Where the other party is negligent in causing such injury, the plaintiff can be awarded money damages after a trial. Most cases do not go to trial but are settled after negotiating with insurance or other companies. However, when John Hendrickson had his leg crushed on August 27, 2009. He was hit by while riding his motorcycle while riding in a remote area of California’s San Diego area. A Border Patrol Officer in a truck came around a sharp turn at an unreasonably high rate of speed. The officer did not see Hendrickson and the truck collided with the motorcycle.

Hendrickson suffered severe fractures and had one of his legs amputated below the knee, forever changing his life. As a recording artist and motorcycle enthusiast, his lingering pain and the emotional trauma keep him from working and partaking in the same activities he always enjoyed. He went through 6 months of post open treatment for a comminuted distal femur fracture and dealt with several other injuries. Hendrickson filed a negligence lawsuit against the United States government and on June 20, 2014, the court awarded him 5.4 million dollars. This large verdict was reported by ABC New 10 in San Diego.

Federal Tort Claims Act

One may think that the almighty government is an ironclad battleship, impenetrable to lawsuits, but that is not true. Although it is not as simple to sue the government as it is to sue a citizen, it can be done, as Hendrickson demonstrated.

Under the 11th Amendment, sovereign immunity prohibits citizens from suing a state. However, in 1948 when the Federal Tort Claims Act was enacted, it allowed citizens to sue the United States in federal court for torts committed by persons acting on behalf of the government. A tort is a civil wrong for which no criminal punishment will remedy the harm.

In this case, the Border Patrol Officer was acting on behalf of the government because his duty was to patrol areas around the U.S. border and prevent illegal entry into the country. Furthermore, he was driving a Border Patrol issued Chevrolet Silverado truck around the Otay Mountain Truck Trail, which demonstrates he was under the color of the government at the time and place of this incident.

Failure To Negotiate Backfires

The defendant in this case was the federal government and their agent, the driver of the other vehicle who injured Hendrickson. The defendant in the case refused to negotiate with Hendrickson or his lawyers, offering no money damages for the case. If this were a normal case where an insurance company was involved, the defendant might bring a bad faith denial claim against the insurance company for opening the defendant open to serious liability because the insurance company failed to negotiate in good faith. However, this was not the case here, and that discussion will need to wait to another blog entry.

Federal Courts

The federal judiciary comprises the United States Supreme Court, United States Court of Appeals, and United States District Courts. Hendrickson’s case was heard in the Untied States District Court for Southern California. So, although it was in a federal court (federal law), California tort law (negligence) applied because the case was brought under the Federal Tort Claims Act.

Limitations

The Federal Tort Claims Act does not open the floodgates for endless suits against the government every time a police officer or postal worker is rude to you. Rather, it provides a platform to recover for harm suffered at the hand of the government due to egregious behavior. Several constraints are listed below:

• Liability will not include interest prior to judgment or for punitive damages. This means that the Hendrickson’s judgment did not include interest from the time of his injury to the time of the judgment. Punitive damages are designed to punish the tortfeasor and deter such conduct.
• The law of the state where the act or omission occurred will apply. This means that although the case was heard in a federal court, the law of California will apply because that is where the act of negligence by the Border Patrol Officer occurred.
• Claims based upon performance or failure to perform a discretionary function or duty are exempt. This means that a citizen cannot sue the government for a government agent making a discretionary judgment that is part of their job.
• A number of intentional torts are exempt. Intentional torts require the element of either specific or general intent. Under the common law of torts, an intentional tort is typically deemed to be a substantial deviation from the scope of employment, and therefore the superior is not usually held liable.
• Intentional torts of investigative or law enforcement officers are not exempt. This means that if a government agent with authority to enforce the law commits an intentional tort then the limitation will not apply

Negligence

In this case, the Border Patrol Officer was found liable for negligence. Since we already established that the officer was acting on behalf of the government, the government is liable for the damages award.

Negligence requires (1) A Duty Owed To Someone (2) Breach Of Duty Owed (3) Actual Causation; (4) Proximate Causation; and (5) Damages.

The court in this case found that the Border Patrol Officer had a duty to the plaintiff to exercise ordinary caution as a fellow driver on the road. The officer breached that duty by driving at excessive speed and failing to adhere to his training of driving as slowly as possible around blind turns. He was the actual cause of Hendrickson’s injuries because but for speeding around the corner he would not have collided with Hendrickson; he may have had time to swerve around him or apply the breaks. The officer was a proximate cause because it was foreseeable that speeding around the mountains on rough terrain with blind turns and drop-offs could result in a sudden collision and major injuries.

Damages

Actual damages must be proven in a negligence case. Here, Hendrickson had a lengthy list of injuries and medical bills. The court also found specials in evidence of almost $590,000, which contributed to the total award.

Comparative Negligence

California adheres to the pure comparative negligence theory. Under this principle, if the plaintiff is at fault to some degree, he may still recover damages minus his degree of fault. Here, it was found that the officer was 85 percent liable and Hendrickson was 15 percent liable. Therefore, Hendrickson’s net award of about $5.4 million was calculated by reducing the $6.3 million sum of damages by 15% (Hendrickson’s degree of fault), leaving him with 85 percent of that amount.

In sum, the Hendrickson decision revealed that the government can be sued for tortious acts committed by their agents and that all drivers need to be aware of motorcyclists. Those who have been or know somebody is has been injured in a motorcycle accident should contact the The Bogan Law Firm, A Professional Corporation immediately.

As the spring weather heats up, more and more Modesto and Stockton families and ‘weekend warriors’ will be ‘hitting the road’ to their respective recreational destinations. Unfortunately, some of these families will be injured in an car accident. As traffic increases along with the seasonal temperatures, so too does the risk of being involved in vehicle collisions which may cause personal injury. These circumstances necessitate enhanced vigilance with regard to road safety by those behind the wheel or otherwise on the road. Driving defensively and maintaining constant awareness of one’s surroundings while driving greatly decreases the risk of being involved in an accident. The following tips should prove helpful:

• Maintaining an appropriate distance from the car ahead
• Ensuring that lane changes and turns are made only when it is completely safe
• Avoiding driving while under the influence of alcohol, drugs or heavy medication
• No driving when suffering from exhaustion or fatigue
• Eliminating driving distractions such as eating smoking and cell phone use.

Tips like these and more can be found at the National Highway Traffic and Safety Administration (NHTSA)

Your Rights as a Victim of Negligence

However, in the event that a person does find themselves in such an unfortunate circumstance, they may have means of recourse in a Personal Injury Attorney (through Civil Litigation). In vehicle collisions, as well as other accidents (incidents) involving negligence, wrongdoers and negligent parties may be held accountable through the Civil Justice System. Negligence involves the breach of a duty which causes damages or injuries to innocent parties. In the following case, The Modesto Bee reports that a 31 year old Murphy’s Woman crashed head-on into a tree in an attempt to avoid a deer. At a glance, any negligence would appear to be absent from the case, yet, upon further investigation or discovery as it is called in Civil Litigation, facts may be revealed to show not only that the driver was not at fault, but that another entity (aside from the deer, of course) may be at fault.

Hypothetically, the area surrounding French Gulch Road in Sonora, a rural and moderately forested area, may have a dense deer population, which arguably presents a hazard to drivers. Such a hazard could be considered a dangerous condition, and a failure to warn drivers on the part of the entity with domain over it, could impute liability.

Governmental Liability

In all likelihood, the road in the case mentioned above is maintained by a government entity, an issue which presents its own legal hurdles. There is a possibility that the road was not maintained correctly or the government failed to warn drivers of known hazards. For example a deer crossing waring sign is an example of when the government properly warns drivers of dangerous conditions.A person with a potential civil claim against a local government entity, for instance, must comply with the California Government Tort Claims Act (Government Code §814, et Seq.) or The Federal Tort Claims Act. The time limits and procedural requirements under which a lawsuit subject to these regulations are very strict. For example, in order to sue Stanislaus County or Modesto, or one of their employees, the complainant must first file a claim with the local government entity concerned. Under California Law, such local claims must be filed within 6 months of the harm to the complainant, without fail. In the event the claim is not filed under these deadlines, the injured party may not proceed to file a civil lawsuit. Once the government entity has received the claim, it has 45 days to either honor or deny the claim, and in the event of a denial the injured party must adhere to another 6 month time constraint within which the civil claim must be filed with the Superior Court. Again, failure to adhere to the time limitations at this juncture eliminates the complainant’s ability to recover through litigation.

Loyal Advocacy

Unforeseen circumstances and legal intricacies’ with which most laypersons are unfamiliar make consultation with a personal injury attorney a prudent decision. Nearly all personal injury attorneys, including the author of this article, offer free personal injury consultations, and upon an agreement to render legal services, will take such cases on a contingency fee basis. This means the injured party, or plaintiff as such a person is called in civil litigation, pays nothing up front, leaving the attorney without compensation until he is successful in obtaining a settlement or judgment in his client’s favor.

As an advocate for individual and consumer rights, I take pride in helping injured persons recover their losses by holding responsible parties accountable.

If you or a loved one has been injured or killed in an incident where negligence may have been a factor, please do not hesitate to contact the The Bogan Law Firm, A Professional Corporation for a free consultation.