California Personal Injury Lawyer, Attorney, Blog

Many of you have probably heard about the recent story of a man with XDR Tuberculosis, getting on a jet plane and flying to Europe knowing that he could potentially spread this horrible disease to others. He then traveled back across the border into the United States in a car. He has subsequently become the first person in 40 years to be the subject of a Federal Quarantine.

What makes this story unique at least to me is that Andrew Speaker is a Personal Injury Lawyer. He should have known better. Click here to visit his law firm website.

There are two main issues to this story. The main issue is the potential risk of harm that Attorney Speaker could have caused to others by his willful and wanton disregard for others including his new wife; the second issue is the personal tragedy of a man infected with this horrible disease. This opinion editorial will concentrate on the potential risk of harm that Attorney Speaker could have caused to others, and his potential legal liability.

I first ask this question; what would an ordinary prudent person do if they were just diagnosed with XDR Tuberculosis? I venture to guess that an ordinary prudent person under the circumstances would seek out medical treatment, and do everything they could to get better. Most people would probably get a second or third opinion from doctors, and follow their doctor’s advice to a tee. They certainly would not get on a jet plane, travel in close quarters with others to Europe, and go get married. I wonder if he kissed his new bride during the marriage.

The second question that really bothers me is what would a learned personal injury lawyer knowing the law, do under similar circumstances? Probably not what Attorney Speaker did!

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Many people live their lives with pre-existing medical conditions such as: Bad knees; degenerative conditions in the back, previous broken bones that have healed, etc.

Are you entitled to recover for damages in a personal injury accident when a pre-existing medical condition is exacerbated? Yes!

The Egg Shell Skull Theory

The Egg Shell Skull Theory goes something like this. Let’s say Humpty Dumpty, who has a skull as thin as an egg shell, is driving, and gets into a car accident that is not his fault. His skull being as thin as an egg shell shatters into a million pieces so that all of the king’s horses and all of the king’s men could not put his head together again. Can Humpty Dumpty recover for his injuries considering the fact that he had a skull as thin as an egg shell, which is not normal for human beings? Yes!

The law of personal injury in a nutshell (not to be confused with egg shell) makes persons who are negligent, liable for injuries that they cause that are reasonably foreseeable. The case law on the subject has concluded that it is reasonably foreseeable that persons who are injured may have pre-existing conditions, or deformities, and that a negligent person must take the injured person as they find them. Hence Humpty Dumpty is entitled to a recovery eventhough is head is as thin as an egg shell.

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I am sure that many of you have heard the term “Black Box” data recorders which are usually associated with airplanes and airplane accidents.

Did you know that many manufacturers are now installing Black Box Data Recorders in Cars? probably not. Black Box data recorders have been put into cars for years now and nobody knows it, or it has been kept very low key; now you know.

Black Box data recorders in cars can give data such as speed at the time of an accident, gear position, braking position, direction of car, whether seatbelts were being worn, etc.

Obviously this type of data is huge for personal injury lawyers such as me. It can help get around the he said, she said, arguments for who as at fault in an auto accident, and get right to the root of actual fault. Many Personal Injury lawyers do not even know about Black Boxes being installed in cars.

There is one dilemma when it comes to Black Boxes in cars; your right to privacy is out the window. It can be predicted in the future that GPS enabled black boxes will allow Big Brother to track your movements, and potentially even disable your car.

You can read a couple of stories about Black Boxes in cars by clicking here, and by clicking here.

Technology can be good and bad. In the hands of the wrong people, it can be used to usurp the freedoms we so love in the United States. I say cast a weary eye on anyone who wants to use fear as a motive to get us as Americans to give up the freedoms that generations of us have fought and died for.

The least the car companies could do is to let us know if a Black Box is installed in our car, and to let us know what its capabilities are. As a matter of fact I think it should be legally mandated that we as consumers be notified by car manufactures if a Black Box is installed in our car.

Like I said above, the technology can be good, and it can be bad if misused by those who would seek to take our freedoms and right to privacy away. Let us have the choice.

By Norman Gregory Fernandez, Esq., © 2007

I cannot tell you how sick it makes me feel when someone calls me after they have been in a car, motorcycle, or other motor vehicle accident, after they have already allowed themselves to be screwed out of the money that they are entitled to by a savvy insurance company adjuster.

I just gave a consultation today to a person (sex and name removed for privacy) who was involved in a serious car accident with serious injuries. This person was driving a brand new $40,000.00 car that was hit so hard that frame damage was caused to the car.

They were also seriously injured in the accident, and are still treating for their injuries. What did this person do? They signed a settlement agreement for the bodily injury portion of their case for $750.00, which only allows for 3 months worth of medical treatment and/or a total of $3,000.00 in medical treatment; that is it. They got $750.00 and an allowance for only 3 months or 3k in medical treatment. They got royally screwed!

They called to see if I could get them out of the settlement which they had signed. They also wanted to see if I could help them force the insurance company to pay for the fair market value of the car of the new car that suffered frame damage, rather than them being forced into accepting a repair of a car that has suffered frame damage.

I absolutely could not believe it. The person who called me is basically shit out of luck. It would be almost impossible to get the rock solid settlement agreement with the insurance company set aside. They called me too late.

I do the property damage portion of personal injury cases for free minus cost and expenses that I incur in getting the property damage portion of the case settled. I recover cost and expenses for property damage settlement at the end of the case. I do this as a service to my clients so that they can get their cars fixed or so that they can get another car to replace one that has been totaled. How can someone get their car repaired or replaced if a personal injury lawyer takes a percentage of property damage? Do not sign up with any personal injury lawyer that would take a percentage of your property damage loss!

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The statistics are amazing. 9 out every 10 persons who drive a car will eventually be involved in a car accident in their lifetimes. 3 out of every 9 persons will be in a car, motorcycle or other motor vehicle accident that involves alcohol.

You can see an article about what to do if you are involved in a car accident or other motor vehicle accident on my personal injury website by clicking here now.

You can see an article about what to do if you are involved in a motorcycle accident on my motorcycle accident lawyer website by clicking here now.

Many car, motorcycle, or other motor vehicle accidents involve someone in the car being injured and some do not. Most personal injury lawyers will not represent you on a contingency basis (no money out of your pocket unless there is a recovery) unless there are injuries involved in an accident. Some firms including mine can provide representation on a fixed fee or hourly basis to help you recover for out of pocket losses when you are in an accident with no injuries.

My firm will represent you on a contingency basis (no money out of your pocket unless there is a recovery) if you have an injury case that we accept.

You will see in the articles that I posted links to above, that it is critical to try to retain an attorney within the first 24-48 hours after an accident to get the prosecution of your case started.

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The Law Offices of Norman Gregory Fernandez & Associates is pleased to announce that we now have a physical office in San Francisco, California. This office will allow us to better serve our personal injury clients in the San Francisco Bay Area.

Our law firm does personal injury cases throughout the State of California. To go to our Personal Injury Website, click here now.

By Norman Gregory Fernandez, Esq.

Most of us are good citizens and purchase liability insurance to cover us in case we cause an accident. Some people purchase minimum liability coverage and some people purchase more.

When you buy this insurance you are doing it to not only comply with the law, but to protect you and your assets in case you cause a car, motorcycle, or other motor vehicle accident.

Now let’s say that you get into an accident that is your fault; you report the accident to your insurance carrier; you think that your insurance company will cover you pursuant to your insurance policy right? WRONG!

If you read the fine print in your insurance policy you will notice a bunch of language that most non-lawyers would not understand. The gist of the language in plain English is that by accepting the insurance policy, you agree to cooperate with the insurance company if they decide to litigate, and the insurance company is the one who decides whether a case will be settled, not you.

The insurance companies are all about making tons of money and paying as little as possible. Since the advent of legally mandatory insurance coverage (Proposition 213 in California) the insurance companies have become very cavalier because their coffers are full of your money.

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There is no doubt that Americans love their pets. Human beings and dogs have been living together for tens of thousands of years. There is a saying that "a dog he is a man's best friend."

I am myself have three dogs; two Siberian Huskies, and a good old-fashioned American Mutt that I rescued from a pound.

Although a dog may be your best friend, a dog could turn into your worst nightmare if the dog bites and/or otherwise attacks a person.

In the state of California; dog owners are strictly liable for the actions of their dogs. In other words if your dog bites a person, you are strictly liable for all damages that the dog causes.

No matter how well trained your dog is, you really never know when they will bite. Even small breeds can cause bites that result in permanent scarring, and significant damages.

It is your responsibility as a dog owner to ensure that your dog does not bite another person. You should always walk your dog on a leash; secure your yard and home so that the dog cannot run away and bite someone; and secure your dog in a room when you have visitors at your home. If you do not take precautions when it comes to your dog, you could get hit with significant damages in a lawsuit if your dog bites someone.

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The tort of negligent entrustment in simple language means that you were negligent by allowing a person or persons to use your property such as a car, motorcycle, etc.

Negligence is a legal term of art. It would be very difficult to explain negligence to a non-attorney. However I will try.

Negligence in simple language, is that one person owes a duty of due care to another person, and breaches that duty of due care thus causing damages. The key to negligence is that it must be reasonably foreseeable to an ordinary prudent person that the conduct will result in damages. I will be frank, negligence is much more complicated than the description I just gave, however it will suffice for the purposes of this article.

An example of simple negligence would be one person not paying attention and rear ending another person in their car. The person who did the rear ending would be liable in most circumstances for negligence.

With respect to negligent entrustment, I will give you an example of where you could be held liable for this tort. Let's say you loan your car to a person who has a suspended driver's license. Let's say this person subsequently gets into a car accident. You would most likely be held liable for the damages caused in the accident, because you owed a duty of due care to ensure that you did not loan your car to a person with a suspended driver's license. In other words, you were negligent by allowing a person with a suspended drivers license to use your car.

Another example would be loaning your car to a person who was obviously intoxicated, who then subsequently gets into an accident. You can be held liable for negligent entrustment for loaning you car to a drunk.

There is a vast array of possible scenarios in which you could be liable for the tort of negligent entrustment. It's not rocket science, it's really about common sense. The purpose of this article is just to make you aware of the tort.

Basically it's a matter of common sense. If you are going to loan a person your car, motorcycle, or other property, you better make sure they have a driver’s license and automobile insurance before you give them the keys unless you're not concerned about being legally liable for their actions.

By Norman Gregory Fernandez, ESQ. , Copyright 2006

I have been blogging for a few months now and I’m really enjoying it. I not only enjoy writing legal articles, but also articles related to motorcycle safety, and motorcycle ride reports.

I recently read a discussion about the term “Blawg.” The term Blawg, was coined by a lawyer who was writing about legal issues. Hence the term Blawg was born and is used to describe a law related Blog.

I know the term Blawg is not generally recognized on the Internet at this time for what it is; a law related Blawg. However, I have decided to embrace the term and add it to the name of my Blog. My Blog will officially now be known as "Biker and Motorcycle Lawyer Blog / Blawg."

In researching the term “Blawg,” I found what is “the mother of all Blawg sites.” You can check out that site by clicking here now.

My Blog is listed as "Biker Law Blog" on this site.

If you want to gain insight into the legal world, this would be a good place to start. I have never seen so many lawyers, law professors, and other legal professionals all featured on one location.

I look forward to writing many articles in the years to come.

By Norman Gregory Fernandez, Esq. , Copyright 2006

You may have heard the term products liability in newspapers, political speeches, or from your friends. In a nutshell, the term products liability is a legal term of art used to describe legal causes of action against manufacturers of products, and/or anyone in the chain of distribution, that sell a product which has a; manufacturing defect, design defect, or is otherwise defective due to the negligence of anyone in the chain of the distribution, and which causes injury to the user of that product.

A product could be defective if the manufacturer fails to warn of a risk known to them in using their product, and/or fails to provide a warning label on the product.

You may have heard of some of the infamous products liability cases in the news recently such as; the SUV rollover cases; the asbestos cases; the defective tire cases, tobacco cases etc.

If it were not for lawyers taking these types of cases to court, there would be many dangerous products on the market.

In some types of products liability cases, the person who has been injured may realize that they were injured due to a defective product. In other types of cases the person injured may have not known that there were injured due to a defective product.

In most products liability cases, expert testimony is required to prove that there was a manufacturing or design defect in a product.

In California, products liability causes of action are strict liability actions so long as you can meet your burden of proof. Strict liability means that you do not have to show negligence on the part of the manufacturer or anyone in the chain of distribution to recover damages for defective product.

The bottom line is this; if you have been injured while using a product, driving a car, or using certain types of medication, you should consult with the competent personal injury attorney who can analyze the facts of your case to determine if you have a potential products liability cause of action.

You have the right not to be injured by a product that has a manufacturing or design defect.

If you feel that you have been injured due to a defective product in this state of California you may call my office for a free consultation and at 818-584-8831 extension 1, or you may check out my personal injury website by clicking here now.

If you’re out some of this in the California I highly recommend the consult with an attorney in your area.

By Norman Gregory Fernandez, ESQ. , Copyright 2006

Most often when people think about false imprisonment, they think about people being falsely arrested by the police. Most people don’t know that non-police officers can be liable for false imprisonment under many different circumstances.

The purpose of this article is to give a brief synopsis of the civil tort of false imprisonment in the state of California.

A basic definition of civil false imprisonment is; “a person intentionally holding another person within the bounds of a fixed area, without the consent of the person being held, and without a privilege that would excuse the conduct.”

For instance, let’s say that a man locks a woman in a room without her permission. This would be a classic case of civil false imprisonment.

Another example would be a person holding something of value to another person with the intent to make them stay in a certain place, and without the consent of the person whose valuables are being held.

Civil false imprisonment could also include one person grabbing onto another person without their consent, and holding them so that they cannot leave.

There are many other examples of false imprisonment that I can provide, however, the above examples are meant to give you an idea of what the civil tort of false imprisonment is in the state of California.

One key element of the civil tort of false imprisonment is that the person being held must reasonably believe that they cannot leave. Reasonable is a legal term of art used in the legal world. What reasonable basically means is: what would a reasonable prudent person do or believe under similar circumstances.

Another key element of the tort of false imprisonment is that the person doing the imprisoning, must not have a privilege to do so.

Examples of privileges that would allow a person to hold another person within the bounds of a fixed area are: shopkeepers who are investigating shoplifting at a store; civilians who have witnessed a felony, and place the person who committed a felony under citizen’s arrests; or police officers who have probable cause to believe that a crime has been committed.

As with other intentional torts, victims of false imprisonment are entitled to not only compensatory damages, but they may also recover punitive damages. (Punishment)

If you feel you have been the victim of a false imprisonment in the state of California, feel free to call me for a free consultation at 818-584-8831 extension 1, or you may go to my personal injury website by clicking here now.

If you feel that you may have been the victim of a false imprisonment outside of the state of California, I highly recommend you consult with an attorney in your state and/or area.

By Norman Gregory Fernandez, ESQ. , Copyright 2006

A slip and fall, and or trip and fall case is pretty much self explanatory. The case arises from a person slipping and/or tripping and falling, and sustaining injuries as a result.

However, there are special circumstances involved in these types of cases which would give rise to you actually being able to pursue a legal case for damages against a person or entity.

THE NECESSITY OF A DANGEROUS CONDITION
The Slip and Fall, and/or Trip and Fall, must be the result of a dangerous condition either on Public or Private Property.

Obviously most human beings slip and/or trip and fall many times in their lives. The law will not allow you to recover each and every time you slip and/or trip and fall.
The law will allow you to recover damages for injuries that result due to a dangerous condition on public and/or private property, and that the owners or persons responsible for the property knew or should have known about.

WHAT IS A DANGEROUS CONDITION?There are literally an infinite number of dangerous conditions that could result in your slipping and/or tripping and falling. Some examples of dangerous conditions we have dealt with are:
• Dangerously slippery surface
• Water or other wet substance on floor
• Cracks in a sidewalk or walkway
• Poorly maintained stairs or hand rails
• Holes in grass, sidewalk, street, or walkway
• Uneven stairs or surface
• Food and or other objects left on the floor
• Debris left on the floor
• Negligently placed parking stops in parking lots
• Unmarked steps
• Ice on walkway or in parking lot, etc.

THE NECESSITY OF NOTICE TO THE OWNER OR PERSON CONTROLLING THE PROPERTY WHERE THE DANGEROUS CONDITION EXISTS The owner or person controlling the property where you suffer a slip and/or trip and fall must either know about the dangerous condition, or should have known about the dangerous condition through reasonable inspections, before you can legally recover against them in these types of cases.

This part of a slip and/or trip and fall case is the most difficult to prove, which is why many lawyers do not take or handle these types of cases.

The testimony of an expert witness is required in many of these types of cases to prove that a dangerous condition existed and that the owner or controller of the property either knew or should have known about the condition.

I handle these types of cases. If you have suffered a slip and/trip and fall injury in California you may call me for a free consultation at 818-584-8831 ext.1 or go to my slip and fall website by clicking here for more information.

If you have suffered a slip and/trip and fall injury outside of California I highly recommend that you consult with a lawyer in your area.

By Norman Gregory Fernandez, Esq. , Copyright 2006

This type of car, motorcycle, and other motor vehicle insurance coverage will pay you a certain amount of money per day to procure a rental car in case you are in an accident.

Check with your insurance company to ensure that you will be covered either when you are at fault, or the other person is at fault.

Sometimes insurance companies will require you to pay for a rental car out of your own pocket and then submit bills to them for reimbursement. Most of the time this type of coverage only pays $20.00 to $30.00 per day up to a dollar maximum, or for a maximum of 30 days.

In many instances, the cost of getting a rental car and insuring the rental car against loss will exceed your rental car coverage policy. However, we always recommend buying rental car coverage in your insurance policy. We cannot tell you how many times we are faced with client’s who were not at fault in an accident, and they have lost their only transportation.

If the at fault motorist’s insurance does not immediately cover you for rental car payments, you will be stuck paying the entire amount on your own until either your vehicle is repaired, or you procure another vehicle. We know this is not fair. This is why we always recommend getting Rental Car Insurance Coverage.

By Norman Gregory Fernandez, Esq. , Copyright 2006

A wrongful death case is a case where a person dies due to the intentional or negligent act of another, or entity. The law allows relatives, domestic partners, and persons who depend upon the wrongful death victim for support to sue for wrongful death. The issue of who can sue for wrongful death is covered below.

Wrongful death cases are traditionally amongst the most emotionally charged cases in personal injury.

Wrongful death cases can take many forms. For instance; a loved one could be killed in a car or motorcycle accident that was not their fault; a loved one may have been killed due to excessive use of force by the police or a private security agency; a loved one may have been killed due to a dangerous condition on public or private property, including defective roads or improperly placed road signs; a loved one may have been killed due to the defective construction of a building on real property; an unborn child may have died due to the negligence of a doctor, or due to an assault and battery on the mother; a loved one may have been killed due to a defective product, or negligent repair.

A wrongful death case can arise when someone was injured in an accident, and then subsequently dies as a result of their injuries.

TIME LIMIT TO FILE A LAWSUIT FOR YOUR WRONGFUL DEATH (CALIFORNIA STATUTE OF LIMITATIONS)

The present Statute of Limitations for filing a lawsuit for wrongful death in the State of California is two (2) years from the date of the accident or incident causing the wrongful death. If you do not file a lawsuit within two (2) years, you lose your right to sue! CCP § 335.1

There are exceptions to the above rule if the wrongful death was caused by the negligence of a doctor or health care provider, or due to building defects.

If the defendant to the wrongful death action is a governmental entity, a claim must be filed with that governmental entity within 6 months from the date of the accident. If the entity rejects the claim, you must then file a lawsuit within one (1) year from the date of the wrongful death.

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I have written an article about Contingency Fees which you can find by clicking here now. If you want to learn about what a contingency fee is, read the article in the link above first, before reading this article.