Personal Injury Recovery – Civil & Criminal? Restitution?

Restitution and Personal Injuries – Are Clients Leaving Money on the Table?

YOU’RE REAR ENDED BY A DRUNK DRIVER ON THE FREEWAY.

 The at-fault driver is arrested, but you’re whisked away to the hospital to check for serious injuries. Months later you get a call from the local district attorney’s office asking if you would like to appear at a criminal restitution hearing regarding the accident. Should you appear? Does this bar you from further recovery in civil court?

If the civil defendant (at-fault driver, in our example) is convicted of a crime – be it an infraction, misdemeanor or felony – and that crime caused the injuries that were a subject of the civil suit, victim restitution comes into play. As a victim, the plaintiff is entitled to restitution. While it is true the victim/plaintiff cannot recover twice for the same injury, restitution can still make a huge difference in the take home for the plaintiff. The reason: a victim may recover restitution for the attorneys’ fees incurred in his or her civil case against the defendant. People v. Pinedo (1998) 60 Cal. App. 4th 1403, 1406, 71 Cal. Rptr. 2d 151. An example will make the financial impact of this right clear.

Let’s continue with the example above: after your accident, you hire a local personal injury attorney on a 40% contingency fee. The defendant pleads guilty to driving under the influence. There is a $100,000 civil settlement, comprised half of economic (medical bills, therapy, lost wages) and non-economic (emotional distress) damages. The attorney will receive about $40,000 as their fee. After you receive the civil settlement, you can later go to criminal court and seek a restitution order for one-half of the contingent fee, $20,000. This amount is sought because one-half of the civil settlement was for economic losses. The victim had to pay attorney fees to get that part of the civil settlement, and you are therefore entitled to recoup the same from the defendant as restitution. The criminal court can order $20,000 restitution. That means your net civil recovery of $60,000 ($100,000 less the $40,000 contingency fee) will increase by 33% to $80,000. That is a huge increase which may be left on the table. 

Realistically, to get a $20,000 restitution order will certainly take an independent wealthy defendant as well as multiple appearances in criminal court. Representation in criminal court, however, usually requires an hourly charge. The defendant is entitled to, and will, oppose the restitution. There will be briefing in addition to hearings.

 

A natural question is who pays for this excursion into criminal court. The answer is in a statute: Penal Code §1202.4(f)(3)(H) allows recovery by victims (as part of restitution) of their “actual and reasonable” attorneys’ fees. So the victim may recover, from the defendant, any fees expended in criminal court to get fees in the civil case.

Although it may take several appearances to get to the restitution hearing, that hearing stands in stark contrast to a civil trial and its antecedents: no discovery, no depositions, proof may be made by declaration and live witnesses are not required. A restitution hearing can be put on calendar within weeks in most criminal courts. Most hearings take less than an hour, if appropriate preparation and briefing has been done.

But you, the savvy client, ask about the release you signed as part of your civil case. “[T]he settlement of a civil action and release of the defendant by the crime victim does not discharge the defendant’s responsibility to satisfy the restitution order.” People v. Vasquez (2010), 190 Cal. App. 4th 1126, 1133. There are several reasons for this. First, one of the oldest laws on the books instructs: “When the violation of a right admits of both a civil and criminal remedy the right to prosecute the one is not merged in the other.” Code of Civil Procedure §32 (1872), entitled “Civil and Criminal Remedies not Merged.”

Another reason is that the parties are not the same in a civil case and a criminal case. A victim is not a party to a criminal prosecution. The only parties are the People and the defendant. A third reason the civil settlement release cannot spill over into a criminal case is because restitution has a unique criminal law purpose: rehabilitation. Making criminals pay restitution to the victim is part of the learning experience for a defendant; a learning experience intended to direct the defendant away from illegal activity. Hopefully.

Once restitution has been ordered, additional tools are available to enforce payment. The criminal system has its own garnishment procedures. If the trial court determines that the defendant has the ability to pay restitution, it must enter a separate order for income deduction once restitution has been determined. Penal Code §1202.42. Also, when the court grants probation and orders the defendant to make restitution, timely payment is a condition of probation. Willful failure to pay restitution can result in revocation of probation and imprisonment. People v Lawson (1999) 69 Cal. App. 4th 29, 39, 81 Cal. Rptr. 2d 283. Thus, creating the urgency to pay the restitution order.

While this restitution tool may not apply to every case, it is a powerful tool to utilize when restoring an injured Plaintiff. Make sure to consult with an experienced and knowledgeable injury attorney before getting intimidated by a request to testify in criminal court.

 

The author, Joshua Bonnici, is the managing attorney at BONNICI LAW GROUP, APC, who represents injured and disabled individuals fight for fair and just outcomes. Feel free to learn more and reach out, at: www.bonnicilawgroup.com, or at: 619-259-5199.

 

Posted in Uncategorized | Leave a comment

Medical Malpractice and Settlement Caps

Is $250,000 Adequate Compensation For the Loss of A Loved One?

By Jillian Devlin
 

Last week, the Los Angeles Times reported about a campaign collecting signatures for a ballot initiative that would significantly increase the medical malpractice cap in California, which is currently $250,000.  Supporters have until March 24th to submit signatures.  The increase could significantly affect you and your loved ones.  This blog is intended to provide an objective overview of the current med mal law, and the proposed changes to it.  Our goal is to educate people, especially those who could possibly be voting for this major reform next month.

History of Medical Malpractice in California

In 1975, California legislature enacted the Medical Injury Compensation Reform Act, or MICRA.  MICRA mandates that all awarded pain and suffering damages (emotional/physical harms) related to medical malpractice shall be no greater than $250,000, even in the case of death.[1]  That amount has not been adjusted for inflation at any point in the law’s nearly 40-year existence.[2]  Pain and suffering damages are considered “non-economic damages”, which are damages/harms that are intangible and difficult to calculate.  This is opposed to tangible “economic damages”, such as medical bills, lost wages, or property damage, which have easily ascertainable values.  Both economic damages and punitive damages (damages designed to punish the defendant in a lawsuit) are unlimited under MICRA.

Importance of Pain and Suffering Awards at Trial

Quite often, the jury awards given for non-economic damages by a jury verdict make up the largest portion of any jury verdict.  Additionally, the awards given by the jury symbolize the jury’s desire to hold a defendant financially accountable for their mistakes, besides future medical expenses and lost wages (economic damages).  Most importantly, a large award for pain and suffering is habitually an impetus to amendment, adjust, or completely reform policies and procedures, which protects medical consumers and promotes public policy.[3]

In California, a jury may award you millions of dollars in regard to non-economic damages/pain and suffering; but because of MICRA, the award will automatically be reduced to exactly $250,000, no matter how much negligence or malpractice occurred.[4]

Which People Are Most Negatively Impacted by MICRA?[5]

Women, children, and the elderly.  Why?  We have to look at the type of damages that MICRA limits, and those damages it does not.  Because MICRA does not limit economic damages (lost wages and medical bills), women, the elderly, and children, have less loss wages (if any) to be reimbursed.  Generally, women tend to earn less than men, many elderly do not work, and children cannot work.  Therefore, the unlimited amount of economic damages available to them does not mean much.

Also, women may be more affected because a number of injuries only women can sustain result in more non-economic, rather than economic damages.  For example, if medical malpractice causes a miscarriage or loss of fertility, this could cause a huge amount of non-economic damages (pain and suffering), but minimal economic damages (medical bills, lost wages). 

Award caps also negatively affect most victims’ ability to sue because tort attorneys will be hesitant to take a medical malpractice case.  Attorneys practicing tort litigation tend to work on a contingent basis; typically clients pay nothing upfront, and the lawyers receive a certain percentage of the damages awarded to their client at the end of litigation.  Because non-economic damages are limited to $250,000, many attorneys may reluctant to take on cases with a small chance of significant payouts in relation to the amount of work put into it difficult and expensive malpractice cases.

What Would the New Ballot Initiative (NBI) Do?

The ballot initiative would raise the limit on medical malpractice damages to $1.1 million in California and also allow for continued adjustments for inflation.  Additionally, the ballot measure would mandate all physicians to check a prescription drug tracking data before prescribing controlled substances to patients; undergo randomly administered drug and alcohol testing throughout the year, and mandated drug and alcohol testing after an unexpected death or injury occurs; report any medical negligent or substance misuse by other colleagues; and lastly, automatic suspension if physicians test positive for alcohol or drugs while on duty.[6]

Critics of the NBI

Critics of the NBI claim that all the ballot initiative would increase health care costs, lawyers’ fees, and meritless lawsuits; and decrease access to care and possibly the quality of medical care.[7]  People who support MICRA, the current law in place, also state that MICRA helps attract physicians to the state.

Many people in the medical community argue that in relation to higher health care costs, a raised cap will lead to higher medical practice insurance rates, more hesitant doctors prone to performing extra tests, and physician shortages for community clinics.[8]

Proponents of the NBI

People who are in favor of raising the medical malpractice claim, argue that if the NBI passes, it will be beneficial for many different reasons.  First, people’s access to counsel for medical malpractice claims will greatly increase.[9]  Supporters of the NBI also claim that the research is mixed on whether medical malpractice caps actually decrease soaring healthcare costs, and even if a decrease is shown, it is often a trivial percentage.  Proponents of the NBI also have an emotional argument; often if parents lose a child as a result of a physician’s malpractice or negligence, the most they can recover for their pain and suffering is $250,000.  Although no amount of money can ever replace losing a child, other parts of the ballot initiative, such as mandatory drug testing and automatic suspension, could help other parents avoid the unimaginable hurt and suffering of losing a child.[10]

Conclusion

As with any political discussion, it is important to be informed.  There are many more in depth articles, opinions, studies, and research to review and educate yourself in order to make the best choice for you and your family, in regards to the raising of the medical malpractice cap.  Whatever your opinion, I hope you enjoyed this blog and learned a few new things about an important topic.

*About the author: Jillian Devlin is a third year student at Thomas Jefferson School of Law.  Her interest in personal injury law stems from working with injured athletes and patients at the University of Iowa, where she received a degree in Sports Medicine and minored in Psychology.

Want to learn more about the author or get legal advice? Click here and contact Bonnici Law Group, APC today.


[1] Planned Ballot Measure Would Raise State’s Medical Malpractice Cap, California Healthline, February 19, 2014

[2] Planned Ballot Measure

[3] California Consumer Advocates Seek to Raise Medical Malpractice Caps, Cutter Law, September 11, 2013

[4] California Consumer Advocates

[5] Raise the cap on malpractice awards, Los Angeles Times, August 13, 2013

[6] Planned Ballot Measure

[7] Hope dimming for changes to California medical malpractice awards cap, ABC News, August 16, 2013

[8] Reality Check: Does Malpractice Reform Carry Price Tag?, NBC Bay Area, August 17, 2013

[9] Raise the cap on malpractice awards

[10] Raise the cap on malpractice awards

Posted in Uncategorized | Leave a comment

Homeowner Liability – To warn or not to warn…

Home Possessor’s Liability for Injuries on His Land: California’s Exceptional Rules!

            You’re having a big party for 4th of July, you spent all day cooking and cleaning in preparation for your guests and everyone is having a wonderful time until. Mary slips over the snag in the carpet you meant to get fixed the following week.  Mary breaks her arm and sues you for all of her medical expenses including pain and suffering.  What now?!?

            Beyond bringing Mary flowers at the ER, you need to start thinking about who’s at fault. California generally enjoys specific and unique laws as compared to other states, and laws regarding home possessor’s liability for injuries on their land are no exception.  Most states distinguish the type of guest the injured party is and establish the duty of care accordingly.  For example, in most states, land possessors owe a higher duty of care to people who come onto their land for the purpose of business dealings (legally defined as invitees) as compared to trespassers who enter the home without permission of the land possessor.  California, however, has become part of a minority of states who do not to follow common-law principles.

            In accordance with a California Supreme Court case, Rowland v. Christian[1], California has eliminated all distinctions between types of guests and instead established a blanket standard.  The Court in Rowland determined that the appropriate test for land possessor’s liability is pursuant to California Civil Code Section 1714[2].  This section bases liability on whether the landowner acted reasonably with regard to care of the property.  The Court established several elements that juries may consider when establishing liability.  Some of these considerations are: whether or not the landowner could foresee the harm (could you foresee that someone would slip over the snag in the carpet?); moral blame of land possessor’s conduct (was it morally wrong for you to not fix the carpet before having so many people over?); extent of burden to the land possessor (how burdensome would it be for you to pay Mary’s medical bills?) and so on.  At first glance, these standards don’t seem too unreasonable.  It seems that a logical jury could come up with a fair and responsible verdict in accordance with these elements.  But, there’s a catch: the deletion of distinctions means you may even be liable for trespassers who come onto your land and harm themselves!  The only exception, in accordance with California Civil Code Section 846[3] is if a trespasser enters another’s property for recreational purposes (such as hiking, hunting, camping, sightseeing etc.), and even the exception has loopholes.              Many critics of the California law argue that the only effect of the transformation from the common-law standard is as an invitation to trespassers and/or intruders into private property without deterrence. However, the courts that have adopted this standard believe that while it may over-deter in some cases, it is an effective way to encourage land possessors to ensure their property is free from any known dangers. 

            So how do you avoid being liable for other people’s injuries? No, you don’t have to ban all people from coming over.  If you are having a party at your home, remember to warn all of your guests of any dangerous condition that may potentially cause an injury.  These include anything where anyone can trip, any slippery conditions or lose knobs that may potentially fall off, etc.  Get creative – better to over-warn than under-warn!  Additionally, regularly inspect your property for anything that could potentially cause liability for trespassers.  If the danger is unknown you may be penalized for not discovering the danger, so be thorough!  If by chance you are in a situation where a trespasser is injured on your property, proof of regular inspections may work to your advantage and take away from any moral blame on your end.  Lastly, purchase a good home insurance liability plan so that in case you are found at fault, you won’t be forced to pay out of pocket expenses.

            As it turns out, the incredibly high cost of living is not the only penalty for the universally envied weather and location California enjoys.

The guest author of this blog, Emilia Arutunian, is a second year law student at University of San Diego, School of Law.  She is passionate about helping people understand the law so that they will have an easier time following it. Want to learn more? Become a guest blogger? Contact BONNICI LAW GROUP today!

 

Posted in Uncategorized | Tagged , , , | Leave a comment

Bike riders drive me crazy!

Bicyclists – where do they belong?

While on vacation in Germany with my wife, I had the opportunity to have some time to myself while we were visiting friends. She was out wine tasting, and I stayed in to get some work done and relax. I found myself at a local park a few blocks from our friends’ apartment. After noticing the beautiful European streets, it was apparent that parking was a problem. Cars driving on century-old roads were forced to park either partly, or at times completely on the sidewalk, and very few Germans in the town had their own personal garage or driveway for vehicle storage.

This necessitated the large population of people using bicycles for local transportation (not to mention the nearly $8 per gallon prices for gasoline…). While walking through the park, I observed people riding on the streets, sidewalks and walking paths. My friends told me that it is great having people ride their bikes to keep the neighborhood “greener” and also help the congested parking situation, but they were frustrated with how they perceived the cyclist’s ownership of the road mentality.

While I won’t attempt to try and interpret German law (or anything German, really), California’s Vehicle Code sections 21202 deal with these issues squarely. Unbeknownst to many motorists, cyclists have many of the same rights and requirements as do motorists. To start, they are entitled use of the entire traffic lane if there is no clearly marked “bike lane.” This right entitlement, however, also comes with the requirement of abiding by the same laws as vehicles. Cyclists must signal turns and stops with the appropriate hand signals, must follow speed limits (if applicable), street directions and traffic controls (stop signs, traffic signals and others). 

While minors are required to wear a helmet while riding their bike, it is only suggested for adults. No matter the rider’s age, however, bicyclists are generally not allowed to ride on sidewalks as a safety precaution to pedestrians. (One of my personal pet peeves is when an inexperienced cyclist rides on the sidewalk and you have to do some sort of amateur ballet move to avoid being struck). Some cities have begun hanging signs advising riders that they cannot ride on the sidewalk, and enforce the violation through fines.

Whether you’re attempting to break Lance Armstrong’s Tour de France records (valid or not), or riding to work to save on parking, it’s best to know the rules and stay safe. Riding bicycles is a great way to explore our great city, get exercise and also save money and help reduce pollution.

As my German friends I stayed with would say: Nicht auf dem Bürgersteig parken, mit dem Fahrrad fahren! (“Don’t park on the sidewalk, ride a bike!”)

Posted in Uncategorized | Tagged , , , , | 1 Comment

Crosswalk with no stop sign or stop light. What do I do?

Do I have to stop at an uncontrolled crosswalk?

Why did the chicken cross the road? To get to the other side, of course. But, how did the tasty fowl get there?

Everyone is familiar with the pedestrian crosswalk at a traffic light or stop sign. The law requires you to come to a complete stop (at a stop sign or red traffic light), and because of the stopping requirement, any pedestrians wishing to cross the street may do so when it is safe.

But, what if there’s a marked crosswalk, but no stop sign or traffic signal “controlling” the area? 

People say that pedestrians always have the right of way; so what if they walked in a marked crosswalk in front a moving vehicle? Should the motorist be responsible?

In California, the law describes both the responsibilities of the pedestrian, and the motorist. However, they are not as cut-and-dry as people would think.

CA Vehicle Code 21950.  (a) 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.

(b) This section does not relieve a pedestrian from the duty of using due care for his or her safety. 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. No pedestrian may unnecessarily stop or delay traffic while in a marked or unmarked crosswalk.

(c) The driver of a vehicle approaching a pedestrian within any marked or unmarked crosswalk shall exercise all due care and shall reduce the speed of the vehicle or take any other action relating to the operation of the vehicle as necessary to safeguard the safety of the pedestrian.

(d) Subdivision (b) does not relieve a driver of a vehicle from the duty of exercising due care for the safety of any pedestrian within any marked crosswalk or within any unmarked crosswalk at an intersection.

Because of the ambiguity of the laws, cases where pedestrians are injured after being struck by a vehicle are difficult, and the parties often share liability. Specific facts such as how many times a pedestrian looked for oncoming traffic, the visibility on the day of the accident, the speed of the motorist and a host of others all come into play for an investigation into the responsible party.

Moral of the story? Whether you are a pedistrian enjoying your latte on a beautiful Saturday afternoon in La Jolla, or a motorist driving to a business meeting downtown, make sure to be aware of your surroundings. Only enter the street or cross a crosswalk when it is safe to do so. There are many distractions in our beautiful city of San Diego, so stay focused and get where you are going safely! 

Have a question regarding pedestrian rights? Feel free to contact BONNICI LAW GROUP for a free consultation. 

Posted in Uncategorized | Tagged , , , , | Leave a comment

Can I use my Maps Feature on my Phone While Driving?

Phone driving photoEvery driver knows that using your cellphone while driving is a big no-no in California, unless you are utilizing a hands-free device. But what exactly does the term “using” mean? It’s obvious that talking and texting is prohibited while driving, but what about using your cell-phone GPS or playing music from your phone? The term may encompass more activity than you think and one California resident put the term to the test.

Steven Spriggs, the defendant in a recent Fresno California Court of Appeals case, was pulled over and cited for using his phone while operating a vehicle, in violation of Vehicle Code Section 23123. The basis of Spriggs’ argument is that he was not in violation of the code because he was not technically using his phone to make a phone call or write a text; he was using the map function. The Appellate Court did not find his argument persuasive. The Court ruled that the no cell-phone while driving ban applies to ALL activity that requires a driver to use their hands to operate their phone. The court reasoned that the purpose of the vehicle code was to prevent “the distraction a driver faces when using his or her hands to operate the phone.” This distraction would occur regardless of if the purpose of using the phone were to make a phone call, text, or use the map.

But what about using an old fashioned paper map while driving, a TomTom navigation system, or playing music from an ordinary mp3 player in your car? These activities are not a violation of the vehicle code because the code specifically prohibits the use of a “wireless telephone,” however; they may be just as distracting if not more distracting than using a cell-phone’s GPS or music capability. The Appellate Court in Spriggs, recognized the irony of prohibiting the use of a cell-phone while driving when there are numerous devices and items that are equally as distracting to drivers that are not prohibited. However, as the Court stated, the regulation of these other distracting devices will have to be left to the legislature.

Prohibiting all activity on a cellphone while driving is a good way to keep distracted drivers off the road but it is definitely not a final solution to the problem. There will always be distractions so long as there is driving. So, do what you can to prevent the problem even if the law does not prohibit it, it could save your life!

People of the State of California v. Spriggs

https://www.documentcloud.org/documents/680893-jad13-02.html

This blog is maintained by the BONNICI LAW GROUP, and written by legal assistant Chelsey Del Testa. Ms. Del Testa graduates from Thomas Jefferson School of Law this month, and will sit for the California Bar Exam in July 2013. For more information on any of the above, feel free to contact us!

Posted in Uncategorized | Leave a comment

“I got hit by someone without auto insurance. Now what?!?”

Hit by an Uninsured Driver…Now What? – By Chelsey Del Testa

Getting in a car accident can be stressful enough with out having the additional stress of finding out the person who hit you is uninsured, or has decided to flee the scene of the accident. This may be an even more stressful and expensive situation if you are not armed with uninsured or underinsured motorists insurance.

In all states, it is mandatory that every person driving an automobile not only have auto insurance but proof of such insurance at all times. According to a study by The Insurance Research Council, one in seven drivers nationwide are uninsured, and in California, approximately 15% of drivers are uninsured. This is not surprising considering the high cost of having auto insurance, and the effect of past accidents or violations has on pricing.

Additionally, it is California law that auto insurance companies require that you have uninsured and underinsured motorist coverage or sign a written waiver acknowledging the lack of coverage. While this may make the cost of auto insurance cheaper at the outset, opting out of the additional coverage could have some serious financial consequences when an uninsured driver hits you. Your insurance company may only cover a certain percentage, and your only recourse would be to sue the uninsured driver. Successful litigation is not likely going to turn out well since chances are, if the driver could not afford insurance, they are not going to be able to afford expenses resulting from the accident. This may leave you with the financial responsibility for harm caused as a result of the accident and additional attorney’s fees.

Uninsured or underinsured motorists insurance can save you the headache of having to deal with the stress of not being compensated for your losses and protect you from unexpected bills. Uninsured motorist insurance provides drivers with additional compensation when an uninsured driver hits you, you are a victim of a hit and run or you were in a pedestrian accident with an uninsured driver.

Underinsured motorists insurance can also provide additional compensation when the at-fault party’s insurance policy will not cover all of your costs. Both types of insurance will cover not only your medical expenses, but also your lost wages resulting from the accident, which you will not get with ordinary liability insurance. Adding uninsured or underinsured motorists insurance to your policy can be affordable and a good investment considering the cost of not having such a policy and the unpredictability of auto accidents.

Have questions about auto insurance or how a claim may be affected? Contact the BONNICI LAW GROUP today for your free consultation.

 

Chelsey is a legal intern at Bonnici Law Group and a third-year student at Thomas Jefferson School of Law. She is passionate about people and solving problems. For any questions, ideas, or comments feel free to email Chelsey at the Bonnici Law Group.

 www.bonnicilawgroup.com

760. 445. 7118

Posted in Uncategorized | Tagged , , , , , , | Leave a comment

Got legal issues? Questions? Concerns?

Got legal issues? Questions? Concerns?

Do it.

Posted in Uncategorized | Leave a comment

Can I get a Ticket for going too slow on the freeway?

You know that you can get a ticket for going too fast on the freeway, but what about too slow? We’ve all been frustrated with the driver on the freeway going 50mph when the speedlimit is 65. But, is it illegal? Should it be?

Generally, it depends on the state, or jurisdiction. Many speed related laws are very ambiguous, and can be interpreted differently by law enforcement depending on associated conditions. In California, Vehicle Code Section 22350 is such a section, reading:

No person shall drive a vehicle upon a highway at a speed greater than is reasonable or prudent having due regard for weather, visibility, the traffic on, and the surface and width of, the highway, and in no event at a speed which endangers the safety of persons or property. DMV.

One such story caught my eye, where a woman in Maryland was given a citation for going 2mph (yes, two miles per hour) under the speed limit: 

A Maryland woman says she was stunned after receiving a traffic ticket Friday for driving in the left lane at 63 mph in a 65 mph zone.

The woman, who did not want to be identified, told WRC-TV (Channel 4), a local NBC affiliate, that she was driving on Interstate 95 in Laurel when she was pulled over by a police officer and ticketed for failing to move right.

“[I was] really shocked,” she said. “I thought, ‘Oh my God, you’ve got to be kidding me.’”

Winds were gusting up to 40 mph that day, so the woman, who had never gotten a ticket before, slowed down a little to be safe.

“Sometimes when it’s dangerous, you have to do what you can to stay safe,” she said.

John B. Townsend II, a spokesman for AAA Mid-Atlantic, called the ticket “silly.”

“It’s sending the wrong message,” he told NBC 4. “And that is, ‘We will tolerate you driving at more than the speed limit, but it you drive below the speed limit, then you’re penalized for that.’”

The woman plans to fight the ticket in court. Read more

 

Does this mean drivers MUST drive at exactly the posted speed limit? Some states post minimum and maximum speed limits (on a road trip through Utah, I remember seeing a minimum of 45mph and a maximum of 65mph). I think this is a better policy. 

What do you think?

The author, Josh Bonnici, is the managing attorney at BONNICI LAW GROUP, who helps injured individuals with their claims. Questions? Concerns? Contact him today, at: www.bonnicilawgroup.com, or josh@bonnicilawgroup.com

Posted in Uncategorized | Tagged , , , , | Leave a comment

Can I Get in Trouble for Having my Dog off a Leash?

Image

“Can I really get in trouble if my dog’s off a leash?”

By Chelsey Del Testa

I see and experience it far too often in San Diego; people peacefully walking their dogs, obeying the San Diego City leash laws and along comes an unleashed dog frantically approaching with the owner running behind yelling, “Don’t worry (s)he’s friendly!” That may be true, but what many dog owners don’t think about is: 1) just because your unleashed dog is “friendly”, that my leashed dog is going to be as receptive when being rampantly charged at; and 2) that you know how your unleashed dog is going to react in every situation.

So what are the consequences of violating the leash law? What are a dog owner’s rights when an unleashed dog bites a leashed dog or a leashed dog bites an unleashed dog?

In San Diego, a dog that is brought into a public or private area where dogs are permitted must be restrained by a handheld leash no longer than 6 feet in length (San Diego County Code 62.669[a], 62.601[d], and 62.601[y]). Further, even if your dog is leashed, you must have the ability to control your dog at all times. The fine for violating the leash law can range from $240 for first time offenders to $430 and even $810 for second and third time offenders.

An owner who violates the leash law and whose unleashed dog subsequently attacks a leashed dog is likely to face civil liability for the amount of harm done to the dog; and possibly even misdemeanor criminal liability for violating the leash law and public protection from dogs law (SDCC 62.669). Additionally, the owner could be liable even when the presence of the dog off the leash was unintentional. (3 Cal. Jur. 3d Animals § 124). This imposes strict liability on the dog owner for any harm their dog causes to another person including that person’s property, which includes dogs (Cal. Penal Code § 491 (West)).  An owner who is obeying the leash law and whose dog subsequently attacks an unleashed dog who was the initial aggressor will not likely face liability unless the leashed dog had a propensity for violence and/or despite having your dog on a leash you were still unable to control him.

Bottom line: obey the leash laws or patronize the numerous local dog parks in San Diego where your dogs can run free. You can find a list of local leash-free locations at http://www.sandiego.gov/park-and-recreation/parks/dogs/index.shtml. All of these potentially tragic encounters can be avoided by keeping your pet on a leash in designated areas. No pet owner wants to see their cherished pet injured, so do your part; your dog and fellow dog owners will thank you!

Chelsey is a legal intern at Bonnici Law Group and a third-year student at Thomas Jefferson School of Law. She is passionate about animals and their well-being. For any questions, ideas, or comments feel free to email Chelsey at the Bonnici Law Group.

Resources:

Cal. Civ. Code  § 3342

Cal. Penal Code § 491

http://www.sddac.com/laws.asp#restraint

Posted in Uncategorized | Tagged , , , , , | Leave a comment