The driverless vehicle is no longer science fiction. Fully autonomous vehicles are currently being tested on public roadways.
Yet, one large concern is acting as a roadblock to autonomous vehicles’ progress: liability. Who is at fault in a self-driving car accident? This is a complicated question.
When determining fault in a self-driving car accident, we cannot simply point the finger at one driver or another, as we would in a traditional car accident. Instead, we might point the finger at a technology — a product, rather than a person. This changes the legal standard entirely.
Self-driving car accidents are ultimately product liability claims, which are very different from negligence claims. Manufacturers of autonomous vehicles are likely to be named as defendants in instances where vehicles, not humans, are likely the causes of crashes.
Recent incidents are shaping the issues of fault related to self-driving vehicles. In March 2018, an Uber vehicle operated in autonomous mode killed a pedestrian. In December in 2017 a motorcyclist crashed into a Chevrolet Bolt being driven in self-driving mode.
Both of these cases have raised questions about fault for autonomous vehicle crashes. They also raise issues regarding safety standards.
Not surprisingly, self-driving car manufacturers are seeking government regulation and are urging lawmakers to create policies that grant them immunity in accidents and shield them from fault.
What Causes Self-Driving Cars to Crash?
More often than not, the root cause of a self-driving car crash is not autonomous technology. Rather, human error is the cause. This is not to say that the autonomous technology is fail-proof. It is not. The technology can fail and often has trouble with complex decision-making that, arguably, only the human mind is capable of.
According to the National Highway Traffic Safety Administration (NHTSA), in 2019, more than 36,000 people were killed as a result of a motor vehicle crashes. It is fair to say that a good portion of these fatalities were the result of some form of human error. However, it is also fair to say that product failure led to a significant portion of these deaths — airbags failed to deploy, brakes did not engage, and fuel tanks were designed poorly.
In order to better understand how self-driving cars work, it is important to explore the different levels of autonomous technology, as defined by the Society of Automotive Engineers (SAE). This is an organization that provides the who, what, and when surrounding ever-evolving self-driving technology.
Level 2: Partial Automation. Example: vehicle can control speed and steering.
Level 3: Conditional Automation. Example: vehicle can drive itself under certain conditions.
Level 4: High Automation. Example: vehicle can complete entire journey start to finish.
Level 5: Full Automation. Example: driverless cars.
When autonomous technology fails, the product itself fails. Since we are only operating in Level 3 or conditional automation at this point, there is still very much a human component involved in how self-driving cars currently operate.
In a utopian society, the only way that a self-driving vehicle actually works is if all other vehicles are also self-driving. This is tough sell to the masses and may never actually become a reality.
Even if all vehicles became self-driving or fully autonomous, we would still run the real risk of infrastructure failure due to data breaches or sophisticated computer hacking efforts that could take control of roadways.
For now, fault is still in the eye of the beholder. In other words, juries have the opportunity to weigh these competing interests and the facts of loss to determine who was at fault for a crash involving a self-driving vehicle.
How Is a Self-Driving Vehicle Crash Different from a Normal Crash?
In most car crashes, fault is relatively clear-cut. Evidence usually tips the scales of justice one way of the other.
In a self-driving vehicle crash, vehicle data may need to be inspected carefully, to determine whether the vehicle, itself, violated the rules of the road or failed to respond as a reasonable person would have.
As is customary with a product defect claim, an analysis of the self-driving vehicle’s performance and prior testing may factor into a determination of fault.
Data experts — not crash experts — might have to be employed to crunch numbers and run modeling scenarios to find where a failure occurred. There may even need to be a balancing test between the subjectivity of safety overall and uniqueness of the crash itself.
Questions About Who Is at Fault in a Self-Driving Car Accident? Call Negretti & Associates
Self-driving vehicles crashes are complicated and uncertain. Remember, self-driving vehicle fault extends far beyond scenarios where human drivers and their passengers are hit by self-driving vehicles. In a situation where you were to engage the autonomous technology in your own vehicle and your vehicle causes a crash, you might have a claim against the maker of your vehicle’s automation technology.
https://negrettilaw.com/wp-content/uploads/2021/07/who-is-at-fault-in-a-self-driving-car-accident.jpg5001000Jonathan Negretti/wp-content/uploads/2018/10/negretti_logo_o-1.jpgJonathan Negretti2021-07-28 12:00:242021-07-20 22:46:09Who Is at Fault in a Self-Driving Car Accident?
Dog bite claims are some of the most painful personal injury claims that we handle at Negretti & Associates. Our clients not only suffer physical injuries, but they also endure psychological trauma. There is a real mental component to being bitten by a dog. A bite will rattle most people and make them hesitant around dogs for the rest of their lives.
As we work with clients, we’re often asked questions about dog bite injury compensation amounts. With hopes that we can offer some insight into dog bite compensation and help you be better informed going forward, we have compiled answers to this list of commonly asked questions.
That said, if you have been involved in a dog bite and you don’t find the answer to your question, don’t hesitate to reach out to us to have a one-on-one conversation about your dog bite. You can contact us online, call us at 1-833-827-3535, or send us a text. We can ensure that you are taking all the necessary steps toward getting the compensation you deserve.
What Is the Average Compensation for a Dog Bite?
Let’s debunk a myth about dog bite injury compensation amounts.
There is no “average compensation” for a dog bite claim. There is no such thing as a settlement calculator for a dog bite claim.
Saying that there is an average dog bite is like saying every dog bite is the same. It not only minimizes the bite itself, but it also puts compensation in a box. This is factually flawed logic — a way of thinking that the insurance industry would love for you to subscribe to.
You see, if you believe there is an “average,” then insurance can convince you to resolve your case for an average, which may equate to pennies on the dollar.
Remember, your dog bite is not like any other. The bite you suffered is unique. It is personal. Your compensation should be, as well.
If an attorney gives you an average, consider them average and find another one!
How Much Do Insurance Companies Pay for Dog Bites?
Rather than ask the question How much do insurance companies pay for dog bites? recast the question as How much should I be compensated in order to resolve my claim? By flipping the script, you’re putting yourself in a much stronger position.
After all, you were the one who has been bitten. You are the one who decides whether the insurance company is offering you proper compensation.
The obvious question that follows is What is proper compensation? This is where a good, experienced attorney can be an incredible resource. A good attorney will summon his or her professional experience and past successes to arrive at an idea of proper compensation.
Understanding and advising on proper dog bite injury compensation amounts is exactly what the attorneys at Negretti & Associates excel in. We have handled a lot of different types of dog bite claims. When you hire Negretti & Associates, you automatically have a competitive advantage over an insurance company. We don’t advise clients to settle a claim if we wouldn’t take the settlement ourselves.
How Likely Is It for a Dog Bite Case to Go to Trial?
Dog bite cases, and frankly all personal injury cases, are unpredictable. When you initiate a claim, there is always a possibility of trial. It would be disingenuous to tell you that there is no way your case is going to trial.
How likely is it for a dog bite case to go to trial? The likelihood is greater than zero percent. But it’s a slight number — less than 5 percent.
The important thing to remember is that, as a client of a law firm, you are in control. You have the final say in how far your case goes.
As your dog bite case develops, up until you file a lawsuit, you are in the proverbial “driver’s seat.” However, once you file a lawsuit, you lose what we call total control and you become only partially in control. That’s because you have now engaged in a legal proceeding with another party. The court oversees that proceeding and has a say in what happens with your case.
How Long Will a Dog Bite Trial Last?
If your case were to end up in trial, the complexity of your case would be one factor in determining how long your trial would last. The more complex your case is, the longer the trial might be.
However, the court has the final say on the length of your trial and will shepherd things along to ensure that both parties get equal time to present their respective cases.
How Long Does It Take to Settle a Dog Bite Claim?
As discussed above, you should settle your claim when the insurance company offers you proper compensation for your dog bite. Until that time, you should not settle your claim.
In order to achieve proper a dog bite injury compensation amount, you need to offer the insurance company documented evidence of your dog bite. You have to offer the insurance company a comprehensive package of information to convince them to resolve your claim for proper compensation.
A comprehensive package is not limited solely to medical bills. It is also not just limited to photographs of your injuries.
Just as you wouldn’t make a peanut butter and jelly sandwich without the bread, don’t settle your claim without fully understanding what ingredients you need to send the insurance company.
A trusted advisory board like the attorneys at Negretti & Associates can help you put together that package of information to ensure that when you decide to settle your dog bite claim, you are doing so for proper compensation.
Contact Negretti & Associates with Your Dog Bite Questions
If you have been bitten by a dog, it’s important to get medical treatment right away. After that, you’ll need to begin collecting evidence as quickly as possible.
Piecing together all of the circumstances of a car accident can be an extremely complicated task. After all, no two car accidents are the same.
Yet, determining fault in an accident — and proving fault to a jury — can be a much more daunting prospect. Fault is not always a clear-cut, all-or-nothing calculation.
For this reason, some states have laws that permit fault to be shared among two or more parties in an accident. Damages are awarded based on each party’s share of the fault.
This sharing of fault in an accident is what is called comparative fault, or comparative negligence.
Arizona, California, and 10 other states are what we call “pure comparative fault states.” In these states, anyone found partially at fault in an accident is responsible for paying his or her relative percentage of damages.
A Simple Comparative Fault Example
Let’s explore a comparative fault example through the following hypothetical accident, as described from two completely different points of view:
Testimony of Driver A: “I was driving down the road approaching an intersection. At that intersection, I intended to make a left-hand turn. I crept into the intersection waiting for oncoming traffic to clear. Eventually, the light turned yellow. I started to make a left turn and then, out of nowhere, an oncoming vehicle crashed into my passenger-side door. I did everything right. I was following the rules of the road.”
Testimony of Driver B: “I was driving down the road approaching an intersection. I was traveling straight ahead. I saw a vehicle in the left-turn lane waiting to make its turn. I clearly had the right of way. The light turned yellow, but I was almost at the intersection. I could not stop without slamming on my brakes and potentially causing an accident behind me. So, I proceeded through the intersection with caution. However, the vehicle waiting to make a left turn darted in front of me. I could not stop before hitting it in the passenger-side door. I did everything right. I was following the rules of the road.”
As you read these two accounts, who do you think is at fault?
Now, imagine you are on a jury and you are being asked to decide which driver was at fault. Fortunately for you, as a juror, you are in luck! The law has given you a tool called comparative fault, allowing you to apportion fault to drivers of both vehicles. You can say that both drivers are partially responsible for the accident. In this comparative fault example, you might choose to assign a 50% fault to each party.
Absent an agreement by the parties, by and through their insurance companies, partial fault is something decided by the trier of fact — in other words, a jury. Only a jury can arrive at a binding determination of fault.
To put this differently, the police do not have the authority to decide partial fault. One insurance company does not have the mandate to determine partial fault. An attorney does not have the grounds to assign a partial fault percentage.
How Does Comparative Fault Apply to Jury Awards?
Remember, anyone found partially at fault in a comparative fault state is responsible for paying its relative share of damages. If Driver A were found to be 50% at fault for the accident, and the jury awarded Driver A $100,000 in damages, Driver A’s award would be reduced by 50%. Driver A would only receive $50,000 of the $100,000 total award. The other half would be apportioned to Driver B.
https://negrettilaw.com/wp-content/uploads/2021/06/comparative-fault-example.png5051381Jonathan Negretti/wp-content/uploads/2018/10/negretti_logo_o-1.jpgJonathan Negretti2021-06-30 12:00:062021-06-22 05:46:48Comparative Fault Example: How a Jury Might Determine Fault in an Accident
Above: The corner of Lincoln Blvd. and Marco Court in Venice, California, where an elderly man was recently killed by an intoxicated scooter rider. The red circle indicates how electric scooters are staged at this corner — just beyond the parking lot of Superba Food + Bread, a popular bakery and restaurant that serves wine, beer, and cocktails.
Can you get a DUI on a scooter?
The short answer is yes. Just as you can be charged with criminal misconduct for riding a bike while intoxicated, you can be charged for riding an electric scooter while intoxicated.
However, there’s a longer answer that’s a bit more complicated.
Let’s put it this way: You can get far more than a DUI on a scooter. You can literally kill someone while riding a scooter while intoxicated.
When you rent a scooter, the terms and conditions hidden found in the rental contract state that 1) you are to not operate the scooter while drunk and 2) you’re to ride the scooter alone, with no passengers. It’s a matter of common sense, but carrying a passenger can make an electric scooter far more difficult to steer and stop.
Unfortunately, drinking and common sense do not overlap.
Scooter Companies Share Blame for Scooter DUIs
As an attorney, having studied so many tragic scooter accidents such as these, I have come to strongly believe that the blame for scooter DUI’s extends beyond intoxicated scooter riders. Just as individuals need to be held responsible for riding scooters when drunk, scooter companies should be viewed as enablers of a greater danger to the public.
Why are electric scooters placed outside of bars and restaurants, available to be ridden late at night when intoxication is more likely?
This is an honest question that the electric scooter industry doesn’t want to talk about.
Granted, all of companies that “stage” electric scooters along city sidewalks have disclaimers in their user agreements that strictly forbid riders from using their equipment while intoxicated.
However, the actions of these companies seem to contradict their messaging.
Are these companies really trying to be informative, or are they simply seeking to escape legal liability?
I believe the answer is definitely the latter. If electric scooter companies were truly interested in safety, then they would put safeguards in place to prevent riders from activating scooters while intoxicated. At the very least, they could take preventative measures by not making scooters available for rent outside of bars, clubs, and restaurants.
At a certain point, the general welfare of our fellow humans should outweigh the profit centers that these scooters have turned into for the companies that produce them.
https://negrettilaw.com/wp-content/uploads/2021/06/dui-on-a-scooter.jpg13001950Jonathan Negretti/wp-content/uploads/2018/10/negretti_logo_o-1.jpgJonathan Negretti2021-06-22 05:00:272021-06-22 05:05:21Can You Get a DUI on a Scooter?
In this week’s edition of Negretti & Associates’ Legal Beagle Podcast Jonathan interviews personal injury lawyer Brian LaBovick, author of Not a Good Neighbor: A Lawyer’s Guide to Beating Big Insurance Companies. In his book, LaBovick shows you how to navigate the paperwork and pitfalls of an automobile accident case. He shares stories from nearly three decades in practice to help you maximize benefits in this often-complicated process. You also may pick up a tip or two of how to spearfish in the coastal waters of south Florida!
Jonathan Negretti: We’re here to talk about a hot new summer read that everyone should put on their calendars to read this summer at the beach. It’s called Not a Good Neighbor: A Lawyer’s Guide to Beating Big Insurance Companies.
Brian, what prompted you to write this book?
Brian LaBovick: A couple of things prompted me to write the book. Number one, after 30 years of injury practice, you kind of develop a reputation, and you develop kind of a motif in your injury world work. Our motif has been, for the most part, to do cases of relative significance.
What ends up happening when we start down the path of a case, and we find out that a person’s file really doesn’t fit our profile. We need to try to help them out, and we want to give them an opportunity to be helped out, but their case really doesn’t demand either a lawyer to be involved or litigation to be involved. We wanted a solution for those people.
So, this book is part of that solution for a lot of people, where they can go ahead and get their own cases settled — not pay an attorney’s fee, and get the maximum out of the value out of their particular cases. And so, it’s just trying to help people. That was the main motivation.
Jonathan Negretti: We may disagree on one point. You say that not everyone needs a lawyer. And I actually agree with you on that. But the reason for that may be different between the two of us. Why do you think that not everyone needs a lawyer?
Brian LaBovick: I think that, personally, there are many situations where the lawyer doesn’t add value to the claim for the prospective client. My goal is always to add more value than we take in service in dollars. So, I want to make sure that I’m always adding more value than the person can do without the service of the lawyer.
By keeping that formula, I think that we keep our reputation intact. That’s why what I mean by situations where we don’t add enough value to the case. This book can get people where they need to go without having a lawyer involved.
Jonathan Negretti: Well, I guess we agree!
Brian LaBovick: Oh, good!
Jonathan Negretti: Because that’s exactly what I say to people. If we can’t add more value than what we would take out of the case, then there’s no reason to hire us. We’re exactly aligned in that way.
There are some attorneys that I’ve heard that don’t want cases because all they’re looking for is the big fish. All they’re looking for is the big multi-million-dollar claims, and so they won’t take anything else. It leaves a big group of the population without help — without resources when they really could benefit from a lawyer.
So, I like the way you just explained that because I agree with that idea of “If I can’t provide value, then you’re better off doing this alone.” I totally agree with that.
Brian LaBovick: I think that you and I are on the exact same page. There’s room in the market for that, right? There are businesses in the market who only want that seven-figure-and-above case. And, if you don’t have a seven-figure-and-above case, then you really don’t have a space in their business models.
That’s not my business model. My business model is to help a lot of people. I don’t want to say that we have a “mill practice,” because we certainly don’t. We don’t come close to that mill practice. There are some practices here that drag in 20, 30, 50 people a week. That’s not our practice model. But we definitely like to work on cases where we add value.
There are just some cases out there, unfortunately, at least in Florida, where the insurance profiles of all the parties involved don’t give an opportunity to the plaintiff to really get value out of having an attorney involved. That’s just a fact — a commercial fact — in my neighborhood.
Jonathan Negretti: So, we’re in a day and age where most attorneys — including myself — tout these big outcomes and these awards or verdicts, and we talk about how great we are, and we celebrate all the victories.
You take an interesting turn or twist in this book. You talk about a lot of losses. Why did you do that? You’re very humble in the way you describe things. You didn’t just go through and say, “Let me tell you about all of the seven-figure victories.” You went through and said, “Let me tell you when I got my butt handed to me.” Why did you do that?
Brian LaBovick: I think it’s important that people know that you don’t learn as much from your victories as you do from your defeats. If you’re a conscientious human being, and you care about what you do — if you care at all about learning the lessons of getting good, getting competent at being a great trial lawyer — you’re going to get losses. If you’re not trying cases, you’re not losing cases. Right? You’re going to end up losing cases you should have won, and you’re going to wind up winning cases you probably should have lost.
Six human beings on a jury, at least in Florida, get to make the decision about a case. There are six organic creatures there. I can’t control them. I’m not a Svengali. People think, “Oh, the lawyers are so good at manipulating and controlling.” But it’s just not true.
There are two very smart lawyers — or four, sometimes — on each side of a case. We put that in front of a jury, and those six people get together and create an organic outcome. Sometimes that outcome goes my client’s way and, unfortunately, sometimes it doesn’t. So, I just wanted people to get a really good sense of what the lessons are out there.
So, I thank you. I appreciate the “humble” comment because I want to be a humble person. I wouldn’t say that my friends call me a humble person.
Jonathan Negretti: I read that — and I highlighted it — about the client who ran away to the circus. Is this a real story, Brian?
Brian LaBovick: It’s a real story. I mean, that was one of the heartbreak stories. There are these moments that you go through as a young trial lawyer. You take on these people’s lives.
I would take on these people’s lives. And I would take them on in a way that I truly lived them. [Their problems] became my problem, my life.
When that person came to me days before trial and said, “You’ve got to settle the case. I’m running away. I’m going to join the circus,” that left one of those scars that taught me you have to separate yourself from your client.
Just like that. That was such a deeply cut scar. I was so invested in this person’s life. For her to just be like, “I’m going to join the circus” — wow, that was crazy.
Jonathan Negretti: I’m not laughing at you, Brian. But when I read it, I did laugh. I cannot believe that was a real story.
Brian LaBovick: It’s a true story. I’ve got so many. I’m sure you do, too. After 30 years of practicing law, I’ve got so many client stories, and then so many employee stories.
Jonathan Negretti: So, tell me why is it that you think insurance companies make it so difficult for people — and are really reluctant to pay what we call fair value on claims?
Brian LaBovick: I think for insurance companies it’s a matter of data and money. They do a very good job understanding the data — the actual risk, knowing what risk they can sustain, looking forward 50 years into this time horizon of an investment perspective.
They think to themselves, “If we do this, we’re going to have this much money. If we invest it this way, we’ll have this much money. And this is how much we’ll have to give to people.”
Their risk analysis is just way better than ours. Their data analysis is better than ours. We deal in this human endeavor, and they deal in data. And this is just a matter of data for them. It’s not a human issue.
Jonathan Negretti: I think human kindness is a real thing, and I think humanity is special. I love that you said earlier that what we deal with humans, and what insurance companies do — they deal with data. You can’t lose sight, I think — maybe it’s just my naïve personality — but I think the human spirit always prevails. I just believe that. I really do.
Brian LaBovick: I do, too.
Jonathan Negretti: The data is helpful. It’s good, it’s strong. But you can’t take away that human dynamic which I think you talk about a lot in your book.
Tell me, where people can find your book, Not a Good Neighbor? Where can they get a copy?
Brian LaBovick: Oh, you can find it on Amazon, Barnes and Noble, Target, and some local book sellers — at least here in Florida. It’s super easy to find. Just type into your browser, LaBovick Not a Good Neighbor. It’s gonna pop up. You can get it anywhere, and the audiobook should be coming out in the next three weeks.
Jonathan Negretti: Are you doing the audio?
Brian LaBovick: No, no, no! You’re way better off having a professional reader than me. I asked. Because you’ve got to hire somebody to do this, And I listen to a lot of audiobooks!
https://negrettilaw.com/wp-content/uploads/2021/06/brian-labovick.jpg600600Negretti Law/wp-content/uploads/2018/10/negretti_logo_o-1.jpgNegretti Law2021-06-09 12:00:292021-06-04 23:05:38Interview with Brian LaBovick, Author of “Not a Good Neighbor: A Lawyer’s Guide to Beating Big Insurance Companies”
The evolution of self-driving vehicles has gone into warp speed over the past decade. In fact, most vehicles on the road today have some form of automation.
Depending on where you live, fully automated self-driving vehicles are either an everyday sight or not-too-far-off reality. Google’s autonomous Waymo vehicles have been cruising up and down the streets of Phoenix since early 2017.
As we navigate forward into a world that looks more like the Jetsons and less like the Flintstones, it’s important to understand the pros and cons of self-driving vehicles.
Of course, it can be quite difficult to predict the future, but we know this for certain about self-driving cars: pros and cons can be debated at great length.
The vast majority of motor vehicle crashes are due to human error. It is estimated that fully automated vehicles can reduce vehicle crashes by 90%.
One thing that is certain about any assessment of self-driving cars: pros and cons must take into account how self-driving vehicles can curb — and potentially eliminate — accidents caused by driver fatigue, inattention and distracted driving, and alcohol-related impairment.
Pro #2: More Efficient Travel
Fully automated vehicles are able to communicate with each other through a network of computers. This communication allows for real-time analysis which can help determine best routes of travel, as well as calculate appropriate speeds and distances between vehicles during rush-hour bottlenecks.
Pro #3: Decreased Traffic Flow
Since self-driving vehicles are communicating in real time, travel distances between vehicles can be improved. This can help reduce common traffic concerns.
Pro #4: Easier Access for the Elderly and Disabled
Self-driving vehicles could be a safer, more accessible alternative for persons with disabilities and the elderly alike. A 2017 study by Ruderman Family Foundation observes, “Mitigating transportation-related obstacles for individuals with disabilities would enable new employment opportunities for approximately 2 million individuals with disabilities, and save $19 billion annually in healthcare expenditures from missed medical appointments. This is in the context of the anticipated broader impacts of autonomous vehicles: $1.3 trillion in savings from productivity gains, fuel costs, accident prevention, among other sources.”
Con #1: Wide Adoption Is Necessary
It has been argued that for any of the pros listed above, the only way a fully autonomous system can works is if all vehicles are self-driving. The problem with this concept is that it would essentially strip people of their independent ability to drive.
Con #2: Massive Job Losses in Certain Economic Sectors
A sizeable portion of the population is wholly dependent on the automotive industry for their livelihoods. Many of those working in trucking, public transit, and delivery services would find their roles obsolete in a fully self-driving future.
Security issues are a very real con of self-driving vehicles. When vehicles rely on computers to function, they are susceptible to cyber threats. If an entire system is comprised, so would society’s ability to remain connected and provide basic resources to the masses.
We’ve seen what kinds of disruptions that the recent Colonial Pipeline hack caused. The severity of a breach of an autonomous vehicle network would be incalculable by comparison.
Con #4: The Moral Dilemma
One very important theme that may not get the attention it deserves in discussions of self-driving cars: pros and cons do not always consider questions of morality.
The moral dilemma hinges on the idea that the artificial intelligence in self-driving vehicles lacks the ability to make judgments between multiple favorable outcomes — or “least bad” outcomes, for that matter. A classic example would be an autonomous vehicle choosing to run off the road, possibly killing the driver inside, in an attempt to avoid hitting a school bus filled with children.
Keep Thinking Ahead
The debate on self-driving vehicles and the use of fully autonomous technology rages on. The reality is that we will continue to see advancements in this technology. We need to be thinking ahead on how to incorporate these advancements into our daily lives.
If you have been injured in a self-driving car accident, do not hesitate to give Negretti & Associates a call. Your recovery can hinge on whether or not you have an experienced accident lawyer on your side. For a free consultation with our legal team, contact us online, call us at 1-833-827-3535, or send us a text.
There you are, minding your own business, when a dog comes out of nowhere and bites you.
Common sense would tell you that the owner of that dog is responsible to you for your injuries, right?
Not so fast! Nothing is ever as easy as it seems. Even though most dog bite cases are strict liability cases — in other words, the dog’s owner is liable to you, the bitten party — bringing a claim against the dog’s owner may involve more obstacles than you might imagine.
Most dog bite cases are “strict liability.” In other words, when you’ve been bitten, you don’t have to prove fault or negligence by the owner.
In Arizona, for example, the law governing liability for dog bites, A.R.S. §11-1025, states that dog owners are responsible for paying damages to victims if they are legally on public or private property. This includes the dog owner’s property.
The statute reads, “The owner of a dog which bites a person when the person is in or on a public place or lawfully in or on a private place, including the property of the owner of the dog, is liable for damages suffered by the person bitten, regardless of the former viciousness of the dog or the owner’s knowledge of its viciousness.”
California dog bite laws are clear on assigning liability for dog bites, as well. Section 3342 of California Civil Code creates strict liability for dog owners when their dogs bite someone in public or on private property. In effect, the dog owner cannot simply claim that he or she took reasonable care to restrain the dog, in an effort to avoid liability for injuries the dog has caused to someone.
Next, let’s discuss the defenses that attorneys and insurance companies might employ when defending their clients — the owners of dogs who bite — in dog bite cases.
Defense Number One: “That Really Wasn’t a Dog Bite!”
When you’ve been bitten by a dog, you know you’ve been bitten. So, it might come as a surprise when you hear back from an insurance company or defense attorney that your bite wasn’t technically a bite.
From a technical perspective, a bite may be defined as a dog actually closing its teeth on a person’s body. The defense might argue that the dog never actually closed its teeth and, as such, the bite couldn’t have occurred.
Other arguments that we’ve heard in dog bite cases have involved situations where our client wasn’t bitten by a dog, but nonetheless suffered an injury as a consequence of an attempted bite. After all, even if a dog were to jump at you, you could still fall down and get hurt.
In such instances, we would argue that a dog bite caused the injury. However, a defense would likely argue that, since you were never bitten, dog bite laws do not apply.
Defense Number Two: “The Dog Was Provoked!”
The insurance company or defense attorney is most likely to point the finger at you — the bitten party — after you make a dog bite claim. They would take the provocation defense. Provocation can be defined as any action by a person that causes the dog to immediately engage in a response that is different from the response it was engaged in just prior to the action of the person.
Another way of describing provocation is that someone did something to radically change the dog’s behavior.
Let’s explore a hypothetical example of how provocation might play out. I am an avid runner. This morning, when I was out for a run, I saw someone walking a dog off its leash. I was approaching dog and owner from behind at a rapid speed.
What if that dog became startled and bit me? Is my action of running enough to cause the action of the dog to immediately engage in a different response? I would tell you no. That is not what the law says and that is certainly not the way I interpret the word provocation.
Defense Number Three: “You Assumed the Risk of Being Bitten!”
This might be a head-scratcher for most people. How is it possible to assume the risk of being bitten by a dog?
Insurance companies and defense attorneys will say that your knowledge of the dog, or the fact that you may be around dogs regularly, is enough to argue that you assumed the risk of being bitten.
For example, imagine that you are over at your friends’ house and they tell you not to pet their dog Fifi, because she bites sometimes. The defense would argue that by reaching to pet Fifi, you assumed the risk of being bitten. I would argue that your friends should have kept Fifi away from everybody to ensure that no such bite occurred.
A similar example could involve a veterinarian or someone who volunteers at a pet shelter. Just because you work with dogs routinely does not mean that you’re assuming the risk of them biting you.
You should not expect dogs to bite you. That’s like saying that a certain breed of dog (e.g., a Rottweiler) is more dangerous than another. That simply isn’t true.
Moose, the star of Negretti & Associates’ very own Legal Beagle Podcast, is the sweetest dog on the planet. He would never hurt a fly. Chihuahuas, on the other hand, are a totally different story. 🙂
Either way, a dog’s breed does not mean you have assumed the risk of being bitten by that breed of dog.
Have a Potential Dog Bite Case? Find Help with Negretti & Associates
https://negrettilaw.com/wp-content/uploads/2021/05/dog-bite-cases-thumbnail.jpg1000667Jonathan Negretti/wp-content/uploads/2018/10/negretti_logo_o-1.jpgJonathan Negretti2021-05-27 05:00:162021-05-25 23:58:10Dog Bite Cases: Top Three Defenses Used by Attorneys and Insurance Companies
In this week’s Legal Beagle Podcast, Jonathan Negretti talks about the four-day trial that Negretti & Associates just concluded. Jonathan explains why trials are hard, why trials are unpredictable, and why trials are where you find justice.
At the end of April, our firm wrapped up a four-day trial. The entire month was prep work and getting ready for that trial.
With that said, fresh from my experience of going to trial, I’d like to share my experience. My three take-aways are as follows:
Trials are hard.
Trials are unpredictable.
Trials are where you find justice.
Sometimes, you have to go to trial. As an attorney, you find that there’s simply no way to resolve a case without going to trial.
I really do believe that you can find justice — in essence, accountability for the wrongdoing by the defendants — through trial.
There are times when you can find accountability through settlement.
It doesn’t mean that every case needs to go to trial. Yet, unless the defendants — and really, I’m talking about insurance companies — know that you’re serious, they’re not going to take you seriously.
The case we just tried took a few years to get to trial. This is often the situation.
Clients often ask, “How long is this whole process going to take?” I used to say 12 to 18 months. That was an aggressive timeline. That timeline is nowhere close to what we’re seeing today.
The timing of going to trial has more to do with just the time it takes to get a case ready for trial.
There is work to be done on both sides of the aisle — from the plaintiff’s side to the defense side. There are depositions that need to be taken and medical exams that may need to be conducted. Just getting medical records and putting experts’ evaluations into place can take quite a while.
There are two different types of trials: bench trials and jury trials.
In a bench trial, a judge hears arguments from both sides and then makes the decision.
A jury trial is what you would probably know from TV and movies that you’ve seen. A jury of one’s peers is selected. After hearing arguments, members of the jury deliberate and decide upon the case.
The trial that Negretti & Associates recently wrapped up was a bench trial.
Trials Are Hard
Trials are hard on everyone — not just the attorneys involved, or the clients involved. They’re hard on the judicial system, too. They’re hard on the people who are tasked with making a decision about a case, whether that’s a judge or a jury. Trials are hard on the experts who are involved, as well as the support staff at law firms.
Going to trial requires a mountain of work. There’s no way to really capture this in words. You just have to live and experience it. Frankly, I would hope that most clients don’t have to live through a trial experience. It’s not a fun experience for most people.
In a personal injury context, you’re in a trial because you were hurt in some way. You’re not in trial because going to trial ends up being some sort of positive experience in the way that you would think it would be. You’re there because something happened and deeply impacted your life. An event disrupted your life, causing a need for a claim to be brought, a lawsuit to be filed, litigation to transpire, and a courtroom to be visited.
As an attorney, I enjoy trial work, and I really have a sense of fulfillment that comes along with this work. But that’s because it is what I have signed up to do. By contrast, people who are driving down the road and get hit unexpectedly in a car crash aren’t looking for a trial. I acknowledge and I recognize this.
There’s stress involved. The prep work involved for our recent trial was pretty extensive!
We’re talking about weeks and weeks and weeks of prep — re-reading deposition transcripts, talking with our experts, thinking about trial strategy, working on the opening statement, working on the case-in-chief, which is where the plaintiff puts on their witnesses. We then worked on a rebuttal for the defense case-in-chief, which is what the defense puts on to argue against the plaintiff case. Then we formulated our closing argument at the end. All of this just takes time and a lot of work.
The testimony of witnesses can be extensive, too. You may have taken a witness by deposition earlier in a case, and then you have to take them live. In effect, you basically have to redo everything that you did in the deposition.
This often holds true for the plaintiff, who is going to be asked to sit through a deposition at some point during litigation. The plaintiff will be asked to be taken live at the time of trial, where they’re going to be asked a lot of the same questions that they were asked at the deposition.
As a case develops, you’re faced with the problem of time passing and life intersecting with the law. A crash may happen on one date. The deposition happens on some date after that. And then the trial happens on some later date, even further out in time from the date of the crash. Changes occur with the plaintiff along the way. They may be getting better or worse after suffering injuries.
Life happens. But the law is not black and white. You can’t put people in boxes or categories if a situation or event is highly transitional.
There’s a line from Jerry McGuire that I love: “up at dawn, pride-swallowing siege.” That’s what it’s like to do this kind of work. We were up early each morning and worked very late at night. We had very little sleep. Family and friends can get pushed aside, because you just don’t have the ability to focus on anything but the trial itself.
In fact, this occurred my wife. Her birthday landed in the middle of this trial. I was able to peel away for dinner, and we had some friends and family over. I was able to share a few moments with them, and then I went back to work. That’s just the reality of what we deal with. We were able to celebrate more fully after the trial.
I share this with you because it’s the real dynamics of life and what happens with trials. As the plaintiff, every day we’re talking about what happened that day — giving updates and talking through strategy. And we’re trying to calm the nerves that are there for person who has given their trust and faith to a third party — a judge or a jury — and saying “you make the decision,” because the parties involved can’t simply agree.
Trials Are Unpredictable
Weird things can happen in trial. Our trial happened virtually. I’m very comfortable talking into a little dot on my computer screen, so the experience wasn’t uncomfortable for me. But for others, who aren’t comfortable with that — especially clients and experts who haven’t done it — it’s weird to have a conversation through a computer.
Technical difficulties weren’t really apparent. We got through that pretty smoothly.
If there was one real issue for our case, it’s that people can change their testimony at trial. Incredibly, an expert who testified just flat-out lied! On the stand! And we knew it! I suspect that that expert knew it, too.
At the end of the day, all you can do is try to prove your case through prior testimony and the evidence you’re presenting. You have to hope that the trier of fact — whether that’s the judge or the jury — picks up on what you’re saying and understands where lies occurred.
At the closing argument, you have the chance to explain your position a bit better. But, as it’s happening, you can be caught off-guard. You don’t expect people to change and do an about-face during trial. People usually stick to what they said.
Most people, I think, are trying to be honest. They at least believe, in their minds, that they are being honest. I say this because there are a lot of defense experts who say whatever the defendant wants them to say. We see the same reports and findings over and over. Do I think those experts are intentionally lying? I don’t know. Sometimes they just believe they’re serving another master, and their service to that master is more important than really being fair and reasonable. When this happens, you end up in trial.
Trials Are Where You Find Justice
Earlier, I talked a little bit about accountability. I believe accountability is a byproduct of justice. You go to court to try to resolve your case, simply because you can’t reach a fair resolution somewhere along the way.
Just to be clear, I’m talking about the civil justice system here. There’s also the criminal justice system, which operates independently. Civil and criminal are the two justice systems in this country. They have different ramifications and consequences, but they’re of equal importance.
I believe that our system is set up to be a justice system. There is a civil context and a criminal context, but justice is justice. Justice is accountability for what has happened.
We’ve seen this in the news and in society at large. George Floyd’s brother, Philonise, made an interesting point after former Minneapolis police officer Derek Chauvin was found guilty. Speaking about the verdict, Philonise Floyd said, “It was accountability.”
Ultimately, this is what we’re looking for from the justice system. We’re looking for some sort of accountability. We want the wrongdoer — whether it’s a criminal or civil wrongdoer — to be held accountable for what happened. That’s why I think we find justice in the courtroom.
Sometimes we can’t find justice outside of the courtroom. We certainly can’t find it if the opposing party — the defendant — isn’t going to be fair, treat our client’s situation seriously, or consider what happened in our particular case. Needing to take a case to trial can be a serious consequence of the defendant’s actions.
And so, you sometimes have to take your case to the courtroom. Yet, in doing so, you face a variety of obstacles. For example, you may face consistent denials. I found this, and I actually used this in my closing argument that in psychology, denial is really just the refusal to accept reality. It’s an interesting way to define the word denial.
When defendants deny claims, they refuse to accept the reality that accidents or crashes cause injuries. If you step away from things and look at things from a third-party perspective, I think people can agree on certain basic reality that surrounds a claim. Yet, you still get a lot of denials from the defense, and those denials are not based in any sort of reality. Those become exposed at trial. That’s a great time to do so.
You may also deal with unfair value when taking a case to trial. Unfair value is what the defendant thinks the claim is worth, as opposed to what the plaintiff thinks the claim is worth. There’s a disagreement, to be sure.
It’s important to look our judicial system and how the justice system values a claim. We try to ascertain the fair and reasonable amount that should be paid to someone to make them whole — to compensate them for injuries that have occurred as a result of the crash.
An injury claim doesn’t need to be an automobile crash. An injury case could have a slip-and-fall context, or be the result of medical malpractice or vicious dog bite. Regardless of the injury context, fair and reasonable are important words.
No one wins any sort of award by going to trial. No one wins any sort of contest by getting into litigation. No one walks away from a trial wishing it could happen again, because of the aftermath of a crash. In my entire time of practicing law, which is almost ten years, there hasn’t been one client who has ever said to me, “I would go through this again.”
We’ve had some fantastic outcomes from the cases we’ve managed. But not one of our clients has ever said to me they would go through their experience again. In other words, they would not give up their health and wellbeing — their physical health and mental health — for some sort of compensation, whether that’s some sort of check written by the defendants or otherwise.
Having gone through the COVID-19 pandemic of 2020-21, people have developed a deeper understanding of how really important our health and wellbeing is. Now, more than ever, we value not just our physical health, but also our mental health.
The pandemic was a leveling factor. Everyone knew of someone who was affected in some way. Whether it was a friend, whether it was a family member, we had concern for people with preexisting underlying medical issues. I think that overall, our society — humanity, itself — began to look at our health as more important than anything else.
In turn, I think this new perspective has benefitted plaintiffs everywhere. I think people have been reminded of the fragility of life in many, many subtle ways. The people who sit on juries, coming out of what we have all experienced, I think will have a more compassion in their hearts. We are more acutely aware of what it means to be stripped of things without our consent — or, conversely, being involved in a situation that we did not choose to become involved in.
A Closing Argument
Although I will reaffirm that trials are no fun for everyone to a certain extent, there is a sense of purpose in getting into a trial, telling a story and having that story heard by others, and then reaching a resolution that is fair and reasonable. In a way, the process of going to trial allows for closure.
Until it gets resolved, a case can be like an open wound. It doesn’t really ever get fully resolved until you find some closure in and through our judicial system — through the justice that our Constitution allows. For me, this ability to provide support and achieve a sense of closure — and the sense of purpose that comes along with this role — is very powerful.
I’m proud of the work that we do. I’m thankful for the clients who trust us to handle their cases and and give us the freedom to do the work required to help them find justice.
To those defense attorneys, insurance companies, and defendants that might watch this, we’re not going anywhere. This is not just me speaking for myself and the attorneys at my firm. I am speaking for all plaintiffs everywhere and the attorneys who are proud of the representation they provide. We will continue to tell our stories so that people can be aware of what’s really happening.
https://negrettilaw.com/wp-content/uploads/2021/05/going-to-trial.png1080898Jonathan Negretti/wp-content/uploads/2018/10/negretti_logo_o-1.jpgJonathan Negretti2021-05-20 21:13:382021-05-20 22:18:40Going to Trial: Reflections on Taking a Case to Trial
When attorneys talk about personal injury cases and the law firms that handle them, you’ll sometimes hear the terms “pre-litigation” and “litigation.”
But what do these two terms mean? Let’s keep things simple. An easy way to think of pre litigation vs litigation is this: pre-litigation means “before I file a lawsuit” and litigation means “after I file a lawsuit.”
Pre-Litigation and Litigation Law Firms
If you are choosing a personal injury law firm to take on your case, it’s especially important to know the difference between these two terms. Here’s why:
There are law firms that handle just pre-litigation work. They will manage a case up to the point when a lawsuit is filed. As a case progresses and it becomes evident that a lawsuit must be filed, a pre-litigation law firm will typically hand-off your case to another law firm that handles litigation.
There are law firms that specialize solely in litigation work: taking cases to trial.
There are law firms that handle both pre-litigation work and litigation work. Negretti & Associates is this type of law firm.
What is the difference between pre-litigation and litigation? You can describe the two simply, as follows: pre-litigation is a case before filing a lawsuit and litigation is when a lawsuit has been filed. Here, Jonathan Negretti explains why it’s important to understand the difference between the two and why Negretti & Associates handles both types of cases, from start to resolution.
Why Negretti & Associates Handles Pre-Litigation and Litigation Cases
I say describe our law firm as being somewhere “in the middle” because we have become more litigation-focused in the last few years. We’ve realized that we can be a great benefit to our clients this way. So, we’re filing more lawsuits and taking more cases to arbitration. As a result, I think we’re getting get better results from the people we’re suing. Typically, those people are represented by insurance companies — the organizations from which money is being collected.
Before You File a Lawsuit: Working Toward a Settlement
Before you file a lawsuit, you should keep in mind that you have a deadline to do so. The legal term for this is the” Your deadline for filing a lawsuit depends on the state where your accident happened.
Negretti & Associates has offices in Arizona (in Phoenix), Colorado (in Denver), and California (in San Diego). Each of these three states has different rules for how long you have to file your lawsuit following the date of the accident. If you don’t file, you lose the right to your claim.
Let’s say that you had an auto accident in Arizona, where you have two years from the date of your auto accident to file your lawsuit. If you don’t file, you lose the right to pursue your claim any further.
Before you file your lawsuit, you’re working toward getting better, getting the medical treatment you need, and hopefully getting back to the way you felt before the accident.
If all of this happens in a period of time that’s less than two years from the time of your accident, Negretti & Associates will collect all of the information related to your case — including lost wages and your pain and suffering — and we’ll assemble what’s called a demand package. We’ll send the demand package to the insurance company and try to negotiate a fair settlement on your behalf.
If we agree, as a team (we think of our clients as part of our team), that we have reached a fair resolution to your case, then the case gets settled, and you never have to file a lawsuit.
After You File a Lawsuit
In the event that you haven’t achieved a fair settlement through pre-litigation, then we have to consider the reality of filing a lawsuit.
Once you file a lawsuit, you engage the courts. You open the door to having a third party involved in your case. Things change.
Before you file a lawsuit, it’s really just you and the defendants who are represented by their insurance company.
After you file a lawsuit, it’s you, the defendant, the judge that oversees your case, and the jury that eventually will hear the trial.
Once you get into litigation, you have a different dynamic, because of the way the court system works. You also have deadlines, pursuant to court rules, that you have to abide by. Those same deadlines aren’t necessarily applicable to you before you file a lawsuit — absent the one big deadline, that you have two years to file the lawsuit before you lose the right to the claim.
Not only will you face additional deadlines, but you’ll encounter mandatory requirements, depending on where you are, that you’ll have to attend a settlement conference. What’s more, you’ll find mandatory disclosure requirements, where you have to disclose certain information to the opposing party, and they’ll have to give certain information to you. These things don’t necessarily come into play before you file your lawsuit.
The Pre-Litigation “Vacuum” Compared with the World of Litigation
In a situation where you’ve had a car crash, before you file a lawsuit, you’re really looking at things in a vacuum. You’re looking at what happened from the date of the accident going forward, providing information as needed, and trying to reach that fair and reasonable settlement on your case.
Once you get into litigation, that vacuum kind of goes away. You transition into an exploration into the claim that you’ve made. At this point, the difference between pre litigation vs litigation becomes particularly evident.
As the plaintiff’s attorney in litigation, Negretti & Associates faces the burden of proving your claim for the car crash — along with the injuries, lost wages, and pain and suffering associated with your accident. Meantime, defendants don’t really have a burden of proof. But they do love poking holes in your case, to avoid paying you full value on your claim. They’ll start looking at past medical records and other issues that may be going on in your life — all in an effort to avoid compensating your fairly.
Considering Litigation? Be Aware
Once you cross over the “pre-litigation vs litigation” threshold, and once you start to live in that world of litigation — meaning, you’ve filed a lawsuit — the entire scenario changes quite a bit.
For this reason, at Negretti & Associates, we make our clients aware of what that scenario might look like. We have some pretty comprehensive conversations with our clients. We sit down and we talk about this reality and what this means.
This doesn’t mean that you should be fearful of litigation. We’re not saying to avoid litigation. But you should understand what happens in litigation, because the last thing you want to do is file a lawsuit, get into litigation, and then wish you hadn’t done that. You won’t want to be trying to find ways out of your case, presenting a disadvantage to not only you but obviously to everyone involved in the lawsuit.
No one likes to sue anyone else. There are some people out there who will raise their hands and say, “I like to sue people, but I don’t like to sue people.” As an attorney, I sue people out of necessity.
Ultimately, no one wants to be in a lawsuit. The defendant — the actual person who was in the car crash with you — doesn’t want to be sued. The defendant is at the mercy of an insurance company that won’t be reasonable or fair to you. Because of this lack of reasonableness and fairness, you’re required or forced to file a lawsuit.
If anyone might enjoy lawsuits — absent the poor souls who have decided to be defense attorneys — the insurance companies probably do. They really do buy down what they have to pay to people if they didn’t file lawsuits. And, so, I think they probably enjoy that reality.
Remember, the slow-moving process of litigation can wear on people. It can be very challenging for people to get all the way through litigation without losing interest and certainly without being fearful of the unknown. With that said, if you’re considering litigation, rely on your attorneys. Trust your attorneys. Make decisions with your attorneys. But don’t let them make decisions for you.
Questions About Pre-Litigation vs Litigation? Contact Negretti & Associates
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What happens when a plaintiff dies during lawsuit? Arizona law requires that certain steps be taken to continue the claim in the event of a party’s death, on behalf of either the deceased plaintiff or defendant.
Unfortunately, attorneys find themselves in this situation from time to time. At Negretti & Associates, we’ve had to deal with this situation on numerous occasions. We have had plaintiffs — our clients — pass away during our pursuit of their claim. We have also experienced defendants passing away while we are pursuing a claim against them. When either instance transpires, a case is left in a peculiar state.
Here, we’ll provide an overview of how Arizona law addresses situations in which the plaintiff or defendant passes away before a case is resolved.
Rule 25 of Arizona Rules of Civil Procedure
Rule 25 of the Arizona Rules of Civil Procedure states: “If a party dies and the claim is not extinguished, the court may order substitution of the proper party. Any party may file a motion to substitute. If the motion is not made within 90 days after the statement noting the death is served, the court must dismiss the claims by or against the decedent.” See Ariz. R. Civ. P Rule 25(a).
Ariz. R. Civ. P. Rule 25 goes onto to state that the decedents’ personal representative may be substituted as a plaintiff or defendant and that the action shall proceed in favor or against the remaining parties.
There is a lot to unpack in Rule 25 of the Arizona Rules of Civil Procedure. Read the statute carefully to understand the requirements and the timeline you have to operate under.
Barragan v. Superior Court 469
In addition, there is Arizona case law on point to address with this situation. In Barragan v. Superior Court 469 P.2d 92 (Ariz. App. 1970), the Court further clarified Rule 25 by holding that a petitioner may open probate to have a special administrator appointed for the purpose of later substituting a personal representative for the estate of the decedent.
Questions to Consider
When a plaintiff or defendant dies during a lawsuit, the situation can spider-out in countless ways, causing everyone involved in a case unnecessary stress.
Questions that an attorney might want to consider include:
Did the plaintiff or defendant die before you filed your lawsuit?
What if the case was settled prior to the death of one of the parties?
If you are an attorney representing a client, does your fee agreement allow you to talk to someone on behalf of your client, should he or she die?
Did the party die after your filed, but prior to serving your lawsuit?
On the plaintiff’s side, who is entitled to any proceeds that flow from resolving the claim?
If you find yourself in a situation where the plaintiff or defendant has died while a claim is in process, but you still have questions, give Negretti & Associates a call. We will walk you through the process to ensure that your claim can continue forward. You can reach as at (602) 531-3911 in Arizona. You can also contact us online or send us a text.
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The information contained on this website is intended to give general information only and not to provide advice on specific legal issues. This information is not intended to replace legal advice. We are not responsible for changes in the law. If you need our assistance interpreting any information contained on this website, please contact us. Negretti & Associates does not warrant the expectation of any results. Each client’s case is inherently unique and guarantee of results cannot be obtained for other clients in similar matters without referencing the specific factual and legal circumstances of each client on an individual basis.