Re: I NEED A SHARP, AGRESSIVE INJURY LAWYER ...

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To: Law Student ...thanks

Wow !! I was very impressed while reading your post :)

Are you sure you are not an Attorney? instead of a Law Student?

What branch of Law are you taking?

Thanks for all of your information, very impressive and
informative

By agressive I meant to say, one that is just that, agressive,
professional, knowledgeable and doesn't know how to lose a
case...because he will do everything and almost anything
within the Law to win his case ...

I will contact www.calbar.org ...a.s.a.p. because I will
pursue further, even though my chances of even having a case
are very slim

If you ever have any questions about Real Estate Law, feel
free to ask me and I will help you too :) my e-mail is on my
first thread

Thanks I really appreciate your effort and time posting an
answer for me

Lisa :)

On 10/17/05, Student "Not an Attorney" wrote:
> Hi Lisa,
>
> You are right to be careful who you listen to on this
board.
> Many people here don't have a clue about the law, and they
> feel free to post here anyway. I doubt many people who post
> responses here are lawyers at all. I am not an lawyer
> either, but as a law student I would like to take the
> opportunity to analyze your problem, that is in no way
advise
> though, and should not be taken as such. You can do what
you
> want with the analysis, it is purely academic. As for
> finding a good personal injury lawyer I suggest you contact
> the California State Bar. www.calbar.org and get a referral
> there.
>
> Analysis of the problem presented here (the mountain your
> lawyer will have to climb to prove your case, if you have
> one):
>
> Negligence is defined as an act or omission to act which
> falls below the standard of reasonable care established by
> law.
>
> To establish a case of negligent the plaintiff must prove
> 1. There was a volitional act or omission to act
> 2. There was a duty of care owed by defendant
> 3. There was a breach of the duty to care owed by defendant
> 4. Actual Cause (cause in fact)
> 5. Proximate Cause (legal cause)
> 6. Damages
>
> In the facts you presented the Airline employee may have
> fallen into the category of omission to act (failure to act
> where an act as a reasonable person was required). How do
we
> establish that there is a failure to act? First we look at
> was there a duty required on the part of the Airline or
> someone else? This can be proven by statute or by custom.
> In other words one will have to look at the California
> Legislation (assuming this happened in California) for a
> statute that requires an Airline to secure overhead baggage
> compartments, or if the duty is owed by persons who store
> belongings in the overhead compartment. A statue could make
> it negligence per se (an inference of negligence) or merely
> evidence of negligence depending on how California treats
> this subject (again assuming this happened in California).
> Absent a statute it would need to be proven by custom that
> other Airlines ensure that overhead baggage storage
> compartments are secured by the Airline employee, or persons
> who store property in the storage compartment are the ones
> required to secure the overhead storage compartment. This
> would mean expert testimony would be required. It would need
> to be proven that a reasonable person owes a duty of care in
> this situation. Depending on what the Statute or Custom is
> in this situation will make the duty owed or not. Courts
> will also look at the duty owed to consider what is
the "zone
> of danger" or area where duty is owed to protect against
> foreseeable risk of harm to foreseeable persons within a
> certain area. This is the most common and accepted view in
> the courts known as the Cordozo view. In the facts
presented
> here there is foreseeable risk of harm to persons seated
> under an overhead baggage storage compartment from falling
> baggage or other items stored there, and persons seated
there
> has met a foreseeable plaintiff test. The facts presented
> here lend to a duty of care owed to protect persons from
risk
> of being harmed by falling baggage or other items stored
> overhead in an airplane, and a reasonable person could
> protect against this harm by securing the storage
> compartment. The question is who is the duty owed by the
> Airline or Persons who store belongings overhead?
>
> Next after establishing a duty of care owed it must be
> established that there was a breach of the duty owed. The
> breach would be established by looking at the benefit vs.
the
> utility of securing or not securing the overhead
> compartment. Since there is very little cost in ensuring
the
> overhead compartment is secured vs. the risk of harm that
> could be caused by items falling out of the overhead
> compartment, so a reasonable person would have secured the
> overhead compartment, and since this duty of care was owed
> and there was a failure to do so there has been breach
> established. The question still remains who owes the duty
of
> care the Airline or the person who stored the item overhead.
>
> Next after establishing a duty and a breach of duty there
> must be a showing that the injury or harm is a result of the
> falling item from the overhead compartment. It is the
burden
> of the plaintiff to show that his/her injury is a direct
> result of the act or failure to act where required. The
> plaintiff must prove that headaches and shoulder pain is a
> result of this incident. Also the courts will look at the
> Cordozo view here again, and the plaintiff must have been in
> the "zone of danger" in this case it is apparent that is
> true. The plaintiff must establish that but for the
overhead
> compartment was not secured the plaintiff would not have
> suffered injury. At this point another doctrine of law may
> be considered which is "res ispsa loquitur" (the thing
speaks
> for itself). With this doctrine there are three things to
> consider i)this type of incident does not ordinarily occur
> absent negligence ii)the defendant had exclusive control of
> the injury causing instrument iii)physical injury must be
> present. The facts here do not support this doctrine and
> therefore the burden of showing all the elements of
> negligence will be taken by the plaintiff here. This is
> because the defendant did not have exclusive control of the
> instrument that caused the injury (the unsecured overhead
> baggage compartment). The fact is other persons have free
> access to the compartment, and it cannot be exclusively
> attributed to the Airline or Any Person who stores
belongings
> there.
>
> Next there must be a showing of proximate cause (legal
> cause). The issue here is generally foreseeability. Was
> risk of harm foreseeable, the results foreseeable, and a
> foreseeable plaintiff. Results are almost always
> foreseeable. Intervening causes will be considered here as
> well. In other words was another thing was introduced that
> attributes to the results. Defendants are liable for
> foreseeable intervening causes such as medical malpractice,
> subsequent disease, negligent rescue etc. And a defendant
> takes his victim as they find them. In other words if you
> had a condition that was present before the incident that
was
> worsened or only came into the light because of the
incident,
> such as a tendency to have migraine headaches that was not
> known but became aggravated because of the incident the
> defendant will be liable for the results. Defendants are
not
> generally liable for bizarre results though. In this case
> harm because of a falling object from an overhead storage
> compartment in an airplane is not bizarre. It is
> foreseeable, the results are foreseeable, and the plaintiff
> is foreseeable so proximate cause has been established in
> this fact pattern to either the Airline or the person who
> stored equipment in the overhead compartment (depending on
> who actually has the duty owed).
>
> Finally there must be damages. These damages are past and
> future medical bills, past and future pain and suffering,
> past and future loss of wages or income. There is no
> punitive damages unless the conduct of the defendant was
> gross negligence, wanton or reckless in nature, which it is
> not here. Add those damages up and there is a potential for
> a case of negligence. Keep in mind that attorney fees,
> expert witness fees and court costs are not recoverable, and
> plaintiffs must bear those costs. Damages are not offset to
> the defendant by collateral sources (insurance or other
> benefits conferred on the plaintiff).
>
> Lest we forget the defenses of the defendant.
>
> 1. Contributory Negligence in Contributory Negligence
> Jurisdictions (no recovery if plaintiff even 1&37; at fault)
> 2. Comparative Negligence in Comparative Negligence
> Jurisdictions (recovery sometimes limited to defendants
fault)
> 3. Assumption of risk.
>
> These are the defenses that the defendant will raise, not to
> mention the risk/utility factor as mentioned above.
>
> Now, the question is did you assume a risk by sitting in the
> seat below an overhead storage compartment? First of all
you
> have to know and appreciate the risk or should have
> reasonably known about a risk in order to assume one, and
> chose to encounter the risk voluntarily. And as a plaintiff
> you have a duty to mitigate damages as well. This is the
> defense that will be asserted in your case along with
> comparative or contributory negligence whatever applies. I
> don't think this defense fails here, because it is very
> common practice for people who sit down in an airplane to
> check the overhead compartment above them to make sure it is
> safe. I would not doubt that there are warnings posted all
> over the place in the plane as well. Therefore, your case
no
> matter how greatly it was presented will likely be either
> dismissed or reduced to a point that it provides very little
> of a worthy legal argument if any. The only rebuttal you
have
> is the "last clear chance" doctrine which basically means
> that defendant had the last clear chance to protect against
> the risk of harm, and the plaintiff did not. But, I doubt
> that would be the issue here since either you the Airline or
> the Person who stored the belongings depending on who has
the
> duty could have prevented the risk.
>
> Then weigh whether the case should go forward or not. So
for
> example if plaintiff had past medical bills and medicine of
> $1,500, future medical bills of $1,500, lost wages for 7
days
> $1,000 future lost wages of 7 days for future medical visits
> $1,000, past pain and suffering of $500 and future pain and
> suffering of $500 totaling $6,000, and attorney will cost
> $2,400 (40&37;) expert testimony will cost $2,600 and court
> costs will be $1,500 then all the plaintiff will be left
> paying $500 out of pocket to even bring a case up it would
> not be worth the effort. These numbers are completely
> produced out of the air, and do not represent what this case
> would cost. It is only here for example of what must be
> considered.
>
> Another thing to consider is that you would be treated as an
> invitee in this situation since the airplane is a business
> purpose vessel and you most certainly paid for the airfare.
> As an invitee the owner of the chattel (airplane in this
> case) has a duty to inspect for dangerous instruments, and a
> duty to warn or make safe. I would be assuming here, but I
> assume that airplanes warn against falling objects from the
> overhead compartment, and the risks involved. The airline
> has met their duty in this case if they did provide warnings
> and inspections, and the first issue of duty has been
striken
> from the negligence in the first place and without a breach
> of duty there is no case. What you are trying to assert is
> that the airline has a duty not only to inspect and warn but
> to make safe, which it is an either or situation not both
> (warn or make safe). Now, on the other hand if there is no
> warning then they must make safe. Go back to the airplane
> and check for a warning, or somewhere a warning documented.
> I bet you will find one.
>
> Bottom line based on the facts I have analyzed you don't
have
> a case for negligence like OO pointed out. Unless you can
> prove that the device that secures the compartment was
faulty
> (highly unlikely you could prove that, since you presented
> facts that suggest it was a failure to secure the
compartment
> that caused the injury in the first place) But, feel free to
> discuss it with an attorney from referral of the State Bar
> (www.calbar.org) By aggressive do you mean that you expect
> allot of money from this because you plan to sue the big
> airline company? Don't expect too much, you will be limited
> to your damages if you even have a case, which I doubt you
do.
>
> On 10/15/05, Lisa wrote:
>> About 10 months ago I was injured inside an airplane,
>> coming back from Vegas to 0ntario California
>>
>> I was already seating and the plane was about to take off
>> when suddenly a piece of luggage landed on my head and
>> into my right shoulder, I don't know I may have a fracture
>> on my sculp, because I been having tremendous very painful
>> migrane headaches and I can't sleep and also can't sleep
>> on my right side because of the terrible pain on my right
>> shoulder due the injury
>>
>> Yes I did brought it to the attention to one of the flight
>> attendants when it happened and all he said was: it's not
>> the Airline's fault but the passengers negligence to lock
>> the locker after he put his luggage inside, and he went on
>> and brought me 2 aspirins and a can of soda for the pain
>>
>> Well I know for a fact that flight attendants have to
>> check that each locker is been locked, before the planes
>> take off, obviously this particular locker was open
>>
>> I know the Statue of Limitations is 2 years in this State
>>
>> Are there any sharp, agressive Lawyers that want to take
>> my case? or can you recomend one? I am in Riverside County
>> in California, please e-mail me at: luvtostudy@yahoo.com
>>
>> Thanks
>>
>> Lisa :)