QUESTION:
Last night I was getting off the freeway ramp and realized that the car in front of me decides to slow all the way to about 10mph. I decided to get into the other lane, drive up, and safely get back to the original lane I needed to get into. I asked the passenger what he was doing, and she told me that he was full on texting while driving. I stopped at the stop light ahead, and 5 minutes later I feel a ram into my car and we both jerk forward nearly hitting the dashboard. We both got out and talked to the guy, and he never apologized for his doing, and admitted that he was texting and driving and he had "ADHD" and wasn’t paying attention. No extreme damages, except punctures and indents in my car. But the passenger and I both have extreme stiffness/neck pains. What actions should I take?
ANSWER:
In the present case, a personal injury claim on the ground of negligence may be filed subject to the general rule that the burden of proof of negligence lies on the plaintiff. However, where an accident is of such a nature that, in light of past experience, it probably was the result of someone’s negligence and defendant is probably the one responsible, the law may permit the trier of fact to draw an inference of defendant’s negligence. This is the doctrine of “res ipsa loquitur.” It is an evidentiary rule. In California, the doctrine is defined as a presumption affecting the burden of producing evidence provided three preliminary fact conditions are met, defendant is presumed to have been negligent and the burden shifts to defendant to produce evidence either that he or she was not negligent or that any negligence on his or her part was not a proximate cause of the occurrence. Plaintiffs seeking to invoke res ipsa loquitur have the burden of establishing the following three conditions: That the accident is of a kind which ordinarily does not occur in the absence of someone’s negligence; That the accident was caused by an agency or instrumentality within the defendant’s (or defendants’) exclusive control; and that the accident was not due to any voluntary action or contribution on plaintiff’s part. [Newing v. Cheatham (1975) 15 C3d 351]. The existence of these conditions is usually a question of fact for the jury. “Where reasonable persons may differ as to the balance of probabilities, the court must leave the question to the jury.” [Blackwell v. Hurst (1996) 46].
Whether to pursue a claim and the manner in which a particular claim should be pursued with respect to settlement depends in substantial part on the value of the claim. “Value” is, to a large extent, a reflection of the damages incurred. Thus, every claim must be analyzed from the outset for its damages components; and for the “odds” on the extent of recoverable damages. The time when an accurate evaluation of damages can be made always varies with the nature of the case. However, usually a general evaluation can be made at the initial client interview, from claimant’s account of injuries sustained, review of medical expenses incurred to date, etc. Thereafter, the task is one of refining the evaluation through fact gathering and analysis of the applicable law. At the very least, a person who has suffered injury through the fault of another is entitled to “be made whole”—i.e., to be restored insofar as is possible to his or her pre-injury condition through a “compensatory” damages award. It would be best to seek personal assistance from a lawyer in order to guide you with your personal injury case.
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