Archive for the ‘ Wrongful Death ’ Category

Who Can File A Wrongful Death Suit In California?

Posted on: March 24, 2017 by in Wrongful Death
No Comments

The abrupt, accidental death of a loved one is always a tragedy under any circumstances. Often, surviving family members may not be sure where to turn after such an unexpected event. If the death was accidental and caused by someone else’s carelessness, in the state of California an experienced wrongful death attorney can provide the sound legal guidance that survivors will need.

Wrongful death happens in a variety of circumstances – in fact, in far too many ways. Wrongful deaths may happen in traffic collisions caused by impaired or distracted driving or as the result of medical malpractice. A wrongful death may also be caused by a property owner’s negligence that causes a fatal slip-and-fall, by defective consumer products, or by any negligence that leads to an avoidable and unnecessary fatality. When a death was intentional on someone’s part, both a criminal prosecution for homicide and a civil wrongful death lawsuit are possible.

In California, if an accidental death was preventable, in most cases the survivors may pursue a wrongful death lawsuit. While no sum of cash can assuage a family’s grief after a loved one is suddenly lost, a wrongful death claim can at least help survivors meet their immediate financial obligations. A wrongful death lawsuit also lets the survivors hold accountable the party or parties that were negligent and responsible for their loved one’s death.

This is a brief, general introduction to wrongful death in California and the rights of survivors in this state. However, every case is different, so if a wrongful death occurs in your own family, you’ll need to obtain the sound legal advice that is specific to your personal circumstances by consulting with our experienced Pasadena wrongful death lawyers. Your attorney will explain and discuss the legal rights and options of wrongful death survivors, and if necessary, fight in court for the justice that survivors need and the compensation they deserve.

WHAT IS A WRONGFUL DEATH? WHO CAN FILE A WRONGFUL DEATH CLAIM?

A wrongful death may be defined as the death of an individual resulting from the willful or negligent action or actions of another person or persons. Every state allows for the recovery of damages after a wrongful death. However, what varies from state to state is the specific person or persons who have the legal right to pursue a wrongful death claim.

A person’s right to file a wrongful death lawsuit in California depends on that person’s relationship to the deceased person. Under the law in California, the following parties are authorized to bring a wrongful death claim:

  • the deceased person’s surviving spouse
  • the deceased person’s surviving domestic partner
  • the deceased person’ s surviving children

Only if there is no surviving spouse, domestic partner, or children, then a wrongful death lawsuit may be pursued by anyone “entitled to the property of the decedent by intestate succession,” including the deceased person’s parents or siblings.

Additionally, if they can show that they were financially dependent on the deceased person, stepchildren may file a claim, and so can a deceased person’s “putative spouse” and that putative spouse’s children. (California courts may consider an individual a “putative” spouse when a marriage is legally invalidated but one party reasonably believed that the marriage was legally valid.)

IS IT TRUE THAT THERE ARE TWO KINDS OF WRONGFUL DEATH LAWSUITS?

California law provides for two different slightly types of lawsuits that can be brought against negligent defendants responsible for wrongful deaths. A conventional wrongful death lawsuit may be brought under California Code of Civil Procedure Section 377.60. The other type of lawsuit is called a “survival action” and may be pursued under California Code of Civil Procedure Section 377.30. If your family experiences a wrongful death, you should understand the legal difference.

With a conventional wrongful death lawsuit, surviving family members can seek compensation for loss of support, loss of services, funeral and burial expenses, loss of companionship, and loss of consortium. Punitive damages, however, are not recoverable through a conventional wrongful death lawsuit.

A “survival action” may be filed by the personal representative of the deceased person’s estate, or if no representative has been named, by the decedent’s “successor in interest.” A “successor in interest” is the beneficiary of the decedent’s estate or the beneficiary of some item or part of the decedent’s property that may be subject to a cause of action.

A survival action may only be pursued if the deceased person did not pass away immediately from his or her injuries. If the deceased person lived for even a brief time between the accident and the death, then a survival action may be filed. A survival action basically allows someone to recover what the deceased person would have been entitled to through a personal injury claim if the deceased person had survived – medical expenses, lost wages, and punitive damages as well. Survival actions and conventional wrongful death claims are usually separate and distinct, but in some situations, where appropriate, both types of claims may be merged into a single lawsuit.

WHAT MUST A PLAINTIFF PROVE IN A WRONGFUL DEATH TRIAL?

Wrongful death claims are usually settled out of court. Typically, attorneys for both sides are able to arrive at a settlement that is acceptable to both the plaintiff (the surviving family member bringing the claim) and the defendant (the allegedly negligent party). When a wrongful death claim goes to trial, the plaintiff must prove that the defendant owed the deceased person a “duty of care” and that the duty of care was breached, leading directly to the wrongful death.

For example, in a California wrongful death case arising from a traffic accident, the plaintiff first must prove that the defendant was obligated to obey the traffic laws and to drive safely. Next, a plaintiff must show that the duty of care was breached by the defendant’s negligent driving, reckless driving, speeding, or other failure to obey traffic laws. A plaintiff finally must prove that the breach of the duty of care directly caused the wrongful death – meaning that the deceased person “more likely than not” died due to the defendant’s negligence and for no other reason.

After losing a loved one, even discussing the legal aspects of a wrongful death can be difficult. Still, it’s imperative for family members to act as quickly as possible. In Southern California, survivors should seek the advice and legal services of an experienced Pasadena wrongful death attorney.

When you lose a loved one because of someone else’s negligence, you may not be prepared to deal with all of the legal and emotional issues, but a good wrongful death lawyer can be sensitive to the needs and emotions of the survivors while acting aggressively on their behalf to obtain the compensation and justice they are entitled to under California law.

E-Cigarettes and The Dangers of Vaping

Posted on: September 21, 2016 by in Wrongful Death
No Comments

Many smokers have turned to electronic cigarettes with the hope of avoiding the heart, cancer, and other health risks linked to tobacco products. But “vaping” has its own hazards, as too many people are finding out. “Vaping,” according to Los Angeles County product liability attorney Gregory Vanni, “is being promoted by big tobacco as a ‘safe’ alternative to smoking. Don’t believe the lie. Vaping users are far more likely to become cigarette smokers. Electronic cigarettes produce toxic vapors that are known to cause many health risks. In addition, electronic cigarettes have been prone to explode, causing serious injury to the user.”

1

Joseph Cavins, a 63-year-old family and marriage counselor from Irvine, found out the hard way about the dangers of exploding electronic cigarettes. Mr. Cavins lost his left eye when an electronic cigarette he was smoking exploded. “I felt like I was hit on the side of the head and everything went south from there,” Mr. Cavins told KABC News. He’s only one of many who’ve been injured using electronic cigarettes.

In May, Kenneth Barbero of Albany, New York was vaping when the device he was using blew up in his face, knocking out several teeth and leaving a hole in his tongue. Also in May, an Alabama high school student sustained burn injuries after a classmate’s e-cigarette exploded and he was struck by the hot battery. In February, a young man named Josh Hamilton was severely injured when an electronic cigarette battery apparently exploded in his pocket while he was paying for snacks at a gas station in Owensboro, Kentucky.

We have seen an increasing number of incidents where e-cigarettes are malfunctioning, catching fire, or even exploding and causing severe personal injuries – and especially in the Los Angeles area. What started as a “healthier” alternative to tobacco smoking is now a multi-billion-dollar industry selling millions of products all over the world and especially in Southern California. Small shops selling “vaping” products have suddenly popped up throughout Los Angeles and across the region.

HOW ARE E-CIGARETTES REGULATED?

Consumers need to know that vaping products have moved into the marketplace with very little testing and with virtually no regulation. Vaping products can heat up to a dangerous level, exploding and causing many types of injuries. When an e-cigarette exploded in his mouth, a 26-year-old Tustin man had to be rushed to emergency surgery. A small fragment of the device lodged in his mouth and had to be surgically removed. A man in Bakersfield had to have his left index finger amputated when a vaping device exploded as he was putting it to his mouth.

E-cigarettes are meant to compensate for the sensation of cigarette smoking by releasing a vapor when a heating element in the device brings the liquid vapor solution to a boil. The heating element requires a power source, usually a lithium-ion battery. The fires start in the battery. If electrolytes in the battery overheat, the battery may expand and rupture. While all batteries contain electrolyte solutions, the solutions in lithium-ion batteries are more dangerous because they are flammable.

The danger with e-cigarettes is heightened because the batteries are located at the end of a tube usually made of plastic or aluminum. Laptop computers and other electronic devices use durable plastic casings to prevent a battery explosion from doing much damage. But in an e-cigarette, a battery explosion can cause the cylindrical container of the device to shatter and to explode into dangerous, flying hot fragments.

HOW DOES THE STATE OF CALIFORNIA PROTECT CONSUMERS?

California product liability law protects consumers. Consumers in this state who are injured by any commercial product that is either negligently manufactured or negligently designed are entitled to complete compensation for current and future medical expenses, lost wages and lost earning capacity, and all other injury-related losses and damages. Causes of action for recovery of damages may also include the failure to warn users of a product’s potential dangers and breaches of express or implied warranties. In such cases, retailers may be liable as well as manufacturers for injuries caused by the products they sell.

Many of the products used for vaping are sold by small retailers who may not have liability insurance coverage. Since many of the devices used for vaping are manufactured in China, finding the original manufacturer – or taking any legal action against that manufacturer – can be quite difficult. Enforcing a monetary judgment against a foreign company is almost impossible. This means that persons injured by e-cigarettes in Southern California will need help from a Los Angeles County product liability attorney who can investigate other potentially liable parties such as the U.S.-based importers and distributors of vaping products.

3

Once a personal injury claim has been filed, other obstacles can remain for injury victims. The defendants in personal injury cases arising from e-cigarette injuries typically charge that the injury victim (the plaintiff) is “comparatively” at fault for his or her own injury by alleging “misuse” of the vaping device. When used as a normal consumer would use it, a vaping device should not explode and shoot shrapnel at the hands, face, and body of the user. A personal injury attorney can usually overcome this challenge, so if you are injured using an e-cigarette, do not try taking legal action without an attorney’s assistance.

DO OTHER PRODUCTS POSE OTHER DANGERS TO SMOKERS?

E-cigarettes are not the only consumer product that threatens tobacco smokers. About a billion – yes, one billion – cheap, disposable cigarette lighters are sold or given away with cigarette purchases each year in the United States. Most are made in China and do not comply with the voluntary safety standards shed by U.S.-based cigarette lighter manufacturers. The Consumer Product Safety Commission (CPSC) says that exploding cigarette lighters injure approximately a thousand people a year in the United States. Annual property and personal injury damages from defective lighters total $31 million a year, according to the CPSC.

4

The CPSC also says that many foreign-made disposable cigarette lighters include a defect that keeps the flame burning after the lighter is closed. Because there are no legally-required safety standards for disposable lighters in the U.S., the defective lighters remain on the market. Cigarette lighter manufacturers located in the United States make cigarette lighters that are safer – statistically speaking – but any cigarette lighter is potentially hazardous.

In Southern California, anyone injured by a defectively-manufactured e-cigarette or an exploding cigarette lighter should speak about your legal options with an experienced Los Angeles County product liability attorney. Burn injuries are often catastrophic and disabling – and are sometimes permanent. Someone who has suffered burn injuries because of a malfunctioning or exploding e-cigarette or a disposable cigarette lighter may need substantial compensation for medical treatment, lost wages, therapy and rehabilitation, and other burn injury-related expenses. Of course, if you can quit smoking entirely, do it – for your health and for those who love you.

How to Prove Wrongful Death in a California Civil Case

Posted on: August 30, 2016 by in Wrongful Death
No Comments

In all fifty states, whenever someone’s death is the result of the negligence of another person or persons, the surviving family members are usually entitled to sue for damages from the person or persons who were negligent. These claims for damages are called “wrongful death” cases. What do surviving family members have to prove in order for a unjustified dying lawsuit to prevail? This is a general overview of what’s required, but if you are or become the survivor of a wrongful death victim, you’ll need to discuss the specifics of your own case with an experienced wrongful death attorney.

1

No matter how a wrongful death takes place, if someone’s negligence is the reason for that death, the negligent person may be held accountable through a wrongful death lawsuit. A wrongful death claim is a civil lawsuit for financial damages. A civil case is very different – an entirely different type of procedure – from the criminal charges that a prosecutor or a district attorney may pursue against the same individual.

Criminal charges potentially lead to a criminal conviction and criminal penalties such as fines and incarceration. However, a criminal prosecution does not award damages to any of the surviving family members after a wrongful death. Monetary damages can only be acquired by surviving family members through a civil wrongful death lawsuit. The person who files a unjustified dying claim is usually – and in some states must be – an immediate family member who pursues the lawsuit on behalf of all of the survivors.

The person who brings a civil lawsuit is called the “plaintiff,” and in a wrongful death case, the person accused of the negligence leading to a wrongful death is called the “defendant.” In a wrongful death case, the plaintiff is typically an immediate family member, but if the deceased person had a will, in some states, judges may name an executor or personal representative of the estate; that person becomes the plaintiff and pursues the claim for the surviving family members.

WHAT MUST SURVIVORS PROVE IN WRONGFUL DEATH CASES?

A wrongful death lawsuit charges that a defendant acted negligently or intentionally (or negligently or intentionally failed to act) and should therefore be held accountable for the wrongful death. In a typical wrongful death lawsuit in the state of California, for example, before any damages can be awarded to survivors in a settlement or verdict, the plaintiff’s side must prove:

  1. A duty of care existed: With the help of a good wrongful death lawyer, a plaintiff must demonstrate that a defendant “owed” the deceased person what the law calls a “duty of care.” A doctor, for example, must meet certain professional standards to avoid malpractice. Drivers legally “owe” other drivers an obligation to adhere to traffic laws and to avoid negligent driving.
  2. The duty of care was breached: Secondly, plaintiffs must prove that the duty of care was breached. A driver who drives while intoxicated or a doctor who fails to satisfy accepted professional standards are both probably breaching their duty of care to others.
  3. The breach of duty caused unjustified dying: Even if a duty of care was breached, to prevail with a wrongful death claim, the plaintiff’s side must prove that the breach of the duty of care was directly responsible for the wrongful death. If no injury results from the breach of the duty of care, then legally, there are no grounds for a claim.

2

WHAT IS THE BURDEN OF PROOF IN A WRONGFUL DEATH CASE?

In a criminal trial, a defendant can only be convicted if a prosecutor can prove guilt beyond a reasonable doubt. However, in a civil trial such as a wrongful death case, the burden of proof is slightly lower. In civil trials, a “preponderance of the evidence” is enough for a civil lawsuit to prevail. In other words, if it’s “more likely than not” that the defendant had a duty of care and breached that duty, directly causing wrongful death, the plaintiff will prevail.

However, if a plaintiff in a wrongful death case fails to satisfy the burden of proof for any of the three elements of negligence, the plaintiff will not recover any wrongful death damages. But trials are actually quite rare in wrongful death cases. Like most lawsuits, unjustified dying lawsuits in California are usually resolved in out-of-court, pre-trial negotiations between the attorneys for the two sides.

However, when no out-of-court agreement can be reached, a wrongful death case will be tried in court, and surviving family members in Southern California will need the advice and services of a seasoned and experienced Pasadena personal injury attorney. In a civil trial, the law in California says, “the jury shall consist of 12 persons or a lesser number agreed on by the parties in open court.” In civil cases in California, a jury verdict requires 3/4ths of the jurors to agree.

3

WHAT HAPPENS BEFORE A WRONGFUL DEATH TRIAL?

Although unjustified dying trials are infrequent in California, a good wrongful death lawyer prepares for the possibility of a courtroom trial from the beginning. What’s called a “discovery” process will take place before any trial begins. Discovery in a wrongful death case can include “interrogatories,” (sets of questions from the attorneys) depositions (pre-trial interrogations taken under oath), and subpoenas demanding the production of evidence or testimony.

Typically, there will also be a number of pre-trial motions and continuing out-of-court negotiations before a wrongful death case ever reaches a courtroom, and efforts to settle the case can continue right up to and even during the trial itself. In Southern California, surviving family members should be represented by a Pasadena personal injury attorney with substantial experience and success in both the negotiation and the trial aspects of wrongful death cases.

If you unexpectedly lose someone you love because someone else was careless, you’ll have to face legal, financial, and personal issues – all at the worst possible time – but a good wrongful death lawyer can help. It’s imperative to launch a unjustified dying lawsuit as quickly as possible. In most California wrongful death cases, plaintiffs have two years from the date of the wrongful death to take legal action.

In this state, families are entitled to file unjustified dying claims whenever reckless or negligent behavior is the cause of a family member’s death. Agony and heartache can be devastating after the sudden loss of a family member, and no amount of money will ease the pain, but your family’s future after a loved one’s death is a genuine concern and a necessary consideration. Wrongful death settlements can provide for families that would otherwise suffer financial hardship and help others to move ahead positively and constructively with their lives.

VIDEO TRANSCRIPT:

Proving wrongful death cases in California involves assessing two fundamental issues. Number one would be fault, in other words, who’s to blame for causing the loss of a human life? In the law, that’s called liability. Number two is assessing the loss itself, the loss of the human life. In the law, we call that the damages.

In talking about fault in a wrongful death case, it can range from the most simple cases, such as an automobile rear end collision, to those involving highly complex issues, such as a structural collapse, like a bridge collapsing, or a building collapsing, or something of that sort, in which case, the lawyer will need to engage a highly competent and specialized team of experts to assess liability, to assess who’s at fault. What caused the accident? What caused the loss of life?

In turning to the issue of loss itself, or damages, the first and fundamental question has to be: “Are you even the proper client?” It may sound obvious, but for example, distant relatives don’t qualify, typically, in wrongful death cases as being the appropriate client. Even people who live together for many years but have not either married or registered themselves as a domestic couple may not be eligible either. Generally, what happens is the law follows the law of inheritance within the state. So the closest relatives, typically, are those who are the proper party to unjustified dying lawsuits, such as, of course, a spouse, children, etc.

The other thing is that wrongful death cases are not always the same when it comes to damages. So some losses involve, for example, a spouse and a loved one who were extremely close and had a long, loving relationship. Another example, though, might be a spouse that was estranged, still married, yet really had no relationship with the decedent. So that has to be assessed as well in evaluating the loss, or the damages. So those are some of the fundamental questions that must be addressed in California when looking into a wrongful death claim.