Recent Blog Posts

The Importance of Continuing Your Medical Treatment

Pete Clancy — Sat, 12 May 2012 01:06:00 GMT

If you are in an a rear-end accident, how can you show that you were hurt? The most common way to show an injury is with medical records. Each time you visit a doctor or medical facility, a record of that visit is created. You should be sure to tell the doctor about all of your injuries - and how they are progressing, getting worse, getting better, etc. If you do not tell the doctor about your problems, the problems will not make their way into the medical records.

Members of a jury were not with you when you were seen by the doctor, so they have no way of knowing about it other than by testimony from you or the doctors or, more likely, from medical records. If you are trying to settle a claim short of trial, medical records will be the main thing insurance adjusters, mediators and attorneys look at to evaluate just how badly you were injured.

It is therefore essential that you not miss any appointments. It is also essential that you be prepared for every appointment. Do not be shy about asking questions, making sure that all of your concerns are addressed, or making sure that what you tell the doctor makes its way into your medical records. If a doctor tells you to schedule a follow-up visit, do so. Be sure to make notes about how you are feeling on a daily basis so you can report these to the doctors.

It is very important that you be able to document all of your injuries - and attending all of your medical appointments, and being prepared for all of your appointments - is the best way to make sure that you have all the records you need to be fairly compensated for your injuries and damages.

Pete Clancy is an Oakland personal injury lawyer. He can be reached at 510-251-8868.

Personal Injury Damages: Aggravation of Pre-existing Condition

Pete Clancy — Sun, 06 May 2012 19:59:00 GMT

Eggshell Plaintiffs & Pre-existing Conditions

In law school we learned about the "eggshell" plaintiff. This is a plaintiff who is as fragile as an eggshell, and who suffers injuries that are disproportionate with what one might expect given the facts of a particular accident. For example: A person has just had back surgery. Being rear-ended at 5 mph would probably not do much damage to most people. But someone who just had back surgery might be injured very badly. He or she is as fragile as an egg shell. Personal injury law in California allows the eggshell plaintiff to collect for all of his or her damages.

There are three relevant jury instructions (that not only instruct the jury, but nicely summarize the law) that set out the test for the typical eggshell plaintiff:

CACI 430: Causation: Substantial Factor:

A substantial factor in causing harm is a factor that a reasonable person would consider to have contributed to the harm. It must be more than a remote or trivial factor. It does not have to be the only cause of the harm.

[Conduct is not a substantial factor in causing harm if the same harm would have occurred without that conduct.]

Case law:

"The substantial factor standard is a relatively broad one, requiring only that the contribution of the individual cause be more than negligible or theoretical. Thus, 'a force which plays only an "infinitesimal" or "theoretical" part in bringing about injury, damage, or loss is not a substantial factor', but a very minor force that does cause harm is a substantial factor. This rule honors the principle of comparative fault." (Bockrath v. Aldrich Chemical Co. (1999) 21 Cal.4th 71, 79 [86 Cal.Rptr.2d 846, 980 P.2d 398], internal citations omitted.)

"The text of Restatement Torts second section 432 demonstrates how the 'substantial factor' test subsumes the traditional 'but for' test of causation. Subsection (1) of section 432 provides: 'Except as stated in Subsection (2), the actor's negligent conduct is not a substantial factor in bringing about harm to another if the harm would have been sustained even if the actor had not been negligent.' . . . Subsection (2) states that if 'two forces are actively operating . . . and each of itself is sufficient to bring about harm to another, the actor's negligence may be found to be a substantial factor in bringing it about.' " (Viner, supra, 30 Cal. 4th at p. 1240, original italics.)

"[A plaintiff] is not required to eliminate entirely all possibility that the defendant's conduct was not a cause. It is enough that he introduces evidence from which reasonable [persons] may conclude that it is more probable that the event was caused by the defendant than that it was not. The fact of causation is incapable of mathematical proof, since no [person] can say with absolute certainty what would have occurred if the defendant had acted otherwise. If, as a matter of ordinary experience, a particular act or omission might be expected to produce a particular result, and if that result has in fact followed, the conclusion may be justified that the causal relation exists. In drawing that conclusion, the triers of fact are permitted to draw upon ordinary human experience as to the probabilities of the case." ' . . . ' "A mere possibility of . . . causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant." ' " (Raven H. v. Gamette (2007) 157 Cal.App.4^th 1017, 1029–1030.

CACI 3927: Aggravation of Preexisting Condition or Disability:

[Name of plaintiff] is not entitled to damages for any physical or emotional condition that [he/she] had before [name of defendant]'s conduct occurred. However, if [name of plaintiff] had a physical or emotional condition that was made worse by [name of defendant]'s wrongful conduct, you must award damages that will reasonably and fairly compensate [him/her] for the effect on that condition.

CACI 3928: Unusually Susceptible Plaintiff:

You must decide the full amount of money that will reasonably and fairly compensate [name of plaintiff] for all damages caused by the wrongful conduct of [name of defendant], even if [name of plaintiff] was more susceptible to injury than a normally healthy person would have been, and even if a normally healthy person would not have suffered similar injury.

"The tortfeasor takes the person he injures as he finds him. If, by reason of some preexisting condition, his victim is more susceptible to injury, the tortfeasor is not thereby exonerated from liability." (Rideau v. Los Angeles Transit Lines (1954) 124 Cal.App.2d 466, 471 [268 P.2d 772], internal citations omitted.)

We hear a lot about "pre-existing" conditions and assume that a tortfeasor is not responsible for damages related to these conditions. Don't confuse this with health insurane - where pre-existing conditions are quite problematic. While it is true that the tortfeasor is not responsible for the original condition, they are responsible for additional harm suffered by the plaintiff after this condition already exists.

Pete Clancy is a personal injury lawyer in Oakland, at Clancy & Diaz, LLP. They also have an office in Berkeley, California. Pete can be reached at 510-251-8868 or by email at pclancy@injuryoakland.com

Oakland Bicyclist Killed in Accident

Pete Clancy — Tue, 10 Apr 2012 16:52:00 GMT

April 10, 2012

A 51 year-old man was struck and killed by an SUV in Oakland on Monday at the intersection of Bancroft and 78th in Oakland. The driver of the SUV that struck the man stopped and cooperated with investigating officers. No determination of fault has yet been made public, and the man has not been identified. Interestingly, there is a pedestrian crosswalk at that intersection.

Pete Clancy is an Oakland personal injury attorney specialzing in helping pedestrians and bicyclists injured due to driver negligence. He can be reached at 510-251-8868.

Two Fatal Motorcylce Accidents Over The Weekend

Pete Clancy — Mon, 24 Oct 2011 05:07:00 GMT

Two motorcyclists were killed this weekend in the Bay Area - one on highway 580 in Oakland, the other in Lake Chabot park in Castro Valley.

The first motorcycle accident took place on Highway 580 near the Oakland/San Leandro border, when a motorcyclist was struck and then dragged by a driver of a paratransit van. The driver of that van was arrested under suspicion of murder.

The second motorcycle accident happened in Castro Valley near Lake Chabot when a minivan swerved into oncoming traffic.

The families of both decedents have wrongful death claims against the drivers of the other vehicles. The driver of the paratransit vehicle may face criminal charges, although his employer may be liable for at least some of his actions.

Pete Clancy is a personal injury attorney in Oakland. He can be reached at 510-251-8868. He was named a 2010 and 2011 "Risimg Star" by Super Lawyers magazine and is a life member of the Million Dollar Advocates Forum.

Pedestrian and Bike Accidents in Oakland - a Map

Pete Clancy — Tue, 27 Sep 2011 21:53:00 GMT

Last year I put up a blog post about the most dangerous intersections in Oakland for pedestrian accidents and bike accidents. It an be found here.

I have now taken that information and placed it on a Google Map, available here. Feel free to comment on it and suggest new places.

Drunk Driver Kills Motorist in Fremont

Pete Clancy — Mon, 26 Sep 2011 21:05:00 GMT

An 83 year old Fremont resident was killed when an apparenlty drunk driver crashed into his car on Sunday. The deceased party has been identified as Irving Williams. The alleged drunk driver has been identified as 53 year old Todd Lovejoy, also of Fremont.

Before the car accident, a number of people contacted 911 just minutes before the crash, reporting a driver who was stopping at green lights and running through red lights. Lovejoy was reportedly arrested on vehicular manslaughter charges.

The family of Mr. Williams may have a viable wrongful death claim against the driver who killed him. Our thoughts and prayers go out to his friends and family.

More information is available here.

Children's Personal Injury Claims - Time Away From School

Pete Clancy — Wed, 21 Sep 2011 14:54:00 GMT

Children's Personal Injury Claims - Lost Time At School

When an adult is injured in a rear-end accident or a pedestrian accident, he or she will have medical bills, pain and suffering and perhaps lost wages. When a child is hurt in a pedestrian accident, rear-end accident or other car accident, he or she will have medical expenses and paid and suffering, but no lost wages.

On the other hand, children may miss school as a result of their personal injuries. When an adult misses work and loses $500 in pay, it is easy to calculate the lost wages - you simply look at what the adult would have earned without the accident, and what he or she actually earned. The difference are the lost wages attributable to the accident.

So how do you value time missed from school?

Part of the analysis is how much time the child missed. An afternoon away from school may be a welcome break for the child (if not the parent). A missed semester, or an entire school year is an entirely different matter. I had a client who was struck while walking to school and, due to an infection at the hospital, missed the second semester of her senior year in high school. She had been going to school with the same people for 12 years or so, and all of her friends were graduating at that time. She missed out on Senior Prom, graduation, and a whole host of other experiences that everyone else got to enjoy. So that part of her claim was quite valuable.

At the other end of the spectrum, I have had clients who missed a day or two of school and were pretty happy to do so.

If your child has been injured in an accident, don't simply assume that their claim is somehow worth less than yours simply because they do not have lost wages. Time away from school and friends can be devastating to a child, and in some cases can delay their graduation and effectively put their life on hold. For a detailed analysis of your child's personal injury claim, you should always consult with a personal injury attorney.

Pete Clancy is an Oakland personal injury attorney. He was selected as a Rising Star by Super Lawyers Magazine in 2010 and 2011 and is a life member of The Million Dollar Advocates Forum. He can be reached at 510-251-8868.

Personal Injury Glossary

Pete Clancy — Fri, 16 Sep 2011 15:04:00 GMT

If you are involved in a personal injury claim, and you have never had a claim before, you may hear some new terminology. Below are some basic terms and what they mean. If you have questions about a personal injury claim, call (510-251-8868) or write us.

Personal InjuryGlossary:

Cause of Action: A legal claim against someone else. Examples are "breach of contract," "negligence," "wrongful death."

Claim: An argument that some other person is responsible for paying compensation to you.

Damages: The injuries, wage loss, monetary loss, property loss, etc. that you attribute to an accident.

Date of Loss: The date of your accident.

Defendant: If you file a lawsuit, this is the person you are suing, who you claim is legally responsible for your damages.

Demand Letter: A letter we prepare with you to send to the insurance company outlining your claim, your damages and any other relevant issues. The letter closes with a demand for a certain amount of money.

Deposition: A recorded interview with a party to a lawsuit and attorneys for both sides. The interview is subject to the rules of evidence and, while it is informal, it is a very serious matter. A deposition comes only after you have filed suit.

General Damages: Damages for which there is no bill or invoice. A great example is "pain & suffering."

Liable/Liability: Responsibility for your damages. We want to show that the other side is liable for your injuries.

Med-Pay: Insurance you should have as part of your auto insurance. It pays for some of your medical expenses regardless of who is at fault.

Medical Records: Records maintained by a medical professional relating to your treatment.

Medical Specials: The total medical bills you are claiming.

Negligence: A legal theory against a defendant. It basically means that the other party was not reasonably careful and hurt you.

Party: One of the people who is part of a lawsuit (a Plaintiff or a Defendant)

Personal Injury: An injury to ones body; a physical or mental injury (as opposed to property damage).

Plaintiff: The person starting a lawsuit (you).

Special Damages: Damages that can be counted by using bills or invoices.

Statute of Limitations: A law limiting the amount of time you have to either settle your claims or file a lawsuit.

Uninsured Motorist Coverage: Insurance you should have – it protects you in the case that you are injured someone with no insurance.

Underinsured Motorist Coverage: Insurance that protects you in case the person who hit you has insurance, but not enough to cover your losses.

UM/UIM: Uninsured/underinsured motorist coverage.

Wage Loss Claim: Any earnings you did not receive because of a personal injury claim. These must be documented and cannot be "speculative."

Pete Clancy is an Oakland personal injury lawyer. He was named a 2010 and 2011 Rising Star by Super Lawyers Magazine and is a member of The Million Dollar Advocates Forum. He can be reached at 510-251-8868.

Right of Way in Left-hand and U-Turns

Pete Clancy — Fri, 09 Sep 2011 16:11:00 GMT

Intersection accidents typically involve either a car running a red light, or (more often), a car failing to yield the right of way when it is making a left turn.

California Vehicle Code Section 21801(a) provides:

The driver of a vehicle intending to turn to the left or
to complete a U-turn upon a highway, or to turn left into public or
private property, or an alley, shall yield the right-of-way to all
vehicles approaching from the opposite direction which are close
enough to constitute a hazard at any time during the turning
movement, and shall continue to yield the right-of-way to the
approaching vehicles until the left turn or U-turn can be made with
reasonable safety.

This means that you must wait until it is safe before proceeding with your turn. Intersection accidents often take place when one of the drivers fails to properly yield. This is most often the result of trying to “beat” the other car through the intersection and can cause severe injuries. If a car cuts in front of you and you are injured, you have a claim for negligence. These cases are often disputed, and the other driver is likely to argue that you were speeding, and that you were therefore the cause of the accident.

If you have had an intersection accident, contact Oakland personal injury lawyer Pete Clancy. Pete was named a 2010 and 2011 Rising Star by Super Lawyers Magazine and is a life member of The Million Dollar Advocates Forum. Outside of the office, Pete is a father, husband and ultra-marathon runner. He can be reached at 510-251-8868.

4-year old killed by hit and run driver

Pete Clancy — Fri, 19 Aug 2011 21:03:00 GMT

A 4-year old boy from Santa Rosa was killed after he was hit by a car, while in a crosswalk. The pedestrian accident happened at the intersection of West 9th and Rockwell. The crosswalk is very visible - bright yellow with horizontal and vertical stripes.

After the accident, the boy was taken to Children's Hospital Oakland, where he later died.

A suspect was arrested after he was seen peeling decals off his car windows (in an apparent attempt to escape liabilitty). The man had no driver's license and had twice before been arrested for driving with no license.

Pedestrians are especially vulnerable to injuries as they often have little time to react, and no real protection from a car or truck.

The family of the young boy has a viable wrongful death claim against the driver, but it is likely that the driver has no insurance (since he has no license and does not appear to be very responsible). That may open the possibility of an uninsured motorist claim. They clearly also have a basis for punitive damages, and it is exceedingly likely that the driver will be prosecuted.

Pete Clancy is a personal injury lawyer in Oakland. He can be reached at 510-251-8868.

Oakland Personal Injury Lawyer Obtains Policy-Limits Settlement for Pedestrian

Pete Clancy — Tue, 09 Aug 2011 17:42:00 GMT

Oakland Personal Injury AttorneyObtains Policy Limits Settlement For Injured Pedestrian

We recenlty resolved the claim of a pedestrian who was struck while in the crosswalk. She absolutely had the right of way when she was crossing the street. A distracted driver apparenlty did not notice her and struck our client.

Our client reported that she was not in pain, but was taken to the hospital and given a series of diagnostic tests. The result of these was that, while she was bruised and scratched up, she was not physically injured. This is remarkable given the speed of the car that struck her and the physics of the accident.

The real long-term impact was our client's anxiety any time she was in or near a car.

We had to fight the insurance company to get the policy limits, but the insurance adjuster eventually saw that our client's anxiety was tied directly to the accident and that we were not going to take anything less than all of the money available.

Pete Clancy is an Oakland personal injury attorney, a member of the Million Dollar Advocates Forum and a 2010 and 2011 Rising Star (from Super Lawyers magazine). He can be reached at 510-251-8868 or by email (pclancy@injuryoakland.com).

Pedestrian Accidents and California Vehicle Code Section 21950

Pete Clancy — Thu, 30 Jun 2011 20:47:00 GMT

What rights does a pedestrian have when crossing the street? What responsibilities? The main thing to remember is that regardless of your legal rights or obligations, if you are hit by a car, you will be hurt. Your "legal rights" will not make you feel much better. So remain vigilant.

That said, it is important to know your rights and responsibilities if you are a pedestrian and have been struck by a car. Per California Vehicle Code §21950,

"The driver of a vehicle shall yield the right-of-way to a pedestrian crossing the roadway within any marked crosswalk or within any unmarked crosswalk at an intersection, except as otherwise provided in this chapter."

This means that a car is obligated to yield the right of way to a pedestrian who is in a crosswalk. That does not mean that you can "jump out" in front of an approaching car. Not only would this get you injured, you might be precluded from recovering for your personal injuries.

The requirement that a driver does not "relieve a pedestrian from the duty of using due care for his or her safety." Further, "no pedestrian may suddenly leave a curb or other place of safety and walk or run into the path of a vehicle that is so close as to constitute an immediate hazard." In other words, do not jump out in front of a car.

The scenario I see most often is that a driver inches out of a parking lot or cross street, looks to the left for oncoming traffic and then pulls forward - totally ignorant of the bicylcist or pedestrian approaching from the driver's right. The driver sees it's clear, hits the gas and - also hits the pedestrian or bicyclist. Insurance companies fight these claims with one argument the repeat often - the pedestrian "jumped out." This is usually not the case, and it is worth talking to an Oakland personal injury lawyer if you have been hurt.

Pete Clancy is an Oakland personal injury lawyer specializing in helping people injured because of other parties' negligence. He can be reached at 510-251-8868.

Person Killed in Car Accident on Highway 80 in Fairfield

Pete Clancy — Tue, 28 Jun 2011 23:13:00 GMT

A one-car accident took the life of the driver when the car went off the freeway and onto the street below, near the Red Top Road exit off of Highway 80 in Fairfield. The CHP have not released identifying information.

Pete Clancy is an Oakland personal injury lawyer. He can be reached at 510-251-8868 and by email (pclancy@injuryoakland.com).

Personal Injury Protection

Pete Clancy — Mon, 20 Jun 2011 23:26:00 GMT

"Personal Injury Protection" (also known as " med-pay") is a feature available when you purchase your auto insurance that will help protect you if you are injured in a car accident. If you are injured in a car accident, your personal injury protection coverage will cover your reasonable medical expenses. The limit is normally $2,000, $5,000 or $10,000 per accident. This can be very helpful if you are injured with no health insurance.

This coverage will allow you to recover from your injuries and will allow you to present a claim to the insurance company that is documented. There is nothing worse than a person who is injured but who is unable to afford treatment - this jeopardizes the entire case.

If you finance your treatment through med-pay or personal injury protection insurance, you may be required to re-pay some or all of the bills paid by your insurer. But at a minimum, this allows you a chance to recover for your personal injuries after a car accident.

Pete Clancy is an Oakland personal injury lawyer. He is a member of the Million Dollar Advocates Forum and was named a 2010 Rising Star by Super Lawyers Magazine. He can be reached at 510-251-8868.

Oakland Personal Injury Named to 'Million Dollar Advocates Forum'

Pete Clancy — Mon, 13 Jun 2011 23:35:00 GMT

Oakland personal injury attorney Pete Clancy has been named a life member of the Million Dollar Advocates Forum, effective June 13, 2011. Less than 1% of attorneys in the United States belong to this prestigious organization.

Oakland personal injury lawyer Pete Clancy represents people who have been injured in rear-end accidents, head-on collisions and pedestrians who are injured due to the negligence of others.