Information
What Should Parents Do When Their Child Is Injured Due
to the Fault of Another
John D. Winer, San Francisco
When a child is seriously injured, all parents want to make
sure that their child receives the best care possible for the
medical and/or psychological injury.
When a child is injured due, at least in some part, to the
fault of another, most parents go through the sometimes difficult
process of attempting to determine whether bringing legal action
against the responsible party will or will not be in the best
interest of their child.
There is a general perception in the public that litigation
can be difficult for children and bringing a case may not be
worth it. This is particularly true in cases of sexual
molestation or abuse.
However, the courts and the law provide special protection
to children in litigation and, hopefully, this article will help
parents make an informed choice as to how to proceed when their
child has been seriously injured in an accident or by the
intentional act of another.
B. What Rights Do Children Have to Recover Money Damages
from At-Fault Defendants.
i. Children have same rights as adults to recover
money damages.
Children, through their parents or guardians, have all of
the rights of an adult to hold accountable people and companies
responsible for their injuries and collect money damages based on
any past or future medical and attendant care expenses, past and
future loss of income and earning capacity, and past and future
pain, suffering and emotional distress damages.
ii. Damage recoveries of minors carefully protected by
the courts.
Although the amount of damages that a child can recover is
in no way limited by virtue of their being a child alone, any
monetary settlement or award will be carefully protected by the
court as will be discussed below.
iii.Types of incidents that can lead to lawsuits being
brought on behalf of children.
This article will focus on the “injuries” received by a
child as a result of a traumatic event, rather than the many
types of trauma that can cause a child injury.
However we will provide a partial list of the type of
accidents or incidents that can lead to a child injury case where
fault of another person or entity can be established:
► automobile accidents.
► truck accidents.
► taxicab accidents.
► train accidents.
► pedestrian accidents.
► bus accidents.
► aviation accidents.
► accidents caused by the dangerous condition of
private property.
► accidents caused by the dangerous condition of
public property.
► toxic exposure accidents.
► accidents caused by defective products.
► injuries resulting from medical malpractice.
► animal bites.
► injuries caused by sexual abuse.
► injuries caused by physical abuse.
► injuries caused by the negligent action or failure
to act of people who are in charge of protecting
children from harm such as teachers, safety
guards, daycare centers, school bus drivers,
school officials, babysitting agencies, foster
parents or foster care agencies, preschools or any
similar person or entity.
The above list is by no means inclusive and if a child is
injured as the result of the negligent or intentional misconduct
of another, a consultation with an attorney should always be
considered to see if there is a viable case.
C. What Is the Definition of a Minor under the Law.
The law generally refers to children as “minors.” A minor
is any child under the age of 18 and not “emancipated,” i.e.,
legally living on his or her own.
D. Who Can Bring a Lawsuit on Behalf of a Minor.
i. Lawsuit or claim must be brought by guardian
(unless the minor is legally emancipated).
Children, under the age of 18, are not allowed to bring a
lawsuit on their own. Their claim or lawsuit must be prosecuted
through a guardian or Guardian Ad Litem.
ii. Child “owns” the lawsuit.
However, even though a child is not entitled to bring the
lawsuit by themselves, the lawsuit that is brought “belongs” to
the minor. The guardian or Guardian Ad Litem (i.e., guardian
“for the litigation”) is simply acting on the child’s behalf.
iii.Simple procedure for appointing Guardian for the
litigation.
a. If two parents living together, one usually
becomes the guardian.
The procedure for the appointment of a Guardian Ad Litem is
usually very simple. In a case in which the child has a living
parent, one of the parents agrees to act as the Guardian Ad
Litem.
However, if both of the parents have their own “individual”
claim against defendant, then there may have to be another family
member or friend of the family appointed guardian ad litem.
When the attorney files the legal complaint in the case, the
attorney simply files a special form listing one of the parents
as the Guardian Ad Litem (i.e., guardian for the litigation).
b. Settlement of cases where no formal lawsuit
was filed.
In a case in which there is a settlement for more than
$5,000 and a lawsuit was not filed, a Guardian Ad Litem can be
appointed for the purpose of having the settlement approved by
the Court.
c. Special rules when s minor is 14 or older.
In cases in which the child is at least 14 years old,
application for appointment of a Guardian Ad Litem must include
the signature of the child indicating his or her desire to have
the particular person appointed as a guardian for purposes of the
litigation.
d. A lawsuit for a minor cannot be brought
without an attorney.
Further, in any lawsuit involving a minor, an attorney must
represent the minor and guardian. In other words, the guardian
cannot act as the attorney because this would be considered
practicing law without a license.
e. When no parent alive or available.
In cases in which a minor does not have a living parent,
generally the adult in charge of taking care of the minor will
become the Guardian Ad Litem or be appointed independently by the
Court.
f. Problems with dueling parents.
Problems sometimes arise in situations in which divorced
parents cannot agree on which one of the parents should become
the Guardian Ad Litem. In this situation, the Court would
probably act by appointing whichever parent it believes would be
the most appropriate Guardian Ad Litem.
E. Special Protections for Child Witnesses.
Young children are afforded special protections by the law
when they have to testify. If they are too young, i.e., not old
enough to know the difference between what is true and what is
false, they will not be required to testify at all.
When they do have to testify at a trial, a judge will go to
great lengths to make sure that neither attorney asks the child
any leading questions (i.e., questions that suggest answers) and
that the child is not in any way intimidated or treated with
anything other than the utmost respect.
At depositions, the plaintiff’s attorney can ensure that the
child is similarly protected. If an attorney for the defense in
any way attempts to intimidate the child, the plaintiff attorney
can stop the deposition, and make a motion to the court for a
protective order protecting the child, and in cases of severe
intentional abuse, a special judge can be hired or appointed to
protect the child at a deposition.
F. Special Priorities for Speedy Trial Setting.
Any minor under the age of 14 is entitled to preference in
the setting of a trial. This will allow the case to go to trial
more quickly than other cases, and in counties with crowded trial
calendars, the case of a minor under the age of 14 must be given
an available courtroom before most other cases.
G. Prenatal Injuries.
A child may recover for injuries sustained while a fetus as
long as the child is born alive. This becomes particularly
important in cases in which a pregnant mother receives an injury
severe enough to also injure the fetus and, more particularly, in
medical malpractice cases against obstetricians and gynecologists
whose negligence before birth leads to significant injuries to a
soon-to-be child who may suffer lifelong consequences,
particularly from loss of oxygen to the brain in the birth
process.
H. Special Standards and Duties in Cases Involving Minors.
i. Adults must use greater care toward minors.
When attempting to establish whether or not a person or
entity is at fault in an accident involving a minor, the law of
California states that adults must use greater caution for the
protection and safety of young children than for adults with
normal physical and mental faculties.
Thus, a driver, while driving in an area in which they know
that children are present, such as a school or neighborhood where
children play, must utilize extra caution in driving the vehicle
and anticipate the sometimes thoughtless and impulsive behavior
of children.
The presence of children is itself a warning of danger
requiring the exercise of care for their safety.
If the driver sees a child in a place of danger, the driver
must keep their car under such control as is reasonably necessary
to avoid injury.
ii. Special rules when assessing potential negligent
conduct of children.
In terms of assessing a child’s own contributions to an
accident, children five years of age and younger cannot, as a
matter of law, be found negligent. Older children will be held
to a standard of care of children of a similar age.
Thus, children are not normally held to adult standards of
conduct but must use that degree of care ordinarily exercised by
children of like age, intelligence and experience.
If a child is found to be partly negligent for causing his
or her own injury, the award will be reduced by a percentage of
their negligence. For instance, if a jury awards a child
$1,000,000 for their injury, but found the child 75% responsible,
the award will be reduced to $250,000.
I. Liability of Schools for Injuries to Minors.
i. Special duty of care of school toward school
children.
Although a school district is not an insurer of its pupils’
safety, a school district and its personnel owe a legal duty to
exercise reasonable care in supervising students on the school
premises and may be held liable for injuries caused by the
failure to exercise sufficient care.
The amount of care that the school must exercise towards its
students varies with their age and maturity.
The school staff has a duty to adequately supervise people
attending school functions and may be liable even for intentional
injuries inflicted by other participants.
ii. Usually school has no duty to protect children off
of school grounds.
a. General rule.
Generally, a school district does not have a duty to protect
against injuries incurred by students off of the school’s
premises unless the injury occurs in an area which is found to be
an extension of the school premises, such as a nearby street.
b. Exceptions.
In some situations, a school district has been found liable
for not providing a crosswalk to allow for the safe crossing of
the street of children when the school district knows that
children frequently will cross in the middle of the road and need
protection.
A school district is not under a duty to provide
transportation to and from school for children; however, when it
does provide transportation it is responsible for the children
and can be held liable for the negligence of a bus driver.
J. Special Duties of Care for Any Person or Entity in
Charge of Caring for Children.
If a person or entity accepts responsibility for taking care
of children, whether in a private setting such as a home or a
public setting such as a daycare center, that person or entity
owes a special duty to act reasonably to protect the children.
This means that they must anticipate the erratic and
impulsive behavior of children and use due care in controlling
the children and the premises.
Thus, a daycare center will be found responsible, for
instance, for a child who wanders out of a daycare center and is
injured. The same would be true if neglect within the daycare
center causes injury to a child.
K. Special Protection of Children Against Sexual Abuse.
Anybody in California can bring a lawsuit if they have been
sexually abused by another person. This would include both
genders, adults and children. Sexual abuse cases can involve a
child molested by an adult (the case can be brought while the
child is still a minor by a guardian or sometimes, and, if the
statute of limitations has not run, by an adult who had been
molested as a child) and a child molested by another child. The
gender of the perpetrator and victim is irrelevant
There are both criminal and civil statutes prohibiting
sexual abuse and if a plaintiff can prove a violation of either a
criminal or a civil statute, he or she is entitled to recover
monetary damages.
L. Specially Protected Classes of People.
In most sexual abuse cases, a plaintiff must prove that the
sexual contact with him or her was offensive, unwanted and non-consensual.
i. Minors and incompetents.
However, there are several classes of people who are
protected against any type of sexual touching regardless of
whether or not the plaintiff consented to the conduct and
regardless of whether or not the conduct was offensive or
unwelcome.
The largest class of people protected under these laws are
minors who, in California, are children under the age of 18. It
is absolutely prohibited for an adult to have any type of sexual
contact with a minor, welcomed or unwelcomed.
M. What Damages Are Recoverable in a Child Injury Case?
In a child personal injury case, plaintiff can recover for
past medical expenses, future predicted medical expenses, past
wage loss, future predicted wage loss and for past and future
pain and suffering.
The medical expenses are determined by the testimony of
physicians or other health care providers. Frequently, an
economist or an expert in the industry determines the amount of
future wage loss; however, no expert can testify to the value of
pain and suffering.
Pain and suffering is typically the most significant element
of a plaintiff’s damage and it includes emotional distress.
Contrary to popular belief, there is no formula for pain and
suffering awards and it varies greatly from case to case
depending upon the location of the case, the seriousness of the
injury and how well the case is presented.
N. Punitive Damages.
Under California law, if a plaintiff can prove that the
conduct of the wrongdoer was fraudulent, malicious or despicable,
he or she is entitled to recover punitive damages which are
intended to punish the wrongdoer and provide an example for the
rest of society. The focus of this type of case is generally on
the wrongdoing of the defendant as opposed to the injury to the
plaintiff. The amount of punitive damage will vary depending
upon the heinousness of the defendant’s misconduct and its
economic status. The law recognizes that large companies have to
pay more money in punitive damages to be adequately punished than
small companies or individuals. In motor vehicle cases, punitive
damages are most frequently awarded against drunk drivers.
O. Special Considerations When Assessing the Future
Consequences of a Child’s Injury.
i. Children’s rights under the law to recover damages
for future consequences of their injuries.
Thankfully, most children recover more quickly and more
completely than adults do from most injuries. However, many
injuries will leave permanent emotional and physical scars on
children and will cause them pain and loss of function for an
entire lifetime.
Although children tend to be more resilient in terms of
recovery from physical injuries, they are more vulnerable to
lifetime consequences from psychological trauma or even the
psychological result of a physical injury.
Under the law, children are entitled to recover monetary
damages for any future medical care, attendant care, loss of
income and pain and suffering that was caused by a trauma.
Thus, as is true for most young children, if they have not
worked a day in their life, they can still recover for a loss of
earning capacity if a childhood trauma causes a later inability
to work.
ii. What to do when the future residuals from an
injury will not be known until the child is older.
Sometimes it can be very difficult to predict the future
consequences of an injury to a science.
a. Advantages of delaying a case until residuals
of injury are known.
Besides medical malpractice cases or cases against public
entities, a child has until they are 19 years of age to bring a
lawsuit. Sometimes it is wise to delay a case until the child is
older and the consequences of the injury and how it will effect
the plaintiff’s functioning will be more clear.
For instance, in a case involving a traumatic brain injury
of a eight-year-old, it may make sense to wait until the child is
14 or 15 to see how the child performs in complex mathematical
tasks to determine how the brain injury will be likely to
manifest itself in the future.
Another example might be a child who suffers an injury which
will clearly preclude the child from competing in the manual
labor market, but if the child is bright enough or does well
enough in school, the child will be able to go to college and
earn even more money than a skilled laborer. If the child is 11
or 12 at the time of the injury, one might want to wait until the
child has graduated from high school to better assess the
plaintiff’s aptitude to compete for white collar jobs before
settling the case or bringing it to trial.
b. Disadvantages to delaying a case.
However, there can be serious consequences for delaying a
case which have to be weighed against the advantage of learning
more about a child’s likelihood to succeed or not succeed in the
future and the likelihood of the need for future medical,
psychological treatment and attendant care.
First of all, the longer a case is dragged out, the more
likely it is that key evidence and witnesses will not be
available at trial. This may make the difference between a
plaintiff winning or losing a case.
Secondly, the child and his or her family will be prevented
from receiving the “closure” which is sometimes very helpful to
affect a child’s emotional and sometimes even physical recovery.
Finally, there is no question but that jurors will react
more sympathetically and favorably to a cute little child than
they will react to a despondent, rebellious, ill-mannered
adolescent. This can have an enormous effect on the size of a
verdict, particularly a verdict for pain, suffering and emotional
distress. Thus, waiting, for instance, for an eight-year-old to
turn 15 may not be a very good idea at all.
c. Generally speaking, long delays should be
avoided.
Therefore, in most cases, it will be worth it for the
plaintiff to proceed with a case while the child is still young,
and delay it maybe only a year or two if that delay will make a
real difference in predicting the future outcome from an injury
P. The Importance of Retaining Experts Who Can Predict the
Future Consequences of a Child’s Injury.
i. Extra care must be taken to retain experts with a
ability to predict future consequences of an
injury.
Because it sometimes so difficult to predict what the future
outcome of a child’s injury will be, plaintiff attorney must take
extra precaution in making sure that they retain expert witnesses
with sufficient background, knowledge and training to predict a
child plaintiff’s future needs, losses and suffering.
ii. The “probability” standard.
The standard for an award for future damages is a
probability standard. That is, based upon reasonable
probability: will the child more likely than not suffer from an
injury and require care or lose income for “x” number of years or
a lifetime into the future.
On medical issues, the standard is whether, with reasonable
medical or psychological probability, the plaintiff will incur
damages in the future and the extent of those damages.
iii.Necessary qualifications and knowledge of
plaintiff’s experts.
Thus, it is imperative that a plaintiff’s medical or
psychological experts have the background, experience and
knowledge to make reasonable and credible estimates of a
plaintiff’s future suffering, needs and losses.
It is also important for the plaintiff’s medical or
psychological expert to be familiar with studies that have now
been conducted on virtually all injuries, which will indicate the
likelihood of the future consequences of trauma to a child.
iv. Examples of expert predictions based on studies
and experience.
For instance, a psychological expert in a child abuse case
can reasonably predict, based on studies and his or her own
knowledge, that when a child reaches puberty, becomes sexually
active, attempts to enter into intimate relationships, marries
and has children of their own, that he or she will have to
struggle with the abuse and more likely than not will require
psychiatric treatment at these stages of their life.
In the case of, for instance, a traumatic brain injury to a
child, the expert neuropsychologist or physiatrist will be able
to predict that the child will no longer have enough cognitive
skills to compete in the labor market as a white collar worker
and will require specialized training to even perform simple
manual labor.
v. Retention of vocational/life care planning
experts.
In addition to retaining highly qualified medical and
psychological experts, the plaintiff attorney must also retain a
vocational/life care expert to testify, based upon the testimony
of the medical practitioners, what the cost of the plaintiff’s
future care needs will be and what their loss of earning capacity
will be as a result of not being able to work at all or only able
to work at a limited number of jobs.
This expert will make predictions of future income loss
based on the child’s pre-injury aptitude and work history of
parents or family members.
vi. Retention of economists.
An economist must also be retained to explain to the jury
the amount of money that will be required to fully compensate the
child for all of his or her future losses that are predicted by
the other experts.
Q. Settlement of a Child Injury Case: Procedural
Requirements.
i. Requirement of Court approval of settlements.
The Courts in California go to great lengths to ensure that
a child’s case is settled for a reasonable amount of money and
that the settlement money is well protected.
A judge in California must approve any settlement of a
minor’s claim over $5,000.
When the case settles, the plaintiff’s attorney prepares a
petition for settlement of a minor’s compromise, signed by the
guardian and filed with the Court. The Court then orders a
hearing where at least the plaintiff’s attorney, the guardian and
any child 14 or over is present.
The judge carefully reviews the petition and carefully
questions the guardian and child over 14 to make sure that they
understand the consequences of the settlement and that they
approve it.
ii. Petitions to the Court to approve settlements of
minors.
The petition itself includes a summary of the case, a
discussion of insurance coverage issues if relevant, a discussion
of the child’s injuries with reports from doctors and
psychologists sometimes included, a statement by the plaintiff’s
attorney under oath that they have no connection with the
defendant in the case, and a breakdown of the settlement proceeds
including the amount of those proceeds which will go to the
attorney for fees and reimbursement of costs and which proceeds
will go to the minor.
The Court must approve any attorney fee award and, normally,
there must be special circumstances before a plaintiff’s attorney
can take a fee in a minor’s case of more then 25%. These special
circumstances can include the amount of work and risk involved in
the case and whether it has to be tried. (Unfortunately, the low
fee award can sometimes be a disincentive for an attorney to take
on a difficult case of a minor.)
iii.Court approval of where minor’s settlement
proceeds must be placed.
Then the Court has to approve what will be done with the
minor’s portion of the settlement. In the case of lump sum
payments, i.e., money which must be placed into some type of
“blocked” account on behalf of the child where the money cannot
be taken out of the account without a special petition to the
court.
Sometimes, if the money is needed to pay for a child’s
accident-related medical, psychological or special schooling
costs, some money may be set aside or given to the parents
specifically to provide for these needs; however, the parents
must carefully report how the money is spent to the Court on a
periodic basis.
iv. Child entitled to entire settlement proceeds when
reaches 18 unless there is a “structured
settlement.”
When the child is 18, the child is automatically entitled to
the money.
Another alternative is to have the court approve a
“structure settlement” which will be discussed below.
R. Structured Settlements for Minors.
i. Structured settlements usually favored for minors.
In any significant injury case in which there is a recovery
of something in the range of $50,000 or more, it is usually a
very good idea for the parents, through their attorney, to
arrange for a structured settlement for the child.
ii. What is a structured settlement?
A structured settlement basically means that the defendant
or the defendant’s insurance company in a child injury case will
take all or a significant portion of a child’s net recovery
(i.e., recovery after fees and costs) and go to another insurance
company and purchase an annuity on behalf of the child. The
annuity will pay the child benefits from some date after the
settlement until some specified date into the future -- sometimes
a lifetime.
iii.Different ways to structure future settlement
payments.
There are literally hundreds of ways in which a settlement
can be structured; however, most typically in the case of a child
plaintiff, if there is sufficient enough money, some type of
payment schedule will be put into effect to logically deal with
the child’s future needs.
If the family needs money for the child’s care right away,
then there may be immediate monthly or yearly payments to the
guardian on behalf of the child.
If the child does not need money right away, or there is
enough money to buy additional future benefits, then frequently a
“college fund” is set up for the child which may provide for
payments of, for instance, $10,000 to $30,000 when the child
reaches the ages of 18, 19, 20 and 21. (The child will then
receive the money whether or not he or she goes to college.)
If there has been a diminution in earning capacity, an
amount of money may be provided for the plaintiff to supplement
the loss of income when they become an adult. For instance,
monthly payments beginning at the age of 22 for “x” amount of
dollars a month.
There can be additional lump sum payments at, for instance,
the age of 25, 30 and 50, to help support the plaintiff and
perhaps pay for a house.
There is no limit to the amount of different combinations of
payments that can be included in a structured settlement.
However, options may be limited by the initial amount of net
settlement money that is used to purchase the structure. More
money buys more benefits and more variations of payment
schedules.
iv. Future payments will exceed lump sum settlement
amount.
Because payments are made over time, and the annuity company
is able to invest the money immediately, the total amount of
structured settlement payments will far exceed the plaintiff’s
net settlement amount.
For instance, a net settlement of $1 million may be able to
buy $10 million of future payouts, though many of those payouts
will occur 30 or 40 years from the time of the settlement when
the money will be worth less than it is today.
v. Reasons why structured settlements are favored for
children.
Structured settlements are generally recommended in child
injury cases because:
► the payouts themselves are not taxable, though
interest on a lump sum payment at the time of the
settlement is taxable.
► structures help ensure the financial security of
the plaintiff into the future.
► a structure gives the parents the ability to
control how the minor will receive his or her
settlement proceeds after he or she turns 18. Most
parents are rightfully scared of the consequences
of an 18-year-old coming into several hundred
thousand dollars or more in cash. A structure
avoids this outcome because the money can be
slowly doled out over time.
vi. Disadvantages of a structured settlement.
The major disadvantage of a structured settlement is that
when it is purchased and the settlement approved, it cannot be
changed. Thus, as is sometimes the case, the plaintiff needs or
wants more money when he or she is, for instance, 23, then
plaintiff cannot undo the structured settlement and must wait for
the payments to occur over time.
S. Statute of Limitations in Sex Abuse Cases Involving
Minors.
A minor has at least until his or her 26th birthday to bring
a case for sexual abuse which occurred while the plaintiff was
under 18. Further, if the plaintiff can establish that he or she
did not discover injury from unlawful conduct until after
reaching 26, the plaintiff has until three years from the date of
discovery. (An important exception to this rule is that a claim
against a governmental entity such as a school may have to be
brought within six months, or at the latest one year from the act
of sexual abuse.) An adult has one year from the date of
discovering harm from the sexual abuse to be able to bring an
action. There are many exceptions to the statute of limitations
and, therefore, an attorney should be consulted before initiating
or giving up on a potential sexual abuse case.
i. Special statute of limitations for child sex abuse
cases.
Most injury cases involving minors must be brought within
one year of the minor’s 18th birthday, i.e., before they turn 19.
The one exception to this general rule is claims against a
government entity which in most situations must be brought within
six months.
However, the California legislature has recognized how
difficult it is for minors to recognize the wrongfulness of the
conduct of the perpetrator and the harm that they suffer from
sexual abuse; therefore, there is a special statute of
limitations law which applies only to cases in which a person is
sexually abused as a minor.
In a case for recovery of damages from sexual abuse that
occurred when the victim was a minor, the victim has at least
until the age of 26 to bring an action. Further, a plaintiff can
bring an action at an even later age if the plaintiff brings the
action within three years of the date that he or she reasonably
should have discovered that an injury was caused by sexual abuse
as a minor.
There is only one limitation on this law and that is, when a
plaintiff is suing someone other than the perpetrator, the case
must be brought before the plaintiff turns 26 and the plaintiff
does not receive the benefit of the three-year late discovery
statute.
ii. Difficulty of proving delayed discovery.
Whether or not plaintiff discovered, or should have
discovered psychological injury within three years of the date he
or she brings a lawsuit is frequently difficult to prove,
especially if the plaintiff has been in psychotherapy discussing
the issue or has talked about the sexual abuse to friends or
relatives more than three years before bringing the lawsuit. In
addition, in most situations, the perpetrator will not have
sufficient funds to pay for plaintiff’s injuries. Further, the
more time that passes from the time of the abuse to the time of
the lawsuit, the more difficult it is to prove the case. Key
witnesses and evidence may disappear over the years. Also,
generally speaking, younger plaintiffs make more sympathetic
witnesses in sexual abuse cases.
Therefore, one should bring a case for childhood sexual
abuse as soon as he or she can, but certainly before his or her
26th birthday. If the potential plaintiff is over 26 years old,
he or she should not give up, and should still seek the advice of
an attorney; however, the case may be more difficult to win.
iii.Special filing requirements for delayed discovery
cases.
In cases in which a plaintiff over 26 years of age brings a
lawsuit based on childhood sexual abuse, the plaintiff must file
certificates of merit by an attorney and mental health care
practitioner stating that the mental health care practitioner
reasonably believes that childhood sexual abuse occurred, and the
attorney reasonably believes that the plaintiff did not discover
his or her injury more than three years before filing of the
lawsuit.
There are other specific pleading requirements in this type
of case that are detailed in California Code of Civil Procedure
section 340.1.
T. Considerations in Evaluating Cases for Settlement.
i. Many different factors are taken into
consideration when evaluating settlements.
There are many, many factors which are utilized when
evaluating a case for settlement. The perception that many of
the public have that a case settles for three times the medical
bills and wage loss cannot be further from accurate. There are
cases that settle for millions of dollars in which there are no
medical bills or wage loss and there are cases that settle for a
few thousand dollars in which there are hundreds of thousands of
dollars of medical bills and wage loss. Following are some of
the factors that are relevant to evaluating the case for
settlement purposes:
ii. Liability.
The clarity of liability (i.e., fault) in the case is a
critical settlement factor.
In a case in which liability is unclear or the plaintiff has
a substantial chance of losing, the settlement value of the case
has to be reduced significantly to factor in the plaintiff’s
chances of losing.
Theoretically, if the value of an injury claim is $100,000,
but plaintiff only has a 50/50 chance of winning, a $50,000
settlement may be appropriate. However, plaintiffs must always
realize that cases against large defendants or in cases in which
the defendant is insured, that the plaintiff has a lot more to
lose than the defendant. In the example above, if the insurance
company turns down a $50,000 demand and the plaintiff wins
$100,000, payment of an additional $50,000 will mean very, very
little to a large insurance company or corporation. On the other
hand, if the plaintiff turns down the insurance company’s $50,000
offer and wins nothing at trial, it could create a devastating
financial blow in which the plaintiff is unable to pay for his or
her bills.
iii.Comparative fault of the plaintiff.
If a plaintiff is found to be partially at fault for causing
his or her own injury, then their potential jury award is reduced
on the basis of their percentage of fault. In other words, if a
case were to go to trial, and plaintiff were to receive a
$100,000 verdict, but was found to be 25% at fault, the
plaintiff’s verdict would be reduced to $75,000. Thus, when
settling a case, plaintiff should reduce his or her expectations
of a settlement by the likely finding of percentage of fault that
would occur if a case were to be tried.
iv. Likely jury verdict value of the case.
In cases in which insurance policy limits are not an issue,
most good attorneys attempt to settle the case based upon what a
jury would be likely to award if the case went to trial.
Determining what a jury will award in a given case is more
of an art than science; however, reasonable estimates can be made
based upon what jurors have awarded in similar cases in similar
venues (i.e., locations). Most verdicts are reported in “jury
sheets” that lawyers read and utilize when attempting to assess
the value of any particular case.
v. Aggravated liability.
In cases in which a jury is likely to get angry at a
defendant for misconduct that was something more than negligent,
it is known that jurors are likely to “spike” their verdict and
award more money for a plaintiff’s injury than they would if a
defendant’s misconduct was merely negligent.
Aggravated liability situations, such as a defendant who was
found to be driving drunk or a defendant who intentionally hurts
a plaintiff will increase the risk to the defendant of a large
jury award and this should be taken into consideration in
settlement.
vi. Punitive damage exposure.
If the defendant’s misconduct is so bad that there is a risk
for punitive damages, i.e., the jury awarding damages
specifically to punish the defendant, this should become a major
factor in settlement negotiations. A potential award of punitive
damages is complicated by the fact that under the law, the
insurance company is not allowed to pay an award for punitive
damages; however, normally, the defendant, through a personal
attorney, attempts to apply pressure on the insurance carrier to
pay more in settlement so that the defendant will not be exposed
to the punitive damage risk.
vii.The character and credibility of the parties.
A plaintiff’s case is worth more if he or she is likeable
and believable. It is known that jurors will award more money to
people that they like and believe than people whom they dislike
and don’t believe.
To a lesser extent, this is also true for defendants. A
likeable or believable defendant is likely to fare better in a
lawsuit than someone with the opposite traits.
viii. The extent of the injury.
Theoretically, the more serious an injury, the greater
should be the value of the plaintiff’s case.
ix. Objective evidence of injury.
Injuries that can be visualized or that are able to be
demonstrated by radiographic evidence such as x-rays, MRIs, CAT
scans or other scientific tests, will normally result in higher
settlements than injuries which depend upon the believability of
the plaintiff to prove.
There are many injuries which may have severe consequences
for the plaintiff which are not diagnosable by objective tests.
This can include severe back problems, headaches and pain
anywhere in the body. Experience has shown that jurors are
hesitant to award large damages in cases in which there is no
objective evidence of injury; thus, the settlement value of any
case is increased by objective evidence of injury and decreased
by the lack of it.
However, a credible plaintiff can sometimes overcome the
lack of objective evidence of an injury and this must also be
taken into consideration in the right case.
x. Past and future medical bills of the plaintiff.
As long as a plaintiff can establish that past medical
expenses and likely future medical expenses are reasonable and
related to their injuries, the bills will be an important
consideration in settlement.
However, the defense will generally claim some amount of
overtreatment and, thus, some portion of the medical bills should
be excluded from settlement consideration. Further, the defense
will argue that plaintiff will be unlikely to need or have the
claimed future treatment and/or the future treatment would not be
related to the subject incident.
xi. Past wage loss and future wage loss.
Wage loss is another important consideration in evaluating
a claim as long as plaintiff can establish that he or she was
reasonably off work or will be reasonably off work due to the
subject incident. The defense will likely take the position that
the amount of the wage loss should be discounted because
plaintiff should have been back to work sooner and, in the case
of future wage loss, the defense will claim that plaintiff could
be doing some type of work which would pay them as much or almost
as much as the work they were doing before the incident.
Also, for plaintiffs who are self-employed or do not have a
strong consistent earning history before the accident/incident,
it can become very difficult to establish a wage loss claim.
xii.Is the injury permanent.
In cases in which plaintiff has a permanent injury and some
objective evidence of that injury, there will likely be a higher
settlement value because the case will have more jury appeal.
xiii. Venue (where the claim will be tried).
It is beyond question that cases tried in certain locations,
particularly urban locations, result in much higher verdicts than
cases tried in more rural counties. This is a factor that must
be taken into consideration in settlement.
xiv.Policy limits and defendant’s assets.
No matter how severe the injury, the plaintiff’s ability to
recover damages against defendant will be limited by either the
defendant’s policy limits or the personal assets of the
defendant.
However, in cases involving motor vehicles, the plaintiff
may have his or her own uninsured or underinsured motorist
insurance which would provide additional coverage for the
plaintiff’s injury and allow the plaintiff to receive further
compensation in a settlement with their own insurance carrier.
xv. Target defendants.
Even though jurors are not supposed to consider the wealth
of a defendant or whether or not the defendant is a corporation
in their verdict, they are far more likely to make larger awards
against large companies than they are people who they perceive to
be middle class or poor. So this becomes another important
settlement consideration.
xvi.Reputation and ability of attorneys.
The claims representative or defense attorney will report to
the insurance carrier or defendant the ability of the plaintiff’s
attorney and the likelihood that the attorney will try a case and
try it well.
In situations in which the defense believes that the
plaintiff’s attorney will not be willing to take the case to
trial, there is little incentive to offer a significant amount of
money in settlement.
On the other hand, if the defense believes that a
plaintiff’s attorney will not only go to trial, but will receive
an optimum verdict, the defense’s risk is increased and thus the
settlement value of the case is increased.
By the same token, plaintiffs must also take into
consideration the reputation and ability of the defense attorney.
If the case is against a good defense attorney, plaintiff will
likely receive less money from the jury; thus, the settlement
value of the case, to some extent, is decreased.
xvii. Expense of litigation.
The expense of litigation should also be considered in
settlement. There are some cases which, if worked up properly,
could result in the expenses actually being higher or almost the
entire amount of an eventual settlement or verdict.
Some insurance companies and corporations are cost conscious
and will take into consideration the expense of proceeding in the
case versus early settlement.
However, just because a case may cost the defense $200,000
to litigate does not mean that in a case they otherwise evaluate
as being worth $25,000, they are going to offer the plaintiff
$200,000 in settlement.
Rather, in the above example, it may cause the corporation
or insurance company to raise their offer five or ten thousand
dollars or to try to settle the case early for $25,000 before
expenses are actually incurred. Corporations and insurance
companies are loathe to make offers of settlements based on the
cost of defense because of a concern that they will be seen as an
easy target for plaintiffs.
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