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Personal Injury

Monday, October 27, 2014

The Role of Distracted Driving in Personal Injury Cases

Distracted driving has emerged as a disturbing trend that poses a serious threat not only to preoccupied drivers, but to other motorists on the roadways. Accidents caused by this unsafe practice have seen a major uptick in recent years due to the widespread use of smart phones to text and post to social media platforms, such as Instagram and Twitter, while driving. Although drivers of all ages may be guilty of driving while distracted, studies have found that teenage drivers are especially tempted to use their phone to snap photos or text from the driver's seat.

Personal injury lawsuits on the basis of distracted driving are becoming more prevalent. A wrongful-death suit against taxi-alternative company Uber cites distracted driving as the cause of a collision that killed a 6-year-old girl and injured her mother and brother while they were crossing the street on New Year's Eve in California. Allegedly, the Uber driver was logged into the company's smart phone app, waiting to receive and accept a ride request, when his SUV collided with the girl and her family. Although this case doesn't involve a teenage driver, it demonstrates how (alleged) smart phone use while driving can have horrifying consequences.

More than 3,300 fatalities occur each year as a result of distracted driving, according to the Department of Transportation and Distraction.gov, the official US website dedicated to distracted driving. Drivers are twice as likely to crash if they're texting while driving than if they were paying attention.

Car crashes are the leading cause of death among teenagers, with cell phone use being reported in 18 percent of all distraction-related fatalities in America. These scary statistics have led the National Highway Traffic Safety Administration (NHTSA) to create an campaign against distracted driving aimed at young adults.

If you have teenaged children or you just happen to be up on current trends, you'll know that many young people use their cell phones to take "selfies", a nickname for self-portraits. It's come to the attention of law enforcement and safety advocates that teens are taking selfies and posting to social media while behind the wheel, some of them even use the hashtag #Ihopeidontcrash with their photos. Expressing that fear, even though it's disguised with a supposedly amusing hashtag, shows that these young drivers have an inkling as to how dangerous this practice could be.

On average, texting takes your eyes off the road for 4.6 seconds. Distraction.gov says that at 55 mph, 4.6 seconds with your eyes on your cell phone is like driving an entire football field blindfolded.

Distracted driving falls into three main categories:

  • manual: taking your hands off of the wheel
  • visual: taking your eyes on the road
  • or cognitive: not being mentally present while driving.

Distracted driving laws vary by state, but many have a law in place that bans drivers from using handheld phones. In addition, most states ban bus drivers and beginner drivers from all cell phone use (handheld and hands-free), and enforce a ban on texting for all drivers.


Monday, October 13, 2014

Personal Injury Cases & Minors

When an adult is injured, he or she has the legal right to bring a lawsuit or settle with the at-fault party for compensation. A child, on the other hand, does not have those same rights prior to his or her 18th birthday. When a child is injured, it is the responsibility of the parents, or legal guardian, to advocate for the child and ensure his or her best interests are protected. While the laws vary greatly state to state, there are generally some unique considerations which come into play when a minor is the plaintiff in a personal injury proceeding, these include:

The Statute of Limitations May Differ
All states impose a time limit which requires that the injured party file suit within a given time frame from the date of the accident. In many states, the statute of limitations for an injured child will be different from that of an adult and the time period may not begin until the child turns 18 (allowing him or her to bring suit on their own).

A Guardian Ad Litem May be Appointed
Since children do not have the capacity to protect their interests in legal proceedings, some states require the appointment of a guardian ad litem. This individual must honestly represent the child’s best interests. In many states, the court will choose the Guardian Ad Litem; it is often a parent or close relative of the child.

The Parents May Also Be Able to Collect
While the compensation for injury will belong solely to the child, the parents of the child are legally responsible for medical bills and they may be able to also bring a claim against the at-fault party for compensation for these associated expenses. When this does occur, the parents’ claim is often tried with the child’s although two separate verdicts are issued.

The Standards of Care May Be Different for a Child
In lawsuits regarding negligence, the court will seek to establish whether all parties acted with a certain standard of care. This is even true of the injured party as the defendant may claim that the negligence of the plaintiff contributed to the injury. In the case of a child, he or she will likely be held to a different standard of care based on what is reasonable for a child of that age, intelligence and maturity. In some states, a child under a certain age is incapable of being negligent so a claim of contributory negligence would not be valid.

Court Approval May Be Required
Most settlements for a child’s personal injury will require court approval. Before approval, the court will generally demand that all documentation of the case along with a detailed accounting of the attorney's fee and case expenses be submitted for the judge’s review. The judge will then approve the settlement, if it is appropriate and in the best interest of the child. If the settlement is approved, the money must be deposited into a designated bank account approved by the court. The money cannot be withdrawn without order of court until the 18th birthday of the injured child. It's important to note that the parents are not entitled to this money.

Since children are seen as vulnerable members of our society, these extra legal safeguards are intended to provide additional protection. If your child has been injured, it’s imperative that you contact a seasoned personal injury attorney who can help you to better understand local laws and how they apply to your child’s case, and make sure that your child’s best interests are protected now and in the future.


Monday, September 22, 2014

Negative Online Reviews - Do they Constitute Business Defamation?

We are living in the digital age and consumers use the internet to make a variety of decisions, including what products to buy and what professionals to hire. During their research,  many savvy consumers go online to look at the reviews the business has received on local business directories like Yelp or Google+.  These online reviews can have a profound effect on the success of your business so it is important to understand your rights should your business receive a negative one. 

In the case that your business has received a negative online review, you may have recourse under state or Federal defamation laws.  However, before pursuing that route, you should consider using any dispute or review process provided by the review site.  Defamation is generally defined as the act of intentionally publishing a false statement that has the ability to negatively effect another’s reputation.  Defamation laws protect individuals and businesses alike.  Publication is the communication of the defamatory statement to another person and the act of posting a review to a website usually qualifies.  Whether a statement has a negative effect on another’s reputation is judged using a reasonable person standard and will be looked at on a case by case basis.  In order for the statement to actionable, it does not have to be intentionally defamatory; it just has to be intentionally published.  Defamatory statements must be false and cannot be opinions.  Whether your situation meets the necessary threshold for defamation may be difficult to ascertain, so it is important to consult with a qualified attorney before pursuing a claim for business defamation.

If you believe that your business has received an online review that contains false information and is damaging to your business reputation, you might have a claim for defamation.  Recent civil cases for this type of wrong have resulted in large verdicts for the businesses that were injured.  While you most likely cannot pursue an action against the hosting website, as they are usually exempt under the Digital Millennium Copyright Act (DMCA), you might be able to recover from the individual that made the statement.  All litigation should be considered using a cost-benefit analysis and business defamation cases resulting from online reviews are not any different.  


Monday, September 8, 2014

Mediating Personal Injury Lawsuits

Personal injury cases run the gamut from slip-and-fall accidents to auto wrecks. Insurance companies are often involved, and most parties generally want to resolve cases as economically as possible. Mediation is one option to accomplish this.

Mediation is a form of alternate dispute resolution (ADR), in which the parties voluntarily agree to work with an independent third party – a mediator – to resolve their disputes. Unlike a court trial where one party is the “winner” and the other party is the “loser,” mediation involves finding a workable solution to which all parties can agree. A mediated settlement is formalized with a legally binding contract signed by all parties.

Mediation is a non-binding procedure, meaning that no party can be forced to consent to an agreement. The mediator does not have the decision-making authority that a jury, judge or arbitrator has. Even if the parties previously agreed to mediate their dispute, any party is free to walk away from the process and pursue the matter in the courts.

Mediation also affords the parties a level of confidentiality that is not available in court cases. Parties cannot be forced to disclose information. If a party opts to make admissions or disclose confidential information, those statements or information cannot be introduced in court or otherwise used outside the scope of the mediation itself. This confidentiality enables the parties to freely and productively negotiate their dispute.

Unlike court trials or arbitration hearings, which are determined based on the underlying facts of the incident and the applicable laws, mediation allows parties to make agreements based on their own interests. The parties are free to allow their choices to be guided by business interests or personal preferences. When the dialogue within a mediation is focused on each party’s true interests, a mutually satisfying result is often possible.

Parties to a personal injury dispute often choose to mediate the case to avoid a trial involving significant attorney’s fees and other costs and an uncertain outcome. When both sides are faced with uncertainties regarding the outcome, a mediated settlement agreement can be a good solution. Furthermore, taking a case to trial can take months or years and usually results in at least one party being unhappy with the outcome.

In mediating a personal injury case, the parties and their lawyers work with the mediator to devise a settlement that everyone can live with. Plaintiffs can be compensated for their property damage, medical costs, lost income, and pain and suffering. On the other hand, defendants and their insurance companies can end up paying far less than it would have spent in legal fees and costs to defend the case at trial, and a potential sizable jury award. A good mediator will help all parties see the strengths and weaknesses in their respective cases, enabling them to compromise and arrive at a result which is acceptable to both.


Wednesday, July 16, 2014

Recovering Damages for a Dog Bite: Do I have a case?

While dogs are fondly referred to as “man’s best friend”, not all are friendly and each year thousands of people across the United States are injured by dog bites. If you’ve suffered an injury as a result of a dog attack, you’ve probably wondered whether you should bring a lawsuit to collect damages. The success of your case likely depends on the following:

State Statutes
Each state has its own set of laws when it comes to dog owner liability. Some are very strict, holding the owner liable for all damages resulting from a bite or attack by the dog on another person, domestic animal or property. In others, you may only be able to bring suit if the owner knew or should have known that the dog was a danger or "had vicious propensities."

Location of the Attack
If you were attacked in a public place or on your own property, you may have a better chance of collecting damages than if you were on the owner’s property where they could reasonably argue that you were trespassing.

Was the Dog Provoked?
If the owner can prove that you provoked the dog prior to the attack, you may not be able to collect for damages. For instance, if you threatened the dog’s owner by yelling or engaging in a physical assault, or if you went to take a bone that the dog was carrying, you may not have a basis for your claim because the dog’s action could be expected as a way to protect the owner or his “property.”

Evidence
As with any injury, it’s absolutely essential that you have evidence of the bodily harm. Were there witnesses who saw the attack? Did you file a police report? Take photos and keep a copy of the medical report? All of this evidence is necessary to prove liability and help to prove why you are entitled to receive compensation.

In many cases, a dog owner’s homeowners insurance will cover some or all of the damages. In instances where insurance isn’t available and the dog’s owner does not have the means to pay for the damages, there may be a third party such as the landlord who allowed a dangerous animal to reside on their property who can be held liable. A qualified personal injury attorney can help you better understand local statutes, your rights as an injured party and protect your best interests to make sure you receive just compensation for your injury and suffering.


Friday, June 27, 2014

Damages Allowed in Personal Injury Cases

If you have been injured in an accident, and another party is to blame, you may be able to obtain monetary damages from that person or business to compensate you for medical expenses, loss of income and pain and suffering as a result of the accident.  

There are a variety of types of damages allowed in personal injury cases. Those damages can be divided into several categories. First, there are compensatory damages and punitive damages. There are also two types of compensatory damages: economic and non-economic.

Compensatory damages are damages that are intended to compensate a person for a loss or problem relating to a personal injury, including monetary losses, pain and suffering and physical impairment. Punitive damages are intended to punish the negligent party for its wrongdoing, and aren’t specifically related to a loss the plaintiff suffered.

For example, if a company decided to dump toxic waste into a creek instead of disposing of it safely, and as a result a woman living next to the creek developed cancer, her compensatory damages may include amounts for her medical expenses, her lost wages, and her pain and suffering.  In addition to these damages, the jury may also decide to award punitive damages, which are strictly intended to punish the company for its wrongdoing. Punitive damages are somewhat rare – in most cases, plaintiffs only receive compensatory damages.

Compensatory damages can be further divided into economic damages and non-economic damages. Economic damages are those damages that result in an identifiable economic loss. For example, economic damages include medical expenses, lost wages, the cost of hiring a helper or nurse, and the cost of special transportation or medical equipment that’s needed as a result of the accident.

Non-economic damages are damages for harm relating to the injury sustained that are difficult to quantify using a specific dollar amount. Instead, non-economic damages are awarded to a person who has suffered a diminished quality of life as a result of the accident. Some examples of non-economic damages include emotional distress, pain and suffering, embarrassment or humiliation, loss of enjoyment of life, loss of consortium (sexual relations) and scarring or disfigurement. Although non-economic losses can be difficult to quantify, they are an important component of a personal injury case.


Sunday, June 15, 2014

“We Don’t Get Paid Unless We Win” – What does it all mean?

Each day, thousands of advertisements for personal injury lawyers can be found in local newspapers, on television stations and even on social networks like Facebook and LinkedIn. Most of these ads explain that the firm doesn’t collect any fees unless they win. Of course, there’s usually a catch with this statement and it centers around what the advertising firm means by “fees” and what other costs you might be expected to pay regardless of whether or not you win your case.

Attorney fees usually involve the time and labor of the attorneys and their staff. These fees do not include the out-of-pocket case costs that are inevitable in any court proceeding. So while you may not be required to pay any attorney fees upfront or at all (unless you win), you may be required to pay all related case costs. Case costs are usually expenses charged by third parties for work on your case. These may include court filing fees, expert witness fees, cost of obtaining medical records, court reporter fees, etc. Depending on the scope of your case and the duration of these proceedings, these fees can easily be thousands of dollars.

While some firms will require you to pay case costs as they are incurred, others won’t require upfront payment (especially, if you have a very strong case) and will instead deduct these expenses from the final settlement. Combined with legal fees, these costs may add up to 50% or even more of the settlement. In selecting an attorney for your personal injury matter, it’s important that you take time to understand what expenses, in addition to attorney fees, you will incur.


Sunday, June 1, 2014

Wrongful Death

If you watch the evening news or read the local paper, you’ve probably come across the term “Wrongful death.”  Legally speaking, wrongful death is a term used for a type of action that can be filed by the heirs and beneficiaries of a person who was killed because of the wrongful conduct of another person. Wrongful death laws are intended to provide compensation to help support the dependents of the deceased.

Conduct that can result in a wrongful death claim include negligence, such as reckless driving, or intentional crimes such as assault or murder. In most states, the standard of proof for wrongful death cases is a preponderance of the evidence meaning that the injured party has to prove to the jury that there is a greater than 50% chance that the defendant’s negligent or criminal actions were the cause of death. This differs from criminal cases where the prosecutor must show proof beyond a reasonable doubt, a much higher standard. Therefore, it’s often easier for survivors to prove a wrongful death case than it is for prosecutors to prove a criminal case. One well-known example is the O.J. Simpson case where the survivors of Ron Goldman and Nicole Simpson chose to sue for wrongful death and won after O.J Simpson was acquitted in the criminal case.  

Wrongful death laws are different from state to state, and they govern who can sue for wrongful death and whether there are any limits that should be applied to damage awards. In general, a surviving spouse, children, or next of kin can recover for wrongful death. However, in some states, only minor children, not adult children, can sue for the death of a parent.

There are some exceptions to who can be sued for wrongful death. In order to promote strong family relationships, some states don’t allow a person to sue another member of his or her family for wrongful death, However, many states have dropped this rule, because it has at times prevented families from collecting insurance proceeds. It can also be hard to sue states or local governments, or the federal government for wrongful death – the rules vary among jurisdictions.

In order to sue for wrongful death, it must be shown that the defendant’s actions (or failure to act when he should have) were the immediate and foreseeable cause of the deceased’s death. In wrongful death cases, state laws govern what amount of damages can be recovered. Usually, wrongful death cases include compensatory damages, which provide an amount of restitution for lost income, medical and funeral expenses, and economic support in an amount the plaintiffs would have received if the deceased had not died. In some cases, the survivors can also recover for loss of companionship and sexual relations. Calculating the exact amount of damages requires the  consideration of a number of a variables, such as the amount of time the deceased would have continued working and the deceased’s salary, and the deceased’s life expectancy, including physical and mental health.

In some wrongful death cases, punitive damages (which are intended to punish the defendant) can be awarded if the defendant’s actions were extremely reckless. The jury decides whether there should be an award of punitive damages. Any punitive damages that are recovered are generally divided among the survivors by statute.


Saturday, May 10, 2014

5 Tire Safety Hazards

Proper maintenance of your vehicle is an important step toward ensuring your safety on the road. Tire failures at high speeds can result in vehicle rollovers, serious injuries and death. Below are five safety hazards to watch out for; the presence of any of these conditions can indicate that your tires should be repaired or replaced – before it is too late.

Tires Not Inflated to the Proper Air Pressure: Incorrect tire pressure compromises both the comfort and safety of your ride. Improper pressure affects braking, cornering, stability, mileage and tire life. Furthermore, tires that are not inflated to the proper pressure face a higher risk of catastrophic failure resulting in a serious accident. Low tire pressure causes increased friction and can overheat the tire, causing tread separation. The recommended tire pressure is always less than the maximum allowable pressure stated on the tire itself. Your vehicle’s recommended tire pressure can be found in the owner’s manual, or the label on the car’s driver’s side door, glove compartment or gas tank door.

Worn Tread: If the tread on your tires has worn down, you are at an increased risk of a blowout or hydroplaning accident.  Additionally, worn tread may indicate a more serious problem, such as improper balance, suspension or alignment. Finally, tires with worn tread are more likely to be underinflated, affecting steering, braking and mileage, and causing further safety risks due to improper air pressure.

Tire Repeatedly Loses Air Pressure: If you often notice that one of your tires seems low, despite the fact that you have inflated the tires to the proper pressure, this could indicate a leak. There may be a small puncture in the tire’s tread, perhaps caused by driving over a nail, or it may be caused by a poor seal between the tire and rim or a damaged valve. These problems can often be repaired, rather than having to replace the tire. Ignoring the problem can lead to a sudden drop in tire pressure while on the road, which can result in a blowout or loss of control.

Bulge in the Sidewall: Any budge, regardless of size, indicates that the tire’s integrity has been compromised and the tire should be replaced immediately. This could be due to an impact with a curb or pothole. When such a bulge occurs, the steel belts inside the tire have weakened and can no longer ensure safe operation of the vehicle. Care should also be taken to ensure that the impact that caused the tire bulge did not also cause damage to the wheel itself.

Old Tires/Vehicles in Storage: If your tires are old or the vehicle has been immobile for a lengthy period of time, the tires may be affected by a form of “dry rot.” Regardless of how climate-controlled the storage environment is, tires that sit for extended periods will weaken over time until they are unsafe for travel. Similarly, old tires will show signs of degradation. You can identify this problem by examining the tire for small cracks in the tire’s sidewall. If any cracks are present, the tire should be replaced.


Monday, January 6, 2014

Intentional Infliction of Emotional Distress

Can you be sued for hurting someone's feelings?

In a civilized society, citizens are expected to conduct themselves with at least a small amount of regard for the feelings of others.  To prevent behavior that can cause severe anguish, the law has created a tort called “intentional infliction of emotional distress”. An intentional infliction of emotional distress claim allows those who are emotionally injured by another person to recover for emotional injuries as well as any physical injuries that result from distress induced by the bad behavior, such as migraines, ulcers or a miscarriage. 

In order to prove intentional infliction of emotional distress, four elements must be shown. First, the defendant must act either intentionally or recklessly. The defendant’s conduct must be extreme and outrageous. Third, the plaintiff must have suffered extreme emotional distress.  And lastly, the plaintiff’s conduct must be the cause of that distress. In addition, some states require that the incident that caused the emotional distress must have taken place in public. 

Some examples of behavior that may constitute intentional infliction of emotional distress include a person telling a parent their child has died, while knowing it wasn’t true; a medical professional telling a patient he or she is HIV positive as a joke; or a person threatening to shoot another person if he or she does not meet certain demands. Some behavior that may seem like intentional infliction of emotional distress but probably is not would include a person having an affair with a friend’s spouse; a landlord evicting a dying person who hasn’t paid rent for a few months; or an action that was intended as a harmless prank, such as toilet papering someone’s house. 

When determining whether intentional infliction of emotional distress has occurred, a judge or jury must take into account the emotional state of the victim and whether the plaintiff knew of that emotional state. For example, a person locking another person who is scared of roaches in a closet filled with roaches could be intentional infliction of emotional distress in that instance, while it may not be to a person who isn’t afraid of roaches. 

Intentional infliction of emotional distress can be hard to prove. The hardest element to show is that the defendant’s conduct was so extreme or outrageous to be completely intolerable in a normal society. It is not enough for the defendant to simply have behaved badly or even very badly – the behavior must be atrocious and harmful to one’s mental health. 


Thursday, December 5, 2013

Wrong-Site Surgeries Increase in Number

Wrong-Site Surgeries Increase in Number

Imagine that you’re a patient going in for routine surgery.  Now imagine that you’re one of 40 U.S. patients a week who awakens from anesthesia– only to find that your surgeon has operated on the wrong site.  Say for example, your right leg instead of your left leg. What would you do? Sue your doctor? The hospital? A surprising report from The Joint Commission, which accredits and certifies healthcare organizations in the United States, finds that the problem of wrong-site surgery has worsened, not improved.  More and more medical patients are waking up to find that their doctors made an error in a common surgical procedure. 

According to Kaiser Health News, wrong-site surgeries continue to occur on a regular basis. This comes years after the president of The Joint Commission introduced mandatory rules aimed at preventing surgeons from performing procedures on the wrong site.  The study found that wrong-site surgery occurs an estimated 40 times a week in U.S. hospitals and clinics. However, according to the commission, which encouraged surgeons to submit cases of error, only 93 cases were reported in 2010.   

According to the commission, reporting of such incidents is voluntary and confidential.   This policy is in place to encourage doctors and hospitals to come forward .  Aside from the commission, the laws in about half the states, do not require reporting.   

Despite campaigns to encourage surgeons to participate in a timeout at the start of every surgery, where each surgical team takes a moment to verify the procedure to be performed, the article posits that the mistakes may be explained by the increased time pressures surgeons face. Because reporting is not required by many states, the number of estimated wrong-site surgeries could be a gross underestimation. 

Interestingly, a smaller percentage of wrong-site procedures are litigated in medical malpractice suits than one might think.  Settlements in these cases are substantially lower than those where the wrong-site patient seeks representation. 

According to a 2010 study, which reviewed 132 wrong-site cases, about one-third of procedures resulted in death or serious injury.   Despite these horrific outcomes, the average compensation to victims was approximately $80,000 in cases that resulted in a lawsuit and $47,000 in cases settled without legal action.  As incidents of wrong-site surgery continue to increase, patients and their advocates should continue to press for more accountability from their hospitals and their doctors. 


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