The Duty to Mitigate: What Injured Individuals Need to Know

In Arizona, and throughout the country, injured plaintiffs are entitled to recover damages for damages they incur due to the negligent, reckless, or intentional acts of others — whether they are injured in a car accident or a slip-and-fall accident, or some other accident scenario.  This right to recovery is not absolute, however.  Injured plaintiffs must act in accordance with their various duties and responsibilities under the law, which includes the duty to mitigate their losses. What is the Duty to Mitigate? Defendants cannot be held liable for losses that they do not actually cause.  This “causation” requirement is fundamentally linked to the duty to mitigate. How so? The duty to mitigate requires that the injured plaintiff exert “reasonable efforts” to reduce their total losses — failure to do so will result in a proportional decrease in one’s recoverable damages.  Losses can be quite varied, and as such, mitigation must cover all the losses that the plaintiff intends to claim.  This can all be somewhat confusing to understand, so let’s use a quick example to clarify. Suppose that you are injured in a motor vehicle accident by the defendant, who was excessively speeding at the time, thus causing the accident.  You sustained significant neck and back injuries during the accident, and as a result, you can no longer work.  Now, suppose that you seek adequate medical diagnostics and treatment as soon as possible.  Your doctor asks that you sign up for long-term physical therapy sessions in order to regain some […]

Are Waivers of Liability Enforceable in Arizona?

Waivers of liability are quite common, particularly in the context of recreational activities — this ubiquity means that laypeople are generally familiar with the concept of a “liability waiver” and what it entails.  Simply put, a liability waiver shields the defendant from civil liability for serious injuries and damages that they cause due to their own negligence. Still, few laypeople understand that liability waivers are not always applicable to a given situation, or that enforceability will depend on a number of different factors that could be evaluated in their favor. Freedom to Contract Arizona law recognizes the freedom to contract, but this freedom is not unlimited.  Though two or more parties are reasonably entitled to contract around their potential liabilities, the law will not necessarily accept all such agreements as enforceable.  In Arizona, for example, the state generally disfavors agreements (i.e., liability waivers) designed to release liability.  As such, any and all liability waivers are strictly construed against the defendant seeking to enforce the waiver. Determining Whether the Liability Waiver is Enforceable Enforceability of a liability waiver depends on the circumstances.  Courts will analyze the facts of the case (surrounding the liability waiver) and will consider those facts in the context of the following factors. Ambiguity in the Waiver Agreement Liability waivers must be sufficiently clear and unambiguous such that they function as a fully adequate notice of the inherent dangers associated with the covered activity.  The dangers must be reasonably communicated to the participants.  If there is ambiguity in […]

Loss of Enjoyment of Life Damages in Arizona

Whether you’ve been injured in a car accident in Phoenix, a slip-and-fall accident, or in any other scenario where the defendant’s negligent or wrongful acts have contributed to your injuries, plaintiffs are entitled to claim (as a separate element) damages for “loss of enjoyment of life” (LEL), otherwise known as “hedonic damages.”  These damages account for a unique set of losses arising from an injury — specifically, the plaintiff must assign a monetary value to their recreational activities, and thus calculate the losses due to the injuries at-issue. LEL damages have not always been accepted, and in some jurisdictions, there remain questions as to their viability as a separate element of damages.  In fact, Arizona courts have only recently deemed LEL damages independent of pain and suffering damages.  This case law development has led to a spike in litigation involving significant LEL damage claims. Confused by all this complicated legal terminology?  Let’s break down some of the basics and take a brief look at how LEL damages actually work, and how they might be applicable to your case. Basics of LEL Damages LEL damages (i.e., hedonic damages) are intended to compensate the injured plaintiff for various losses related to their recreational activities, social life, and relationships.  They are a form of non-economic damages, and as such, are inherently subjective, which is to say that they are based on your personal, emotionally-tinted experience of loss, as opposed to some objective indication of loss. Suppose that you are severely injured in a […]

How Health Insurance Coverage Influences Recovery in a Personal Injury Lawsuit

If you’ve been injured in a motor vehicle accident (due to the negligent or wrongful acts of another), then you may be somewhat confused as to how your health insurance coverage affects your ability to recover damages for incurred medical expenses. After all, it might seem reasonable to the injured plaintiff that they be entitled to recover damages only for losses incurred out-of-pocket.  If your health insurer is paying for all your medical expenses, can you assert such damages in litigation against the defendant? Thanks to the collateral source rule: yes.  Arizona law gives injured plaintiffs the right to recover for medical expenses, even if their insurer is covering such expenses. The Collateral Source Rule In Arizona, as in many other states, the “collateral source rule” applies to a range of personal injury actions.  The rule essentially prevents the jury from being able to consider evidence relating to plaintiff’s receipt of funds from outside sources, such as insurance, so that the defendant cannot escape significant liability simply because the plaintiff had the good sense and foresight to purchase insurance coverage. In practical terms, the application of the collateral source rule means that you — the injured plaintiff — are entitled to recover damages for any and all legitimate medical expenses, even if those expenses are being covered by your insurer.  Simply put: your health insurance coverage will not negatively affect your ability to secure damages in a personal injury lawsuit.  Claim reimbursement is irrelevant. Recovering Damages for the Amount Paid […]

Arizona Law: Understanding Survival Actions

In the state of Arizona, loss-of-life claims — more specifically, wrongful death claims and survival claims — are a category of injury claims brought either by the surviving family members, or by the estate of the deceased individual.  When a person is killed due to the negligent or otherwise wrongful acts of another, then Arizona law may entitle a qualified subset of survivors to pursue an action in litigation against the defendant and recover damages. When most laypeople think of loss-of-life claims, they tend to think of “wrongful death.”  Survival actions are an important part of the legal landscape, however, and may lead to significant damage recovery. So, what’s the difference?  Let’s take a look. Survival Actions vs. Wrongful Death Actions Survival actions are fundamentally different than wrongful death actions, though these differences are often misunderstood. Stated simply, survival actions are brought against the defendant (who is responsible for causing the death at-issue) on behalf of the deceased individual.  In essence, a survival action gives the estate of the deceased an opportunity to recover damages for the wrongs committed against the deceased individual.  It arguably acts as a form of claim preservation — whatever claims the deceased would have had in the event they survived, are preserved and may be pursued by their estate. Suppose, for example, that your loved one is killed in a motor vehicle accident by a distracted driver.  Their death was not immediate, however.  After a week of attempted treatment, your loved one finally succumbed to […]

Wage Loss Damages in a Personal Injury Lawsuit

In Arizona, if you’ve been injured in an accident due to the fault of another person or entity, then you may have the right to recover a range of damages to cover your losses — generally speaking, this includes lost wages. When bringing a lawsuit against the defendant, it’s important to remember that damages may vary substantially from plaintiff-to-plaintiff.  Every case is different.  In fact, it is a fundamental principle of law that the defendant be forced to “accept the victim” as “they found them.”  Stated another way, compensatory damages are not capped based on the type of accident that occurred.  If you have significant wage loss damages, you will not be prevented from recovering such damages simply because they seem excessive in comparison to the damages suffered by the average person. Wage loss recovery is actually rather straightforward to understand.  Let’s explore the basics to get a clearer picture of how it works. Wage Loss at a Glance Wage loss damages account for actual losses suffered due to an inability to work (following an injury).  Wage loss damages are somewhat different from lost earning capacity.  For example, if your injury has not resulted in time off from work but has reduced the likelihood that you will be promoted in the future, then you’ll want to claim loss of future earning capacity damages — not wage loss damages. Wage loss damages must generally be “certain” — they can be estimated, but there must be evidence that reasonably supports the numbers.  […]

Hearsay Evidence Cannot Be Introduced in Arizona Personal Injury Litigation

Motor vehicle accidents (like many other accident scenarios) are frequently decided on the basis of evidentiary issues.  The value of effectively navigating evidentiary conflicts cannot be understated — generally speaking, skilled litigators understand the value of favorably resolving evidentiary conflicts.  Doing so will almost certainly pay dividends further downstream in the litigation process. Perhaps the most commonly encountered evidentiary issue is that of hearsay evidence admission.  In Arizona, the success of your motor vehicle accident and car accident claims can turn on the application of the hearsay evidence rule, so it’s worth considering the rule and its fundamental limitations. Let’s take a look. Arizona Law Prohibits the Admission of Hearsay Evidence According to the Arizona Rules of Evidence section 801, hearsay evidence is defined as a statement that: the declarant makes outside of the current trial or hearing, and is offered into evidence to prove the truth of the matter asserted in the statement. If the declarant testifies about a prior statement and is subject to cross-examination, or if a statement is offered into evidence against an opposing party, then — assuming that certain additional requirements are met (see section 801(d)(1) and (d)(2)), the statement will not be considered “hearsay” despite having been made out-of-court. Sifting through this legalese can be rather difficult.  Simply put, a hearsay statement is any out-of-court statement that is being offered to prove the content of the statement itself. For example, suppose that the defendant is attempting to minimize their liability by claiming that another […]

Recovering Damages for Injuries You Sustain in the Workplace

In Arizona, as in other states, workplace injuries (and other injuries sustained while performing one’s workplace duties, even off-site) can lead to quite a bit of confusion.  Many workers may not realize that they not only have the right to receive workers’ compensation benefits, but that they may also have a legitimate right of action against one or more defendants. If you were delivering pizzas, for example, and you were subsequently injured in a serious car accident, then you would not only be entitled to workers’ compensation benefits, but you may also have other claims worth pursuing. Workplace injuries can be particularly challenging from both an emotional and financial perspective.  Still, if you’ve suffered serious injuries, it’s critical that you consult with an attorney who can evaluate the situation and determine whether you have actionable claims — workers’ compensation benefits alone may be insufficient to account for your losses. Arizona “No Fault” Workers’ Compensation Workers’ compensation in the state of Arizona is mandatory — employers are required to pay for workers’ compensation insurance that covers their employees.  As such, if you are an employee and you are injured in a job-related incident (on-site or off-site), then you are almost certainly entitled to receive workers’ compensation benefits. Importantly, Arizona workers’ compensation is a “no-fault” system.  In no-fault systems, it is irrelevant whether you contributed to your own injuries (so long as you did not intentionally cause your own injuries).  Further, it is not necessary to prove that the employer acted negligently […]

Recovering From Multiple Defendants in Arizona — The Doctrine of Several Liability

Motor vehicle accidents — like many other accident scenarios — often involve multiple defendants.  Bringing an action against a single defendant is quite a bit different than suing multiple defendants, even if the case may seem uncomplicated upon first impression. For example, if you have been injured in a motor vehicle accident where two speeding cars collided with yours (on the highway), then you would have to sue and recover from each defendant separately.  Defendants are well aware of the fact that this burden is placed on the injured plaintiff, and may attempt to minimize their liabilities by shifting the greater portion of the blame to the other defendants in the case. Arizona Implements Several Liability, Not Joint Liability In Arizona, historically, the state implemented “joint and several” liability.  Joint and several liability gave the injured plaintiff a great deal of power — the plaintiff could sue any one of the defendants who contributed to their injuries, and in turn, recover the full amount of their damages from that one defendant, even if the defendant was only minimally liable for the injuries at-issue. For example, in a case with $1 million in damages, a defendant who was only 10 percent at-fault could be held liable for the entire $1 million! Unfortunately, lawmakers came to believe that the system was unfair to defendants, and abolished “joint and several” liability, replacing it with a system of pure several liability.  If you are injured in an accident in Arizona, you will therefore be […]

Can You Recover for the Wrongful Death of a Loved One?

In Arizona, as in other states, those who have lost a loved one to an accident (that was caused by another’s negligent, reckless, or intentional acts) may be entitled to recover damages pursuant to a wrongful death claim. How Do Wrongful Death Claims Work? Wrongful death claims give a right of action to certain surviving family members of the deceased, allowing those surviving family members to recover damages to compensate them for the various losses they suffered as a result of the death at-issue.  Importantly, wrongful death claims are not intended to compensate the surviving family members for the suffering of the deceased.  Instead, they are intended to compensate the surviving family members for their own damages. These damages may include: Out-of-pocket medical expenses paid by the surviving family member Funeral expenses paid by the surviving family member Loss of companionship Loss of consortium Loss of domestic services Loss of love and affection Loss of financial support Mental distress And more Suppose, for example, that a close relative — perhaps your father — was involved in a motor vehicle accident.  The accident did not immediately result in your father’s death.  He is rushed to the hospital.  After a few days in intensive care and a difficult struggle for survival, your father dies. In the above example, you cannot recover (in a wrongful death action) damages for your father’s pain and suffering, or for their medical expenses or wage loss.  You can only recover damages for your own losses.  If your […]

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