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Personal Injury Glossary of Terms
Administrator/Administratrix: In the context of personal injury law this is person (Male/Female) who is responsible for making decisions on behalf of an Estate of a deceased person. The Administrator/Administratrix will have a responsibility to act in good faith in carrying out their responsibilities and will ultimately be overseen by a Judge assigned to handle the probate estate. In general, the Administrator/Administratrix must be over the age of 18, bondable, and not have any felony convictions or convictions of crimes of moral turpitude.
What is an example of when myself or my family may need an Administrator?
You should immediately consult with an attorney, of your own choosing, if you have the individual right, and possibly a responsibility, to act as an Administrator for the Estate of a deceased individual. A common example of such a responsibility would be if your brother/sister died (or was left with permanent disabilities) due to the wrongdoing of another and they (or their children) will need financial support or medical assistance in the future as your brother/sister is no longer able to work and provide basic necessities because of his/her devastating injuries.
Another common example could be if you lost an adult child who left behind children (your grandchildren). In such a situation, a responsible family member will need to take steps to make sure funds are properly handled, evidence is properly preserved, and knowledgeable attorneys are consulted and advised of their full legal rights. In rare circumstances it is important to initiate discussions with a trusted family advisor, especially if the wrongdoer is a corporation or a business insurance company. It would be a double-tragedy and a miscarriage of justice, but unfortunately not the first, for the legal rights of a person to be irreversibly compromised because one side has more knowledge or power to leverage or persuade a grieving family with bad advice. Although some people may just want to "get past it," the long-term consequences to Children, or other family members, can be devastating if justice and proper action are ignored.
On rare occasions, some will say "it was meant to be" or "suing will never bring back the person" or "it doesn't matter as it's not going to change anything." We no longer live in a society of "an eye for an eye." Compensation for wrongs upon people and their families is now protected through insurance companies and the paying insurance premiums. More importantly, people, and corporations will continue to make bad mistakes and judgments if never held accountable for their wrongs. Unfortunately, in cases of negligence where various additional fact are only able to be found upon further investigation, the truth may never be revealed or, even worse, the harm may be repeated by a corporation which chooses to ignore a hazard to save money knowing that it will not be held accountable.
Burden of Proof: The level of proof required to establish a crime or injury claim varies depending on the claim or argument. People are generally confused by the difference in the burdens of proof in criminal and civil cases.
A Crime is a grave offense and forbidden by public law. A Civil Claim is a claim of wrongdoing typically brought by an individual against another individual or a corporation that seeks damages which are generally covered by insurance. More evidence and a higher burden of proof is required when one is accused of a crime. Below are two of the most commonly confused burdens of proof:
Beyond a Reasonable Doubt: (CRIMINAL CONDUCT). This is a much higher burden of proof and it generally is the level for a criminal conviction and there must not be ANY DOUBT from the evidence presented. Reasonable Doubt is such doubt that would cause a prudent person to hesitate before acting. This HIGHER burden is often confused with the LOWER burden of proof of a civil claim.
Preponderance of the Evidence: (WRONGS RESULTING INJURY USUALLY COVERED BY INSURANCE). This is a much lower burden of proof and, generally, is the burden of proof for a finding of fault in a Civil Claim such as a Personal Injury Claim. The burden of proof is the injured person must present Evidence which is of greater weight OR more convincing than the evidence which is offered in opposition. It is also referred to in a civil case as "more probable than not" or just a feather's weight greater.
By way of a recent and commonly known example of this, O.J. Simpson was found not guilty in the criminal charges against him (because of the level of proof for his Criminal Conduct) but was found to be liable in the Personal Injury Claim because his family met the burden of proof on behalf of the injured family members in the Civil Claim.
Generally, intentional acts of harm such as assault and/or murder are not covered by insurance which resulted in the families recovering from Mr. Simpson's personal assets.
Protection of our personal assets is the very foundation of big-business insurance companies and is the protection of insurance companies is how they gather their customers to pay the premiums. Of course, insurance companies cannot be profitable unless, like any other company, the money collected is more than the insurance premiums that it pays out. Many states require minimum amounts of insurance coverage and, more frequently, the larger the corporation or company the more insurance protection and/or policies will be purchased to protect the assets of the a business to protect from harms done by its officers or employees. Unless you are fortunate enough to know someone in the insurance industry you may never know what proper questions to ask or how to read the insurance policies, which you may be entitled to, to make sure that the insurance company is meeting its legal obligations it owes under the contract. One of the most commonly asked questions is "Why can't I simply sue the insurance company rather than the person who harmed me since the insurance company is responsible? Many Courts have found this to be prejudicial as jurors will not be able to be fair and impartial unless they believe the person being directly pursued is the person who committed the harm.
Civil Claim: This is generally a claim for compensatory damages and remedies provided by the law where a person has been harmed or injured from the actions, or inactions, of another. It is the bedrock of a civil society in which we do not take justice in our own hands for wrongs committed by another person or corporation. These remedies are generally covered by the insurance premiums we pay to protect ourselves when there is an accident or a wrong is committed. A Civil Claim can be brought separately from a Criminal Claim and the burden of proof for a Civil Claim is commonly confused. Generally a "Preponderance of the Evidence" is evidence which is of greater weight OR more convincing that the evidence which is offered in opposition. It is also referred to in a civil case as "more probable than not" or just a feather's weight greater.
Co-Administrators: A common situation in which parents or one or more persons legally competent to act as Administrators jointly act as representatives of the Estate.
Common Law: Law developed through the Court rulings and opinions which supplements the statutory law.
Comparative Negligence: A defense asserted by a defendant to a lawsuit that the plaintiff was responsible in some portion for his or her injuries AND that the plaintiffs' portion of negligence (whatever a jury determines that to be) allows offset, or reduction, of the total damages awarded by a jury to the Plaintiff.
For example, assume that a jury awards damages in the amount of $10,000,000 to you as a plaintiff, or to you an Administrator for an Estate. Further assume that the jury determines that your actions or omissions to act (failure to act) accounted for 10% of the fault of the injury and that the Then, by simple example only the amount awarded to you as the Plaintiff or to you as the Administrator's Estate would be $9,000,000 and is calculated as follows:
The Jury Award $10,000,000 is reduced by the Jury Determination of 10 % negligence, or $1,000,000 (10% x $10,000,000). It is noteworthy to repeat that this is a fact by fact determination as the calculations may change depending on numerous factors including , but not limited to 1) state laws on joint and several liability; 2) The type and severity of injury may be a factor; 3) The tort reform laws which exists in the state in which the case is Venued (or filed); 4) The Venue of Court and laws that will be followed such as if the case was removed to, by means of Notice of Removal, to Federal Court, and whether or not it is properly belongs in the sent back to State Court through a Notice of Remand; and 5) Whether or not there are multiple defendant in the case.
It is also important to understand that there are generally three types of Comparative Negligence depending on which state you live in. Those three categories are as follows:
(1) Pure Comparative Negligence
(2) 51% Modified Comparative Negligence
(3) 50% Modified Comparative Negligence
You should also take note of the fact that depending on whether your state is a 51% or 50% Comparative negligence state, you may only be able to recover if your burden of proof is met at a specific percentage of fault to be determined by the jury. In such states, Defendants will often file what is known as a Motion For Summary Judgment which is a formal pleading asking the Court to dismiss your case because, as a matter of law, you cannot meet your burden of proof at trial:
If the state laws in which your case is situated follows the 51% Modified Comparative Negligence Injury Law, such as Ohio and Pennsylvania, then Plaintiffs will still be able to recover for their injuries even if the jury finds the fault to be divided evenly at 50% fault of the Plaintiff and 50% fault of the Defendant. If the jury finds the Plaintiff to be less than 50% at fault then there will be no recovery.
However, if the state your case is situated in follows the 50% Modified Comparative Negligence Injury Law, then Plaintiffs will only be entitled to recover for that percentage of fault if an only if the jury finds that the Plaintiff was less than 51% or more at fault of the Defendant. If the Jury finds the Plaintiff to be more than 50% at fault then there will be no recovery.
However, if the state your case is situated in follows the 50% Modified Comparative Negligence Injury Law, then Plaintiffs will only be entitled to recover for that percentage of fault if an only if the jury finds that the Plaintiff was less than 51% or more at fault of the Defendant. If the Jury finds the Plaintiff to be more than 50% at fault then there will be no recovery.
If the rarer circumstance is that your case is situated in a state which follows the Pure Modified Comparative Negligence Injury Law, such as New York Accident Law cases, then Plaintiffs will be entitled to recover the amount of damages allocated to the Defendant. For example, if the jury finds the Defendant to be 10% at fault then the Defendant will be liable to the Plaintiff for 10% of the Damages. Even if the Jury finds the Defendant to be 1% at fault then the Defendant will be liable to the Defendant for 1% of the damages. Only in the circumstance where the Plaintiff is 100% at fault will there be no damages liable by the Defendant.
Please note that the discussion above and example is VERY GENERAL as depending on the type of claim, violation pleading, factual circumstances, then, under certain circumstances, the injury claim may be held to be 100% of the fault of the Defendant. Further, depending on State Laws, there may be other requirements such that you must personally sign the complaint on your own behalf, or as Administrator, or that you may be limited from specifically pleading an exact amount of damages but rather, the floor of the damages which sets the basis for the type of Court the Case should be filed in. This, among other reasons, is why it is important to contact an attorney to make sure key evidence is preserved under the circumstances, so that facts can be gathered to prepare the Complaint. This is particularly important in States such as Pennsylvania which requires that Pleading be Factual rather than just simple Notice. This distinction is commonly known as FACT PLEADING STATE vs. NOTICE PLEADING STATE. If not handled properly, and you are not properly advised of the pros and cons of determining what and how to plead in your Complaint, then under certain circumstances you may be prevented from alleging some of your claims if not properly set forth in the initial Complaint.
For example, if and only if the jury determines that the Plaintiffs' fault is equal to or less than 50% by an Ohio Jury or a Pennsylvania Jury in a Civil Claim, then the damages recovered may include, among other things, that amount calculated by the jury for Compensatory damages, Pain & Suffering, Wrongful Death, Loss of Consortium, and . This calculation is done through a Jury Interrogatory which the jury completes at the end of the trial and which the Jury, determines, among other things, the proportionate assignment of fault to the various parties A number of states, such as New York have "Pure Comparative Negligence" in which the Plaintiff recovers their damages based on the Percentage of fault not attributed to them. (See Contributory Negligence).
Ohio Conscious Disregard/Punitive Conduct: In Ohio, a standard in civil law that, under certain factual circumstances can bar the defendant's claim of comparative negligence of the Plaintiff which, again in very limited and factually specific circumstances, allow a harmed Plaintiff to fully recover for all of their damages even if found to be partially at fault. Each Ohio case must be analyzed on a fact-by-fact basis.
Contingency Fee: A fee arrangement that permits individuals to retain legal representation that they would not otherwise be able to afford. The attorney advances all legal costs and recovers a fee and costs based on a percentage of the recovery, if any, at the conclusion of the case. The percentage is fixed in a written agreement at the time of hiring the attorney and will vary depending on the complexity of the case, the hours expected, and the amount of money that will be necessary for the attorney to advance and risk losing if the case is lost. Under a contingency fee agreement you should never pay any legal fees or costs unless the attorney is successful in a recovery for you. The benefit of contingency fees include the fact that it allows people who would not otherwise be able to afford to pay an attorney an hourly rate to hire an attorney to represent their rights. It discourages the pursuit of meritless claims. A competent attorney working on contingency will not be inclined to take a case unless justified.
Contributory Negligence: A defense asserted by a defendant (which has been vastly changed by many states to Comparative Negligence but still remains in a few) in which the defendant claims ANY act of negligence by the plaintiff prevents ANY recovery - even if the fault by the Plaintiff is only 1% and the Defendant is 99% at fault. (See also Comparative negligence).
Crimes of Moral Turpitude: Generally, these are crimes involving dishonesty such as bad-check writing, perjury, fraud, theft, sexual assault.
Damages: Recovered monetary compensation for a loss or injury that resulted from the negligence or other wrongful conduct of another and can include lost wages.
Decedent: A legal term for a person that has passed away.
Defendant: The legal term for the person against whom a claim is brought. In Ohio, for example, a person is not permitted to directly sue the insurance company of the person who caused the harm and must sue the person or corporation. Of course, any damages awarded may be the responsibility of the insurance company.
Duress: Any unlawful threat or coercion used by a person to induce a person to act (or refrain from acting) in such a manner that he or she otherwise would not (or would) act.
Estate: A legal entity created as a matter of necessity under law to hire a lawyer, file suit, and/or handle the funds of a deceased person. An Estate is managed by the Administrator/Administratrix who may either be agreed upon by the family or assigned by a Probate Judge. On occasion, hearings will be held if the appointment of administrator to the Estate is contested.
HMO Negligence: Usually, a type of medical malpractice that can be defined as the negligence of an HMO, acting through its medical professionals, in making treatment decisions for a member that results in harm to that patient.
Liable: To be responsible legally under statutory or common law.
Litigant(s): An individual or group of people to a case.
Occupational Disease: Sickness that results from employment, usually over time as opposed to a single traumatic event, for example asthma induced form the inhalation of diesel exhaust emissions or asbestosis.
Plaintiff: In a civil claim the person or entity filing a claim.
Prevailing Party: Usually, the party in a legal case for which the jury finds in favor or, in a Court ruling, the party which the Court rules in favor.
Probate Judge: The Judge that handles matters concerning the Estate. The Probate Judge may determine who will be appointed as Administrator/Administratrix of an Estate, if a family cannot agree on who should handle the Estate and will ultimately have to approve any settlement of a personal injury matter as well as fees and expenses related to the matter. Generally, the spouse will automatically be the Administrator/Administratrix of the Estate. If the decedent was a minor at the time of death then either or both of the parents can be and Administrator or Co-Administrators.
Settlement: An agreement between people regarding the resolution of a case.
Settlor: Also referred to as the grantor, it is the individual who sets up a trust.
Slander: Generally, the act of spreading false information that can adversely affect an individual's reputation. The definition may vary by jurisdiction.
Statutory law: Law written and adopted by the Federal or State government as a formal statute.
Our lawyers practice personal injury law throughout Ohio, New York, Pennsylvania and Minnesota including, but not limited to, the following cities in Ohio: Ada, Alliance, Amherst, Ashland, Ashtabula, Athens, Barberton, Batavia, Beachwood, Bellefontaine, Bellevue, Belpre, Bowling Green, Brunswick, Bryan, Bucyrus, Cambridge, Canfield, Canton, Celina, Chardon, Chillicothe, Cincinnati, Circleville, Cleveland, Columbiana, Columbus, Conneaut, Coshocton, Crestline, Dayton, Defiance, Delaware, Delphos, Dublin, East Liverpool, Eastlake, Elyria, Fairborn, Fairfield, Findlay, Fostoria, Fremont, Gallipolis, Geneva, Greenville, Grove City, Hamilton, Hilliard, Hillsboro, Ironton, Jackson, Kent, Kenton, Lakewood, Lancaster, Lima, Lisbon, Logan, Lorain, Loveland, Mansfield, Marion, Marysville, Mason, Massillon, Medina, Mentor, Middletown, Mount Gilead, Mt. Vernon, Napoleon, New Philadelphia, Newark, Newton Falls, Norwalk, Oberlin, Painesville, Pataskala, Paulding, Piqua, Portsmouth, Reynoldsburg, Salem, Sandusky, Sidney, Springfield, St. Clairsville, St. Marys, Steubenville, Stow, Tiffen, Toledo, Troy, Uhrichsville, Upper Sandusky, Urbana, Van Wert, Vermillion, Wapakoneta, Warren, Wauseon, West Chester, Westerville, Wheelersburg, Willard, Willoughby Hills, Wilmington, Wooster, Xenia, Youngstown, and Zanesville.
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