FAQ: Bad Faith Insurance, Wrongful Death & Personal Injury

Frequently Asked Questions
Regarding Personal Injury Litigation in California

21.       What is Personal Injury Litigation?

A. Personal injury litigation is based on English Common Law, which is often referred to as tort law.   The basic concept of (torts) is that we owe each other a duty of “due care.”  We must be careful to not cause injury to others because of carelessness.  Our law says that if a person fails to be as careful as a reasonably prudent person would be in the circumstances that gave rise to the injury, the person causing the harm is legally responsible for the damages caused by his or her carelessness – negligence.  Our laws require each of us to accept the responsibility for the harm that we cause by negligence.  If we do not accept this responsibility, the law will impose it upon us through litigation and a jury trial.

22.       If I have suffered a debilitating serious personal injury what are the types of damages that I can recover if my injuries were caused by negligence or other wrongful conduct?

A. If you prove liability – that someone’s or some entity’s negligence or wrongful conduct caused your injury, the following are some examples of the damages you may recover:

  • Past and future medical expenses
  • Past and future pain and suffering
  • Past and future lost income
  • Past and future home/life care
  • Loss of enjoyment of life, grief, emotional distress

23. If someone is injured because of their own negligence, can they still prevail in a personal injury lawsuit in California?

A. If the injury is solely caused by their own negligence, then the short answer is no.  However, as in most situations in life, it is usually not that simple.  If the injury was caused by a combination of the injured person’s negligence, and another person’s negligence, then based on principals of comparative fault the non-economic damages (such as pain and suffering) are allocated based on the percentage of fault.  The economic damages (out of pocket losses such as medical bills) are joint and several, meaning that the tortfeasor (the other person causing the injury) is solely responsible for all of the economic damages, as long as they are found to have some percentage of fault.

24. Aren’t there a lot of frivolous Personal Injury Law Suits, take the McDonald’s Coffee case for instance?

A. That is the most mentioned case by the powerful insurance and corporate lobby, and right wing conservatives.  But as the founding fathers wisely knew, the best system to consistently ensure a fair outcome is through litigation supervised by a judge, and by careful deliberation of admissible evidence by a jury of disinterested citizens.  We each have a Constitutional right under the 7th Amendment of the Federal Constitution, and Article 1 Section 16 under the California State Constitution, to file a civil lawsuit for money damages if we have suffered a loss, such as a personal injury, to which there is a legal remedy.

Most people do not know the facts and evidence that caused the jury in the McDonald’s Coffee case to find liability and award damages against McDonald’s.  After an accurate history and the facts are presented, most people have a different take on this famous or infamous case, depending on your perspective.  For more details regarding the facts and history of that case go to http://en.wikipedia.org/wiki/McDonald’s_coffee_case

McDonald’s COFFEE CASE: The facts are briefly summarized as follows:

In 1992 Stella Liebeck ordered a cup of coffee at a McDonald’s drive-thru in Albuquerque New Mexico.  She was a passenger in the car, not the driver.  The carwas driven by her grandson.  She was 79 years old.  After she ordered the coffee, her grandson parked the car so she could add cream and sugar.  She placed the cup between her knees, pulled the far side of the lid off and in doing so spilled the coffee on her lap.

She was taken to the hospital and treated for third degree burns.  She was in the hospital for 8 days and underwent skin grafts.  She was treated for two more years for her injuries.

Ms. Liebeck did not want to sue McDonald’s.  She just asked them for $20,000 to cover her damages, including $11,000 in medical bills.  McDonald’s refused to even pay her medical bills, and offered no more than $800.  McDonald’s refused to increase their offer.  Ms. Liebeck hired an attorney and filed a law suit against McDonald’s.

Her attorney demanded $90,000 to settle the case.  McDonald’s refused the offer.  During mediation before trial, Ms. Liebeck and her attorney tried to settle the case again.  The mediator suggested that the case settle for $225,000.  McDonald’s refused to settle.

During trial, the evidence showed that McDonald’s required that its franchises serve coffee at 180 to 190 degrees Fahrenheit.  At that temperature, coffee is hot enough to cause third degree burns.  Evidence was also presented that coffee should not be served hotter than 140 degrees.

Documents obtained from McDonald’s showed that over the ten year period between 1982 and 1992, McDonald’s had over 700 complaints that their coffee was too hot and that people were being burnt with varying degrees of severity.  McDonald’s had settled claims from such injuries for more than $500,000.

The evidence also showed that there were memos at McDonald’s suggesting that the temperature of the coffee should be decreased, and that people were being hurt by the hot coffee.  But, Management did not want to have to replace all of the coffee makers.

The jury returned a verdict based on principles of comparative fault, finding McDonald’s 80% at fault and Ms. Liebeck 20% at fault.  They concluded that the warning on the cup of coffee was insufficient, considering the potential for serious injuries from the scalding coffee.

The jury awarded Ms. Liebeck $200,000 for compensatory damages, which was reduced 20% to $160,000, and $2.7 million in punitive damages – McDonald’s coffee sales were about $1.35 million per day.  The judge reduced the punitive damages to $480,000 (3 times the compensatory damages amount) for a total verdict of $640,000.  McDonald’s appealed, and the case settled for some amount less than $600,000.

McDonald’s knew its coffee was dangerous and that people were getting burned.  A serious injury like Ms. Liebeck’s was just a matter of time.  McDonald’s could have taken the high road and paid for her medical costs, but instead forced litigation on this elderly woman.  Do you still think her case was frivolous?  What if the coffee had been spilled on a young child’s face?  Would it have been frivolous to sue then?

Civil lawsuit filings have gone down over the last few years.  Most judges will tell you that there are plenty of procedural methods to get rid of frivolous suits, and lawyers can be fined for filing non-meritorious lawsuits. Furthermore, most people do not want to file a lawsuit.  Most contingency fee lawyers will refuse to file a suit that does not have merit.  Think about it.  Does it make sense for a lawyer to file a lawsuit on a contingency fee basis, when the lawyer is unlikely to get paid and recover litigation costs?  There may be some foolish and unethical lawyers who do that, and sometimes even the best lawyers make mistakes.  Most of the time lawyers who consistently file lawsuits that lack merit do not stay in business very long and rightfully so.

When you have suffered a serious personal injury and believe it was caused by negligent or wrongful conduct, seek out professional, experienced, personal injury lawyers who have a good reputation and who handle serious cases.  Such lawyers do not, as a matter of professional ethics and common business sense, file frivolous lawsuits.  They have to be convinced that your case has substantial evidentiary support before they will begin litigation.

Viau & Kwasniewski attorneys are highly experienced in personal injury litigation. Our Los Angeles law firm also handles insurance bad faith and wrongful death cases providing committed, professional and highly experienced legal representation in the state of California.

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