Category: Litigation

Diminution in Value Claims in Car Accident Lawsuits

If you’ve been involved in an Arizona car accident, then you may not only be entitled to bring an action against the defendant for damages related to your injuries, but you may also be entitled to claim property loss as a component of your overall damages.  In fact, many plaintiffs are unaware that their injury claim may include a purely economic, property loss component, and are surprised to learn that those damages can be significant, depending on the overall circumstances. The Basics of Property Loss in the Context of Car Accidents  In any injury lawsuit, there are both economic and non-economic damages.  Economic damages are objectively measurable and related to specific financial losses.  Non-economic damages, by contrast, are subjective in nature and are somewhat more speculative than economic damages.  Property loss claims fall within the category of economic damages, and are quite commonly encountered in the car accident context. Suppose, for example, that you suffer serious injuries in a car accident — more specifically, you have suffered debilitating back and shoulder injuries, for which you have had to see many medical specialists and have had to undergo surgery.  Naturally, you would be entitled to assert damages for pain and suffering, medical expenses, emotional distress, wage loss, and various other losses. You would also be entitled to fold your property loss into your overall damage claim.  If your car was totaled in the accident, then you might be entitled to recover the full value of the vehicle at the time of […]

Category: Litigation

Unsafe Vehicle Design Can Expose the Manufacturer to Liability

In the majority of motor vehicle accident lawsuits, injury victims initially focus their attention on obvious defendants — other negligent drivers who contributed to the accident, or perhaps the government agency that failed to maintain the roadway in a reasonably safe condition.  In reality, however, the vehicle manufacturer may be a potentially liable defendant worth bringing an action against, depending on the circumstances. All product manufacturers — in Arizona and elsewhere — have a duty to ensure that their products are not defective and are reasonably safe for their foreseeable uses.  Failure to adhere to this duty could expose the manufacturer to significant liability.  This could prove especially useful in cases where the other defendants (i.e., the drivers) are uninsured or underinsured and therefore not equipped to cover your damages in full. There are a number of different product liability claims — defective manufacture, defective design, failure to warn, and breach of warranty — but for now, let’s focus on defective design in the motor vehicle accident context. Defective Design Liability Arizona implements strict product liability, which is a boon for injured plaintiffs involved in litigation with a vehicle manufacturer.  Stated simply, the plaintiff need only prove that the vehicle is defective in some way, and that the defect substantially contributed to the injuries they suffered in the accident.  It is not necessary for the plaintiff to prove the manufacturer’s negligence. Of course, this does not mean that litigation is easy.  Arguably, the implementation of strict liability simply puts the […]

Category: Litigation

Does Receiving Workers’ Comp Benefits Affect Your Recovery for Damages?

In Arizona, many employees are covered by workers’ compensation coverage that pays out for wage loss and medical expenses in the event that an employee suffers an injury in the workplace or while otherwise performing their duties. Workers’ compensation is an exchange that is often sensible for both parties.  Employers agree to provide no-fault coverage, which gives employees the right to obtain workers’ compensation benefits even if there was no negligence or wrongful conduct involved, while employees agree to give up their right to sue the employer (and thereby obtain damages through standard litigation). Many employees understand the basics of workers’ compensation, but aren’t quite sure what to make of “borderline” situations where they are also entitled to sue a third-party that is liable for their injuries. Suppose, for example, that you are injured in a car accident while using the company vehicle to deliver products to a warehouse.  Though the accident was not the fault of your employer, you would be entitled to submit a claim for workers’ compensation to obtain benefits that account for your wage loss and medical expenses. Now, even though you are not entitled to sue your employer, you might be entitled to sue a third-party — perhaps the negligent driver that collided with you — to secure a more extensive range of damages. Oftentimes, injured employees are incentivized to bring an action against a liable third-party as workers’ compensation benefits can be quite limited — workers’ compensation benefits may only cover medical expenses and […]

Category: Litigation

Collecting Damages After a Judgment in Your Favor

In Arizona (and throughout the country), even once you have secured a court judgment in your favor, the task is not yet complete — you must still collect the damages which you are owed by the defendant.  The type of case is irrelevant to collection.  Whether you were involved in a car accident lawsuit, or some other lawsuit, will have no effect on the procedure that you are required to follow. Unfortunately, defendants can be challenging.  Though in most cases the defendant will honor their responsibilities and — having lost the case — will pay the damages that you (the plaintiff) are owed, in some cases, the defendant will maneuver around the judgment and create roadblocks to collection. The defendant may ignore your request for damages, costs, and legal fees.  Alternatively, they may outright refuse to pay the judgment.  As a general rule, these are a clever application of stalling tactics.  If the defendant can stall for a long enough period of time, then they may be able to hide or otherwise relocate their assets so that you — as the judgment creditor — cannot seize them. What can you do to ensure that you collect your damages in full, after a judgment has been entered in your favor? Let’s take a look at some of your options. What is a Court Judgment? A court judgment is essentially a formal document that gives you, the successful plaintiff, the unrestricted right to seize the assets of the defendant in order to […]

Category: Litigation

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 […]

Category: Litigation

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 […]

Category: Litigation

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 […]

Category: Litigation

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 […]

Category: Litigation

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.  […]

Category: Litigation

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 […]

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