Frequently Asked Questions
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PERSONAL INJURY FAQ'S
Do I have a good case?
There are no "good" personal injury cases. Even if your case has what lawyers call "good" liability - which means that there was negligence committed by someone else which caused your damages - your case can fail due to the absence of significant damages or because the person or persons responsible haven't any money or insurance, or are immune or cannot be found. If the case is "good" - in the sometimes upside down world of the law - then you have been injured so badly that you certainly wish that the accident had never happened. We understand and can help you deal with your loss and obtain fair compensation for your damages. We cannot obtain revenge, a better medical result, or turn back the hands of time.
How much is my case worth?
If you have a serious injury and there is no need to proceed with your case quickly, your lawyer might tell you that your immediate energies are best spent getting well. Frequent doctor appointments, medication and therapy can be exhausting. You probably don't need a lawsuit right away on top of the responsibility you have to get well.
When you file a lawsuit for personal injuries, you are called the plaintiff. As a plaintiff, you have some very serious responsibilities. One of those responsibilities is to genuinely try your hardest to get well. If you don't, the person you sued (who is called the defendant) can argue to the Court and the jury that your damages should be reduced because you did not do all you could to get the best result.
We need your help in determining your damages. Save your medical bills, pharmacy receipts and any health or accident insurance forms. Find, organize and copy your tax returns for the past several years in order to establish your earnings pattern. Your special circumstances will determine how far back we will need your tax returns. We may need to hire specialists such as an accountant or an economist to determine your economic losses, especially if you have a permanent injury. Death cases are particularly tragic and economically hard on families. In such cases, an economist is almost certainly required to determine the damages.
There is a lot of casual talk about how trial lawyers "invent" claims against wealthy businesses, cities or corporations. You may hear people talk about "deep pockets" or "target defendants." Ignore statements by others who are suspicious of your motives or who disparage your ethics in pursuing a claim allowed by the law.
Can I collect?
Whether you can collect is a function of the financial position of the person who wronged you. If your case is not collectible, your lawyer will advise you as soon as this is discovered. Occasionally, a case needs to be pursued to its conclusion before we determine whether or not you will be able to collect. However, in many states including Wisconsin, the details concerning a defendant's insurance must be disclosed upon a proper discovery request of the plaintiff. Your lawyer should be able to tell you early on whether the it is likely that a case is collectible or not. Drivers in Wisconsin and many other states are not required to obtain insurance. If you have been injured by an uninsured driver and have insurance yourself, you may be able to make a claim against your own insurance company for the damages you have sustained under the "uninsured motorist" coverage contained in your policy. Every policy of automobile insurance sold in Wisconsin must provide "uninsured motorist" coverage. All automobile insurance sold in Wisconsin must provide at least $25,000 in liability coverage. Frequently, however, this minimum coverage is not sufficient to compensate you for the full amount of your damages. In those cases you may be able to make a claim against your own insurance company under your "underinsured motorist" coverage. Underinsured motorist coverage is not mandatory and you will only be able to make this claim if you have purchased such coverage.
All employers are supposed to carry worker's compensation coverage. But not all do. If you are insured against disability, or for health/medical expenses, or have automobile insurance and were in a car accident, then you need to follow through with the proper forms and submissions to your insurance company. Many times, your own insurance company will require repayment of any benefits it paid to you or on your behalf if you recover in your lawsuit. This is called a "subrogation interest" and you need to discuss the details with your lawyer.
ACCIDENT-RELATED INJURY FAQ'S
How do I know if I have a claim against someone?
Answer: Unfortunately, injuries can happen to any of us at any time. Sometimes we are injured due to our own carelessness or just because we were in the wrong place at the wrong time. In a circumstance in which you may be injured without someone else "doing something wrong", there may be no legal claim to be made.
On the other hand, sometimes we are injured as the result of the negligence of others. "Negligence" is, essentially, carelessness. A person is negligent if he fails to do something that a reasonably careful person would do in the same circumstances or he does something that a reasonably careful person would not do in the same circumstances. If you have been injured due to the carelessness or negligence of another, you are entitled to be compensated for your injuries.
Who decides which parties were negligent?
Until a case actually goes to trial, the parties are really just predicting whether a judge or jury might find someone to be negligent after hearing the evidence. Prior to that time, your attorney relies upon his experience and knowledge of the law to make these predictions. The parties may agree which of the parties involved in the accident were negligent and which ones were not. Other times, it may be clear as mud and the subject of much debate. If there is an agreement on who caused the accident, the claim may be well on the way toward settlement.
The other driver got a ticket. Does that mean that he was negligent and I am not?
No. Police officers are often called to the scene of car accidents. They make sure that injured parties receive appropriate medical assistance, route traffic around the accident scene in a safe manner, and gather information about how the accident occurred. If the investigating officer believes that one or more of the drivers involved in a car accident violated a traffic law, he or she may issue a traffic ticket. This is simply the judgment of the investigating officer that it is probable the driver he ticketed has violated the law. This is not necessarily the same question as whether a party was negligent. But if the other party gets a ticket and you do not, it may be a good indicator of who may have been at fault.
Do I have to be completely blameless in order to have a valid claim?
No. Wisconsin operates under what is known as "comparative negligence". To be successful, one making a claim against another must be able to prove that the other party was negligent and at least as much at fault as the person making the claim. For example, in a two car accident where both drivers were 50% at fault, the party making the claim will be able to recover 50% of his damages from the other driver and his insurance company.
If, on the other hand, the driver making the claim is 51% or more at fault, and the defendant driver is 49% or less at fault, the party making the claim loses and is not entitled to any recovery.
Any negligence that is apportioned to the party making the claim serves to reduce his damages by that same percentage. In other words, in a two car accident where the party making the claim is found to 25% at fault and have damages of $100,000, he will be able to recover $75,000 (75%) from the other driver who was determined to be 75% the cause of the accident.
When should I contact my own car insurance company following an accident?
As soon as reasonably possible, you should contact your insurance agent to advise that you have a claim to report. You are under a contractual obligation to provide your insurance company with accurate and timely information about the accident, property damage, and any injuries that may have been sustained. Your own insurance company may send an "insurance adjuster" out to talk to you about the accident. Once again, you have a contractual obligation to cooperate with your own insurance company and should do so. Failure to do so may result in losing benefits that would have otherwise been available to you from your own insurance company.
Should I talk to an insurance adjuster from the other drivers insurance company?
Most insurance companies will want to send out investigators, or "adjusters", whose job is to gather information about how the accident happened, whether their insured is responsible for causing the accident, and any injuries that might have been received in the accident. However, you are under no obligation to provide any information to the other drivers insurance company. We advise our clients not to give any written or recorded statements to the other insurance company. We advise our clients not to provide any medical authorizations or sign any documents, whatsoever, for the other drivers insurance company.
You may receive letters, phone calls, and even get a personal visit from an adjuster working for the other drivers insurance company. We advise our clients to politely tell the insurance adjuster that they do not wish to speak about the accident and ask them to refer any questions to this office for handling.
The other driver was completely at fault and I have nothing to hide. What harm could there be to talking to an adjuster from the other drivers insurance company?
You must keep in mind that part of what a good adjuster does is gather information that will be helpful to his client and detrimental to your claim. If they can get you to make comments that will hurt your claim, they will try to document that information for possible use later on. We have seen written and signed statements used against our clients at trial. Sometimes the comments are taken out of context and sometimes our client simply did not understand the questions that were being asked or the significance of the answers being provided. Similarly, we have seen situations where a telephone conversation is recorded and then transcribed by an employee of the other drivers insurance company. We have seen errors in the transcription, words left out, and generally very inaccurate transcriptions of telephone conversations. Later, in court, we sometimes have to explain that the transcription is not accurate and that the written words in that statement are wrong. As you can see, it is usually better to make no comment at all than to have a comment misunderstood and have to somehow explain it.
How and when do I get my car fixed?
Typically, property damage claims are resolved a short time after the accident. Sometimes the insurance company for the other driver offers little resistance and agrees to pay you for the damage. Other times, there may be issues about whose fault the accident was, what the value of the damage was, etc. In those circumstances, if you have collision insurance with your own insurance company, you can turn in your claim to your own insurance company for payment. Rest assured that if your own insurance company believes the damages were caused by the negligence of another driver, they will then negotiate with the other drivers insurance company to recover for any damages they may have paid you.
Once again, principles of comparative negligence come into play. If all parties were to agree that there was $5,000 worth of damage done to your car and that the other driver was 75% the cause of the accident and you were 25% the cause of the accident, the other drivers insurance company would pay you 75% of $5,000, or $3,750. The rest would come from your own insurance company, subject to any reduction for your deductible.
Do not hesitate to allow an insurance adjuster for your insurance company or even the other drivers insurance company to take pictures of damage done to your car. We also advise our clients to take their own pictures of vehicle damage. We also tell our clients to take too many pictures, rather than not enough.
How much should I get for my damaged car?
Assuming that the other driver was entirely at fault, you have a right to either the cost of repair or the fair market value of the vehicle just before the accident, whichever is less. Essentially, you have the right to have the car repaired and put in the same condition it was in just before the accident, if it is repairable. You are not entitled to improvements, nor are you entitled to have damage unrelated to the accident repaired as a part of the claim. If the vehicle is "totaled", you will be entitled to the fair market value of the vehicle just before the accident. Being "totaled", simply means that it would cost more to repair the car than the entire car is worth. If your vehicle is totaled, the insurance company will essentially be paying you for the full value of the car and may have the right to any scrap value they can get from the vehicle. Sometimes insurance companies will negotiate a lower payout to you if you prefer to take the remains of the car as well.
When should I see a doctor?
If there is even a possibility that you were injured in an accident, you should to directly to the closest emergency room to report your injuries. Sometimes people report that they were "all pumped up" at the scene of the accident and did not believe that they had been injured, but that later that day or the following morning, they felt like they had been run over by a truck. This is not uncommon. Indeed, some people do not begin to experience symptoms for days or even weeks after an accident.
Sometimes we have clients acknowledge they were injured at the scene of the accident, but fail to seek medical attention because they just figured they would get better after a few days or a few weeks. It is very difficult to make a claim for personal injuries if there has been no medical care or treatment and no doctor has had an opportunity to examine you and listen to your complaints. Insurance companies will argue "Well, you couldnt have been hurt if you didnt even have to go to the doctor."
Clearly, the safest course to follow from both a medical and legal standpoint following an accident is to seek medical care immediately if there is any question about injury.
My doctor wants me to participate in physical therapy and do all kinds of exercises. I dont have time for this and it is a bother. Why should I do this?
It is extremely important that you show up on time for all doctor appointments and religiously follow your doctors orders, whether it is to remain in bed, stay off work, take medication, go to physical therapy, or do exercises. Insurance companies love to see medical records with entries that read "Patient did not show for appointment." Similarly, if you do not participate in physical therapy, do your exercises, etc., the insurance company will argue that the reason you did not improve better or faster is because you failed to follow your doctors orders.
What should I tell my doctor when I see him?
Every time you see a new doctor for accident related injuries, you are likely to be asked about your symptoms and when your symptoms began. You must understand that the doctors take notes of these discussion with you and ultimately dictate their notes and they become your medical records. Be sure to clearly and accurately state when your symptoms began, describe each and every part of you that hurts, or is giving you problems, tell him or her what makes your symptoms better or worse, and clearly advise that you have been following the advice and recommendations of all of your doctors and therapists.
Is it acceptable go to a chiropractor, rather than a medical doctor?
It is our recommendation that your first stop for medical care is with a medical doctor at an emergency room. Many times, thereafter, our clients elect to seek chiropractic care, rather than medical treatment. This is completely acceptable, as the testimony of chiropractors is admissible as expert testimony in the same way that the testimony of a medical doctor would be considered expert testimony. Some people prefer medical care and others prefer chiropractic or other alternative methods of care. Ultimately, from a medical standpoint, you will want to get the kind of care and treatment that will most likely result in a quick and complete recovery. From a legal standpoint, you will want to seek care that is reasonable, necessary, and be able to show that it is related to the accident. Many injured individuals also pursue a course of physical therapy.
Who will pay my medical bills?
Assuming the other driver to be at fault, his insurance company will eventually pay for the medical expenses you incur for treatment for injuries related to the accident. As a practical matter, however, they will not pay those bills until the very end when the entire claim settles. Of course, in the meantime, you may be receiving bills from doctors and hospitals and therapists for services they are providing to you for injuries resulting from the accident.
Your first option to get medical expenses paid is to simply turn them in to your normal health insurance company like you would any other medical expense. Your health insurance company will process those bills in the normal fashion and will pay for those expenses that are covered. Your health insurance company would then acquire the right to collect any expenses they have paid out back from the other drivers insurance company at the end of the case. In the meantime, however, they will have made payment and you should not be getting bills from your health care providers
Sometimes our clients do not have health insurance or there are significant deductibles or co-pay requirements. You may have a "medical payment" provision in your own automobile insurance policy. Many policies provide that if you or a passenger in your car are injured while you are in the insured car, they will pay up to a certain amount of money for medical expenses, no matter who caused the accident. We typically see "med pay" coverage in the amount of $1,000, $2,000, $5,000, or sometimes $10,000. It is simply a matter of how much insurance coverage you contracted for with your own insurance company. Once again, if your own insurance company makes payments under the med pay part of your policy, they would then acquire the right to recover those payments from the other drivers insurance company at the end of the case.
Sometimes our clients have no health insurance and have exhausted the medical payment benefits under their own policy. Still, they continue to get bills for medical care that is being provided. In such a circumstance, you may either pay for all or a portion of those bills individually as you are able, or enter into an arrangement with the health care provider in which you agree to pay for the medical expenses at the conclusion of your case. Many doctors and clinics are agreeable to defer payment of their bills until the conclusion of your case.
When should I go back to my job?
If you are injured in an accident, you should return to work as soon as your doctors clear you for that activity. We prefer that our clients remain as active as possible and get back to work as soon as they are reasonably able to do so even if only on a part-time basis at the beginning. Of course, this is largely a medical issue and, once again, we recommend that you follow your doctors advice. It is important that you clearly advised your doctor of all of the physical requirements of your job prior to asking him for an opinion about when you are able to return to work.
If you do have to miss work because of accident related injuries, make sure that your employer understands the reason for your absence. It is a good idea for both you and your employer to document all of the time off, wages lost, and benefits lost as a result of your inability to work. For some people who work for a specific rate of pay for a specific number of hours per day, a calculation of lost wages is fairly simple. For others, however, who may work on commission, have flexible hours, or be self-employed, calculation of lost wages is more difficult. All you can do is document any lost income as best you can. This may include keeping track of your own hours and losses, as well as getting statements from prospective customers whose business you lost as a result of your inability to work.
Are there any time limits I have to worry about?
Yes. A typical negligence claim has a three year statute of limitations. This means that you have three years from the date of the accident in which to either settle your claim or begin a lawsuit. Failure to do either of these things would result in a complete loss of your claim and you will never be compensated for your injuries at all.
There are also special statutes of limitations that might apply to specific circumstances. For example, there is different statute of limitations when minors are injured, when medical malpractice may be involved, when the legal theory may be something other than simple negligence, as well as multiple other examples. If you have a claim against a governmental body, there are strict notice requirements that must be complied with to preserve your claim. For these reasons, we always recommend that you seek legal advice and representation as soon after an accidental injury as is practicable.
How can I afford to hire an attorney when I cant even pay my medical bills?
Most of our clients who have been injured as a result of negligence of others have hired this firm on a contingent fee basis. This means that the attorneys fees will be a percentage of the ultimate recovery and will be paid at the conclusion of the case. If, for some reason, there is no recovery at the conclusion of the case, you have no attorneys fees to pay this firm.
This firm may pay for a variety of different costs and expenses in processing your claims. At the conclusion of the case, you will simply reimburse the firm for its expenses out of your share of the settlement. Once again, depending upon the particulars of your case, there may be no requirement to reimburse the firm for expenses if there is no recovery.
There is always a written fee agreement that details the fee agreement in each case that we handle on a contingent fee basis. The fee agreement should discuss the issue of costs.
When should I hire a lawyer?
The safest thing you can do is to contact an attorney immediately after an accident. There are times when evidence will disappear or be altered as time goes on. It may be necessary to hire accident reconstruction engineers, investigators, and others to evaluate your claim. Many times it is imperative that we become involved as early as possible. Any delay may result in the loss of important evidence.
Your initial consultation with this firm will result in no expense to you. The best thing that you can do is educate yourself about your legal options and concerns as soon as possible and preserve your rights as fully as you can.
WHAT TO DO AT THE SCENE OF AN ACCIDENT FAQ'S
I've just had a car accident. What should I do?
Stop your car in a safe location and do not leave the scene of the accident. The law requires that you identify yourself and render assistance before leaving the scene of an accident. Police must be called if the accident involves injury, death or property damage of $1,000 or more, or $200 of governmental property damage.
Should I get out of my car?
If you are safely able to do so, you should help anyone who has been injured. Make sure that police or an ambulance are called if necessary. Be careful about moving anyone who may have been injured. Go to a place where you will not be in danger of being hit by traffic coming through the accident scene. Occasionally what starts off as a minor traffic accident turns into a tragic situation when oncoming traffic encounters stopped traffic or people on the roadway. Do what you can to make sure that oncoming traffic is warned about the accident.
Should I talk to the other drivers involved in the accident?
A driver involved in an accident must give his name, address, vehicle registration number, and show his drivers license to any other driver involved in the accident, if asked to do so. You should not make any statements or admissions about fault or causing the accident. A lack of complete information and the excitement of the moment can lead to admissions that would not have been made in a more normal circumstance.
Do I really need an ambulance?
If you are injured, the investigating officer is likely to ask you if you wish to be transported to the nearest emergency room. This is not the time to be tough. If you have been injured, tell the police officer so. Accept his offer to have you transported to the emergency room if you have any question about your ability to get there yourself. It is best to have a doctor give you a thorough examination as soon after the accident as possible. Of course, sometimes, it is imperative from a medical standpoint.
What do I do if the other driver threatens to leave the scene or actually does so?
It is important for you to gather information about the parties involved in the accident as well as making note of any witnesses to the accident. Certainly, if a driver involved in the accident threatens to leave the scene, you should advise him that he may be violating the law and that he should wait for the police. Write down his name, address, drivers license number, and any other identifying information that may be available to you. If nothing else, be sure to get his license plate number as well as a description of the vehicle he was driving. This information should be shared with the investigating police officer.
Should we move the vehicles involved in the accident before the police arrive?
To some extent, this is a judgment call. If you have been involved in a serious crash with possibly serious injuries to anyone, do not move the vehicles. Sometimes drivers will have different versions of how the accident occurred and the resting location of the cars may be an important piece of evidence. The resting location of the vehicles may be instructive on who had the right of way, the speed of the vehicles, whether someone had crossed a centerline, etc. Similarly, skid marks, marks on the roadway, and debris on the road at the point of impact may be crucial in determining whose fault the accident may have been. This evidence should not be disturbed. An investigating police officer is likely to take photographs of a serious accident scene. You may ask him or her to do so if it does not appear as though he is going to do so on his own. Similarly, if you have access to a camera, it can never hurt to have lots of pictures of the accident scene.
In other situations, the accident may be quite minor with little or no injury involved. If the cars come to rest in an area of high traffic volume, leaving the cars in their post-accident position may increase the possibility of additional and more serious accidents and injuries. In a very minor accident with no apparent injury, it may be best for you to speak with the other drivers involved in the accident and agree to move all of your cars to a safer location nearby. Ultimately, the safety of those involved in the accident as well as oncoming traffic should be the deciding factor.
DETERMINING INJURY CLAIM WORTH FAQ'S
I've been injured in an accident. How much my claim is worth?
One of the first things that many accident victims ask their lawyers is how much the claim may be worth. The honest answer at that time is that it is too early to tell. Every accident and every injury has its own individual characteristics that will affect the ultimate value of the claim. Dont assume that because your uncle or neighbor was in an accident once and received a certain settlement that your case should be similar. Each case is different.
The primary factors involved in determining the value of a claim are the strength of the liability case and the degree to which the injuries have impacted upon your life. In addition there are a multitude of subtle factors that may make a claim more valuable or less valuable. An experienced attorney knows that he can place a value on a claim only after he has gathered all of the important information about a case.
Generally speaking, however, an individual who has been injured by the negligence of another is entitled to be fully compensated in three primary areas:
- Past and future medical expenses
- Past and future lost wages or loss of earning capacity
- Past and future pain, suffering, disfigurement, and disability
Who determines the value of my claim?
A judge or jury can determine the amount of money that will fairly and reasonably compensate the victim of accidental injury. They would do this only after hearing evidence from witnesses and seeing documents and exhibits that fully explain how the accident happened as well as the extent of any injuries received. This does not mean that all injury cases must go to trial. In fact, a great majority settle without the need for a trial.
When determining the value of your case, your attorney will essentially be predicting how a judge or jury is likely to respond to the evidence in your case. Your lawyer will be predicting who a jury would find negligent and what percentage of fault will be placed on each party. He will also be predicting how much money a jury will award after they learn all about the injury victim and the effects the injury have had on him or her.
The defendant insurance company will be going through the same process of predicting the outcome of a trial. When the predictions of the defendant insurance company are similar to those of your attorney, the case may settle with your approval.
How does anyone put a dollar value on pain and suffering?
A jury is told that pain, suffering, disability, and disfigurement include any physical pain, worry, distress, embarrassment, and humiliation which the victim has suffered in the past and is reasonably certain to suffer in the future.
They are told to consider to what extent the injuries have impaired and will impair the injured persons ability to enjoy the normal activities, pleasures, and benefits of life. They also consider the nature of the injuries, the effect produced by the injuries in the past, and the effect the injuries are reasonably certain to produce in the future bearing in mind the plaintifs age, prior mental and physical condition, and the probable duration of his or her life.
When valuing pain and suffering, your lawyer will consider how the injuries may have affected your lifestyle. What has changed about your work life? Your recreational life? Your social life? Your emotional state of mind? Your family life? Your normal activities of daily living? It is only after gathering information on all of these factors and many more that an attorney can begin to predict what the pain and suffering may be worth.
How long will it take to determine the value of my case?
The single most important factor in determining when your claim may be valued is your medical condition. We always want to conclude your claim as soon as is reasonably possible. We would rather have settlement money in your hands than in the bank account of some insurance company. We must be careful, however, not to settle a case before all of the ramifications of an injury are fully known. Once a case is settled, it is settled. One may not return to an insurance company months after a settlement claiming that the injury was worse than was understood at the time of settlement and ask for more money.
Your attorneys will be very dependent upon you and your doctors to determine when the time is right to begin valuing your claim. Often times, many months go by following an accident before any attempt is made at valuing a claim. This is because the injured party may still be recuperating or recovering from injuries. A case should not be settled until your doctor is able to state what the future probably holds for you. Will there be future medical expenses? Will there be additional surgery? Will there by permanent disability as a result of the injuries? These are all things that your doctor must determine before your attorneys can begin valuing your case.
Will the insurance company pay what we ask?
Bear in mind that insurance companies are in business to make money. The less money that they pay you, the more money they can keep for themselves. The defendant insurance company wants to pay you as little as they possibly can, while still obtaining a release of further liability for themselves and their insured. You and your attorneys, on the other hand, will want to make sure that you are fully and completely compensated for all of your injuries and losses. Frequently, the defendant insurance company and the injured party and his attorney have significantly different views on the value of the case. The cases that settle, do so only after a period of negotiations with each side evaluating the risks and benefits of going to trial. Sometimes it takes a judge or a jury to decide a case because the insurance company and the injured party simply cannot agree.
Who decides if my case should settle?
It is your case. You are the one who decides whether to accept or reject a particular settlement offer. Your attorney will give you the benefit of his advise and experience, but ultimately the question is whether you believe the insurance company will increase their offer if you stick to your guns.
Sometimes, personal and practical factors enter into whether a particular offer to settle will be accepted or rejected. Will a great deal of money have to be spent in preparation for the trial so as to reduce the actual recovery to the injured party? Are there personal financial reasons why a smaller settlement now would be better than a larger settlement several months from now? Is there any reluctance to "go to court"? What kind of gamblers are you? Is a sure thing now better than a chance of doing significantly better at trial?
It is important for you to understand that you will never be forced to accept a settlement offer from an insurance company. You will always have the option of rejecting their best offer and taking your case before a jury of your peers.
PRODUCT LIABILITY CLAIM FAQ'S
What is a product liability claim?
The manufacturer of a product has a duty to produce a product that is safe and will not create an unreasonable risk of injury when used in a foreseeable manner. If you have been injured by a product - anything from farm machinery, to a snow blower to a cigarette lighter - you may have a claim against the product's manufacturer and distributors. Product liability claims can be based on negligence, strict liability, or breach of warranty.
Negligence - A manufacturer must use the same degree of care that a reasonably prudent person in the shoes of a manufacturer would use to insure that the product will not create an unreasonable risk of injury. Among other things, a manufacturer must be careful to design the product so it will be safe and fit for its intended purpose; construct the product so that the materials and workmanship will make the product safe for its intended use; inspect and test the product to determine whether there are defects as to material or workmanship; and give adequate warnings of danger and adequate instruction as to the proper use of the product which is dangerous when used as intended.
Strict liability - Under this theory an injured party is relieved of having to prove specific acts of negligence if he can prove the following elements: (1) that the product was in a defective and unreasonably dangerous condition; (2) that the product was defective when it left the control of the seller; (3) that the defect was a substantial factor in causing the plaintiff's injuries; (4) the seller was in the business of selling such products; and (5) that the product was intended to and did reach the consumer without substantial change.
A product liability claim can be made against the manufacturer, distributor, wholesaler, retailer, and maker of component parts. The product is unreasonably dangerous when it is dangerous beyond what might be expected by the ordinary user. A product may be defective either by reason of manufacture or design if it is unsafe for normal use.
Breach of warranty - Generally, the law imposes certain warranties (or guaranties) on the sale of products. Such warranties include that the goods are in proper condition for use and free of defects and that they are fit for a particular purpose.
I know someone who lost an arm in a piece of farm machinery that was manufactured in the 1960's. Does he still have a claim against the manufacturer?
Yes, if he can prove that the manufacturer was negligent or that the machine was defective and unreasonably dangerous at the time it left possession of the manufacturer. Often times there are industry standards that govern the manufacturer of machinery and equipment at any point in time. Failure to follow these standards may be evidence of a product defect or negligence. The fact that this was an older piece of machinery does not relieve the manufacturer of its duties to the public to make safe products.
What should you do if you are injured by a product?
First, you should preserve the product in exactly the same condition you find it following the injury. You should take pictures of the product and pictures of your injuries as well as the location where the accident happened. Be sure to keep all operator's manuals, parts books, receipts and instructions that may relate to the product.
What kinds of "products" are subject to a products liability claim?
Virtually anything that has been made by someone in the business of selling that product may be the subject of a product liability claim. Well known examples include:
- farm equipment and machinery;
- poorly designed cars, trucks, recreational vehicles and motorcycles;
- lawn mowers and gardening equipment;
- toasters, ovens, and other household appliances;
- furnaces, fireplaces, and space heaters;
- dangerous children's toys, car seats, cribs, etc.;
- machinery and equipment used in a factory, such as presses, conveyors, etc.;
- electric saws, drills, nail guns, and any other power tools; and
- healthcare products such as pharmaceuticals, prostheses, artificial joints, etc.
Are manufacturers automatically liable for any injury received by someone using their product?
No, there are certainly times when people are injured by a product that may be dangerous, but not defective. For example, if one were to accidently cut oneself with a sharp knife while peeling potatoes, there is not likely to be a claim against the manufacturer of the knife, unless there was something wrong with the knife. Knives must be sharp to accomplish their intended purpose. Similarly, the manufacturer is only responsible for injuries that might be received during a foreseeable use or application of the product.
How can product liability claims help make life safer for everybody?
There are numerous situations where manufacturers have corrected flaws in design or taken unsafe products off the market because they were injuring people and lawyers did something about it. Car designs become safer all the time; kid's pajamas are now flame resistant; lawn mowers quit running when the safety bar is released; all-terrain vehicles are less likely to roll over; and the health effects of cigarettes have been revealed and publicized.
How can I afford to take on the huge corporation that manufactured the defective gas fireplace that caused the explosion and injured my family?
Most law firms, including us at Herrick & Hart, will represent injured parties in a products liability claim on a contingent fee basis. In other words, the attorneys fees would consist of a percentage of what is recovered from the manufacturer of the defective product. Product liability claims can be very complex, expensive, and time-consuming. For this reason, we thoroughly investigate each case before jumping in with both feet. Sometimes, people are injured and it is simply not anyone else's fault. Other times, however, their injuries could have and perhaps should have been prevented and we at Herrick & Hart pursue those manufacturers vigorously.