Accident Happen – Personal Injury Attorneys

Accident Happen – Personal Injury Attorneys

It makes no difference how alert you try to be, you are assured that an accident can happen when you least expect it to. You can be driving along carefully and be smashed from behind. The car comes from out of the blue and side swipes your car. You could be walking across the street and a car hits you. It may be any number of reasons they did not stop. None of them matter now that you are injured. car accident attorneys

If you are one of the less fortunate ones to have this occur or know someone who has, it is best for all to find a lawyer that has a good reputation for helping those in accident cases. You might try searching the internet. Many lawyers, especially accident specialists, are providing information about their services. You may find some lawyers with toll free numbers and email for easy contact. Websites have forms allowing you to give them an idea about the case before you are contacted.

Finding the right services offered by accident lawyers is not as hard as it used to be. Popularity and familiarity comes from the internet or advertising through media or television. A few organizations refer clients to professional lawyers.

When picking the best lawyer for your situation, find one that can offer you the particular services you need. This includes the best defense in court and rates that are reasonable for you. It will also be best if you are at ease with the lawyer. Ask around to friends and family. They will be able to give you some names of lawyers they have dealt with. If the lawyers they refer are not into dealing with accidents, they may be able to lead you in the right direction. For more info see http://www.findlawyershelp.com/Personal_Injury_Lawyer/ on Personal Injury Lawyer.

Trying to work with insurance companies may be a task that will frighten you; this is true if the insurance is not being easy about awarding you the claim. They may feel you need to be more patient with the processing or problems coming up. These are huge indicators telling you to find yourself an attorney dealing with those kinds of accidents. The money coming quickly will be great for you because waiting for it, like the insurance company asks, is not something good for you. accident attorneys

Lawyers dealing with accident cases can assist you with claims for your insurance and for those at fault for hitting you causing the expense facing you.

You can also find more info on https://fordandlaurel.com

Business Dispute Law Firm

Wichita Falls Business Dispute Lawyers

The Texas Business Litigation Attorneys of Banner, Briley & White

If a business partner or vendor has reneged on a commitment and cost you a substantial sum of money, or if a competitor has appropriated your intellectual property, you have a business dispute on your hands.

Can a positive outcome be negotiated? Or is the last resort of commercial litigation a foregone conclusion?

In Wichita Falls and throughout north Texas and Oklahoma, the lawyers who can generate a practical, lasting solution to your contract dispute — so you can return to the smooth operation of your business — are Banner, Briley & White.

Our firm resolves commercial disputes and represents both individuals and businesses in various types of business litigation. Our practice is centered in north-central Texas, but we can and do handle matters in other parts of the country as well.

Let’s sit down and discuss how we can help you. Contact our Banner, Briley & White law offices at 866-492-9554, toll free.

Skillful Negotiation, Aggressive Litigation That Protects Your Rights

Commercial disputes or business torts arise in a wide range of circumstances, including:

  • Interference in a business relationship
  • Partnership disputes
  • Wrongful freeze-outs
  • Breach of contract
  • Breach of fiduciary duty
  • Breach of contract for shareholder and employment agreements, real estate and construction contracts, insurance policies, bankruptcy proceedings, warranty claims
  • Infringement of copyright, patent, trademark, trade secret and intellectual property
  • Business fraud

People and businesses enter into contracts every day and the breach of an important contract can have a significant impact on a company’s business objectives. Banner, Briley & White attorneys help companies involved in contract disputes assess their options and make decisions consistent with their goals. We have dealt with contract litigation in a broad spectrum of transactions and businesses

Probate Litigation

Wichita Falls Probate Litigation Lawyers

Texas Will Contest Attorneys Protect Your Rights in Probate Litigation

Has a sudden will contest, proof of heirs dispute, breach of fiduciary duty, quarrel about descent distribution or disagreement over undue influence divided your Texas family, and turned an otherwise routine estate administration into a probate litigation battleground?

The skilled probate lawyers who can step in and restore order to your family’s estate administration or probate proceedings are in Wichita Falls: Banner, Briley & White.

Our attorneys handle all types of probate litigation, filing lawsuits and defending against challenges for clients in the Wichita Falls area and throughout the north Texas region. We have also represented individuals in circumstances where there is no will, or a mysterious last-minute change to a will, and a dispute arises as to whether a person laying a claim to an inheritance is actually a family member.

Our experience in handling difficult probate disputes allows us to balance the importance of privacy and discretion against the need to resort to the very public nature of court proceedings.

Contact us to discuss your probate matter with a Banner, Briley & White lawyer, free of charge.

“If you consistently do the right thing, for the right reasons, good things will happen to you.” — Jack Banner, 1927-2005

Probate Litigation

Decades of Experience in Wichita Falls, Throughout Texas and in Oklahoma

Probate is the legal process by which a person’s debts are paid and assets are distributed upon her or his death. As straightforward as that sounds, family members often find themselves in disagreement over the interpretation, administration and management of estates and trusts.

In addition to disputes between family members and other beneficiaries, probate litigation frequently involves personal representatives of estates who are thought to be lying, cheating or stealing from the estate — behavior known in legal terms as breach of fiduciary duty.

As attorneys who welcome every opportunity to pursue justice for our clients, we can work with executors, trustees, beneficiaries and personal representatives toward the most positive possible outcome. Individuals, families and business owners in north Texas know they can trust us to “do the right thing” for their futures.

Res Ipsa Loquitur

Res Ipsa Loquitur

Establishing wrongdoing on the part of a health care provider is often difficult. It requires the hiring of experts, in the same field as the health care professional being charged with misconduct, who must testify as to what the defendant should have done under applicable professional standards. Since medical organizations generally discourage those in the medical professions from testifying against one another, it is difficult to find experts who have the integrity to come forward and testify as to misconduct by one of their peers. In addition, many insurance companies providing coverage to health care providers require that they not testify against other providers who are insured by the same company. Thus, only with the assistance of an experienced medical malpractice attorney can a plaintiff be ensured of obtaining all of the relevant evidence and proving all of the requisite elements that will help the plaintiff recover his or her damages.

Proving malpractice is also difficult because the defendants are often the ones who write the medical reports that often form the basis of the suit. Since they are often the only ones who are present and know what really occurred when the negligence happened, and they choose how to describe the event, records are often not descriptive of what truly happened. In addition, some health care providers may frame their reports so as to protect someone guilty of misconduct.

Res Ipsa

Fortunately, the law also recognizes that plaintiffs face certain difficulties in proving medical negligence, due in no small part to the fact that they are often not conscious when the negligence occurs. If a patient injured as the result of a medical procedure does not know exactly what caused his or her injury, but it is the type of injury that would not have occurred without negligence on the part of his or her health care provider(s), he or she may invoke a legal doctrine known as “res ipsa loquitur.” Translated, this Latin phrase means “the thing speaks for itself,” and implies that the plaintiff need only show that a particular result occurred and would not have occurred but for someone’s negligence.

To invoke this doctrine successfully, a plaintiff has to show that:

  • Evidence of the actual cause of the injury is not obtainable;
  • The injury is not the kind that ordinarily occurs in the absence of negligence by someone;
  • The plaintiff was not responsible for his or her own injury;
  • The defendant, or its employees or agents, had exclusive control of the instrumentality that caused the injury; and
  • The injury could not have been caused by any instrumentality other than that over which the defendant had control.

Res Ipsa

Once this doctrine is successfully invoked, the burden is not on the plaintiff to show how the defendant was negligent, but on the defendant to show that he or she was not negligent. A classic example of the type of case in which this doctrine arises is where a sponge or other medical instrument is left inside a person following surgery. Typically, a medical report will not state “Dr. Smith left forceps in patient’s abdomen,” and there may be no recorded proof of how or why the negligence occurred. Yet clearly, a surgical instrument would not be left in a patient in the absence of someone’s negligence. Also, an unconscious patient certainly cannot be deemed responsible for this type of injury, and it would have been the operating physician and staff who had exclusive control over the surgical tools.

Thus, the burden falls not on the patient to prove who left the surgical instrument inside him or her, but on the individual health care providers to try to establish that it was not their negligence that resulted in the injury. If an attending physician, who is an independent contractor rather than an employee of a hospital, can demonstrate that he left the operating room and instructed a nurse, who was a hospital employee, to remove and account for all surgical instruments before the patient was closed, the hospital might be held liable for the negligence of its employee. In any event, the co-defendants rather than the plaintiff do the bulk of the investigation and finger-pointing, which is quite appropriate given the circumstances.

Role of the Physician

Understanding Informed Consent

In many situations where medical care or treatment is provided to an individual, medical professionals are required to obtain the patient’s “informed consent.” Although the specific definition of informed consent may vary from state to state, it means essentially that a physician (or other medical provider) must tell a patient all of the potential benefits, risks, and alternatives involved in any surgical procedure, medical procedure, or other course of treatment, and must obtain the patient’s written consent to proceed. If this duty is breached and injuries result, the patient may have a legal claim for damages. An experienced medical malpractice attorney can help you determine whether you have a claim and represent your interests throughout the legal process.

The concept of informed consent is based on the principle that a patient has the right to prevent unauthorized contact with his or her person and, thus, a physician has a duty to disclose information to the patient so that he or she can make a reasoned decision regarding treatment, based on an understanding of the treatment to be provided.

In many situations, the failure to obtain informed consent is a form of medical negligence, and may even give rise to a cause of action for battery. In certain situations, informed consent is an absolute necessity. For example, in any medical trials or experiments that receive federal funding, informed consent must be obtained from any human participant or subject.

The Role of the Physician

Physicians themselves, rather than a representative, nurse, or other related health care professional, are the best choice to speak to patients about informed consent. In discussing the matter with a patient, the physician should cover:

The patient’s diagnosis, if it is known;

  • The nature and purpose of the proposed treatment or procedure, as well as the procedure’s likelihood of success;
  • The benefits and risks of the proposed treatment or procedure;
  • The alternatives to the proposed treatment or procedure;
  • Alternatives to the treatment or procedure should be discussed regardless of their cost and regardless of whether they will likely be covered by the patient’s health insurance;
  • The risks and benefits of an alternative treatment or procedure;
  • The risks and benefits of not receiving or undergoing any treatment or procedure.

Physician

A physician should also ensure that patients understand what they’re hearing. In fact, some hospitals now require physicians to participate in courses on communication skills.

The patient, or the patient’s legally authorized representative consenting to the treatment on the patient’s behalf, must sign and date the informed consent documents, and must be given a copy of the informed consent documents once they are signed and dated. A copy of those documents should also be placed in the patient’s file.

The Role of the Patient

Although a physician is required to inform a patient about benefits, risks, and alternative treatments, patients must also play a part in the informed consent process. Patients must listen to the physician and should ask questions of the physician if they do not understand, or if they would like more detailed information.

Types of Consent: Express and Implied

Informed consent may be either “express” or “implied.” Express consent is given in writing or verbally. If a patient’s consent is written, it should include the name of the health care professional who discussed the proposed treatment with the patient, the name of the health care provider who is to perform the procedure, and the date, time and location where the consent form was signed.

Consent not given by a patient in writing or verbally, but understood from the circumstances surrounding the procedure or treatment at issue, is known as implied consent. Consent may be implied when, for instance, a patient presents him or herself for a relatively simple, non-invasive procedure. Consent is also usually implied for necessary procedures a surgeon might perform in the course of a surgical procedure to which the patient did consent.

Situations in Which Informed Consent May not be Necessary or May be Implied

Situations Not Involving Medical Procedures or Treatment. Not all situations require that informed consent be given. For example, although listening to a heartbeat through a stethoscope may be considered a “treatment” or “procedure,” to some people (especially those who are uncomfortable in physician’s offices), it’s rare that a physician and patient would have a lengthy discussion about the benefits and risks of listening to a heartbeat using that device.

Emergency Situations: In emergency situations, there is not always time to obtain a patient’s informed consent, or the patient may be unconscious and unable to communicate. If an emergency involves risk to the patient’s life or the patient is unable to communicate, consent may be implied under the rationale that the patient would have consented to emergency treatment.

Obtaining Consent from Incompetent Individuals and Minors

When a competent adult seeks medical treatment, the process of obtaining informed consent may seem relatively easy. However, in situations where mentally disabled individuals or children need treatment, the ability to obtain informed consent becomes more difficult. In these situations, serious questions arise concerning who is able to give informed consent for those individuals.

In most cases, a mentally disabled person has an appointed guardian authorized to make medical decisions and give informed consent for that individual. Medical providers need to make sure that when they obtain informed consent for incompetent individuals, they have obtained it from the correct person or persons.

Physician

In most situations, parents can give informed consent for treatment for their minor children. However, some states allow young adults under eighteen to play a more active role in their medical care and treatment, including the process of informed consent. Not every teenager is capable, however, of making informed consent decisions under these laws. Instead, most states focus on “mature minors” sufficiently ready to understand the nature and consequences of treatment. In those states, such young adults may be able to provide consent without consulting with their parents. For example, some states have passed specific laws that allow for minors to consent, without parental knowledge or approval, to health care treatments related to substance abuse, mental health, and sexual activity.

Medical Malpractice

Wichita Falls Medical Malpractice Attorneys

The Experienced Texas Medical Negligence Lawyers 
When a doctor’s oversight during surgery, a nurse’s neglect or an anesthesiology error causes injury, illness or wrongful death, the assistance of an experienced personal injury and medical malpractice lawyer is essential.

Serving victims of medical malpractice in Dallas and Wichita Falls, from Texas to Oklahoma, with a group of competent and seasoned Lawyers

Our law firm aggressively protects the rights of victims of medical negligence, and their families. Due to new legislation that places a high burden of proof on the plaintiff and at the same time severely limits what they can recover if they manage to prove their case, we continue to advocate for medical malpractice claims in the north Texas region. We don’t take every case. But we do take the cases we truly believe in.

If you or someone you love has suffered a catastrophic, life-changing injury, or if a family member has suffered wrongful death because of the negligence of an attending physician or other medical professional or facility, call our law firm today, toll free: 866-492-9554. Your initial consultation is free of charge.

medical malpractice

When Medical Malpractice Strikes, Our Law Firm Strikes Back

Our experienced Wichita Falls medical malpractice lawyers view the legal profession as a helping profession. Look to us for forceful legal leadership when you or a relative becomes injured or ill during a hospital stay as a result of:

  • Misdiagnosis or failure to diagnose
  • Anesthesia error
  • Birth injury
  • Brain injury
  • Emergency room error or failure to treat
  • Medication error
  • Cosmetic surgery error
  • Surgical error

If you wish to pursue a medical malpractice action, you should contact our attorneys at the very first sign of negligence, in order to allow time to properly evaluate and investigate your situation before a two-year statute of limitations runs in your case.

Our law firm handles medical malpractice claims on a contingency fee basis. It costs you nothing to get us started on your case. We collect an attorney fee only if you receive compensation from those responsible for your injuries.

Reasons to Hire an Experienced Personal Injury Attorney

Top 10 List: Reasons to Hire an Experienced Personal Injury Attorney

When you’re injured, you need all the help you can get, and you need it as soon as possible. Unfortunately, that means that some injury victims pick the first attorney they find, rather than making an informed choice. It’s important to educate yourself and find the right fit for you and your case. Using this list, you can find the right attorney to make the most of your case.

1. Best Jury Verdicts—If a trial becomes necessary, a personal injury lawyer can zealously represent you in court and work toward achieving the best possible jury verdict in your favor.

2. Best Settlements—Personal injury attorneys work hard to reach the best settlements for their clients, as early as possible in the litigation process.

3. Experience With Insurance Companies—Lawyers are also used to working with insurance companies and will not be confused by their tactics or feel pressured to settle for an unsatisfactory amount.

4. Experience Working With Other Lawyers—An experienced personal injury lawyer can deal most effectively and expediently with opposing counsel.

5. Alternative Dispute Resolution—An experienced attorney will know whether your dispute may be best resolved through mediation, thereby saving you time, money, and emotional energy.

Objectivity6. Objectivity—A personal injury attorney can be more objective about your case than you can and will not make a rash decision. Whereas you may be tempted, for instance, to go for a quick payout, your attorney may counsel you that it is in your best interests to wait for a more appropriate offer.

7. Investigative Team—Experienced attorneys work with a team of investigators who have experience in specialized areas and will skillfully investigate the technical aspects of your case.

8. Red Tape—An experienced attorney can work through the maze of paperwork necessary to resolve your claim so that you can get on with your life.

9. No Fees If You Don’t Recover—Most personal injury attorneys work for a contingent fee, which means that if you do not win your case, you will pay no attorneys’ fees. You will, however, be responsible for certain expenses not directly related to professional fees, such as the fees doctors charge for reviewing your records or being interviewed. Court costs and case expenses usually remain the responsibility of the client.

10. Experience Assessing Claims—Personal injury attorneys are experienced with cases like yours and can tell you at the outset whether it is worth your while to pursue legal action. If you are unlikely to prevail, you will not need to incur the time and expense of preparing for litigation.

Legal Actions

Responsible Parties in Medical Malpractice Actions

Medical malpractice is not limited to medical doctors. It applies also to nurses, dentists, osteopaths, health care facilities, and others providing health care services, such as nursing homes. If you believe that you have been the victim of malpractice by any health care provider, do not delay in contacting an experienced medical malpractice attorney.

Hospitals

Hospitals are corporations that are either public or private entities. In the context of medical malpractice actions, hospitals can be held directly liable for their own negligence, and can also be held “vicariously” liable for the negligence of their employees. Vicarious liability means a party is held responsible not for its own negligence, but for the negligence of another.

Hospital Negligence

A hospital’s medical staff will consist of licensed physicians and other licensed health care providers, such as nurses, physician’s assistants, and nurse practitioners. In hiring its medical staff, a hospital must make reasonable inquiries into an applicant’s education, training and licensing. If a hospital fails to make reasonable inquiries regarding a member of its medical staff, it might be held liable under the “corporate negligence” doctrine for negligent supervision or retention, if the staff member’s negligent care injures a patient. A hospital might be held liable for its own negligence where, for example, it fails to investigate the credentials of an attending physician before granting him/her privileges at the hospital, or where it allows a physician whom it knew, or should have known, was incompetent, to treat patients at the hospital.

Hospital Negligence

Hospitals are also required to ensure that there is a sufficient number of registered nurses on duty at all times to maintain quality patient care. A hospital that fails to do so may be held liable for injuries to patients resulting from a nursing shortage. Another area of potential liability arises when a hospital’s employees fail to follow the orders of a patient’s private attending physician. Conversely, if a hospital employee finds a private physician’s treatment plan to be clearly contraindicated, but fails to make a reasonable inquiry of the physician as to the treatment plan, the hospital could also be found liable.

Finally, hospitals may be held liable for failing to protect patients from harm, adequately perform clinical tests, keep accurate medical records, and properly admit and discharge patients. In the area of admissions, hospitals are generally required to treat seriously injured or ill people on an emergency basis, and the refusal to do so may result in hospital liability. Additionally, federal and state statutes prohibit hospitals from refusing to treat or admit people based on their race, color, religion or national origin, or on their inability to pay for treatment.

Vicarious Liability

When a hospital employee’s malpractice injures a patient, the hospital itself may be held vicariously liable under the legal doctrine of “respondeat superior.” Under this doctrine, an employer may be held liable for the negligent acts of its employee, if the employee was acting within the scope of his or her employment when the negligent act or omission occurred. This doctrine is very important to plaintiffs in medical malpractice cases, because it helps ensure there will be a financially responsible party to compensate an injured plaintiff.

In some situations, health care providers such as physicians are considered independent contractors rather than hospital employees, and the doctrine of “respondeat superior” will not be applicable. What this means is, if a doctor or other health care professional is an independent contractor, and commits malpractice while treating a patient in a hospital, the hospital cannot be held liable for the doctor’s negligence. However, the hospital can be held liable for its own negligence, for example, in granting attending privileges to an unlicensed or incompetent physician.

Finally, in certain situations, a hospital may be vicariously or directly liable for the acts or omissions of contractors it retains to operate emergency rooms and outpatient facilities.

In some states, there are statutes that protect state-run health facilities. Throughout the country, there are hospitals that are teaching facilities and employ physicians who are actually considered employees of the state. These physicians, including residents and interns, are sometimes accorded sovereign immunity, which limits their liability by shortening the time period in which suit can be filed, and placing maximum limits on the amount of damages and attorneys’ fees that can be recovered.

Pharmaceutical Companies

In some cases, a pharmaceutical manufacturer may be liable where a drug caused a patient injuries, but only if the manufacturer failed to warn physicians of the drug’s potential side effects or dangers.

Pharmaceutical Companies

A pharmaceutical manufacturer’s primary duty is to physicians. Thus, a manufacturer generally will not be liable for a patient’s injuries, as long as it adequately informed the physician of all risks associated with a particular drug. As to the ultimate consumer, a pharmaceutical company only owes a duty to ensure that the medication it manufactures will be reasonably safe when used as intended. To ensure a drug’s safety, the manufacturer must research the drug’s possible side effects and risks before putting it on the market. If the pharmaceutical manufacturer fails to adequately warn a physician of a drug’s dangers, however, the drug becomes what is known under product liability law as “unreasonably dangerous,” and the manufacturer might be held liable for the failure to provide proper warnings.

In most cases, the prescribing physician is considered a “learned intermediary,” which means that because of his or her superior medical knowledge, and assuming he or she has been given adequate information from the manufacturer, he or she is in the best position to determine whether a particular drug or device is appropriate for a patient. Thus, the physician has the primary duty of advising the patient of the risks and side effects of a medication or medical device he or she prescribes.

When Personal Injuries Result in Death: Wrongful Death Cases

Wrongful death claims allege, as their basis, that the deceased died as a result of the negligence or liability of another. The deceased’s surviving relatives, dependents, or beneficiaries may bring suit against those claimed to have been responsible, seeking monetary damages to compensate for the losses. Each state has its own statute covering claims for wrongful death, and not every state follows the same guidelines, principles, or rules. A personal injury attorney in your state can advise you on whether you have a valid wrongful death claim and can help you pursue that claim to the best possible outcome.

Laws on Wrongful Death Resulting from Personal Injuries Vary from State to State

Some states have “true” wrongful death acts in which the next of kin are entitled to bring a cause of action in their own names as a result of damages sustained following the decedent’s death. Other states have acts that are more properly called “survival acts,” which preserve the rights that vested in the decedent at the moment of death, expand those rights to include the right of the survivors to bring a claim based on the decedent’s rights, and include claims for damages resulting from the actual death itself. Finally, some states recognize both types of lawsuits, but generally have a provision that limits the right of the survivors in order to prevent a double recovery under the two different theories.

Which individuals are entitled to bring a wrongful death claim also depends on the jurisdiction. Generally, the primary beneficiaries of the individual-often the spouse and children-are able to bring a claim, and in some states the parents of the deceased may be also designated as beneficiaries. In most states, if the deceased did not leave behind any spouse, children, or parents, there is no one who may bring a wrongful death claim, unless the scope of the state’s wrongful death act has been expanded to include other persons who were dependent on the deceased. Sometimes, the recovery, if any, is simply doled out to the deceased’s heirs at law or is distributed to the beneficiaries of the estate, as it would be in any normal probate proceeding.

In most jurisdictions, in order to be legally liable, it is not necessary that the defendant’s conduct be the sole cause of the death. Even when the defendant’s negligence contributes in part, or in tandem with other circumstances, to the decedent’s death, liability may still attach. Generally, a wrongful death cause of action can arise out of any tort theory, including an intentional tort, reckless or negligent behavior, or strict liability.

When a defendant is found legally liable for the death of another, the types of damages that may be recovered can also vary greatly. For example, the plaintiffs may be able to recover the costs of the deceased’s medical care and treatment related to the negligent conduct, the funeral expenses incurred for the deceased’s burial, the loss of future earnings of the deceased, the value of the loss of the deceased’s benefits (such as pension benefits or medical and health insurance coverage), the value of the loss of consortium, and general damages. Additionally, in a few states, the plaintiffs may be able to recover damages for pain and suffering or mental anguish that they experienced as a result of the death, as well as punitive damages.

Wrongful Death Cases

The method and manner of calculating damages in a wrongful death action can be very complex. This potential complexity is especially true when trying to calculate the pecuniary loss to which the plaintiffs are entitled. Pecuniary loss generally includes the survivor’s loss of support, contributions, and services due to the decedent’s death. The bases for computing these damages are the decedent’s life expectancy and work life expectancy. The life expectancy of the beneficiaries and, where necessary, the remaining period of minority of any beneficiaries must be considered. In calculating the value of the survivors’ future loss, not only may the wages of the decedent be considered but the court may also consider the value of past contributions made by the decedent, the decedent’s familial concern, his personal habits, and his spending behavior.

In cases where there is more than one beneficiary, the damages recovered will be distributed among those beneficiaries. Most states allocate the damages among the beneficiaries in accordance with their losses. However, in some states the recovery is divided as spelled out in statute, and in others divided according to normal intestacy laws within the state.

A defendant is entitled, in general, to raise any defenses in a wrongful death action that could have been raised in an action brought directly by the decedent, had he or she not died. Therefore, if the decedent was contributorily negligent in causing his or her own death, the defendant may assert that defense in the wrongful death action. Also, in most states, if the decedent had already recovered damages, such as in a case where the death was not immediate and the decedent was able to bring his own successful cause of action, the survivors may not then successfully bring a wrongful death action and recover, in essence again, for the same injury. There are limitations to this prohibition and in some situations, the survivors may be entitled to commence and maintain a claim.

Slips and Falls

Slips, Falls, & Other Premises-related Personal Injuries

Premises liability law involves the legal responsibility of owners and occupiers of property for injuries suffered by persons on the property. One of the most common causes of such injuries is a trip or slip and fall, such as on an icy sidewalk, a loose or uneven stair tread, or a piece of debris or spilled liquid on the floor. The actual liability of the responsible individuals varies depending on the rules and principles adopted in the jurisdiction where the mishap occurred. An experienced premises liability lawyer can determine whether liability may exist in a particular case and help an injured person recover damages for lost wages, medical bills, and pain and suffering.

General Premises Liability Principles in Personal Injury Cases

Some states’ premises liability laws focus on the status of the visitor to the property. In such states, the plaintiff is generally defined as either an invitee, a licensee, or a trespasser. An invitee is someone who is expressly or impliedly invited onto the property of another. The owner owes the invitee the highest duty of care, which includes taking every reasonable precaution to ensure the invitee’s safety. A licensee, by contrast, enters the property for his or her own purposes but is present at the consent of the owner. The owner is required to warn a licensee of hidden dangers, but is not necessarily required to fix them. And finally, a trespasser enters without any right whatsoever to do so. In the case of adult trespassers, the owner has no duty of care and need not take reasonable care of his property or warn of hidden dangers.

Even if the plaintiff is a trespasser, he or she may still be able to recover, however, if the plaintiff can show that the owner knew it was likely that trespassers would enter the property. And children are owed a higher duty of care, regardless of whether they are considered trespassers. A landowner’s duty to warn is also heightened with respect to children.

In states where consideration is given to the condition of the property and the activities of the owner and visitor, a uniform standard of care is applied to both invitees and licensees. This uniform standard requires the exercise of reasonable care for the safety of visitors other than trespassers. In order to satisfy the reasonableness standard owed to invitees and licensees, an owner has a continuing duty to inspect the property, identify dangerous conditions, and either repair them or post warnings as appropriate.

In proving a premises liability case, a plaintiff must show that the standard of reasonableness required by an owner has not been met. Perhaps the highest hurdle that a plaintiff must overcome relates to the owner’s knowledge. The plaintiff must prove that the owner had or should have had knowledge of the condition in order for liability to attach, which is often quite often difficult to establish.

One of the commonly applied theories to limit a plaintiff’s recovery is comparative or contributory fault. A visitor has a duty, in most cases, to exercise reasonable care for his or her own safety, and when that degree of care is not exercised, the plaintiff’s recovery may be limited or reduced by an amount attributable to his or her own negligence.

Slips

Slip & Fall Personal Injury Cases

Slip and fall injuries are, as the name implies, injuries that occur when a person slips, usually on a foreign substance or as a result of a dangerous condition, and falls. A common slip and fall case occurs when someone slips on an icy sidewalk in front of a business, or a customer in a grocery store slips on a grape, lettuce leaf, or other food item that has fallen on the floor and been overlooked by the proprietor.

The premises owner may or may not be liable for the plaintiff’s injuries in these common scenarios. Although owners and possessors of real property have a duty to exercise reasonable care to maintain the premises to protect lawful visitors, if a condition of the premises is noticed by a customer or other visitor or should be readily apparent, the property owner may avoid liability because the plaintiff has a duty to protect himself or herself against the injury. The property owner may also avoid liability by establishing that the debris had so recently fallen on the floor or that the ice had so recently accumulated that the responsible persons had no reasonable opportunity to correct the condition and avoid the hazard before the plaintiff fell. In other words, the plaintiff in a slip and fall case, whether it occurs in a grocery store or elsewhere, must show that the owner had a reasonable period of time in which to discover the dangerous condition and in which to remedy it. The determination of what constitutes a reasonable time will vary from case to case.