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murphys315

Oregon personal injury help?

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Hello, I need help assessing damages for my injury.  I was in a restaurant/club after 9:00 where they had a small removable platform on a slick dance floor that moved out from underneath me.  Oregon building code requires this to be permitted and was not.  I broke my tibia, fractured fibula and cracked my ankle.  They basically threw me out, I was in shock, my husband carried me out and to ER.  Almost two years later and still have physical therapy and not getting better.  I have persistent pain in my knee leg and ankle from the ORIF surgery to put the rod in my leg.  I was very outdoors oriented before.  My husband and 8 yr old son do everything together, now I cant do 25% of the hunting, fishing, camping, hiking, or even think about jogging like I did before.  This has changed life for all of us everyday.  I need some help assessing what my loss is worth in court.  So far my attorney is only talking about recovering medical and that's it.  I am so frustrated that they don't seem to see my pain and loss as it really is.  Can anyone give me some information, case law, verdict examples, or anywhere I can do my own research to find out the range of settlement I should be asking for.  Not looking for a number, just some advice and a direction. 

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The answers to your questions are specific to Oregon law and practice.  You are free to consult with another PI attorney in Oregon to get answers to your questions which would be more accurate than answers from strangers on the internet even from attorneys, if they do not practice in Oregon.  You should act quickly, since, if your current attorney has not filed in court yet, the statute of limitations on personal injury in Oregon appears to be two years,

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Yes I understand but loss of enjoyment of life and pain and suffering are general and I am looking for some advice on how to quantify this.  In my opinion there is no amount worth the loss of playing with my son, or walking on the beach, or sharing moments with my family.  This is what I am losing and they are too.  I am grateful for any information, thank you.

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It's entirely unclear why you wouldn't be discussing this with a few personal injury attorneys.  You really need to stop wasting time and research a few local attorneys, then set up consultations.  You cannot reasonably pursue on your own, so why mess about to gauge how many multiples of medical cost you should pursue for pain and suffering?

 

The advice and direction is to focus on choosing counsel, doing due diligence on that person (including client references), etc.  To wait until the SOL is almost up is to shoot yourself in the (good) remaining leg.

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Thank you, I understand the importance and the advice.  I already have and have filed before the SOL.  My frustration is that my attorney didn't seem interested in pursuing for pain and suffering in the demand letter for settlement until only after filing a case.  This doesn't seem right to me.  Shouldn't it be a very important part of the demand for settlement. Is it a tactic,  SOL was almost up and no mention of amounts for settlement have occurred until the last 30 days. Just trying to get a handle on how this process works and what to expect, after all, 2 years and counting with no expectation to fully recover is becoming frustrating.  I just want to move past and try to enjoy what I am at least capable of.  Also the advice here will be taken, I will consult with a few other attorneys in this matter to insure I am being represented properly.  The problem is, I don't know what properly is. 

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Oregon is a modified comparative negligence state, meaning the amount you can recover is based upon your percentage of fault.  You said you were in a bar, had you been drinking?  Why were you stepping on the platform to begin with?  That it shouldn't have moved doesn't make the other side 100% responsible....talk to your lawyer, that's why you have one.

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"Talk to your lawyer, that's why you have one"

 

Post on find law, that's why I have an account.  If everyone is going to be a stonewall why does this forum exist in the first place.  All I was asking was for some other opinions.  Not a deal with it yourself answer.  No I was not intoxicated and yes, if they put a dangerous object in the middle of the floor and said "here step up on this, it will be fun" even though it can break your leg and its not legally able to be there,  its a 100% liability.  

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You didn't say anything about "other opinions" or mention a lawyer.  Seems trajectory has gone from one topic (how much pain and suffering) to a much broader scope.  Basic research on personal injury cases/representation would be best v. piecemeal opinions.

"So far my attorney is only talking about recovering medical and that's it."

Then, uhm, I'd be interviewing other attorneys.  Certainly a moveable mini-platform for whatever purposes on top of a dance floor oughtn't be shifting around, but .... To pursue no more than medical cost reimbursement is completely nonsensical, IMHO, and presumably you asked him WHY and he said ... what?  Of course I don't have all relevant info.  Would be nice had you mentioned all the above earlier; it's not accidental and possibly a symptom of tripping oneself up, no pun intended. 

Board is here for general info and feedback.  (FWIW, the question posed was had you been drinking, not whether you or someone else objectively or subjectively might indicate you were intoxicated.)

 

"My frustration is that my attorney didn't seem interested in pursuing for pain and suffering in the demand letter for settlement until only after filing a case."

I presume the complaint seeks same, and the filing of a complaint indicates the other side wasn't interested in settling, so this would seem water under the bridge.

 

"... after all, 2 years and counting with no expectation to fully recover is becoming frustrating."

But that's a separate matter/kettle of fish and perhaps something to research and discuss with more than one specialist. 

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Thank you for your response, although I never asked anyone for a number, I did ask to be pointed to information where I could do my own research and for advice and a direction to go.  I assumed it was understood that a posted question is a request for an opinion to be made from members of the forum. It is hard to find info when you don't know where it's at.  Yes, thank you IMHO it is nonsensical to only recover medical and at least someone else thinks I should be interviewing other attorneys if this matter is not concluded.  Still,  I am looking for information regarding where to find the information I am needing to make a sound decision on how much and how I should be represented.  So far my basic research has been telling me to go elsewhere.  I am just looking for verification of that feeling on here by requesting the opinions of other professionals in the field.  Opinions are appreciated about how a case like this should be represented and where I can get good information on how to make a decision on how to value pain and suffering. 

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so an update for the questions posted are:

 

Where is a good source of info for a case such as this to determine pain and suffering?

 

Should proper representation include good communication with client about compensation?

 

Can potential lost earnings be recovered although I wasn't working at the time of injury?

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Where is a good source of info for a case such as this to determine pain and suffering?


 


Other experienced PI attorneys.  I know that there are publications in some states that list the amount of damages in tried cases (none that list settlements)  I don't know if there is such a publication in Oregon.


 


Should proper representation include good communication with client about compensation?


 


Whose compensation, the attorney's should be listed in the retainer agreement you have with the attorney.  Your possible compensation could have been discussed in your initial interview or in response to any offer they make.


 


Can potental lost earnings be recovered although I wasn't working at the time of injury?


 


Possibly, depends upon Oregon law. Have you asked your attorney?

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If you are interested in learning more about how Oregon law would treat liability and calculations of damages, short of having your attorney(s) explain it to you, it may be helpful to go down to your local county courthouse and visit its law library. The librarian will be able to direct you to various legal primers that should provide you with some basic information.

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Thank you all for the information.  It sounds to me like no one case is a "typical scenario" and is very subjective to the person and the attorney representing.  I will make a visit to the law library and research Or. law in these matters.  I am interested in knowing more about how potential earnings are affected since my injury has left me unable to do what I have always done for work before.  My attorney was not sure about this.  I am thankful for any other information or advice any of you may have in a case such as this.

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Here is the answer for the lost earnings potential:

 

Plaintiff need not present evidence of past employment or intent of future employment to collect damages for reduced earning capacity. Richmond v. Zimbrick logging Inc., 124 OR App 631, 863 P2d 520 (1993), Sup Ct review denied.

 

good info found in ORS 31.710 Non economic damages from Oregon laws.org

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So far my attorney is only talking about recovering medical and that's it. 

 

Then you need to initiate the discussion with him and, if he refuses to discuss it, you ought to consider firing him and getting a new attorney.

 

By the way, exactly when did the injury occur, and have you filed suit yet?

 

As far as lost earning potential, while recovery might not be precluded as a matter of law, you shouldn't expect much unless you have a clearly documented work history and plans to return to work that existed before the injury.  Also, if your injuries are in your legs, it's not clear why your ability to work would be impacted.  Plenty of jobs don't require use of legs.

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Thank you, points taken, the injury was almost 2 yrs. ago and I have filed a suit.  The Oregon law does not speculate on the persons work history only the CAPACITY to earn either/or.  My work history supports that due to my injury my capacity to earn has been diminished substantially according to my previous history in the medical field and as an executive assistant, both of which require lots of on your feet physical activity.  I am only 36 yrs old and have a lot of years left in which I could have earned at a greater capacity than I now can. 

 

Oregon, recognizes that the impairment of a person's earning capacity is an injury distinct from a loss of earnings. Plourd v. Southen Pac. Transp. Co (1973)

 

"in determining the past and future loss of earning capacity the question is not whether plaintiff would have worked, by choice.  Aperson is entitled to compensation for the lost CAPACITY to earn, whether he would have chosen to exercise it or not"

 

Oregon has upheld many times that the capacity to earn is an injury and not an economic loss it appears.

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Where is a good source of info for a case such as this to determine pain and suffering?

 

 

 

That information won't be worth a nickel to you even if it existed.

 

Two reasons:

 

1 - Juries will award what they think they should award regardless of being told what they should award.

 

2 - Until that happens, it's a negotiation and the representative of the defendant will offer you X regardless of any sources that say Y. Then it's up to you to accept it, continue negotiating, or go to trial.

 

 

Should proper representation include good communication with client about compensation?

 

 

Sure.

 

To some extent.

 

But since the lawyer cannot guarantee that you'll get X there's isn't much he's going to be able to tell you.

 

Can potential lost earnings be recovered although I wasn't working at the time of injury?

 

Of course.

 

 

Plaintiff need not present evidence of past employment or intent of future employment to collect damages for reduced earning capacity. Richmond v. Zimbrick logging Inc., 124 OR App 631, 863 P2d 520 (1993), Sup Ct review denied.

 

"Need not" doesn't mean "should not."

 

Trust me, if you want the money for future loss of earnings, you'd better be able to document it.

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