Washington Personal Injury Case
Client was an 11-year-old boy on a non-motorized scooter in an area heavily populated by children in Vancouver Washington. His friend of approximately the same age scooted up along the sidewalk with him to an intersection, but the friend stopped at a box van parked right in front of the road crossing – obstructing their view of oncoming traffic to their left. Unfortunately, our client did not stop at the box van and was hit by an oncoming pickup truck.
Portland Brain Injury Lawyer for Skull Fractures, Coma, and Severe Traumatic Brain Injury
The client sustained serious injuries including a severe traumatic brain injury with multiple skull fractures. Our law office was retained by his father due to our reputation as a leading brain injury lawyer in the Northwest. The father had a personal history of having a brain injury himself as a teen and had experienced significant personal losses throughout his life as a result of his own brain injury. As a result, he wanted to make sure his son had the best brain injury lawyer in Oregon and Washington and chose our law firm.
Oregon Personal Injury Lawyer for Loss of Internal Organs
The client also had internal bleeding and a ruptured spleen. Despite excellent medical care at Randall Children’s Hospital in an attempt to surgically save the spleen, it never returned to function.
Liability was denied by the driver who hit our client. The client’s parent’s underinsured motorist insurer also deemed the child at fault because the driver said that the client had simply ridden the scooter right in front of him. If that was true, our child client would have received no compensation for the severe brain injury and loss of his spleen.
Proving Negligence of the Driver
We hired a biomechanical and crash reconstruction expert to evaluate the vehicle weight and the police investigation distances (including the distance that our client landed on the road in front of the vehicle) to determine which party was at fault. We went into the evaluation objectively, not knowing if the claim was viable.
The result of that biomechanical and crash reconstruction investigation showed that the driver was traveling 28 mph (over the speed limit) in an area where he had admitted to police that he had seen children playing that day. Further investigation on our part showed that the driver only lived two blocks away from the scene of the crash and that the community commonly had children playing in the streets including multiple basketball hoops at the side of the road. In short, the driver lived in an area where he knew that kids were constantly in the street playing. Despite this, he was driving over the posted speed limit. This means, he was careless or negligent, and at least partially at fault for the client's injuries.
Washington's Comparative Negligence
Throughout the United States, each state has different ways to deal with how people are compensated that are partially at fault for their injuries.
Contributory Negligence
Some states have what are called "Contributory Negligence." In those states, if you are even 1% at fault, you get nothing.
Comparative Negligence
Most states use "comparative negligence" where you can recover for your injuries if you are less than 50% at fault for the event that injures you. Oregon has this form of comparative negligence. In these cases the jury decides what percentage the injured person is at fault and then the judge reduces the total verdict by the percentage of fault by the plaintiff. So, as an example if the jury verdict is $1,000,000 and the plaintiff is 40% at fault, the plaintiff gets $600,000 (60% - the percentage of fault of all defendants.) But, if the jury finds the plaintiff 60% at fault they get $0 because the percentage is over 50%.
Pure Comparative Negligence
A few states, including both California and Washington, have "pure comparative" negligence. This means that you can still recover for losses even if you are more than 50% at fault, as long as all of the defendants are more than 1% at fault. The percentage that the injured party gets is reduced by the judge by the percentage of fault assessed to the plaintiff. So, if the verdict is $1,000,000 and the plaintiff is 60% at fault, they would still get $400,000. By contrast, if the same case was tried in Oregon, the injured party would get $0 because their percentage of fault exceeds 50%.
Since Washington has pure comparative fault, the insurers understood that the severity of injuries for this child could result in a very large verdict even if he was found more than 50% at fault. But, there was one more step that really changed the outcome of this case for our client.
Different Standards for the Negligence of Minors
In order to win a personal injury trial the first thing you must prove is that the other party did something careless or "negligent." If you cannot prove that the other person is liable for your injury there is no way to win at trial and there is no settlement offer. In this case, both insurers were blaming our 11 year old client for being 100% negligent in causing his own injuries and so both insurers were offering $0 to settle his case.
This case considered both Washington law (where the crash occurred) and Oregon law (where the underinsured motorist policy was originally written). We analyzed the legal issue of a child’s negligence because the standard for our 11 year old client’s conduct was not that of an adult, but instead what a "reasonable child" should do. Through our legal research, we were able to demonstrate to the insurer that they could not attribute negligence to our minor client in the same way as they would with an adult. Simply stated, a child doesn't understand the need to act in the same way as an adult.
Given the severity of the injuries, if the jury found that a “reasonable child” would not have stopped while other kids were playing in the street, we expected the verdict would be very large.
Given the fact that the driver was driving in excess of the speed limit in the area despite knowing that children were playing in the streets, the fact that he regularly saw kids playing in the streets there because he only lived two blocks away, combined with our legal research on child negligence standards, both insurers paid the full amount of the insurance policies.
If your child was severely injured, or you have a case involving the loss of an organ, a coma, or a severe traumatic brain injury, please contact our office or call our office at (503) 227-1233 for a free consultation.