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What is a guardian ad litem in a personal injury claim?
California law entitles those who've been injured due to the negligence of others to seek financial compensation for their injuries. However, someone filing a personal injury claim must have both legal standing and the legal capacity to begin the case. This means that children, or those who are deemed legal incapable, will require a guardian ad litem appointed to make decisions for the incapable individual and to seek compensation for their accident-related expenses.
Appointing a Guardian Ad Litem
A guardian ad litem is someone who is appointed by the court to act in the best interests of a child or legally incompetent person who is involved in a legal proceeding. “Ad litem” is a Latin phrase which means “for the suit.” A guardian ad litem is used in a personal injury claim involving children under the age of 18, or adults who are mentally incapable of making decisions for their well-being.
In most personal injury cases, a guardian ad litem is a parent, grandparent, or other close relative. Since only one guardian ad litem is necessary, it's usually advised to select the adult relative with the most time available to devote to working with the attorney or to help settle the child's case. For example, if a child lives with a stay-at-home mother and a father who must frequently travel on business, having the mother appointed guardian ad litem would allow the case to proceed in a timely fashion. That is not to say that the father would not have input in the handling of the case, it only means that the mother would the person designated to make the final decisions for the case.
If no suitable relative is available to perform the duties, or there is reason to believe the child's interests will conflict with those of the available relatives, the court can appoint another person, such as an attorney to serve as guardian ad litem.
Preparing the Case
The role of a guardian ad litem varies depending upon the type of personal injury claim and the age of the child. However, the person serving as guardian ad litem will usually be responsible for:
- Evaluating the case with the attorney
- Assisting the attorney with any necessary preparation of the case
- Make decisions on the issues of a potential settlement
- Providing age-appropriate updates about the case to the child
- How settlement funds will be invested for the minor
Settlement Issues for Cases Involving Minor Children
California requires a judge to approve the settlement of any personal injury claim over $5,000 that involves a minor child. Insurance companies will often insist on court approval even if the child's net recovery is less than $5,000 after attorney fees, costs, and medical expenses.
During the settlement process, the guardian ad litem will play a role in addressing the following concerns:
- Distributing funds over the course of the child's life
- Deciding how to best invest the child's settlement funds
- Determining what portion of the settlement belongs to the parents as reimbursement for the child's previously paid medical expenses
- Determining if the parents should be allowed to use a portion of the child's settlement to make modifications to the home that would improve the child's quality of life, such as installing wheelchair ramps or roll-in showers
Length of Involvement in the Case
The role of a guardian ad litem does not end until the child reaches age 18. Children often receive structured settlements providing periodic payments that will need to be invested to meet future needs or allocated towards current living expenses. If an injured child's original guardian ad litem becomes unavailable or is deemed to be not acting in the child's best interests, the court can step in and appoint a replacement.
Necessity of Legal Representation
Although parents or other family members are often allowed to serve as a guardian ad litem for an injured child, California law mandates that children have an attorney to prepare the case paperwork and represent their interests throughout the approval process. A guardian ad litem cannot act in pro per (without a lawyer) to represent the child’s interest in a monetary settlement. This would be considered an unlawful practice of law.
If you are seeking legal representation on behalf of a child who has been injured in an auto accident or a dog bite attack, Inland Empire Law Group can help. Our experienced attorneys are committed to assisting clients in obtaining fair and prompt settlements. Please call to schedule a free, no-obligation consultation at either our Rancho Cucamonga or Victorville offices. Call now (909) 481-0100 to speak with one of our representatives, or submit your information through this website to have our office reach out to you.
Can you still collect compensation for a dog bite if you were trespassing?
California law specifically allows trespass as a defense against liability for a dog bite attack. This means you may not be able to collect compensation for your injuries if you were truly trespassing at the time the dog bit you. If you're found to be trespassing, your options for compensation for a dog bit is nearly non-existent.
Defining Trespassing in Dog Bite Cases
Trespassing is a legal term used to refer to entering private property without the express or implied permission of the owner or person who lives there. In regards to a dog bite attack, a victim is considered to be lawfully on a property if he has express or implied permission to be there. Merely entering the front yard to knock on a door is not trespassing and would not lead to a trespassing defense.
Examples of situations that would be eligible for dog bite compensation include:
- The victim was bitten while attending a backyard barbecue hosted by the owner.
- The victim was bitten while babysitting the owner's children.
- The victim was a close friend of the owner and bitten after stopping by for a surprise visit.
- The victim was someone who knocked on the door asking for directions after getting lost.
Examples of situations that would likely be considered trespassing and thus not eligible for compensation include:
- The victim was bitten after jumping a fence to retrieve a frisbee that had accidentally been thrown into the property.
- The victim was bitten after wandering into a fenced in backyard where he was expressly told not to go, even though he had permission to be inside the house.
- The victim was bitten after showing up uninvited and threatening the owner of the property.
- The victim specifically ignored a "No Trespassing" sign.
- A person broke into the property.
Key factors to remember when considering whether trespassing will be successful as a defense include:
- Police officers, emergency medical personnel, or mail carriers performing their job duties are not considered trespassers.
- Trespassing as a dog bite defense only applies to dog bites occurring on private property. However, the property doesn't necessarily have to be owned by the owner of the dog.
- The law makes no exception for the conduct of school age children. A child can be found guilty of trespassing if he enters an area without the necessary authorization.
Suing for Negligence
Even if a victim is found to have been trespassing, it may still be possible to sue for negligence in regards to injuries sustained during a dog bite attack. This would allow the victim to collect some compensation for medical expenses, lost wages, and pain and suffering.
To prove a premises liability case involving an allegation of negligence, you must establish duty, breach of duty, injury, and causation. This means you must prove that the owner had a responsibility to act in an appropriate manner in regards to securing the dog, but his failure to do so was the direct cause of your injuries.
One example of a case in which the owner may be found negligent is if the animal was known to have aggressive or violent tendencies. Breed alone doesn't make a dog aggressive, but the court recognizes that owners have a responsibility to secure animals with a history of violence towards others.
Having a dog in a backyard that is not fenced in could also be considered negligent if the neighborhood is in an area where children are known to wander. Dog owners have a responsibility to secure their animals or take precautions to prevent children from entering the property.
Seeking Legal Representation
If you've sustained injuries in a dog bite attack, legal representation can help ensure that you receive any compensation available under California law. Claims related to dog bite attacks are generally paid under the owner's homeowner’s insurance policy, which means you'll be dealing with an insurance adjuster whose primary responsibility is to keep costs down for his employer.
The Inland Empire Law Group is committed to advocating for the needs of California residents who've been injured in dog bite attacks and to help them secure the best possible results. Please call today to schedule a free, no-obligation case review. Appointments are available at our Victorville or Rancho Cucamonga locations.
Can you still receive compensation in a dog bite attack if the animal was provoked?
California's dog bite law specifically allows provocation as a defense for liability in a dog bite claim. This means that you might not be eligible for compensation if the owner of the dog that attacked you can prove that you provoked the animal.
Understanding Provocation as a Defense
California's dog bite statute allows a person who is bitten by a dog to pursue a claim for damages based upon a theory of strict liability. This means that the dog bite victim does not have to prove liability, only that the dog bit the victim. However, that standard is not absolute. California's dog bite law allows provocation as a defense, which means that the conduct of the dog bite victim will be taken into account to determine if the claim should be denied entirely or the damages should be reduced by some percentage of fault attributable to the bit victim. What constitutes provocation is not clearly defined in California and is often case specific. This ambiguity has led to some difficulty in settling dog bite claims where provocation is properly asserted as a defense.
Some relatively clear examples of provocation include, a person who hits or kicks a dog repeatedly without reason, such as self-protection is an act of provocation. Other actions of provocation which do not include physical harm to the dog might include, taunting a dog with noise or food such that it causes the dog to reaction aggressively. In these circumstances a person who is then bitten by the dog they are provoking may not be eligible for compensation for some or all of the damages suffered by a dog attack. However, the nature of the attack would be measured against the dog's reaction to the alleged provocation. Some portion of the dog attack might be attributable to the provocation, while another portion is found to be out of proportion to the victim's behavior, thereby holding the dog owner responsible for the additional injuries.
Provocation does not necessarily have to be intentional or malicious conduct towards the animal. For example, stepping on a dog that you didn't see might be considered provocation depending upon the circumstances. Erratic, aggressive, or threatening behavior towards the animal's owner or caretakers may also be interpreted as provocation, even if the dog bite victim made no attempt to interact with the animal directly.
Case law helps a dog bite attorney understand how a court might rule on the issue of provocation. Some cases have ruled that the following behaviors specifically do not constitute provocation of a dog bite attack:
- Walking toward a dog.
- Petting or feeding a dog.
- Playing with a dog and patting its head.
- Rising up and turning to face a dog, when previously seated in front of the dog.
- Dangling hands and arms over a fence, without making quick or threatening gestures towards the dog.
Most actions of provocation are measured by the "reasonable person" standard. In other words, would a reasonable person interpret the particular behavior as likely to provoke a dog to act aggressively? In making this analysis one would consider the age of the victim and his or her ability to understand the consequences of such actions. Very young children are assumed to lack the capacity to understand their actions may provoke a dog.
Impact of the Dog's Past Behavior
Since the definition of provocation is somewhat subjective, the dog's past behavior will also factor into whether provocation is allowed as a defense. If the dog has a past history of aggressive behavior, provocation will less likely be a successful defense. Owners of animals prone to aggression have an elevated responsibility to secure their pets or otherwise limit contact to ensure the safety of others. A bite victim who is unfamiliar with the animal can't be expected to know that the animal is more aggressive than average. The dog owner assumes the responsibility to protect others from their dog.
Winning Your Dog Bite Case in Rancho Cucamonga, CA
To win a dog bite claim, you'll need to establish
- You were bitten by the animal
- The identify of the owner of the animal at the time of the attack
- The injuries you suffered from the attack
If the owner of the dog claims provocation as a basis for a defense, the burden is on the defendant to establish:
- You provoked the dog or were engaged in an activity which would cause a dog to act in the manner it did, such as, trespassing, engaging in criminal conduct, etc.
If you win your case, you'll be eligible for several different types of compensation
- Medical expenses, including past care and any anticipated future medical care related to your injuries from the attack, including future medical care, if applicable.
- Loss of wages for the time you were unable to work due to your injuries.
- Any applicable loss of future earning potential due to your injuries.
- Pain and suffering, including physical discomfort, emotional trauma, disfigurement, disabilities, fear and similar claims related to the attack.
To maximize your eligibility for compensation, it's best to work with a personal injury attorney who has extensive experience handling dog bite claims. The legal team at Inland Empire Law Group is dedicated to helping California residents receive fair and prompt dog bite settlements. Please call today to schedule a free, no-obligation consultation at either our main office in Rancho Cucamonga or our Victorville location.