Pitfalls in Personal Injury Cases

Pitfalls in Personal Injury Cases

Introduction

Personal injury cases are not simple or easy. They have many traps for the unwary.

Here are some of the common pitfalls for those new to this area.

1. Statutes of Limitation

Many people think statutes of limitation are easy. They can be, except, you don't know what you don't know.

For example, in Arizona, an injured person typically has two years to file a lawsuit from the date of injury. A.R.S. § 12-542. But, if the claim is against a governmental entity like the State, a County, or a City, the time period is only one year. A.R.S. § 12-541.

Dram shop cases have another trap. Last year, the Supreme Court of Arizona held that “dram-shop actions are not based in a right of action recognized by our pre-statehood common law” and therefore, among other things, the statute of limitations is no longer two years. It’s only one year. See Torres v. JAI Dining Services (Phoenix), Inc., 256 Ariz. 212, 536 P.3d 790 (2023), see also A.R.S. § 12-541(5) and A.R.S. § 4-311.

Arizona’s Dog Bite Statute provides strict liability for the owners of dogs. A.R.S. § 11-1025. However, the claim must be filed within one year. A.R.S. § 12-541(5). Otherwise, the 2-year limitation applies, but strict liability does not.

2. Notices of Claim

Notices of Claim are tricky as well. Like statutes of limitation, failing to timely serve a sufficient notice of claim to the correct person or entity will bar any recovery for your clients. A.R.S. § 12-821.01.

Notices of Claim are required for any governmental entity. Seems simple enough, however, certain entities you may think are not governmental entities are still entitled to a Notice of Claim.

For example, Banner University Hospital is associated with the University of Arizona, a governmental entity. Therefore, tort claims against Banner University require a notice of claim.

Also, a portion of the Salt River Project (“SRP”) is an “improvement district.” In Arizona, “irrigation, power, electrical, agricultural improvement, drainage, and flood control districts, and tax levying public improvement districts” are entitled to the immunities of governmental entities. Ariz. Const. art. XIII, § 7. Therefore, some claims against SRP require a Notice of Claim. 

3. Failing to Preserve Evidence

Sending preservation letters to potential defendants as early as possible is crucial. If defendants fail to preserve evidence relevant to your clients’ claim(s), at trial, the jury may receive a spoliation instruction, which can devastate the defendants’ case.  See Souza v. Fred Carries Contracts, Inc., 191 Ariz. 247, 955 P.2d 3 (App. 1997).

Also, failing to preserve evidence can potentially eliminate your client’s claim(s) because you don’t have the evidence to sustain the action.

4. Third Party Interests (Liens, Subrogation, etc.)

There are many horror stories in this area. You may be forced to pay for your client’s past medical bills if not careful.

Medical providers may be entitled to a portion of your client’s settlement funds. Make sure you search the county recorder’s office for existing third-party claims on your client’s settlement funds. Otherwise, you can be on the hook, and, like all these pitfalls, create ethical problems. Ariz. R. Sup. Ct. ER 1.15.

5. Not spotting claims

In any car crash case, consider claims for:

1. Product liability issues against the manufacturer of the vehicle(s);
2. Road design/maintenance issues against governmental entities, HOAs, homeowners, and others;
3. Distracted driving from sleeping, eating, and/or cell phone use (use discovery/subpoenas to verify cell phone records);
4. Toxicology issues;
5. Diminution of Value;
6. Wage Loss;
7. Loss of Earning Capacity;
8. Household Services;
9. Negligent Entrustment; and
10. Uninsured/Underinsured Motorist claims.

In any injury case, consider claims for:

1. Negligence Per Se;
2. Vicarious Liability;
3. Negligent Hiring, Training, Supervision, Retention;
4. Negligent Credentialing (in medical malpractice);
5. Negligent Referral (professional malpractice);
6. Negligent Infliction of Emotional Distress;
7. Negligent Undertaking;
8. Joint Venture;
9. Alter Ego;
10. Joint Enterprise;
11. Loss of Consortium; and
12. Punitive Damages.

Conclusion

Personal injury cases are complex. This is just the tip of the iceberg. There are many more issues such as insurance bad faith, stacking insurance policies, the Federal Tort Claims Act, expert witnesses, and more.

Click here to read Jonathan's article published by Maricopa Lawyer. 

---

about the author

Jonathan Litster is a personal injury attorney at Gallagher & Kennedy in Phoenix, representing plaintiffs in a broad range of tort litigation, including catastrophic personal injury, insurance bad faith, motor vehicle accidents, product liability, and professional malpractice. He has extensive experience helping injured victims and their families obtain just compensation.