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Primary Issues Presented in Elder Abuse Civil Litigation Cases

Personal Injury Claims: When You Need a Lawyer

For certain personal injury claims -- such as those for severe injuries, malpractice, or toxic exposure -- you'll want to consult a lawyer.

Sometimes, the skills of an experienced personal injury lawyer -- or at least the threat to an insurance company that such a lawyer may present -- are worth the money you must pay that lawyer to represent you. You may need a lawyer because of complex legal rules involved in your particular claim, or because the severity of your injuries might cause your compensation to vary greatly from the norm -- or simply because an insurance company refuses to settle a matter in good faith. The following types of injuries and accidents almost certainly require a lawyer's help.

Long-Term or Permanently Disabling Injuries

Some accidents result in injuries that significantly affect your physical capabilities or appearance for a long time -- over a year -- or even permanently. Figuring out how much such a serious injury is worth can be a difficult business. You'll probably require some assistance from an experienced lawyer to get the most out of your claim.

Severe Injuries

The amount of your accident compensation is mostly determined by how severe your injuries were. And the severity of your injuries is measured by the amount of your medical bills, the type of injuries you have, and the length of time it takes for you to recover. As the amount of your potential compensation increases, the range within which that compensation may fall becomes wider. In such cases, it may be worth the expense to have a lawyer handle your claim and make sure you receive compensation at the highest end of the range.

Medical Malpractice

If you have suffered an injury or illness due to careless, unprofessional, or incompetent treatment at the hands of a doctor, nurse, hospital, clinic, laboratory, or other medical provider, both the medical questions and the legal rules involved are complex. They almost certainly require that you hire a lawyer experienced in medical malpractice cases.

Toxic Exposure

In the increasingly chemical world, we sometimes become ill because of exposure to contaminants in the air, soil, or water, in products, or in food. Claims based on such exposure are difficult to prove, however, and often require complex scientific data. And because the chemical and other industries have erected a huge wall to protect themselves from legal exposure while they continue to expose us to potentially harmful chemicals, the required evidence is very hard to come by. Get expert help.

When an Insurance Company Refuses to Pay

In some instances, regardless of the nature of your injury or the amount of your medical bills and lost income, you will want to hire a lawyer because an insurance company or government agency simply refuses to make any fair settlement offer at all. In these cases, something -- what the lawyer can get minus the fee charged to get it -- is better than nothing.

Finding a Good Personal Injury Lawyer

One good way to find a lawyer is to ask friends, acquaintances, or other lawyers for referrals -- and then interview the candidates. In addition, Nolo provides a personalized lawyer directory with information about each lawyer's experience, education, and fees, and perhaps most importantly, the lawyer's general philosophy of practicing law. By using Nolo's directory you can narrow down candidates before calling them for a phone or face-to-face interview.

Proving Fault in Personal Injury Accidents: General Rules

How to decide who is legally at fault for an accident or personal injury.

Determining legal responsibility for an accident or injury (often called "liability") can be complicated, but often rests on whether someone was careless or "negligent." It's easy enough to say that the person or business that caused an accident must pay for your injuries. But before you get to that point, you must determine who was legally at fault.

Determining Legal Liability

Most accidents happen because someone was careless. The basic rule is: If one person involved in an accident was less careful than another, the less careful one must pay for at least a portion of the damages suffered by the more careful one.

Legal liability for almost all accidents is determined by this rule of carelessness, and by one or more of the following simple propositions:

• If the injured person was where he or she was not supposed to be, or somewhere he or she should have expected the kind of activity which caused the accident, the person who caused the accident might not be liable because that person had no "duty" to be careful toward the injured person.
• If the injured person was also careless, his or her compensation may be reduced by the extent such carelessness was also responsible for the accident. This is known as comparative negligence.
• If a negligent person causes an accident while working for someone else, the employer may also be legally responsible for the accident.
• If an accident is caused on property that is dangerous because it is poorly built or maintained, the owner of the property is liable for being careless in maintaining the property, regardless of whether he or she actually created the dangerous condition.
• If an accident is caused by a defective product, the manufacturer and seller of the product are both liable even if the injured person doesn't know which one was careless in creating or allowing the defect, or exactly how the defect happened.

When More Than One Person Is at Fault

When there is more than one person responsible for an accident -- for example, if several careless drivers cause a wreck -- the law in most states provides that any one of the careless parties is responsible for compensating you fully for your injuries. The responsible parties must then decide between themselves whether one should reimburse the others.

This rule about collecting from any responsible person provides you with a couple of important advantages. If one liable person is insured and the other is not, you can make your claim against the insured person for the full amount. And even if both are insured, you will have to settle your claim with only one insurance company. Initially, consider everyone you think might be responsible and notify each of them that you may file a claim for damages.  Then, depending on what you discover about how the accident happened, or on which insurance company takes responsibility, you will pursue a claim against only one.

How Your Own Carelessness Affects Your Claim

Even if you were careless and partly caused an accident, in most states you can still get at least some compensation from anyone else who was also careless and partly responsible for the accident. The amount of the other person's liability for the accident is determined by comparing his or her carelessness with your own. The percentage of liability determines the percentage of the resulting damages he or she must pay. This rule is referred to as comparative negligence.

There is no formula for arriving at a precise number for a person's comparative carelessness. During claim negotiations, you and an insurance adjuster will discuss all the factors that might have resulted in the accident. Then the question of your own carelessness goes into the negotiating hopper along with all the other factors that determine how much your claim is worth -- such as the seriousness of your injury and the amount of your medical bills.

Car Accidents Caused by Negligence

Learn about negligence -- a legal theory for proving fault in car accident cases.

Negligence is a legal theory that is the basis for many car accident lawsuits. If you’ve been in a car accident and have been sued or are suing the other party, there’s a good chance you’ve heard the term “negligence” kicked around. But what exactly is negligence and how do you prove it? Here’s a primer on using negligence as a basis for recovery in car accident cases.

What Is Negligence?

When a person is negligent, it means that he or she has behaved in a thoughtless or careless manner, which has caused harm or injury to another person. A person can be negligent by doing something that he or she should not have done (for example, running a red light or speeding), or by failing to do something that he or she should have done (for example, failing to yield, stop for a pedestrian, or turn on lights when driving at night).

Negligence is a legal theory often used in car accident cases. A driver must use care to avoid injuring other motorists, passengers, or pedestrians -- basically, anyone that he or she encounters on the road. If a driver is not reasonably careful and injures someone as a result, the driver is liable for injuring the accident victim.

Elements of a Negligence Claim

The person who brings the lawsuit (called the plaintiff) must show that the defendant (the person being sued) was negligent. If you are the plaintiff, you must show all of the following:

The law required the defendant to be reasonably careful. In car accident cases, the law requires drivers to be careful when encountering anyone they meet on the road -- passengers, persons in other vehicles, and pedestrians -- so this one is a given. This is called the "duty of reasonable care." 

The defendant was not careful. This is called "breaching" (or violating) the duty of care. In determining whether a driver was sufficiently careful, the law compares the driver’s conduct with the conduct expected of a “reasonable person.” The law asks: How would a reasonable, prudent person have behaved in the same or similar circumstances?

If the defendant’s behavior falls short of how a reasonable person would have acted, the defendant has violated the duty of reasonable care. Examples of conduct expected of a reasonable driver include:

• stopping at a red light
• watching for crossing pedestrians, and
• following the vehicle in front at a safe distance.

The defendant’s conduct caused plaintiff's injuries. You must also show that the defendant's conduct caused your injuries.

For example, Paula is suing Dan, claiming that she suffered whiplash when Dan rear-ended her car. Paula must provide evidence that the whip lash was due to being rear-ended by Dan and not due to some other accident or event. If Paula suffered whiplash the day before the collision while playing golf, she’ll have difficulty establishing that Dan’s conduct --  rear-ending Paula’s car -- caused her injuries.

The plaintiff suffered losses and/or was injured.  Car accident victims are entitled to compensation for injuries, lost wages or earning capacity, pain and suffering , and property damage (for example, damage to a car). If there aren't any monetary losses or provable injuries, the plaintiff can't recover anything. For example, if Paula in the above example doesn’t suffer any physical injury, doesn’t miss any work time because of the accident, and her car sustains no damage, she cannot recover compensation from Dan because there has been no injury or damage.

The plaintiff must show evidence of his or her injuries and other monetary losses to be compensated. If you are the plaintiff, it’s important to keep complete and detailed records of all injuries, medical expenses, and property damage.

What Duties Does a Driver Have?

The law requires drivers to use reasonable care to avoid harming anyone encountered on the road. But what exactly does this entail? Here are some examples of specific requirements that the law has imposed. If a driver fails to meet these requirements, he or she may be found to have violated the driver duty of reasonable care.

Driving at a reasonable speed. Drivers have a duty to drive at a reasonable, prudent speed. A person who drives at a speed that is unreasonable in light of the existing traffic, road, visibility, and weather conditions may be negligent.  Even driving at the speed limit can be considered negligent if, for example, visibility is low, the weather is bad, or the circumstances warrant particular caution (driving by a school where you can expect children to be crossing, for example).

Vigilance and keeping a proper lookout. Drivers have a duty to be alert and to maintain a careful lookout for other vehicles, pedestrians, and road hazards. Drivers are expected to see the things that an ordinary, prudent person would see. A failure to keep a proper lookout -- by, for example, failing to take care when driving by a road construction site or a school crossing -- can constitute negligence.

Maintaining control of the car. Drivers are expected to keep their car under control by, for example, being able to stop quickly. Negligence may be inferred if a car loses control (such as overturning or leaving the road) for no apparent reason.

Maintaining and using the car’s equipment. Drivers are expected to maintain their vehicles in safe working order. For example, lights and brakes should be working properly.

Driver Duties Imposed by State Law

Each state has motor vehicle laws governing how drivers are expected to behave on the road. In certain circumstances, violating a motor vehicle law gives rise to a "presumption" of negligence -- meaning that the defendant must present evidence to prove that he or she was not negligent (rather than requiring the plaintiff to prove that the defendant was negligent).

Examples of conduct that may give rise to a presumption of negligence include:

• driving under the influence of drugs or alcohol
• violating right-of-way rules, including a pedestrian’s right of way, and
• driving on the wrong side of the road.

Car Accident Defenses

There are a number of defenses available to a defendant in a car accident case based on negligence. Using these defenses can lower or erase the defendant’s liability (that is, the amount of compensation the defendant must pay the plaintiff). For example, if a pedestrian runs into the middle of the road and is hit by a car, the driver may escape all liability or may only have to pay for a portion of the pedestrian’s injuries.

Getting Help

Some small car accident cases are straightforward and can be handled without a lawyer. If, however, your car accident case is complicated, involves severe or permanent disability, or involves large damages, consider hiring a personal injury attorney. If you decide to consult a lawyer, go straight to Nolo’s Lawyer Directory.

For more information on representing yourself in a personal injury case, such as a car accident case, get How to Win Your Personal Injury Claim, by attorney Joseph L. Matthews (Nolo).

Car Accidents Caused by Cell Phone Use

You may be liable for a car accident if you were using a cell phone while driving.

An increasing number of states and municipalities prohibit the use of cell phones while driving, exposing drivers to penalties such as fines. But did you know that in addition to breaking the law, using a cell phone while driving may also expose you to a lawsuit if you are involved in a car accident? Here’s an update on some of the latest legal developments regarding cell phone use and car accidents.

Drivers Using Cell Phones May Be Responsible for Car Accidents

When one driver sues another for damage resulting from a car accident, the person bringing the lawsuit (the plaintiff ) generally has to prove that the other driver (the defendant ) caused the accident through his or her careless driving.

In some recent cases, plaintiffs have argued (and some courts have agreed) that a driver was legally at fault for the accident (“negligent,” in legalese) because the driver used a cell phone immediately before or during the collision.

In other cases, injured plaintiffs have also been found to have contributed to the accident because they were using a cell phone while driving.

Examples of careless driving caused by cell phone use include:

• driving with only one hand on the steering wheel
• taking eyes off the road to reach for a cell phone or dial a number
• failing to keep a proper lookout and to pay attention to surrounding dangers because of distractions caused by the cell phone (this includes being distracted by a passenger’s cell phone use), and
• being distracted by a conversation on a cell phone (according to some studies, being involved in any kind of conversation -- particularly an emotionally charged one -- is enough to distract a driver and cause him or her to drive carelessly).

Employees Doing Business on Cell Phones

An employer might be legally responsible for a car accident caused by an employee if the employee was on a work-related call at the time of the accident. In such an accident, the injured person is more likely to sue the employer, rather than the employee-driver, because the employer typically has more money -- "deeper pockets," as lawyers say -- to pay a settlement or lawsuit judgment . This is why growing numbers of employers prohibit employees from making or taking work-related calls while driving.

Are Parents Responsible for Kids’ Cell Phone Use?

In a recent case, plaintiffs argued that parents should be held legally responsible for car accidents caused by their kids’ cell phone use. In this case, the parents provided the minor child with the cell phone, and the child was using a cell phone while driving. The law is still undecided on this issue, but parents should think twice before encouraging their kids to make calls while driving.

And keep in mind that some states have special cell phone laws applying to teens or novice drivers. In these states, teens may be prohibited from using cell phones while driving or may have more stringent restrictions than do adults.

Insurance

Insurance companies are paying close attention to the link between cell phone use and car accidents and many auto insurance websites warn of the dangers of distracted driving. If you are at fault for a car accident caused by cell phone use, or are ticketed for talking while driving, you’re likely to see your insurance premium rise. The best way to avoid a higher premium is to avoid an accident -- and potential driver distractions -- altogether. 

For a detailed guide on how to handle your own car accident or other personal injury claim, get How to Win Your Personal Injury Claim, by attorney Joseph L. Matthews (Nolo).

Car Accidents With Pedestrians

Here’s what to do, and how to determine fault, if you hit a pedestrian.

Hitting a pedestrian while driving a car is a scary occurrence, but not uncommon. According to statistics gathered by the National Highway Traffic Safety Administration, over 60,000 pedestrians were injured in traffic accidents in 2006. Hitting a pedestrian at a speed of over 30 miles per hour results in more serious injuries and fatalities -- yet a driver can severely disable a pedestrian in a crash where the driver is traveling only 10 miles per hour.

As a driver, it’s important to know what to do immediately after an accident with a pedestrian. By staying calm and speaking to the right parties, you can minimize your liability. Drivers should also learn the basic rules of fault, how injuries and damages will be compensated, and most importantly, how to avoid such accidents in the first place.

What to Do Immediately After the Accident

Most drivers that hit pedestrians are extremely upset immediately after the accident. Take a deep breath and focus on the following:

Safety comes first. First, get any injured people to a place of safety. Do not attempt to administer medical treatment beyond what is required of you in an emergency, such as CPR.

Get medical and legal help. Next, contact the police, medical care providers, and auto insurance providers (the driver’s and the pedestrian’s). If you are facing possible criminal charges for the accident, such as driving under the influence, contact a criminal defense attorney for yourself if you can. When the police and your insurance agent arrive, give truthful statements to them about how the accident took place.

Exchange contact information, but not much more. If the pedestrian is not incapacitated, exchange your name, phone number, and insurance information with them. Avoid talking extensively with the pedestrian or their friends or family members. Admitting fault, or making statements such as “I feel so guilty,” could expose you to a personal injury lawsuit. You should also avoid speaking directly to the pedestrian’s attorney or auto insurance company. It is important to have your auto insurance company communicate with the pedestrian’s attorney, auto insurance company, or pedestrian themselves.

Who Is at Fault?

When a driver hits a pedestrian, often the biggest question is: Whose fault was the accident? Generally, fault is determined by the law of negligence. A person who fails to exercise a reasonable standard of care under the circumstances may be considered “negligent.” For a detailed discussion of negligence in car accident cases, read Nolo’s article  Car Accidents Caused by Negligence.

However, both the driver and the pedestrian can be negligent. For example, the pedestrian may be crossing the street illegally while the driver is traveling in excess of the posted speed limit. This scenario is treated differently in different states.

Some states, such as Maryland and Virginia, follow what's called a "pure contributory negligence" rule. This means that if the pedestrian contributed in the slightest bit to the accident, then he and his auto insurance company cannot recover damages from the driver and his auto insurance company.

Other states follow a "comparative fault" rule. This means that a pedestrian can recover some damages even if he was partly at fault. (To learn more about contributory and comparative fault, read Nolo’s article  Car Accident Defenses: Contributory and Comparative Negligence.)

Police Reports and Insurance Company Findings

The police will take statements from the driver, pedestrian, and witnesses to determine who was at fault. They may make a conclusive finding on the spot or conduct a detailed investigation to make the finding later.

The police report from the accident will indicate which party the law enforcement officer saw as being at fault. Auto insurance companies, however, may dispute this finding. Insurance companies typically send an adjuster to the scene of the accident, or view the damage to persons and property soon after the accident has occurred. If you believe that your insurance company will unfairly assign you a greater percentage of fault, consider retaining a personal injury attorney to argue that you have a lower percentage of fault.

Insurance Coverage for Pedestrian Accidents

Injured pedestrians are usually covered under their health and disability insurance policies, or worker’s compensation coverage, if the accident occurs on the job. They may also be covered under one or more auto insurance policies.

Payment Under Auto Liability Insurance

An injured pedestrian can usually file a claim against the driver’s or vehicle owner’s auto liability insurance policy. Almost all states require that vehicle owners and drivers carry liability insurance to cover personal injuries to third parties and damage to third parties’ property. Recoveries are dependent on whose fault the accident was and various state statutes. (For a primer on determining fault in car accident cases, read Nolo’s article Car Accidents Caused by Negligence.)

Payment Under No-Fault Coverage

Some states, called “no-fault” states, require insurance companies to pay for the medical expenses and lost wages of their own policyholders, regardless of who is at fault. This is also known as personal injury protection (PIP).

When it comes to coverage for injuries to pedestrians in no-fault states, laws between the states vary. In some states, the driver’s insurance company pays the amount of the pedestrian’s medical expenses up to the PIP limit, even if the accident is the pedestrian’s fault. There are exceptions to this payment scheme. For example, in New Jersey, if a pedestrian is not insured, she or he may be paid out of a special state-mandated fund called the Unsatisfied Claim and Judgment Fund.

Seek a Lawyer's Advice

State laws vary widely when it comes to car insurance schemes, and each scheme has limitations and exclusions. In addition, recovery may depend on the particular insurance policies involved as well as judicial decisions in that state.

In order to sort this all out, injured pedestrians may want to seek advice from a professional, such as the pedestrian’s own insurer or a personal injury attorney. Pedestrians should ask an attorney which auto insurer they should approach first, and from which insurer they might be able to receive additional coverage.

Avoiding Pedestrian Accidents

The best way to avoid pedestrian accidents is to understand that “defensive driving” means being wary of people who walk, use a bicycle, operate a wheelchair, rollerblade, rollerskate, ride an electric scooter, and play in the road. Pay particular attention to young children and older adults. These individuals may be less aware of drivers on the road. They are more likely to stray outside crosswalks and not pay attention to traffic signals.

It is important to remember that individuals who are not in a motor vehicle and are in the road are extremely vulnerable and more likely to be seriously injured than a driver. If you take care to give pedestrians notice, room, and time to move out of your path, you may be able to avoid hitting a pedestrian.

To learn more about dealing with insurance company, settling claims, and handling your own car accident case, get How to Win Your Personal Injury Claim, by attorney Joseph L. Matthews (Nolo).

Special thanks to David Snyder, vice president and assistant general counsel of the American Insurance Association.

Motorcycle Accidents: Lane Splitting

If an accident occurs when a motorcycle is lane splitting, who is at fault?

Lane splitting occurs when a motorcycle (or bike) drives between two lanes of stopped or slowly moving cars, usually in traffic jams. If an accident occurs while a motorcycle is lane splitting, whether the motorcycle or car is at fault depends on whether lane splitting is permissible in that state, the views of the police officer and judge on lane splitting, and the actions of both the motorist and motorcyclist prior to the accident.

Is Lane Splitting Legal?

While most states do not recognize lane splitting as a legal maneuver, they also do not specifically prohibit it. However, police and the courts often interpret lane splitting as unlawful. One state, California, does specifically permit lane splitting, but only if it is done in a “safe and prudent” manner. Of course, the definition of “safe and prudent” is very much up to interpretation by police officers and judges.

Accidents While Lane Splitting: Who is Liable?

Lane splitting is prime fodder for accidents due to the close proximity of the cars to the motorcycle, the reduced space to maneuver, and the fact that the cars don’t anticipate that a vehicle will be passing them in slowed or stopped traffic.

If an accident happens while a motorcycle is lane splitting, there’s a good chance that fault for the accident will be attributed to the motorcycle rider. If the insurance adjuster or court finds that the motorcyclist’s carelessness was a substantial cause of the accident, the rider is out of luck when it comes to recovering damages .

However, if the motorcycle rider can show that the other driver (presumably of a car or truck) contributed to the accident, the rider may be partially or fully compensated for her injuries and property damage. This may occur if the car that hit them was changing lanes or weaving, or if the driver was talking on the phone or otherwise not paying attention.

The following factors may help prove this claim:

• The motorcyclist was riding carefully -- not speeding or weaving in and out of lanes or between cars.
• The motorcyclist is an experienced rider.
• The motorcyclist has completed a motorcycle riding or safety course.
• The other driver did something even more dangerous than lane splitting -- for example, making an abrupt lane change without signaling, or drifting from one lane into another.

If possible, support your version of the accident with a police report and witness statements.

Lane Splitting Safety

If you are going to lane split, be sure it’s not prohibited in your state and then make sure you do it in a safe manner. This is your best defense against accidents. And if you do get in an accident, evidence of your safe riding behavior will make it more likely that your insurance carrier, or a judge, will find that you were not at fault for the accident.

To increase your safety while lane splitting, do the following:

• Always be alert and aware of the cars around you.
• Ride with your headlights on and wear reflective clothing.
• Enter the area where you plan to lane split cautiously -- wait until both lanes of cars have slowed to the same speed. If one lane is moving faster, cars are more likely to suddenly switch lanes -- and may hit you in the process.
• Be extra cautious when traveling in a car’s blind spot.
• Drive at a speed slightly faster than the flow of traffic. Don’t zoom by stopped or slowly moving cars.
• Look for signs that a car may be changing lanes, such as the driver looking into the rearview or sideview mirrors.
• Honk if the cars get too close together. Wait until the distance is safe to pass between them.
• When traffic speeds up to about 30 mph, get back into the lane.

To learn more about motorcycle, bike, and car accidents, and how to recover for injuries and property damage resulting from these accidents, get How to Win Your Personal Injury Claim, by attorney Joseph L. Matthews (Nolo).

Trucking Accidents: Common Causes & Liability

Learn about the common causes of trucking accidents and who might be liable.

If you are the victim of a trucking accident, the questions of who is responsible and what actually caused the accident are often much more complicated than in a simple traffic accident. There are many players involved, from the driver to the owner of the truck, and getting information about what went wrong often requires some industry know-how.

Understanding the common reasons for trucking accidents, and the relationships among the persons and entities connected to the truck, the trailer, and the load, will help you determine whether you have a valid claim and how you will present your case.

Truck Accident Statistics

Over the past two decades, the number of truck accidents has increased by 20%. According to the Federal Motor Carrier Safety Administration (FMCSA), in 2002, 4,897 individuals died and 130,000 people were injured in crashes that involved a large truck. And even though large trucks are only responsible for 3% of injury-causing motor vehicle accidents, trucking accidents typically cause much greater harm than ordinary traffic accidents due to the large size and heavy weight of most trucks.

Laws Governing Truck Accidents

Federal laws and regulations govern the trucking industry. These laws establish certain standards that trucking companies, owners, and drivers must meet, and often determine who is responsible for a trucking accident. The bulk of federal regulations dealing with the trucking industry can be found in Title 49 of the Code of Federal Regulations.

Agencies that regulate truck driving include the U.S. Department of Transportation (DOT) and the Federal Motor Carrier Safety Administration (FMCSA). Every state also has a department of transportation with its own set of trucking regulations.

Who Is Responsible?

When it comes to truck accidents, there is a web of players who may be responsible for a victim’s injuries, including:

• the truck’s driver
• the owner of the truck or trailer
• the person or company that leased the truck or trailer from the owner
• the manufacturer of the vehicle, tires, or other parts that may have contributed to the cause or severity of the accident, and
• the shipper or loader of the truck’s cargo (in cases involving improper loading).

The trucking, hauling, and leasing companies often argue among themselves over whose insurance will compensate the victim. For example, the truck company might claim that the accident was caused by defective brakes. In turn, the brake company might then point the finger at the leasing company, claiming that it failed to maintain the brakes in good working order.

Can Trucking Companies Avoid Liability?

In the past, trucking companies often tried to avoid liability for trucking accidents by creating distance between themselves and the driver, the vehicle, and the equipment. Here’s how they did this:

The trucking company obtains the necessary permits to operate the truck. However, the company often does not own the tractor, trailer, or equipment used to haul the goods. Instead it leases (rents) the equipment, tractors, and trailers from the “owner/operator.” The trucking company also does not directly employee the drivers. Instead, it hires them as independent contractors from the owner/operator.

The trucking company gives the owner/operator a “placard,” which includes the name of the trucking company and its permit numbers. The placard is then affixed to the door of the tractor -- which makes it seem like the truck is owned by the named trucking company and the driver is an employee of the named trucking company.

If the truck is in an accident, and the trucking company is sued, it would argue that:

• the driver was not the trucking company’s employee, so the trucking company is not liable for driver error, or
• the trucking company does not own the equipment, so it is not responsible for the operation, maintenance, repair, and inspections of the equipment.

Luckily, federal laws and regulations have put an end to these arguments. Under current federal law, any company owning a trucking permit is responsible for all accidents involving a truck that has its placard or name displayed on the vehicle. It doesn’t matter what the lease says with the owner/operator or whether the driver is an employee or independent contractor.

Determining What Caused the Accident

Traditionally, accident victims had to rely on police reports and witness statements to understand how and why an accident occurred. Today, there are other key ways to get information about an accident: information from government agencies and data from high tech devices.

Contact Government Agencies

Federal and state regulations require that a certified truck inspector (usually a member of the reconstruction division of the state police) inspect any commercial truck and trailer involved in an accident before it is removed from the scene. This report reveals the condition of all of the important mechanical parts of the truck and trailer. These reports are not part of local police report. Instead, they must be obtained from the appropriate government agency. 

Preserve Data From High Tech Devices

When a plane crashes, the first thing officials recover is the “black box” -- a device that records data that assists with the investigation. The trucking industry is now using devices similar to black boxes that record all sorts of information, including how fast the truck was going, patterns of speed, when the driver used his or her breaks -- and even how long the driver had been on the road.

Many of these devices are also used in the automotive industry, such as on-board computers and global positioning systems (GPS). Others are specific to the trucking industry such as inclinometers, which are devices that provide information about the angles of a slope and how to round corners safely.

If you are in a trucking accident, it is critical that you make sure data from high tech equipment is preserved. Otherwise, it might be erased as part of the regular routine of the company.

Common Causes of Truck Accidents

The most common causes of truck accidents are driver error prior to and during the trip, mechanical failures, weather conditions, road design, and traffic signal failures.

Driver Error

The most common cause of trucking accidents is driver error. In fact, drivers of large trucks are ten times more likely to be the cause of the crash than other factors, such as weather, road conditions, and vehicle performance, according to a recent study released by the Federal Motor Carrier Safety Administration (FMCSA). The FMCSA found that the action or inaction by drivers was the critical reason for 88 percent of crashes.

Factors such as the use of prescription and over-the-counter drugs, speeding, fatigue, inattention, distractions, work environment, and unfamiliarity with the road all can contribute to driver error. But by far the most common causes of trucking accidents are driver fatigue and sleep deprivation.

Equipment Problems

The next most common cause of truck accidents is equipment failure. This can include manufacturing mistakes (defective tires) or design errors (failure to provide backing warning or object detection systems). However, most mechanical causes of truck accidents are caused by a failure to properly maintain the equipment. Some examples include:

• removing or depowering the front brakes, which can cause a truck to jackknife
• brake failure due to inadequate adjustments
• tire blowouts due to wear
• improper securing or load distribution, contributing to truck rollover
• defective steering
• improper trailer attachment
• defective side or rear lighting, and
• transmission failure.

Getting Help

Because the web of players in the trucking industry can be complicated and getting information from the right sources may require some industry know-how, you may want to get advice or representation from a personal injury lawyer.

For help on choosing a good truck accident lawyer, read Nolo’s article

Trucking Accidents Caused by Brake and Tire Failure

Learn the common causes of brake failure or defective tires that lead to accidents.

Trucking accidents are often caused by mechanical failures -- the two biggest culprits being brake failures and defective tires. In fact, a recent study sponsored by Department of Transportation (DOT) found that 29.4% of all large truck crashes involved brake failure, brakes out of adjustment, or other brake-related issues.

If you’ve been injured in a truck accident, learning about the common causes of brake and tire failure and who might be responsible will help you determine whether you have a valid claim and who to sue.

Defective Brakes: Who is to Blame?

When brakes malfunction, blame may be placed on a variety of parties (individually or in combination), including:

• the driver
• the company that loaded the truck
• the party responsible for maintaining the brakes (often the owner-operator), and
• the manufacturer of the brakes.

The trucking, hauling, and leasing companies often argue among themselves over whose insurance is going to compensate the victim. For example, the trucking company might claim that the accident was caused by defective brakes. The brake company might then point the finger at the leasing company, claiming that it failed to maintain the brakes in good working order.

Here’s a rundown of why each party might be responsible.

The Brake Manufacturer

The federal government has imposed strict regulations on the safety of truck braking systems. A truck must be able to:

• develop a certain braking force (based on a percentage of the truck’s weight)
• decelerate to a stop from 20 miles per hour at a rate specific to its size, and
• meet the automatic brake adjustment system requirements.

If truck brakes do not meet these federal standards, you may have a claim against the manufacturer. Usually these claims come in two forms: (1) the manufacturer did not design the brakes properly or (2) the brakes were correctly designed, but some defect occurred in the manufacturing process. These types of cases are called product liability cases.

Federal brake recalls. In some cases, the federal government has already determined that certain types of brakes or brake parts are defective. When this happens, the government requires brake manufacturers to recall the defective brakes or parts. A brake recall is powerful evidence that those particular brakes are dangerous. You may have a claim against the manufacturer (for making the defective brakes) and the truck owner (if the manufacturer notified the owner of the defect and the owner never corrected it). To determine if a particular braking system was recalled, contact a trucking accident attorney or search the DOT recall website at  www-odi.nhtsa.dot.gov/recalls.

Drivers and Trucking Companies

Sometimes actions taken by the driver or trucking company, or negligent inaction, causes brakes to fail.

Depowering the front brakes. Some owner-operator truck drivers deliberately unhook or depower the front brakes on the truck and rely only upon the brakes of the trailer and downshifting to stop or slow the vehicle. They do this in order to minimize the expense of tire and brake wear and replacement costs.

Improper brake setting and failure to maintain brakes. Federal regulations require that commercial trucking companies keep maintenance records demonstrating that truck maintenance has been performed according to schedule. In addition, every driver is required to perform and complete a daily pre-trip inspection report of the condition of the tractor and trailer equipment. These required inspections include:

• checking the brake shoes to ensure they function properly and do not have missing or broken mechanical components
• checking for loose brake components, and
• listening for air leaks in the brake chamber, which would indicate problems with the brake system.

Improper loading. If the truck load is not evenly distributed, the brakes may overheat and malfunction.

Truck Accidents Caused by Tire Problems

We have all seen the debris: long, heavy strips of tire littering the roadway after a semi truck has a blowout. The most common causes of tire failure follow.

Defective tires. This may happen because the tire manufacturer sold a defective truck tire. As with brakes, in some cases defective tires are recalled. To find out if the truck tires were recalled, check with the Department of Transportation -- it maintains the records of all recalled tires. You can find this information at the DOT’s website at  www-odi.nhtsa.dot.gov/recalls.

Failure to maintain tires. Sometimes a trucking company does not maintain the tires. For example, air brakes -- the most common type of brakes used in large trucks -- can only take so much heat. A full stop at 60 mph raises the brake drum temperature to about 600 degrees. That is the limit for safe operation. If the brakes aren’t properly set or maintained, the brakes overheat and may malfunction.

Other common maintenance mistakes made by trucking companies include:

• allowing drivers to use tires that fail to meet the minimum DOT tread depth requirement
• mounting mismatched tire sizes or pairing tires with significantly different wear, and
• mixing bias and radial tires on the same axle.

Failure to perform pre-trip tire inspections. Sometimes a trucking accident is caused by a failed tire that the driver should have noticed in the required pre-trip inspection of the truck. Improper tire pressure -- either too little or too much -- can lead to deterioration and eventual catastrophic failure. A tire that is worn or damaged may fail as a blowout and result in loss of control of the vehicle. The principal indicators of deterioration are tread wear, tread and sidewall damage, and air leakage.

Often companies that fail to inspect or maintain the braking systems on their vehicles also fail to inspect the tires. This can lead to multiple mechanical problems that cause a trucking accident. Be sure to explore all possible causes of the accident.

Getting Help

Because the web of players in the trucking industry can be complicated and getting information from the right sources may require some industry know-how, you may want to get advice or representation from a lawyer.

Trucking Accidents Caused by Driver Error

Truck driver errors contribute to the majority of trucking accidents. Here are the most common ones.

Errors made by truck drivers cause most trucking accidents. Impaired truck drivers (whether by alcohol, sleep deprivation, or use of prescription medication) make poor judgments, take unnecessary risks, and are unable to react to the dangers on our roadways. Truck drivers also contribute to accidents by driving too fast, depowering the front brakes, and improperly loading the cargo, among other things.

If you are the victim of a trucking accident, you should investigate the conduct of the driver and also the role of the trucking company in the accident. The trucking company may have allowed an incompetent or impaired driver on the public roads or failed to follow federal rules on the maximum hours that drivers can work per shift.

Why Driver Errors Occur

Drivers of large trucks are ten times more likely to be the cause of trucking accidents than other factors, such as weather, road conditions, and vehicle performance, according to a recent study released by the Federal Motor Carrier Safety Administration (FMCSA).

The FMCSA study also examined factors that cause truck drivers to make errors, such as use of prescription and over-the-counter drugs, speeding, fatigue, inattention, distractions, work environment, and unfamiliarity with the road. The study found that of all truck accidents caused by driver error:

• 44% involved truckers who were taking prescription and over-the-counter-drugs
• 23% involved drivers traveling too fast for conditions, and
• 18% were caused by driver fatigue.

Of course, truck drivers commit other errors that cause accidents as well. Read on to learn about how these errors contribute to truck crashes.

Driver Fatigue 

Fatigue leads truck drivers to fall asleep, be inattentive, misjudge gaps, ignore the signs of impending dangers, panic, freeze, and under- or overreact to a situation. Even though fatigue is a common cause of truck accidents, it is also the most preventable.

The Federal Hours of Service Rules

Federal regulations (called the "hours of service rules") set forth rules to ensure that truck drivers obtain the necessary rest and restorative sleep in order to drive safely. Under these rules, truck drivers can work a maximum of 14 hours per day, during which time they can only drive for a maximum of 11 hours. The driver must be off-duty for 10 consecutive hours prior to the start of a shift. The driver also cannot drive after being on duty for 60 hours in seven consecutive days or 70 hours in eight consecutive days.

If you are in an accident where you suspect that the driver fell asleep or failed to react properly, you should determine whether there was a violation of the hours of service rules.

Proving an Hours of Service Violation

In order to determine, and prove, that a trucking company violated an hours of service rule, get a copy of the truck driver’s logs. Federal law requires drivers to record their driving information in structured driver's logs.

If the driver’s logs are missing or are obviously inaccurate, there are other ways to discover how many hours the driver logged behind the wheel. Review the “trip tickets” or “bills of lading” for each delivery by the driver made in the few days leading up to the accident. Trip tickets and bills of lading include time stamps and entries by third parties that disclose the time that a load was picked up and when it was delivered. You can use these to calculate the amount of time that a truck driver was on the road.

Likewise, the trucking company can and should be monitoring the actual hours of service of its drivers and should not be able to hide behind the inaccurate logs of its drivers. Trucking companies who allow a driver to repeatedly “mislog” his or her hours of service expose themselves to liability for a lawsuit.

Drug Use

Drivers may not use any controlled substances, unless prescribed by a licensed physician who is familiar with the driver's medical history and assigned duties and has determined that the drug use will not adversely affect the driver's ability to safely operate a commercial motor vehicle.

Federal regulations require trucking companies to:

• test their drivers for alcohol and drug use as a condition of employment, and
• require periodic random tests of the drivers while they are on duty and after an accident involving a fatality.

A recent investigation revealed that drivers can defeat the accuracy of the current Department of Transportation (DOT) drug testing process with products, such as synthetic urine, that are widely available for sale. To combat this, the DOT now requires that trucking companies obtain drivers’ drug testing records from previous employers – the hope is that this will help prevent abuse of the testing system.

Failure to Watch the Blind Spots

Truck drivers are trained to watch for vehicles that might enter the “no-zone.” A “no-zone” is an area where a passenger car disappears from the truck driver’s view. There are front, side, rear, backing up, and right turn no-zones. Studies show that accidents between cars and large trucks are 60% more likely to occur when a car is in a no-zone. Driver error occurs when a truck driver is either unaware that another vehicle has entered the no-zone or does not take precautions when a vehicle does enter that zone.

Driver Error Causing Truck Rollovers

Rollovers are one of the major causes of fatalities and injuries in trucking accidents. They are often caused by driver errors such as:

• taking a curve too fast
• driving too fast
• fatigue
• inexperience, or
• improperly distributing the truck’s load.

Depowering the Front Brakes and Improper Trailer Attachment

Drivers that own and operate a large truck will often depower the truck’s front brakes and rely upon the trailer brakes and downshifting to slow or stop the truck. By not using the front brakes, the driver/owner reduces operating costs by minimizing wear and tear on the brakes and tires.

Driving a truck without the front brakes greatly increases the risk of accidents, including the increased tendency for a truck to jackknife.

Sometimes drivers don’t properly attach the trailer to the front of the truck. This also increases the risk of jackknifing.

Gathering Evidence About Driver Errors

Some trucking companies use electronic event data recorders -- devices that record all sorts of information about the truck and its operation, including how fast the truck is going, patterns of speed, when the driver uses his or her brakes, and even how long the driver has been on the road. Other commonly used devices include on-board computers, global positioning systems (GPS), and inclinometers (which provide information about the angles of a slope and rounding corners safely).

If you are in a trucking accident, it is critical that you make sure data from high tech equipment is preserved. Otherwise, it might be erased as part of the regular routine of the company.

Getting Help

Because the web of players in the trucking industry can be complicated and getting information from the right sources may require some industry know-how, you may want to get advice or representation from a lawyer.

Bike Accidents: Collisions With Cars at Intersections

Learn about liability when bikes and cars collide at intersections -- and how to avoid these crashes and accidents.

Although intersections represent a relatively small portion of a cyclist’s travel route, they are where a cyclist is most at risk of getting hit by a car or otherwise involved in a car accident. Only 11% of bicycle accidents involve a collision with a car; but of these, 45% take place in intersections. (Contrary to popular fears, the majority of bicycle accidents -- 59% -- involve only the cyclist, who loses control of the bike and crashes.)

In order to minimize the risk of intersection accidents with cars, cyclists need to maximize their visibility, understand the rules of the road, learn to recognize some of the most dangerous intersection hazards, and take safety precautions when approaching and riding through an intersection.

It also pays to learn the basic legal rules of liability -- that is, who is responsible for an accident. Cyclists who don’t follow road rules or don’t keep a proper lookout might be deemed responsible for an accident. And cyclists who do follow the rules of the road but are nevertheless hit by a driver who doesn’t follow the rules of the road may be surprised to find that the driver and police blame the cyclist for the crash.

So to avoid liability for an accident after being hit by a car, cyclists must understand -- and follow -- both the basic legal rules of liability and the rules of the road.

How to Avoid Bike Accidents at Intersections

Intersections pose a special risk to cyclists for many reasons: Cars often underestimate the speed of a bike; cars often don’t expect bikes to be on the road so car drivers aren’t watching for bikes; and even if cars are on the lookout for bikes, they sometimes just don’t see them because bikes are smaller and can blend into the background (due to the biker’s clothing, the sun, and other factors).

Cyclists should keep this in mind and take extra precautions to avoid accidents at intersections by:

• increasing the visibility of the bike and cyclist (with front and rear lamps, reflective clothing, and brightly colored clothing)
• being on the lookout -- a legal requirement for bikes and cars alike
• riding defensively, and
• learning to execute emergency maneuvers to avoid collisions. The free pamphlet, Bicycling Street Smarts, provides information on such maneuvers (see http://www.bikexprt.com/, click “My Publications” then “Bicycling Street Smarts"). Also, the League of American Bicyclists provides information on classes that teach emergency maneuvers (see http://www.bikeleague.org/, click “Programs,” then “Bike Education”).

Who is at Fault -- the Bike or the Car ?

Legally speaking, in nearly every state a bicycle is considered to be a “vehicle” and therefore, just like motorists, cyclists must follow the rules of the road. When it comes to collisions occurring at intersections, liability usually boils down to who had the right-of-way -- the car or the bike.

Right-of-way rules: No traffic signals. Generally, when two vehicles approach an intersection not controlled by a traffic signal, the vehicle arriving first has the right of way. If the vehicles arrive at the same time, the vehicle to the right has the right-of-way. This is also the rule for vehicles approaching intersections controlled by stop signs -- the vehicle to the right has the right of way. If, however, the intersection consists of a minor street intersecting with a major street, then the traffic on the major street has the right-of-way.

Right-of-way rules: Traffic signals. The right-of-way at intersections controlled by signals is determined by the signal. If a signal sensor is unable to detect the presence of a bicycle, the cyclist can (1) position the bicycle closer to the sensors embedded in the road, and if that doesn’t work, wait until it is safe to cross against the light, or (2) cross at the crosswalk.

Having said that, there are other legal considerations that come into play depending on the type of intersection and whether the car is turning or going straight through. These different intersection situations require cyclists to use different defense techniques to avoid accidents.

Types of Intersection Accidents

Here are some of the more common situations when bikes and cars meet at intersections.

Accidents at Stop Signs

The most frequent type of intersection collisions, representing 9.7% of all intersection accidents, occur at intersections where the cyclist has a stop sign and the motorist does not. After stopping at the stop sign, the cyclist then rides out into the intersection in front of a car that has the right-of-way. Absent other factors, the cyclist is at fault. Most of these accidents occur among riders younger than age 15, indicating that a young person’s inability to accurately judge the distance and speed of approaching cars is the main factor in these accidents.

Second in frequency, representing 9.3% of all intersection accidents, is when the cyclist has the right-of-way on a street without a stop sign and the car approaches from a street that does have a stop sign. After stopping at the stop sign, the car then drives out into the intersection, in front of the cyclist who has the right-of-way. Absent other factors, the accident will be attributed to the driver. If, however, the cyclist is riding against traffic (as happens in 60% of these sorts of collisions), both the cyclist and the driver may be at fault.

The best way to avoid these accidents is to:

• maximize your visibility
• keep a proper lookout when approaching an intersection, and
• adjust your lane position to the left as you approach an intersection so that you are more visible to drivers.

Bike’s Failure to Yield

Representing 7.1% of all intersection accidents, this is the third most frequent type of intersection accident. The cyclist stops at the intersection, which may be either controlled or uncontrolled, and then rides into the intersection without yielding -- perhaps because she didn’t see the car or misjudged the car’s distance or speed. Often, the cyclist is young. In these accidents the cyclist is usually at fault.

Car Turning Left: The “Left Cross”

In this accident, the motorist and bicyclist approach the intersection from opposite directions, and as they enter the intersection, the motorist turns left, colliding with the cyclist. Usually the motorist doesn’t see the cyclist or misjudges the cyclist’s speed. In most cases, the driver of the car will be liable to the cyclist.

The cyclist can take safety measures to reduce the risk of these accidents:

• maximize your visibility
• adjust your speed at the intersection so that you can brake quickly if necessary
• consider taking the entire lane through the intersection to increase your visibility to cars (the trade-off of this approach is that you may annoy motorists behind you), and
• don’t attempt to cross the intersection by riding into the crosswalk from the sidewalk -- this makes it even more difficult for the motorist to see you.

Car Turning Right: The “Right Hook”

There are several ways that accidents can happen when cars make right turns at intersections.

• The car passes a bike as both approach an intersection, and then the car turns right at the intersection, cutting the cyclist off.
• The bike passes a slower car on the right, and the car makes a right turn into the bike.
• The car and bike are waiting at a light. The car turns right when the light changes, cutting off or perhaps hitting the bike.

In most of these situations, the car will be at fault. But again, regardless of fault, a cyclist can take measures to reduce the chance of such an accident.

• Keep a proper lookout -- use a mirror, and check your mirror as you approach the intersection.
• Be prepared to brake suddenly in case a car cuts you off.
• Adjust your lane position by riding closer to the car lane or taking the entire right lane as you cross the intersection.
• Consider crossing at the crosswalk -- but note that riding into the crosswalk from the sidewalk puts you at risk of being hit by both left and right-turning drivers, who won’t be expecting a cyclist to suddenly enter the crosswalk. You can reduce your chances of being hit in the crosswalk by walking your bike across, as a pedestrian.
• Never pass a car on the right at intersections or driveways. Either slow down to match the pace of the car or take the lane and pass on the left.
• Avoid being in a car’s blind spot while approaching from behind or while waiting at traffic lights.
• Use a “bicycle box” where available. (Portland, Oregon is beginning to experiment with these European innovations). These position cyclists ahead of other vehicles at intersections.

Why Liability Matters

The ultimate goal of safe cycling is to avoid accidents altogether. But cyclists who violate right-of-way rules also face another potential hardship -- if an accident results, they might be found at fault for the accident. This means if the motorist is hurt or the car is damaged, the cyclist will be responsible. And if the cyclist is hurt, he or she may not be able to recover for injuries, medical expenses, lost wages, or pain and suffering.

The “almost stop.” One liability rule bears special mention. In some states, if the cyclist doesn’t come to a complete stop at an intersection, the cyclist may be barred from any recovery, even if the motorist is mostly responsible for an accident. This may be true even if the cyclist came to an “almost stop”. In order to preserve your rights, you must come to a complete stop when required to by law, although, contrary to popular misconception, you are not required to put a foot down to come to a complete stop.

For a complete discussion of almost every type of bike accident imaginable, including issues of liability and safety tips for avoiding them, get Bicycling & The Law: Your Rights as a Cyclist, by Bob Mionske (Velo Press).

Bike Accidents Caused by Road Hazards

Learn when the government is responsible for bike accidents caused by dangerous road conditions.

Bikes are particularly susceptible to accidents caused by road hazards. Because of their relative instability and thin tires, unexpected, abrupt changes in the road surface can be treacherous, causing even the most careful, experienced cyclist to fall or lose control and veer into the path of a car.  Road hazards most likely to cause bike accidents include potholes, sewer grates, and railroad and trolley tracks.

When a bike accident is caused by a road hazard, the most likely responsible party is the state, county, city, or other public agency that maintains the roadway. Whether you can prove liability and get the government to pay up generally depends on the type of hazard and what the government could have done to prevent the problem.

Accidents Caused by Potholes

Generally, potholes occur for one of two reasons:

• Shoddy temporary road fixes sink or crack soon after they are done.
• Long-term wear and tear on the road causes surface breaks.

If the pothole is the result of shoddy temporary repair work, whether the public entity performing the roadwork is responsible depends on whether it provided sufficient warning of the hazard. Sufficient warning might include blocking off the repaired area, or placing warning signs or cones around the area.

If the pothole is the result of long-term wear and tear, the key question as to whether the roadway agency was negligent (and therefore legally responsible) is how long the pothole has been present. If the surface break has been there for a few days, the public agency is usually not responsible for an accident caused by the pothole. However, if the public agency leaves the pothole there for weeks or months, it may be responsible for bike accidents caused by the hazard.  This is particularly true if previous accidents have occurred there and the public agency is aware of them. 

Accidents Caused by Sewer Grates

Sewer grates can present a serious danger to cyclists. If sewer grate bars go in the same direction as traffic, bike tires can easily become stuck between them. Due to many outspoken bike riders, most cities and counties have changed the shape or direction of sewer grates or partially covered them with crosshatch safety bars. But many dangerous sewer grates still remain on the roadways.

If a cyclist gets into an accident because of a sewer grate, the argument is this: Bikers have a right to ride on a safe road; a direction-of-travel sewer grate presents a serious unexpected hazard; and there are simple, inexpensive remedies for the problem, none of which the city or county employed to eliminate the danger.

Accidents Caused by Rail or Trolley Tracks

Little-used or abandoned rail tracks present hidden hazards to cyclists. They are dangerous when they run on the roadway in the direction of traffic, and even more so when they cross the road at a curve or angle. A bike wheel can easily get caught in the space between rail and road, causing the cyclist to crash or be thrown into a car.

The public entity’s liability for a bike accident caused by rail tracks depends on a two-part inquiry:

First, what is the rail position? If the tracks run in the direction of traffic or cross on a curve or angle, they are dangerous to cyclists. Tracks that are perpendicular to the road are not particularly dangerous.

Second, what has the public entity done to reduce the hazard? If the rails are dangerous and no longer used, the public entity could have removed or covered them. If the rails are dangerous and still in use, the public entity must provide sufficient warning to cyclists, such as warning signs. And a public entity should never create a bike path, encouraging bikes to travel that way, if the path crosses dangerous tracks.

To learn more about proving fault when bike accidents are caused by road hazards, including how to request the appropriate information from public entities, get  How to Win Your Personal Injury Claim, by attorney Joseph L. Matthews (Nolo). This easy-to-use guide also covers other common bike accidents, as well as motorcycle, car, and other accidents.

Product Liability Claims Involving Defective Cars

Learn about defective product cases involving cars, trucks, SUVs, motorcycles, ATVs, and other motor vehicles.

If you have been injured or suffered other kinds of damages because of a defective car, truck, SUV, motorcycle, ATV, or other motor vehicle (or vehicle part), you may have a product liability claim.

Some examples of motor vehicle defects that have been the subject of lawsuits in recent years include:

• SUVs that are prone to rolling over
• cars sold with tires that are prone to blowouts
• motorcycles that "wobble" when driven at high speeds, and
• all terrain vehicles (ATVs) that are prone to rolling over.

Here are some of the special features of product liability claims arising from defective cars, car parts, and other motor vehicles and parts. (To learn the basics of defective product claims, see Nolo's Product Liability FAQ.)

Types of Product Liability Claims Involving Motor Vehicles

Product liability claims involving motor vehicles typically come in two varieties: 

Defectively manufactured vehicles or vehicle parts.  This type of claim involves vehicles or vehicle parts that have been improperly manufactured in some way. This may be the result of an error at the manufacturing facility where the vehicle or part was made, or a problem that occurs during shipping or at the dealership or supply.

Vehicles with an unreasonably dangerous design. This category of claims involves vehicles or parts that, although properly manufactured, have an unreasonably dangerous design that results in injury or other damages. Sometimes these cases involve vehicles or parts that have been on the market for some time before it is discovered that they are dangerous.

Identifying the Potential Defendants in Your Case

Be sure to identify and include in your lawsuit all potential defendants in your case. (To learn more about identifying defendants in products liability cases in general, read Nolo's article Defective Product Liability Claims: Who to Sue?.) This usually means including all participants in the "chain of distribution" of the motor vehicle or vehicle part involved in your case – that is, the path the vehicle or part takes from the manufacturer to the consumer.

In cases involving motor vehicles, the chain of distribution usually includes the following types of defendants (there may be more than one defendant in any given category):

Manufacturer.  In products liability cases involving motor vehicles, the manufacturer is typically a large company.  This means it may have more money to compensate you for your injuries. But it also usually means that it will be able to hire a team of high-priced lawyers to defend the case.

Parts manufacturer.  If your case involves a defective part, such as the tires or the battery, be sure to include the manufacturer of that part if it is a separate company from the vehicle manufacturer. You should sue both the vehicle manufacturer and the manufacturer of the defective part (unless you bought the defective part separately -- a replacement set of tires, for example -- in which case the vehicle manufacturer is not part of the chain of distribution and probably would not be liable).

Car dealership or automotive supply shop. Whoever sold the vehicle or the specific defective part may be liable to you for your damages -- even if you were not the actual buyer. To learn more about this, see “What if the Defective Vehicle Did Not Belong to Me?,” below.

Middleman or shipper.  Any company, including the shipper or other middlemen, that was part of the chain of distribution between the manufacturer of the defective vehicle or part and the dealership or other retailer where it was sold may be liable for your damages.

Used car dealer.  Even if the vehicle involved in your case was bought used, the dealer who sold it may be liable in certain cases.  This is a developing area of the law and may vary from state to state depending on the specific circumstances of your case.

What If the Defective Vehicle Did Not Belong to Me?

Even if the defective vehicle involved in your case did not belong to you, you may still have a valid product liability claim. For example, if you borrowed someone else's defective motor vehicle or were injured by a defective vehicle driven by another driver, you may still have a valid claim and should include any and all of the types of defendants discussed above.

Is It a Product Liability Claim or a Traffic Accident Claim?

If you were involved in a traffic accident and either you or another driver was driving a defective motor vehicle, you may have both a product liability claim against the manufacturer (as well as other potential defendants discussed above) and a negligent driving claim against the other driver (in other words, a routine traffic accident claim).

The legal basis for a defective product claim is somewhat different from a negligent driving claim. (To learn more about negligent driving cases, read Nolo’s article Car Accidents Caused by Negligence.) Fortunately, you do not have to choose.  As long as they have a reasonable legal basis, you should include every available type of legal claim in your complaint.

Theories of Liability in Defective Motor Vehicle Cases

There are several legal theories of liability available in defective motor vehicle cases. These include:

• Breach of express warranties.  If the vehicle or part involved in your case came with any sort of written warranty or guarantee, the defect may constitute a violation (or "breach," in legalese) of that warranty.
• Breach of implied warranties.  Most states impose certain minimum standards on products (known as "implied warranties"), regardless of whatever express warranties came with the product. The particular vehicle defect in your case may constitute a violation of those implied warranties.
• Strict products liability.  Many states have adopted strict products liability laws, which relieve you of any burden of having to show that the manufacturer or supplier of a defective vehicle or part was not sufficiently careful in making or distributing that product (a big advantage to you!). You just have to show that the vehicle or part is somehow defective and that the defect was the cause of your injury or damages.

Additional legal arguments may be available to you depending on the particular circumstances of your case. (To learn more, read Nolo's article Defective Product Claims: Theories of Liability.)

Proving Your Claim

You will have to prove three things in order to win your lawsuit:

• you were injured or suffered other types of losses ("almost injured" doesn't count)
• the vehicle involved in your case was defectively manufactured or dangerously designed, and
• the manufacturing defect or dangerous design was the cause of your injury.

In products liability cases involving motor vehicles, the outcome often comes down to the third issue listed above. One of the most common defenses raised by the vehicle manufacturer in such cases is that it was the plaintiff's poor or reckless driving -- not the vehicle itself -- that is to blame for the injuries. (For a more detailed discussion of what you must prove in defective product claims in general, read Nolo's article Proving a Defective Product Liability Claim.)

Class Action Lawsuits

If the vehicle at issue involved a mass-produced defect or a dangerous design, you may be able to band together with other injured people and file a class action lawsuit.

In some cases, a class action may already have been filed in connection with the particular vehicle defect involved in your case (the class action filed in connection with allegedly defective tires on certain Pontiac GTO models is one recent example), and you may have the option of joining that already-existing lawsuit. Joining an existing class action has several advantages:

• the lawyers for the class, who may have considerable experience and expertise in bringing big cases against big companies, will become your lawyers as well
• there will likely be little or no upfront cost to you, and
• you will not have to sort out potentially complex legal issues, such as where to file your claim.

You also have the option of not joining an existing class action and bringing your own lawsuit instead. This may be appropriate if the nature of your injuries or damages are substantially different from those of other members of the class action, or if there are special circumstances in your case.

Consider consulting with a lawyer to find out if there is an already-existing class action concerning the defective vehicle involved in your case, and if so, whether it is advisable for you to join that class action. (If there is an already-existing class action, consider contacting the lawyers for the class directly; they will likely be very interested in talking with you.) Such initial consultations are usually free of charge.

Getting Help

The legal and mechanical issues in defective car cases are typically complex and highly technical. If you wish to consult with a lawyer (and perhaps even one who specializes in motor vehicle cases), read Nolo’s article Finding a Personal Injury Lawyer.

Slip and Fall Accidents: Proving Fault

If you slip and fall on someone else's property, the property owner may be liable for your injuries.

Who is responsible for an injury resulting from a slip and fall accident? Many thousands of people are injured each year -- some very seriously -- when they slip or trip and fall on a dangerous floor, a flight of stairs, or a rough patch of ground. Sometimes the property owner is responsible for the accident, and sometimes he or she is not.

If you have been injured in this way, first consider that it is a normal part of living for things to fall on or to drip onto a floor or the ground, and for smooth surfaces to become uneven. Also, some things put in the ground -- drainage grates, for example -- serve a useful purpose there. So a property owner (or occupier) cannot always be held responsible for immediately picking up or cleaning every slippery substance on a floor. Nor is a property owner always responsible for someone slipping or tripping on something that an ordinary person should expect to find there or should see and avoid. We all have an obligation to watch where we're going.

However, property owners do need to be careful in keeping up their property. While there is no precise way to determine when someone else is legally responsible for something on which you slip or trip, cases turn on whether the property owner acted carefully so that slipping or tripping was not likely to happen -- and whether you were careless in not seeing or avoiding the thing you fell on. Here are some general rules to help you decide whether someone else was at fault for your slip or trip and fall injury.

Determining Liability

To be legally responsible for the injuries you suffered from slipping or tripping and falling on someone else's property, one of the following must be true:

• The owner of the premises or an employee must have caused the spill, worn or torn spot, or other slippery or dangerous surface or item to be underfoot.
• The owner of the premises or an employee must have known of the dangerous surface but done nothing about it.
• The owner of the premises or an employee should have known of the dangerous surface because a "reasonable" person taking care of the property would have discovered and removed or repaired it.

The third situation is the most common, but is also less clear-cut than the first two because of those pesky words "should have known." Liability in these cases is often decided by common sense. Judges and juries determine whether the owner or occupier of property was careful by deciding if the steps the owner or occupier took to keep the property safe were reasonable.

What Is "Reasonable"?

In determining a property owner's "reasonableness," the law concentrates on whether the owner makes regular and thorough efforts to keep the property safe and clean. Here are some initial questions you can ask to determine whether a property or business owner may be liable for your slip or trip and fall injuries:

• If you tripped over a torn, broken, or bulging area of carpet, floor, or ground, or slipped on a wet or loose area, had the dangerous spot been there long enough that the owner should have known about it?
• Does the property owner have a regular procedure for examining and cleaning or repairing the premises? If so, what proof does the owner have of this regular maintenance?
• If you tripped over or slipped on an object someone had placed or left on or in the floor or ground, was there a legitimate reason for the object to be there?

• If there once had been a good reason for the object to be there but that reason no longer exists, could the object have been removed or covered or otherwise made safe?
• Was there a safer place the object could have been located, or could it have been placed in a safer manner, without much greater inconvenience or expense to the property owner or operator?
• Could a simple barrier have been created or a warning been given to prevent people from slipping or tripping?
• Did poor or broken lighting contribute to the accident?

If the answers to one or more of these questions come out in your favor, you may have a good claim for compensation. However, you must still think about whether your own carelessness contributed in any significant way to your accident.

Your Own Carelessness

In almost every slip or trip and fall case, you must decide whether your carelessness contributed to the accident. The rules of "comparative negligence" help measure your own reasonableness in going where you did, in the way you did, just before the accident happened. There are some questions you should ask yourself about your own conduct -- an insurance adjuster will almost certainly ask them after you file your claim.

• Did you have a legitimate reason -- a reason the owner should have anticipated -- for being where the dangerous area was?
• Would a careful person have noticed the dangerous spot and avoided it, or walked carefully enough not to slip or trip?
• Were there any warnings that the spot might be dangerous?
• Were you doing anything that distracted you from paying attention to where you were going, or were you running, jumping, or fooling around in a way that made falling more likely?

You don't have to "prove" to an insurance adjuster that you were careful, but think about what you were doing and describe it clearly so that an insurance adjuster will understand that you were not careless.

To learn more about how your carelessness will affect the outcome of your claim, see "How Your Own Carelessness Affects Your Claim" in Proving Fault in Personal Injury Accidents: General Rules.

Stair Accidents: Proving Fault

If you’ve had an accident on stairs, here’s how to determine if the property owner is at fault.

Thousands of people trip, slip, or fall on stairs every year. Property owners are liable for stair accidents in the same way they are liable for slip and fall accidents. But stairs present a number of additional dangers -- some hidden and some obvious -- that merit special consideration. If you’ve had a stair accident, here’s how to determine if the property owner is at fault.

Liability for Slip and Fall Accidents

To be legally responsible for the injuries you suffered from slipping or tripping and falling on someone else's property, one of the following must be true:

• The owner of the premises or an employee caused the spill, worn or torn spot, or other slippery or dangerous surface or item, to be underfoot.
• The owner of the premises or an employee knew of the dangerous surface but did nothing about it.
• The owner of the premises or an employee should have known of the dangerous surface because a "reasonable" person taking care of the property would have discovered and removed or repaired it.

In addition, in almost every slip or trip and fall case, the insurance company or court will consider whether your carelessness contributed to the accident. The rules of "comparative negligence" help measure your own carelessness or reasonableness in going where you did, in the way you did, just before the accident happened.

In many stair accidents -- for example, when something has been spilled or dropped on the stairs -- the owner’s liability will depend on the above inquiry.

Check the building code's stair requirements to see if the stairs that caused your accident fail to meet any specifications. If your fall occurred on, or was made worse by, a stair or part of a stair that failed to meet the building code rules, you have a strong argument that the stairs were dangerous. This is true even if the violation is a matter of a quarter inch -- a very small differential can make a set of stairs dangerous.

For a detailed guide on how to handle your own personal injury claim, get How to Win Your Personal Injury Claim, by attorney Joseph L. Matthews (Nolo).

Wrongful Death Claims: An Overview

Learn about wrongful death claims -- what they are, when survivors can sue, who might be liable, and what damages survivors can recover.

When someone dies due to the fault of another person or entity (like a car manufacturer), the survivors may be able to bring a wrongful death lawsuit. Such a lawsuit seeks compensation for the survivors’ loss, such as lost wages from the deceased, lost companionship, and funeral expenses. Here’s a primer on wrongful death claims -- what they are, who can sue, who can be sued, and what damages may be recovered.

What is a Wrongful Death Claim?

A wrongful death claim exists when a person dies due to the legal fault of another person. The right to file a lawsuit for wrongful death is a relatively new concept. “Common law” (the laws brought to the United States from England) did not allow this kind of lawsuit. But during the last century, state and federal courts created the right to bring a wrongful death action. Every state in this country now has some kind of wrongful death law.

Wrongful death claims involve all types of fatal accidents from simple car accidents to complicated medical malpractice or product liability cases. Persons, companies, and governmental agencies can be legally at fault for acting negligently (failing to act as a reasonable person would have acted) and for acting intentionally.

Who May Sue for Wrongful Death?

A wrongful death claim must be filed by a representative on behalf of the survivors who suffer damage from the decedent’s death (they are called the “real parties in interest”). The representative is usually the executor of the decedent’s estate. The “real parties in interest” vary from state to state. Some of those people might include:

Immediate family members. In all states, immediate family members like spouses and children (including adopted children) and parents of unmarried children can recover under wrongful death actions.

Life partners, financial dependents, and putative spouses. In some states, a domestic or life partner, anyone who was financially dependent on the decedent, and a “putative spouse” (a person who had a good faith belief that he or she was married to the victim) have a right of recovery.

Distant family members. Some states allow more distant family members, such as brothers, sisters, and grandparents, to bring wrongful death lawsuits. For example, a grandparent who is raising a child may be able to bring an action.

All persons who suffer financially. Some states allow all persons who suffer financially from the death to bring a wrongful death action for lost care or support, even if they are not related by blood or marriage to the victim.

Parents of a deceased fetus. In some states, the death of a fetus can be the basis for a wrongful death suit. In several other states, parents cannot bring a wrongful death action to recover for financial and emotional losses resulting from the death of a fetus. In those states, the parents can bring a wrongful death action only if the child was born alive and then died. Check your state law and consult with an experienced wrongful death attorney to find out if such an action is allowed in your state.

Who May Be Sued for a Wrongful Death?

Wrongful death lawsuits can be brought against a wide variety of persons, companies, government agencies, and employees. For example, in a car accident involving a faulty roadway and a drunk driver, a wrongful death action might include defendants such as:

• the driver or employer at fault in the automobile accident
• the designer or builder of the faulty roadway
• a government agent who failed to provide adequate warnings regarding a road hazard that caused the accident
• the manufacturer, distributor, or installer of a faulty or dangerous part of the vehicle
• the persons who sold, served, or gave alcohol to the impaired driver, or
• the owner of the premises where the alcohol was served.

Immunity for Government Agencies and Employees

In some cases, certain persons or agencies may be immune from a wrongful death lawsuit. That means they cannot be sued for wrongful death. Who might be entitled to immunity again varies from state to state. For example, in some situations, government agencies and employees might be immune from a wrongful death lawsuit, or even family members in certain circumstances.

Recent federal laws provide immunity from wrongful death claims to defendants in railroad collisions and certain product liability cases including medical devices. Such immunity might also extend to drug manufacturers -- this will be decided by the U.S. Supreme Court in 2009.

Damages in a Wrongful Death Lawsuit

The damages available in wrongful death lawsuits vary a great deal from state to state. Many states “cap” or limit the amount and type of damages, especially in medical malpractice claims. (To learn more about medical malpractice, read Nolo’s article Medical Malpractice Basics.)

Types of Damages

In general, there are three types of damages that may be available to the survivors in a wrongful death lawsuit: (1) economic, (2) non-economic, and (3) punitive.

Economic damages. These include the value of the financial contributions the victim would have made to the survivors if he or she didn’t die, and include the following:

• medical and funeral expenses connected to the death
• loss of the victim’s expected earnings
• loss of benefits, such as pension plans or medical coverage
• loss of an inheritance caused by the untimely death, and
• the value of the goods and services that a victim would have provided.

Non-economic damages. Although less tangible, non-economic damages often have more value than economic damages. Examples include:

• damages for the survivors' mental anguish or pain and suffering
• loss of the care, protection, guidance, advice, training, and nurturing from the deceased
• loss of love, society, and companionship from the deceased, and
• loss of consortium from a deceased spouse.

Punitive damages. Punitive damages are awarded to punish the defendant for especially bad conduct. In many states these damages are not available in wrongful death lawsuits or not recoverable against certain defendants including most governmental agencies. However, treble damages (which are in an amount equal to three times the actual damages) may often be recovered against nursing homes for elder abuse and death.

Interest and attorneys’ fees. In some states, the survivors can recover interest on the damages from the time they were incurred up to the time they are collected. And in some cases the survivors can get reimbursed from the defendant for attorneys’ fees and costs incurred in the bringing the lawsuit.

Calculating Damages

Calculating damages can be extremely complicated, and the parties often use expert witnesses, such as economists and actuaries, to give their opinions on the proper amount of damages. These calculations include not only income and benefits earned outside the home, but also the monetary value of services and care provided inside the home by a homemaker parent (such as child care, cooking, laundry, house cleaning and maintenance, shopping, education, medical care, and transportation).

Time Limits for Filing a Wrongful Death Claim

Every state sets certain time limits, called the "statute of limitations," on bringing wrongful death lawsuits. The general rule is that a lawsuit must be filed within two years of the date of the misconduct that caused the death of the victim. (To learn more about these time limits, read Nolo's article Statutes of Limitations: Is Your Lawsuit Timely?)

In certain cases, however, the statute of limitations may be as short as one year. Special rules apply to minors (minors usually have two years from the date they reach their majority to file a lawsuit) and persons with a mental disability and in cases involving fraud or intentional acts.

In many states, the statute of limitations does not begin ticking until the harm is discovered (sometimes called the “date of discovery”). For example, if a doctor’s failure to diagnose cancer is not discovered for years after the error (because the cancer lays dormant), the statute of limitations may not start until the patient learns of the cancer.

Some states put an upper limit on the date of discovery in certain types of cases, such as construction, product liability, medical malpractice, and legal malpractice claims. For example, a state may say that a survivor may bring a lawsuit within two years from the date of discovery of harm, but not more than five years from the actual infliction of the harm.

Getting Help

Because wrongful death actions often involve complex areas of the law (like medical malpractice) and can result in large damage awards, it is often wise to hire, or at least consult with, a lawyer.

For help in choosing a good personal injury attorney, read Nolo’s article Finding a Personal Injury Lawyer.