Most individuals who hire lawyers to represent them in personal injury claims enter into contingency fee contracts with the lawyer. A contingency fee contract means that the lawyer agrees to represent the person and will be compensated by receiving a portion of any recovery. The lawyer is not paid as the case goes along. Generally, the lawyer advances any costs necessary to pursue the injury claim. The client pays nothing until there is a monetary recovery. If there is no monetary recovery to the client, the lawyer does not get paid. Generally, in that circumstance the lawyer also is not reimbursed the expenses he has advanced.
Contingency fee attorney representation contracts allow individuals with little or no money or assets to hire a lawyer, when otherwise they would not be able to do so. Without the ability of the individual to hire a lawyer on a contingency fee basis, the individual would not be able to hire a lawyer. Basically, lack of the finances would mean that the individual would be unable to pursue his claim for monetary damages.
Corporations and insurance companies have plenty of money to hire and pay lawyers on an hourly basis. They can pay the lawyer as he or she does the work - generally their lawyers are paid based on the number of hours that he or she works on the case.
A person severely injured due to an auto collision, unless they are independently wealthy, will be unable to pay a lawyer like a corporation or insurer does. The only way the injured person can hire a lawyer to pursue their injury claim is by hiring the lawyer on a contingency contract.
A benefit of this method of representation is that the lawyer for the injured person will evaluate the chances of success early on during the representation. A lawyer who is only going to be paid if a successful monetary recovery is made will not continue working on a case if the case will not result in a fee proportionate to the work involved in the case.
For example, in a traffic intersection collision case, the lawyer hired by the injured person will have a great incentive to confirm that his client was injured due to the fault of the other driver. If he finds out that his client was the one at fault, the lawyer working on a contingency fee contract will withdraw from the case. This incentive to only take meritorious cases is strong reason to allow lawyers to be retained via a contingency fee contract. (A lawyer paid based on the hours worked on the case, regardless of the outcome, would have the incentive to continue to work on the case.
In summary, contingency fee contracts allow those without financial means to hire lawyers to represent them in pursuit of compensation for damages incurred. Additionally, contingency fee contracts have the desirable incentive of having lawyers refrain from pursuing non-meritorious claims.
Friday, November 5, 2010
Thursday, October 28, 2010
Premise Liability - Slip and Fall - Part 3
If you are classified as a licensee - or social guest - the owner of the premises only owes you the duty to warn you of dangers that the premises owner already knows about. In other words, the premises owner does not owe you a duty to reasonably inspect the premises for dangers. The premises owner can close his eyes to danger and then not be liable if the danger unknown to him because he closed his eyes injures you.
If you are classified as a trespasser, the only duty the premises owner owes to you is not to intentionally injure you. As I said in an earlier post, trespasser in this case means all others except invitees and licensees.
In an earlier post, I explained that you can be an invitee on the store's sales floor but become a trespasser if you enter into a non-sales area.
For example, you are having your tires replaced. If you leave the sales area or the waiting area to get a closer look at the tires - to make sure they are putting on the ones that you bought - you have become a trespasser. And the only duty the store owes you is not to intentionally injure you. They can know that there is a hidden danger with which you will come into contact and become injured and yet they do not owe you even the duty to warn you.
Most people would not think of themselves as trespassers if they went to assure themselves that the proper tires were being installed. But the law would. And it makes a huge difference in the duty owed by the premises owner.
This completes my posts on premises liability. Call me or email me if you have any questions.
Rick
If you are classified as a trespasser, the only duty the premises owner owes to you is not to intentionally injure you. As I said in an earlier post, trespasser in this case means all others except invitees and licensees.
In an earlier post, I explained that you can be an invitee on the store's sales floor but become a trespasser if you enter into a non-sales area.
For example, you are having your tires replaced. If you leave the sales area or the waiting area to get a closer look at the tires - to make sure they are putting on the ones that you bought - you have become a trespasser. And the only duty the store owes you is not to intentionally injure you. They can know that there is a hidden danger with which you will come into contact and become injured and yet they do not owe you even the duty to warn you.
Most people would not think of themselves as trespassers if they went to assure themselves that the proper tires were being installed. But the law would. And it makes a huge difference in the duty owed by the premises owner.
This completes my posts on premises liability. Call me or email me if you have any questions.
Rick
Monday, October 25, 2010
Premises Liability - Slip and Fall - Part 2
Part 2.
Once you are categorized with regard to your relationship to the premises, the duty of the premises owner to you is known. Then you can attempt to prove your claim.
Today I am going to discuss the most likely premises claim - that of an invitee (business customer) injured while on the business premises.
You are shopping and slip and fall injuring your knee. You call a lawyer wondering if the store is responsible for your medical bills and lost wages.
If the lawyer knows what he or she is doing, the first question asked will be: What caused you to fall? This is because the burden is on the injured person to prove what premises defect caused them to fall.
If you know what caused you to fall, the second question should be: How did it get there? This is because it is the burden of the injured person to prove how premises defect was created or how long it had been on the floor.
Texas law requires the injured person to prove that there was an unreasonably dangerous condition and that the condition was known by the premises owner or that the premises owner should have known of the danger - generally this second method (should have known) is established by proving how long the premises defect had existed before your injury.
The next question from the lawyer should be: Was there any warning of the premises defect to you? This is because the burden is on the injured person to prove that the premises owner had not remedied or warned of the dangerous condition.
If you gave the proper answers, the question then becomes: Was it negligent for the premises owner to fail to remedy or warn of the dangerous condition?
And, if it was negligent: Was that negligence a proximate cause of the injuries to you?
As you can see, there are large burdens on the injured person and no burden on the premises owner - until there is a finding of negligence and proximate cause.
Once there is such a finding, the burden is on the premises owner to prove that you should have seen or avoided the dangerous condition. This is called contributory negligence and whatever part you played in contributing to your injuries will be deducted from any damages awarded.
So, if you can prove what caused your fall, that the store knew or should have known of the defect, that the store failed to warn you of the defect, that the store's failure to warn you or fix the defect was negligence and that such negligence was a proximate cause of your injuries, the store may owe you damages - unless your fault contributed more to your injuries than the store's fault.
This is the burden of proof on the invitee - the store's business customer. The burden of proof is even greater on licensees and trespassers.
I will discuss more in my next entry - Part 3.
Once you are categorized with regard to your relationship to the premises, the duty of the premises owner to you is known. Then you can attempt to prove your claim.
Today I am going to discuss the most likely premises claim - that of an invitee (business customer) injured while on the business premises.
You are shopping and slip and fall injuring your knee. You call a lawyer wondering if the store is responsible for your medical bills and lost wages.
If the lawyer knows what he or she is doing, the first question asked will be: What caused you to fall? This is because the burden is on the injured person to prove what premises defect caused them to fall.
If you know what caused you to fall, the second question should be: How did it get there? This is because it is the burden of the injured person to prove how premises defect was created or how long it had been on the floor.
Texas law requires the injured person to prove that there was an unreasonably dangerous condition and that the condition was known by the premises owner or that the premises owner should have known of the danger - generally this second method (should have known) is established by proving how long the premises defect had existed before your injury.
The next question from the lawyer should be: Was there any warning of the premises defect to you? This is because the burden is on the injured person to prove that the premises owner had not remedied or warned of the dangerous condition.
If you gave the proper answers, the question then becomes: Was it negligent for the premises owner to fail to remedy or warn of the dangerous condition?
And, if it was negligent: Was that negligence a proximate cause of the injuries to you?
As you can see, there are large burdens on the injured person and no burden on the premises owner - until there is a finding of negligence and proximate cause.
Once there is such a finding, the burden is on the premises owner to prove that you should have seen or avoided the dangerous condition. This is called contributory negligence and whatever part you played in contributing to your injuries will be deducted from any damages awarded.
So, if you can prove what caused your fall, that the store knew or should have known of the defect, that the store failed to warn you of the defect, that the store's failure to warn you or fix the defect was negligence and that such negligence was a proximate cause of your injuries, the store may owe you damages - unless your fault contributed more to your injuries than the store's fault.
This is the burden of proof on the invitee - the store's business customer. The burden of proof is even greater on licensees and trespassers.
I will discuss more in my next entry - Part 3.
Thursday, October 21, 2010
Slip and Fall and Premises Liability Claims - Part 1
I get calls every week from people who have fallen or otherwise been injured due to a premises defect. Generally, these cases are called slip & fall claims. This is because many times a person has fallen due to a slick substance on the floor.
Premises liability claims are difficult claims to successfully pursue in Texas. This is because of the heavy burden on the person injured.
In order to be compensated for their damages, the injured person has to jump through several hoops. First, Texas law puts each person into one of three categories: You are either an invitee, a licensee or a trespasser. These are legal terms and don't mean what a lay person might think they mean.
An invitee is generally thought of as a business customer. If you go into a department store to shop, you are an invitee. To be an invitee there has to be a mutual benefit between the premises owner and the person coming onto the premises.
A licensee is generally considered to be a social guest. The benefit flows only one way - to the person coming onto the premises, not to the premises owner.
A trespasser is everyone else. For purposes of premises liability, there does not have to be a sign saying "stay out" or "posted." If you are not considered an invitee or licensee, you are a trespasser.
And, you can be an invitee for some purposes and a trespasser for others. For example, you go into the department store to shop. When you are in the sales area you are an invitee. But, if you went into the stock room, you would most likely become a trespasser. (Unless an employee invited you into the off-limits area.)
How you are classified determines what care a premises owner owes to you. If you are an invitee, the premises owner can be held liable for your damages if he knows or should have known of a dangerous condition that ultimately injures you.
If you are a licensee, the premises owner only owes you a duty to warn you of dangers he knows about.
If you are a trespasser, the premises owner only owes you a duty not to cause you injury due to his intentional act.
Once the court has categorized the injured person, it can begin the process of determining if the premises owner is legally liable for the injuries. That process will be explained in Part 2.
Premises liability claims are difficult claims to successfully pursue in Texas. This is because of the heavy burden on the person injured.
In order to be compensated for their damages, the injured person has to jump through several hoops. First, Texas law puts each person into one of three categories: You are either an invitee, a licensee or a trespasser. These are legal terms and don't mean what a lay person might think they mean.
An invitee is generally thought of as a business customer. If you go into a department store to shop, you are an invitee. To be an invitee there has to be a mutual benefit between the premises owner and the person coming onto the premises.
A licensee is generally considered to be a social guest. The benefit flows only one way - to the person coming onto the premises, not to the premises owner.
A trespasser is everyone else. For purposes of premises liability, there does not have to be a sign saying "stay out" or "posted." If you are not considered an invitee or licensee, you are a trespasser.
And, you can be an invitee for some purposes and a trespasser for others. For example, you go into the department store to shop. When you are in the sales area you are an invitee. But, if you went into the stock room, you would most likely become a trespasser. (Unless an employee invited you into the off-limits area.)
How you are classified determines what care a premises owner owes to you. If you are an invitee, the premises owner can be held liable for your damages if he knows or should have known of a dangerous condition that ultimately injures you.
If you are a licensee, the premises owner only owes you a duty to warn you of dangers he knows about.
If you are a trespasser, the premises owner only owes you a duty not to cause you injury due to his intentional act.
Once the court has categorized the injured person, it can begin the process of determining if the premises owner is legally liable for the injuries. That process will be explained in Part 2.
Subscribe to:
Comments (Atom)