Recent Posts in Pedestrian injuries Category

The most common places for people to get needlessly injured are apartment complexes, grocery stores, hospitals and parking lots.

PREMISES LIABILITY STATUTE

The law in Colorado is exactly the same for all of these circumstances.

C.R.S. § 13-21-115 requires that you prove that a landowner either knew or reasonably should have known of a dangerous condition or activity existing on the premises and failed to correct it, thus resulting in a needless injury.  This requirement exists when a person is on a property for business-related purposes which benefit either the landowner or the occupant.

JURORS’ ROLE

Despite what the legislature wrote in the Colorado Premises Liability Act, it is Colorado juries that listen to these cases and make decisions on the worthiness and value of injury claims.

For example, even though we all know how dangerous and preventable injuries from ice on a sidewalk can be, rarely have Colorado juries awarded recovery to people claiming injuries from winter outdoor slip and falls, regardless of the circumstances. However, jurors are generally more sympathetic when the premise is devoted to elderly or sick who are more susceptible to greater injury.

For example, a hospital that fails to recognize patients who should be considered falling risks tends to be more warmly received by Colorado jurors than grocery store spills that often look suspect to jurors. Furthermore, a slip and fall of a resident at an apartment complex devoted to senior citizens tends to have more jury appeal than a similar occurrence at a regular apartment complex. The idea in these type of cases is that the complex should have been more on notice and has a higher degree of perceived responsibility.

Historically, jurors tend to be more sympathetic to injuries caused by objects that fall from above onto people than injuries sustained based on a patron’s slipping and falling. On the other extreme, almost no injury that occurs after a person has consumed alcohol, such as a slip and fall at a bar or a rough encounter with a bar-bouncer, has any jury appeal.

WHY THESE CASES CAN SETTLE

Cases settle when insurance companies view that their failure to settle a case will result in a jury of Colorado citizens awarding substantial money. Considering a jury’s likely reaction to a particular set of circumstances is often a game played on both sides of these cases.

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The above examples serve as the general rule about cases involving premises liability and the level of jury appeal. Please note, however, that every injury case is different and the facts, including the degree of injury, must be considered in each case by a trained legal professional.

At ANDERSON, HEMMAT & LEVINE, we will take the time to consider your case on an individual basis and help you understand the merits and issues associated with it.  Please call us today to discuss your claim.

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There are certain general “rules of thumb” in injury cases that lawyers use to quickly determine whether a case has merit or not.  Most attorneys use these “rules” whether they recognize it or not.  If you have had the experience of a lawyer losing focus when he should be listening to how you were injured, rest assured that he probably heard a bad fact which caused him to determine that your case fits a certain profile.

While these “rules” generally apply, we recognize that the individual facts of each case can turn what would normally be a bad case into a good case.  Our attorneys at ANDERSON HEMMAT & LEVINE will listen to the facts of your case before making any premature determination about the merits of your case.  We recognize that every case, just like every person, is different.  We also recognize that in trial, the subtle differences of each case can make a world of difference in the ultimate outcome.

As a public service, we present this blog as part of a multiple week series of blogs:  “Calculus of Personal Injury from A to Z.”  We hope this will help you better understand a lawyer’s thinking process.  Consider this article another example of ANDERSON HEMMAT & LEVINE giving away the trade secrets. We are certain that some of these viewpoints will surprise you.  For this week, we will present the first three “rules of thumb.” 

A)     AUTO/PEDESTRIAN INJURIES= generally bad cases

This is usually a big shock to people who grow up believing that “pedestrians ALWAYS have the right of way.”  Forget what you learned in Drivers Ed., pedestrians usually don’t have the right of way.

That being said, we have been very successful in representing hundreds of pedestrians involved in these accidents.  Surprisingly though, most drivers who hit pedestrians do not get ticketed.  Often it is the pedestrian who gets the ticket.  While pedestrians are supposed to have the right of way in the crosswalk, an injured pedestrian is often out of the crosswalk (or at least they are after the vehicle popped them fifty feet down the road).  Also, while the pedestrian is often not able to tell their story at the scene and usually is rushed to the hospital, the negligent driver usually has the advantage of talking to the investgating police officer for a half hour or more. It’s not too difficult to imagine how an investigation can stray from whatreally happened when the cop only hears one side of the story.

So, if you’re wondering why lawyers you are calling aren’t too “gung-ho” about your case, this is probably why.  However, don’t give up!  Just continue calling law firms until you find someone willing to listen attentively to your story.

B)     HIT AND RUN/ Never Found Driver = ok case

Surprised?  These cases are brought against our own client’s uninsured motorist coverage. They usually are decent cases, but the insurance company will often call into question the curious nature of the accident, or even if an accident occurred at all because, after all, the other driver is gone. Often, it is this uncertainty that results in the insurance company low-balling offers of settlement. But don’t let the insurance company do that to you!

C)      HIT-AND-RUN/ Police Find Driver = exceptionally great case

These cases are great! They allow us to sue the actual hit-and-run driver. There is never a good explanation for leaving the scene of an accident, so usually this allows us to add punitive damages into the mix and often involves multiple insurance policies.  There is often a lot of leg work involved with these cases, but a good attorney should be more than willing to go the extra mile.

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At ANDERSON HEMMAT & LEVINE, we believe that each case deserves individual attention and evaluation.  If other attorneys are telling you that they just don’t have room for your case right now, what they are really telling you is they didn’t listen to your case and don’t want it.  We will listen and take the time to explore the merits of your case to give you an honest evaluation.  Call us today to speak with one of our attorneys.

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The biggest challenge in an auto/pedestrian case is almost always finding sufficient money for the extraordinary injuries that generally occur in addition to the mounting need for future medical care. This article is devoted to assisting anyone lending a hand to injured pedestrians or their families who are trying to put the pieces back together after one of these horrible accidents.

1) Medical Coverage:

Ambulance, hospital, rehabilitation departments, and extended care facilities are all within the realm of the type of necessary care required by pedestrians injured by motor vehicles. These are truly some of the worst imaginable injury claims involving brain injuries, spinal cord injury, and invariably broken bones. So, almost always the first task in helping these victims is to secure a payer source for the needed medical care.

A) MedPay Coverage:

What is often overlooked in these cases is MedPay coverage.

Pedestrians generally have, automatically, on their own personal vehicle a coverage known as MedPay.  Interestingly enough, the vehicle with this coverage on it does not have to actually be involved in the collision. The coverage follows the insured person whether in or out of their own vehicle.

MedPay can range from $1,000 in coverage up to $25,000 or more. MedPay will pay or reimburse any reasonable medical expense caused by a motor vehicle collision.

B) Health Insurance:

Health insurance is also a reasonable payer source for auto/pedestrian related injuries.

However, there are health insurance companies that suggest to their group member that auto related injuries are not covered. In actuality, that is never truly the case. You need to be persistent and proactive when dealing with large health insurance companies. But, ultimately your persistence should payoff. These companies must and will pay for your medical treatment.

C) Workers' Compensation:

Workers' Compensation coverage is yet another possible source for medical coverage.

If, for example, the pedestrian was injured while running an errand for his employer, Workers' Compensation could be exclusively the appropriate medical coverage provider. This is a separate topic on its own. However, Workers' Compensation can be complicated and immediate notice to the employer is essential. You will want to get legal help to make sure this gets done correctly.

D) Subrogation?:

One last thing to consider about medical coverage in these auto/pedestrian situations is what has to be paid back.

Worker's Compensation and health insurance will generally need to be paid back from any ultimate recovery received from the at-fault motorist. This is called their right to subrogation. MedPay, however, does not have to be paid back.

Additionally, depending on the severity of the injuries and the extent to which health insurance or workers compensation participated in efforts to obtain their own recovery from the at-fault motorist's insurance, there may be limits to the extent that these insurance sources get paid back.

Attorneys working in this area of the law are quite knowledgeable about these issues and should be consulted early in the process for maximum effectiveness.

2) Injury Recovery:

Again, my first consideration in these auto/pedestrian recoveries is generally that after a person gets hit by a car, there are often huge future medical needs that have to be factored into any ultimate recovery.

Simply focusing on the auto insurance of the at-fault party is not only overly simplistic, but, generally insufficient to fully compensate these very injured people. This is a profession that requires creative thinkers.  Consideration has to be given to issues such as the stacking of policies, the possibility of pursuing larger commercial insurance policies, and making claims with the pedestrians own uninsured/underinsured motorist coverage.

A) Stacking Policies

The driver who caused this type of accident will potentially have many different insurance policies that a good lawyer will insist be "stacked" to create appropriate levels of compensation.

For example, if the driver has his own car, that is one source of insurance coverage. If the driver lives with a sister, a grandparent, a mother, or even a cousin and that relative has his or her own insurance coverage on a vehicle, that is a second source of benefits which may be stacked on top of the first policy. The possibilities can seem endless.

Again, this is a very fact specific analysis. A quality attorney who regularly practices this sort of law should be consulted to make sure nothing is missed when it comes to possible stacking of coverage limits.

B) Commercial Coverage

Often, what might appear to be a small coverage policy may in reality be a large commercial policy.

Without demanding that the insurance company produce the certified copy of the declaration page of coverage, you may never know the full policy limits and an injury victim could be left with substantially less than what is available. On other occasions there might only be a single small policy of coverage on the car itself that caused the crash. However, the at-fault driver could be running an errand for his employer. That would be a potential commercial policy.

Appropriate investigation is a key to a proper case evaluation.

C) Uninsured/Underinsured Motorist Coverage

This is another often overlooked coverage in auto/pedestrian accidents.

Basically, the law says that coverage on the pedestrian's vehicle (even though it was not involved in the crash) will generally have available benefits which are called uninsured/underinsured motorist coverage. Similar to MedPay, this coverage follows the insured rather than the vehicle. 

This coverage needs to be coordinated with other settlements and if done incorrectly can result in the injury victim losing his right to make a claim for these benefits. Also, remember that these benefits might be able to be stacked and that again can be a complicated part of the case that requires legal consultation to make sure it is properly undertaken.

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Auto/pedestrian accidents require a unique understanding of the complicated nature of liability issues in combination with extraordinarily large injuries associated with these type of claims. There is no shallow end to this sort of legal representation. Only experienced injury attorneys should be attempting to help in these very complicated and tragic cases. 

At Anderson, Hemmat, and Levine we will meet with you for free and discuss how these issues specifically impact your claim.  We are confident that by utilizing our wealth of experience and knowledge we will be able to help you recover to the fullest extent possible.

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There are at least two regularly repeated phrases which are quoted as law, but actually are not the law  anywhere.

The first is “possession is nine-tenths of the law.” There is nothing in any statute or ordinance anywhere in our country where this is a legal standard. I am continuing to research this misstatement of the law, and will report my findings as to its origin in a future blog. 

Another misstatement of the law is “pedestrians ALWAYS have the right-of-way.” This is absolutely not the correct statement of the law, not in Colorado, or anywhere else for that matter.  In fact, most of the auto/pedestrian cases our firm has taken required a substantial amount of investigation and attention in order make them winners. First, a pedestrian outside a crosswalk, never has the right-of-way. Pedestrians inside a crosswalk would have the right-of-way, but only if they properly entered the crosswalk legally on a “walk” signal. Most of the time those facts are difficult to prove. Vehicles hitting pedestrians tend to knock the pedestrian out of the crosswalk, and eye witness accounts of whether the  ”walk” or “don’t walk” signal was illuminated are often either contradictory or nonexistent.

A victim of an auto/pedestrian accident should not assume that their old divorce attorney could handle this case. These cases are difficult, they require substantial investigation, and trial know-how. Additionally, EARLY investigation is key.

At Anderson, Hemmat & Levine, we are happy to talk to you about your case and will always provide a free consultation. These cases can be hard, but when they are properly handled by a trained professional, injury victims can achieve justice.

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