1. Too many folks in the boat.
2. Balancing weight distribution.
3. Correct starting of the boat.
4. Running aground rules.
5. Avoiding speeding and a reasonable speed.
6. Boating while drunk of drugged.
7. Know your night lights.
8. Do you have safety equipment in the boat?

Question:

1. A duty.

2. A breach of the duty.

3. Damages.

4. Your damages need to be proximately caused by the negligence of the "tortfeasor" the wrongdoer.

In your case you are simply missing 3 and 4. You have no damages and therefore no damages were proximately caused by the wrongdoer. Your personal injury is what the law refers to as de minimis. Lay people would use this definition and lawyers this one. Frankly it was what the McDonald's marketing machine was all about but they were completely wrong and fooled most people into believing the sky was falling.

De minimis is a Latin expression meaning about minimal things, normally in the locutions de minimis non curat praetor ("The praetor does not concern himself with trifles") or de minimis non curat lex ("The law does not concern itself with trifles").[1][2]

In risk assessment it refers to a level of risk that is too small to be concerned with. Some refer to this as a "virtually safe" level.[3]

An abbreviated form of the Latin Maxim de minimis non curat lex, "the law cares not for small things." A legal doctrine by which a court refuses to consider trifling matters.

In a lawsuit, a court applies the de minimis doctrine to avoid the resolution of trivial matters that are not worthy of judicial scrutiny. Its application sometimes results in the dismissal of an action, particularly when the only redress sought is for a nominal sum, such as one dollar. Appellate courts also use the de minimis doctrine when appropriate.

But the personal injury aside you did also mention a wage loss being caused by your having a tough time keeping a job. It didn’t take me 30 years of practice to know it’s going to be extremely difficult to prove you’re not being able to find any truck driving job is somehow proximately caused by this one little accident. There must be more than you’re telling me; either that or you aren’t trying hard enough to find work.

Make sense? Now get back to work.

Question: How is negligence determined in personal injury cases?  

Does negligence have to be established in order to collect damages in any personal injury case?

Statutes and Black Letter Law: The statutory law states that everyone must stop at a stop sign. If you run the stop sign you are negligent.

Common Law: If you behave in such a way as to increase the risk of injury to another knowing injury is likely then you can be found to have been negligent.

Contract: General contractors agree by way of a written agreement (the contract) to supervise the construction site and to make sure every subcontractor is abiding by OSHA's rules and regulations. If the GC knows a sub is not following OSHA rules/regs or fails to monitor whether the subs are adhering to OSHA rules they can be found to be negligent.

Criminal Law: Criminal law says if I walk up and punch you in the nose I'm guilty of assault and battery. If I walk up to one guy but hit another due to my being too drunk to make a straight punch, then I'm probably negligent. That's a standard that can be applied to civil law to find you acted negligently.

Professional Standards: Professionals are held to a standard created and recognized by other professionals and the associations that govern their conduct.

These are not all the ways standards are found in the civil law, but it will give you some idea of how standards are determined to exist and therefore formulate the basis for determining negligent conduct. 

Before talking to the insurance adjuster or defense attorney or the case mismanager remember this from I Claudius, don't touch the figs.

The premise held by most clients is that this system of law is fair. They'll say they want only to be treated fairly. When representing themselves they make the assumption that when defense lawyers talk to you they will be fair. Well I'm here to tell you, you had better not trust in being treated fairly. I mean exactly that and it has nothing to do with whether or not the defense lawyer or the insurance company is dishonest. They don’t have to be “honest” and they aren’t trying to be “fair”. Fact is they are hoping you aren’t smart enough to ask the right questions so they don’t have to not answer you. You think I’m kidding? Hell no. I’m not and I can prove I’m right. Here let me prove it to you.

Defense work has nothing to do with treating people fairly. If it did you could come up with the name of at least one defense lawyer who has said in the past, "I don't think you're asking for enough, can I pay you more?" Or, "Did you know you're entitled under the law to be paid more for your damages?” Go ahead find me one insurance company representative that has said that in the entire history of insurance. Go ahead, think real hard; I can wait, go ahead and think harder.

Umnnn dee dum, dee-dum... Have you remembered one? No? I didn't think so. I've not heard anything like that in 30 years.

Updated: This is too funny. I had a link to an insurance company's YouTube ad and they actually took it down so I could not tag them with how deceptive it is. Can you believe it? Yeah that's what they do. They advertise when they need more money, lie to you the premium payer and then when we lawyers point it out they take down what they said to erase the lie. That's reality folks, that's the insurance industry. 

In other words the defense lawyer's job is to treat you in a way to take advantage of your ignorance of the law as well as your mistakes. Frankly because this isn't about fairness their job is to treat you unfairly. Ethically they can, do and must treat you unfairly as most people think about the idea of fairness.

Fairness dictates honestly and with openness and candor. But ethics require the lawyer to maintain confidences provided by the client. I as your lawyer have to be candid and open with my client and if you're my client I act ethically. But the insurance company's lawyer isn't your lawyer and you the injured person aren't his client. So candor isn't going to be happening between the two of you. That's not the hand of a friend reaching out to shake your hand; the handshake being a sign of friendship, but this one is not one from a friend. Never confuse friendliness with friendship. The two are not one and the same.

The defense attorney or the insurance company representatives are like the slithering snake that delivers the poison being slipped into the wine goblet from which the injured drink.  Now you understand the legal concept of "fairness".

A two-car collision in Iowa City at the corner of Melrose Avenue and Mormon Trek Boulevard caused one of the vehicles to strike a pedestrian Iowa City flag worker doing maintenance work. This is one of those examples of a work related accident also creating a third-party lawsuit which the workers’ compensation carrier will encourage. Under Iowa law the work comp carrier seeks to recover what it pays in workers’ compensation benefits from the driver’s insurance company that ran the red light.  This case could be categorized as a workers’ compensation case, a car accident or a pedestrian case.

Salmonella remains a front-page story here in Iowa. Two Iowa farms are being linked to it by tests conducted by the FDA. Salmonella was found in chicken feed. The allegation is that the feed found at Wright County Egg contained an ingredient from Central Bi-Products. Center for Disease Control and Prevention believes there have been 1,470 illnesses.

The Des Moines Diocese alleges that more than $600,000 was stolen electronically from its Bankers Trust account. This is something that requires some attention.  Here is a quote from the Des Moines Register story:

“The thieves are believed to be "a highly sophisticated operation most likely based overseas" who transferred the money "to numerous recipients across the United States on Aug. 13 and 16," the diocese said in a statement announcing the theft.

Bankers Trust alerted the diocese to the fraud on Aug. 17. The bank immediately shut down relevant bank accounts and began a process to recover the funds. "To date, approximately $180,000 has been recovered," the diocese said.”

Flood damage in Iowa is expected to reach $150,000,000. That includes roads, bridges and other public facilities. The federal government didn't just turn down Lake Dehlhi for federal relief to assist with the broken dam; they told the State of Iowa it had to repay other monies paid. The pain just seems to get worse.

A woman from Clear Lake, Iowa probably had a good thought; thinking it wouldn’t be good to drive after drinking is allegedly now in trouble for having her 11-year-old daughter drive the car. Reportedly the driver was sitting on 3 phone books, had no seat belt on and her feet barely touched the pedals. The mother was put on probation for a year. I have to give the woman credit for not driving; she did avoid the OWI charge.  KCCI has its own report. Follow the link. The story is kind of interesting and also kind of sad too.

Five female workers filed suit against Manley Toy Direct claiming sexual harassment or a work environment that allowed such behavior to exist.  See also the KCCI report titled, 5 Women Claim Sex Harassment At Toy Company

In Iowa we can feel the fall coming quickly. Last night was cool and leaves were starting to get blown around. I saw Canadian geese flying overhead as they practiced for the long flight south. This morning on the way to the mailbox to get the newspaper it was still cold and blustery. The neighborhood is taking on the look and feel of fall.  Fall is coming fast. That means the garage needs to be cleaned and organized, the plow equipment readied for snow removal, the lawn equipment winterized and put away, salt buckets filled and shovels readied. Being prepared for an Iowa winter is a necessity. That's enough for today. I've got work to do!We'll see you on Monday.

This story carries some pretty nice photographs around Iowa of the flooding. 500 images of flooding in Iowa have been uploaded.

See Iowa Flood News Compendium

If a company providing services, in which those services are paid for and terms of service are placed in which the paying parties have signed an agreement to and said company does not deal with violators whom breech these terms of service where everyone is expected to adhere to in a timely fashion. Is said company in breach of contract due to negligence of protecting those very people who agreed to said company's contract?

While we are talking being a lawyer let’s expand this thought and talk about how lawyers make their cases interesting to those who will hear and decide it. Whether judge or jury the structure of your case should be like a mystery novel that leads the fact finder through a tale of suspense. The chapters of the case should lead the jury to be the ones who answer the final question. That final question is one of, Who done it? I call this the Who Done It Case Structure. Because the structure of the case can draw a jury in and keep them awake throughout the questioning of what could otherwise be some pretty boring testimony.

You can control the cadence of the case through use large pigeon-hole charts that get filled in as the trial progresses. What you’re creating is a demonstrative exhibit that organizes complex testimony in real-time right before they eyes of the judge and jury. It allows complex testimony to be assembled out of order but in chart form that is simple to refer to and to understand. Of course you, the lawyer, work out what structure it should be in long before the trial begins. As an example I used such a chart and trial theme in a defamation case against a news organization. The jury was told in the opening statement that we would reconstruct every position in the news room on the night before the defamatory article was published. Through a second information flow chart we would reconstruct how information known to the public is turned into printed news that lands on their doorstep in the morning.  Using this technique the order of witnesses made little difference; in fact I’m of the opinion that taking them out of order was more beneficial because it added to the suspense of the case. The one witness I identified as the offending reporter and editor was called towards the middle of the end of witnesses to allow the jury time to finger him and by the end of the case those witnesses testifying after he did confirmed the juries suspicions.

In the end the lawyer turns into a scribe and the jury the detectives. A $2.4 million verdict, including $1 million punitive was confirmation this technique works. Now don’t ask me what happened on appeal because my blood pressure is high enough as it is. Safe to say I can fully appreciate Lex Hawkins comment that he’s lost more money on appeal than most lawyers make in their careers.

Our point today is reading a John Grisham novel or a Steve Martini novel and then considering how you can turn your case into a “who-done-it” novella can pay off with the jury. I do have a confession though. Personally think Steve writes a better novel than does John, John writes for Hollywood, is predictable and Steve Martini for lawyers. Pick up a copy of Prime Witness, Compelling Evidence or Undue Influence and see if you agree with me.

Now back to the question, but first another cup of coffee.... onward we march.

Insurance Lullaby: Ka-ching, ka-ching, ka-ching! Insurance Executives: Thank you juries! We fooled you again. Remember we're not to blame, it's those trial lawyers! The ones trying to help you! Oops sorry I wasn't supposed to remind you. We're your good neighbor; you know the one's you're in good hands with! Smile! Bigger ka-ching!

Sorry, when it comes to the insurance industry I love being sarcastic. A lady wrote asking me if the insurance adjuster can unilaterally assign her 50% fault for the accident even though she was not ticketed and the other driver received a citation for failing to yield the right-of-way.  The adjuster believes a driver is automatically at fault, no matter what, and he deducts 50% from the property damage. My advice is pretty straightforward and simple. He's trying to delay paying you. Can you say ka-ching?

Today let's talk about the American styled insurance that protects the float by promoting delay. When you're in an accident you need to know how to protect your claim. Because if you don't protect your claim by keeping the facts straight, you allow the adjuster to promote the float through their delaying a fair resolution. You may be honest, but don't be dumb and allow the adjuster to maladjust your case.

A lady wrote to me asking whether the insurance adjuster can just deduct 50% for her fault even though she was not ticketed and the other driver received a citation for failing to yield the right-of-way.  My advice is to the point.

Dear ____________, Thanks for writing to me. If you weren't ticketed (given a citation) then I see no reason why you would be at fault. I'm going to guess that the insurance company’s adjuster is saying that you struck the trailer, meaning you did not have control of the intersection and therefore the other guy had the right-of-way. Your observation that he sped up trying to get control of the intersection becomes that much more important. Coming to an intersection you’re supposed to slow down and assess the traffic situation; not speed up and yell damn the torpedoes.

Everyone has the right to assume the other guy will obey the law.

Stick to your argument that he sped up. He did not have the right of way, he had a duty to yield; instead of slowing down at the intersection he sped up; he was ticketed; you had the right of way, you were not ticketed. You simply have to argue that you are free from fault.

If he won't pay you will have no choice but to hire a lawyer and sue. If your only claim is for property damage less than $5,000.00 then you can sue in small claims court. If the driver or passengers were hurt and sought medical attention then you probably should sue in district court. Have you already told him there was no personal injury? If so I would think the adjuster has accomplished at least half of his goal; to pay you as little as possible.

You may need to hire a lawyer. Good luck.

Steve Lombardi

 Now let's end today with a good laugh. Watch this video of a wedding couple gone wrong. It's a video created for an insurance company.

http://www.desmoinesregister.com/article/20100726/NEWS/100726001/1001/

7/24/10 - The dam fails in Delhi, Ia. on Saturday July 24, 2010, sending damaging flood water down the Maquoketa River.

http://link.brightcove.com/services/player/bcpid36249172001?bclid=0&bctid=241739799001

I have to wonder where were the whistleblowers before the dam broke?

Related media coverage:

• Caught on Tape: Horses' Rampage at Parade Kills 1, Injures Others - Chicago Tribune
• July 4th Horse Stampede Saddens Iowa - Injury Board Blog Network: St. Cloud, MN

They will loudly proclaim that no one should sue! No way, no how; after all that would be un-American! Wouldn't it?

Well that’s exactly what I’m going to suggest. After all who considers going to a parade to get killed or maimed by a stampede of horses? Hell, no one does. To those who say horses do unexpected things I say, so what, who cares and what difference does it make that a horse acts without reason? The object that acted without control was entered into a parade and within a few feet of people sitting in lawn chairs. And, it was predictable.

Think this is the first time horses have stampeded the crowd at a parade?

Let’s have a parade of pit bulls and other vicious animals we consider part of the American culture. How about a herd of buffalo, wouldn’t they make a cool parade. One thousand stampeding buffalo trampling everything and everyone in sight along hometown America. Or how about sharpshooters with guns that can take out elephants traipsing along the parade route just in case an animal steps out of line; that would work.

You see it doesn’t matter what you and I think is American or un-American. When it’s you that gets trampled and then maimed or your spouse or child killed it’s all about doing what is right by them; and that is what an integral part of the American tapestry is.

Do otherwise and you might as well have your next parade in Red Square.

One killed, 23 injured after spooked horses trample crowd at Bellevue parade, July 4, 2010

UPDATE: One dies after horses' rampage at Iowa July 4 parade - A pair of runaway horses in harness crashed into a Fourth of July parade float and collapsed, ending a rampage that injured nearly two dozen people and killed one, people at the parade said Monday. July 5, 2010

Horses take off, injure 24 people at Bellevue parade - Two runaway horses raced along a Fourth of July parade route in a small Mississippi River town in eastern Iowa on Sunday, trampling children who were in the street picking up candy and injuring 24 people, police said.