Mixed Deck — All accident attorney Topics Flashcards

In medical malpractice, establishing causation requires the plaintiff to prove that the defendant's negligence:

Answer: Was a substantial factor in causing the harm, and that the harm would not have occurred but for the negligence

Causation requires both actual cause (but-for the negligence the injury would not have occurred) and that the negligence was a substantial contributing factor to the harm.

What is 'comparative fault' and how does it apply in a slip-and-fall where the plaintiff was also distracted?

Answer: The plaintiff's recovery is reduced by their percentage of fault for failing to watch where they were walking

In comparative fault states, a jury assigns percentages of fault to both the plaintiff (for being distracted) and defendant (for the hazard) — the plaintiff's recovery is reduced proportionally by their share.

What is the eggshell plaintiff rule?

Answer: A defendant must take the plaintiff as they find them, even if the plaintiff had a pre-existing condition that made injuries worse

The eggshell plaintiff rule holds defendants fully liable for aggravation of a plaintiff's pre-existing vulnerabilities.

An 'independent medical examination' (IME) in a workers' compensation case is most often requested by:

Answer: The employer or insurance carrier to evaluate the extent of injury

IMEs are typically arranged by the employer or insurer to obtain an independent assessment of the worker's injury and ability to return to work.

What is an excess liability or umbrella insurance policy?

Answer: A policy that provides additional liability coverage above the limits of underlying auto or home policies

An umbrella policy kicks in after the underlying liability policy is exhausted, providing an extra layer of protection for large accident verdicts.

What is a 'motion for summary judgment' in personal injury litigation?

Answer: A pre-trial motion arguing that there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law

Summary judgment is granted when the evidence (viewed in the light most favorable to the non-moving party) shows no reasonable jury could find for the opposing party, ending the case without trial.

What is negligence per se?

Answer: Negligence established by a defendant's violation of a statute designed to protect the plaintiff

Negligence per se uses a defendant's statutory violation as automatic evidence of breach of duty when the statute was meant to prevent the type of harm suffered.

What is the 'discovery' phase in personal injury litigation?

Answer: The formal pre-trial process where parties exchange evidence, take depositions, and answer interrogatories

Discovery allows both parties to gather evidence through depositions, interrogatories, requests for production, and medical examinations before trial.

What is a 'lien' in the context of a personal injury settlement?

Answer: A claim by a third party (insurer, hospital, or government) against the settlement proceeds for benefits paid on the plaintiff's behalf

Medical liens, Medicare/Medicaid liens, and workers' compensation liens must be resolved out of settlement proceeds before the plaintiff receives the balance.

What is a 'motion in limine' in personal injury trial practice?

Answer: A pre-trial motion to exclude specific evidence or testimony from being presented to the jury

Motions in limine are filed before trial to prevent the jury from hearing prejudicial or inadmissible evidence (prior criminal convictions, insurance information, inflammatory photos) that could taint deliberations.

What is diminished value in a vehicle accident claim?

Answer: The reduction in a vehicle's market value after being repaired following an accident

Diminished value compensates the owner for the fact that a repaired vehicle is worth less on the market than a comparable vehicle with no accident history.

How is future lost earning capacity calculated in a personal injury case?

Answer: By projecting the plaintiff's pre-injury earnings over their expected work life, discounted to present value

Economists and vocational experts calculate future lost earning capacity based on projected wages, career trajectory, work-life expectancy, and present-value discounting.

What is 'no-fault' auto insurance and how does it affect accident claims?

Answer: Each driver claims against their own insurer for medical expenses regardless of who caused the accident

In no-fault states, Personal Injury Protection (PIP) coverage pays the policyholder's medical expenses up to policy limits without needing to establish who caused the crash.

What is 'additur' in post-trial personal injury practice?

Answer: A judge's increase of an inadequate jury damages award as a condition of denying a new trial (permitted only in some states)

Additur is the counterpart to remittitur — the judge orders the defendant to pay more than the jury awarded or face a new trial; federal courts and some state courts prohibit additur as a Seventh Amendment violation.

'Vocational rehabilitation' benefits in workers' compensation are intended to:

Answer: Help injured workers acquire new skills or training to return to gainful employment

Vocational rehabilitation benefits fund job training, education, or retraining programs to help workers who cannot return to their prior positions due to their injury.

Which element of negligence requires a direct link between the defendant's conduct and the plaintiff's injury?

Answer: Causation

Causation requires both actual cause ('but-for' test) and proximate cause (foreseeability) to connect defendant's breach to plaintiff's harm.

Which of the following injuries would most likely NOT be covered by workers' compensation?

Answer: An injury sustained during a voluntary off-site company social event

Injuries at voluntary off-site events are generally not covered because they do not occur within the required scope of employment.

What is 'underinsured motorist' (UIM) coverage?

Answer: Coverage that pays the gap between the at-fault driver's policy limits and the full amount of the insured's damages

UIM coverage activates when the at-fault driver's liability limits are insufficient to fully compensate the injured party, covering the remaining damages up to the UIM policy limit.

What are hedonic damages?

Answer: Compensation for the loss of enjoyment of life and ability to engage in activities the plaintiff previously enjoyed

Hedonic damages address the plaintiff's loss of ability to enjoy life's pleasures and activities as they did before the accident.

Which tort doctrine holds an employer liable for the negligent acts of an employee committed within the scope of employment?

Answer: Respondeat superior

Respondeat superior ('let the master answer') imposes vicarious liability on employers for employee torts that occur within the scope of employment.