How to Know if You Have a Premises Liability Claim

A premises liability claim can usually be made if you were injured on another person’s property due to that property’s dangerous or unsafe conditions.

Premises liability cases are a subset of personal injury law, and premises liability cases are similarly based on negligence.

Do You Have a Claim?

Like most personal injury cases, getting a settlement and winning a premises liability case depends on proving negligence.

If you incur an injury on someone else’s property, then you need to show that your injury was the result of the owner’s negligence in maintaining his property.

In more precise legal terms, winning a premises liability case depends on showing that the property owner breached a “duty of care.”You may even have a case if you were injured on an owner’s property by a third party.

For instance, some assault cases that occur on an owner’s property can still hold the owner legally accountable for injuries. These are known as third-party premises liability cases. The negligent owner in a third-party premises case is said to be “vicariously liable” since the assault occurred on his property.

It’s important to remember, though, that premises liability cases center around proving that the property owner was negligent, and that the negligence resulted in your personal injury.

Simply because you are injured on another person’s property is necessary but insufficient grounds for a premises liability case – the owner must have known that the premises were in a dangerous condition and failed to take action to make the property more safe. This is where the owner would have breached his duty of care.

Common Premises Liability Cases

A property owner has a responsibility to maintain a certain level of safety when it comes to visitors’ safety.

If the owner fails to maintain a reasonable level of safety and someone gets injured, that’s when a premises liability claim might come into play.

Here are some of the most prevalent kinds of premises liability cases that people in California file against negligent property owners:

  • Dog bites
  • Slipping accidents
  • Elevator accidents
  • Inadequate property maintenance
  • Swimming pool accidents
  • Amusement park accidents
  • Restaurant accidents
  • Retail store accidents

Premises liability cases cover a broad spectrum of personality injury cases. The commonality across these premises liability cases, though, is a negligent property owner that failed to maintain safe conditions, which resulted in a personal injury.

Premises Liability in California

California premises liability cases involve aspects of both case law and statute law. In California, a property owner has a responsibility to maintain safe conditions.

The property owner has to show “due care” towards keeping his property safe and, if s/he fails to do that, then that might be a breach of the owner’s legal duty and grounds for a premises liability case.

Winning a premises liability case in California largely depends on showing that the property owner owned and controlled the premises at the time of the accident.

If the owner had no control over the premises when your accident occurred, then s/he can’t be held liable since the owner didn’t have a duty to exercise a reasonable care to prevent the personal injury.

In the state of California, the property owner’s duty of care extends to both “invitees” and “licensees.”

An invitee is a person who has implied permission to come onto the property (e.g., friends) whereas a licensee is coming onto the owner’s property for his own reasons (e.g., salesperson). Trespassers, unlike invitees and licensees, are owed a far smaller duty of care.

Contact a personal injury lawyer today if you’ve suffered a personal injury and you feel the property owner is responsible.

What is Professional Negligence?

In the legal world, there are many names for professional negligence including professional malpractice and professional liability. Regardless of the terminology used, it means one thing: you trusted a professional to resolve an issue for you and instead you were injured.

As you may have noticed the word “professional” is in every term used when discuss this type of malpractice. That is because it involves someone who is practicing a skilled profession owing you a duty of care. This professional may be a:

  • Doctor
  • Dentist
  • Lawyer
  • Nurse
  • Accountant

The Meaning of Negligence

When you hire a professional, that person owes you a duty of care to ensure he does not harm you in some kind of way. For instance, a doctor is not supposed to cause an injury or make a pre-existing injury worse. The term malpractice means that the professional gave you substandard care. Remember, by California law a professional does not have to provide you with high quality or superior care. She must provide the standard of care California expects her to give you.

When you receive substandard care it means that the professional failed to give you the type of care you deserved. The state measures this “standard of care” by what another skilled professional would provide in the same or similar circumstances. For example, a doctor misdiagnosed your heart attack symptoms as acid reflux. Under the same or similar circumstances another San Francisco doctor would have accurately diagnosed your heart attack, then you received substandard care.

Type of Negligence

When a professional provides you with substandard care it is known as breach of duty. This simply means he did not do what he was supposed to do.

How does a professional breach a duty of care? Well, there are many different ways such as:

  • Making an error. The professional acted badly when providing care. This could be a pharmacist filling a prescription with the wrong medication for your child. She became deathly ill.
  • Making an omission. An omission means the professional was supposed to do something, but did not. In other words, he failed to act. This could be a lawyer who was supposed to submit an emergency filing, but did not. As a result, you lost your case.
  • Ignorance. Ignorance means that the professional should have known what to do. This could be an anesthesiologist who should have known to watch your family member’s vital signs during a procedure. He didn’t and your loved one died.
  • Intentional wrongdoing. Intentional wrongdoing means that the professional purposely did something wrong. This could be nurse who purposely withheld medication from your loved one.

The Professional Negligence Injured You in Some Way

In order to provide professional negligence, there must be proof that you were injured. This separates the professional malpractice cases from those were a professional provided substandard care, but no one was injured. Individuals in the latter category typically have no malpractice case.

What is considered an injury?

It depends on the type of professional negligence case. In a malpractice case against a doctor it means sustaining an injury. In a lawyer malpractice case it may be losing custody of your children if the motion was not filed properly.

Damages are considered the monetary award you will receive to compensate for the substandard care you received. To understand more about your potential professional negligence claim, talk to a San Francisco lawyer. A personal injury lawyer will look over the facts of your case and advise you whether to proceed or not. You can schedule an initial consultation for free to find out the answers you need.

What is a Third Party Claim?

A third party claim is also known as a third party proceeding, and this type of claim involves someone attempting to bring a third party into litigation. Perhaps providing an example of a third-party claim and contrasting a third party claim with a first party claim will help give you a fuller idea of what a third party claim is.

First-Party Claim Vs. Third-Party Claim

The terms first-party claim and third-party claim are both pieces of terminology within insurance law and personal injury law. Under insurance contracts, the insured person is considered the first party and the insurance company itself is considered the second party.

So, where does the third party enter the picture? A third party is someone foreign to the insurance policy covering the insured (first party) and the insurance company (second party).

For example, if person A is insured by Acme Insurance Company, then person A is the first party and Acme Insurance Company is the second party. To continue the example, a third party would be someone trying to engage the Acme Insurance Company in litigation.

Perhaps a more concrete example would help. If your home gets wrecked by a hurricane, then the owner of the homeowner’s insurance policy (the first party) contacts the insurance company (second party) to provide first-party coverage and help the homeowner recover financially from the property damage.

Third-Party Claims and Insurance Claims

A third party, then, is someone outside of the contract between the first party and the second party. Third-party claims are the most frequent type of car insurance claim made within the United States.

Filing a claim against another driver’s car insurance company following a car accident is a third-party claim. You are seeking to bring the other person’s insurance company (a third party from your perspective) into litigation, and this kind of litigation is normally a liability claim.

A third-party claim is sometimes necessary to take following a car accident because you may have suffered a personal injury or damage to your car, yet the other person’s insurance company doesn’t have a contract with you per se.

The insurance contract is between the person that hit you (first party) and their insurance company (second party), so you (the third party) need to bring the other person’s insurance company into litigation in order to receive compensation for possible personal injuries or pain and suffering sustained during or after the accident.

Examples of Third-Party Claims

If, say, you were driving a company car on a work-related assignment and you got into a car accident, then you might be able to receive compensation for your medical expenses by filing a third-party claim against the insurance company that your employer has.

Lost wages as well as pain and suffering could be compensated for by the other person’s insurance policy if the other person was deemed at fault in the accident. These kinds of third-party claims are often liability claims because another party is at least partially responsible for your personal injury or possible pain and suffering.

Under rare circumstances, someone could file both a first-party claim and a third-party claim against an insurance company. If, say, you were a passenger if your own car and your friend driving the vehicle got into an accident. You could, then, file a first-party claim with your own insurance company and file a third-party claim.

Summing Up

First-party claims are between a policy holder (first party) and an insurance company (second party) whereas a third-party claim is filed by an outsider to that insurance contract. Third-party claims are usually associated with car insurance claims and typically involve a liability claim.

Mediation and Arbitration

A good lawyer always wants what’s best for the client and, in many cases, that involves alternative dispute resolution processes that keep client fees more manageable and prevents clients from having to step foot in a courtroom. Mediation and arbitration have helped thousands of couples to navigate their divorce agreements as peacefully as possible, keeps families from going to court over child custody issues or entering the agonizing probate process, and they have helped corporate clients resolve any number of disputes.

Work With an  Arbitration Lawyer for Win-Win Resolutions

Most people automatically envision “going to the courthouse” when they think about legal disputes. In fact, the courtroom should always be the last alternative. By the time you get to court, you have spent quite a bit of time, energy and money – and more will continue to be spent as long as the case is being worked out in front of a judge. Instead, we recommend alternative dispute resolution (ADR) as a means of saving your money, time and precious life energy. In best case scenarios, ADR will also help to preserve your personal and professional relationships, which is a win-win situation for all.

What is Mediation?

A lawyer specializing in mediation can help you to resolve a multitude of disputes ranging from personal injury claims, conflicts with employees and management, small claims issues to disputes between neighbors or divorce and child custody agreements. Both parties must be in agreement regarding the mediator who oversees the process. The mediator remains an entirely neutral facilitator; he is not there to agree or disagree with either party, assess blame, or in any way affect the final outcome of the mediation process other than to act as a resource in regards to California law. However, it is the mediator’s job to facilitate concessions from either side when things are at a stand-still in order to avoid further conflict, dispute or a potential trial.

In our experience, the vast majority of clients who use mediation as a means of settling their claims are successful in resolving their dispute(s). If, for some reason, both parties are unable to come to a resolution, then you have the right to proceed with a trial and we can help you to prepare for the next step.

What is Arbitration?

Typically, the arbitration process is more formal than mediation. In most cases, arbitration occurs as the result of a pre-dispute contract that stipulates both parties must seek arbitration before any conflict or dispute can be taken to court. There are two different forms of arbitration: Binding and Non-Binding.

Binding arbitration means that the arbitrator’s decision is final and cannot be overturned or reversed except for extremely limited circumstances. If the arbitration is non-binding, either party can reject the arbitrator’s decision and pursue a trial.

What is a Personal Injury Lawyer?

A personal injury lawyer is just like other types of lawyers who advises, represents and advocates on behalf on their clients. What makes this type of lawyer different from a criminal or entertainment lawyer is the area of law he or she specializes.

Tort Law

Tort law includes civil or private injuries or wrongs such as breach of contract, automobile accidents, dog bites, or defamation. Tort law has two goals:

  • To make the injured party “whole” again.
  • To discourage other people from doing the same offense.

Under tort law, a personal injury lawyer can represent a plaintiff or defendant in a personal injury case. If the personal injury lawyer represent a plaintiff, he or she is fighting for compensation such as:

  • Past reasonable medical expenses.
  • Future medical expenses.
  • Emotional distress.
  • Legal costs.
  • Loss of earning capacity.
  • Attorney fees.
  • Pain and suffering.
  • Loss of companionship or consortium.
  • Receiving a fair settlement from defendant or insurance companies.

Personal Injury Lawyer’s Duties

Personal injury lawyers often handle more than one case at a time. Regardless of the number of cases, he or she has, the duties are still the same. He or she:

  • Investigates claims.
  • Talk with potential clients.
  • Accept or decline to represent clients based on evaluating the merits of a case.
  • Gather evidence.
  • Build a case based on a legal theory.
  • Research a particular case law.
  • Writes a letter to opposing parties to inform them about the intent to sue.
  • Draft and file any lawsuits.
  • Conduct discovery. This is where a lawyer exchanges information with opposing counsel. The purpose is to gather additional evidence. It also includes deposing and interviewing witnesses and parties to the case.
  • Draft and file any motions and pleadings.
  • Prepare for trial.
  • Present evidence at trial.
  • Counsel clients.
  • Negotiate settlements.

Typically, a personal injury lawyer completes all these tasks on a contingency basis. This means they work for free until the case is resolved. If the lawyer wins the case, he or she receives a payment. The payment could be anywhere from 20 to 40 percent of the award. A “win” can be a jury verdict or a negotiated settlement. However, if a personal injury lawyer doesn’t win or settle the case, he or she doesn’t receive any money.

Cases that Require a Personal Injury Lawyer

Some cases that are considered simple may not require the assistance of a personal injury lawyer. However, there are many situations where having a lawyer is vital to a client’s case. These cases include, but aren’t limited to:

  • Medical malpractice.
  • An insurance company that refuses to pay a client.
  • Premise liability cases.
  • Wrongful death lawsuits.
  • Libel, defamation and slander lawsuits.
  • Product liability cases.
  • Cases involving permanent injuries and emotional distress.

In many situations, what begins as a simple personal injury case can become very complex. However, a personal injury lawyer’s job is to represent his or her client and find the best way to resolve the legal dispute.

What is Wrongful Death?

What are wrongful death lawsuits and when might they be brought against another person? A wrongful death lawsuit is a type of civil action that can be brought against a company or person responsible for another’s death.

Wrongful Death and Negligence

Normally, wrongful death lawsuits are filed by surviving family and brought against, for instance, a car company for selling a faulty vehicle or a liquor store owner for selling alcohol to a minor that lead to a roadside fatality.

Wrongful death claims usually involve wrongdoing or some form of negligence. A wrongful death lawsuit can be brought against anyone from a doctor or highway engineer to car manufacturer.

If a car manufacture, for example, knowingly ships out vehicles with faulty parts, then the car manufacturer might face a wrongful death lawsuit subsequent to a fatal accident tied to those faulty parts.

Alternatively, a physician who prescribes too high a dose that ultimately leads to a wrongful death could face a wrongful death lawsuit.

Although some cases of wrongful death are indeed murder, many cases of wrongful death involve simple negligence.

Civil Damages in Wrongful Death Lawsuit

In most cases a close family member or spouse can file a wrongful death lawsuit on behalf of the deceased. If found guilty of wrongful death, the defendant bringing the wrongful death lawsuit will be “made whole” and awarded civil damages.

Civil damages are simply monetary awards given to the plaintiff from a guilty defendant. Civil damages can be general or special – general damages are typically more intangible and include compensations for emotional distress as well as pain and suffering.

Special damages include more quantifiable payments. Lost wages and even future income that would have been generated by that family member had s/he not suffered a wrongful death could both be considered special damages.

Before contacting a law firm, make sure that you document all of the facts surrounding the timing and circumstances of the wrongful death. Contact any witnesses who could help strengthen your wrongful death lawsuit as well.

Individual circumstances and the amount of negligence largely dictate how much compensation in civil damages the surviving kin receive for a wrongful death.

Wrongful Death Lawsuits in California

In California, hospital and funeral bills are part of the special damages that are paid to the surviving kin. Future financial support that would have been generated had the wrongful death not occurred also constitute civil damages payable to surviving kin.

A very common rationale behind filing a wrongful death lawsuit is to address medical malpractice that resulted in wrongful death. Medical malpractice is a form of negligence and, if proven in court and linked to a wrongful death, could entitle surviving kin to general and special civil damages.

In California, if the wrongful death occurred in a patient who had less than a 50-50 chance of survival, then the wrongful death lawsuit has a much worse chance of standing up in court. The reasoning behind this is that negligence by a physician would be harder to link to a wrongful death if the patient were already in a poor state of health.

Also, since the California Supreme Court has ruled that a fetus is not a person, wrongful death lawsuits are not applicable in this area.

Finally, California has a statute of limitations for wrongful death cases. This means that if surviving kin or a spouse fails to file a wrongful death lawsuit in the two year timeframe following the wrongful death, then the California civil court system might not hear the case.

Do You Need a Restraining Order?

A restraining order is a court order or injunction to do or cease doing particular acts. In practical terms, a restraining order is normally used in cases involving domestic violence, assault, stalking and harassment.

Within the United States, every individual state has some restraining order related to domestic violence cases. Most states have their own rules for restraining orders related to sexual assault and stalking.

Most restraining orders in California have an expiration date. This basically means that in the state of California, the day that your restraining order ends you are no longer protected legally.

If you continue to be concerned about your safety or the safety of your loved ones, you may file for renewal in your restraining order. A renewal of a restraining order can sometimes render the restraining order permanent.

Purpose of a Restraining Order

Normally a restraining order is used to put distance between someone being harassed and the person supposedly doing the harassing.

Thus, by court injunction, an abuser may be ordered to remain a certain distance from the school, home or workplace of the person who successfully filed the restraining order.

It is important to bear in mind that a restraining order is a civil order that does not result in dirtying up the criminal record of the supposed abuser.

Domestic Violence Victims

Victims of domestic violence frequently file restraining orders against their abusers. Domestic violence can include a whole range of actions, including: harassment, kidnapping, burglary, threats of violence, stalking, and assault.

If you have been subjected to any of these actions, you might be eligible to file for a restraining order against your abuser. A restraining order is a court injunction in which the judge will sign an order of protection that forces the abuser to comply with the law.

Consequences of a Restraining Order

A restraining order can prevent the abuser from contacting you or your family by phone or direct contact. Further, a restraining order could also force the abuser to leave a shared residence. A judge may decide to tell an abuser to leave even when the abuser owns the deed to the home.

If you are a parent and the victim of domestic violence, through a restraining order you may be awarded custody of minor children under your care. In addition, a restraining order can affect child support payments as well as visitation rights.

Depending on the state in which the restraining order is filed, the abuser may have to pay for things like utility bills, doctor’s appointments and even a loss of earnings related to the incident that brought about the restraining order.

In cases of extreme domestic violence, a judge could order the abuser seek treatment or order a police escort to come along with an abuser as he removes his personal possessions from the place of residence.

Signs that You Need a Restraining Order

Of course, it’s only natural to get a restraining order if you are the victim of domestic violence, assault, stalking or harassment. Sometimes, however, things aren’t as clear-cut.

The primary purpose of a restraining order is to keep the abused party safe from future harm. If you are concerned about the safety of yourself or your family members, it might be time to look into getting a restraining order.

Especially if the abuser has a long history of abuse, getting a restraining order and going through the right judicial channels and possibly police protection, could be the deciding factor in keeping you and your loved ones safe.