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There’s not necessarily a black-and-white answer on this. With most of these kinds of cases, the standard is one of due care. If a property owner can show that he or she exercised due care, considering all the factors, then they’re not considered to be negligent, and if they’re not negligent, they’re not going to be held liable. If they know that there’s an unsafe condition, for example, let’s say there’s a slope in the driveway which already makes it more likely that a person will slip and fall on ice, then they may have a duty of due care to remove snow or remove ice on a reasonable basis. How long has it been since it snowed? How long has the ice been there for? When did it form? What opportunity did they have to take corrective action?

Those are the factors, and every case is going to be decided on its own merits as to whether the landowner was negligent. The person who slipped and fell is going to be questioned about whether he or she was aware that it was icy or possibility of ice or snow on the walkway. There’s going to be an allegation, in most cases, that the person who fell was, at least to some extent, comparatively negligent, which will cut into both the value of their bargaining position or settlement position, or the value of their case.

No, it doesn’t preclude you from bringing a case, but it opens you up to a defense of comparative negligence or contributory negligence on your part. If you were texting, I’m going to presume that you were looking at your handheld device, your phone or whatever it might be, and not looking where you were going. And of course, if you’re not looking where you’re going, and reasonably would have been able to see the obstruction or obstacle if you had been looking where you were going, there’s gonna be a very high degree of comparative fault on your part. Now, of course, let’s say you’re texting at night time and it’s a defective sidewalk and there’s not even that good lighting that’s provided by the city, and so the fact that you were texting doesn’t change anything. You wouldn’t have been able to see the defect regardless. The fact that you were texting is not a significant factor in your fall, and there might be no comparative negligence on your part. Or if there is, it’s not very high and it doesn’t deeply discount the value of your claim.

Well, that’s a great question. Unfortunately, most of us who’ve been injured don’t have the presence of mind to think in terms of preserving our claim. We’re more interested in dealing with the injury, and that’s just common sense. However, it is very, very important to be able to demonstrate that there was a defective condition that caused this problem. Photographs of that condition taken as soon as possible after the incident under conditions which are as similar as possible. The shadowing should be the same, the lighting should be the same. The condition shouldn’t have been changed or fixed, so that you can show what the condition was that caused the problem. That’s critical to any case where you’re bringing in a claim for a slip-and-fall or a trip-and-fall incident. So, that’s something that should be done as soon as possible.

Other than that, you want to put the property owner on notice relatively quickly. You want to get your injuries dealt with, so getting appropriate medical care and treatment and having your injuries documented and also taken care of by appropriate medical practitioners, are the steps that you want to do as soon as possible. And then, of course, getting an attorney so that the claim process can get started before the condition is changed or evidence is concealed is pretty critical. Sometimes, there may be video and you want to make sure that that video is preserved, and there’s no erasure of the video or recording over it or having it get lost. There are rules about spoliation. That’s the term for destroying evidence. And you want to make sure that you have a strongly-worded letter to the other side not to conceal or spoil evidence that might show what the condition was like that caused your injury.

I was injured in a slip-and-fall incident, but a week later, I was injured again in a car accident. What happens in that type of situation, where there are two different injuries, two different accidents, and two different defendants?

So let’s talk about two different possible scenarios. One is that in the first instance, you injure one part of the body. In the second, you injure a different part of the body. Let’s say you break your wrist when you slip and fell. If you hurt your back in a car accident, there’s not a whole lot of confusion and you can separate easily the liability issue on the slip-and-fall and the injury issue on the slip-and-fall from the back injury in the car accident. However, it might be that you have, let’s say, a back injury in the slip-and-fall, and then when you have a car accident sometime later, it re-injures or exacerbates the injury that you sustained the first time. In that case, you can anticipate that each of the defendants is going to claim that the primary injury was caused not by their wrong-doing, not by the slip-and-fall and not by the car accident, but by the other person’s wrongdoing.

In other words, the property owner where you slipped and fell is going to blame it on the car accident, and the driver in the car accident’s going to blame it on the slip-and-fall. Fortunately, under the Code of Civil Procedure, you are allowed, when there is a common issue of law or fact, to combine both claims into a single action. So that would prevent going to trial, for example, against a property owner and having a jury find that it’s from the car accident, then going to trial on the car accident and have a different jury blame it on the property owner. You can have one common hearing against both defendants saying, “Look, I injured my back on the slip-and-fall, I exacerbated it on the car accident, and I want the jury to figure out how much of my injury, how much of my damages are from the first, and how much of my injury and how much of my damages are from the second,” so long as they take the entire picture into account and give one, final, comprehensive award.

I think in any major injury case, an attorney is going to help you recover an appropriate amount of compensation for your injury, damages and costs. The attorney knows the law. He knows the issue of liability. If you don’t have a lawyer in a slip-and-fall or trip-and-fall case, you can anticipate that the other side is, number one, going to say that it’s not their fault, it’s not the fault of the property owner; number two, it’s your fault for not looking where you were going; number three, they’re not going to evaluate your damages properly, they’re not going to give you due consideration for your past medical expenses. They’re going to say, “Well, that was covered by insurance so we don’t owe you for that,” which is false. They’re not going to properly evaluate your general damages or your pain and suffering. They’re not going to take into consideration what future medical or other income loss or other expenses or losses you might suffer. They’re going to try to shortchange you and get you to sign a piece of paper quickly, that for a very small and insufficient amount of money, you forfeit your right to any further claim. They’re not going to help you deal with the fact that you may have to reimburse, but successfully negotiate with your health insurance to the extent that health insurance may have paid for some of your medical expenses.

A lawyer in any personal injury case, and in particular in a slip-and-fall or trip-and-fall case, who knows the law, who knows the issues of liability, who knows how that plays out, who knows comparative negligence, and when they start to blame you for it, can hire the appropriate experts to explain why your conduct was perfectly reasonable and perfectly normal and does not amount to negligence, all of these factors can help to put together your claim appropriately. Your lawyer will deal with your doctor, in terms of getting a good grip on your injuries and any future problems you may have, whether you’re going to need future medical treatment, what it’s going to consist of, how much it’s going to cost, whether it’s going to jeopardize your earning capacity or your future earnings, and what other ways is it going to impact your life in ways that are measurable and compensable under the law. There are dozens of ways in which the lawyer enhances the value of your case. You’re going to be up against an insurance company with very sharp practices that makes money by collecting premiums and not paying them out. And they will go to any measure necessary and possible for them, available for them to shortchange and dismiss your claim, or pay you off with a very insufficient amount, and leave you hanging for the rest of your life, possibly with a severe condition that you should’ve been properly compensated for.

Oh sure, I’ve had a number of them. One that I had not too long ago involved a very physically fit and active man. He worked for a car dealership in the repair shop and he was jogging up on Cañada Road in San Mateo when a professional bicyclist struck him from behind. Now, the professional bicyclist veered into the jogging lane, we believe, and struck him from behind. There was some dispute. The bicyclist claimed that my client who was jogging veered left into him, but ultimately we were able to establish, especially since my client was hit from behind, that it was the bicyclist’s fault even though he was a guy who had participated in all these races and did 50 miles at a time on a bicycle all the time, it was his fault. My client suffered severe fractures in his hand, he had to have surgery, he was off work because he couldn’t do his job for several months. So it was a fairly substantial claim, and fortunately the bicyclist had good homeowner’s insurance. They ultimately ended up paying fair compensation to my client.

Yes, there are definitely experts that are involved in bicycle accidents. You could have an accident in which how the accident happened, let’s say it’s a car versus a bicycle. How did it happened, who is at fault? Because bikes operate differently than cars do, someone who really understands how bikes operate, how visible they are for cars, about their braking distances, about their speeds. A bike might be taking off from a stop going through an intersection or it could be traveling down a road. If it’s taking off from a stop and it goes 15 feet before it gets hit, you might have an issue, well, did that person leave too soon? Did they go through a red light? How far were they into the intersection? How far could they have gone? And somebody who knows how far you can go from a dead stop on a bike in, let’s say, three seconds, or knows what the stopping distances are, or how they maneuver, is the right kind of accident reconstruction expert and somebody who doesn’t know anything about bicycles would not be particularly helpful in an accident that involves a bike and maybe a car.

So there’s definitely certain experts that are specifically trained and knowledgeable about the operation of bikes, and that’s the kind of expert you should get if you have an accident involving a bike. Similarly, there are experts specifically trained in motorcycle accidents. And then you might have a case that involves not necessarily the operation of the bike, but whether the bike was in good condition in the first place. You might have an accident that happens because of a malfunction on the bike and that might be a different kind of expert. Somebody who has a bicycle shop or who does bicycle repairs would probably be the best kind of expert for that kind of a case.

There is a strictly legal answer and then there’s a practical answer to that. Assuming you’re an adult and the case is being brought against a private individual or private entity – you have two years from the date of the accident to either settle your case or file a lawsuit. That’s called the statute of limitations. If it’s a minor child, if the claim is against a private entity or a private person, the minor child has until the age of 20, which is until the age of majority (18) and two years from that date to file a lawsuit or settle the case.

If the case is against a public entity such as a county, or a state, or a city, then you have to file a claim within six months from the date of the accident and then file a lawsuit within a prescribed period of time after the claim has been rejected which it universally will be by the governmental entity. That’s the strict statutory legal requirements for filing a claim.

You need to get your evidence together and get the appropriate experts together whether it might be an accident reconstruction expert, or bicycle repair expert, or some kind of medical experts on your injuries and damages. Getting that assembled is something that is done best while the evidence is fresh, and there might be issues that take a long time to develop, such as how a serious injury might resolve that can sometimes take a couple of years to even figure or play out over the lifetime of the person. The sooner you start to put your case together and put the other side on notice and find out what their position is, the better off you are and the better off you’ll be able to put your case together and assert your claim.

Yes, you can sue the repair shop but it’s not necessarily going to be an easy case. In this kind of case, there are a lot of similarities with a person that brings their car in for some repair work, or tune ups, or what not, and maybe have the tires changed, and somebody forgets to put the lug nuts on it and the tire falls off and causes an accident. What it comes down to is proving the case, that’s where it’s difficult. You need more than just a lawyer to assert that kind of a claim. You must prove that there was something the bicycle repair shop did wrong that actually caused you to lose control, such as causing a wheel to come off or the brakes to fail or the handlebar to come off, whatever it was that caused you to lose control of the bike.

On that, you’re going to need some kind of expert help. Now, it might be an expert in bicycle repairs, it might be an expert in just how bicycles are operated, but somebody’s going to need to take a look at that bike, listen to what your claim is as to how the accident happened, what made you lose control. Analyze the bike, which hopefully is in a condition that allows for such an analysis, test it out to see if what you’re claiming went wrong is something that they can show really did go wrong and lay at the foot of the repair shop is something that they created or caused. So you have to prove all of that before you have a legitimate claim. You have to show that they created the condition that caused this accident. And then again as I’ve been mentioning with any bike accident involving a head injury, if you weren’t wearing a helmet they’re going to lean on you for some comparative negligence.

Yes, quite a number of times. As a matter of fact, I have a major case right now where an elderly woman and her husband were walking down a trail in Marin County and a young bicyclist, a college student, was on an organized college trip, a bicycle trip, ran into her from behind, knocked her down, broke her nose, caused a concussion, fractured bones in her wrists and her hands and may have had even some fractured ribs. She still suffers greatly now. The bicyclist admitted that he was at fault. Of course, hitting somebody from behind, he would be at fault under almost every conceivable set of circumstances. So what happens here is that fortunately, the boy’s family has a homeowner’s insurance policy and the homeowner’s insurance policy provides coverage compensation for my client and her husband for their claim.

Also, he was on an organized college trip. As part of that, the university where he attends school is also providing coverage. So yes, I’ve had a number of cases where I’ve had serious injuries from bicyclists who’ve hit my clients who were pedestrians or joggers. And when the bicyclist hits the person from behind which is usually what happens, it’s almost always the bicyclist’s fault, and homeowner’s insurance, if you can get it, will provide coverage.

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