Negligent Torts

Negligent Torts

Law students spend a large portion of the first year of law school learning about all sorts of different torts intentional or otherwise. However, in practice, most cases of personal injury are based on negligence. Common law negligence has evolved over the centuries to include four elements.

• Duty – The plaintiff must show that the defendant owed her a duty of care.

• Breach – The defendant must have breached the duty of care owed to the plaintiff.

• Injury – The plaintiff must have been injured (bodily harm or property damage).

• Proximate Cause – Defendant’s breach must have caused plaintiff’s injuries directly.

In reality, proving negligence is usually more complicated than that. That’s why you need a lawyer, but every negligence claim follows that above pattern. In slip and fall cases in Utah, property owners are deemed negligent when they fail to take specific precautions as defined by the courts. Owners of business are not required to guarantee that their guests (the law calls them, “business invitees,”) never slip and fall. The owner is only charged with the duty to use reasonable care to maintain the premises for the reasonable safety the guests. For example, if a shopper slips on a water spill in the produce section, the grocery store is not automatically deemed negligent. In order to prove that the grocery store did not act reasonably the plaintiff will have to prove one of two things. That the slippery floor was either a permanent unsafe condition that the defendant had a responsibility to remedy or a temporary unsafe condition that the defendant had notice of or the opportunity to remedy. A hypothetical situation should make this clearer.

Utah Negligence Laws

Accidents, and the unfortunate injuries that can result from them, are bound to happen. And if you’re injured in an accident that is genuinely someone else’s fault, how do you figure out who is at fault and the amount of restitution you can get from the faulty party? The legal system uses negligence claims as a way of determining fault in injury-causing accidents and how much, if anything, the careless party should pay to the injured party. This is an introduction to negligence laws in Utah. The initial steps for any negligence case are figuring out if one person (or a group of people) owed a duty of care to another and whether the person or group failed in fulfilling that duty. If a breach of this duty of care occurred, the person or group might be financially liable for any injuries that result. Finally, the court must determine if the person or group’s failure was the direct cause of the injuries, the extent of the harm, and the amount of damages. State negligence laws may vary, so the law applying to your case will depend on your jurisdiction and your specific circumstances. For example, under Utah law, your possible recovery in a negligence can diminish based on your own fault, if any, and if you’re more at fault than the other party in an accident, you might not be able to recover any damages at all.

Statute of Limitations

The statute of limitations is the time period under the law in which someone must file a lawsuit seeking damages. In Utah, the statute of limitations for personal injury claims if generally four years. However, this varies depending on the type of civil suit. When levying a lawsuit against a government body, you only have two years to file an injury claim to seek damages.

Torts and Intentional Torts

A tort is any wrongful act which is not a crime and not included within a signed contract. Most causes of action involving civil suits, such as personal injury claims, are torts. Negligence, wrongful death, libel and slander, trespass — there are all different kinds of torts, as well as civil assault and battery. Intentional torts are wrongful acts committed purposefully. Some intentional torts can be crimes, such as assault and battery, for instance. This can lead to both civil and criminal liability in certain cases. This is also true of theft and wrongful death. A tort will form the basis of a lawsuit seeking damages in the aims of making a plaintiff financially whole.

Negligence

Negligence is a tort that is due to carelessness or failure to act with reasonable care involving conduct that result in damage to a person or their property. To prove negligence, a plaintiff has to establish four elements.
• First, that the defendant had a duty or obligation to the plaintiff;
• Second, that the defendant violated or breached that duty;
• Third, that the breach caused harm to the plaintiff; and
• Fourth, that actual damage is real.
Duty, breach, causation, and damages are the cornerstone of almost every personal injury claim. The grocery store has a duty to keep the store free of dangerous conditions. If the store fails to properly clean up a spilled container of ketchup, they have breached this duty to their visitors. A victim could slip and fall, sustaining serious injuries, due to their breach of duty. This would result in financial and possibly even non-economic damages. The grocery store would be negligent.

Burden of Proof

The burden of proof refers to the obligation of the plaintiff to provide evidence of his or her allegations to be credible and valid at least within a reasonable doubt. There are many thresholds of proof that may be applicable regarding the kind of case being pursued. Regarding a personal injury case, the burden of proof is usually that a plaintiff should prove through establishing evidence that the defendant is liable for damages.

Strict Liability

Strict liability is a legal theory that imposes liability for specific acts or injuries resulting in damage, despite evidence of fault. This is usually used in claims involving defective products to hold manufacturers liable for damages sustained from using their products. With strict reliability, the burden of proof is placed upon the defendant, who then has to prove that they are not liable as opposed to the plaintiff having to provide evidence of fault.

Damages

Damages are what a plaintiff is attempting to recoup through a lawsuit. In a personal injury claim, damages are money. There are two categories of damages: economic damages and non-economic damages. Economic damages are able to be calculated, such as medical bills, lost income, replacement services, and the cost of vehicle repair. Non-economic damages are not able to be exactly determined. They include pain and suffering, as well as humiliation. For instance, in a slip and fall accident, your $20,000 hospital costs would be an economic damage. The $10,000 you are seeking due to suffering anxiety and insomnia caused by your injuries would be considered non-economic damages.

Comparative Fault

Let’s imagine that you slipped on a broken jar of mayonnaise at the grocery store, and then a stocker lazily placed a warning cone in front of the hazard instead of cleaning it up immediately. In this case, a judge or jury could say that you were perhaps 40% at fault for the accident because there was a warning in place. The grocery store would be 60% at fault due to failing to clean up the hazard or close off the affected area altogether. Any favorable judgment would be reduced by the amount you are at fault, in this case, 40 percent. If you were to recover $10,000 for your injuries, then the final judgment would be reduced to $6,000. In Utah, if you are seen to be 50 percent or more at fault for the accident, you would not be able to receive any compensation for your sustained damages.

No-Fault

No fault is the most commonly applied legal theory involving car accident personal injury claims. In no-fault states, such as Utah, it is required that all car owners carry a minimum amount of personal injury protection (PIP) insurance. Involving damages sustained in a car accident, the injured party is able to collect from their own insurance provider instead of filing a lawsuit, No-fault laws can be complex and hard to understand, but the general theory is fairly simple: unless injuries reach a set financial threshold, an injured victim is not able to file suit and must recover damages from an insurance provider, no matter who is at fault for the crash and the resulting injuries.

Automobile Collisions in Utah

A majority of car crashes end in death. No matter the reason for the crash, losing a loved one is never easy. Even worse, these crashes are due to preventable accidents, allowing you to partner with a wrongful death lawyer in Utah to regain lost damages.

Can I Still Receive Compensation if the Accident Was Partially My Fault?

The question of contributory and comparative negligence always on depends on where the accident happened. Each state is different. Utah has a modified comparative negligence rule, which means, you can receive compensation even the accident was partially your fault, so long as you are less than 50 percent responsible for the accident. To understand the concept, you will have to back up and understand the theory of contributory and comparative negligence.

• Contributory Negligence – In states with this standard, if you are partially at fault for the accident, even a little bit, you cannot recover any damages at all.

• Comparative Negligence – States like California and New York allow plaintiffs to receive compensation when they were partially or even mostly at fault for the accident. The court will ask a judge or jury to find at what percent the plaintiff is liable for the accident. If the injured is 40 percent liable for the accident, that percentage will be removed from the damage award. If a plaintiff is awarded a settlement of $10,000.00, but the court found that he or she was 40 percent at fault for the accident, he or she would only receive 60 percent of the award – $6,000.00. There is no cut-off. If the Plaintiff was 80 percent at fault he or she would receive $2,000.00.

• Modified Comparative Negligence – Most states, including Utah and Montana, use a system that comes between contributory negligence and pure comparative negligence. There is a limit. In Utah, you cannot recover damages for an accident if you were more responsible for the accident than the defendant. Utah Code Ann. §78B-5-818. If you were 49 percent at fault for the accident, you can recover 49 percent of the damage award. If you are 50 percent at fault, you cannot recover anything.

Utah is a modified comparative negligence state with a 50 percent at-fault bar. That means that if you are at least half at-fault for the accident, you will get nothing. If you are less than have at fault, you can recover a partial damage award offset by the percentage at-fault you were.

Determining fault as a percentage based on real-life events is difficult. If the parties cannot agree on who was at fault, it is up to what lawyers call the “trier of fact,” to determine those numbers. The trier of fact is the person, either judge or jury, who adjudicates the evidence to determine which facts are true. This usually happens at trial. Cases where there is comparative negligence are harder to settle outside of court.

The Tort of Negligence is a legal wrong that is suffered by someone at the hands of another who fails to take proper care to avoid what a reasonable person would regard as a foreseeable risk. In many cases there will be a contractual relationship (express or implied) between the parties involved, such as that of doctor and patient, employer and employee, bank and customer, and until relatively recently it was necessary for such a contractual relationship to exist in order for a claim for negligence to succeed. But the civil law relating to negligence has evolved and grown to deal with situations that arise between two or more parties even where no contract, written or implied, exists between them It follows that from a practical and financial point of view every enterprise needs to ensure that management planning continually takes full account of the responsibilities imposed and the potential liabilities that may be incurred under what is a continually evolving part of the law.

Negligent Tort Lawyer Free Consultation

When you need legal help with negligent torts in Utah, please call Ascent Law for your free consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

Ascent Law LLC

4.9 stars – based on 67 reviews


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Trucking Accidents

Trucking Accidents

If you are the victim of a trucking accident, the questions of who is responsible and what actually caused the accident are often much more complicated than in a simple traffic accident. There are many players involved, from the driver to the owner of the truck, and getting information about what went wrong often requires some industry know-how. Understanding the common reasons for trucking accidents, and the relationships among the persons and entities connected to the truck, the trailer, and the load, will help you determine whether you have a valid claim and how you will present your case.

Truck Accident Statistics

Over the past two decades, the number of truck accidents has increased by 20%. According to the Federal Motor Carrier Safety Administration (FMCSA), in 2002, 4,897 individuals died and 130,000 people were injured in crashes that involved a large truck. And even though large trucks are only responsible for 3% of injury-causing motor vehicle accidents, trucking accidents typically cause much greater harm than ordinary traffic accidents due to the large size and heavy weight of most trucks.

Laws Governing Truck Accidents

Federal laws and regulations govern the trucking industry. These laws establish certain standards that trucking companies, owners, and drivers must meet, and often determine who is responsible for a trucking accident. The bulk of federal regulations dealing with the trucking industry can be found in Title 49 of the Code of Federal Regulations. Agencies that regulate truck driving include the U.S. Department of Transportation (DOT) and the Federal Motor Carrier Safety Administration (FMCSA). Every state also has a department of transportation with its own set of trucking regulations.

Who Is Responsible?

When it comes to truck accidents, there is a web of players who may be responsible for a victim’s injuries, including:
• the truck’s driver
• the owner of the truck or trailer
• the person or company that leased the truck or trailer from the owner
• the manufacturer of the vehicle, tires, or other parts that may have contributed to the cause or severity of the accident, and
• the shipper or loader of the truck’s cargo (in cases involving improper loading).

The trucking, hauling, and leasing companies often argue among themselves over whose insurance will compensate the victim. For example, the truck company might claim that the accident was caused by defective brakes. In turn, the brake company might then point the finger at the leasing company, claiming that it failed to maintain the brakes in good working order.

Can Trucking Companies Avoid Liability?

In the past, trucking companies often tried to avoid liability for trucking accidents by creating distance between themselves and the driver, the vehicle, and the equipment. Here’s how they did this: The trucking company obtains the necessary permits to operate the truck. However, the company often does not own the tractor, trailer, or equipment used to haul the goods. Instead it leases (rents) the equipment, tractors, and trailers from the “owner/operator.” The trucking company also does not directly employee the drivers. Instead, it hires them as independent contractors from the owner/operator. The trucking company gives the owner/operator a “placard,” which includes the name of the trucking company and its permit numbers. The placard is then affixed to the door of the tractor — which makes it seem like the truck is owned by the named trucking company and the driver is an employee of the named trucking company.

If the truck is in an accident, and the trucking company is sued, it would argue that:
• the driver was not the trucking company’s employee, so the trucking company is not liable for driver error, or
• the trucking company does not own the equipment, so it is not responsible for the operation, maintenance, repair, and inspections of the equipment.

Luckily, federal laws and regulations have put an end to these arguments. Under current federal law, any company owning a trucking permit is responsible for all accidents involving a truck that has its placard or name displayed on the vehicle. It doesn’t matter what the lease says with the owner/operator or whether the driver is an employee or independent contractor.

You Want the Best Truck Accident Lawyer

It’s an undeniable fact that semi trucks rule the road. These enormous trucks often weigh up to 80,000 pounds and stretch from hood to taillight an astounding 80 feet. Anyone who has driven next to these automotive giants can attest to how dangerous such an experience can be. If you’ve been injured in an accident involving a semi truck you will need an Advocate on your side to help you make a full recovery.

Why You Need a Semi-Truck Accident Attorney

Without a doubt, personal injury attorneys are the best in the business. They know better than anyone how difficult it can be to successfully pursue a truck accident claim. Such cases have so many parties involved–the trucking company, the corporation chartering the vehicle, and even the driver–that building a claim can quickly become complicated and confusing. Simply proving who is at fault for your injuries and losses can seem an impossible task. Below are just a few examples of damages that an Attorney can help you recover:
• Medical bills
• Lost wages due to injury
• Property damage
• Pain and suffering
• PTSD
• Loss of consortium

Common Causes Of Trucking Accidents

Any types of auto accident are dangerous, but add a loaded semi-truck into the mix and the risk of serious injury or even death increases drastically. And not only is the danger increased when a truck is involved, but the cost of injuries and damages is amplified also. Furthermore, in a truck accident case you must battle the driver, the trucking company, and the insurance company to receive full compensation, which is why you need legal representation from an experienced truck accident attorney who understands these types of cases. Car accident injuries involving a semi- or tractor trailer truck commonly occur as a result of the following reasons:

• Malfunctioning Brakes: Most trucks have air brakes, which are designed to stop a loaded truck in about 100 feet when traveling at a speed of 35-40 mph. However, when malfunctions or failures in the air brake system occur, these 80,000 lb. vehicles become a deadly force on the road. Even if a truck driver continuously pumps the brakes as recommended, malfunctions can still occur, resulting in a dangerous scenario.
• Rollovers: The most common type of truck accidents are rollovers. If a driver loses control of his truck and starts sliding sideways, any obstruction can trip up the vehicle and trigger a rollover—a curb, guardrail, uneven ground, another vehicle, etc. A truck that turns too sharply or aggressively is also at risk of rolling over, especially if it is carrying a full or unbalanced load. The danger and severity of truck rollovers are extremely high, and have high fatality rates.
• Blind Spot Accident: Trucks in particular have large “no zone” areas that can potentially cause an accident. As most warning stickers on the back of trucks say, if you can’t see the driver in his side mirror, he cannot see you. Blind spots for trucks are on their left and right sides, and following too closely behind.
• Swinging Turns. When trucks cause a collision while turning, it is known as a swinging turn or “squeeze play” accident. Swinging turn accidents can happen one of three ways:
 When a truck swings left to make a right turn (or right to make a left turn)
 When a truck makes too wide of a turn, hitting other vehicles head on
 Squeezing cars beside the truck by not turning wide enough
• Tire Blowout/Bald Tires: Just drive down the highway and you will see scores of stripped tires and tread alongside the road. The heavy loads trucks carry, and the long distances they travel, cause significant wear and tear on their tires. Sometimes, when a tire blowout occurs, it can lead to an accident, and potentially cause serious injury or death.

• Overloaded Cargo: There are certain limitations as to how much weight a truck is allowed to carry at one time. In Colorado, interstate haulers cannot exceed the maximum gross weight allowance of 80,000 lbs. When truckers go above that limit, the weight of the load may become too heavy to manage, and they risk losing control of their vehicle and causing an accident.

• Falling Debris: Improperly packed trucks may lose some of their cargo in transit, causing falling debris that can potentially lead to an accident. According to the law, a truck driver is responsible for properly securing their load so that nothing falls onto the highway. Clear water or feathers from live birds are the only exceptions.

For drivers who are involved in a collision with a truck, or an accident caused by a truck, first you should determine if anyone at the scene of the crash requires medical attention. Truck accidents are generally very serious, and the appropriate medical care should be given to all parties involved. Second, avoid talking to a trucking company without the presence of an experienced Colorado truck accident attorney. The truck company may try to negotiate a settlement, but without having a lawyer present, you could be cheated out of the full costs and expenses associated with treating your injuries, fixing damage and compensating you for lost wages.

Who Pays For Injuries And Damages In A Truck Accident?

Big Rigs and semi-trucks present some very unique issues both on our roadways and in our legal system. Because of their sheer size alone, they are many times more dangerous than a standard sized automobile. When that much weight gets moving that quickly, it does not take much for a traffic accident to become fatal. When these accidents do occur, and one is curious as to whether they can pursue a claim, the first step is to show negligence. The driver must have actually fallen below a standard of reasonable care for him to be negligent and at-fault. It is possible that the experienced semi-truck driver has done everything right and yet was still unable to avoid the collision. Those instances are somewhat unique, but they happen. When they do, both parties may be reasonable for their own losses. If that is not the case in your accident, and a semi-truck did cause a car accident, one comforting thought is that the odds that you will recover your losses are very high. Most semi-trucks are being driven by a professional driver who is an employee of a business. Businesses are responsible for the negligent actions of their agents while they are in the course and scope of their employment under a theory called respondent superior. That means, that if the driver is negligent, instead of his own car insurance stepping up to indemnify him, the car insurance of the business will step up to indemnify the business. This happens because the business is sure to be buying insurance on their own trucks and listing their employees as drivers as opposed to forcing their employees to pay for expensive insurance on those enormous trucks. Because the business is the one who chose the insurance policy, it is likely to be enormous. That is just the reality. If you were starting a business that involved driving many huge trucks all around the country carrying a variety of expensive materials, you would purchase an enormous insurance policy to protect you against a catastrophic loss. The advantage of this policy having limits that are so high that they will never be reached is that the plaintiff is now able to be fully compensated even in the case of very serious damages. In order to lawsuit, plaintiffs are forced to sign agreements that officially release any and all future claims against that defendant. When one is working with an insurance company, which is darn near always, the agreement will release both the insurance company and the insured party. Because of that, when policy limits are too low to fully compensate the plaintiff, the plaintiff will be forced to accept less than what they deserve if the insured is insolvent. In the case of an employee causing the damage, the agreement may only protect the business, leaving the employee liable for the remainder, but this problem will likely never arise because semi-trucks will be carrying insurance policies that are so large that all potential problems can be avoided. In fact, one other difference in a trucking accident is that punitive damages may become a possibility. If it can be shown that the company had reckless disregard for the safety of other in how they used their trucks, the award may be exponentially larger. When an individual gets into an auto accident with a semi-truck, contacting a semi-truck accident attorney who has experience dealing with truck accidents should be the first item on your list. The attorney can find the correct insurance policy and can help make sure that the injured victim is compensated.

Help For Truck Injury Victims

Due to the sheer size and weight of tractor trailer trucks, resulting injuries are often severe or fatal. Thankfully, semi truck operators drive professionally and should carry a special type of commercial insurance coverage. If you are a victim of a trucking accident, you may be entitled to compensation. One challenge in fighting truck accident cases is defining jurisdiction, as the truck operator may be based in a different state from which the accident occurred. An experience truck accident attorney can help. Discuss your legal options in our free claim review. Common Truck Accident injuries:
• Whiplash injuries
• Spinal cord or head injury
• Broken bones
• Fatal injuries
Types of trucking accidents:
• Jack knife
• Head on collisions
• Rear-end crashes
• Roll-over
• Limited visibility

Trucking Accident Lawyer Free Consultation

When you need to recover for injuries from a trucking accident in Utah, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

Ascent Law LLC

4.9 stars – based on 67 reviews


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