Another ‘Law School for You’: Injury Claim Basics

Negligent individuals remain responsible their actions even if they have no insurance or if their insurance company does not ante up.

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WASHINGTON, May 7, 2017 – Some of us suffer injuries because we are clumsy. We trip, walk into a door, or hit ourselves with our golf backswing. The Yiddish word “Klutz” describes many of us.

When others are responsible for our injuries, laws sometimes provide remedies. Financial compensation cannot undo the harm caused. But the system typically provides money, to pay medical bills, reimburse lost wages or income, and additionally compensate us for the disruption of our lives, our physical pain, our physical and mental suffering, our aggravation, our inconvenience, and more, all depending upon the nature and extent of the injury’s effect upon us.

Most often an insurance company will pay the bills if the person they insure harms someone else. Negligent individuals remain responsible their actions, however, even if they have no insurance or if their insurance company does not ante up.

Here, then, is a brief review of some of the many ways we get hurt because of others, and the basic laws that govern whether or not we might look to the law in order to assure we are compensated.


Automobile Collisions

When it comes to auto collisions, employing the term “accident” suggests the at-fault driver is not at fault. Accidents certainly do happen. But when you are driving a car, laws require our utmost of attention so collisions are unlikely to occur.

Most states operate under laws called comparative negligence laws. This means that the injured party might recover compensation from the other party even if the injured party is partially at fault. A typical example might occur if a driver is trying to make a left turn in front of oncoming traffic. The law says a driver must wait to make that left turn until an intersection is clear. If a collision occurs, obviously the intersection was not clear for that left turn.

In another version of this example, presume the driver not making that turn was speeding. In that instance, it can fairly be said that, but for the excessive speed, the collision with the left turner would not have occurred. In comparative negligence states, a percentage of fault would ultimately be agreed upon or assigned if the matter were litigated, and the left turning driver would get a percentage of what would be a “full” recovery. In numbers, if the left turning driver was 10% at fault, he or she would only get a 90% recovery.

Four states (Maryland, Virginia, Alabama, North Carolina) and Washington, D.C. have what are called contributory negligence laws. This negligence doctrine provides that if either driver is even one percent (1%) at fault, that driver cannot pursue any compensation recovery from the other driver. These laws are considered harsh, and efforts have been made over the years in these jurisdictions to amend or replace these laws with those that employ a comparative negligence model.

Trips, Slips and Falls

Perhaps more than any other variety of injury, when it comes to trips, slips and falls, the notion of “klutz” really does come into play.

Laws require owners of property to keep their premises safe, but they do not require that owners be guarantors of safety. A grocery store may well be held responsible if a shopper falls in the store, but only if the store did not have proper monitoring procedures in place; or, even more importantly, if the store personnel knew or should have known there was a hazard.

If the contents of the broken jelly jar that fell to the floor in aisle 4 is spreading out all over the the floor, but, if only 10 seconds before the jar fell a store employee had walked that aisle looking and seeing that nothing was there, a patron might well have a problem proving the store was responsible for his or her subsequent fall. On the other hand, if another patron told the manager there was jelly on the floor and that manager did nothing, then a good case might well exist for the patron who slipped and fell.

The klutz concept attaches here because the store patron must watch where he or she is walking. The defense of contributory negligence might bar the patron’s recovery because he or she was not watching, but should have been watching, where he or she happened to be walking. In comparative negligence states, this defense is not as potent.

However, the defense of assumption of the risk could rear its head in the opposite way to deny a patron a compensation recovery. If he or she saw the jelly and slipped and fell anyway, this would probably be a hard case for the patron to win. When you assume a risk, nobody else is responsible. You can’t jump off of a tall building and blame the building owner for your injuries.

Generally, a homeowner must put up some kind of gate to prevent people from falling into the family backyard swimming pool. Similarly, during a winter season, homeowners must clear ice from the walkways in front of their homes within a reasonable time after the ice forms.

Retail parking lots, apartment complexes and other commercial property owners are similarly charged with clearing ice. But in these cases, the legal focus centers on when they must do so, and whether or not an individual knew there was ice on the walkway in question before he or she began to walk on it. A judge might ultimately have to decide if it was reasonable to expect a property owner to clear ice within three hours, one day, or more.

Medical Mistakes

After heart disease and cancer, medical errors are the third leading cause of death in the United States. Annually, over 250,000 people die due to the various preventable mistakes that are made by medical professionals.

Short of death, the number of injuries caused by medical errors is staggering. Medical injuries do occur, but not always because anyone did anything wrong. Medicine is not an exact science, and bad results will sometimes occur.

Where preventable injuries do occur, however, those injured, or the families whose loved ones were lost, face a difficult uphill battle to recover compensation. Nationwide, approximately eighty percent of those who file medical malpractice lawsuits lose. To prevail, an injured party must not only be able to prove that the medical professional was negligent or did something wrong. That party must also prove that the error committed occurred below the standard of care.

“Standard of care” is a term that references the actions that other similarly situated professionals would perform when confronting similar circumstances.

A podiatrist who uses a clipper to address a hangnail and badly cuts his patient’s toe in the process, likely is not going to be found to have addressed the problem “below” the standard of care. This is because other podiatrists also use the same clipper, and, while appropriate care is expected, good results are not guaranteed.

If the podiatrist used hedge-clippers or scissors to address the hangnail, however, then clearly, since no other podiatrist would use such a tool, the injury to the patient would probably be seen as having occured below the standard of care, meaning the injured patient would likely recover damages for the toe injury.

Strict Liability Claims

In some situations, laws in every state hold individuals or entities responsible for the unintended consequences of their actions without having to prove negligence, simply due to the inherently dangerous nature of the activity or circumstance that caused someone else to be injured.

Example: A construction company tasked to repair a road uses blasting materials to ready the road surface for the repair. In so doing, the company takes the usual precautions. Nonetheless, road fragments fly a good distance after an ensuing explosion and strike a child riding his bike two blocks away. The company is responsible because blasting carries inherent dangers, including the possibility of flying debris.

Some examples of abnormally dangerous activities include storing explosives, using or transporting chemicals, disposing of hazardous chemical waste, and performing controlled burnings.

When individuals are injured due to various products themselves, proof of a product defect is required. There are three primary types of defects in products liability cases:

  • Manufacturing defects require demonstrating an irregularity or flaw in a product that was mass-produced, making the product dangerous.
  • Design defects involve showing that an entire product line was defective as a result of a faulty design.
  • The third “defect” is actually a failure to warn. Such cases involve showing the manufacturer did not, but should have warned against inherent but not obvious dangers involved in using the product.

Regarding the latter case, consumers are accustomed to seeing warning labels on most products today. Prescription drugs always have labels warning us how to take the medicine and what other medications and activities to avoid while using the drug. Sometimes these warning labels are almost humorous, as in “don’t skydive while on this drug,” or “don’t place this product in the microwave.”

Dog Bites

Fido may be lovable. But if he bites someone, likely his owner is strictly liable to the person Fido chomped on. Dog owners are required to assure their dogs do not bite, jump up on or run into others. Fences have to be erected that actually keep a dog in its owner’s yard, and leashes that actually hold the dog must be used in most places when Fido is being walked. When visitors or guests come in to the home, Fido must be secured in a cage or another room if there is any chance that Fido will bite.

Some states have what is known as the “one bite rule” that has an opposite application than the rule’s name might suggest. Owners of dogs that have never bitten anyone, nor ever shown a violent or vicious propensity, are forgiven. When, however, Fido is known to be vicious, or if he has vicious propensities, Fido’s owner is clearly in the doghouse.

In conclusion: Don’t be a klutz. There are too many other ways you can get hurt.

Paul A. Samakow is an attorney licensed in Maryland and Virginia, and has been practicing since 1980.  He represents injury victims and routinely battles insurance companies and big businesses that will not accept full responsibility for the harms and losses they cause. He can be reached at any time by calling 1-866-SAMAKOW (1-866-726-2569), via email, or through his website

His book “The 8 Critical Things Your Auto Accident Attorney Won’t Tell You” can be instantly downloaded, for free, on his website: http://www.samakowlaw.com/book.

Samakow has now also started a small business consulting firm. The website for this business is brand new and Mr. Samakow will be most appreciative of any and all comments. www.thebusinessanswer.com.

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Attorney Paul Samakow brings his legal expertise and analysis from the trenches of the courtroom to Communities Digital News. A native Washingtonian, Samakow has been a Plaintiff’s trial lawyer since 1980 practicing in the DC metro area. Paul can be reached at any time by calling 1-866-SAMAKOW (1-866-726-2569), via email @ [email protected], or through his website @ http://www.samakowlaw.com/. He is also available to speak to your group on numerous legal topics.