County of Maui and State of Hawaii Liability

Civil liability of a governmental entity such as the County of Maui can be a complicated issue.  Governmental entities often attempt to limit their own liability by enacting legislation stating specifically saying they are not liable for certain categories of decisions.  Common exclusions are limited liability for planning decisions and discretionary functions.  An example of this in action is the Hawaii Revised Statute, HRS §662-19 which excludes public entities and employees from liability for injuries to someone using a public skateboard park.

Even though there can be exclusions for recovery from a governmental entity or a county, governmental bodies can still be liable for injuries.  State and County liability is often modeled after the Federal Tort Claims Act which allows recovery against the government for personal injury, wrongful death and property damage caused by negligence of a government employee.

This theory applies to the State of Hawaii and County of Maui also.  There have been successful lawsuits and settlements obtained from the County and State due to negligence.  Not all lawsuits against the County or State are successful.  However, many different suits have been filed.

•  In 2010 a woman sued the Maui Police Department for extortion and theft. 
•  In 2012, a golfer at the Waiehu Golf Course sued Maui County for negligence after he was attacked and injured by a goose on the greens.  
•  Recent lawsuits have also claimed County negligence in not properly maintaining roads which can cause vehicle accidents. 

Compensatory and Punitive Damages in a Personal Injury Case

If you have been in an accident, you may be able to receive compensation for your damages from the person who caused you harm.  There are two types of damages you may be able to collect in a personal injury case: compensatory and punitive.

       Compensatory Damages
             -Damages designed to compensate you for your specific injury and loss.  
                 1.  Economic Damages
                       -Also known as Special Damages in a personal injury case. 
                       -Tangible damages whose dollar amount can be concretely measured.
                       -Medical expenses, damage to motor vehicle, property damage,
                        loss of earnings, etc.

                  2. Non-Economic Damages
                       -Also known as General Damages in a personal injury case. 
                       -Intangible damages that can not be quantified.
                       -Pain and suffering, emotional harm, disfigurement, loss of companionship,
                        loss of consortium, etc.

            Punitive Damages
                -Damages designed to punish the person responsible for your injury and loss.
                -Used to deter future conduct of both the person responsible and others.
                -Usually limited in Hawaii to nine or ten times the amount of actual damages.
               
You should be aware that references to damages may change depending on the type of lawsuit you have.  For example, compensatory damages in a tort case may have a different definition than in a contract case.  To determine the type and amount of damages that you are entitled to for your accident, seek the advice of a personal injury lawyer. 

Personal Injury Lawsuit Statute of Limitations

Every personal injury lawsuit must be filed at the courthouse within a specified period of time.  This time limit is called the statute of limitations.  In Hawaii, the statute of limitations for a personal injury lawsuit is two years.  HRS §657-7.  The statute of limitations applies to many different types of torts involving physical and mental injuries including negligent and intentional infliction of emotional distress. 

If you have been injured it is important to seek medical treatment quickly to limit the physical and mental damage from your injuries.  It is also important to seek legal advice quickly so that you can limit the financial damage from the injuries.  A trusted lawyer can be particularly helpful in the difficult and confusing days immediately after an accident.  A lawyer can protect your financial interests and can negotiate with insurance companies and medical providers to save you money and ensure that you are fully compensated for your loss. 

It is essential not to wait until your statute of limitations is about to expire.  Most personal injury lawsuits are negotiated for months before settlement and most are settled without proceeding to a trial.  Few lawyers will be willing to take your personal injury case if the statute of limitations is about to expire. 

Additionally, severe injuries such as a brain injury may require additional medical evaluation to properly document your claim.  You must leave sufficient time to investigate your claim, negotiate with an insurance provider and seek additional medical care if necessary. 

Puntive Damages in Hawaii

The goal of a personal injury lawsuit is to compensate you for the loss you experienced because of another person's negligence.  After a trial or a settlement, you should be reimbursed for your medical expenses, lost wages and other economic costs that you incurred from your injury. 

Compensation for your non-economic damages such as the pain you experienced from the injury, the suffering you had to endure and the loss of companionship your spouse suffered while you were injured are more difficult to quantify.  The calculation of how much you are entitled to receive will vary with each individual. 

Economic and non-economic damages are called compensatory damages because they are designed to compensate you for your losses.  It is possible, but not guaranteed, that you will receive punitive damages which are designed to punish a defendant in severe cases. 

If the person who injured you was not just negligent but acted maliciously or oppressively you may be able to receive punitive damages.  A jury can consider the economic ability of the defendant and specifically how they acted when injuring you.  In Hawaii, a jury can award punitive damages to a plaintiff but the award amount can not be unconstitutionally high.  As a general rule, punitive damages should not be more than nine times compensatory damages. 

Wrongful Death Lawsuit in Hawaii

Sometimes the negligence of another person can cause the death of a loved one.  This terrible circumstance often brings large medical bills and costs related the death.  Family members are left in the difficult situation of coping with the loss of a loved one and also with paying related costs. 

A wrongful death lawsuit can often be brought by certain family members against the person responsible for the death.  Hawaii law provides for a civil lawsuit to recover the loss you may have experienced from the death of your loved one.  You may be able to recover for medical expenses, funeral expenses, loss of income, loss of companionship and pain and suffering the deceased person suffered before dying. 

Every situation is different and the amount recoverable depends on many factors.  Also remember that there is usually a two year time limit within which to file a personal injury wrongful death lawsuit in Hawaii.  Talk to a personal injury lawyer today to evaluate your case. 

Hawaii Revised Statute §663-3 is the statute that allows wrongful death lawsuits. HRS 663-3

NFL Brain Injury Settlement

The National Football League has settled a lawsuit filed by thousands of former football players.  A federal judge has approved the settlement which has no limit on the amount of money available to pay retired players with potential neuro-cognitive diseases. 

The settlement is extraordinary as it provides neurological exams and monetary settlements for diagnoses of a number of different chronic brain disorders such as Parkinson's, Alzheimer's and early dementia.  The original lawsuit was filed by approximately 5,000 players but all former players are eligible and will have two years to register for the settlement. 

The original settlement amount of $870 million was deemed was deemed to be too small to cover the high medical costs for serious concussions and brain injuries suffered by many football players.  Despite the potentially large payout, some players have said that the settlement will still not completely compensate past players for their injuries. 

Personal Injury News

The news this week contained two interesting cases involving personal injury claims. 

General Motors released a report with the conclusions of an investigation into faulty ignition switches that have caused injuries and deaths.  The report prompted calls for action from members of Congress and consumer advocates and conspiracy theorists.  The auto company fired 15 employees while disputing a claim that the defective ignitions have caused 74 deaths.  GM has now recalled 12.8 million vehicles. 

750 professional football players have sued NFL teams alleging that NFL doctors prescribed painkillers and sleep-aids on game days to mask the pain and the drive the players to perform at a higher level.  Prescriptions for Percodan, Percocet, Toradol and Ambien were among those listed in the lawsuit.  The plaintiff's in the lawsuit are seeking class-action status and have alleged that they have suffered serious long-term health effects such as kidney failure, nerve damage and chronic muscle problems. 

General Motors Expands Vehicle Recall

General Motors almost doubled the number of vehicles subject to recall this week bringing the total to 5 million.  The latest recall is divided into four different actions and involve issues with seat belts, a shifting cable, a fuse box and air bag. 

Although none of latest problems are linked to fatalities, GM could still be subject to possible personal injury lawsuits as product liability claims. 

GM has taken intense criticism because of the manner in which it handled the first recall in 2013.  Federal safety regulators claimed that GM was slow to initiate a recall.  GM and the National Highway Traffic Safety Administration reached a settlement last week that provides for a $35 million penalty.  

3 Considerations for a Winning Personal Injury Lawsuit

If someone has accidentally or intentionally injured you or a family member you may have a personal injury claim.  You should always have your situation evaluated by a personal injury lawyer.  However, there are three main factors to consider before filing a lawsuit: 

1.  Do you have a valid lawsuit?
Personal injury lawsuits are legally referred to as tort claims.  A tort is a civil wrong that causes you loss or injury.  Injury can occur in a variety of ways and usually involves physical injury to yourself.  In certain circumstances, you may also be able to sue for mental trauma or injury to a family member.  There is rarely a valid claim for loss or injury to a pet or animal companion. 

2. Who is at fault?
Your injury must have been caused by someone else.  If the injury was your fault, you cannot force someone else to pay for your damages.  You may still have a case if it is unclear who caused your injury or if you are responsible for only part of the damages. 

3.  Is your judgment collectible? 
Even if your situation meets all the requirements for a winning lawsuit, you must consider whether you will be able to collect compensation.  Initiating a lawsuit and obtaining a judgment will be of no use if the person who caused the accident does not have any money or assets.  If the defendant has nothing to collect and no insurance, a lawsuit could be a waste of time and effort. 

 Here are some examples of common personal injury lawsuits:

- Injuries incurred from car accidents caused by drunk drivers, distracted drivers texting or talking on cell phones or simply drivers who are negligently not paying attention. 

- Defective product lawsuits such as defective vehicles, tires, appliances or other products.  A product may have been made defectively such as an ignition key that fails to shut the car off or a product that is designed incorrectly such as a swimming pool filtration system that traps a swimmer at the bottom of the pool.  

- Wrongful death lawsuits from airplane crashes, boating accidents or train crashes. 

- Injuries from dog bites.  Pet owners are often liable for injuries caused by their animals. 

- Lawsuits against drug companies who market and sell dangerous pharmaceutical products. 

Tort Liability for Diabetes Drug Actos

This week a federal jury decided that drug companies Takeda Pharmaceutical and Eli Lilly should pay $9 billion dollars in punitive damages for hiding the significant risk of cancer to patients taking Actos.  Actos is sometimes prescribed to help control diabetes and the jury found that Takeda knew the drug had serious side effects including heart failure and bladder cancer. The drug has been a huge income producer for Takeda with sales of $397 billion. 

For more information check out this story in the Wall Street Journal.  Actos Tort Liability

General Motors and Personal Injury Lawsuits

The CEO of General Motors, Mary Barra, has been testifying before a House Subcommittee regarding GM's ignition switch recall.  Members of Congress are interested to find out why it took GM so long to initiate a recall of affected vehicles.

The years of the vehicles in question were initially designated as 2005 to 2007.  However, GM later expanded the recall to include a much wider range of vehicles, models and years.  In certain circumstances, including a roll-over accident, the key may turn the vehicle ignition out of the "run" position.  In this instance, the air bags of the car may not deploy causing personal injury or death.  

Although vehicle recalls occur frequently, this particular recall is interesting because of GM's delayed reaction time when identifying the issue and reporting it to the federal government.  Also, GM emerged from bankruptcy in July of 2009.  GM is legally immune to product liability lawsuits before this time. 

GM is now under pressure from Congress to pay for many of the claims it may hold immunity to.  Underlying immunity is also being challenged in a number of personal injury lawsuits.  Also, the Justice Department is investigating whether GM committed bankruptcy fraud by not disclosing the vehicle defects when it went through bankruptcy.

For more information take a look at the U.S. House of Representatives Energy and Commerce Committee website.  U.S. House of Representatives Energy and Commerce Committee

Personal Injury Claims

Personal injury claims in Hawaii encompass a tremendous variety of incidents including boating and pool accidents, slip and fall injuries, negligence involving dog attacks and car accidents. 

Even though injuries vary widely, methods to preserve your personal injury claim are similar no matter how your accident occurred.  The following steps will help ensure that you are compensated for your losses and medical expenses.

The first step, and your highest priority after an accident, is to obtain medical treatment.  See a doctor if you have not already and thoroughly explain your injury.  Follow through with treatment and be sure you medically stable before you proceed with step two. 

Gathering information is the second step.  Take pictures, collect contact information from witnesses and talk to other people involved in the accident including rescuers and onlookers.  Save all medical information as well, including bills and copies of prescriptions.  Keep a journal through your treatment to make sure you remember everything. 

The third step is to make an appointment with a personal injury lawyer in your area to preserve your legal rights.  With every personal injury claim there is a time limit to file a lawsuit.  Do not wait until the time limit has almost expired. See an attorney as soon as possible to help investigate your case, evaluate how much your case is worth and to write a demand letter to the person or company responsible. 

Negotiating a Personal Injury Case

Negotiating a settlement in a personal injury lawsuit can be extremely complex.  Just as you would not try to perform complex surgery on yourself, you should also not try to negotiate your own personal injury case.  Always consult an experienced personal injury attorney to make sure you have considered all of your legal options. 

The following factors are just a few of the many considerations when negotiating a personal injury settlement. 

1. Case Evaluation
How much is your case worth?  A good case evaluation will take into consideration your medical expenses, any permanent injury, your age, ongoing medical treatment and property damage.  You must determine a range of value for your case before you begin negotiating.  If you have not decided on a value, an insurance company will be happy to tell you how much your case is worth.  This value is likely to be much less than what you should actually receive.

2. Timing
Settling a personal injury claim too quickly can result in lost damages.  Your attorney must adequately investigate the possibility of lost earnings and employment, properly evaluate any injury to determine if it is permanent or temporary and make sure you are "medically stationary" before sending a demand letter to an insurance company.  A proper investigation must be completed before settling your case.

3. Statute of Limitations
Every personal injury claim has a statute of limitations.  This is the period of time after an injury occurs within which you must file a lawsuit or you will be prohibited from recovery.  Contact an attorney soon after you have been injured to begin an investigation, make sure you are receiving proper medical care and to preserve your rights. 

4. Demand Letter
Drafting an demand letter is an art.  An effective letter will include relevant facts regarding the extent of your injuries, specific reasons why the insurance company should pay you and it will convey the fact that you are serious about your claim. 

5. The most important factor is whether you should even accept a settlement.  Your case may be worth more than the insurance company is offering in settlement.  An experienced litigation attorney can explain all of your legal options, including your chances at trial.

Negligent Infliction of Emotional Distress

Negligent Infliction of Emotional Distress (NIED) is a civil claim of action to recover payment for damages negligently inflicted on you by another person. 

This tort is somewhat controversial and some courts around the United States do not recognize this cause of action.  Hawaii, however, was one of the first states to recognize a claim for NIED and has been at the forefront of its development. The Supreme Court of Hawaii has decided several cases that leave no doubt as to the existence of the tort in Hawaii. 

Generally, to win an NIED claim, you must show that someone owed a legal duty to use reasonable care to avoid causing you emotional distress. Typically you usually must have a physical manifestation of your injury. There are some exceptions to the physical manifestation requirement and the Supreme Court of Hawaii has specifically held that it is possible in certain circumstances, to recover damages based only on serious emotional distress. Emotional distress is defined as mental worry, anxiety, anguish,suffering, and grief. 

Hawaii Dog Bite Law

An attack by a dog on you or a family member can be a terrifying event.  If you have been attacked and bitten, the reminders below will help you receive compensation for your injuries. 

1. Document the attack.  Have a friend or relative record the names and contact information of witnesses and call the police to make a report.  If possible, take pictures of the dog and the area where you were attacked. 
2. Seek medical attention quickly and be sure to tell your doctor everything that happened including a detailed description of the dog. Document your injuries by taking pictures and keeping a journal of your recovery. 
3. Call animal control to make sure that the animal is quarantined and nobody else is attacked by the same dog. 
4. Speak to a personal injury attorney as soon as possible.  An attorney can start an investigation and help gather evidence necessary for you to receive compensation for your injuries. 

For more information about dog bite liability click the following links: 

Hawaii Revised Statute 663-1 Liability
Hawaii Revised Statute 663-9 Liability of Animal Owners

Hawaii Courts have interpreted the statutes in a way that may not seem obvious at first glance.  If you have been attacked by an animal, contact an attorney today to help you receive compensation for your injuries. 

How to Win Your Personal Injury Lawsuit

Here is an article with good advice for winning a personal injury lawsuit.  The article was written by William Abel, an attorney in Florida, however, the advice is still the same no matter what jurisdiction you live in.

1. Get medical treatment.
2. Be consistent with your medical history. 
3. Be descriptive with your symptoms.
4. Be accurate with your medical history.
5. Communicate with your attorney. 

For the full text of the article, click here.  Win Your Personal Injury Lawsuit

Personal Injury and Car Accident Statute of Limitations

An accident involving serious personal injury can be traumatic.  Depending on the type of accident, recovery can be tedious and involve medical appointments, physical therapy or other rehabilitation.  Although you may be busy recovering, it is important to remember that Hawaii law limits the time period within which you may sue someone to recover damages for your injuries. 

If you feel that someone else is responsible for causing your injury, you must file a lawsuit to recover damages within two years.  While the law allows two years to file a lawsuit you should contact an attorney as soon as possible after an accident.  An attorney will need to investigate the incident by interviewing witnesses, obtaining medical records and gathering as much information as possible. 

A proper investigation into an accident can take months and much work on a personal injury lawsuit is done before a lawsuit is filed.  It may be possible to obtain an agreeable settlement without a trial or filing a lawsuit.  Settlement negotiations are always more effective on your behalf if you have left enough time to negotiate without worrying about a looming statute of limitations deadline. 

If you have been injured in an accident, contact a personal injury attorney today.

Hawaii Statute of Limitations
Hawaii Revised Statute §657-7 Damage to Persons or Property. 

Home Prices Continue to Rise

A recent report indicates that home prices nationwide continue to rise.  Core Logic Home Trends

As locals to Hawaii know, homes in the 50th state are in short supply with sellers typically receiving several full priced offers for a property.  There is limited availability and high demand for houses under $500,000.

Some local real estate experts attribute the lack of inventory to the 2011 foreclosure law that forced many houses through time-consuming judicial foreclosures.  However, even though the time-line for some foreclosures has been extended, many lenders do not seem eager to foreclose and have left scores of delinquent homeowner in their houses without making mortgage payments.

The strange result of lower inventory and lack of follow-through with foreclosures is that prices are rising rapidly, pricing many potential homeowners out of the market while others are living rent free. 

Low Numbers of Foreclosures in Hawaii

According to a recent report by CoreLogic, the number of completed foreclosures in the nation has dropped.  The most recent report shows that 397 foreclosures were completed in the month of June in our Hawaii.  This number gives Hawaii one of the lowest number of completed foreclosures in the nation, ranking in the bottom five.

National Foreclosure Report
Foreclosures Drop 20% Nationwide

At first glance, the low number of foreclosures in Hawaii may seem as if the housing market has recovered.  However, the foreclosure law passed in 2011 by the Hawaii State Legislature forced many non-judicial foreclosures to go through a judicial process.  A slowdown in the number of completed foreclosures in Hawaii may merely mean that cases are working their way through the judicial foreclosure process. 

How to Buy Foreclosure Property on Maui - Part I

Maui, like many other parts of the country, saw a significant reduction in economic activity after the Great Recession of 2009.  Although the economy is recovering, the housing market is still lagging and prices are much lower than they were before the downturn.  Many smart investors are buying on the dip in prices while calculating that the market will recover.  This series of blog posts will help you navigate the often confusing area of housing foreclosure and show you how to purchase property that is still within the foreclosure process.  Finding properties that are still within the foreclosure process can help diligent investors find lucrative investments at significantly reduced prices.  

In Hawaii, a foreclosure can be judicial or non-judicial.  A judicial foreclosure has oversight by the court and will go through a court process including a court hearing before the house is sold.  There are many statutory requirements for a non-judicial foreclosure and this process is only available in certain situations. 

As an investor, you should look for houses that are in judicial foreclosure.  There is no central database or clearing center that lists properties that are in foreclosure.  Although some websites list “foreclosed” or “REO” properties for sale, these houses are usually owned by banks who have possession of the house after the foreclosure process is complete.  Occasionally, the bank will offer the property at a reduced price but usually the price will be close to fair market value. 

To take advantage of significantly reduced foreclosure prices, you need to find properties that are still within the judicial foreclosure process and attend the actual auction. 

A property enters the judicial foreclosure process when a homeowner defaults on a loan and the lender files a lawsuit asking the court to auction the home to satisfy the debt owed.  Legal proceedings typically take a year or more.  When the court is ready to auction the property, a foreclosure commissioner is appointed to take possession of the property, conduct an auction and distribute the proceeds of the auction to those who are owed money. 

The commissioner will inspect the property, advertise the auction and hold open houses so that potential bidders can see the house and formulate a bidding price.  The commissioner will try to obtain the highest feasible price for the property in order to satisfy as much of the debt as possible. 

Hawaiian law requires that a Commissioner advertise an auction of a property three times in a newspaper of local circulation, thus giving the owner of the house and the general public notice that the property is to be sold.

In Part II of this Foreclosure Investment series, we will continue exploring how investors can find and take advantage of attractive foreclosure prices. 

Foreclosure law can be intricate and confusing.  Homeowners often hire an attorney to defend a foreclosure lawsuit.  Investors often also hire an attorney to help them purchase a property in foreclosure.  A local attorney experience in foreclosure law can represent you at an auction and bid for you, even if you are out of state.  

For an overview of Hawaii foreclosure law click on this link.  Hawaii Revised Statute Chapter 667