Accidents Involving Drivers under the Influence of Alcohol or Drugs

John D. Winer, San Francisco

The Impairment Factor

Although the statistics are somewhat improving, a horrendous amount of carnage in terms of the innocent loss of life and serious injury is caused by drunk drivers.

In civil cases, when someone is suing as a result of the death of a loved one or a serious injury to themselves caused by a driver under the influence of alcohol or drugs, the key factor is establishing that the driver who is being sued was indeed “under the influence” to such a point that their judgment, and thus their ability to drive, was significantly impaired.

Drunk driving and drugged driving cases treated similarly under the law

Although this section is entitled “drunk driving accidents,” the same factors apply if a plaintiff can establish that the defendant driver was under the influence of prescription or street drugs that significantly impaired the driver’s judgment.

iii. Alcohol impairment more within common knowledge of jurors.

One of the differences between a case involving alcohol versus a case involving drugs is that the impairment that comes from alcohol is more within the common knowledge of jurors if the case goes to trial while the impairment from drugs is less known and will require more sophisticated expert testimony.

iv. Jurors’ awareness that driving under the influence of drugs or even taking street drugs is a crime.

Another important factor is that in cases involving alcohol and street drugs, there is a criminal factor involved that, although not determinative of the result in a civil case, will come into evidence or will be part of the jurors’ common knowledge. That is, in the case of alcohol, whether or not the Vehicle Code section which states that it is “unlawful” to drive with a blood alcohol level of over .08 comes into evidence, it is inconceivable that at least some of the jurors, if not all, will know of that standard and will know that the defendant driver violated the law. Also, in the case of street drugs, although the jurors may not be able on their own to assess the impairment of a driver under the influence of street drugs, they know that the very taking of those drugs is illegal and this knowledge in and of itself is likely to affect the outcome of a case.

v. Prescription drug cases generally.

A case involving a defendant driver who was driving under the influence of prescription drugs generally will not have the same effect on jurors, all of whom, probably at one time or another have driven under the influence of a prescription drug with some type of warning on the bottle that said to “be cautious around heavy machinery.”

In prescription drug cases, the jurors will probably not automatically assume the worst about the driver’s misconduct as they will in the alcohol and street drug cases. However, it should also be obvious that someone could be far more impaired driving after an injection of an opiate such as Demerol or morphine or driving after taking a large amount of a benzodiazepine such as Valium, Ativan or Xanax than they would be driving under a moderate amount of liquor or even street drugs.

Key factors in proving impairment in prescription drug cases

  • severely erratic behavior of the driver at the time of the accident.
  • expert testimony on the manner in which the particular drug or combination of drugs effects the brain and causes impairment (see Expert Witness section below).
  • whether or not the driver was following doctor’s orders in terms of the amount of the drug ingested (although this evidence may be difficult to obtain because of the doctor/patient privilege).
  • whether or not the driver followed doctor’s orders in terms of a clear directive not to drive while taking the medication (again, this evidence may be difficult to obtain because of the physician/patient relationship).
  • warning labels that came with or on the prescription bottle.

For simplicity, the remainder of this section of this web site will focus on drunk driving cases, although the same basic principles apply for driving under the influence of drug cases. Where there are special differences regarding drugs versus alcohol, those issues will be dealt with in the appropriate sections below.

Who Can Sue in a Drunk Driving Accident Case?

i. Adults.

Any person who is injured by the negligence of a drunk driver or close family survivors of someone killed by a drunk driver can bring a lawsuit against the drunk driver. This includes any of the following categories of people injured in collisions involving a drunk driver:

  • driver of another vehicle.
  • passengers in another vehicle.
  • passengers in the drunk driver’s own vehicle.
  • pedestrians.
  • close relatives who were at the scene of the collision when it occurred and were aware that the collision caused their close relative an injury and as a result, this “witness” suffered severe emotional distress (see below). The physical injury can be to bicyclists, motorcyclists, skateboarders and “scooterists” and people driving or riding as a passenger in golf carts.

The spouse of the injured plaintiff can also bring a lawsuit for loss of consortium damages; that is, damages for the loss of society, comfort and care of the injured plaintiff. See the section on Damages in this article.

ii. Minors.

Minors, although technically not entitled to bring a case against a drunk driver by themselves, can bring the case through a parent or guardian and they are entitled to the same rights as all other victims.

iii. Household members who are passengers.

It should be noted that although passengers in the drunk driver’s vehicle are entitled to sue the drunk driver, if they are members of the drunk driver’s household, they may be subject to exclusions in the family’s insurance policy; thus, their recovery of damages would have to come from the drunk driver directly and not his or her insurance company.

iv. Injury requirement: can be physical or psychological.

A person cannot sue a drunk driver for anything other than property damage unless they have been “injured” by the drunk driver’s negligence. The injury can be physical or psychological; however, in the case of strictly psychological injuries, there must be some relationship between the driver’s misconduct and driving drunk and the plaintiff’s psychological injury. In other words, even in a collision with the plaintiff or the plaintiff’s vehicle or real threat to the plaintiff such as almost running him or her down in a crosswalk, plaintiff still must prove that the drunk driver “caused” the psychological injury.

Also, a drunk driver is responsible to the survivors if he or she kills someone while negligently driving under the influence. There are special laws as to who can sue in a wrongful death case in California but, generally speaking, someone has to be a close family member. An attorney will be able to sort out who amongst family members has the right to sue.

Bystander cases against drunk drivers:

Another way in which a plaintiff with purely emotional distress damages can recover from a drunk driver (or any negligent defendant) is a situation in which:

  • the plaintiff was “closely related” to the injured or killed victim.
  • plaintiff was present at the scene of the injury-producing event when it occurred and was then aware that the event caused the victim injury or death.
  • as a result, plaintiff suffered “serious” emotional distress.

vi. Someone who has been drinking may still be able to bring a lawsuit for their own injuries.

It should be noted that just because a driver is drunk does not necessarily mean that they are 100% responsible for the accident. In cases in which a person is under the influence of alcohol and was injured in the accident due to the negligence of another, they can still bring a lawsuit against the responsible parties for their own injuries.

For instance, it is not inconceivable that a person driving with a few drinks, can be obeying the law, driving through a green light at a safe speed when another vehicle runs the red light and smashes into the drunk driver’s car. Under those circumstances, the drunk driver is entitled to sue the responsible party.

However, unless the drunk driver’s attorney can convince a judge that the drinking had absolutely nothing to do with the accident, a jury will learn of the fact that the plaintiff was driving drunk and will certainly take that into consideration when assessing the comparative liability of the drunk driver and defendant and damages, if they choose to award any damages to the plaintiff.

vii. Someone who has been convicted of drunk driving in an accident cannot sue for pain, suffering and emotional distress damages.

Further, a plaintiff who has been convicted as being under the influence in a criminal case is not entitled to recover any money for general damages, i.e., damages for pain, suffering and emotional distress arising out of the same accident.

Who Can Be Sued in an Accident Involving a Drunk Driver?

  • The driver
    • Obviously, the drunk driver himself/herself can always be sued if the drunk driver was a negligent and at least partly responsible for the plaintiff’s injuries.
  • An employer
    • Further, if a drunk driver is driving within the course and scope of their employment at the time of the accident, the employer will probably be found liable for any injuries or death caused by the drunk driver’s negligence.
  • An employer or entity who “entrusts” a vehicle to a person who is known to be under the influence and impaired, can be personally negligent and found responsible for injuries or death caused by the drunk driver’s negligence.
  • ¬†Someone who has “entrusted” a vehicle to a drunk driver.
    • Any person or entity who “entrusts” a vehicle to a person whom they know at the time is under the influence of alcohol and thus unfit to drive, will be found directly negligent and responsible for any collision in which the drunk driver is involved, whether or not (under some circumstances) the drunk driver was at fault for the accident.
    • In some situations, a person or entity with knowledge that the person they are entrusting a vehicle to is likely to drive it under the influence may be responsible for injuries from an accident involving the drunk driver even if the driver was not under the influence at the time of the entrustment.
  • Rental car companies- In the case of rental car companies, the law will only hold them responsible if they had actual knowledge that the defendant was unfit to drive at the time they rented the vehicle to the driver.
  • Someone who offers “substantial encouragement” to a drunk driver- A person who offers “substantial encouragement” to a drunk driver may be found liable to the plaintiff if the plaintiff can establish “concerted action” between the person offering encouragement and the drunk driver. This would be essentially a conspiracy theory.
  • Liquor stores and bars almost totally immune from liability in drunk driving cases.

No liability generally for liquor stores and bars

Unfortunately, since 1979, under almost all circumstances, a seller or furnisher of alcohol, i.e., a liquor store (or any store that sells liquor) and a bar (or any facility that sells alcoholic drinks) cannot be found civilly liable to any person for injuries resulting from intoxication of its customers.

Put simply, except in very exceptional circumstances described below, anybody who sells bottled alcohol or alcoholic drinks cannot be sued by the victim of a drunk driver (who became intoxicated as a result of the establishment selling or serving alcohol which led to the intoxication of the driver who injures the plaintiff).

b. No liability even for gross negligence.

This immunity provided to sellers and furnishers of alcoholic beverages applies in even the most gross and outrageous circumstances such as when a bar owner or employee serves a customer ten, 20 or whatever number of drinks, already knowing that the customer is severely impaired by his or her speech or actions and knowing that the customer is going to immediately get into a car and drive and has injured or killed people in the past driving drunk.

c. Negligent entrustment of vehicle exception.

The only way that the bar owner may be held liable in the case of an accident caused by a drunk adult is if the bar owner negligently entrusted the vehicle to an obviously intoxicated driver — but note, the liability is based on the “entrustment” and not allowing the customer to get drunk and drive.

d. “Obviously intoxicated minor” exception.

The only other exception to the general immunity provided to the sellers and furnishers of liquor is that a cause of action may be brought against a liquor licensee who sells, furnishes or gives any alcoholic beverages to an “obviously intoxicated minor” when the act is the proximate cause of injury or death sustained by any person.

This exception to the general immunity applies not only to business that sell alcohol to an obviously intoxicated minor but also “any other person” who sells alcohol to an obviously intoxicated minor.

However, the person or business who sells alcohol to an obviously intoxicated minor will not be held responsible if the minor, in turn, sells or gives the alcohol to another minor who then injures another person in a drunk driving accident.

vii. Social hosts.

“Social hosts” who furnish alcohol to guests at parties are also immune from any liability if one of those guests gets drunk and causes an accident.

D. What If the Drunk Driver Is Only a Partial Cause of the Accident?

i. Comparative fault principles apply when a drunk driver and another person or entity jointly cause injury or death.

It is not at all uncommon for drunk driving accidents to occur when the drunk driver is not the solely responsible party. In those cases, general “comparative negligence” concepts apply and each responsible party will bear responsibility for a plaintiff’s injury according to their percentage of fault.

Thus, if the plaintiff is a passenger in a car driven by a drunk driver who is speeding, and that car is hit by another driver who ran a red light, it may be concluded that the drunk driver is 50% responsible for the accident and the driver that ran the red light is 50% responsible. In that circumstance, each driver would be responsible to pay one-half of the plaintiff’s damages.

However, under California joint and several liability law, plaintiff can collect 100% of economic damages from either defendant.

What if plaintiff partially at fault?

In a situation in which the plaintiff’s own negligence combines with the negligence of a drunk driver (and others) to cause an accident, then the plaintiff’s recovery is reduced by the percentage of their own negligence. Thus, if a plaintiff is awarded $1,000,000 in damages but is found to be 10% negligent, the plaintiff’s damages will be reduced to $900,000.

However, in reality, if the case ends up in a jury trial, the jurors’ anger at a person for driving under the influence will generally shift all or most of the responsibility for the accident to the drunk driver despite any technical analysis of the facts and the law of the case which may indicate that the drunk driver should be found less responsible.

iii. Plaintiff can sue defendants other than the drunk driver for causing injuries or death.

Just because a driver is found to be drunk in an accident does not preclude an injured plaintiff from suing any other person or entity responsible for the accident including:

  • manufacturer or seller of a vehicle or the component parts of a vehicle such as seat belts involved in the accident for a manufacturing or design defect.
  • the owner or possessor of a public or private roadway where the accident occurred for dangerous condition of the property.
  • any other vehicle driver, person or entity responsible for the accident.

Under California joint and several liability laws, each party who is responsible for causing injury is responsible for paying 100% of the economic losses of a plaintiff such as medical expenses and wage loss, but only responsible for paying the general damages, i.e., damages for pain, suffering and emotional distress, on the basis of the percentage of fault.

E. Under What Circumstances Is a Drunk Driver Found Responsible for Causing an Accident.

i. Presumption of negligence if driving under the influence.

Driving a vehicle while under the influence of an intoxicating liquor, drug or both, raises what is known as a “presumption” of negligence. A “presumption” of negligence essentially means that the drunk driver is “assumed” to be negligent.

ii. Impairment must have effected ability to drive.

However, it still must be shown that the driver was impaired from the liquor or drug and that his or her physical or mental abilities were in fact so impaired that they could not drive with the caution or ability of a person of ordinary prudence and skill in similar circumstances.

A person who has taken one or more drinks is not necessarily presumed to be under the influence.

Factors to be considered in determining if person driving under the influence

In determining whether or not the defendant was driving under the influence, a jury, judge or arbitrator can look to the following factors:

  • the number of drinks consumed.
  • the time in relationship to the accident when alcohol was consumed.
  • the driver’s appearance and conduct as described by witnesses.
  • the odor of alcohol as described by witnesses.
  • measured blood alcohol content.
  • expert opinion on the effect of the blood alcohol level on the driver, such as peripheral vision and reflex time.

iv. Plaintiff must establish intoxication caused the accident.

Also, plaintiff must establish not only that the driver was intoxicated, but that the intoxication was a cause (i.e., a substantial factor) of the accident.

F. Comparative Negligence of Passengers in the Vehicle Driven by a Drunk Driver.

A passenger in a vehicle driven by a drunk driver may be found negligent simply for knowingly driving with an intoxicated driver. This may reduce the plaintiff-passenger’s recovery based on their percentage of negligence, but it does not bar recovery.

G. Useful Evidence in Proving Drunk Driving Cases.

i. Blood alcohol level.

By far the best evidence to establish that someone was driving under the influence is the blood alcohol level determined by the police or hospital or drug screens conducted by law enforcement agencies or hospitals which will determine the amount of most prescription and non-prescription drugs in a person’s blood stream.

ii. Must establish chain of custody of blood alcohol level test.

However, it is important for plaintiff and plaintiff’s attorneys to note that a police report or hospital record containing a reported blood alcohol or drug level is not admissible at the time of a trial because, under the law, it is considered hearsay. The plaintiff must subpoena to trial the actual evidence of the blood alcohol or drug screen itself or everyone in the chain of custody of the test from the arresting officer to the lab technicians to the receiving clerk. Sometimes, not every one of these people needs to be called at trial; however, a plaintiff must “lay a foundation” for the accuracy of the test results.

iii. Testimony of witnesses.

Evidence From the Testimony of Witnesses

Most of the other evidence in a drunk driving accident case will come from the testimony of witnesses.

  • testimony of any person who observed the defendant drinking within 24 hours of the accident.
  • a person who sold the defendant bottles of liquor or drinks in the 24 hours before the accident.
  • any person who observed the defendant’s movements or conduct in a reasonable time period before or after the accident.
  • witnesses who observed the defendant’s driving in a reasonable period before or after the accident.
  • any person who smelled the defendant’s breath before or after the accident.
  • any of the observations of the arresting officers including the results of a field sobriety test.
  • in circumstances in which the defendant drank the liquor from a bottle, testimony as to when the bottle was purchased and the amount of liquor left in the bottle at the time of the accident.
  • testimony of any witness who listened to the defendant talk before or after the accident.

In the case of street drugs, a plaintiff should attempt to develop similar evidence; however, it is obviously going to be harder to ascertain the source of the street drugs.

Impairment due to prescription drugs

In the case of prescription drugs, it is important for a plaintiff, if possible, to obtain the:

  • prescription records of the defendant.
  • relevant medical records of the defendant.
  • warnings on or with the bottles of drugs which may have caused defendant to be under the influence. (These can be obtained from the defendant or, in the event this is not possible, from the manufacturer or pharmacy.)
  • testimony of the pharmacist or physician who prescribed the drugs or sold the drugs to defendant regarding any warnings given to the defendant.
  • description of the drug’s effects on people as described in medical literature and the Physicians’s Desk Reference (PDR).

Expert Testimony in Drunk Driving Cases

i. Experts generally.

There are a wide variety of expert witnesses who can testify in motor vehicle accident cases generally such as accident reconstruction experts, mechanical engineers and physicists. In addition to those experts, there are experts who can be retained specifically on the driving under the influence of drugs or alcohol issue.

ii. Toxicologists.

Toxicologists can speak to the level of blood alcohol or drugs in a person’s body and, if they have the specialized training, they can testify to the likely impairment caused by ingestion of the alcohol or drugs.

iii. Human factors experts.

Human factors experts provide another source of potential expert testimony for a plaintiff in a drunk driving accident case. Human factors can be defined as the relationship of humans to their environment, equipment and facilities. It covers the application of psychological and physiological and engineering knowledge to the relationship between people and machines. There has been a great deal of human factors research in the area of automobile accidents and the effect of driving under the influence on driver behavior.

A human factors expert will testify that study after study has verified the serious consequences of drinking and drug ingestion and driving.

The human factors expert will be able to testify, based on research and blood alcohol level of the defendant of the likely impairment of the defendant and how that effected their ability to drive.

iv. Scope of testimony of human factors experts in drunk driving cases.

A human factors expert with the appropriate qualifications and knowledge of the research and literature can testify that:

  • alcohol combined with any other impairment or handicap will compound the risk of an accident.
  • a single drink may be intoxicating to a tired or ill person while more than the legal limit of blood alcohol may not effect another person’s ability to drive with care.
  • a blood alcohol level of .035 generally results in the beginning of impairment; in judgment, visual perception and tolerance to glare.
  • a blood alcohol level of .05 creates a definite impairment in muscle performance and reaction time and most people show deterioration of driving skill.
  • a blood alcohol level of .10 creates medical evidence of intoxication.
  • a blood alcohol level of .20 creates a loss of balance and coordination.
  • a blood alcohol level of .35 generally results in loss of consciousness.

Human factors testimony on over-the-counter and prescription drugs that may cause an impairment

Further, on the issue of drugs, a human factors expert can testify that the side effects of many drugs, some sold over the counter, can impair a driver’s ability. These include:

  • analgesics.
  • hypnotics.
  • sedatives.
  • tranquilizers.
  • nervous system stimulants.
  • antihistamines.
  • sulfanilamides.
  • motion sickness drugs.
  • anti-infective agents.

vi. Human factors testimony and illicit drugs.

In addition, illegal drugs such as hallucinogens, marijuana, cocaine, speed and other psychoactive drugs can change a driver’s emotional reactions and concern for surroundings and cause an impairment.

Damages

Comparative damages in a case involving a drunk driver are awarded in the same manner as in any other case involving a motor vehicle accident with the exception that a person who is convicted of drunk driving cannot recover general damages for pain and suffering and emotional distress.

In a motor vehicle accident case, plaintiff can recover for past medical expenses, future predicted medical expenses, past wage loss, future predicted wage loss and for past and future pain and suffering.

The medical expenses are determined by the testimony of physicians or other health care providers. Frequently, an economist or an expert in the industry determines the amount of future wage loss; however, no expert can testify to the value of pain and suffering.

Pain and suffering is typically the most significant element of a plaintiff’s damage and it includes emotional distress. Contrary to popular belief, there is no formula for pain and suffering awards and it varies greatly from case to case depending upon the location of the case, the seriousness of the injury and how well the case is presented.

Further, under most circumstances, a driver of a vehicle who is injured in a car accident who does not carry liability insurance cannot recover general damages against another driver. This is not true when the plaintiff can establish that the other driver was drunk.

Further, there are specific rules that apply to when a plaintiff can recover punitive damages against a drunk driver which will be discussed in section J(ii).

J. Claim for Loss of Consortium.

A plaintiff’s spouse can also sue and recover damages for ‘loss of consortium.” A spouse is allowed to recover damages for the loss of society, comfort and care that result from the injured spouse’s unavailability due to their injury and having to watch the plaintiff suffer. In order to recover these damages, a spouse must be named as a party to the lawsuit and must have been married to the plaintiff at the time of the injury.

There are advantages and disadvantages to filing a loss of consortium claim that should be discussed with an attorney before filing.

K. Punitive Damages in Drunk Driving Accident Cases.

i. Punitive damages generally.

Punitive damages are damages awarded against defendant in order to punish the defendant and to deter the defendant and others from committing the same conduct in the future.

Punitive damages are generally only allowed where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud or malice which can be implied from acting in the conscious disregard of the rights or safety of others.

ii. Special rules for punitive damages in drunk driving cases.

In a drunk driving case, a plaintiff must establish by clear and convincing evidence:

  • that a person voluntarily drinks to the point of intoxication knowing he or she will be driving;
  • and the driver was aware of the probable dangerous consequences of the conduct; and
  • the driver willfully and deliberately failed to avoid those consequences.

Thus, testimony must be developed by the plaintiff’s attorney that indicates that the defendant knew that they would be driving before they began drinking and knew of the extreme risks of drunk driving before punitive damages will be awarded.

L. Special Settlement Considerations in Drunk Driving Cases.

Although there has been a trend in recent years for downward awards in settlements in motor vehicle accident cases, the exception is in cases involving drunk drivers. Most jurors are likely to feel an intense dislike for a drunk driver and either award the plaintiff a significant punitive damage award or “spike” a verdict for general damages by awarding the plaintiff damages for what might ordinarily be questionable economic losses and awarding the plaintiff a substantial verdict for general damages.

These factors should be considered when determining the settlement value of a plaintiff’s case. Thus, plaintiffs should generally hold out for larger settlements for the same injuries in cases involving drunk drivers.

Further, since under the law an insurance company is not allowed to pay for a defendant’s punitive damages, a case involving a drunk driver in which the drunk driver is personally at risk for a punitive damage verdict puts the defendant in a conflict position with their insurance company.

In a case in which a plaintiff is willing to settle for the defendant’s insurance policy limits, can the insurance company refuse to pay those limits and expose its insured to a punitive damage award? This could lead to bad faith liability against the insurance company in a later case brought against it by its insured. Plaintiff’s attorney should point this out to the insurance carriers, insurance defense lawyer and personal counsel for the defendant if the defendant has his or her own personal attorney.

In cases in which the policy limit is significantly higher than a plaintiff’s potential compensatory (i.e., not punitive) damage award, the insurance company will normally hold out and not offer the policy limits. However, if the plaintiff can establish that the case has a value even close to the insurance policy limits, it will be very, very hard for the insurance company to not pay the entire policy limit and put its insured at risk. Plaintiff’s attorney should recognize this important factor and utilize it to increase a plaintiff’s settlement.

M. Considerations in Evaluating Cases for Settlement.

i. Many different factors are taken into consideration when evaluating settlements.

There are many, many factors which are utilized when evaluating a case for settlement. The perception that many of the public have that a case settles for three times the medical bills and wage loss cannot be further from accurate. There are cases that settle for millions of dollars in which there are no medical bills or wage loss and there are cases that settle for a few thousand dollars in which there are hundreds of thousands of dollars of medical bills and wage loss. Following are some of the factors that are relevant to evaluating the case for settlement purposes:

ii. Liability.

The clarity of liability (i.e., fault) in the case is a critical settlement factor.

In a case in which liability is unclear or the plaintiff has a substantial chance of losing, the settlement value of the case has to be reduced significantly to factor in the plaintiff’s chances of losing.

Theoretically, if the value of an injury claim is $100,000, but plaintiff only has a 50/50 chance of winning, a $50,000 settlement may be appropriate. However, plaintiffs must always realize that cases against large defendants or in cases in which the defendant is insured, that the plaintiff has a lot more to lose than the defendant. In the example above, if the insurance company turns down a $50,000 demand and the plaintiff wins $100,000, payment of an additional $50,000 will mean very, very little to a large insurance company or corporation. On the other hand, if the plaintiff turns down the insurance company’s $50,000 offer and wins nothing at trial, it could create a devastating financial blow in which the plaintiff is unable to pay for his or her bills.

iii. Comparative fault of the plaintiff.

If a plaintiff is found to be partially at fault for causing their own injury, then their potential jury award is reduced on the basis of plaintiff’s percentage of fault. In other words, if a case were to go to trial, and plaintiff were to receive a $100,000 verdict, but was found to be 25% at fault, the plaintiff’s verdict would be reduced to $75,000. Thus, when settling a case, plaintiff should reduce his or her expectations of a settlement by the likely finding of percentage of fault that would occur if a case were to be tried.

iv. Likely jury verdict value of the case.

In cases in which insurance policy limits are not an issue, most good attorneys attempt to settle the case based upon what a jury would be likely to award if the case went to trial.

Determining what a jury will award in a given case is more of an art than science; however, reasonable estimates can be made based upon what jurors have awarded in similar cases in similar venues (i.e., locations). Most verdicts are reported in “jury sheets” that lawyers read and utilize when attempting to assess the value of any particular case.

v. Aggravated liability.

In cases in which a jury is likely to get angry at a defendant for misconduct that was something more than negligent, it is known that jurors are likely to “spike” their verdict and award more money for a plaintiff’s injury than they would if a defendant’s misconduct was merely negligent.

Aggravated liability situations, such as a drunken driver, will increase the risk to the defendant of a large jury award and this should be taken into consideration in settlement.

vi. Punitive damage exposure.

If the defendant’s misconduct is so bad that there is a risk for punitive damages, i.e., the jury awarding damages specifically to punish the defendant, this should become a major factor in settlement negotiations. A potential award of punitive damages is complicated by the fact that under the law, the insurance company is not allowed to pay an award for punitive damages; however, normally, the defendant, through a personal attorney, attempts to apply pressure on the insurance carrier to pay more in settlement so that the defendant will not be exposed to the punitive damage risk.

vii. The character and credibility of the parties.

A plaintiff’s case is worth more if he or she is likeable and believable. It is known that jurors will award more money to people that they like and believe than people whom they dislike and don’t believe.

To a lesser extent, this is also true for defendants. A likeable or believable defendant is likely to fare better in a lawsuit than someone with the opposite traits.

viii. The extent of the injury.

Theoretically, the more serious an injury, the greater should be the value of the plaintiff’s case.

ix. Objective evidence of injury.

Injuries that can be visualized or that are able to be demonstrated by radiographic evidence such as x-rays, MRIs, CAT scans or other scientific tests, will normally result in higher settlements than injuries which depend upon the believability of the plaintiff to prove.

There are many injuries which may have severe consequences for the plaintiff which are not diagnosable by objective tests. This can include severe back problems, headaches and pain anywhere in the body. Experience has shown that jurors are hesitant to award large damages in cases in which there is no objective evidence of injury; thus, the settlement value of any case is increased by objective evidence of injury and decreased by the lack of it.

However, a credible plaintiff can sometimes overcome the lack of objective evidence of an injury and this must also be taken into consideration in the right case.

x. Past and future medical bills of the plaintiff.

As long as a plaintiff can establish that past medical expenses and likely future medical expenses are reasonable and related to their injuries, the bills will be an important consideration in settlement.

However, the defense will generally claim some amount of overtreatment and, thus, some portion of the medical bills should be excluded from settlement consideration. Further, the defense will argue that plaintiff will be unlikely to need or have the claimed future treatment and/or the future treatment would not be related to the subject incident.

xi. Past wage loss and future wage loss.

Wage loss is another important consideration in evaluating a claim as long as plaintiff can establish that he or she was reasonably off work or will be reasonably off work due to the subject incident. The defense will likely take the position that the amount of the wage loss should be discounted because plaintiff should have been back to work sooner and, in the case of future wage loss, the defense will claim that plaintiff could be doing some type of work which would pay them as much or almost as much as the work they were doing before the incident.

Also, for plaintiffs who are self-employed or do not have a strong consistent earning history before the accident/incident, it can become very difficult to establish a wage loss claim.

xii. Is the injury permanent.

In cases in which plaintiff has a permanent injury and some objective evidence of that injury, there will likely be a higher settlement value because the case will have more jury appeal.

xiii. Venue (where the claim will be tried).

It is beyond question that cases tried in certain locations, particularly urban locations, result in much higher verdicts than cases tried in more rural counties. This is a factor that must be taken into consideration in settlement.

xiv. Policy limits and defendant’s assets.

No matter how severe the injury, the plaintiff’s ability to recover damages against defendant will be limited by either the defendant’s policy limits or the personal assets of the defendant.

However, in cases involving motor vehicles, the plaintiff may have his or her own uninsured or underinsured motorist insurance which would provide additional coverage for the plaintiff’s injury and allow the plaintiff to receive further compensation in a settlement with their own insurance carrier.

xv. Target defendants.

Even though jurors are not supposed to consider the wealth of a defendant or whether or not the defendant is a corporation in their verdict, they are far more likely to make larger awards against large companies than they are people who they perceive to be middle class or poor. So this becomes another important settlement consideration.

xvi. Reputation and ability of attorneys.

The claims representative or defense attorney will report to the insurance carrier or defendant the ability of the plaintiff’s attorney and the likelihood that the attorney will try a case and try it well.

In situations in which the defense believes that the plaintiff’s attorney will not be willing to take the case to trial, there is little incentive to offer a significant amount of money in settlement.

On the other hand, if the defense believes that a plaintiff’s attorney will not only go to trial, but will receive an optimum verdict, the defense’s risk is increased and thus the settlement value of the case is increased.

By the same token, plaintiffs must also take into consideration the reputation and ability of the defense attorney. If the case is against a good defense attorney, plaintiff will likely receive less money from the jury; thus, the settlement value of the case, to some extent, is decreased.

xvii. Expense of litigation.

The expense of litigation should also be considered in settlement. There are some cases which, if worked up properly, could result in the expenses actually being higher or almost the entire amount of an eventual settlement or verdict.

Some insurance companies and corporations are cost conscious and will take into consideration the expense of proceeding in the case versus early settlement.

However, just because a case may cost the defense $200,000 to litigate does not mean that in a case they otherwise evaluate as being worth $25,000, they are going to offer the plaintiff $200,000 in settlement.

Rather, in the above example, it may cause the corporation or insurance company to raise their offer five or ten thousand dollars or to try to settle the case early for $25,000 before expenses are actually incurred. Corporations and insurance companies are loathe to make offers of settlements based on the cost of defense because of a concern that they will be seen as an easy target for plaintiffs.

How Soon Must a Drunk Driving Injury Case Be Brought After an Accident?

Although there are a few exceptions, generally speaking in California a case for personal injury must be brought within two years of the date of the accident/incident. In rare cases, that time period is extended to two years from the date of the discovery of a wrongdoing and/or an injury. However, be careful. If the case is against a public entity, the claim must be brought within six months of the date of the accident. Except in medical malpractice cases and cases against public entities, minors have until their 19th birthday to bring a case.

This article was authored by John D. Winer. Winer, Oakland personal injury attorney at McKenna & Burritt, LLP

specializes in catastrophic physical, psychological injury cases and wrongful death cases. The firm handles a significant number of catastrophic injury, traumatic brain injury, elder abuse, sexual abuse and harassment, post traumatic stress disorder and psychotherapist abuse cases. Please visit JohnWiner.com for more information or for a free online consultation.