What is Negligence and Why is it Important?

 
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What is Negligence and Why is it Important?
Written By: Josh Lowell ~ 8/19/2019

In your first semester of law school, the curriculum almost always includes a handful of seminal classes to ease you into basic legal theory. One of those classes is typically Torts 101. Generally, Torts are civil wrongs caused by a party that cause damage to another party. While there are many kinds of Torts, the most noteworthy for purpose of Personal Injury cases are those involving negligence.

Negligent acts – for lack of a better word – are accidents. When a person takes a specific action or omits a specific action that is required, that person might be negligent. If they are negligent, a court might hold them responsible for damages related to their negligent act or omission.

Auto collisions – for the most part – are claims under a theory of negligence. After all, when a driver fails to stop in time and rear-ends another vehicle, we generally refer to it as a car accident. When you’re negotiating with the at-fault driver’s insurance company or any at-fault party for that matter, it will be your burden to establish by a preponderance of the evidence that the other person (or entity) was negligent.

Washington’s courts agree that there are four elements required to prove any claim under a theory of negligence. In other words, in order to bring a successful claim after a motor vehicle collision, you must be able to prove four fundamental pieces.

BLOGPOST_WhatIsNeglegence08182019.JPGDuty of Care

For someone to be negligent, they must first owe a recognizable duty to you. As far as a car accident is concerned, all drivers have a duty to drive safely without causing an accident. This is based in Washington statutes and court decisions. For a slip and fall, the business owner may have a duty to investigate and warn patrons of unseen hazards that may cause injuries. On the other hand, doctors have a duty to practice their specialty and meet the standard of care for other doctors in our community. Duty of care is often not difficult to establish because Washington laws (and common sense) provide some quick answers to most questions.

Breach of Duty

Once you establish that a party owes a duty of care to you, the next step is to establish that the party breached that standard of care. Failing to notice your vehicle braking and slamming into the back of your car is a clear breach of the duty to drive your vehicle safely. However, more complicated cases involving medical malpractice or slip and fall, which are fraught with issues in proving this element. Was the property owner negligent if no reasonable person could have anticipated the hazard? Was the doctor negligent if he did the best he could despite the poor result? These are all questions that can cause significant problems for average cases.

Damages

Whether they are economic damages like medical bills and wage loss or general damages like pain and suffering or emotional trauma, damages must be calculated to prove a claim for negligence. Between your testimony, your medical records, and the support of your friends, family, and doctors, your damages are typically simple to outline.

Proximate Cause

Last – and almost universally considered the most complicated – is the idea of proximate cause. In other words, you have the burden to prove that at-fault party’s breach caused your damages. From the claimant’s perspective it seems simple. You weren’t having pain or treatment before the accident and you were afterwards. From the defense perspective it’s always more complicated. Perhaps you had a symptomatic preexisting condition, or maybe there were treatments that were unreasonable given the circumstances. There are always arguments for a defendant, their attorney, or an expert witness to make to discredit your claim on the issue of causation.

Knowing the elements of a negligence claim is half the battle. Taking this information and crafting a cognizable Personal Injury claim is a separate issue. With insurance companies cracking down on claims, crossing your i’s and dotting your t’s will help you ensure the adjusters take you seriously. Working with an experienced personal injury attorney will allow you to focus on healing and get your claim moving in the right direction. Call today for a free consultation.


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Divorce Prep: What Should You Do Before The First Consultation
Written By: Josh Lowell ~ 8/12/2019

In Washington, divorce lawsuits can be quick and easy. Unfortunately, they can also be long, drawn-out, and complicated. One of the first questions a potential divorcee asks during the first consultation is – “how long is this going to take?” Whether you just can’t wait to divorce your spouse or your dreading the potentially emotionally painful process, there are always steps you can take to speed things up.

Compile the Right Documents

Like any lawsuit, dissolution proceedings are very document driven. This means that you and your attorney will need to work hand-in-hand to provide your spouse, the opposing counsel, and the court with the appropriate documents to prove your case so the divorce can be finalized. In many cases, you will need to file a financial declaration. Here are just a few of the documents you might need in advance:

  1. Paystubs
  2. Bank statements
  3. Credit card statements
  4. Mortgage statements
  5. Tax returns
  6. Any other financial documents

As a rule of thumb, you should shoot for at least 6-months of statements and three years of tax returns. This should provide all involved parties with the necessary information to fairly and equitably finalize your divorce.

Know Your Expenses

Part of any divorce is fairly splitting the expenses. While documentation of these expenses may be necessary depending on how deep your divorce gets into complex litigation, at the outset, having a basic understanding of your expenses can save a lot of time, effort, and money. In order to provide you with relevant and proper advice, your attorney needs to know what possible issues might arise as part of the divorce. Knowing debt information can help you and your counsel prepare for the negotiations to come.

List Your Major Assets

Same as the expenses, knowing your substantial assets is an important piece of the puzzle. You don’t necessarily need to count every fork in the silverware drawer, but understanding the major assets owned by you and your spouse is necessary to give a holistic outlook on the proceedings. This type of asset includes items such as real estate, vehicles, bank accounts, retirement accounts, life insurance, and even valuable collections. Documentation is always preferred but knowing these assets will help ensure you receive a fair share of assets in any future disbursement.

Have a Conversation With Your Spouse (If You Can)

While this might not be plausible in every situation – especially where there has been abuse or a major breakdown in communication – having a conversation with your spouse before initiating a divorce is a great way to speed up the process. Here’s the advice that most people don’t seem to recognize: the more amicably you can work with your soon-to-be ex-spouse, the easier, quicker, and less expensive your divorce will be. Trying to work out your own distribution of debts and assets will save you from paying an attorney to negotiate for you, and best of all, if you’re able to figure everything out on your own, your attorney’s job will be limited to document creation and filing.

Set Realistic Expectations

Don’t be the spouse who thinks – “I’m going to clean my spouse out completely. I’m going to get everything, and he/she is going to get nothing.” Washington abides by a holistic approach to divorce. In other words, in the absence of extenuating circumstances, both spouses will be treated fairly for their specific circumstances. Judges have the ultimate authority in any dissolution case. Many times it is better to work through mediation or other informal negotiation processes to resolve your case without the need for judicial intervention. As the adage goes, a bird in the hand is worth two in the bush.

Leave the Law to Your Attorney

At the law offices of Magnuson Lowell PS, our qualified and experienced family law attorneys are dedicated to helping you with your divorce. With years of training and experience, our attorneys are prepared to help you with your divorce from intake to trial if the situation arises. We know the law, and we know how judges tend to rule. Let us give you the information and advice you need to make informed decisions about your divorce. Call today for a free telephone consultation.

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The Settlement Release: Or - A Lesson in Reading Carefully
Written By: Josh Lowell ~ 8/5/2019

Whether or not you retained your own personal injury attorney after a motor vehicle collision, the process generally takes the same steps.

  • First – You are involved impacted by a vehicle driven by a person glued to their phone instead of paying attention to the roadway.
  • Second – You initiate a claim against the at-fault driver’s insurance company.
  • Third – You get medical treatment until you’re feeling better.
  • Fourth – You negotiate a settlement with the insurance company.

BLOGPOST_SettlementRelease08052109.JPGThere’s a hidden fifth step that most people are not aware of, though, and it takes the form of the dreaded settlement release agreement. After reaching a verbal (or even a written email) agreement with the liability insurance adjuster, they won’t just send you a check in the mail. They will usually require that you sign a contract barring you from making any future claims against their insured related to the incident in question. Generally speaking, there’s nothing wrong with the use of these types of agreements. The problem lies in how the insurance companies insert sneaky language or don’t provide enough context before providing these agreements to injured parties.

The first step any injured party should take after receiving a written release in the mail is to review it carefully. Ignorance of the law is no defense to the law, which means that if you sign the agreement without reading it first, you are usually stuck with the consequences of the contract.

Moreover, be very careful that the document you review describes the agreement that was made. Many times, insurance adjusters will add in additional language that wasn’t part of the original oral agreement that they’re hoping you won’t catch. For example, be wary about settling property damage claims specifically. Often, the insurance adjuster will try to settle your personal injury and medical expense claim at the same time without providing you and forewarning.

This same logic applies to receiving a random check in the mail. Sometimes, insurance companies won’t send you a formal written release. Instead, they will send you a check for a relatively significant amount of money with the words “for full settlement of all claims” (or something like that) in the memo line. Without providing you any context for why the check was sent, the adjuster is hoping you will cash the check. They will then argue that you are not entitled to make any future claims. Overcoming these obstacles is certainly possible, but it is much easier to avoid them in the first place.

There are some basics for the settlement release that all parties should understand before entering into a contract. First, the terms of the agreement should be explicit. For example, usually at the top of the contract, it should describe that Insurance Company will be paying Injured Party a specific amount of money (or whatever else was agreed upon). In exchange for that money, the Insurance Company will set several conditions.

  • Release – A clause preventing the Injured Party from taking any future action against the at-fault driver or Insurance Company related to a specific event. In other words, once you settle this claim, there’s no going back.
  • Indemnification and Hold Harmless – A promise made by the Injured Party to cover the Insurance Company and the at-fault driver if the Injured Party rebukes the terms of the contract.
  • No Admission of Fault – Don’t get too hung up on the Insurance Company denying liability in the agreement in most instances. While it’s frustrating to see this denial in writing, it has no bearing on the settlement money.
  • Payment – Ensure that payment must be made in a certain timeframe. This will prevent the Insurance Company from delaying payment for months.

Release and settlement agreements are binding legal contracts. When settling your own insurance claim, be very sure to understand and ask questions where necessary. If you’re working with an attorney, make sure they explain the consequences of the agreement in detail. If you are injured in a motor vehicle accident, the law offices of Magnuson Lowell PS can help you negotiate with the insurance company and deal with the legal jargon. Call today for a free consultation.


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