When is a lawsuit for negligence possible?
UPDATED: Oct 1, 2022
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When is a lawsuit for negligence possible?
My 8 year old son entered into my neighbor’s property to pick their fruits and saw their dogs coming towards him. He began to run and fell. The dog pounced on him and injured him pretty severely. My
wife heard his screams and went to help him. She dragged him onto my property, while the dogs came onto it as well and bit my wife and son even more. My neighbors have a
Asked on December 7, 2017 under Personal Injury, Alaska
S.L,. Member, California Bar / FreeAdvice Contributing Attorney
Answered 5 years ago | Contributor
Prior to filing a lawsuit against your neighbors, it may be possible to settle the personal injury cases of your son and wife with your neighbors' homeowners' insurance carrier.
Your wife and son have separate personal injury claims. When each of them complete their medical treatment and are released by the doctor, obtain their medical bills, medical reports, and in your wife's case, documentation of wage loss. The personal injury claims filed with the homeowners' insurance carrier should include those items.
Compensation for the medical bills is straight reimbursement. The medical reports document the injuries and are used to determine compensation for pain and suffering which is an amount in addition to the medical bills. Compensation for wage loss is straight reimbursement.
If both personal injury cases are settled with the neighbors' homeowners' insurance carrier, NO lawsuit is filed. If the case is only settled with one party (your wife or son), only the party with whom the case has not settled is a plaintiff in the lawsuit against your neighbors.
If your wife is dissatisfied with settlement offers from the neighbors' homeowners' insurance carrier, she should reject the settlement offers and file a lawsuit for negligence against the neighbors. Negligence is the failure to exercise due care (that degree of care that a reasonable dog owner would have exercised under the same or similar circumstances to prevent foreseeable harm). If this is the first incident of the dogs biting, the lawsuit would only include negligence. If the dogs have a history of biting, in addition to negligence, there would be an additional cause of action (claim) in the lawsuit for strict liability. Strict liability is liability whether or not due care was exercised.
If settlement offers in your son's case are unsatisfactory, reject them and file a lawsuit (there is only one lawsuit if both your wife and son have unsatisfactory settlement offers). You or your wife will need to be appointed guardian ad litem to file a lawsuit on behalf of your son because he is a minor.
Although your son was a trespasser, the owner of the property is liable for injuries to a trespasser.
If the cases are NOT settled with the homeowners' insurance carrier, the lawsuit must be filed prior to the expiration of the applicable statute of limitations or your wife and son will lose their rights forever in the matter.
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