Is my case worth
$1 million? $10 million? We’ve all heard
the stories. “My friend broke her
fingernail and got $150,000.” “My
brother-in-law’s friend’s cousin’s son’s wife got $4 million when she fell at
the A & P and broke her wrist.” “Bob
Hartman got $2.7 million because he was rear-ended by a drunk driver and the
drunk’s insurance company was afraid to go to court.”
are these crash-to-riches cases possible?
Well, in a word, they’re not!
Are there multi-million dollar verdicts and settlements? Of course there are but they are based on major injuries, good liability and deep pockets.
face it, folks. Insurance companies are
not in the business of handing out huge settlements – they’re in business to
make money and unreasonable payouts fly in the face of their business model. Unreasonable (and unjustified) large payouts
are just not the reality, they are simply urban
Snopes.com quells the
examples of alleged gazillion dollar recoveries from people filing outrageous
lawsuits by researching the real facts (or lack thereof). The Stella Awards,
named for Stella Liebeck, the plaintiff in the famed McDonald’s Burn Case (read
the real story here) was a leader in putting out annual lists of crazy
lawsuits with alleged crazy
settlements and jury verdicts – but these lawsuits are not real, they are more
examples of urban legends.
Really, Now. What’s My Case
check everyone: Every case is different. Your rear-end case has a different value than
your neighbor’s rear-end case. Sonny’s slip
& fall case has a different value than Chastity’s slip & fall case. Chester’s
product liability case is different than Field’s product liability case.
Why? Because every case has its own unique dynamic
based on many of these factors:
Facts of the accident
Who’s at fault and to what extent?
Medical bills (past, present and future)
Loss of earnings (past, present and future)
Pain, suffering, inconvenience, embarrassment,
Scalding Water Burns Tourist in Restaurant
As you know,
personal injury cases come in all shapes and sizes. There are, to name a few, traffic collisions, injuries
when someone has a slip
& fall, product
liability cases and premises liability
cases. I am using this premises
liability case to illustrate the points raised in this particular article.
Note: This story has been fictionalized and all persons appearing
in this work are fictitious. Any resemblance to real people, living or dead,
places or events is entirely coincidental.
Facts: Kiki, a
30-year old female Japanese tourist visiting relatives, went to a Chinese restaurant
in Los Angeles’s famed Chinatown for a family meal. Chinese Restaurants serving large parties
often place a Lazy Susan
on the center of the table to make it easier to serve the meal family style.
on, the restaurant placed a teapot filled with scalding water on the edge of
the Lazy Susan. While Kiki, with her
four-year old daughter Ling on her lap, and 11 other family members sat around talking,
the condensation began to form on the outside of the teapot. Engrossed in conversation, no one at the
table was paying attention to the Lazy Susan or the teapot until disaster
the teapot was on its side and the contents spilled out all over Ling and Kiki.
Little Ling began screaming and Kiki rushed
to cover her in cold water all the time unaware that her own arm was drenched
in hot water.
was able to save Ling from serious injury. Although Ling was burned, the burns were first-degree
and quickly healed, leaving no scars.
Kiki, who was wearing a long-sleeved sweater at the time, was not so lucky. While Kiki tended to her child, the scalding
water caused her polyester sweater to literally meld into the skin of her arm. She removed the sweater and several layers of
her skin in the process.
healing process was long and arduous. She
returned home and underwent a major skin graft
where they replaced the damaged and dead skin on her arm with skin from her
scalp (and to answer your question in advance, her arm did NOT grow hair). She has been left with permanent, unsightly
scars on her forearm.
Who's Fault Is It That Kiki Was Hurt?
this case had some unique twists and turns. In evaluating this case, several of the factors
listed above had to be considered. The
first, of course, was who was at fault
was this incident?
first blush, it appears to be the restaurant’s fault. However, it’s important to note that the plaintiff
(the person making the claim) has the burden
of proving that it is, in fact, the restaurant’s fault.
everyone at the table was talking when the incident occurred, we had no
witnesses who could honestly say how or why the teapot tipped over. It was through the use of an expert witness’s forensic
analysis that we were able to develop the viable condensation theory.
expert, a physicist, based his analysis on an examination of the location, the Lazy
Susan, the dispenser from which the hot water was poured into the teapot, the
teapot itself and the depositions of Kiki and Shuau, the restaurant employee
who placed the teapot on the Lazy Susan. Shuau testified at her deposition, under penalty of perjury,
that she was instructed by the restaurant to wait until the temperature gauge
on the dispenser was pointing to red before filling the teapot with water.
does it mean when the needle points to red,” I asked.
restaurant’s attorney covered his face with his hands upon hearing this admission. It is also important to note that an employer
is responsible for the acts undertaken by its employees while in the course and
scope of their employment.
is not to say that the restaurant’s lawyers weren’t mounting a defense. The severity and degree of the injuries were
definite and obviously caused by the hot water dispensed by an employee of the
what could they say to mitigate their responsibility? Simple: Kiki should have removed her sweater
sooner and none of this would have happened! Yes, this was their defense. (Defense lawyers ALWAYS have a trick or two
up their sleeve – click
here to read Anderson Cooper’s relevant expose).
other family members there – why didn’t they take care of Ling while Kiki took
care of herself? Actually, I hoped that
the defense would bring this up at trial because what juror would buy that
argument? If anything, it would inflame
them because any parent, any human being for that matter, is going to tend to a
child before they tend to themselves. That’s
just human nature.
What Is Kiki Entitled To?
are various types of damages that someone is entitled to. In Kiki’s case she was entitled to special
damages and general damages. She sued
the restaurant for Negligence for her injuries as well as Negligent Infliction
of Emotional Distress for having witnessed her daughter’s injuries. Since this writing is devoted to damages, I’m
not going to go into any detail on the actual legal theories of liability.
Special, or economic, damages
are those that are quantifiable such as past, present and future medical bills
and loss of earnings that arise from the injury. In this case, Kiki had about $40,000 in
medical bills incurred for the emergency hospital visit and her skin graft. It was agreed upon by everyone that these
bills were reasonable and certainly necessary. Therefore, she was entitled to reimbursement
General, or non-economic,
damages are subjective damages for pain, suffering, disfigurement,
embarrassment, emotional distress, humiliation, loss of pleasure in life. Normally, I’d put the actual figure in here upon
which we settled. However, I’m going to
leave this to you. What do you think Kiki is
entitled to by way of general damages? Please put your answer in the comments
“Wait!” You Say! “Didn’t You
checking to see if you were paying attention! No, of course I didn’t forget little Ling. That would be clumsy of me (not to mention a
tad bit of legal
malpractice). Thankfully Ling
suffered no permanent injuries. She was
scared and had some blisters which healed and left no scars. Naturally (and necessarily), she was included
in the lawsuit.
special damages amounted to $800 for a visit to a local doctor and some healing
ointments. Again, both sides agreed that
this was reasonable and necessary.
I’m going to leave it to you to decide her general damages.
Injured? Questions? Concerns?
For a Free Consultation please contact Attorney Lowell Steiger immediately at
Skype (with or without video): Lowell_Steiger
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