All About Civil Claims

What is 'voluntary assumption of the risk' in a civil claim?

In a civil claim, voluntary assumption of the risk is a situation where a plaintiff voluntarily accepts a known and appreciated risk and goes forward with the dangerous activity. For example, if somebody gets on a horse, and they go riding the horse, they assume the risk that they could fall off that horse. If somebody engages in a recreational activity, like boxing for example, they're deemed to have assumed the risk inherent in that particular activity and therefore they cannot sue someone who may have contributed to creating that risk of harm.

What is 'contributory negligence' in a civil claim?

Contributory negligence is a theory of law that is different in all of the states. Contributory negligence in some states says that if the plaintiff is contributory negligent to his own damages by even one percent he cannot sue unless the defendant had the last clear chance to avoid causing the injury. However, the majority jurisdictions, such as California, say that the person who is contributory negligent to his own harm can still recover from the tortfeasor for that degree of harm that the tortfeasor was negligent. This is also known as pure comparative negligence under California law. So if the plaintiff in California was 30% negligent and the jury awarded a damages award of $100,000 against the defendant, the defendant would only have to pay $70,000 because the plaintiff was 30% at fault.

What is a 'civil action'?

A civil action is any action in which the civil courts are utilized as opposed to a criminal court. In a civil action, the civil defendant sues the wrong doer or breacher, if it's the case of breach of contract, for example, in a civil court by filing a civil law suit on a compliant. A summons is then issued by a court and the complaint and the civil summons are then served upon the wrong doer or tort feesor or damaging party or injuring party; and at that point he will be held to answer in a civil court.

What is 'small claims court'?

Small claims court is a court wherein the jurisdictional value of the case is usually below $7,000 in California and I believe below $5,000 in most other jurisdictions. It simply means if a civil plaintiff has been wronged and the amount of money is not that significant the court will disallow the defendant from having an attorney and then the plaintiff you the civil plaintiff can then go and sue him. The down sides to small claims court are that the jurisdictional amounts are low, neither party is entitled to an attorney, and the case will be decided by a judge without a jury, all these things are consented to by filing a small claims case.

Who can start a civil action?

Anyone can start a civil action in the state of California and other jurisdictions so long as they are not a plaintiff who continually files lawsuits that are deemed to be frivolous by courts. Once a plaintiff has done this over and over and over again, and is deemed to have been too litigious, those would be the only people who could not file a civil action. As a general proposition, you still are going to have to state a claim upon which relief can be granted in your court complaint. If you cannot do so, the court may dismiss your complaint on its own motion or by motion of the person whom you have filed the civil action against.

If a plaintiff is awarded compensation, how is the amount decided?

The damages in a plaintiff case are decided in many different ways. If it's a negligence case for example, the damages would be broken up into general damages and special damages. General damages would include damages like the plaintiff's past, present and future pain and suffering. The economic portion, or special damages, would include damages like the plaintiff's past lost earnings, current lost earnings and future lost earnings, as well as the cost of past, present and future medical care. Obviously a plaintiff who has suffered significant injury, such as brain damage or loss of motor functions or quadriplegia or paraplegia, is going to need significant future medical care, and so those damages would be proved based upon his life or her life expectancy chart. These life expectancy charts are actually posted in the back of the California Jury Instructions. It's an actuarial table that will tell you the expected life of this person. Then what a good plaintiff's attorney will do is hire an expert witness or treating physician who will then give a reasonable and accurate statement based on the average cost of care treatment over that given time period. Then the damages are calculated mathematically to determine what that cost or damage would be.

Can decisions be appealed in civil claims?

Yes, decisions can always be appealed in civil claims. However, it is very difficult to appeal most decisions, especially when they were made by a jury or if it's a factual determination made by a judge. So the key in any of these cases is to try and win your case so you don't have to go up on an appeal.

Can I be held liable for my children's actions?

Yes, in certain situations you can be held responsible for your children's actions. However, in California, the law sometimes will cap the amount of damages you can be liable for, because it's just simply unfair.