I was injured in a bicycle collision by another bicycle rider, when he tried to avoid a pothole on a street. Who do I sue, the bicycle rider who ran into me, the city that left the pothole?
That’s a good question. Under California law, a plaintiff has to bring all parties that are potentially responsible for their injury into a case. If that plaintiff doesn’t do that, they run the risk of the defendant they did bring into the case pointing to the other responsible party who’s not in the case. And it’s impossible for the plaintiff to recover from someone who’s not in the case. So in your factual scenario, if someone swerves to avoid a pothole and strikes someone else and causes a crash, and that plaintiff only brings in the other bicyclist, well, a reasonable jury could come back and say, “The defendant in that case isn’t at fault, ’cause he was just trying to avoid a pothole. I really think it’s the city who’s not maintaining the streets properly.”
And in that case, if you don’t bring the city into that lawsuit as well, then you could run the risk of recovering nothing. The more prudent case or path would be to bring in both the bicyclist that was trying to avoid the pothole and the government entity, to try to prove that, one, the defendant that was riding the bike wasn’t riding it in a reasonably prudent manner, and two, that the government entity or property owner knew about that pothole, knew it was dangerous, and didn’t fix it in time to avoid the crash.
Does it make a difference if I hire an attorney for my bicycle accident?
0I think it makes a huge difference. First, navigating the legal requirements to proceed with the lawsuit are complex, and most people simply cannot navigate those on their own without the advice and counsel of a good lawyer. And secondly, an injured party needs a good attorney to help them see the strengths and weaknesses in a case, so they can make a decision on whether or not to bring it in the first place. Many Americans thinks that there are too many lawsuits and that many lawsuits are frivolous. And that’s largely because people are bringing lawsuits without lawyers, or they’re hiring the wrong lawyers. They’re bringing claims that shouldn’t be brought in the first place. That’s why I think it’s important for an injured party to talk to a good plaintiffs lawyer, so that plaintiffs lawyer can explain the strengths and weaknesses in the case, so that that person can make their decision on whether to proceed.
In addition, it’s important to collect evidence and preserve evidence early in the case. And a lot of times, an injured party either can’t do that because they’re bound in a hospital or at home because of their injuries, or they don’t know to do that. And only a good legal counsel will help them preserve that evidence so that their case can be successful down the road. And there are a plethora of other reasons why I think it’s important, but we’d have to have a lot more time for that.
Our child was killed while riding a bicycle in a crash with a car. What are our rights as parents?
Oh, in a tragedy like that, parents of the child are entitled to file a wrongful death lawsuit against the person or persons that caused that crash. That lawsuit is for the loss of comfort, society, friendship and love, for the death of that child, as suffered by the parents and for other consequential damages like funeral expenses and the like. If the child suffered for any period of time prior to his or her death, then the parents can also bring a survival action, and to recover for the child’s pain and suffering for the period of time between the crash and the child’s death.
Such cases are some of the most difficult cases from an emotional standpoint and it’s important for a parent of a deceased child on a bicycle to consult with the lawyer about the process, because the litigation process can be quite strenuous and difficult to deal with, on top of already losing a child.
What are my rights and responsibilities as a bicycle rider? For example, do I have to wear a helmet?
That’s a great question. So, in California, a bicyclist, like any other user of a roadway, is required to act like a reasonable person. And that requires a bicyclist to obey all of the laws that a driver would have to do. Not to drive too fast. Not to ride your bike without paying attention to what’s in front of you, or seeing what’s in front of you. Not to make turns on red lights, or to fail to obey a stop sign. A bicyclist has no special rights that a driver of a car doesn’t have. They have to obey the laws of the State of California.
In California, if you’re under the age of 18, you’re required by law to wear a helmet while riding a bicycle, a scooter or any sort of motorized bike. However, an adult does not share that responsibility in California. But as a practical matter, if an adult is riding a bike and he’s injured and suffers a head injury, the fact finder, either the jury or the court, could certainly find that the plaintiff bears some responsibility for his own injuries because he wasn’t wearing a helmet. That’s not to say that the defendant that caused that collision will be found responsible in some proportion. But failure to wear a helmet while riding a bicycle in California is either against the law, if you’re underage, or be going to bear some personal responsibility for your injuries for failing to wear that helmet.
Can I still bring a lawsuit against the driver if I was doing something I wasn’t supposed to do, like riding on the wrong side of the road, or not having lights on my bicycle or reflectors?
Yes. So again, under California law, we have what’s called the Pure Comparative Fault System. And what that means is that, a bicycle crash can be partially the plaintiff’s fault and partially the defendant’s fault. For example, if a plaintiff is riding his bicycle at night and doesn’t have lights on the back and front illuminating his presence, and the defendant who’s in a car is driving drunk and runs through a stop sign and hits the bicyclist, then in that case, the jury gets to decide who’s responsible for this event. And a jury could determine that even though the defendant was drunk and ran a stop sign, that the plaintiff still bears some responsibility for the crash because he didn’t have lights. And the theory being or the justification being, that if there had been lights on the front of the vehicle, the drunk driver would’ve seen him and not crash into him.
But that’s not to say that all jurors will find that way. Certainly, in this factual scenario, a jury could come back and say, “I don’t care that the plaintiff didn’t have lights on his bicycle because the defendant was drunk and ran a stop sign, and this is all entirely the defendant’s fault.” So, just because a plaintiff might be doing something wrong or that’s a violation of the rules of the road, it doesn’t mean that their lawsuit is barred.
If I’m injured while riding my bicycle, can I sue the driver of the car that hit me?
It depends. If the driver of the automobile that hit you is at fault or broke some motor vehicle law, and that was the cause of him striking you while you were cycling, then that driver is responsible for your injuries and you can bring a law suit against him. Sometimes, two people can be at fault. Both the driver and the bicyclist can bear some responsibility for a crash or a collision. And in those cases, a jury determines who’s at fault and in what percentages. This is again what we call the comparative fault system, which we have here in California.
So, for example, a bicyclist could be riding on the wrong side of the road, but the driver isn’t paying attention, is driving too fast and crashes into the bicyclist. In that case, a jury might determine that the plaintiff was 2% at fault or 5% at fault for riding on the wrong side of the road, but the jury finds that the defendant is mostly responsible for not paying attention or driving too fast, and then would find them 98% or 95% responsible. And in that case, the plaintiff gets to recover their damages minus or subtracted or reduced by their own percentage of fault.
And what damages are recoverable in a crash or a collision case?
That depends on if the plaintiff is injured or if the plaintiff is killed. If the plaintiff is injured in a bicyclist collision, then plaintiff gets to recover his non-economic damages, what we call his pain and suffering for both past and the future. The plaintiff also gets to recover his economic damages, which are things like past medical bills, future medical bills, past wage loses, future wage loses, and in some circumstances, if the injury is severe, the plaintiff might be able to make a loss or an incapacity claim, which is essentially that that person can no longer do the job that he did prior to the injury.
For example, if a doctor is on a bike and he’s injured, and that doctor makes $300,000 a year, and as the result of the crash he can no longer be a doctor and has to find another job that makes far less than $300,000 a year, then that plaintiff is entitled to recover the difference between what he could do before versus what he can do now.
Do I need to retain an attorney, and how soon should I?
That’s a great question. It’s my belief that an injured party by defective product should hire an attorney or should seek the advice of attorney as soon as possible. One, because often times, these companies or the insurance companies for these companies try to reach out to the injured party and quickly try to resolve those cases for pennies on the dollar. And these injured parties are often either injured in a state where they’re not thinking clearly, or they don’t know their rights, they don’t know what they’re entitled to recover for. So they’re settling their cases or resolving their cases without properly knowing what their rights are. And these companies try to take advantage of that situation. So, that’s step one, is to get a good attorney between you and the insurance company and the defendant so that you don’t give away something or give up your rights.
Second, it’s important to hire an attorney early or consult with an attorney early, because evidence needs to be reserved. In product defect cases, the product itself and other evidence often gets thrown away, or destroyed, or changed, or modified someway after the accident. So it’s critical for the injured party to hire an attorney or consult with an attorney, so that evidence can be preserved. Because sometimes in cases that evidence is critical to the success of the case. And in addition to that, the law is complex in these types of cases, and these companies hire big law firms with lots of money and lots of attorneys to litigate these cases. And I don’t believe a reasonable person could adequately represent themselves without proper counsel. So it’s, in my opinion, very important to have a top-notch plaintiffs law firm fighting for you in a product defect case.
And what about time limits? Do I need to sue within a certain period of time?
Alright, that’s another great question. So, in California, an injured party or the relatives of someone that was killed by a dangerous product have two years from the date of the injury or the death to file a lawsuit to recover. So again, a plaintiff’s attorney needs to be consulted quickly and early in that process, so that the evidence can be preserved, but also so that the case can be investigated, and other evidence in research can be done prior to that two-year deadline.
And you mentioned earlier a product liability case involving an aerosol spray. Let’s say the damage is accumulative. Is there a time that I need to file after I find out I’ve been injured from that?
That’s correct. You have to file when you’re either injured or you discover, using reasonable and due diligence, that a certain product caused my injury. So while you might not know for sure whether or not the product was responsible for your injury, you have a duty to go out and find the evidence, find the facts to determine whether or not that happened. So in some circumstances, a plaintiff can recover beyond, or file a lawsuit for wrongful death or personal injuries based upon a dangerous product, if they couldn’t, using due diligence, have discovered that the product was the cause of their injury.
You mentioned also that the seller of the product, not just the manufacturer, might be liable. Does the seller have to be aware that the product is defective in order to be also responsible?
No, the seller is not. The law around product liability is a function of society, and it’s a policy determination that the State of California has made that the companies that are in the chain of custody, from the designer to the manufacturer to the distributor to the seller, are in a better position to bear the risk of those dangerous products, as opposed to hanging the plaintiff that is injured out to dry. So while the seller might, in some people’s mind, be innocent in a case, that doesn’t absolve them of liability, because oftentimes these sellers buy products from overseas, manufacturers and companies where US law cannot reach. And in that case, if the seller wasn’t responsible, then the only viable other party would be the manufacturer. In a country like China, the plaintiff would not be able to recover a dime. So, as a society and as a state, we have made a public policy determination that we would rather the seller bear the responsibility for that dangerous product, as opposed to the plaintiff being unable to recover at all.
Speaking of expert witnesses, how expensive are they, and who has to foot the bill until the case is resolved one way or the other?
That’s a great question, because expert witnesses in product cases can be very expensive. In some cases, they can cost as much as six-figure money, hundreds of thousands of dollars for expert witnesses in any given case. In other cases, expert witnesses can be controlled and their expenses controlled so that the value of the case doesn’t get consumed by paying the expert witnesses. But a plaintiff shouldn’t worry about those expenses and should talk about those expenses with their counsel, because a good trial attorney, first of all, is going to pay for those expert witnesses. Those won’t be borne or paid by the plaintiff himself. The plaintiff’s attorney, using his own money or her money, will pay the expert witnesses and recoup those costs at the end of the case if a settlement or judgement is received. So there’s no cost to the plaintiff for those expert witnesses.
So, just so I understand it – there’s no initial upfront cost, but the plaintiff ends up paying it out of the proceeds from a judgement or settlement?
Most plaintiffs attorneys work on a contingency fee basis, and what that says is there’s no upfront cost to the plaintiff whatsoever. However, if the attorney is able to get a settlement or a judgement, then the plaintiff’s attorney recoups his expenses: The expert witness fees, the filing fees, other fees that are associated with the… Or expenses that are associated with litigating the case, in addition to a certain percentage for his or her fee.
What damages can I recover in a defective product liability case?
he damages that are recoverable under California law in a defective product case depend on the type of case of course. But in a typical case where the plaintiff was injured but survived, that plaintiff would be entitled to his economic damages and his non-economic damages. Economic damages include past and future medical expenses, past and future wage loss, future lost earning capacity. Because of an injury sometimes a person either has to exit the workforce early or can no longer do what they did before being injured, and as a result they have what we call a lost earning capacity. In addition to that, other out of pocket or consequential damages that flow from that injury are also recoverable. In addition to the economic damages you can get your non-economic damages. This is what people typically refer to as pain and suffering. And pain and suffering you can recover for both the past pain and suffering and the pain and suffering that you’ll suffer in the future. Those numbers are determined by a juror, or by a jury or the fact finder. And those are typically the damages that are recoverable in a personal injury product defect case where the plaintiff survives. If the plaintiff or the party that was injured by the product does not survive, then the relatives and heirs of the decedent or the dead person are entitled to file a lawsuit on his behalf.
That is what we call wrongful death and survival actions. In a wrongful death case, all the heirs are entitled to recover for are economic damages for burial expenses, and things that flow from the death of the person. What the relatives cannot recover for is the pain and suffering of the decedents, of the dead person. The jury doesn’t get to award them money for the pain and suffering that the decedent experienced prior to his death in a wrongful death case. They’re only entitled to recover for their loss of comfort, society from that person no longer being in their life. In a survival action, which is a type of wrongful death case, is where the heirs recover for the dead person’s pain and suffering from the time of the injury-causing event up until the time of his death. So sometimes, death is instantaneous. Other times, it takes a while. And in the survival action, the decedent’s heirs are entitled to recover for that injured party’s or the decedent’s pain and suffering that he or she went through prior to his or her death.
What about economic damages? For example, someone dies as a result of a defective product, he’s 30 years old and he had another 35-40 years of earning potential.
Right. So in that sort of a case, the decedent’s heirs for example, if he had children, are entitled to recover what the dad would’ve provided for those children throughout their lives. So in a typical case involving the death of a parent, the children are entitled to recover the money that that parent would have provided to that child over his or her life. So things like college expenses, medical expenses, food – all sorts of normal daily things that a parent provides to their children – the heirs or the children are entitled to recover for in a dangerous product case.
Does it make any difference in the age of the product that caused an injury?
Sometimes it does, sometimes it doesn’t. Simply because the product is old doesn’t mean that a plaintiff cannot recover for injuries caused by that product. In California, a plaintiff or the loved ones, or relatives of someone that died because of a dangerous product, have two years from the injury or death to file a claim against the responsible parties. And simply because that product was 30 years old doesn’t trigger that deadline any earlier. The key event in deciding when a plaintiff can bring a product defect lawsuit is from the time of the injury. However, in certain cases, products that were made a long time ago don’t get analyzed by today’s standards. Certainly, over time, products get safer, technology, people learn more, and products get safer and safer. So when you’re analyzing whether or not an old product is defective or not, you have to analyze that at the time it was made. So if a product was made in the 1970s, you have to know what people knew and what technology existed in the 1970s, and compare that to that product to determine whether or not it was defective or not.
Isn’t it hard to take on a product manufacturer in a legal case?
Sometimes there are some challenges to bring in a product liability, because the injuries might not be that severe and the company that produces the dangerous product has vast resources. And those companies make business decisions that they would rather spend thousands of dollars on lawyers and ligitation, as to paying those claims. So in a smaller injury case, it’s difficult because the cost of litigating against the company are so high. And that’s because we have to hire expert witnesses to help prove that the product was defective, and fly across the country taking depositions of the defendant’s employees to prove that the product is defective.
So in some cases, if the injuries aren’t severe enough, it’s challenging to bring and win a product liability case. However, if the injuries are severe and the injured party’s damages are high, those economic barriers no longer exists. And all that’s required is a good plaintiff’s attorney along with injured party who’s willing to take on a big corporation or company to try to help take that dangerous product off the market if possible, and to seek recovery for that person’s injuries.
Many companies don’t like the fact that their product is being alleged to be defective, don’t like the negative press that they might get from that lawsuit. So sometimes the defendants has economic incentives to resolve cases, and to change their product so that it longer hurts people. So, while there are challenging cases, they’re by no means insurmountable. And many, many plaintiffs across the nation have been brave enough to bring those case, and change corporate behavior and take dangerous products off the market.
What must be proven in a product liability case?
In California, we use typically the consumer expectation test to determine whether or not a product is defective. So in some cases, all that’s required is the plaintiff to tell the facts of the story, and what happened with the product. And the jury, from using their own commonsense and judgement, can decide that that product did not behave or function like a reasonable consumer would have expected it to. And that’s all it’s required. In other cases, expert testimony might be required to help a juror determine whether or not that product functioned or behaved like a reasonable consumer would have expected it to have behaved.
For example, in a case involving a durable waterproofing spray which comes in a can. That product is a very simple product, and when one sprays it, inhales the contents of the gas mist accidentally, or by mistake, then that product didn’t behave like a reasonable… I’m sorry… And that product causes a lung injury. A reasonable consumer would not expect that using that spray and inhaling it accidentally would cause a lung injury. So in a case like that, the plaintiff might just hope that a jury would see that a reasonable consumer wouldn’t expect to be injured by spraying this durable waterproofing product. However, a good plaintiff’s attorney would probably hire a pulmonologist or some other medical doctor to help show that the contents within the spray get into the lungs and cause scarring of the lungs. So those are some of the things that we use in California, typically expert witness testimony, to help prove that the product is defective.
If I’m injured or a loved one is killed by a defective product, against whom can I make a claim?
Under California law, you can bring a claim against any company or individual that’s in what we call the chain of commerce of that product. From the manufacturer of that product, to the company that designed it, to the company that distributes it, to the company that sells it at a local store. Any one of those companies or individuals that are in that chain of commerce of the product are liable under California law if that product is found to be defective.
So for example, a product could be designed by a company in Canada. Those design specifications are then sent to a company in the State of California to be manufactured, and then a distributing company ships those companies to Florida and other places beyond to a local store in New York city that sells that product. Any one of those companies or individuals that were in that crazy chain of commerce are liable if that product is found to be defective and someone is injured.
So what does the term ‘product liability’ actually mean?
The term product liability means that a product that’s on the market has a defect in it that causes injuries or death to people. And what that means is that, a product isn’t either designed or it’s incorrectly manufactured. So that when it reaches the market, it is defective and it causes an injury or the death to someone.
In California, we use what’s called the Reasonable Consumer Expectation Test, which says that, if a product doesn’t behave or function like a reasonable consumer would expect it to have worked, then that product has a defect in it. And under law, a plaintiff or the heirs of someone who’s died, can bring an action against the manufacturer, seller or distributor of that product.
Other cases that involved very technical products might use a different test called the Risk-Utility Test. And in those types of cases where the product is very scientific or there’s a lot of technology to it, that a reasonable juror wouldn’t understand, the court uses some balancing factors. It’s the risk of the product causing harm versus the utility that that product provides to society. And they weigh those things against each other to determine whether or not that product is defective. So, that’s generally what we mean in California by a defective product.