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THINGS TO THINK ABOUT WHEN YOU HAVE BEEN INJURED IN AN ACCIDENT

This article addresses things that you might want to think about if you have been injured in an accident and seek compensation for your injuries.  It represents a sort of “primer” for you. The article does not address all possible issues, and should not be relied upon in deciding if and when to bring a claim.  It nevertheless gives the personal injury claimant a basic idea of the “lay of the land” in the personal injury claims process.

A Description of the Litigation Process

It is important to preserve evidence relating to your accident: pictures of your damaged vehicle, the scene of the accident, or your injury; the actual product that has injured you; names and addresses of persons who witnessed the accident. An attorney can help you with this evidence collection and preservation. Law enforcement personnel will typically give persons involved in an accident a accident report number, before the actual accident report has been prepared. It is important to retain this number, and to follow-up with the law enforcement agency in question to obtain a copy of the actual police report once it is completed. If you are incapacitated, have your attorney or someone else obtain a copy of the accident report. Do not be surprised if the report is not entirely accurate. There may be steps that you can take to remedy this situation. Consult your attorney about the options.

Pictures are also important to memorialize what has occurred: pictures of vehicles, pictures of the accident scene, pictures of your injuries, pictures of people, animals or things involved in your injury. If you have not taken such pictures, make sure your attorney, his investigator, or someone else does this for you.

There may be other documents that are essential in your case: police reports, repair estimates, statements, notes made at the scene of the accident, or any number of other items. Consult with your attorney about the possibilities in this regard.

Sometimes it is important to preserve the “instrumentality of injury,” in its un-repaired state for subsequent litigation. When I use the expression “instrumentality of injury,” I mean anything that caused or been involved in your injury: vehicles, products, helmets, medicine, food, or whatever. Ask your attorney if your have any doubt, and always error on the side of preservation.

Witnesses must also be secured: both identifying who they are, and obtaining their names, addresses, and telephone numbers. If you have a written or recorded statement from a witness, all the better. An attorney or investigator can help you find witnesses you may not have considered. Witnesses most often make or break a case – turning a he-said, she-said credibility contest into something more in your favor – so it is very important that adequate attention be given to this question. Determining whether the witnesses have short or medium terms plans to leave the area is also a good idea.

One must also keep an eye on time-limits for bringing suit. This is typically two years from the date of the accident for personal injury claims, at least in California, but there are exceptions. Defamation and wrongful imprisonment cases may be one year from the date of the wrongful act. If there is a government entity involved, you must lodge a government claim within six months of the accident. This short treatment of time limits for bringing suit is provided for general informational purposes but is not meant to be relied upon, and a personal injury claimant must always consult with his or her own attorney.

Immediate Needs

People who have been injured in an accident will have immediate needs: finding medical care, figuring out how to pay for it, handling the disposition of a damaged vehicle, obtaining leave from a job, protecting their income, taking care of children and other family matters. A good attorney can often provide suggestions or advice on how to handle these problems.

A reoccurring issue is how to pay for medical care. This becomes a particularly pressing question when an injured person is without medical insurance. Surprisingly enough, sometimes even persons with medical insurance are denied coverage when an insurer or medical care provider finds out the claim arises out of a “third-party” accident situations. There are a number of ways of handling these problems. Not infrequently, an injured person’s own insurance may provide “med-pay coverage,” which provides for medical benefits up to a certain amount (e.g., $5000), for injuries or conditions arising out of automobile accidents. Alternately, doctors and health care providers sometimes will work on a lien-basis when an injured person is without medical insurance or substantial assets. In other words, such providers will wait for payment until the injured person makes a recovery from a third-party who has caused his or her injury. A related service provided by such providers is reduced fee service for persons without medical insurance or substantial assets. Government assistance is also sometimes available to cover the cost of medical care. Consult with your attorney about these and other options.

Another immediate concern is what to do with a damaged vehicle: how to pay for its tow, where to have it stored, how to pay for storage, whether to salvage the vehicle, and what is fair compensation for its damage. These questions can often be particularly troublesome in the immediate aftermath of a serious accident, where neither the injured person or his or her family are emotionally and sometimes physically able to deal with them. Your attorney should be able to help you with these problems. The primary issue often revolves around the value of the vehicle both before and after the accident, and what the insurer of the person who hit you might be willing to pay for the loss. Generally speaking, a person whose vehicle has been damaged in an accident may recover the lesser of the cost of repair to the vehicle, or the diminution in the value of the vehicle caused by the accident. Many people cannot understand or accept this principle, and this writer understands why. What if you have an old Volvo that is the most reliable car you have ever had, but it’s only worth $2000 on the market? What if that same old Volvo is damaged and the repair cost is $5000? The most the insurer will pay for the vehicle is $2000 less its salvage value (think $250 or so for salvage value). It may be difficult if not impossible to find a replacement vehicle for $1750 that is reliable as your old Volvo. Here as elsewhere the law is not perfect. A good attorney should be able to help you maximize compensation for your property damage.

Securing replacement income is another serious problem for persons disabled in accidents (if only temporarily). If they are fortunate enough to be an employee somewhere, they may have private disability insurance or state disability insurance which will provide some cushion for the income loss associated with personal injury. If a person does not have disability insurance, finding replacement income is more difficult. If someone is self-employed, the disabled person may hire someone to fill in for him or her, paying the replacement less than the disabled person normally charges, and recovering the difference. If disability persists, making a claim for disability benefits under the Social Security system may make sense (typically requiring a waiting period of five or more months).

Again, a good personal injury attorney will help you address these various issues.

Preserving Your Claim

It is important to preserve evidence relating to your accident: pictures of your damaged vehicle, the scene of the accident, or your injury; the actual product that has injured you; names and addresses of persons who witnessed the accident. An attorney can help you with this evidence collection and preservation. Law enforcement personnel will typically give persons involved in an accident a accident report number, before the actual accident report has been prepared. It is important to retain this number, and to follow-up with the law enforcement agency in question to obtain a copy of the actual police report once it is completed. If you are incapacitated, have your attorney or someone else obtain a copy of the accident report. Do not be surprised if the report is not entirely accurate. There may be steps that you can take to remedy this situation. Consult your attorney about the options.

Pictures are also important to memorialize what has occurred: pictures of vehicles, pictures of the accident scene, pictures of your injuries, pictures of people, animals or things involved in your injury. If you have not taken such pictures, make sure your attorney, his investigator, or someone else does this for you.

There may be other documents that are essential in your case: police reports, repair estimates, statements, notes made at the scene of the accident, or any number of other items. Consult with your attorney about the possibilities in this regard.

Sometimes it is important to preserve the “instrumentality of injury,” in its un-repaired state for subsequent litigation. When I use the expression “instrumentality of injury,” I mean anything that caused or been involved in your injury: vehicles, products, helmets, medicine, food, or whatever. Ask your attorney if your have any doubt, and always error on the side of preservation.

Witnesses must also be secured: both identifying who they are, and obtaining their names, addresses, and telephone numbers. If you have a written or recorded statement from a witness, all the better. An attorney or investigator can help you find witnesses you may not have considered. Witnesses most often make or break a case – turning a he-said, she-said credibility contest into something more in your favor – so it is very important that adequate attention be given to this question. Determining whether the witnesses have short or medium terms plans to leave the area is also a good idea.

One must also keep an eye on time-limits for bringing suit. This is typically two years from the date of the accident for personal injury claims, at least in California, but there are exceptions. Defamation and wrongful imprisonment cases may be one year from the date of the wrongful act. If there is a government entity involved, you must lodge a government claim within six months of the accident. This short treatment of time limits for bringing suit is provided for general informational purposes but is not meant to be relied upon, and a personal injury claimant must always consult with his or her own attorney.

Potential Claims

In most personal injury litigation, the central claim is negligence: that the person who caused the accident did not exercise reasonable care under the circumstances to avoid injury to the injured party. This time-honored claim may seem to many people exceedingly ambiguous. What does it mean “reasonable care?” What is the standard? One person’s “reasonable care” is another person’s “unreasonable care.” How is the question decided? The short answer to all these questions is this is what juries do: they decide whether the person who caused the accident exercised or failed to exercise reasonable care under the circumstances. They look at all the circumstances: whether the defendant ran a red light or violated some law causing the accident, the defendant’s speed, whether the defendant was driving too vast for driving conditions, and numerous other factors.

Other claims that may be brought in personal injury litigation typically involve some variation on the negligence theory. For example, the liability of owners of automobiles driven by someone else, or the liability of the employer of a person causing injury, still involve the question of whether the driver or employee was negligent. This type of liability is called “vicarious liability” because liability is imposed on individuals or companies who did not actually cause the injury, but the law holds liable anyway as a matter of public policy. Similarly in products liability cases, the analysis is whether a product is unreasonably dangerous given its intended use: again a sort of negligence or reasonable man standard. Likewise, in trip and fall and other cases involving the dangerous conditions of real property, the question is whether there was an unreasonably dangerous condition on the property and whether the owner knew or should have known of its existence, the analysis again coming down to whether the owner exercised reasonable care, all things considered.

There are more unusual sorts of claims applicable to special situations. In dog bite cases, for example, there is a statute or a written law that basically states that the owner of the dog is strictly liable for injuries caused by the dog. There are, at least in California, no “free bites.” Defamation and false imprisonment are other unique sorts of claims covering special circumstances: defamation relating to the publication of false statements about individuals, and false imprisonment relating to the imprisonment of someone without proper authority. These have there own particular elements and showings, which an attorney can discuss with you where appropriate.

Potential Defendants and Sources of Payment

This is an area that is not always self-evident: who might have contributed to your injury and so be liable. For example, in an automobile accident not only the driver, but the owner of the vehicle, the person who entrusted the vehicle, the employer of the person that drove the vehicle, the partner of the person who drove the vehicle, and others might be liable for the negligent act of the driver. In the case of a slip and fall, persons liable may include the operator of the premises, the lesser of the premises, the property management company, as well as the owner.

Another consideration for personal injury claimants is alternate sources of payment. Uninsured or underinsured insurance coverage is often available to pay compensation where the person who caused the accident does not have insurance, or does not have adequate insurance to cover damages he or she may have caused. The availability of uninsured and underinsured motorist coverage is normally easy to determine by examining the coverage card that one receives from his or her insurance company. Uninsured and underinsured coverage represents an excellent alternate source of compensation in many instances, insuring full compensation to an injured claimant. There are, moreover, advantages to proceeding under such insurance claims, as the insurance company owes duties of good faith and fair dealing to the injured person that the parties who injured that person (or their insurance company), do not owe.

These are just a few examples of situations where there are many potential defendants or sources of payment for a personal injury claimant. A good attorney should be able to determine the full range of potential defendants and sources of payment. This in turn increases the likelihood that an injured person will receive full compensation.

Oh, and Don’t Talk to the Defendant’s Insurance Company

Another thing to do – or not to do – is to give statements to the insurance company of the person that hit you. The company is not your friend. Let your attorney control the flow of information to the other side. He can explain why this benefits you. Remember, the insurance company of the person that hit you is not your friend.

Things to Think About Before Bringing Suit

With some limited exceptions, a lawsuit is a public act. Complaints and other papers that are filed in a case are public records. Trials and hearings are public events. Anyone who is interested can drop in and see what’s going on. Persons who bring lawsuits for personal injury, or wrongful termination, or other such claims, are required to answer questions about many personal matters: e.g., their medical history, their earnings history (if making a claim for personal injury), and similar matters. There are, of course, limits to questions that can be asked, but one must keep in mind that bringing a lawsuit is, in a certain sense, consenting to be asked questions and to provide information that one would not otherwise have to divulge, and sometimes to do it in a public forum. A good attorney can limit the disclosures and embarrassment that a lawsuit may entail, and will be prepared to discuss this with you.

Why Bother with an Attorney?

An injured person might ask himself or herself whether an attorney is really needed to handle a personal injury claim. The short answer to this question is that the person that hit you will have an attorney, including the seemingly nice insurance adjusters that want you to take $1500 to walk away from a claim worth 50 times that amount. The longer answer is that there are many facets of the personal injury claims and litigation process that are not self-evident, and that a good attorney will help you navigate to your benefit. I would hope that this article explains why this is so. I like to tell people that having a good attorney levels the playing field.

Sometimes people have reservations about making personal injury claims. It is against their religion, or personal philosophy, for example. I tell people that there is nothing to be ashamed about in protecting their health. If Microsoft, Standard Oil, and countless other corporations can spend millions of dollars to protect their corporate assets, then there is nothing wrong about people protecting their health, the most precious of all our assets.

Attorney-Client Agreements

Personal injury claims and many other types of claims brought against wrongdoers are typically handled on a contingency fee basis: i.e., the attorney takes his or her fee out of the client’s final recovery. Sometimes there can be a mixed fee, where a client pays part of the fee out of his or her pocket, and part out of the recovery. Most or many times, the attorney will agree to advance costs. Other times, the client will pay some or all of the costs.

What it All Means

We are very fortunate in the United States, and in California in particular, to have ready access to the courts. Here, juries of average citizens decide disputes, and not a judge appointed by a particular political party, or an arbitrator paid for many times over by a large insurance company. Many people believe that the United States has the finest legal system in the world. I am one of those people. There are very few other places where the average citizen can sue the most powerful companies and people around, including even the United States government, and win if the cause is just. This is one of the truly great things about this country, and something very much worth preserving.

Why is this significant in this article about personal injury claims? It is because claimants in this country and in this State have an opportunity to protect one of the most precious, if not the most precious of our natural gifts: our health. There is nothing to apologize about in doing so. There is nothing less valuable about our health than the countless other things that are the continual subject of lawsuits costing millions of dollars without question or criticism: from the name of a company, to intellectual property such as software, to a reputation, to a piece of real property, to any and everything else under the sun .

So, the bottom line, is know what you are getting into in bringing a personal injury claim. Go into the process with your eyes open. Find a good attorney. Make no apologies. Fight the good fight, and win!

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CATASTROPHIC PERSONAL INJURY AND EXPERIENCED ATTORNEYS

CATASTROPHIC PERSONAL INJURY AND EXPERIENCED ATTORNEYS

Persons suffering catastrophic personal injury, as well as their families and representatives, need immediate, substantial, and expert assistance in handling the consequences of such injury to preserve claims and minimize trauma and disruption to the lives of both the injured person and his or her loved ones. The group of persons requiring assistance includes but is not limited to persons suffering death, dismemberment, and traumatic brain injury. The Law Offices of Matthew J. Witteman has substantial experience in such situations and can make a difference.
People who have been injured in a serious accident will have immediate and pressing needs: finding medical care, figuring out how to pay for it, handling the disposition of a damaged vehicle, obtaining leave from a job, protecting their income, taking care of children and other family matters, and preserving evidence. A good attorney can and should provide or suggest solutions to many or all of such problems,

A recurring issue in catastrophic personal injury cases is how to pay for medical care. This becomes a particularly pressing question when an injured person is without medical insurance, or inadequate medical insurance. Surprisingly enough, sometimes even persons with medical insurance are denied coverage when an insurer or medical care provider finds out the claim arises out of a “third-party” accident situations. There are a number of ways of handling these problems. Not infrequently, an injured person’s own vehicle insurance, for example, may provide “med-pay coverage,” which provides for medical benefits up to a certain amount without questions of fault or liability. Alternately, doctors or health care providers sometimes work on a lien-basis when an injured person is without adequate medical insurance or substantial other assets. In other words, such providers will wait for payment until the injured person obtains a recovery from a third party who has caused his or her injury. A related service of some health care providers is reduced fees for services. Government assistance is also sometimes available to cover the cost of medical care. Experienced attorneys such as the Law Offices of Matthew Witteman, can assist you in addressing and solving these problems.

Another immediate concern is what to do with a damaged vehicle, how to pay for its tow, where to have it stored, how much to pay for storage, whether to salvage the vehicle, and what is fair compensation for its damage. In catastrophic and serious personal injury cases, sometimes problems like this recede into the background in light of the gravity of other issues. Nevertheless they are there, complicating the lives of persons whose lives are already complicated, and a competent, engaged attorney should help injured persons and their loved ones solve these problems.

Similarly, steps should be taken to preserve evidence relating to the injured person’s accidents and claims. Early retention of an experienced attorney will help to preserve evidence, sometimes with the assistance of a private investigator, sometimes without. Pictures or the damaged vehicle, the scene of the accident, or the injury, the actual product that has caused injury, names and addresses of persons who witnessed the accident or have information relating to it, collection of statements, and similar matters.

Securing replacement income is another serious problem for persons disabled in catastrophic accidents. If such persons are fortunate enough to have private disability insurance through their employer or otherwise, or state disability insurance, this will provide some cushion for the income loss associated with serious personal injury. If a person does not have disability insurance, finding replacement income is more difficult. If someone is self-employed, the disabled person may hire someone to fill in for him or her, paying the replacement less than the disabled persons normally charges, and recovering the difference. If disability persists, making a claim for disability benefits under the Social Security system may make sense. An experienced attorney in serious personal injury cases can advise on these important subjects.

Development of a catastrophic personal injury case should occur from a very early stage, including in the hours, days, and weeks following the accident causing injury. Collecting medical records and following of the course of an injured persons’ medical condition are crucial. Interviews of treating doctors and other health care professionals often become necessary. Timely retention of experts is critically important – including accident reconstructionists, biomechanical experts, medical experts, vocational experts, life care planners, and economists. Accident reconstruction videos and models, photographs, and other expensive exhibits must also be secured. An experienced attorney in serious personal injury is necessary both to select the appropriate experts, exhibits, and evidence, and advance the funds to secure this evidence.

Accident reconstructionists are experts that help explain how and why an accident has happened, what caused the accident and, by extension, who caused an accident. This becomes particularly important in accidents causing catastrophic injury, where there are not infrequently high speeds or complex machinery involved. This is true even if someone at the scene of an accident admits fault, or places fault squarely on another person.
Once an insurance company is involved in the claims process, its adjusters and agents will work diligently to undermine admissions of liability and obscure what should otherwise be a clear case.

Biomechanical experts are persons specially trained to determine whether a particular force or accident can cause a particular injury. These experts are often first retained by a defending insurance company, again to obscure what treating doctors often determine to be clear-cut causation. When insurance companies employ such experts, it falls to plaintiff’s counsel to rebut their nonsense by securing biomechanical experts that will actually tell the truth. Again, the selection and payment of such an expert is why the employment of a seasoned attorney in serious personal injury is necessary for catastrophic personal injury claims.

Vocational experts help to establish an injured person’s post-injury wage earning capacity, and life-time care planning experts help to establish nursing and other special costs that an injured person or his family may incur. Economists similarly assist in calculating the overall damages and costs to deceased or seriously injured persons because of the negligence of others.

In summary, substantial experience is required of any attorney who handles catastrophic personal injury cases. The Law Offices of Matthew J. Witteman is a firm with such experience. Call for a free consultation.

THE IMPORTANCE OF IDENTIFYING RESPONSIBLE THIRD PARTIES IN WORK PLACE ACCIDENTS

Some entity or person other than a worker’s employer is sometimes the cause of a worker’s “on-the-job” injury. The existence of such a third-party wrong-doer, or “tort-feasor” can dramatically increase the value and recovery of a worker for his or her work-place injuries. Instead of being limited to disability awards representing a fraction of the value of actual lost wages, (see “Workers’ Claims Under the Longshore Act and Related Law” elsewhere on this website), an injured worker may recover full value for his or her wage loss. Such an injured worker may also recover “pain and suffering” or general damages, or even punitive damages, when neither type of recovery is available in a worker’s compensation case. Such recoveries that “make whole” an injured person are a hallmark of the law of negligence in California, or “tort law.”

Retaining an attorney who is able to evaluate competently and completely both a worker’s compensation case and a “third-party case” is important. Third party cases can arise in multiple settings. Sometimes the identity and existence of a third party is relatively clear. One example is a third-party driver of a motor vehicle who hits an employee during the course and scope of the employee’s employment. Another example is the manufacturer of a defective product that is used by an employee during his employment and which causes injury. Yet another example is a medical doctor who commits medical malpractice on an injured worker, exacerbating his original. injury or causing new injuries.

More subtle examples can also be found. Not infrequently a worker will be injured on the job when he or she is actually injured as the result of a dangerous premises. In such instances, the owner, lessor, or operator of the premises may be a “third party tort-feasor” who, when not the worker’s. employer, is liable for a full measure of damages including full wage recovery and pain and suffering damages.

In construction site or heavy industry accidents, including ship unloading and harbor operations, a third party wrongdoer other than an employer may have caused a worker’s accident. This can occur where there are multiple contractors and subcontractors working at a construction or industrial site, and one or more of them cause or contribute to the injury of an employee of another employer. Such injuries can occur by falling scaffolds, malfunctioning elevators, cherry-pickers, cranes, loaders, or other equipment, or for any number of other reasons. Owners or construction sites, project managers, and general contractors can be liable for injuries to employees of subcontractors where causing the injury or exercising sufficient control over the construction site. Subcontractors might also be liable for injuries to the employees of other entities, including owners, project managers, general contractors, and subcontractors.

A knowledgeable attorney, preferably combining knowledge of worker’s compensation laws and personal injury, should be consulted to insure full recovery to an injured workers. The Law Offices of Matthew Witteman provides such consultation.

THE IMPORTANCE OF ACCESS TO YOUR ATTORNEY

Access to one’s attorney is critically important, and the difference between success and failure in bringing a claim for personal injury or other wrongdoing. All too often, potential clients select attorneys based on their self-reported reputation and success, and are disappointed to discover their attorneys do not have time for them or their case, that the client interacts with associates or paralegals, and that they clients are not understood and their cases not developed. Potential clients should make sure when they are considering attorneys for their cases that they will have regular and direct access to their attorneys.

The attorney-client relationship, particularly in a trial or adversarial setting, must be akin to a partnership. The result obtained directly correlate to the closeness and extent of the working relationship between the attorney and the client. The client must have immediate and personal access to the attorney, and vice-versa. The attorney and client must think with one mind and develop a case accordingly.

The clearest example of the disadvantages of inadequate access to one’s attorney is in the criminal context, where it is generally known and accepted that a case can be much better developed and defended when a client is out of jail and able to work closely with his attorney to develop his defense. The same holds true in the civil context, where an attorney must be advising the client on a continual basis of developments in the case, difficulties with the case, and questions with the case. The attorney will require the client’s assistance in developing facts, resolving difficulties, answering questions, providing or explaining facts, and securing documents and information.

By the same token a client is entitled and should have ready access to his attorney to advise the attorney of new facts or ideas the client has, or to have his questions answered. It is only in this way that a case can be strengthened, difficulties avoided, and victory assured.

EMPLOYEE RIGHTS

The subject of “employee rights” in California is a vast one that many full length books have been written about, and still those books cannot keep abreast of new developments. This article does not pretend to be anything more than an overview of some of the most important aspects of employee rights in California.

There are five general aspects of employee rights in California: laws governing wage and hours, contract principles, anti-discrimination, family leave entitlement, and public policy.

There are, of course, numerous wage and hours laws, including but not limited to those governing overtime, and meals and breaks. Most of these are found in the California Labor Code. They can be enforced both by the Labor Commissioner of the State of California, as well as individual employees. There recently has been a considerable amount of litigation and dispute in these areas, particularly where employers have creatively attempted to categorize employees as salaried management personnel, and so “exempt” them from the overtime law. Some employers have been successful here, others have not. The latter have faced massive class action lawsuits that have challenged and beaten back the improper categorization of employees as salaried management to which no overtime wage was owed.

At its core, the employment relationship in California is a contractual one, based on contract principles, which is the second aspect of employee rights in California. In other words, the employment relationship is based on an agreement between the employer and employee that the employee will work for the employer for a given rate of pay and on certain other terms. This agreement can either be written, or oral. Unless otherwise provided for by agreement (and sometimes the practice or custom of the employer), employees in California are “at will” employees, meaning they can be terminated at any time for any or no reason. There are exceptions to this general rule of “at will” employment however, and they can either be contract exceptions, or laws governing anti-discrimination, family leave entitlement, and public policy.

Concerning contract exceptions to “at will” employment, some employment agreements require “cause” and a certain process before an employer can be terminated. When an employee is terminated without cause or adequate process in such circumstances, he or she may make a claim for breach of contract and claim his or her wage loss and/or reinstatement rights. Such arrangements occur with regularity where there is a union which has negotiated a “collective bargaining agreement,” specifying the legitimate reasons or “cause” for terminating an employee. These agreement typically also set forth procedures that must be followed before an employee can be terminated. Occasionally, other employment agreements or practices require certain reasons or cause for termination, or a process that must be followed before an employer can be terminated.

Similarly, there are laws that prohibit termination or other adverse employment action, such as demotion. Irrespective of contractual terms that otherwise might allow an employer to terminate an employee, an employer cannot terminate an employee (or take adverse action against), an employee because of his race, ethnicity, religion, sex, sexual orientation, or disability. Because it is often difficult to demonstrate what an employer or supervisor’s actual intent was in terminating or taking adverse employment action against an employee, there are presumptions that have been applied to allow employee to make a “prima facie” or initial showing of discrimination. Thus the employee must show that a) he or she is a member of a protected class (race, sex, etc.), b) that adverse employment action has been taken against him or her, and c) that such adverse action has not been taken against members of non-protected classes under similar circumstances.

The burden then shifts to the employer to show that there was a legitimate, non-discriminatory reason for the termination or adverse employment reaction. If the employer can make this showing, then the burden shifts back to the employee to demonstrate by a preponderance of evidence that the adverse employment action was taken in substantial part for improper, discriminatory reasons. If the employee prevails at trial in such a showing, he or she may be entitled to reinstatement and/or substantial damages, including wage and benefit loss, pain and suffering damages, punitive damages, and attorney’s fees.

In addition to termination or adverse employment actions, anti-discrimination laws in California (both of federal and state origin), prohibit harassment or a hostile environment on the basis of any of the suspect categories: race, ethnicity, sex, etc. This not infrequently can involve sexual harassment, most often by one sex against another, but sometime by the same sex. Typically this is “hostile environment” harassment, involving unwanted sexual advances, and/or quid pro quo situation where a supervisor demands or receives sexual favors in exchange for job retention or advancement. Again, a showing of such harassment or hostile environment can give rise to the same type of remedies and damages that traditional discrimination may trigger
Anti-discrimination laws also protect against discrimination on the basis of disability. In general, employers must make reasonable accommodation to employees for qualified permanent or semi-permanent disabilities that do not prevent the employee from performing the core tasks of his or her jobs. An employer may not terminate, take adverse action against, or fail to accommodate such a disabled employee. Remedies here include accommodation, reinstatement, back and forward pay, pain and suffering damages, and emotional distress.

Laws in California also protect the family leave entitlement of qualified employees of qualified employers. Employers of 50 or more employees allow employees to take up to 12 weeks of unpaid time off for personal illness, to attend to the illness of family member, or birth or adoption of a child. On his or her return, the employee must be reinstated to the same or comparable position held at the time of initially taking leave. Medical certification of the need for leave may be required of the employee. Employers may be liable to employee for all damages proximately caused by an employer’s failure to provide family leave, or retaliation against an employer for exercising leave rights, including reinstatement, wage loss, pain and suffering, punitive damages, and attorney’s fees.

Finally, notwithstanding the general “at will” nature of most employment in California, an employer cannot terminate an employee “in violation of public policy.” The public policy in question most normally be found in a particular law, statute, or regulation. Some examples including terminating a person for “whistleblowing” (i.e., reporting the employer to government authorities for a violation of the law), for refusing to participate in illegal activities, for reporting an unsafe work practice, for engaging in political activities outside the work place, or for voting. If an employee can demonstrate that an employer terminated him or her for one of these reason, he or she may be entitled to recover lost wage, pain and suffering, and emotional distress.

It is essential that an employee who thinks his or her rights have been violated discuss the matter with competent, experienced counsel to determine what might be done. The Law Offices of Matthew J. Witteman stand ready to provide such consultation.

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BICYCLE LAW

Whether a bicyclist, motorist, or pedestrian is liable for injury or criminal sanctions on California roads requires a case-by case analysis. An experienced and knowledgeable attorney in California law as it relates to bicycles, motor vehicles, and pedestrians should be consulted to determine where liability lies.

Under California law, a bicyclist on public roads is generally subject to the same laws as a motorist on public roads. Section 21200 of the California Vehicle specifies that “(a) Every person riding a bicycle upon a roadway or any paved shoulder shall have all the rights and shall be subject to all the provisions applicable to the driver of a vehicle by this division, which include, but are not limited to, the provisions dealing with driving under the influence of intoxicating liquor or drugs, or the combined influence thereof, Division 10 (commencing with Section 20000, and Division 17, commencing with Section 40000), except those provisions which by their very nature can have no application.”

The general sense of this is that bicyclists are governed by the same rules of the road as motorists under California law, including but not limited to provisions requiring stops at traffic lights and stop signs, those limiting a vehicle’ speed, those requiring the surrender of the right of way generally and to pedestrians established in a crosswalks, and those preventing wrong way driving. In the case of Velasquez v. Superior Court (2014) 227 Cal.app.4th 1471, a California Court of Appeal in a 2014 case held that a bicyclist could be convicted of reckless driving of a vehicle causing specified bodily injury where an intoxicated bicyclist ran into a pedestrian at a high rate of speed causing serious injury.

Section 21200 specifically excepts “those provisions which by their very nature can have no application,” which is a provision which is left to the courts to construe, as the Velasquez decision above illustrates. Some obvious Vehicle Code provisions that would be excepted from the reach of section 21200 would include those relating to motor vehicle registration, licensure, and specific motor vehicle safety features.

The particular applicability of the California Vehicle Code and general rules of the role to bicyclists in a given situation requires a case-by-case determination. Not infrequently, experts can be retained to explain and elaborate the general duties of care and rules of the road of both bicyclists and motorists. An experienced and knowledgeable attorney in California law as it relates to bicycles, motor vehicles, and pedestrians should be consulted to determine where liability lies in a bicycle accident on California roads.

PRODUCTS LIABILITY: AN OVERVIEW

A person who has been injured by a defective product has, generally speaking, three primary bases for imposing liability on the manufacturer or distributor of the product: 1) strict products liability, 2) negligence, and 3) breach of warranty.

Strict Products Liability

Strict products liability can arise from defective design, manufacture, or notice to the consumer. In California, a manufacturer or seller of products can be liable where a) the product was used in intended or reasonably foreseeable manner (includeing reasonably foreseeable misuse, abuse, changes, alterations, etc.); b) the product was in defective condition when it left the defendant’s possession; and c) the defective product was the legal cause of the plaintiff’s injuries or damages. A plaintiff must prove that he was injured by a product manufactured, sold, or distributed by a defendant which product (a) contained a manufacturing defect, (b) was defectively designed, or (c) did not include sufficient instructions or warnings of potential safety hazards.

Strict products liability for a defective design can be shown by either under the “consumer expectation test,” or the “risk-benefit test.” The former requires a showing that the product did not perform as safely as an ordinary consumer would have expected it to perform when used or misused in an intended or reasonably foreseeable way. The “risk-benefit” test is met when the defendant fails to show prove that the benefits of the product’s design outweigh the risks of the design. This is a multi-factored showing including such considerations as the gravity of the harm actually or potentially caused, and the feasibility of an alternate design given the potential of injury. An injured consumer generally may not sue for the design defect of an “inherently unsafe products” such as alcohol, or butter, and may not sue on the theory of failed “consumer expectations” for prescription drugs.

A consumer may recover for a manufacturing defect where proving that the defendant manufactured, sold, or distributed the product, and the product contained an injury-causing manufacturing defect when it lefts the defendants’ possession.

A manufacturers and supplier may also be held liable for injury where it is shown that it is unreasonably dangerous to place a product in the hands of the user without a suitable warning, and no warning or an inadequate warning is provided. Liability can be avoided if the lack of a warning does not render the product “substantially dangerous” to the user. A warning is sufficient if it clear, understandable, and unambiguous.

Negligence

A consumer injured by a defective “product” broadly construed may also recover if he or she proves that the defendant manufactured, supplied, installed, inspected, repaired, or rented the product, and the defendant was negligent in any of these aspects causing injury to the individual. A defendant will be held liability if he/she/it fails to use the amount of care in designing, manufacturing, inspecting, installing, or repairing the product that a reasonably careful designer, manufacturer, supplier, installer, or repairer would use in similar circumstances to avoid exposing others to a foreseeable risk of harm.

Breach of Warranty

Claims for injury or harm may arise from a representation of fact or promise that a seller may make to a buyer that becomes part of the agreement or bargain between the parties. This includes a description of the goods in question. The failure of the goods to conform to the representation is the basis of the claim. Such claims are based on breach of an express warranty.

Similarly, claims arise by operation of law based on an “implied warranty of “merchantability” or “fitness for a particular purpose.” Merchantability means that the goods are of average, acceptable quality and are generally fit for the ordinary purpose of which such goods are used. Claims based on “fitness for a particular purpose” may be shown where the seller know or has reason to know the particular purpose for which goods are required and the buyer relies upon the seller’s knowledge and judgment in choosing the goods.

Not infrequently, sellers attempt with varying degrees of success to recall warranties made or limit the damages that might be claimed from their breach. Here as elsewhere, a knowledgeable and experienced attorney should be consulted.

CIVIL RIGHTS

Claims for damages and other relief may be based on the violation of the civil rights of citizens of the United States. The Merriam Webster dictionary defines “civil rights” as “the non-political rights” of citizens.” As used here, however, claims for violation of “civil rights” means claims that have been recognized by courts as arising from the Bill of Rights of the United States Constitution. The Bill of Rights is a series of amendments that were added to the United States Constitution after its enactment. Civil rights claims founded on federal law frequently arise under the Bill of Rights. Civil rights, however may be found or amplified elsewhere, such as in 42 USC section 1981 (establishing that all persons have equal “rights”), section 2000e of Title 42 of the United States Code (preventing discrimination in public accommodations or housing), or in State constitutions. This article, however, limits itself to claims for violations of civil rights appearing in the United States Bill of Rights.

In general terms, the enabling statute that allows for such claims is section 1983 of Title 42 of the United States Code. Section 1983 reads in material part as follows: every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. . . . Section 1988 of Title 42 provides for attorney’s fees to the prevailing party, a provision which assists individual in protecting and vindicating their civil rights.

The parts of the Bill of Rights most often giving rise to civil rights claims are the First Amendment Free Speech, Press, and Religion Clauses, the Fourth Amendment Search and Seizure and Warrant Clauses, the Fifth Amendment Due Process Clause, the Eighth Amendment Cruel and Unusual Punishment Clause, and the Fourteenth Amendment Due Process and Equal Protection Clauses.

The law in the area of civil rights claim is a developing one, with shifting levels of culpability, standards, and tests. The United States Supreme Court and federal courts in general have attempted to prevent the United States Constitution and section 1983 from becoming a “font” of tort liability. Nevertheless, certain general principles can be stated at present, with the understanding that they may well evolve in the not distant future.

The First Amendment reads as follows: “[c]ongress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

In the First Amendment context, free speech, press, or religion claims are often brought for injunctive or declaratory relief: to stop a practice that impedes the exercise of these rights, or to decree that a particular practice impeding those rights is illegal. Such relief can often be significant where there has been little or no physical injury or harm per se, but the present and future exercise of these important constitutional rights is at issue and potentially threatened. At other times, public employees may have claims for First Amendment violations involving adverse employment actions including termination or less. Here there can be substantial wage or income loss, as well as emotional distress damages.

The Fourth Amendment reads as follows: “[the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

In the Fourth Amendment context, claims often arise under the Search and Seizure and Warrant Clauses, where law enforcement personnel improperly arrest citizens or search their persons or places of residence or businesses without “probable cause” or a warrant, often seizing and sometimes damaging or destroying property in the process. “Probable cause” as the expression is used here can be defined generally as the state of evidence which makes it more likely than not that a person is involved in criminal activity, although the exact formulation of the concept can vary from statement to statement. This is the same test that criminal defense attorneys and practitioner of criminal law apply to determine whether their clients have been properly arrested or property searched or seized. Such claims frequently involve substantial pain and suffering damages, loss of wages, loss of property, and afford the possibility of punitive damages against offending law enforcement personnel. Again, attorney’s fees might be recovered.

Claims for police brutality or use of excessive force can arise under the Fourth Amendment’s Search and Seizure clause, although other constitutional bases for such claims may be found elsewhere in the Bill of Rights, such as the Eight Amendment discussed below, or in State law. The Fourth Amendment has recently been used for excessive force claims brought by “free citizens,” or persons before they become “pre-trial detainees” who have been incarcerated by governmental authorities. The standard here is one of “objective reasonableness,” requiring a court to evaluate the totality of the circumstances to determine whether law enforcement personnel are acting reasonably given the severity of the crime at issue, whether the suspect poses an immediate threat, whether he is resisting arrest, and many other factors.

The Fifth Amendment reads as follow: “[n]o person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb, nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

In the Fifth Amendment context, 1983 claims most often arise under the Due Process Clause: “[n]o person shall . . . be deprived of life, liberty, or property without due process of law.” There are two types of due process claims here: procedural and substantive due process. Substantive due process claims may also rely upon the Fourteenth Amendment and/or the Due Process Clause that appears there that are specifically applicable to the States.

Procedural due process claims are analyzed by addressing two questions. The first asks whether there exists a life, liberty or property interest which has been interfered with by the state. The second examines whether the procedures attendant upon the deprivation were constitutionally sufficient. The bases for life or liberty interests are frequently found in the United States Constitution, those for property interests in state law. In determining whether adequate procedures have been provided for the life, liberty, or property interest in question, courts address three competing factors: first, the private interest will be affected by official action, second, the risk of erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards, and third, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substantive procedural requirements would entail.

Procedural due process claims can arise in many contexts, including psychiatric commitment, administrative or disciplinary segregation in prisons, public assistance, Social Security disability benefits, drivers’ licenses, public school education, and municipally furnished utility service and public employment.

Substantive due process claims, on the other hand, focus on the right violated as opposed to the process provided, and are predicated on the notion that post-deprivation remedies and process are inadequate. Such claims generally have been restricted to matters relating to marriage, family, procreation, and the right to bodily integrity. Substantive due process principles protect individuals when egregious governmental conduct is not forbidden by any of the explicit provisions of the Bill of Rights. The courts have generally analyzed these claims by initially determining whether the challenged action is in the nature of executive or legislative action. If the latter, and the action or policy does not infringe upon a fundamental human right (e.g., life, liberty, etc.), the question is whether the legislative policy is reasonably related to a legitimate governmental interest. When the action is executive, the question is instead whether it “shocks the conscience.” Substantive due process claims might be stated in a variety of context, including but not limited to personal decisions relating to marriage, procreation, contraception, family relationships, child-rearing, education, overly intrusive tests to establish criminal liability( e.g., stomach pumping), and high speed police chases.

Here, as elsewhere in relation to viable civil rights claims for damages, courts require varying amounts of culpability or “scienter” to state and prove a claim for violations of the search and seizure and warrants clause, typically requiring something more than mere negligence, and something akin to reckless or intentional wrongdoing on the part of law enforcement personnel.

The Eighth Amendment reads as follows: “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

In the Eight Amendment context, civil rights claims are often stated for conditions of confinement in prison or jails. They also comprehend excessive use of force claims when such force has been used on inmates. Plaintiffs generally must show a deliberate indifference to the possibility of harm or medical needs for such claims to be viable.

The Fourteenth Amendment is a sprawling amendment enacted in the wake of the Civil War to insure, among other things, that the States of the Union would extend civil rights to their citizens. For purposes of this article, the Amendment read as follows: “[a]ll persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

In the context of the Fourteenth Amendment, claims may be pressed based on the various provisions of the Bill of Rights previously discussed, including but not limited to due process claims, as the Fourteenth Amendment requires the various States to observe those provisions and rights. In addition, Fourteenth Amendment claims regularly arise under its Equal Protection Clause: “[n]o State shall. . . deny to any person within its jurisdiction the equal protection of the laws.” Such claims are often, and most securely stated, where the government has established “suspect classifications,” such as race, religion, or sex, without demonstrating a compelling need for such classifications. Even without the existence of a suspect classification, equal protection claims may be stated where the government fails to establish a rational justification for its classification. Equal protection claims have been stated in a wide variety of contexts, from law enforcement, to employment, to zoning, and beyond.

CONSUMER FRAUD CLAIMS AND CLASS ACTIONS

Consumer Fraud

Citizens in the United States are, unfortunately, awash in a sea of deceptive and unfair business practices defrauding them of hundreds of millions if not billions of dollars annually. A 2014 FTC publication put the total annual loss figure at 1.6 billion. Other sources estimate greater losses. The Financial Fraud Research Center of Stanford University published a report in 2013 entitled “The Scope of the Problem,” that begins as follows: “[w]ith billions of dollars in losses impacting an estimated tens of millions of victims, fraud is a major problem. . . .” The Federal Trade Commission or FTC characterizes the problem in similar terms in its “Consumer Fraud in the United States 2011, The Third FTC Survey.” This publication discusses the types of fraud or deceptive consumer tactics most frequently reported to the FTC, including fraudulent weight-loss products, fraudulent prize promotions, being billed for a buyer’s club members that one had not agreed to purchase, being billed for internet services that one had not agreed to purchase, and fraudulent work-at-home programs. These are only a small fraction of the types of fraud and deceptive practices targeting consumers, from securities and stock fraud, to business opportunity and franchise fraud, to home loan practices, to hidden credit card and bank charges, and more. It may be said, and has been said, that the type and variety of fraudulent, misleading, and unfair business and commercial practices are only limited by human ingenuity, which is to say they are without limit.

There are both common law claims and statutory claims which can be brought in response to fraudulent and deceptive practices. Common law claims include common law fraud and breach of contract. Common law fraud or misrepresentation typically requires a false statement of fact, made by a defendant knowing it to be false (or sometimes simply making it without a reasonable grounds for believing it to be true), with the intent that it be relied upon by a plaintiff, and reasonable reliance by the plaintiff causing harm or loss. False promises may also be the basis for consumer fraud claims.

In addition to such common law claims, there are numerous statutes which prohibit unlawful, deceptive, or unfair business practices. These include federal and state laws against stock fraud, franchise fraud, and deceptive and misleading representations in various businesses and professions. They also include laws to capture and outlaw new and creative schemes to defraud and mislead consumers. One such law is California Business Code sections 17200 and 17500.

Section 17200, which is sometimes called the “Little FTC Act,” outlaws three general types of conduct in the following terms: “[a]s used in this chapter, unfair competition shall mean and include any unlawful, unfair, or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising and any act prohibited by Chapter 1 [starting with section 17500 of the Business and Professions Code].”

Section 17500 in turn outlaw a number of business practices, such as the failure of door to door salesmen to identify or conduct themselves in certain ways, misrepresentations about “former” prices, misrepresentations about products based on supposed “clinical evidence,” misrepresentations by merchants that they are “producers” or have a similar relationship to a product, and the failure of merchants to identify in advertisements that quantities are limited, to sell products advertised as available, to specify that certain goods are sold in multiple units, to specify that the purchase or lease of one product or service requires the purchase or lease of another, and numerous other practices concerning “consumer products” or services that the California State Legislature has determined to be deceptive or unfair per se.

A violation of section 17200 may be based on the violation of specific statutes outlawing behavior engaged by the defendant. Almost any state, federal, or local law can serve as a basis for an action under Section 17200. Alternately, 17200 is violated where the defendant has engaged in deceptive advertising or activities which are “likely to deceive the public.”

Section 17200 also prohibits “unfair” business practice. Put in others terms, section 17200 prohibits deceptive or unfair practices even if they are not unlawful per se. The independent “unfairness” prong of Section 17200 is intentionally broad, in order to empower courts to strike down new schemes to defraud. The test of “unfairness” here requires an examination of the practice’s impact on the alleged victim balanced against the reasons, justification and motive of the alleged wrongdoer. The court weights the utility of the defendant’s conduct against the gravity of the harm to the victim. An unfair business practice is found where the practice offends an established public policy or when the practice is immoral, unethical, oppressive, unscrupulous or substantially injurious to consumers.

Class Actions

Class actions are procedural devices that allow persons whose claims are too small to be brought individually, to bring claims on behalf of themselves and other similarly situated persons who have been defrauded or harmed by the substantially similar conduct of a defendant. Section 382 of the California Code of Civil Procedure states in material part that “when the question is one of common or general interest, of many persons, or when the parties are numerous, and it is impracticable to bring them all before the court, one or more may sue for the benefit of all.”

Generally speaking, there is a numerosity requirement that must be met to proceed with a class action: that there are a sufficient number of individual claims to make the class action device the superior mode of adjudication of the claims. There must also be a common question of law or fact sufficiently pervasive to allow for a common resolution of claims. Similarly, the class plaintiff or representative most have a claim substantially similar to and representative of class members claims.

Class actions perform an important function in the American justice system. Unscrupulous corporations and businesses often defraud and cheat consumers out of small amounts of money. Consumers in such cases typically do not have a sufficient capacity or interest to bring suit or otherwise protect their rights. Class actions allow consumers to protect their rights in such instances, to recover the ill-gotten gains of unscrupulous corporations and businesses and, equally importantly, to stop the fraudulent, deceptive, and unfair practices of these entities in the future.

THE JONES ACT AND INJURIES TO SEAMEN AND FISHERMEN

The federal Merchant Marine Act, otherwise known as the “Jones Act,” represents the primary basis for claims of seamen, fishermen, and similar offshore workers for workplace injuries. This body of law is found at Title 46 of the United States Code, starting at section 30104. The Jones Act allows injured seaman, called “sailors” under the Act, to make claims and collect from their employers for the negligence of a ship owner, captain, or fellow members of the crew. It does this by, in substantial measure, extending the worker’s compensation coverage and law applicable to railroad workers (the Federal Employers Liability Act), to seaman.

The Jones Act reads in material part as follows: “[a]ny sailor who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right to trial by jury, and in such action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply. . . . “

This provision and related law allows seamen to bring actions against ship owners based on claims of unseaworthiness or negligence, rights not accorded to seaman under common maritime law. The Jones Act covers a number of industries, from shipping, to fishing, to dredging, oil, and tug boat operations, and a wide range of workers, including but not limited to deck hands, engineers, third bates, second mates, bosun or boatswain, captains, and roughnecks.

To qualify for coverage under the Jones Act, a worker must be a “seaman” injured while working on a “vessel” on a “navigable waterway.” Each of the words in italics represent a necessary precondition for coverage under the Jones Act.

Courts and practitioners have struggled with what exactly a “seaman” is here, although in general terms, a “seaman” is a member of a vessel’s crew, or permanently assigned to a fleet of vessels, who contributes to the function of the vessel and/or fulfillment of its mission. Persons who load and unload ships – or Longshoremen – are not covered under the Jones Act, but are covered under the Longshore and Harbor Workers Compensation Act, discussed elsewhere on this site. Similarly, a person who is temporarily on a vessel, such as a harbor pilot, even if contributing to the function of the vessel is generally considered not to be a “seaman.”

There is similar ambiguity with respect to what a “vessel” is under the Jones Act. For example, a river boat casino that was moored to the shore was considered not to be a “vessel.” Similarly, fixed drilling rigs are generally held not to be vessels while submersible rigs are generally considered to be “vessels.” The United States Supreme Court in Stewart v. Dutra (2005) 543 US 481, clarified the question somewhat by holding that a vessel is “a watercraft that is used, or capable of being used, as a means of transportation on water.” There will continue to be evolution in this definition as new technologies present definitional challenges.

A “navigable water” under the Jones Act includes the oceans, and navigable rivers, inland canals and waterways. Here too there can be questions concerning whether a particular body is “navigable,” but these too require a case-by-case analysis.

Injured “seaman” are entitled to two basic types of recovery under the Jones Act and related law. One is called “maintenance and cure.” Maintenance is that amount of money that would be required to provide room and board to a seaman similar to what he would be accorded on a vessel, and generally is modest in amount: for example, $8 per day at the low end, and $35 per day at the high end. “Cure” is reasonable and necessary medical care to bring a seaman to a point of being permanent and stationary, who is stabilized at a point where he or she is not going to improve or deteriorate any further. Maintenance and cure does not require a showing of unseaworthiness or negligence.

On the other hand, injured seaman can also seek and recover greater and more comprehensive remedies on a showing of unseaworthiness or negligence. This sort of recovery includes past and present loss of income (including fringe benefits), or wage earning capacity, past and future medical expenses, life care expenses, pain and suffering damages, and whatever other “proximate damages” or other losses that might be caused by the accident in question. These same sort of damages with some modification are available to surviving family members of a deceased seaman.

Here the seaman (or his surviving family members), are required to show that the employer or its officers, agents, or employees were negligent, or that the employer’s equipment was defective or insufficient (i.e. “unseaworthy”) due to the negligence of the employer, and that this negligence was at least in part the cause of the injury or death in question. “Unseaworthy” or “unseaworthiness” is specified to be as something on a vessel that is “not fit for its intended purpose” such as a corroded step or deteriorated rope that give ways or breaks. This test has been construed broadly to favor “seaman.” A showing of negligence is not required, however, under the Longshore and Harbor Worker’s Act (discussed elsewhere on this website),

A seaman’s fuller recovery described above may be reduced by his or her “comparative negligence.” For example, if it is determined that a seaman was 25% at fault for a fall on a ship’s ladder, his overall recovery would be reduced by 25%. Again, reductions for comparative negligence do not occur under the Longshore and Harbor Worker’ Act.

Injuries that may be compensated under the Jones Act are not limited to those that occur during the course and scope of work activities, but also those that occur during the course of living on board, or going to or coming from the vessel. Negligence of an owner has been found based on unsafe equipment and appliance, inadequate care in selecting a mater and fellow crewmen, assaults by fellow crewmen, failure to avoid heavy weather, and failure to supervise or rescue.

In summary, the Jones Act provides substantial benefits to injured seamen and their surviving family members. An attorney knowledgeable in the Jones Act and related remedies should be consulted in order to maximize an injured worker’s recovery.