Archive for the 'Personal Injury' Category

Get Home for the Holidays: Tips to Avoid Road Accidents for the Winter Traveler

The holiday season is a wonderful time for many people to take vacations and visit their family friends. It is also a time where cars slide on the ice, drivers drink too much egg nog, and shopping frenzies cause insurance-raising fender benders. Here are some pointers to keep you and your kin safe and out of trouble on the way to your destination.

1. Prepare for driving through the ice and drifting snow

Winter driving requires patience, skill, and knowing when to pull over. One University of Georgia researcher, Alan Black, analyzed ten years of recent weather data to show that 800 drivers die each year just by driving in inclement winter weather such as sleet, snow, and freezing rain. This type of weather also causes well over a million accidents every year.  Winter Driving

Insurance experts and state agencies have compiled many lists of winter driving tips, and here are a few that stand out:

  • Have emergency equipment including jumper cables, a shovel, a scraper/brush, snow chains, and sand in your car. If you are planning a long-distance trip that could leave you stranded, also pack flashlights, food, blankets, warm clothing, and other winter gear.
  • Keep your cellular phone charged.
  • Winterize the car, making sure that your windshield wipers, battery, and tires are in good repair and that you have plenty of antifreeze in the system.
  • Learn how your car’s brake system works and how to react if tires start to slide on the ice.
  • Don’t take unnecessary drives in terrible weather.
  • When on the road, increase the distance between other cars.
  • Use headlights for visibility, but do not use high beams in snow, fog, or heavy rain.

2. Don’t cancel out Black Friday deals by increasing your insurance bill

Tens of millions of shoppers attend Black Friday sales, and they are starting earlier and earlier, creeping into Thanksgiving evening. Often, cars file in and out of cramped parking lots. Progressive Insurance discovered that parking lot claims rose by 36% on Black Friday in 2011. Unfortunately, there hasn’t been a more recent study, but drivers should still be careful. Here, the advice is simple:

  • Stay patient and calm.
  • Use your signals.
  • Choose parking spots where you have high side and rear visibility.
  • Look carefully before you pull in/out of a parking spot

3. Don’t drive intoxicated after a holiday party unless you want a DUI…or worse

Each year, “Blackout Wednesday” packs the local bars and kicks off the holiday season as one of the biggest binge-drinking days of the year. The frequency crashes involving alcohol during the holidays in general is 2-3 times higher than during the rest of the year. In all, 40% of holiday crashes involve alcohol. Bad road conditions combine with drivers’ diminished control of vehicles and poor reaction time produce serious and sometimes deadly accidents. Knowing this, the police and their DUI/DWI patrols are often poised to catch drivers in the act. Here are tips to avoid the ultimate holiday calamity:

  • Plan for yourself and your holiday elves… designate a driver at the beginning of the evening, have the number of a reliable cab, and don’t leave your car somewhere it can’t stay overnight. Make sure your friends also have a plan.
  • Nothing can really “sober” you up except for time. If you’ve had an intoxicant, coffee, water, or pumpkin pie may make you feel good, but won’t make you immediately fit to drive.
  • Beware driving applications (“apps”) that claim to help. Breathalyzer applications can be inaccurate, and so can applications that say they can track DUI checkpoints. If you want guaranteed protection from a DUI, don’t drink or use other intoxicating substances before you drive.
  • Know the DUI laws in your state. In some states, a DUI only requires “physical control” over a vehicle. For example, a person can be asleep in the backseat with keys in their pocket and still technically have “physical control” over the car. States may also criminalize reckless alcohol-related driving even for a driver who tests below the legal blood alcohol limit.
  • In most states, the blood alcohol limit is .08; one strong drink may put a petite person over the line. Factors including metabolism, fatigue, and how much you’ve had to eat can play a role in blood alcohol level. Once again, there’s only one way to make sure you’ll be safe: don’t mix driving with intoxicating “holiday cheer.”

Happy Holidays, and stay safe!

Repeat Head Injuries Create Legal Issues in Sports

Head Injuries and the NFL

During his NFL career from 1958-1972, Wayne Walker received over 20 concussions in 200 games, getting knocked out twice. On October 29, he announced that he suffers from Parkinson’s disease, a degenerative nerve disorder. While Parkinson’s is normally genetic, it can also be triggered by other factors. Walker said in the interview that once he completely lost consciousness but returned to the field in the same game.

In May 2015, Adrian Robinson, a former NFL player, committed suicide. It was confirmed after his death that he had chronic traumatic encephalopathy (CTE), one of the more common diagnoses for football players. Some effects of CTE are commonly referred to as being “punch drunk.” There are many symptoms of CTE, which can include depression, memory loss, and aggression.   Head Injury

In addition to CTE, the risk for Parkinson’s, ALS, Alzheimer’s, and other neurological diseases is much higher for NFL players. The brains of many NFL players have been studied after death, and at least 70 have showed signs of disease. The Concussion Legacy Foundation at Boston University found evidence of CTE in 88 out of 92 NFL players studied so far. Perhaps it should come as no surprise that this March, Chris Borland retired from the San Francisco 49ers at age 24. He felt that as a professional linebacker, he could avoid the risk of repeat brain trauma and the progressive neurological diseases that often follow.

Head Injury Lawsuits

There are often limits to how liable others are for sports injuries. Athletes often “assume the risk” or consent to anything that happens while playing a rough-and-tumble sport. However, there may be legal recourse for equipment failures, play that violates the rules of the game, or, as in the case of the NFL, leagues that misinform players about the risks involved.

Earlier this year, a judge approved a settlement of at least $900 million dollars a suit filed by retired NFL players and their families. The lawsuit claimed that the NFL knew of the dangers of traumatic head injuries and did not disclose them to players. The proceeds of the suit will allow for players or their heirs to receive up to $5 million for a diagnosis of ALS, $4 million for diagnosis of CTE, and up to $3.5 million for Parkinson’s and Alzheimer’s. However, the amount of money is currently being challenged as insufficient to cover all of the potential injuries caused by the game.

Riddell, a helmet manufacturer, has also been implicated in several lawsuits. Retired NFL players have attempted to sue the company, and the NFL declared that Riddell would no longer make their “official” helmet in 2013. Families of high school athletes in Colorado, California, and now New Jersey have also brought suit against Riddell for injuries on the field.

What is the Best Way Forward for Football Players?

Now that society is becoming aware of the dangers of repetitive head injuries, many steps are being taken to make football safer. The NFL is taking action to try to reduce head injuries on the field, and has donated $30 million to the National Institute of Health (NIH) to study the effects of concussion. At all levels of the game, coaches and players are paying more attention to safety. Yet, as one NIH flyer states, “every year, between 1.6 million and 3.8 million sports-related concussions are estimated in the United States, particularly among young athletes.”

The NIH advises coaches, players, and their families that they should learn to recognize the signs of concussion: all concussions are serious, and most occur without loss of consciousness. Not all concussions are caused by blows to the head, but can also be caused by “a blow to the body that causes the head and brain to move rapidly back and forth.” If a player seems drowsy, slurs speech, has a headache, has memory problems, or has any other signs of concussion, they should be taken out of play and given medical attention. Importantly, they should also not be allowed to play again until a doctor says that they can.

Personal injury and product liability lawsuits will also continue to hold organizations, manufacturers, and even individual coaches accountable for failing to protect players in certain cases. If you or someone you know has suffered from football-related head injuries, you may wish to contact an attorney to see if you have any legal recourse.

Top 5 Mistakes Clients Make in Personal Injury Law

Mistakes. They sometimes happen. Unfortunately, when clients make mistakes in their personal injury case, it can be the difference between winning and losing a claim. Below are five of the most common mistakes clients make in personal injury cases.

5. Rebelling against Doctor’s Orders

Failing to treat an injury because of someone’s negligence is a fairly common mistake. When a plaintiff files a claim against someone for an injury, the last thing he should do is ignore doctor’s treatment orders. Failing to treat an injury ranges from not taking medication to missing doctor’s appointments and self-treating the injury.

A successful personal injury claim involves proving pain and suffering caused by the defendant’s negligence. Pain and suffering damages are awarded to some plaintiffs. The damages are intended to compensate the plaintiff for losses sustained because of the injury. The losses include emotional trauma and physical pain. Any time a person fails to follow doctor’s orders, one strong argument can be made: the plaintiff is the cause of his pain and suffering. This argument, if successful, could lead to little to no money to cover pain and suffering.

4. Failing to Disclose a Pre-existing Injury

A pre-existing injury refers to any medical condition or injury an individual had prior to the accident. Pre-existing injuries are the focus of personal injury claims because they are factored into the amount of money the plaintiff may receive in an award or settlement.

Clients with pre-existing injuries fear not receiving an award or less money because of the injury. As a result, they make the common mistake of not disclosing the prior injury to their doctors. What they don’t realize is that the defense attorney will request his previous health records looking for any prior injuries in the location where the new injury occurred.  Car Accident

If they discover the prior injury in the same part of the body the plaintiff claims is injured, it will damage the case. To the judge, jury, and defense attorney, it looks like the plaintiff lied or is hiding something.

3. Settling a Claim without Speaking with an Attorney

A settlement offer is presented from one party to another as reimbursement for injuries suffered in a personal injury case. Typically a defendant or insurance company will offer a settlement to a plaintiff to avoid going to trial. Settling a claim without speaking to an attorney is a critical mistake. Unless a plaintiff receives a settlement offer after negotiations between his attorney and the other party, there’s no way to know if it’s fair.

Remember, a defendant is trying to pay the least amount of money possible. Sometimes, a settlement offer won’t cover a plaintiff’s medical bills, pain and suffering, or lost wages. This means serious financial trouble for the plaintiff. He can’t sue for the remaining balance not covered by the settlement. Part of the settlement offer requires a plaintiff to give up the right to sue for any future or past damages.

2. Withholding Information from Your Attorney

To win, a personal injury attorney needs to know everything about the case. Unfortunately, the client may decide to withhold facts from his attorney which will damage the case. For example, a client may exaggerate injuries to his attorney. The attorney will aggressively fight to obtain the compensation to cover severe injuries. A defendant will discover the plaintiff’s injury isn’t as bad as he claims. How? Sometimes, the defense attorney will place the plaintiff under surveillance or check social media accounts. It doesn’t matter how the defense finds out, the damage is done.

1. Plaintiff Acts as Own Attorney

Many people think they can do a better job than a personal injury attorney at negotiating and presenting their case. So instead of seeking legal representation, they handle their own cases. The problem is an attorney knows how to negotiate, document injuries, and prove liability. Most laypersons do not. So they will actually do more harm than good when trying to win their case. The best way to avoid this mistake is to leave representing clients to the professionals.

Jury Holds Gun Store Responsible For Milwaukee Shooting of Police Officers

Gun stores face little liability for the crimes committed with weapons that they sell. This is in part because federal law shields them from most (but not all) liability. However, two police officers have just successfully sued a gun store for negligence, the first-ever successful suit of its kind. If the jury’s verdict is upheld on appeal, this decision will have consequences for gun dealers in Wisconsin as well as in the entire U.S.  Gun Store

The Purchase

In May 2009, Jacob D. Collins entered a gun store called Badger Guns and purchased a Taurus PT140 Pro .40-caliber handgun. Collins was a “straw buyer”- in this a substitute buyer for someone who could not legally purchase a firearm. Collins was paid to acquire the gun for Julius Burton, an 18 year old who could not yet legally make the purchase. When Collins purchased the gun, he was asked whether or not he was the actual buyer of the gun- he said no- and was then instructed by a store employee to change his answer to yes. He did so, and walked away with a gun that the store knew would be given to another person.

The Shooting

One month later, Julius Burton was bicycling down a sidewalk when Officers Bryan Norberg and Graham Kunisch approached him and told him to move. Burton did not heed the officers and continued to bicycle. When the officers pursued Burton, he became aggressive. He then shot the officers seven times. Officers Norberg and Kunisch recovered from the shooting, but have long-term injuries. Burton was found guilty of attempted first-degree intentional homicide and sentenced to 80 years in prison. Collins was sentenced to two years for violating gun laws.

The Verdict Against Badger Guns

This shooting was not the first time a weapon that Badger Guns sold had been involved in a crime. According to the Milwaukee Chief of Police, six Milwaukee police officers had been shot with weapons which originated from Badger Guns between 2006 and 2009. After the Burton shooting, the Milwaukee-Wisconsin Journal Sentinel sent a Freedom of Information Act request to the Bureau of Alcohol, Tobacco, and Firearms and found that in 2005 Badger Guns, was the top seller of crime guns in the entire nation, with 537 guns involved in illegal activity.

Officers sued Badger Guns (and its related company, Badger Outdoors), saying that in this case, their actions led directly to the shooting. Employees had looked the other way to sell a handgun to a “straw buyer.” The officers won. A jury found that Badger Guns was negligent in the sale of the weapon that was used in the shooting. After a jury trial, they won a $5 million dollar settlement compensation for significant injuries that were a result of the shooting. One of the officers lost an eye and suffered brain damage. The other officer was shot in a way that damaged his teeth and jaw. Both suffer from anxiety and other psychological injuries due to the shooting.

A New Era of Responsibility for Gun Stores?

This was the first time that a gun store has been found negligent in court. Gun stores have generally been protected from repercussions for crimes committed with their products due to the 2005 Protection of Lawful Commerce in Arms Act (PLCAA). This act limits civil liability for businesses engaged in the sale of firearms. However, this act still allows lawsuits to be brought against gun dealers who are negligent, sell defective weapons, or engage in criminal behavior. However, these suits are generally not pursued.

People on both sides of the gun debate are excited about this decision for different reasons. For those who favor gun control, this is a blow against indiscriminate gun sales and a reason for gun dealers to want to keep some of their inventory off the street. However, many Democrats, including presidential candidate Hillary Clinton, voted against the PLCAA and would like to further increase liability for gun stores. For gun rights advocates, this case sends a strong signal that the PLCAA is working, and that existing gun control laws don’t need to be changed.

This decision will likely be appealed by Badger Guns, and could eventually land in the Wisconsin Supreme Court. However, it sends a signal that this type of lawsuit is possible, and thus will have a more immediate impact on the way gun stores view their obligation to follow the rules.

Dangers of Flying Drones in Public Places

A University of Kentucky law student, Payton Wilson, allegedly crashed a drone equipped with a high-powered camera, into a stadium suite. The incident occurred during the UK season football opener against Louisiana-Lafayette in early September 2011. Wilson is charged with wanton endangerment. Endangerment is the act of exposing someone or something to danger, harm, or peril.

In Kentucky, an individual is guilty of this crime in the first degree when showing an extreme indifference to human life. The conduct may cause substantial death or serious injury to someone. Wanton endangerment is a second degree charge when the individual’s conduct creates substantial danger of physical injury.  Drone

Wilson allegedly endangered the lives of military parachutist delivering American flags and a game ball to the pre-game show. The University of Kentucky’s police chief claimed it was very dangerous to operate a remote-controlled, non-piloted aircraft where there’s a lot of people. Wilson faces up to one year in jail.

A recent LegalMatch blog discussed drone technology and privacy issues. The task of determining whether or not a person could use a drone is currently left up to local jurisdictions.

Sports Injury is Any Injury Occurring at a Sporting Event

The criminal act of flying a drone in a stadium and having it crash into a suite poses another legal issue. If the drone had caused serious injury to someone sitting in the suite, would the injured bystander be allowed to sue?

In tort law, often referred to as personal injury law, an individual can sue a company or another person because harm or injury suffered. The defendant in this situation could be University of Kentucky and/ or Wilson.

A plaintiff’s injury caused by a drone crashing into a stadium suite is considered a spectator sports injury. This type of injury arises out of:

  • An inherent hazard or risk of watching a sport
  • Actions of a third party, sports team employee, or another spectator
  • Hazardous defects to the equipment or arena that is unrelated to the sports event

Most spectator sports injuries aren’t successful because of assumption of risk. Assumption of the risk occurs when a person knows of the risks and dangers involved in a particular activity and voluntarily accepts those risks and dangers. For instance, a baseball player hits a foul ball. The ball travels into the stands and hits a spectator, breaking his nose. The spectator is liable for his own injuries. He knew there was a possibility of getting hit by a foul ball. He accepted the risks and went to see the game.

A drone crashing into a suite isn’t something a spectator would expect to occur while at a game. If one of the suite spectators was injured by the drone, he would have a legal claim to sue UK. He didn’t assume the risk of a drone injury.

Negligence is the Failure to Use Care an Ordinary Person would Use in Similar Circumstance

An individual injured by a flying drone would have a personal injury claim based on negligence. Negligence is the failure to use the amount of care an ordinary person would use in the same or similar situation. The standard of care can be based on an ordinary person, reasonable prudent person, or one with special skills. The exact “person” used to determine negligence depends on the circumstances. For instance, a doctor would be someone with special skills.

Negligence assumes an ordinary person like Wilson would use an amount of care to prevent harm when flying a drone. The plaintiff would have to show the defendant had a duty not to cause any injury while flying the drone.

Once a plaintiff can show a duty, the next element is breach of duty. Breach of duty refers to a person violating his duty not to cause harm. The person is in violation of his duty because he knows he’s putting another individual at risk or foreseen there was a risk in his activity. An individual injured after the drone crashed into the stadium suite is an example of a breach of duty to keep people safe.

For an act to be negligent, there must be a cause-in-fact, or cause of the accident. A plaintiff can show the defendant is liable in two ways:

  • Indirect, or proximate cause
  • Direct, or actual cause

If Wilson was sued, he’d be the direct cause of the accident because of the “but-for” test. But for Wilson, the plaintiff would have never been injured.

Once a plaintiff can successfully show those three elements, he’d have to prove damages. To receive money, the plaintiff must have incurred some damage or loss as the result of the defendant’s failure to exercise care. Damages include physical injury and/or financial loss.

It’s not know whether drone that hit the stadium suite caused injuries or not. Any individual injured by a drone would have to consult a lawyer to determine if the other person was liable for any injuries suffered.