Practice Areas and Legal Definitions

Wrongful Death:
A wrongful death occurs when a person is killed due to the negligence or misconduct of another individual, company, or organization. A legal action for wrongful death belongs to the decedent's immediate family members, usually a surviving spouse and children, and sometimes parents. Under certain circumstances, unrelated minor children living with and supported by the decedent may also bring a claim for wrongful death. In order to bring a successful wrongful death cause of action in California, the following elements must be present:

• The death of a human being caused by another's negligent or intentional conduct.
• The survival of family members who are suffering the loss of financial support, love, care, comfort, supervision, guidance, household assistance and general society previously provided by the deceased.

The general rule in wrongful death cases is that one is entitled to recover both economic and non-economic damages which are suffered as a result of the loss of a loved one. Economic damages in a wrongful death case include an award for the financial contributions which the decedent would have made to his wife, children and/or parents had he or she survived. It also includes the recovery for funeral services in memory of the decedent and for burial costs. Non-economic damages include loss of love, society, companionship, comfort, affection, society, solace or moral support.

Slip and Fall/Premises Liability:
Slip and fall accidents can happen anywhere and can cause serious personal injury.  Most slip and falls happen in commercial settings, such as grocery stores, drug stores, office buildings, construction sites, gas stations and malls, but they also happen on private property.  Premises Liability accidents can include toxic exposure, animal attacks, swimming pool accidents and amusement park ride accidents.  In any event, there exist duties on the part of the property owners to maintain the property responsibly and avoid the existence of hazardous conditions.

Dangerous or defective conditions may be large or small, temporary or permanent.  Therefore, investigation of the claim is essential to a successful case.  Temporary conditions such as water on the floor of a grocery store, or snow and ice on the stairs of a restaurant need to be investigated quickly.

Dog/Animal Bites:
Every year, millions of Americans are bitten by animals.  Being attacked by a dog is an extremely stressful event. Many dog bite injuries leave scars and have lasting emotional effects.  In every state, a dog owner is liable for bites to people inflicted viciously by a dog that previously bit a person viciously, or that were inflicted pursuant to the command of the dog owner.

In almost all states, a bite victim can recover compensation from a person whose negligence caused the attack and from a person who violated a leash law, a trespass law applicable to dogs or other dog safety laws.  The owner or keeper of a dog is strictly liable for his or her dog, even if it is the first time the dog has injured someone.  As long as the injured victim was not trespassing, teasing or tormenting the dog, the keeper or owner of the dog is liable for any injuries sustained.  Compensation for a dog bite can include payment for medical bills, pain & suffering, mental anxiety, fear and scarring.

Defective Products:
Products liability refers to a manufacturer or seller being held liable for placing a defective product into the hands of a consumer.  Products liability cases may include defective or poorly designed machinery, tools, motor vehicle defects, recreational products, pharmaceuticals and other defective products and equipment.  A person injured by a defective or dangerous product may be eligible to file a lawsuit for product liability.  Damages can be recovered under one of the following categories:  strict products liability; negligence or breach of warranty.   

Spinal Cord Injury:
Spinal cord injury (SCI) occurs when the nerves within the spinal canal are damaged. Most SCI's are caused by trauma to the vertebral column, affecting the spinal cord's ability to send and receive messages between the brain and the body's systems that control sensory, motor and autonomic function. Motor vehicle accidents are the leading cause of SCI, followed by acts of violence, falls, sports injuries and diseases such as polio, spina bifida, and Friedreich’s Ataxia. The spinal cord does not have to be severed in order for a loss of functioning to occur; it only has to be fractured.

Traumatic Brain Injury:
Traumatic brain injury (TBI) is a medical phrase used to describe the damage to the brain suffered by sudden impact or physical force to the head. Essentially, the human brain floats in a fluid substance called cerebrospinal fluid. TBI can result when the force of momentum causes the brain to impact against the skull. This type of injury, often the result of hitting your head on the windshield, pavement, or object, is frequently referred to as a “closed head injury.” Whiplash can also cause TBI.  These closed head injuries can result in lasting physical and mental problems.

Vehicle Accidents:
Legal claims that arise from vehicle accidents are typically governed by the law of negligence. Any individual who negligently operates a motor vehicle may be required to pay damages to an injured victim. A personal injury case involving a vehicle accident may become formalized through civil court proceedings, or may be resolved through an informal settlement before a lawsuit is filed. Vehicle accidents can include:

• admiralty and maritime law
• ATV accidents
• automobile accidents
• aviation accidents
• bicycle accidents
• boating accidents
• commercial bus accidents
• cruise ship accidents
• intersection accidents
• motorcycle accidents
• pedestrian accidents
• rear end collisions
• semi-tractor trailer accidents
• school bus accidents
• SUV rollover accidents
• train accidents
• truck accidents
• yacht accidents

The surviving family members of a fatally injured accident victim may be able to bring wrongful death charges against the defendant.

Automobile Accidents resulting in Wrongful Death:
Car accidents are the leading cause of injury and death for drivers under the age of 34 years, and the number of people over the age of 34 years injured and killed in car accidents is alarmingly high. Over 40,000 people are killed in approximately five million motor vehicle collisions and other car accidents annually- many involving teen car accidents. In 2002 alone, nearly 43,000 people died in highway accidents nationwide. That equates to over 115 fatalities per day.

Bicycle Accidents:
According to the Federal Highway Administration, over 67,000 cyclists in the U.S. are injured every year in accidents involving motor vehicles. Many cyclists who are injured in bicycle accidents are unaware that they have a personal injury case, and that they may be entitled to compensation for injuries, pain and suffering, medical bills and lost income. Damages awarded in a bicycle injury claim can include:

• Compensation for an injury sustained while bicycling due to a pothole, poor road, or defective sidewalk.
• State-mandated residential and commercial bicycle laws, which entitle bikers to observe different traffic rules than cars, trucks and other motorized vehicles. This may mean that a biker is not legally responsible for an accident.

Nursing Home Abuse & Neglect:
Americans are living longer than ever before. The fastest growing segment in the United States is the elderly population. As a result of this demographic shift, many elderly Americans have become residents of nursing homes during their final years. As many of these nursing homes are under-funded and understaffed, a disturbing incidence of neglect and abuse is being reported.  Injuries sustained by nursing home residents due to neglect and abuse often involve the inappropriate use of physical restraints, joint contractors, overuse of sedatives, unnecessary use of urinary catheters, loss of mobility, pressure sores and lack of nutrition with weight loss.

If you have suffered a serious injury or someone close to you was a victim of wrongful death, contact the experienced Long Beach, California personal injury lawyers of McBrearty & Ware today at  866-733-5952, or use the contact form provided on this site to schedule your free consultation.

Frequently Asked Questions

The following information includes frequently asked personal injury and wrongful death questions. The answers stated are general in nature and are not intended to apply to every personal injury situation. Each case is different and carries its own set of circumstances which must be taken into consideration by competent legal counsel. Call the Long Beach, California personal injury law firm of McBrearty & Ware at 866-733-5952, or use the contact form provided on this site, to receive a personal consultation regarding your specific legal claim.

What financial compensation can I recover in a personal injury claim?
Personal injury accident victims are entitled to recover monetary damages for all losses and expenses sustained as the result of an accident. Depending upon the particular circumstances of your case, damages may include recovery for any of the following:

• Medical Bills 
• Lost Income, including overtime wages 
• Pain & Suffering
• Physical Disability
• Disfigurement
• Emotional Trauma
• Mental Disability
• Property Damage

What are negligence defenses?
In the case of negligence, damages awarded for a negligence claim may be reduced if there existed some type of comparative negligence. In some cases, if an assumption of risk was involved, the case may be dropped or the award reduced depending on the circumstances.

How do I prove negligence?
The burden of proof in a personal injury case is on the plaintiff. In order for a plaintiff to obtain any type of recovery, the following four things need to be proved:

• The defendant had a legal duty to act or not act.
• There was a breach of that duty.
• The defendant's breach resulted in an injury to the plaintiff.
• Actual damages resulted from the breach.

A plaintiff must show this by a preponderance of the evidence.  Basically, the plaintiff need only prove that a majority of the evidence shows that an injury was caused by the defendant's negligent actions.

What is premises liability?
Premises liability generally refers to accidents that occur due to the negligent maintenance, or unsafe conditions upon property owned by someone other than the injured victim.  Landowners are required to maintain their property in a manner that does not cause injury to those that, for various reasons, visit the property.This law pertains to both business owners and homeowners. Crucial to a premises liability settlement is being able to show how long the defect or injury inflicting element was there, how visible it was, and how much notice the owner had of the dangerous condition before the accident.

What should I do if I've been injured in a slip and fall accident?
The first thing that a person should do if injured in a slip and fall accident is get medical attention if necessary. If no medical attention is necessary, make sure the owner of the property is aware of the incident. Most businesses and homeowners carry liability insurance to protect them in the event that someone is injured while on their property.  The owner or possessor of a residence, land, or place of business has the duty to exercise reasonable care for the protection of those individuals who are invited to come upon the premises; i.e. individuals visiting for business or pleasure. In such cases, the owner, company or person must inspect the premises to discover any dangerous conditions and warn the invitee of dangers upon said premises. Those injured by a negligent owner or possessor of a premise may recover damages for their injuries, including loss of income, medical expenses, pain and suffering, etc.

What is the statute of limitations?
Every state has certain time limits, called "statutes of limitations," that govern the period during which you must file a personal injury lawsuit. In some states, for example, you may have as little as one year to file a lawsuit from an automobile accident. When the statute of limitations expires on your case, you simply don't have a case anymore. Statutes of limitations differ not only from state to state, but also in regard to the kinds of lawsuits involved. In some states, the statute of limitations for medical malpractice, suits against governmental agencies and wrongful death actions is shorter than that for other types of personal injury cases.  In general, however, the statute of limitations for personal injury cases is from one to three years, and the time begins from the time of the accident. There are some circumstances that will toll the statute of limitations such as if the harm is not discovered right away.

How long will it take to settle my claim?
The time it takes to settle a personal injury case depends on the circumstances surrounding the case.  The more complex the case the longer it may take to settle.  A case can take anywhere from 3 to 18 months to settle depending on its complexity.

What is nursing home neglect?
California has special laws enacted for the specific purpose of protecting the elderly population (over 65) and dependent adults. These laws were designed to encourage victims and their attorneys to pursue legal cases against all persons or entities that abuse or neglect this vulnerable segment of society. Elder, disabled and dependent adults depend on nursing homes to provide most if not all of their daily care, which includes food, water, medicine, toileting, grooming, social and physical stimulation, as well as regularly being turned in their beds. However, because nursing homes are not sufficiently staffed, and the staff there is generally underpaid, millions of elder and dependent adults are repeatedly being neglected and abused. Signs of nursing home abuse and neglect include:

• Bed sores (pressure sores, decubitus ulcers) 
• Burns
• Rapid weight loss 
• Unexplained bruises 
• Emotional withdrawal
• Malnutrition or dehydration 
• Heavy sedation 
• Inability of caretakers to explain patient's condition

Whether it is a single incident that causes injury or repeated neglect or abuse, the victim or his/her next of kin has a right to bring claims against the nursing home under the nursing home neglect laws. If the nursing home is found to be negligent or abusive, the victim and/or next of kin will generally be awarded monetary compensation and the nursing home could potentially lose its certification for failing to supply the expected care (leading to a loss of federal funding).

The best prevention of neglect and abuse is attentive family members, who, on an ongoing basis, are aware of the general health of their vulnerable relatives. If you suspect that you or a loved one is or was subject to abuse or neglect, it is important to report that abuse or neglect right away.

Who can file a wrongful death lawsuit?
This depends on your state's statutory language, but generally includes immediate family members (i.e. spouses, children and parents). Minors may require a "guardian ad litem" to represent their interests in court.  In addition, some states may also extend the potential group of plaintiffs to grandparents, legal dependents or members of the extended family.

Professional Profiles

John McBrearty and Andrea Ware have over 36 years of combined experience in handling personal injury and wrongful death cases. The Firm has represented clients who reside all over the world and have sued defendants and corporations who reside outside the state and outside the country.

If you have suffered a serious injury or someone close to you was a victim of wrongful death, contact the experienced Long Beach, California personal injury lawyers of McBrearty & Ware today at  866-733-5952, or use the contact form provided on this site to schedule your free consultation. 

FIRM ADDRESS:
McBrearty & Ware, A Professional Law Corporation
3454 E. Anaheim St.
Long Beach, CA 90804
Phone: 866-733-5952
Hours: M-F, 8:00AM-5:00PM
After hours appointments available

MEMBERS OF THE FIRM:

John McBrearty, Attorney

EDUCATION:

• Western State University College of Law, J.D., 1986

COURTS ADMITTED:

• California, 1987

PROFESSIONAL AFFILIATIONS:

• California Bar Association
• Consumer Attorneys of California
• Consumer Attorneys Association of Los Angeles
• Los Angeles County Bar Association
• Long Beach Bar Association

PRACTICE AREAS:

• Personal Injury
• Auto Accidents
• Truck Accidents
• Bicycle Accidents
• Defective Products
• Slip and Fall/ Premises Liability
• Dog Bites
• Nursing Home Abuse

Andrea L. Ware, Attorney

EDUCATION:

• Western State University College of Law, J.D., 1988
• California State University, Long Beach - Western State University College of Law, B.Sc. (Law), 1986

COURTS ADMITTED:

• California, 1989

PROFESSIONAL AFFILIATIONS:

• California Bar Association
• Consumer Attorneys of California
• Consumer Attorneys Association of Los Angeles
• Los Angeles County Bar Association
• Long Beach Bar Association

PRACTICE AREAS:

• Personal Injury
• Auto Accidents
• Truck Accidents
• Bicycle Accidents
• Defective Products
• Slip and Fall/ Premises Liability
• Dog Bites
• Nursing Home Abuse