San Diego Injury Law Blog

San Marcos resident and San Diego Police Officer Bruce Byrd was injured this morning while traveling to work. At approximately 6:00 a.m. Byrd, riding his motorcycle, entered the intersection of Borden and Palo Alto when a woman driving a 2000 Honda Civic turned left directly into Byrd's path of travel. Byrd was thrown from his bike and is reported to have suffered a dislocated hip, broken leg, hand injury, and a cut to his head.

According to reports, the driver of the vehicle, was not seriously injured, and was devastated by the accident. Witnesses say that driver Cynthia Kusimoto was leaving her boyfriend's home when the accident occurred, and that she told officer's at the scene that she didn't see Byrd's motorcycle.

Notably, Kusimoto was cited at the scene for not having proof of automobile insurance. That may be a clue as to whether she had liability insurance at all. Based on the news reports, Byrd would have a strong personal injury case against Kusimoto, assuming she has the insurance or the assets to pay. If not, Byrd may have maintained underinsured motorist coverage that would kick in in the event Kusimoto was uninsured or underinsured. It is also possible that Byrd would be entitled to benefits under a worker's compensation policy, though such policies usually don't cover individuals who are injured traveling to or from work.

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The most frequently asked question we get as personal injury lawyers is, what are my pain and suffering damages worth? There is never an easy answer to that question, because it depends on so many different factors. To determine what they’re worth, it’s helpful to first discuss what pain and suffering damages are.

First, they’re not really called “pain and suffering damages.” Many lawyers refer to them as general damages, or non-economic damages, because they tend to refer to those damages above and beyond things like medical bills and lost income. Generally speaking, damages for “pain and suffering” are designed to compensate the personal injury victim for all physical, mental, and emotional suffering and/or distress that arises from an incident causing bodily injury. These are the damages that compensate for the “impact” the injury has had on a person’s life.

While there is no legal definition for “pain,” it is generally described as the nerve impulses sent to the brain to express some form of distress. How the pain is compensated usually depends on the nature, extent, and duration of the pain, and the injured party’s ability to characterize the pain. Medical records, and sometimes the testimony of a doctor, are frequently used to support an injured person’s claims of pain, and it is always helpful to have objective medical data to support claims of pain.

The actual “suffering” is usually described as the mental component associated with the pain, although not always. In addition to the obvious emotional component associated with actual pain, suffering is also characterized as shock, anxiety, worry, embarrassment, disfigurement, grief, fear, and the loss of enjoyment of life.

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It was announced yesterday by the U.S. Consumer Product Safety Commission that a voluntary recall of Pogo Sticks made by Bravo Sports of Santa Fe Springs, California. According to the recall alert, the bottom of the pogo stick frame is prone to breaking apart; causing the pin that holds the bouncing spring to break off. When this happens, the pogo becomes a hazardous fall risk, and the spring a laceration hazard. Consumers should stop using the pogo sticks until it is confirmed that it is not involved in the recall.

Apparently Bravo Sports has received over 100 reports of breaking incidents involving the pogo sticks, nine of which apparently caused injury. One of the reported cases involved the facial laceration of a child, and two others who suffered facial injuries.

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California has onerous medical and nursing home malpractice awards. As we've discussed, under no circumstances can an award for non-economic damages (e.g., pain, suffering, disfigurement, etc.) be more than $250,000.00. If a jury, in its judgment, believes a person’s damages are worth more than the cap, a judge must reduce it. There are many, many examples of the injustice this misguided law has caused. By the way, the $250,000.00 figure was arbitrarily set in the early 1970s.

Since that time, there is the perennial battle of those for a free civil justice system and those for "tort reform," who seek to limit what victims of malpractice can recover. Usually, these battles are waged on political partisan lines, and not without irony. The Democrats, often portrayed as big government advocates, argue for less regulation over the civil justice system, and Republicans, argue for more regulation.

Andrew Cochran from a blog called 7th Amendment Advocate makes an effective argument as to why conservatives should oppose tort reform. According to his bio, Mr. Cochran is a lifetime conservative and Republican who served as a political appointee in the Reagan Administration. He is also a lawyer, and a member of the Tea Party Nation and Tea Party Patriots. He believes that conservatives and Republicans should oppose tort reform efforts.

Citing the U.S. Constitution as his authority, Mr. Cochran makes several points as to why tort reform is not a conservative position:

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A 41-year-old Temecula woman is charged with second-degree murder after causing an auto accident that killed her 9-year-old daughter. According to reports, the woman, Karen Faye Honeycutt, may have consumed a dozen beers before getting behind the wheel of her SUV and speeding down the Vail Ranch Parkway in Temecula before losing control and striking a concrete light pole. Two other children in the car were also injured.

This is a devastating tragedy for the family. Honeycutt's 16-year-old son came upon the scene while walking home from school to learn that his mother and sister had been involved the fatal accident.

News reports state that toxicology tests show that Honeycutt's blood alcohol level was at.22 percent, over nearly three-times the legal limit. She also had signs of marijuana use in her blood.

Tragically, Honeycutt had a history of driving under the influence. She had at least to prior infractions, and apparently had her driver's license suspended from 1994 thru 2009.

Source: The Press Enterprise

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A two-year old lawsuit against the City of Carlsbad by a man who suffered brain injuries after a motorcycle accident on La Costa Avenue has settled his case for $2.9 million. In the lawsuit, plaintiff Frank Gaetani contended that conditions along La Costa Ave. were unreasonably dangerous, that the City of Carlsbad knew about, but failed to do anything about it. Carlsbad denied the allegations, stating that it could find no similar accidents like the one Gaetani suffered in the history of the road.

The accident was a serious one. Gaetani was riding his motorcycle near the 2700 block of La Costa Ave. near Calle Madero when he colloded with a large SUV being driven by a homeowner trying to exit her driveway. Gaetani suffered serious injuries, including permanent brain damage.

La Costa Avenue has been the subject of a long dispute between residents of the busy road and the City of Carlsbad. Residents have been lobbying for years to reduce the speed limit along the road, and Carlsbad has made some efforts to make the road safer. Because of development east of La Costa, the road has become a highly used artery for people trying to get to I-5.

Carlsbad says there will be several changes in the coming years to make the road even safer.

Source: North County Times

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