll need to consult with a Baltimore personal injury lawyer. You may legitimately ask "why did I pay those premiums all those years?" You may also want to sue them. You have a few options. One is a procedure under 3-1701 of the Courts and Judicial Proceedings Article. You must first file an administrative action with Insurance Administration. The Administration is to determine if you insurance company breached its obligations to you, what is should pay you, and if it acted in bad faith [failed to act with honesty or diligence, or made a decision without supporting evidence]. If you're not happy with the final result, you can file an action is Circuit Court, and request a trial by jury on these issues of 1] whether coverage exists under you policy 2] the amount you insurance company should pay you for your personal injuries 3] whether your insurance company acted in bad faith by not paying you. If they failed to act in good faith, you can recover for your attorney's fees, litigation costs, and interest.
You just got your personal injury award check. Do you get to keep all of it? A Baltimore personalinjury lawyer will tell you the general rule is that physical injuries or physical sickness settlements are generally not taxable. But, the IRS in Publication 4345 (Rev. 6-2006) tells us the that it recognizes "that receiving a settlement award (amount) from a personal injury suit may create new tax issues for some individuals. The type of settlement you receive is determined by your Final Settlement Agreement.
Physical injuries or physical sickness settlements are generally non-taxable.
If you receive a settlement for physical injuries or physical sickness and did not take an
itemized deduction for medical expenses related to this injury in prior years, the full amount is non-taxable and generally does not need to be reported on your income tax return. But If you receive a settlement for physical injuries or physical sickness and did deduct medical expenses related to the injury, the tax benefit amount is taxable and should be reported as “Other Income” on line 21 of Form 1040."
An experienced Baltimore personal injury lawyer will warn you to beware though. The IRS also tells us that "interest, punitive damages, emotional distress or mental anguish, and employment discrimination or injury to reputation settlements are generally taxable." [IRS in Publication 4345 (Rev. 6-2006)]
Many injured people are fortunate enough to have insurance, and their PIP, health, employer, private disability insurance, or any combination of those sources pay for some past or future lost wages, or some past or future medical care. In Maryland, juries are specifically instructed that they "may not reduced the amount of or your award because you believe or infer that the plaintiff has received or will receive reimbursement for or payment of proven medical expenses or lost earnings from persons or entities other than the defendant" such as insurance. [MPJI 10.8]. Baltimore personalinjury lawyers will know that's called the collateral source rule. Although juries are instructed not to consider collateral sources, that does not mean that medical providers or other insurers [not PIP] cannot be reimbursed. Indeed, in most cases, those insurance carriers will assert a claim, or a "lien" on any amount you are awarded. One of the most important roles your
Baltimore personal injury lawyer should fill is as a negotiator of these liens. An experienced attorney often will be successful in getting the amounts claimed by medical providers, and in some instances, insurers who have paid medical bills, reduced- meaning more money in your pocket.
An experienced Baltimore personal injury lawyer knows it absolutely does. The insurance industries' approach to cases in which the property damage is less than $1000 is explored in other chapters on this page. For the purposes of this discussion, note that low property damage number may mean the insurance company will refuse to pay you anything at all.
Many major insurance companies allow a computer to determine how much injury victims should collect. More than ten years ago, 70 of the nations largest insurance companies began to use a program called "Colossus" [or an analogue e.g. Claimsearch] to determine the amounts they would pay to a victim of negligence. An experienced Baltimore personal injury lawyer understands how these programs incorporate property damage estimates into the formula to evaluate the value of the case. Lower property damage estimates lead to lower overall valuation of the claim.
Here is where is gets interesting. At least one major insurance company has purchased and directly owns auto repair facilities. "The Allstate Corporation said yesterday that it had acquired Sterling Collision Centers for an undisclosed amount, making it the first major auto insurer to move into the car repair market....Sterling, which operates 39 car repair shops in seven states and has about $100 million in annual revenue." New York Times, May 9, 2001. An experienced Baltimore personal injury lawyer will tell you other major insurers have contractual relations with a network of "authorized providers" or "preferred providers". These are auto repair facilities that derive income from, and in some cases are paid incentives for, participating in the insurer's "network" of repair facilities.
Why would an insurance adjuster tell you "this is only a low speed collision?" It has become commonplace for insurance companies to offer minimal settlement dollars, or no money at all, where they deem the automobile accident to involve "low speeds", or where there is not much visible property damage. The insurance industry created the position years ago that "low speed collisions cannot lead to significant injury", and have successfully argued that position to juries and judges, repeatedly, throughout the country. Is it true? Is there scientific evidence that a low speed collision cannot cause injury? Not everyone thinks so. An experienced Baltimore personalinjury lawyer can help you overcome these types of arguments.
In an extraordinary case, you may be able to recover damages beyond those awarded for your economic [lost wages, medical bills etc.] and non-economic [pain and suffering, loss of enjoyment of life etc]. But the facts must be truly extraordinary- as an experienced Baltimore personal injury lawyer will tell you. Punitive damages are not available, for example, in the typical personal injury or car accident case. Punitive damages, which have been likened to a civil fine, are designed to punish a defendant for egregious conduct. In an automobile accident case, punitive damages are recoverable where the defendant acted with an evil motive, ill will, or an intent to injure or defraud, rather than just garden variety negligence. Punitive damages have been awarded in a variety of other types of cases: assault, battery, false imprisonment, defamation, invasion of privacy, outrage, malpractice among others. The jury is instructed to consider the financial resources of the defendant in making an award. An experienced Baltimore personal injury lawyer will be able to advise you if you have the type of claim where punitive damages may enter into the discussion.
The drivers of motor vehicles on Maryland roadways have a duty to use ordinary care to prevent injury to others, and those crossing Maryland streets owe a duty to use ordinary care for their own safety. Baltimore personalinjury lawyers know crosswalks have some associated special rules A crosswalk may be marked or "unmarked" [i.e. within the prolongation or connection of the lateral lines of the sidewalks]. If there is no traffic signal, a driver of a motor vehicle must stop if a pedestrian is in a crosswalk on the half of the roadway where the vehicle is traveling, or, if they are approaching from an adjacent lane on the other half of the roadway. If a traffic control signal that does not contain special 'walk' or 'don't walk' commands is operating, then, a driver faced with a circular solid green, must yield to anyone lawfully inside any crosswalk when going straight, right or left. A pedestrian in this circumstance is "lawfully" in the crosswalk when they begin their crossing facing any green signal other than a turn arrow. A Baltimore personal injury lawyer will tell you that if a traffic control signal that does contain special 'walk' or 'don't walk' commands is operating, then, a pedestrian facing a 'walk' signal is to be given the right of way by any driver. Pedestrians can assume that operators of vehicles will obey the rules. Of course, a pedestrian must always use due care for their own safety, and cannot blindly cross traffic, even with the right of way, without first checking to make sure it is safe. It's generally stated that the motorist has the right of way between crosswalks, but, that does not mean that a pedestrian crossing outside of a crosswalk is necessarily negligent as a matter of law. Harris V. Bowie, 249 Md. 465 .
HOW MUCH CAN I COLLECT IN A PERSONAL INJURY CASE? I slipped on the ice. Can I sue? Does it matter if it was "black ice"?
As discussed in other chapters, Maryland employs the archaic doctrine of "contributory negligence" which bars any financial recovery to an injury victim if they bear even the slightest responsibility for contributing to their injury. Baltimorepersonal injury lawyers often see a similar, related defense, employed by insurance companies-that of "assumption of the risk". "In Maryland, it is well settled that in order to establish the defense of assumption of risk, the defendant must show that the plaintiff: (1) had knowledge of the risk of the danger; (2) appreciated that risk: and (3) voluntarily confronted the risk of danger." Allen v. Marriott, 961 A.2d 1141, 183 Md. App. 460 (Md. App., 2008). When dealing with falls in an parking lot walkway, or sidewalk, in many instances "[t]he risk is that of slipping on ice. The required knowledge is not knowledge that ice is actually present. It is the appreciation of the reasonable likelihood that, under the weather conditions and other circumstances, ice might well be present. The assumed risk is not that of stepping on ice per se. The assumed risk is that of stepping onto an unknown surface with an awareness that it might well be icy. With white ice, you see it is there. With black ice, you infer the likelihood that it may be there." Id. So, the question is not whether ice was present, but, rather, in light of the weather conditions, history, and other circumstances, ice might be present. "Either establishes the element of awareness." Id. A Baltimorepersonal injury lawyer knows if the plaintiff is aware of the danger, there is no recovery.
HOW MUCH CAN I COLLECT IN A PERSONAL INJURY CASE? I got hurt on someone else's property. Are they responsible?
The duty, and responsibility for injury, of a landowner, possessor or manager of land or a building depends on the legal status of the person who was injured. An experienced Baltimore personalinjury lawyer knows the distinctions. An "Invitee" is someone on the property for purposes related to the owner's business, and is owed a duty of reasonable care to keep the property safe. A "Social Guest" is on the property not for any business purposes, but as the guest of the owner, and is owed a duty of reasonable care to keep the property safe, and is also entitled to be warned of any latent dangers they could not discover on their own. A "Bare Licensee" is on the property, with permission, but for his or her own business purposes. A "Trespasser" is, well, a Trespasser, and neither a trespasser of Bare Licensee are owed any duty at all. There are some other specific rules, e.g. for Landlords, that are explored in other chapters. Consult a knowledgeable Baltimore personalinjury lawyer if you've been injured on someone else's property.
A landlord who has reserved certain "common" areas of his or her building [ e.g. exterior stairways, hallways and the like] owes the tenants, and those on the property with the permission of the tenants, a duty of reasonable care to keep the property safe. Note that this responsibility does not extend to activities or conditions within the individual unit possessed or leases by the tenant. All Baltimore personalinjury lawyers know, that
of course, the landlord must know of the dangerous condition in order to be charged with responsibility. The law charges landlord with knowledge of what could have been discovered through the exercise of ordinary care.
It is difficult, and sometimes impossible to prove that a landowner, possessor or manager of land or a building had knowledge of the dangerous, defective or unsafe condition. Experienced Baltimore personalinjury lawyers know every insurance company or their defense attorney is guaranteed to argue that the defendant had "no notice" of the dangerous condition, and hence had no time to repair or warn. Of course the personal injury plaintiff always has the burden of proof, so if they can't prove the owner had notice, there is no liability. However, the law charges a landowner, possessor or manager of land or a building with knowledge of what could have been discovered through the exercise of ordinary care. So, if an area of a building should been cleaned, or inspected, or maintained at given intervals, but was not, an experienced Baltimore personal injuryattorney may be successful in arguing that the landowner could have discovered the unsafe condition, but failed to do so. If they landowner could have discovered the defect, but failed to use ordinary care in their maintenance or cleaning processes, a personal injury attorney can be successful in arguing there is liability even if the absence of actual knowledge of the defect.
WHAT IS THE VALUE OF MY PERSONAL INJURY CASE? Is a landlord responsible for injuries inflicted by third party criminal activity?
A landlord must take reasonable measures to insure the safety of his or her tenants. If the landlord knew or should have appreciated the likelihood of crimes against tenants or their property because such activity has taken place before, then he or she must take reasonable steps to insure that it does not occur again. An experienced Baltimore personal injury lawyer can help you in analyzing whether you can assert a claim against your landlord.
HOW MUCH IS MY BALTIMORE ACCIDENT CASE WORTH? I lost my job. Can I recover my lost wages? What about future wages?
Yes. If you are hurt by the negligence of another, and are kept out of work by a doctor, the wages you've lost are recoverable. If you are given a light duty or part time duty restriction by your doctor, you're entitled to recover the difference between what you make, and what you would have made working full duty. What about a situation where someone is seriously injured, and can no longer return to their former employment for medical reasons, or were terminated from their job? An experienced Baltimore personalinjury lawyer may be necessary. The burden of proof is higher, and the evidentiary requirements are more stringent, but, in appropriate circumstances, a significantly injured plaintiff may recover for a loss of future earning capacity. The nature of this claim is explored in another chapter in this series. In this situation, an experienced Baltimore personalinjury lawyer
will always have a discussion with his or her client about the obligation to diligently look for work and keep records. "The duty to mitigate damages serves to reduce the amount of damages to which a plaintiff might otherwise have been entitled had he or she used all reasonable efforts to minimize the loss he or she sustained as a result of a breach of duty by the defendant." Hopkins v Silber [Md. App., 2001] [citations and internal quotations omitted].In the context of last wages, this concept means that an injured plaintiff, if and when healed, must look for work.
Past lost wages are generally a straightforward matter. In a serious personal injury action, though, the injured person's future earnings must be considered in two ways. An experienced Baltimore personal injury lawyer will advise you that if that injured person will incapacitated for a period of time after the trial, and was working prior to the injury, a reasonable measure of damages is the average wage earned prior to the incapacity, projected over the length of the incapacity. "In an action for personal injuries, a plaintiff may recover for loss of future earnings which will reasonably and probably result from the tort. Monias v. Endal, 330 Md. 274, 623 A.2d 656 (Md., 1992). "A tort victim suing for damages for permanent injuries is permitted to base his recovery on his prospective earnings for the balance of his life expectancy at the time of his injury undiminished by any shortening of that expectancy as a result of the injury." Sea-Land Services, Inc. v. Gaudet, 414 U.S. 573, 595, 94 S.Ct. 806, 819, 39 L.Ed.2d 9, 26 (1974). What if the person is not working at the time of the injury, or, has just started a new career that is expected to yield income, but has not yet? Consider that this person cannot any longer work in that new field because of their injuries. That is a different type of claim. A Baltimore personal injury lawyer knows the law provides "[t]here is a distinction between loss of earnings and loss of earning capacity. A person is entitled to compensation for the lost capacity to earn, whether he would have chosen to exercise it or not. Most courts which have discussed the subject have held that it is not necessary to show either the plaintiff's earnings prior to the injury or decrease in earnings after the injury in order to establish the fact of loss of earning capacity." Monias v. Endal, 330 Md. 274, 623 A.2d 656 (Md., 1992) How does one prove what their "earning capacity" is? "Essentially, an accident victim is entitled to be compensated to the extent his or her power to work in an activity that produces income has been reduced by the injury. There is no fixed rule by which the amount of damages for diminution or impairment of earning capacity may be definitively measured. Instead, all relevant facts on the issue must be considered. The prevailing proper measure of lost earning capacity is the difference between the amount that the plaintiff was capable of earning before his injury and that which he is capable of earning thereafter. Essentially, the plaintiff must establish the disparity between the market value of his services before and after the injury." Anderson v. Litzenberg, 694 A.2d 150, 115 Md.App. 549 (Md. App., 1996). Make sure you fully explore all aspects of a wage loss claim with a knowledgeable Baltimore personal injury attorney.
WHAT IS THE VALUE OF MY BALTIMORE INJURY CASE? I hurt my back once before. Now I got in an accident, and feel a lot worse.
Consider someone who sustained a back injury a decade ago as a result of a work related injury, and assume that same person is today involved in an automobile accident, and has back pain. Can there be a financial recovery for pain and suffering for the new automobile accident? Won't the insurance company say the injury and pain is "preexisting"? The law provides that the effect that any injury might have on a given individual- who might be predisposed to injury because of age, general health, or a particular medical condition- should not affect the damages recovered. A Baltimore personal injury attorney will also tell you the law also provides that a person who had a particular condition before the accident can recover for an aggravation, exacerbation, or worsening of that underlying condition. An experienced Baltimore personal injury attorney can assist you in proving that aggravation, exacerbation, or worsening. To be sure, the insurance company will always argue that your injury and pain come from any source under then sun other than the accident for which you are making a claim. An Baltimore experienced personal injuryattorney can help you document, quantify, and prove through medical evidence the precise nature and extent of the aggravation, exacerbation, or worsening of an underlying condition.
WHAT IS THE VALUE OF MY BALTIMORE INJURY CASE? What is considered in determining the amount of an award?
Baltimore personal injury lawyers ask every day that jurors are instructed to consider several factors in fashioning an appropriate award: the nature and extent of plaintiff's injuries, and the length of the process of recuperation; the effect those injures have on the mental and physical condition of the plaintiff; physical and mental pain and anguish, past, present, and future; disfigurement, scarring, and embarrassment; medical expenses past, present, and future; loss of earning-or earrings potential- past, present, and future. Many of these components are explored in greater detail in other chapters of this volume.
Recovery is permitted for lasting effects of injuries that, with "reasonable probability", can be expected in the future. Experienced Baltimore personal injury attorneys are familiar with the type of evidence is needed to support the required reasonable probability include the presence of at least some symptoms or effects at the time of trial, and expert testimony that the symptoms are of a "chronic" nature. Giant v. Scherry, 444 A.2d 483. Note that the "possibility" that current injuries might have future effects is not enough. The standard, usually demonstrated by the testimony of a treating physician, is that of probability. However, the level of proof required is not that of certainty.
Can I collect interest on my award? An experienced Baltimore personal injury lawyer will advise you that, absent exceptional circumstances, pre-judgment interest [interest that would be cover the time period from the date of the injury to the date of the verdict or settlement] is NOT awarded in personal injury cases. The rational is that the amount of pain, suffering or emotional anguish is not subject to ready measurement. However, once the amount of the award is reduced to a judgment of the court, post-judgment interest of 10% will accrue from the date of the judgment until paid. A Baltimore personal injury attorney may be able to assist you in collecting the full amount to which you're entitled.
WHAT IS THE VALUE OF MY PERSONAL INJURY CASE? Can I collect for my emotional distress or injury if I'm not directly physically injured?
Of course if you sustain a serious physical injury due to the negligence of another, and there is accompanying emotional distress, recovery for that distress is not normally in question. But what if there is no direct physical impact, just fright, fear, nervousness or the like that result from someone's negligent conduct? An experienced Baltimore personal injury attorney will tell you "[I]n earlier times, courts did not recognize a specific duty to refrain from the negligent infliction of emotional distress and that, as a result, recovery of damages solely for mental distress was not permitted. Instead, damages for mental distress had a parasitic status; recovery was dependent upon an immediate physical injury accompanying an independently actionable tort." [internal quotations omitted] Hoffman v. Stamper, 385 Md. 1, 867 A.2d 276 (Md., 2005). Over time, courts changed the older rule, adopting instead the "modern rule," which permitted recovery for negligent infliction of mental distress if a physical injury resulted from the commission of the tort, regardless of [an] impact" which caused immediate physical injury. Id. Some "physical injuries" resulting from negligently inflicted emotional or mental distress that have been recognized by the courts include: depression, emotional upset, loss of appetite, insomnia, nightmares, loss of weight, extreme irritation, and "nervous prostration". Vance v. Vance, 408 A.2d. 728. An experienced Baltimore personal injury attorney can evaluate if you have such a claim, and help you document, quantify, and prove it.
A Baltimore personal injury lawyer will tell you Maryland juries are instructed that negligence is doing something that a person using ordinary care, caution and prudence would not do, or, in fact doing something that a reasonably cautions person would not, under the circumstances. The standard is typically that of hypothetical "reasonable person". The question is "How would that reasonable person react under similar circumstances". If the person that hurt you has acted in a way that this imaginary reasonable person would not have acted- that's negligence. To prove up a case for negligence in court, a Baltimore personal injury attorney must show that 1] the defendant owed them a duty to conform their conduct to specific standard of care that prevents harm- or the risk of harm- to others 2] the defendant did not conform their conduct 3] that failure fairly directly led to an injury that 4] damaged the plaintiff. If you've been injured by someone else, an experienced Baltimore personal injury attorney can evaluate if you have a claim, and help you document, quantify, and prove it.
WHAT IS THE VALUE OF MY PERSONAL INJURY CASE? Who can I sue? Can I sue a business if their employee injures me?
If an employee of a business commits an act of negligence that injures another, while conducting the business of that employer, an injury victim may seek to recover damages from the employee that hurt them, or, from the business itself. Many Baltimore personal injurylawsuits are built on this principle, called respondeat superior. What if the negligent individual is not an employee of business, but rather an independent contractor- doing work for the business, but not actually employed by the business? As a general rule, the business that uses an independent contract to perform work is not liable for the negligence of that contractor, or the negligence of the employees of that contractor. In Appiah v. Hall, the Maryland. Court of Appeals discussed two exceptions to the general rule. One, where the business using the services of a contractor is a possessor of land and allows an unsafe condition to exists on land owned by the business, the business may be liable for personal injury caused by the unsafe condition. Secondly, if the business using the independent contractor retains control over the details and methods of the work, the contractor performs that work negligently, and the very aspect of the work over which control is retained causes a personal injury, that business may be held liable for the negligence of the contractor.
Maryland law also provides that an employer may not hire or retain anyone who poses an unreasonable risk of harm to others who could forseeably have contact with that person because of the employment. In order to prevail, a Baltimore personal injury lawyer must show that the person causing the harm was actually an employee of the defendant employer; that the person causing the harm was not competent to perform the tasks of the employment; the defendant employee knew the employee was incompetent; that there was an act that caused harm, and that the defendant employer's negligence in hiring or retaining the employee was the cause of the injury. Though difficult to prove, an experienced Baltimore personal injury attorney can help you evaluate if you have such a claim.
Most people who don't work in the legal system are familiar with the "statute of limitations". But what does that mean? Is there more than one? Is there any way around it? In Maryland, a negligence action generally must be filed by a personal injury attorney within 3 years from the date of injury But imagine a situation where someone may not discover that they are injured until many, many years later [e.g. see Mesothelioma, a rare cancer generally caused by exposes to asbestos, that may not manifest itself for decades.] An experienced Baltimore personal injury lawyer can help you determine if the statute of limitations may be extended in a particular case.
Thursday, May 5, 2011
Most people who don't work in the legal system are familiar with the "statute of limitations". But, are there other time limits that apply? Maryland law provides special time limits and notification requirements. An experienced Baltimore personal injury attorney can provide you with guidance on these specific procedures. If your claim is a tort [e.g. negligence] claim against the State of Maryland, your personalinjury attorney must notify the state treasurer of the claim with 1 year of the occurrence or the suit will be disallowed, even though statute of limitations may not run for 2 more years. If your claim is a tort claim against a local government entity, your personal injury lawyer must notify the designated representative within 6 months of the occurrence or the claim will be disallowed, even though statute of limitations may not run for 2 and one half more years.
WHAT IS THE VALUE OF MY PERSONAL INJURY CASE? Is it too late to sue? What about a medical malpractice claim?
In Maryland, a negligence action generally must be filed by a personal injuryattorney within 3 years from the date of injury. However, an action for damages relating to providing, or failing to provide, professional health care services must be brought within the earlier of 5 years from the date of the act leading to injury, or three years after the injury was discovered. The injured person must always act with appropriate diligence in pursuing the claim. The time periods may be extended if a minor is the injured person. An experienced Baltimore personal injury attorney can provide you with the time-frames that apply to your case.
Your actions immediately after an automobile accident can actually impact what your case my ultimately be worth. An experienced Baltimore personal injury attorney will have specific recommendations about steps you need to take to protect yourself and your rights. For years, major insurance companies have been circulating lists of post accident advice, and many of the suggestions make sense. For example, State Farm advises that you "[d]on't sign any document unless it's for the police or your insurance agent; [m]ake immediate notes about the accident, including specific damages to all vehicles involved, witness information, etc; [d]on't tell anyone the accident was your fault, even if you think it was; [and to] state only the facts, and limit your discussion of the accident to the police and your insurance agent". While it's hard to argue with what your insurance company tells you to do, the list is hardly exhaustive. An experienced Baltimore personalinjury attorney will advise you to seek medical attention immediately. Even if you do not feel you or family members are seriously injured, it is always a good idea to let a medical professional make that determination for you. Secondly, take pictures of everything: the tags on the vehicles; the vehicles themselves-being careful to note any damage; the other drivers; the accident scene- noting stoplights, lane markings, direction of travel etc. Note the presence of police, city or commercial cameras. With 8 million cameras in the country, more and more things are recorded on video. Cell phones work, and almost everyone has one, but an actual camera produces higher quality pictures. Many Baltimore personal injury attorneys also recommend that their clients that have sustained serious injury keep a "pain diary". A "pain diary" is a chronology of the days, weeks, and possibly months after the accident, detailing daily social, work or household activities that are made more difficult, or impossible, by the injuries from the accident. In some instances, and injury victim is not asked to recall the nature of their injuries until months, or years, later. The diary can be an invaluable document for recreating the process of healing and recuperation.
WHAT IS THE VALUE OF MY BALTIMORE PERSONAL INJURY CASE? Can a child contribute to his or her injuries?
As discussed in another chapter, any Baltimore personal injury lawyer will advise you that the law of five jurisdictions, Alabama, District of Columbia, Maryland, North Carolina, Virginia, contains the doctrine of "contributory negligence". This principle, a leftover vestige from the common law of England, hundreds of years old, operates to deny any financial recovery whatsoever to an auto accident victim found to be responsible, in even the smallest measure, for causing or contributing to the accident. But what if the injured person happened to be a child? Children under five years of age can never cause or contribute to their injuries. Children over 5 are judges by the standard of conduct that children of similar age, intelligence and experience and development would be held to under similar circumstances.
Many Baltimorepersonal injury lawyers routinely handle Baltimore bus cases against the MTA and/or an at-fault driver. The Maryland Transit Administration is considered a "common carrier" [one who engages in public transportation for a fee]. A common carrier owes a duty to its passengers of safe transport, and reasonably safe ingress and egress from the conveyance. Baltimore personalinjury attorneys know the obligation begins when the passenger enters property owned or controlled by the carrier. A common carrier owes an obligation to its passengers to use the highest degree of care. What about situation where there is no accident with another vehicle, but someone claims personal injury due to a sudden start or stop? In this instance, a Baltimore personal injury attorney must prove that the movement caused by the start or stop was "unusual or extraordinary" , and must show the start or stop created some "definite factual incident" that is "abnormal and extraordinary". Baltimore personal injury lawyers cannot rely on mere "adjectival descriptions of the nature of the stop" to prove his or her case. WMTA v. DJAN, 979 A.2d 194 .
Maryland law divides all intersecting roadways into two classes. A Baltimore personal injury lawyer will tell you that one class involves "favored" roadways [i.e. the Boulevard], the other "unfavored." The driver operating on the favored road has the right of way-as long as she is obeying the rules of the road [for example, not going the wrong way on a open-way-street]. He or she can assume the driver on the unfavored road will stop or otherwise yield. Typically, this involves a through highway intersected by a side street with a stop sign. Most Baltimore personal injury attorneys know that the purpose of the rule, at least in part, is to encourage the unimpeded flow of traffic on the Boulevard. The driver entering the favored road gains the right of way once they have entered the flow of traffic. The law in this area can become intricate, in particular where passengers have brought personal injury claims against drivers, and both of the drivers have contributed to the accident in some manner. An experienced Baltimore personal injury lawyer can advise you of the role of the Boulevard rule in your personal injury case.
HOW MUCH IS MY BALTIMORE PERSONAL INJURY CASE WORTH? Is the owner of the car that hit me responsible?
Yes, but it depends on the circumstances. A Baltimore personal injury attorney will advise you that the non-owner operator of a negligently driven vehicle is responsible for their own negligence. Now, if that vehicle were covered by insurance procured by the owner, typically there would be coverage for an accident caused by the non-owner operator, as long as he or she had the owner's permission to drive the car. Many times, perhaps most, that is the case. Baltimore personal injury attorneys sometimes face situations where it is necessary to convince the jury the owner, in addition to the driver, should be separately responsible for an accident. One such scenario, discussed in a separate chapter, is where the owner is a business, and the non-owner operator is an employee, operating the vehicle in the scope and course of their employment. If that employee is negligent, the business/owner is responsible. Some Baltimore personal injury attorneys have successfully argued that where the owner of a vehicle has reason to know that a driver would be negligent-based on that driver's past poor driving- the owner may be liable for an accident based on a theory called "negligent entrustment".
WHAT IS THE VALUE OF MY BALTIMORE PERSONAL INJURY CASE? Is the driver of the car that hit me responsible?
Any Baltimore personal injury attorney will advise you that all Maryland drivers are charged with the obligation of using reasonable care for the safety of others when driving. Many Baltimore personal injury lawsuits come about when a driver fails to use the degree of caution and attention that an ordinary person would use under the circumstances. The nature of the duty may change depending on the circumstances [e.g. adverse weather conditions]. If you've been hurt through no fault of your own, consult and experienced Baltimore personal injury attorney to examine your legal rights, and the possibility of a financial recovery for your injuries. An experienced Baltimore personal injury lawyer can advise you of the role of the "emergency rule" in your personal injury case.
HOW MUCH IS MY BALTIMORE PERSONAL INJURY CASE WORTH? Is the driver of the car that hit me responsible? What is this "emergency doctrine?"
As noted in another volume, any Baltimore personal injury attorney will advise you that all Maryland drivers are charged with the obligation of using reasonable care for the safety of others when driving. However, the nature of that duty may change depending on the circumstances. A driver faced with a sudden and real emergency situation, not a result of that driver's misconduct, is required only to use the care and caution that a reasonable drive would, under those exact circumstances. Many Baltimore personal injury lawyers, for the defense, have successfully argued, that drivers, due to weather or other circumstances, are not responsible for accidents that they caused. If a person has done what any reasonably cautious prudent person would due when confronted with an emergency, then they are not negligent, even though there was an accident.
Who can I sue? "Dramshop" liability revisited
A knowledgeable Baltimore personal injury lawyer will tell you, a Dramshop Act is a law that imposes civil liability on the vendors of intoxicating liquor where, typically, that liquor is dispensed to someone who is obviously intoxicated, and that obviously intoxicated person then leaves the establishment, and injures another, often in a DUI related auto accident. As all experienced Baltimore personal injury attorneys know, the law in Maryland has always been that because the sale of the alcohol does not directly injure the third person, then there can be no liability on the seller- even if that sellers provides alcohol to a clearly excessively intoxicated person. Except one.
Drampshop revisit [5/4/11]: The Maryland Daily record is reporting that a Baltimore personal injury attorney has successfully convinced a trial court that a lawsuit seeking damages [Warr v. Dogfish] against a bar for selling liquor to an intoxicated driver that later killed a child, should be allowed to proceed. According to the paper [v. 122 No. 148] the ruling has been criticized in academic circles. It appears likely that ruling would be overturned on appeal, or, as some hope, the case may give the appellate court an opportunity to change the common law of Maryland and impose civil liability on the vendors of intoxicating liquor where that liquor is dispensed to someone who is obviously intoxicated, and later hurts some one.
If an employee of a business commits an act of negligence that injures another, while conducting the business of that employer, an injury victim may seek to recover damages from the employee that hurt them, or, from the business itself. Many Baltimore personal injury lawsuits are built on this principle, called respondeat superior.
What happens, though, if the person that commits the negligent act is not an employee of business, but rather an independent contractor- doing work for the business, but not actually employed by the business? As a general rule, the business that uses an independent contract to perform work is not liable for the negligence of that contractor, or the negligence of the employees of that contractor. In Appiah v. Hall, the Maryland. Court of Appeals discussed two exceptions to the general rule. One, where the business using the services of a contractor is a possessor of land and allows an unsafe condition to exists on land owned by the business, the business may be liable for personal injury caused by the unsafe condition. Secondly, if the business using the independent contractor retains control over the details and methods of the work, the contractor performs that work negligently, and the very aspect of the work over which control is retained causes a personal injury, that business my be held liable for the negligence of the contractor.