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Recent Blog Posts in May 2010

May 08, 2010
  California Dog Bite Law
Posted By Los Angeles Personal Injury Attorney

Dog bite cases are quite interesting, and the personal injuries suffered by victims are sometimes quite severe.  If you have been injured by a dog (or your dog has bitten someone), the following is a general outline California dog bite law. 

Question: I got bit by a dog. Can I sue the owner? (Or: My dog bit someone. Am I legally liable?) Answer: Quite possibly - though there are exceptions to the rule.

CA Dog Bite Law "Strict Liability"

California has a dog-bite statute listed under its Civil Code section 3342 which states in part: "(a) The owner of any dog is liable for the damages suffered by any person who is bitten by the dog while in a public place or lawfully in a private place, including the property of the owner of the dog, regardless of the former viciousness of the dog or the owner's knowledge of such viciousness." This means that under California law, even if a dog is good natured throughout its life but then one day out of the blue decides to bite somebody in a single instance or consume a small child, the owner could still be liable. Other states without such "strict liability" statutes will oftentimes have laws that will hold owners responsible for bites only if their dog was previously known to have bitten before or have an otherwise hostile disposition. These are often referred to as "one-bite" states, because after a dog bites once, the dog will often thenceforth be deemed to be knowingly hostile.

CA Dog Bite Law "Negligence"

Dog owners can also be held liable for their dog biting people under a general theory of negligence, even if a state has no specific dog bite statutes of any kind. Under negligence, a dog owner must take reasonably prudent steps to prevent reasonably foreseeable attacks by their pet in order to avoid liability. (This differs from "strict liability" statues which can hold the owner liable even if they prove that they took reasonable precautions to prevent their dog from biting someone.) Just what these prudent steps should be will always be different with each circumstance. The preventive safety measures with a large aggressive Pit Bull will likely be different than those concerning a small mild-mannered Chihuahua . Oftentimes, safety measures will concern the question of the dog being properly leashed. Is the dog confined to an area where children won't be able to accidentally wander into? Has the owner done everything reasonable to see that the dog is under control around others?

There are general exceptions to the rule of dog owner liability, even in states with strict liability dog-bite statutes.

Exception Number One

1. The police, military or government agencies that use dogs in the course of their work or investigations that end up biting people. Translation: If you rape and pillage a community while smuggling a ton of heroin and then get bit by the German Sheppard the cops use to chase you down, don't think that you can get rich by suing the police. (Though admittedly this immunity often only applies towards bites against criminal or hostile suspects. Innocent bystanders may still have a valid claim, depending on the law of a given state.) 

Exception Number Two

2. Trespassers. If someone wanders on to your property without your permission, many states will not hold you liable if your dog ends up biting them. In fact, many people keep dogs specifically in the hopes that they will keep out trespassers. California 's dog-bite statute specifically allows for this exception. Please note however that whether or not someone is a "trespasser" is itself a separate legal question. For instance, the law allows for postal employees to travel on to your property without your permission in order to deliver your mail. The "trespass" exception would not protect you from liability if your dog bites the mailman in this instance.

Exception Number Three

3. Assumption of the risk. If someone knows that a certain action could likely result in a dog biting them and proceeds to take that action anyway, that person is said to have "assumed the risk" and will not be able to hold the owner liable. (Example: If a dog owner tells you, "Don't go into my back yard and play with my dog. He is in a bad mood today and has been trying to bite anything that moves!" Then afterwards, you completely ignore the warning by going into the owner's back yard and playing with the dog. You will unlikely be able to hold the owner liable if you get bit since you assumed the risk in this instance. Sometimes, the assumption of the risk is implied. For instance, courts have found that strict liability statues do not apply to dogs that bite veterinarians during the course of treating the pet. Such risks are apparently in the nature of the business for them.

Exception Number Four

4. Negligence. Some states may shield the owner from liability when a person negligently contributes to the dog bite. In practical terms, this defense operates similarly to "assumption of the risk". The only difference is that one doesn't ask "What did the bite victim know before approaching the dog?" Instead, one asks, "What should the victim have known, assuming that he or she is a reasonable person?" A straightforward example would be someone approaching a dog after ignoring a clearly posted "Beware of Dog" sign. Courts may find that there was either an assumption of the risk or contributory negligence in this instance.

Exception Number Five

5. Provocation. In instances where someone mistreats or provokes a dog into biting him, courts will usually not hold the owner liable. For instance, unjustifiably beating a dog will often provoke it to bite back in retaliation. Just what constitutes legal "provocation" is often a question of fact for the courts to decide in each instance. Generally, mere attempts to pet, feed or otherwise peacefully interact a dog will not be considered sufficient provocation. There usually must be some action that courts would recognize as mistreatment.

If you have a question about a dog bite or a possible dog bite case, do not hesitate to call our Los Angeles personal injury attorneys.  They are available to answer your questions. 

Continue reading "California Dog Bite Law " »

May 01, 2010
  Why Retain an Attorney?
Posted By Los Angeles Personal Injury Attorney

Question:  What are you entitled to recover in your injury lawsuit if you have been injured as a result of an auto accident?  One simple answer is your medical bills.  But, when dealing with insurance companies and the law, it is of course never that simple. 

For many years California injury attorneys agreed that a party who was injured in California was only entitled to recover the amount that was actually paid out or owed to a health care provider. So, if you had private insurance, your personal injury verdict or settlement would usually be negatively impacted.  For example, if your medical bills were $5,000 but your insurance company only paid $2,000 to the health care provider, you were only entitled to claim $2,000 - not $5,000.  This rule was referred to as the Hanif rule, based on the California case that adopted the above reasoning as law.

California Health Care Providers and insurance companies usually negotiate rates for medical services provided on a contracted basis. The parties enter into an agreement to pay a certain pre-determined amount for a medical service. Many health care providers have been happy to accept a lesser rate in order to enjoy a steady stream of clients.

The California Courts had previously determined that, “a plaintiff is entitled to recover up to, and no more than, the actual amount expended or incurred for past medical services so long as that amount is reasonable.” Hanif v. Housing Authority (1988) 200 Cal. App. 3rd 635, 643. The rule was that when a Plaintiff had medical insurance then medical damages were limited to the actual amount paid or incurred. 

Hanif in Practice 

Take for example a broken arm suffered in an auto accident. Now assume that two people suffered the same injury – one person with private insurance and one person without. Each was billed $5,000.  It would seem that if they had suffered the same injury, there would be identical bills. However, that is not the case. The person who had private insurance would have a lower bill ($2,000) due to the agreement between the health care provider and the insurance company. The health care would take what was called a write off on their bill and would only collect the amount agreed upon.

The above situation leads to two different awards for the same exact injury. The person who did not have any insurance would have received more compensation for their medical bills, merely due to the fact that there is no contractual write off on his or her bill.  

Collateral Source Rule

The collateral source rule has been defined as, “if an injured party receives some compensation for his injuries from a source wholly independent of the tortfeasor, [such as health insurance], such payment should not be deducted from the damages which the plaintiff would otherwise collect from the tortfeasor.” Helfend v. Southern California Rapid Transit Dist. (1970) 2 Cal. 3d 1, 6. The basis for the rule is that any individual who has invested money into insurance for medical care should receive the benefits of his or her own prudence.  

The importance of knowing the above rule is that the Court has finally taken note the holding in Hanif may be violative of the collateral source doctrine.  

Where the Law Stands Today

The Court recently stated the following, “We disagree with Greer to the extent it holds that a trial court in a personal injury action is authorized to hear and grant a defendant's posttrial motion to reduce under Hanif and Nishihama a privately insured plaintiff's recovery of economic damages for past medical expenses. As discussed, ante, we have concluded that the negotiated rate differential is a collateral source benefit within the meaning of the collateral source rule.” Howell v. Hamilton Meats & Provisions, Inc. (2009) 179 Cal.App.4th 686.

In March, 2010, the California Supreme Court granted review of the Howell case, which means that it will try and reconcile the Hanif and Howell cases, hopefully making the law clearer. 
Defendants and insurance companies are doing their absolute best to hold on to the old rule arguing that Howell is not controlling in certain judicial districts.

Retaining a Personal Injury Attorney

The importance of having a personal injury attorney can be illustrated by the above law. Many lay people would not understand what a reasonable value of medical services actually is or even how to argue for it. A person attempting to represent himself would more than likely take the insurance adjuster’s word at face value. If you have been injured in an accident, it is important that you consult and eventually retain an attorney. Without doing so, you run the risk of not receiving the full value of your case, and could be left owing more on your bills than actually recovered.

Continue reading "Why Retain an Attorney?" »

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