Interviewer: Hey, we’re here with Attorney Reuben Donig. And I have a question, what obligations do property owners have regarding safety of their premises?
Reuben: The obligation of the property owner is similar to the obligations that a person has in all aspects of life. Basic word is reasonable, you gotta be reasonable in what you do. So, the property owner has a duty to take reasonable precautions to make sure that his property is in a reasonably safe condition. If you’re aware of something that is a problem, a potential hazard, a potential injury waiting to happen, you have a duty to take some precautions to fix it, or at the very least, to warn about it, to guard against it. This is true for property owners who in their own house, for private property owners, this is true for commercial property as well.
In addition, if you know of a special situation, where a particular person or class of people has a particular risk of harm, you have to take extra precautions. For example, if you own an apartment building, and it has a swimming pool, and you know that there are going to be young children in the families of the renters, you have a special duty to protect those young children, making sure that there’s a fence or a safety. Even if your pool is old and it was built at a time when no fence was required or safety measures were required, you will be held liable for an accidental drowning or other injury suffered by a young child. You can talk about the parents having responsibility or somebody else needing to be there to watch the young child, but you as the property owner will not be able to avoid responsibility for circumstances on your property when you know that there was a potential for danger. You have to take reasonable steps and precautions to avoid the harm.
Interviewer: I’m interested in learning what reasonable actually means.
Reuben: Reasonable is kind of in the eye of the beholder. The ultimate decider of whether you were reasonable is going to be a court, it’s going to be a jury. You take…there is no fixed definition for it. Obviously, if you’ve got a house and you have a broken handrail and you don’t fix it, you’re not being reasonable. On the other hand, if someone spills water in your kitchen, you have a reasonable time to figure it out, to learn about it, to know about it. You’re not automatically liable because somebody spilled water in your kitchen and somebody else slipped on it. You have to just show that you acted reasonably.
I used to get a lot of slip and fall type of cases in grocery stores, for example, or fast food restaurants, where stuff is dropped on the floor, usually by customers. That doesn’t make the property owner, the Safeway or the Kentucky Fried Chicken, fast food place, or McDonald’s automatically liable when somebody slips and falls. Because you have to show that they didn’t act reasonably. Did they have an opportunity to do an inspection? Did they have an opportunity to learn of the hazard on the floor? Did they have an opportunity to clean it up or put up a warning cone or do something to prevent people from stepping in it? The jury is the ultimate judge of whether the property owner acted reasonably. If that spill remain on the floor for 5 or 10 minutes, and nobody did anything, probably not reasonable. But there’s no law that says it’s within 5 minutes or 10 minutes. So…
Interviewer: What about the cost to repair? Is that taken into consideration? For example, you mentioned the stair banister. If it’s an excessive expense, is that considered as part of the reasonableness?
Reuben: Generally not. Now, part of the burden of being an owner of the property is you’re responsible to keep it in a safe condition. You undertake that burden, you undertake that responsibility, and if you can’t afford to fix it, then you have no business owning the property really. You cannot avoid responsibility by saying, “Look, I knew this stairway was unsafe, but you know what it would have cost to put in a new stairway? I just didn’t feel like paying for it or couldn’t afford it.” That’s not going to be considered a legitimate excuse.
Interviewer: So here’s a common question, unsafe conditions on someone else’s property caused my injury. Do I have a claim?
Attorney Donig: You know, I wish I could answer that with a simple yes or no. I can’t. There are different kinds of things that are unsafe about someone’s condition. The basic rule is, was it an unsafe condition that was reasonably likely to cause the kind of incident that caused your injury? So, if we have a divot, a big divot in somebody’s lawn, it’s foreseeable that someone might not notice it, might step in it, and suffer a fractured ankle, for example. Similarly, you might have a banana peel on somebody’s floor. And that’s also foreseeable injury waiting to happen. But there’s a difference, or possible a difference. That divot in the lawn, presumably, was there for a lengthy period of time, it didn’t just occur. It didn’t just happen and then somebody stepped in it, it was there for a while. That banana peel might have just been dropped a minute earlier by somebody or somebody’s kid.
You have to go beyond just was it a dangerous condition that caused the injury. Then the next question is, did that dangerous condition exist for a lengthy enough or long enough period of time so that the owner exercising reasonable care and reasonable inspections of his property did know about it, or should have known about it? And, if he did, or should have known about it, did he have a reasonable opportunity to fix it, to guard against it, or to warn about it? All of those things need to be established before there’s liability. In other words, do you have a claim? You can always make a claim, but do you have a valid claim? Do you have a good legal claim? You have to establish all of those things before you can establish that you have a good legal claim. That it was a dangerous condition, that the kind of condition reasonably would lead to the kind of incident that happened, that the owner knew, or should have known about it, and had a reasonable opportunity to fix, or correct it, guard against it, or warn about.
Interviewer: And would this apply to government-owned property as well?
Attorney Donig: So, there are special rules that give the government a bit more protection. A condition that might be deemed dangerous if it’s a private property owner would not always qualify as a dangerous condition or something more than a trivial condition as defined in the code and by case law when it comes to the government. But as a general rule, the government does have a duty to not create a dangerous condition and to not allow a dangerous condition that is created by someone else, or that occurs even naturally such as tree roots pushing up sidewalks and creating a very uneven walking surface and a tripping hazard.
They do have a duty to be reasonable in their inspections to carry out reasonable inspections and to see that dangerous conditions are corrected. There are certain conditions that may be dangerous on government-owned property where the government does not have a duty. For example, in design cases, in roadway cases, sometimes the design may be deemed to not been safe enough. But there are certain times when the government doesn’t have to go above and beyond to cure every possible design defect in order to avoid or shield itself from liability. One other point I would make that everyone needs to know. If you do think you have a claim against the government, the statute of limitations, the time periods are not the same as they are for a claim against a private property owner or someone who’s running a business on private property. They are much shorter.
Interviewer: How important is it to file a claim promptly? And what are some of the statute of limitations?
Attorney Donig: Okay. It is absolutely critical to file your claim promptly. Don’t lose sight of the fact that the other side, whether it’s an entity, an individual, or an insurance company acting on behalf of that entity or individual, is looking for a reason not to have to pay out money. And the statute of limitations is one of the basic reasons how they can avoid having to pay. If you don’t get your claim filed on time, or your lawsuit filed on time, that usually presents an absolute defense and reason for them to not pay. Some of the important statutes of limitations to bear in mind are the following. For your normal run-of-the-mill personal injury claim against another person or private entity, including a corporation, it’s in California two years from the date of the incident which caused the injury.
If you have a claim, however, against a public entity, a city, the state for a road, perhaps an accident that happened on a sidewalk or a freeway due to some dangerous condition, you have only six months from the date of the incident to file what’s called a claim with the proper entity, with the proper person at the city or county or state level, who you believe is responsible, you know, the county official that you believe or the city official and their office and their department. You have to file a claim within six months, and then within six months further after you receive notice that the claim has been rejected or roughly seven and a half months, if they never respond, you have to file your lawsuit.
So, you don’t have a two-year statute of limitations in the claim against the governmental entity. If it’s a medical malpractice claim, the statute of limitations is yet again different. It’s shorter. Generally speaking, it’s one year from the date that the malpractice incident occurred, or one year from the date in which you reasonably discover or should discover that you’ve been harmed. So, if on January 1st you’re operated on and the doctor leaves a sponge in, you can figure January 1st the following year might be your statutory deadline. However, if you don’t develop any symptoms until February 1st, there’s no reason you should know about it until February 1st. Your statute might run until February 1st of the following year.
There’s an outside limit under all circumstances for medical malpractice of three years from whatever the date of the malpractice occurred, regardless of when, or you discovered or should have discovered it. There’s a special additional provision that before filing suit, you’re to give the doctor notice of your intent to file suit. And that can prolong your statute of limitations by an additional 90-days. But cautionary the best advice is try to get that lawsuit filed within one year from the date in which you believe the malpractice incident actually occurred. If you are dealing with a minor in many cases, although this is not true against the governmental entities, but against private entities, individuals, corporations, and so forth, a minor’s statute of limitations does not expire until the minor reaches the age of 20.
So, if a child of age four is injured in an incident, actually he doesn’t have to file a lawsuit until his 20th birthday. It’s a two-year statute of limitations, but it doesn’t start to run until he turns 18. So, that’s why it’s the 20th birthday. So, the good advice, it always makes sense to put the other side on notice of the incident that caused…and of the intent to bring a claim as promptly as possible because even though there may be many years before the statute of limitations expires, you wanna make sure that the other side’s aware that a claim might be filed, that their insurance company’s aware if it gets stale, if you don’t bring the claim for many years you lose valuable evidence. And the other side is more likely to tell you that they have no knowledge of the claim and aren’t providing for it.
So, that just creates a level, an additional level of difficulty. But strictly speaking, the statute of limitations for a minor’s injury, against, and this is for a claim against a private entity or a private individual, not against a governmental entity, it doesn’t expire until age 20. But there’s no additional time provided beyond the six-month claim notice for a governmental claim, even if the injured person is a minor. All right.
One of the advantages of the American legal system is that you can hire a lawyer on a “contingency fee”. A contingency fee essentially means that the right of a lawyer to be paid for his time and his work is contingent—or dependent—on the outcome of the case. Most attorneys who take injury cases will do so on a contingency fee. That being said, if you are in a position to pay an attorney hundreds of dollars an hour, you might seek an attorney on an hourly basis; however, most people aren’t in that position, which is why most personal injury cases are handled on a contingency fee.
This contingency fee is what can help level the playing field for those that have been injured. Your case against the person who injured you is being backed by a large, heavily financed adversary—the insurance company. They are doing whatever they can to defeat your claim or minimize whatever they have to pay you, but you’ve got a level playing field because your lawyer is taking your case on a contingency fee. They will pay all of the necessary costs out of their own pocket in order to put your case together. In many instances, these costs can be upwards of tens of thousands, to hundreds of thousands of dollars. If you have a serious enough injury, if your claim is good enough, and has potential, you will find an attorney who is willing to pay all of these costs upfront in order to put your case together.
The costs associated with a personal injury case can be quite expensive. Certain experts may need to be hired in order to fully support your case, such as:
- The doctor who treated your injuries, or another medical expert may need to be hired in order to share your medical records, explain the scope of the injuries or the residual problems that may be associated with the injury.
- Accident reconstruction experts or safety engineers may be needed if there are disputes over how an accident happened or whether the condition in which the accident occurred was unsafe.
- Experts in human factors may be needed to determine whether or not it’s reasonable to expect that the person who injured you should have been aware of certain things, under the conditions.
- Economists may need to be retained to discuss the financial impact that injuries may have on you.
- A vocational rehabilitation expert who may be needed to retrain someone who is unable to work in their former profession and needs to be retrained to do something else that is consistent with the limitations that the person has a result of their injuries.
These are just some of the experts who may need to be retained in personal injury cases where negligence is involved and significant injuries have been experienced by the plaintiff. The attorney hires all of these people, pays them and gets their assistance to help analyze all of the information to put your case together and, if necessary, to testify on your behalf in court.
Among other things, your attorney may also be required to pay for:
- Subpoenaing records
- Charts, graphs to help present statistical data relevant to the case
- Illustrations or animations that show the scene of the accident in order to demonstrate how it happened
- 3D renders or physical models to help show how your injury looks (if it’s an internal injury).
There are often many resources required and measures that must be taken when filing a claim against individuals or insurance companies in California as a result of an injury.
If you have been injured and you have a significant claim, the advantage you have is that you will be able to find an attorney who will pay all of these costs for your case, put it all together and will wait to get paid until there is a successful outcome—or else they won’t be paid at all. At the Law Office of Reuben J. Donig in San Carlos, California, we handle all personal injury cases on a contingency fee basis, so we will not charge you unless you recover compensation as a result of our efforts. Contact our law firm today for a free personal injury consultation.
Interviewer: I’ve been in an accident, when should I get an attorney?
Reuben J. Donig, Esq.: Well, I think you should talk to an attorney as soon as possible. I mean, obviously the first thing you should do is go to the emergency room if you’ve got a serious injury. But after that, you should definitely talk to an attorney, hopefully before you start talking to the other side’s insurance company. There’s no cost involved, whether it’s done by the phone, or whether you make an appointment and see the attorney in his or her office, there’s no charge. Attorneys like myself take these cases on a contingency fee basis, and we certainly don’t charge to talk to you and explain the ins and outs of your case, the pros and cons, and the risks and benefits.
So definitely talk to an attorney as soon as possible. Don’t talk to a lot of other people, and don’t talk to the other side’s insurance company, talk to an attorney. As far as getting an attorney, after you’ve talked to an attorney, or possibly two or three attorneys, you’ll have a better idea and understanding of whether you’ve found an attorney who’s right for you and for your case, and you’ll have a better idea of whether you’ve got a good case, and the kind of case that an attorney will normally be interested in taking.
You can talk to an attorney about a minor whiplash that you just sustained when you got bumped into in a car accident, but the attorney will give you sufficient time and explanation of the ins and outs in the law of your case, but may not wish to take the case, or may explain to you that your case is the kind that you should be trying to resolve on your own. So as far as getting an attorney, that’s a different question from talking to an attorney. Talk to the attorney right away, and then you’ll know whether you should get an attorney.
Interviewer: If I contact your law firm, will an attorney meet with me?
Reuben J. Donig, Esq.: If you have an appointment to come in and be seen, you will be seen by me. I’m the attorney. I talk to you. Generally, we talk privately. There’s usually nobody else in the room. Very occasionally, I’ll have one of my assistants or a paralegal in the room with me to assist in certain matters, but you will never be talking to an employee or paralegal in the first instance. You’ll be talking directly to me.
Interviewer: If I’m unable to travel, will a lawyer from your firm visit me?
Reuben J. Donig, Esq: The answer to that question is almost certainly yes. I have been called to come to. . . People have called me up about their injury cases, and they tell me that they’re in the hospital, or confined to a wheelchair because of the injuries from the accident. If they’re, you know, anywhere close to my office, I’m definitely going to get in my car and drive to see them and talk to them about their case, and give them as much information, and as much, in the way of my written materials, as I can that will explain their case and help them to decide whether I’m the right attorney for them.
Interviewer: If I’m injured, does a lawsuit always have to be filed in order to receive a settlement?
Reuben J. Donig, Esq.: No, absolutely not. A lawsuit needs to be filed under certain circumstances. Number one, if you’re about to come to the end of the statutory period of time, the statute of limitations is about to expire, you have to file a lawsuit in order to preserve the claim. The other time when a lawsuit needs to be filed is when it becomes clear, it’s apparent that you and the other side are just simply not going to be able to settle this case, your opinion of what the case is worth, and how much your damages are. And the other side’s opinion of how much you should be paid, are just not even close enough to where you can compromise and settle.
You might say, I need at least $100,000, the other side for whatever reason is offering $20,000. That’s the kind of case it doesn’t matter if you’re 6 months into the case, or 1 year and 11 months into the case, that case isn’t gonna get resolved without there being some proactive pushing on your part. And that usually means filing a lawsuit. But in most cases, clients, and I realize this, would like to settle their cases without being involved in litigation. And I do what I can to accommodate the reasonable requests of my client to try to settle their case without involving them in a lawsuit.
I will try to obtain the necessary information to document and establish the issues regarding liability, injury, out-of-pocket expenses, and losses and future medical expenses and losses, and the adverse effects that the injury has had on the client in all aspects of his or her life. And try to convey that in a clear, coherent, well-documented manner to the other side to try to get the case settled without a lawsuit. Again, if the client’s injuries don’t resolve quickly enough, for whatever reason, then you’re getting close to that two-year period, or it’s just obvious you’re not gonna be able to convince the other side to pay the amount of money that you feel is necessary and appropriate to fully compensate you, then, under those circumstances, a lawsuit usually needs to be filed.
Interviewer: What am I able to recover in a personal injury claim or lawsuit?
Reuben J. Donig, Esq.: In almost every personal injury claim, there are two general kinds of compensation that the injured person can seek to recover, and I would call them in two categories, economic damages, and non-economic damages. Economic damages are the kind of compensation that the person who was injured through someone else’s fault or liability is able to recover to compensate for both past and likely future economic financial losses. That would be the cost of any medical treatment that was incurred, and any medical treatment in the future that’s likely to be incurred as a result of the treatment for the injuries, any business losses, loss of salary, loss of income. One of the biggest mistakes that people make in calculating or assessing their economic damages is they feel, “Well, I’m out of pocket this amount because my health insurance paid.” Or, “I missed a lot of time from work, but I was able to use my sick leave or vacation leave, so I didn’t really lose the money.”
That’s a false conception. That’s wrong. You’re actually able to recover all of the medical bills that were paid or for which you’re still liable even if they were paid by your own insurance company. You’re entitled to collect for past income loss even if your boss didn’t withhold that money or you got disability. Those sources which compensate you or pay you for your income loss or your health costs like your health insurance, those are called collateral sources. And just because a collateral source pays your expense or compensates you for your income loss, that is not an excuse for the defendant not to compensate you fully even if you receive that money elsewhere. You may have to reimburse your health insurance, you may have to reimburse your disability insurer, but the party at fault for causing your injuries is still fully liable for all of your past and likely future losses and expenses, even if you’ve collected some compensation, or had some of those losses covered by a collateral source.
So, that’s economic damages. You’re also entitled to be compensated for what are called non-economic or general damages. You’ve probably heard that referred to frequently as pain and suffering. What that means is if you’ve been injured through the fault of somebody else, they have to compensate you in such a way that makes you whole, brings you as closely back as possible to the status that you had before. Giving you financial compensation for your past medical expenses and future medical expenses, past income lost or diminished earning capacity, or other out-of-pocket expenses doesn’t bring you back to whole. You still have suffered pain, you’ve still undergone pain, you’ve experienced the consequences of that pain or the limitations, your life has been changed, the ability to partake in activities, recreational activities, household activities, enjoyable activities, activities you need to engage in, whether they’re daily routine activities, family activities, all of that’s been compromised. It’s been compromised or lost.
If, for example, you lose a hand in an accident and one of your hobbies was playing the piano using both hands, of course, to play the piano, or playing in a sport that required the use of that hand, or engaging in other activities, tying your tie, buttoning your shirt, all of that stuff’s been made more difficult. It’s not just the physical pain you’ve had, it’s all the ways in which your life has been adversely affected by the injury you’ve sustained. And the defendant, if they’re responsible for causing this injury in the first place, has to compensate you financially with money, because that’s the best way we can do it, in such a way as to bring the scales back into balance to make you whole. So, you have to recover not only your economic but also your non-economic damages.
Very occasionally, there’s a third category of damages called punitive damages. And that takes place where someone who has injured you through deliberate or completely reckless misconduct, a person who’s driving heavily under the influence of alcohol or going 120 miles an hour in a 60-mile an hour, 65-mile an hour zone, they’re acting in complete reckless disregard of your wellbeing and safety, and the law will often impose punitive damages as a measure to punish that person and to prevent other people from engaging in similar conduct. So, once in a while a claim can involve a claim for punitive damages as well, but I would say more than 90%, 95% of personal injury claims boil down to the economic damages and the non-economic damages.
The insurance adjuster for the insurance company wants to settle with me and says that I do not need a lawyer. What should I do?