Personal Injury Warriors
Editor’s Intro
Editor’s Introduction Personal Injury law is an ever-evolving field. For hundreds of years Anglo-American jurisdictions have allowed for the recovery of money damages to persons who are injured or killed by the negligence or intentional wrongdoing of another. This publication is written by personal injury attorneys who practice every day and have insight into the various areas where people have sought out the help of skilled lawyers willing to fight for their right to obtain money damages when they fall victim to carelessness or intentional disregard for safety. It is meant as a resource for both attorneys and consumers wanting to learn more about how to help good people out of bad situations. - Steven M Sweat WE ARE PERSONAL INJURY WARRIORS!
Table of Contents Update on the Fight for a Strengthened Cruise Vessel Safety and Security Act ................................................................................................................................................................. 2 By Michael Ehline
Four Top Causes of Motorcycle Crashes and How to Avoid Them ...................................................................................................................................................................... 5 By Anthony Castelli
Nursing Home Pressure Sores: Against The Law? The Dangers of Pressure Sores ................................................................................................................................................... 6 By Jonathan Rosenfeld
What Are the Real Effects of Medical Malpractice Damages Caps? ............................................................................... 8 By Seth Price
Premises Liability Laws in Indiana: A Primer ....................................................................................................................... 11 By Alexander Limontes
Moving Away From the “Free Consultation” Call to Action To A CTA That Resonates and Evokes Emotion .................................................................................................................................... 15 By Andre van Wyk
Intentional Torts: How To Find Liability and Coverage to Compensate Victims of Gross Negligence and Crimes ............................................................................................................................. 17 By Steven Sweat The information herein contained has been provided as a reference only, and should be used as such. For additional information please contact our editor or the respective author.
Personal Injury Warriors is a C.O.L.T. Initiative – visit http://circleoflegaltrust.com for more information
January 2014
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Personal Injury Warriors
Cruise Vessel Safety and Security Act
Update on the Fight for a Strengthened Cruise Vessel – Attorney Michael Ehline Safety and Security Act
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n November 18, 2013, I got up bright and early and headed off in a cab with Kendall Carver of International Cruise Victims ("ICV"), and several victims of crimes that occurred while on cruises, including crimes like sexual assault of children, missing and lost at sea (man overboard). Our destination was the Rayburn Building in Washington DC. Our mission was to get House and Senate members to co-sponsor a strengthened Cruise Vessel Safety and Security Act, known as the CPPA, the Cruise Passenger Protection Act. So why was this so important? Many people who follow my blog, know that I represent cruise ship victims, and that I do not believe the cruise ship industry has played fair with American consumers. It seems that no matter what we advocates do in the way of forcing the cruise industry to behave reasonably, the cruise industry apparently has the money to pay off lobbyists to minimize, or stop our efforts. So ten ICV members went back to DC on their own dime to lobby for this bipartisan bill we are proposing, which builds on the CVSSA. It has been introduced in the House by Rep Matsui (D-CA) and Rep Poe (R-TX). Rep. Poe is Chairman of the Victims Caucus in the House.
Goals of the Cruise Passenger Protection Act This strengthened bipartisan bill seeks to: (1) Clarify the reporting requirements of allegations of crimes at sea, as well as: (2) Force compliance with video surveillance requirements. The honorable Senator Rockefeller, Chairman of the Commerce Committee, is the lead sponsor in the senate.
Why Do We Need This? Aren't Cruise Ships Supposed to Report Allegations of Crimes? About 17 million U.S. citizens take cruise ship vacations every year. Sometimes cruises are fun. There is plenty of alcohol, great food, often there is even gambling. Passengers take these trips for many reasons. Some go to
January 2014
meet a new companion; some go with their spouses and children. But there are also stories of sexual assaults by cruise ship employees on kids, unsafe common areas where passengers, in particular the elderly, fall and brake bones, and even people who amazingly end up missing at sea. The problem is that the cruise industry only reports allegations of crimes or potential crimes when the FBI opens a file and closes it. So this means all these people who are missing at sea, all these women and children who claim they were raped, are not reported as statistics for public consumption, unless the FBI opens a file. Some would say that sounds reasonable. I know it is absurd, since I sue cruise lines as part of my job as a tort attorney. It is amazing how the video tapes of crime scenes mysteriously disappear, and how the cruise lines won't let our experts examine the incident scenes when the ship is in a U.S. port, and instead force us to fly the experts to a foreign country at great expense to our clients in order to engage in legal discovery. The gamesmanship I have dealt with is simply over the top. For example, I know that the FBI shows up after the crime scenes have been sanitized by cruise ship personnel, or after the cruise ship literally flies employees accused of crimes back to their home countries, or non U.S. ports before the FBI even shows up on the scene, sometimes days later. So when these DIGITAL video tapes turn up missing, and not even the FBI can see them, one can see why the FBI is not always keen to even investigate. To top it off, I have heard stories of ship personnel lacing victims with alcohol at the ship's bar, ostensibly to help calm them down. Interestingly, the FBI is typically shown a video of a drunken victim, who probably was "really" just drunk when the ship employee, for example, who is no longer aboard, had sex with the now drunk victim. Crimes against minors are typically not prove-able when the minor is scared to report it till later, and when the video of the minor being pulled into a closet or room by a steward with a pass key goes "missing", or the child or sexually assaulted victim is perhaps thrown overboard but the video documenting all of this simply disappears. This is serious stuff and it is real.
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Personal Injury Warriors
Cruise Vessel Safety and Security Act
Cruise Vessel Safety and Security Act – cont. But Don't Ships Provide Security? For a cruise ship lawyer like me, that question is actually and unfortunately laughable. First, a little background on the rules regulating cruise liners. Stepping aboard a cruise ship can be compared to leaving the U.S. and entering another country. The ships are governed under the law of the flag flown upon the mast. Typically these ships sail under a Liberian, Bahamian, or Panamanian flag. There are also various international treaties and conventions, as well as admiralty and maritime laws that severely limit the duties of the ship owners to their passengers, while simultaneously restricting the rights of the passengers themselves. Besides all that, the passage contracts themselves make it impossible for many passengers to even sue and be able to get adequately compensated, as they would if the injuries to them had taken place upon American land. Even though passengers can buy travel insurance or a medical insurance policy to help pay for an unanticipated injury, that too is tough to collect on. It has been my experience that few passengers even read the online contracts. Even if they do, they often fail to realize the significance of the jurisdiction and venue clauses and the contractual notification before right to sue requirements. Typically, a passenger only has six (6) months to file a written notice to the cruise lines asking for payment, after which time the passenger, or their kin are denied the right to sue for their injuries. So knowing all this, we are starting to see a pattern, right? The cruise ship does have security. It has security for its masters, but not for paying travelers. There are no cops aboard to prevent mayhem, or to document an unbiased report to help you recoup your losses. Instead, the cruise victims are left to fend for themselves.
History of Covering Up Crimes and Skirting the Law As seen above, the industry has sullied its hands by covering up and even assisting alleged criminals in escaping justice. Carver, the head of the ICV pointed out to me at our D.C. lobby, that the original Cruise Vessel Security and Safety Act requires cruise vessels to be
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retrofitted with image and trip systems to alert the ship when a passenger has fallen overboard, to the extent that such technology is available. Well that technology is available and has been for years. <strong>Carver says that:</strong> "the law went into effect three years ago and no systems are installed." Despite the statements from the cruise industry's employees and attorneys that there is no technology available, my research shows that is a big fat fib. (Are Man Overboard's Preventable?)
The Insufficient Crime Reporting Data Parents, families and travelers should have a right to know about all allegations of crimes while aboard a ship. When a person buys a home, he or she is entitled to a report about allegations of crimes, not just when a file is closed. That is all the ICV is seeking. Since the U.S. Coast Guard only reports on the cases opened and subsequently closed by the FBI, only 44 crimes are alleged to have occurred in the last 2½ years. This is despite the fact that the cruise lines themselves admitted to congress that at least 237 serious crimes, which include sexual attacks, thefts of over $10,000, murders and more have indeed happened.
How the Proposed Bill Helps Passengers So the Senate bill builds on the House bill, and seeks to have the U.S. Department of Transportation track cancellations, delays and skipped ports of call, and even provides for the creation of a toll free hotline for complaints, and also a criminal and civil penalty structure when the cruise lines shirk their duties. It does a lot more.
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Cruise Vessel Safety and Security Act
Cruise Vessel Safety and Security Act â&#x20AC;&#x201C; cont. But one thing I like most about it, is that it would require the ship personnel to instruct the victim that he or she has no duty to tell the cruise ship personnel (future defendants in a lawsuit) anything, and that instead, the victim has the right to remain silent until discussing what occurred with official law enforcement. Bravo to Kendall Carver and ICV for that idea! In closing, we have already picked up several co-sponsors, and I will be watching for those in congress who choose not to support the legislation. I think I will follow the money and focus like a laser beam on any unsavory politician who would actively assist the cruise lines in getting away with murder. If you have any further questions, feel free to contact me at my website. The fight is not over, and I for one, hope that you will contact your local representative and demand action. America first. To learn more about Michael Ehline, or the Ehline Law Firm PC, contact 633 West 5th Street #2890, Los Angeles, California 90071. 213.596.9642. http://losangeles.ehlinelaw.com/
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Personal Injury Warriors
avoiding motorcycle crashes
Four Top Causes of Motorcycle Crashes and How to By Anthony Castelli Avoid Them
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s a motorcycle accident injury lawyer I see clients with all kinds of injuries that happen in all manner of motorcycle crashes. In 3/4 of the accidents a car and motorcycle are involved with the car primarily at fault. I also see motorcyclists that have no one to blame but themselves. If you can avoid these 4 common types of motorcycle crashes you will have eliminated the major crash types that kill and maim bikers.
1. Cars Turning Left in Front of Motorcyclists at Intersections Although this type of crash is the cagers (car driver's fault) there are some things motorcyclists can do to protect themselves. After all it's better to avoid a serious crash, even though the crash was caused by the automobile. So for the car drivers I saw "Look Twice for Motorcycles." The motorcycle is there to be seen. But the auto driver did not look effectively most of the time. So cagers look carefully before you make that turn at an intersection. Motorcyclists, you must be proactive to protect yourself. Slow down and cover the hand brake so you are ready to either brake hard, using both brakes or make an avoidance maneuver. The avoidance maneuver requires you to be aware of where you can bail out.
2. A Car Pulls Out From a Side Street, Driveway or Parking Lot Motorcycle riders must scan ahead of them and be thinking of possible dangers. As you come to an intersecting stop street and see a car stopped only on the left hand side of the road may cause you to want to shift over to the right sight of the road or at least in that 1/3 of the lane. Keep your eyes on the car and try to see if the driver is at least looking your way. Again slow down a bit and cover the hand brake so that you are prepared to make a hard stop. Scraping 10 miles of your speed can be the difference between bruises and death.
3. A Car Changes Lane Into You While Riding on The
the high speed lane. At least that way you are somewhat out of the way of cars merging onto the interstate. Try to stay out of a motor vehicles blind spot if you can. And when confronted by a tractor trailer try to get al least up to his cab as fast as you can. Keep your eye out for situations where cars will be changing lanes, such as one lane slowing. you know vehicle will try to swing out of that slowing let. You do not want to be there when they do.
4. Motorcycles Taking a Curve Too Fast When I read about a one vehicle motorcycle accident it is commonly that the motorcyclist went off the road in a turn. The biggest reason is entering the curve too fast , drifting left of center and then fixating on the target you are about to hit. So tap the brake lightly before you enter the curve to give a sign to the cars behind you that you a are slowing down. Let off the throttle some so you are a few miles under the speed limit. Enter the corner wide to increase vision. And take the turn a little late so you can see objects you might have to avoid around the bend. The picture below shows the motorcycle rider taking a wide turn and not trying to tighten the turn up to fast. This gives them the ability to see around the curve in case there is an obstacle in their path they need to avoid. Also notice the trees to the left. Going into the turn to fast could cause drift towards the then deadly target fixation so the motorcyclist crashes into the tree instead of at least avoiding it. Anthony Castelli is a renowned accident and injury lawyer based in Cincinnati Ohio with an emphasis on motorcycle accident claims. For more information on his practice go to: http://www.castellilaw.com/ or for free downloads of any of his e-books including: The Ohio Motorcycle Bible go to: http://www.castellilaw.com/ebooks.html
Expressway
My home Cincinnati has major Interstates as I-71 and I-75 as well as the 275 outer belt. I make it a habit to ride in
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Personal Injury Warriors
Dangers of Pressure Sores
Nursing Home Pressure Sores: Against The Law?
The Dangers of Pressure Sores
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ressure sores account for significant pain and other medical issues experienced by nursing home patients throughout the United States. The Centers for Disease Control and National Center for Health Statistics found that over 159,000 nursing home residents suffered from pressure sores in 2004. This figure amounted to 11 percent of all nursing home residents for that year. Pressure sores are a type of injury to the skin, and they result from prolonged pressure on the skin. The Mayo Clinic states that pressure sores can develop on bony parts of the body, such as hips, buttocks, ankles or heels. Pressure sores have varying levels of pain and severity. There are four stages in the development of pressure sores, and nursing home workers must be aware of the signs associated with pressure sores at any level. Not only can nursing homes save money by taking measures to prevent the development of pressure sores in patients, but they can also avoid liability for neglecting nursing home residents.
The Stages and Development of Pressure Sores Stage One, pressure sores have not yet become open wounds. The skin has a reddish appearance, and the skin does not exhibit any tears or breakage. Stage Two, pressure sores form the appearance of ulcers. Any skin damage that a patient experiences at Stage Two may be permanent and can have serious effects. The skin may begin to break open and become torn. At this stage, a patient typically has wounds that appear in the form of scrapes or blisters. There may be fluid trapped beneath the surface of the skin. Stage Three, pressure sores are extremely noticeable on patients, and they have the appearance of small craters. A Stage Three pressure sore may be so severe that fat beneath the skin is actually visible.
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By Jonathan Rosenfeld
Stage Four, pressure sores cause immense pain in patients. Patients with Stage Four pressure sores may have muscle, tendons or bone that is exposed beneath the skin. Blood loss and serious infections are likely to occur if a patient has a Stage Four pressure sore that is left untreated. A patient may also be at an increased risk for suffering from medical issues like pneumonia. When a nursing home must deal with providing treatments for a patient who has a Stage Four pressure sore, the cost can be over $70,000 for the required treatments.
Why Pressure Sores Occur in Nursing Homes Pressure sores are a serious issue that nursing homes must confront. Nursing homes must hire staff workers and adequately train them to spot the factors that can put residents at risk for developing pressure sores. Some of the risk factors that can cause residents to develop pressure sores include lack of mobility, poor nutrition, poor sanitation, chronic illness, incontinence and one's medical history. Nursing home workers must be trained to assist residents who may have a past history of developing pressure sores and should be particularly sensitive in helping these residents stay healthy. Otherwise, failing to acknowledge a resident's medical history or the various risk factors posed to residents may expose a nursing home to liability. Using Pressure Ulcer Facility Assessment Checklists can help nursing homes ensure that they provide the necessary staffing and treatments for patients to prevent the development of pressure sores in residents. Nursing homes must make sure that staff members know how to conduct pressure sore assessments for patients. Daily assessments for patients may also include inspecting their skin and also managing moisture on the skin of patients. Nursing home workers should also be aware of any
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Personal Injury Warriors
Dangers of Pressure Sores
The Dangers of Pressure Sores â&#x20AC;&#x201C; cont. pressure that may be placed on susceptible areas of the body. A patient may need to be turned on his or her side to avoid the development of a pressure sore. Nursing home workers must be trained to assess the risks of patients and then respond to these risks. Otherwise, a nursing home may be at risk for facing a lawsuit from a patient who develops pressure sores as the result of improperly trained or neglectful staff workers.
Complications That Can Result from Pressure Sores When protective skin is lost in the form of a pressure sore, a patient can suffer from severe health complications. The dying tissue on the pressure ulcer can contribute to local infections and promote the growth of bacteria. A patient
may develop an acute infection as the result of a pressure sore. This experience can be very painful for a resident, and a resident may also have chills, a fever or lose additional white blood cells. Septic shock can also occur in patients who have developed pressure sores that are left untreated. When a resident experiences septic shock, he or she may also suffer from the decomposition of main organs in the body. For residents who have developed Stage Four pressure sores, complications that can occur include Periostitis and Osteomyelitis. Bones may undergo severe changes as a result of direct exposure and no skin protection. Residents who have Stage Four pressure sores may require bone scanning. Operations may be required to resection the bone. After a resident receives an operation to repair the
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open wound area, it may be necessary to pursue a sixweek postoperative course of antibiotics. Another serious complication that residents can face after developing pressure sores includes malignant transformation. Research studies have shown that patients with unstable scars, non-healing wounds and ulcers have a tendency to develop cancerous tumors in their wounds. Individuals who have scarred tissue are at a high risk for developing malignant tumors.
Federal Regulations and Their Applicability to Nursing Home Standards Under the federal law, nursing homes have a duty to protect residents from developing pressure sores. The federal regulation §483.25(c) on "Pressure Sores" states that facilities must ensure that residents do not develop pressure sores if they are not clinically predisposed to develop them. If a resident does develop a pressure sore in a nursing home, then a nursing home also has the duty to provide treatment to that resident. The nursing home must provide treatment that "promotes healing, prevents infection and prevents new sores from forming." Unfortunately, thousands of nursing homes fail to provide the costly treatment that is often necessary for residents who develop pressure sores. Technically, this failure to acknowledge the condition of residents is a violation of the law under §483.25(c). Many states also maintain specific statutes that also govern the training that must be provided to nursing personnel within nursing homes. These statutes often dictate the techniques that must be taught to nursing home workers to help them in recognizing pressure sores and taking immediate action to remedy them. The statutes usually require that nursing home workers be taught about periodic position change and monitoring of the skin. If nursing homes fail to follow the federal laws, then they may be at risk for having to pay significant fines. Monetary fees may cost a nursing home thousands of dollars.
Violating the Rights of Nursing Home Residents The 1987 Nursing Home Reform Act is another federal law that puts protections in place for residents in nursing homes. Under this federal law, nursing home residents
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Personal Injury Warriors
Dangers of Pressure Sores
The Dangers of Pressure Sores â&#x20AC;&#x201C; cont. technically have the right to be provided with a level of treatment that prevents the development of pressure sores within them. The Act states that residents have the right to be free from "abuse, mistreatment and neglect." Nursing home residents also have the right to "accommodation of medical, physical, psychological and social needs." They have a right to "be treated with dignity" and to also be informed of any changes in their care or treatment. If a resident does develop a pressure sore, then he or she has a right to receive medical treatment at the expense of the nursing home under the 1987 Nursing Home Reform Act. Nursing homes are technically breaking the law when they fail to provide the required level of care for the prevention of pressure sores in residents. Pressure sores can be prevented through diligent care from dedicated staff workers. If a nursing home is understaffed or fails to properly train its workers, then residents are the ones who suffer the most. Residents suffer from pressure sores and may then hold nursing homes accountable for their wounds. The federal law clearly indicates that residents are protected and that nursing homes have a duty to provide treatment that does not result in the development of pressure sores. Sources: 1. 2. 3. 4. 5. 6.
Mayo Clinic-http://www.mayoclinic.com/health/bedsores/DS00570 http://healthinsight.org/Internal/assets/Nursing%20Home/PRU%20-%20PrU%20Toolkit.pdf http://www.bedsorefaq.com/the-dirty-secret-about-pressure-sores-an-infographic-2/ http://www.ncbi.nlm.nih.gov/books/NBK9082/ http://www.dhs.wisconsin.gov/rl dsl/NHs/NHPUinfo.htm http://www.aarp.org/home-garden/livable-communities/info-2001/the_1987_nursing_home_reform_act.html
Jonathan Rosenfeld is a personal injury attorney in Chicago, Illinois where a substantial number of his cases involve nursing home negligence. For additional information about his law practice visit http://www.rosenfeldinjurylawyers.com
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Personal Injury Warriors
Medical Malpractice Damages Caps
What Are the Real Effects of Medical Malpractice by Attorney Seth Price, Esq. Damages Caps?
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he fact that healthcare in the United States ranks among some of the most expensive medical care systems in the world should come as a surprise to no one. While most consumers are fully aware of the huge expenses associated with maintaining their own personal health insurance, many may not be aware of the ever-increasing premiums that physicians face for medical malpractice insurance. The number of insurance companies that offer medical malpractice insurance are limited to begin with, and many within that group say they are being driven from the market by higher and higher jury awards. Some in the health care industry argue that the price of medical malpractice insurance has increased so much that the cost is starting to affect the actual practice of medicine, and the ability for health care companies to offer affordable coverage. In light of these developments, a number of states have enacted a series of tort reform measures to implement limits on the amount a jury may award in a medical malpractice claim. Understanding medical malpractice caps and tort reform can be somewhat tricky; however, with the information here you will be able to better comprehend how such legal measures affect everyone, from consumers to doctors, and medical facilities to healthcare insurance companies.
Understanding the Arguments behind Calls for Medical Malpractice Damages Caps In a response to the constantly increasing insurance premiums for physicians, a number of states have
adopted caps, or limits, on non-economic damages suffered by patients. A non-economic damage includes intangible harms, such as emotional distress, pain and suffering, anxiety, loss of enjoyment of life, scarring and other negative effects of the medical negligence. Such damages aren’t easily captured by a dollar figure, due in large part to these numbers being subjective and varying from plaintiff to plaintiff. In these states, legislators presumably believe a number of juries have awarded claimants far too much money for the medical malpractice injuries that were suffered. That belief extends to the view that excessive jury awards lead directly to sky-rocketing insurance premiums for physicians. These same legislators have stated they may be able to combat the increasing medical malpractice insurance crisis if limits are placed on the awards that can be given in a medical malpractice civil litigation claim. It’s an idea that is catching on not only in state government, but in national circles as well, with some federal legislators proposing a nationwide medical malpractice cap of $250,000.
States Reaction to Tort Reform Though there are many states that have adopted some type of tort reform, the applications and amounts of these caps fluctuate greatly. There are some damage caps that are quite rigid, while others can be adjusted for factors such as inflation or the severity of the actual damage that was suffered. For example, caps instituted in Maine and Oregon may only apply to cases of wrongful death. While tort reform in states including Massachusetts, Ohio, Florida, and Alaska allow the award limits to be waived in cases of extreme damage or injury. Virginia’s cap applies to all types of damages, no matter if they are economic or non-economic, and the state’s tort reform also sets out a detailed and gradual year-by-year increase of the total damages limit. That limit starts at $2.10 million for cases arising from July 1, 2013, and extends to a final cap that will hold the limit to $3 million by 2031. Given these variations, it is clear that one of the first things healthcare consumers need to understand is where they live, or where the damage was inflicted, which will determine what, if any, caps or limits may apply. Some of the specific state limits and medical malpractice caps are highlighted here:
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Personal Injury Warriors
Medical Malpractice Damages Caps
Effects of Medical Malpractice Damages Caps - cont. Colorado and California: Each state places a cap of $250,000 on any non-economic damages for medical malpractice cases. Florida: Has a number of different specifications when it comes to tort reform, which include; 1. For emergency room cases the damages are limited to $150,000 for each hospital and physician that is involved in the case; 2. In cases of non-emergencies there is a limit of $500,000 for each of the involved physicians with a total cap of $1 for all claimants; 3. The cap that is used can be raised in situations that are considered nonemergency’s if a judge determines that it is unjust to not go over the cap that is imposed. Kansas: There is a $250,000 award cap on any non-economic damages in cases of medical malpractice. North Carolina: Has a $500,000 cap on all medical malpractice cases. Michigan: There is a cap of $280,000 for noneconomic damages. Maryland: Non-economic damages for medical malpractice is capped at $725,000, regardless of the number of defendants, though the capped amount is set to increase by $15,000 each year. Massachusetts: There is a cap of $500,000 for all non-economic damages for medical malpractice cases. Texas: Limits damages to $250,000 for each physician that is involved with the actual case, and an additional $250,000 for each institution, with a cap of $500,000 for all of the health care institutions that may be involved.
States that Forbid Use of Medical Malpractice Caps While there are many states that have turned to tort reform to limit the amount of money that can be issued in medical malpractice cases, there remain a number of states that have not allowed such reforms to move forward. These include Alabama, Arizona, Arkansas, Georgia, Illinois, Kentucky, New Hampshire, Missouri, Ohio, Pennsylvania, Washington, and Wyoming and the District of Columbia. Most of these states have found medical malpractice caps to be in violation of their state constitutions.
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Tort Reform Legislation Results Most can agree that the intent of tort reform by legislators was to help curb insurance rates for physicians and consumers. However, there are numerous cases where tort reform has had the opposite effect on the costs of insurance. The ultimate goal of tort reform was to reduce the amount of jury awards in cases of medical malpractice lawsuits and, therefore, keep premiums at a minimum. The logic is based on the argument that insurance companies would be paying smaller amounts on the insurance claims because juries would be limited, or capped, on the amount of money they could award victims of medical malpractice. With the threat of excessive jury awards eliminated, the insurance
companies would no longer have to charge excessive insurance premiums for physicians and medical facilities. In theory, those reduced insurance premiums would then trigger a larger number of doctors entering the field of health. And with more physicians practicing, and more insurance policies issued, the premiums could be reduced further. To some extent this logic has shown to be true. In reference to a recent article that was published in the New York Times, many physicians are opting to work in Texas, lured by the recent approval of a state constitutional amendment that limited the amount of damages patients can be awarded in medical malpractice claims. Additionally, physicians working in Texas note they have experienced an average decrease of 21.3
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Personal Injury Warriors
Medical Malpractice Damages Caps
Effects of Medical Malpractice Damages Caps - cont. percent in their medical malpractice insurance premiums since legislation for the tort reform was enacted. According to the Times, there has also been an 18 percent increase in the number of medical licenses that have been issued since Texas adopted its medical malpractice caps. A number of doctors cite this “physician friendly climate” as a powerful incentive for moving to the state and many physicians agreed that the laws in Texas make it much easier for a doctor to care for patients with complex problems without the fear of having a “frivolous lawsuit” filed against them. In order to understand tort reform completely, however, you must also consider the negative aspects of caps and limits. While it may appear that medical malpractice caps work in some states, there are plenty of consumers – and experts -- that have found tort reform can do more harm than good. Chief among these concerns is the view that medical malpractice caps prevent patients that are significantly injured from getting their “fair day” in court. For claimants in states that impose strict caps, such as $250,000 for any one claim, the cost of the legal proceedings can take a huge bite out of any potential award, leaving the injured parties with little compensation for their injures and their astronomical medical bills. They aren’t the only ones left in the financial lurch. The result of such severe limits has forced a number of attorneys to refuse clients pursuing medical malpractice cases because the costs associated with such complicated suits leave the lawyer or firm with little to no payment for their work. And that refusal to take on medical malpractice cases can, in turn, lead to healthcare professionals providing substandard services due to the elimination of any threat of serious legal responsibility. Additionally, some research has revealed that even though medical malpractice caps have reduced the burden on insurance companies, premium rates have continued to spike in a number of states.
patients. An equally great risk, however, can be found in a world where someone who is hurt through a doctor or medical facility’s negligence is left with little to no recourse in pursuing the compensation they need and deserve. Insurance companies that readily, even gleefully, shift the blame for their exorbitant premiums to medical malpractice lawsuits should not be allowed to continue raising their premiums if caps are put in place. Like most areas of the law, this is one where a black-and-white view will not suffice. It requires a combination of common sense and careful consideration of all the factors in play. Authored by: Seth Price, Esq. Price Benowitz, LLP info@pricebenowitzlaw.com 122 C Street NW Suite 240-B Washington , DC , 20001 United States 202-600-9400 http://www.pricebenowitzlaw.com/
Obviously medical malpractice is a complex area of law, and that complexity is perhaps most obvious when you consider the advantages and disadvantages of medical malpractice caps and tort reform. With the number of states that are currently considering these limits, and the federal push for such legislation, the stakes can only increase. While it’s not an easy issue to settle, there are some basic points that most everyone can agree upon. Frivolous lawsuits should not be tolerated and no one wants to see a legal system that hampers the ability of physicians to provide care and comfort to their ailing
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Personal Injury Warriors
Indiana Premises Liability
Premises Liability Laws in Indiana: A Primer By Alexander Limontes
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The Basic Law
o determine whether a landowner is liable for an injury incurred on his or her property (premises liability) the plaintiff must show: that the landowner had a duty that the standard of care owed to the plaintiff was breached by the landowner, and that the damages were causally related to the breach. Indiana has recognized three categories of individuals owed a duty: trespassers, licensees, and invitees. Each category has a different standard of care owed to them by the property owner. Licensees and trespassers are individuals who are on the premises of another for their own “convenience, curiosity or entertainment.”
Gaboury v. Ireland Road Grace Brethren, Inc., 446 N.E.2d 1310, 1314 (Ind. 1983). The two
are distinguished by the fact that licensees have received the landowner's permission to enter or remain on the land while trespassers have not. Invitees are persons who are invited or permitted to enter or remain on the premises for the benefit of the owner, usually to do business, or persons who enter land open to the public. 23 Ind. Prac., Personal Injury Law & Practice § 3:14. To distinguish licensees from invitees, Indiana has adopted the “invitation test:” “[w]hen an owner or occupant by enticement, allurement, or inducement, whether express or implied, causes another to come upon his lands, he then assumes the obligation of providing for the safety and protection of the person.” Burrell v. Meads, 569 N.E.2d 637, 640 (Ind. 1991). An implied invitation may be inferred from a landowner's acts or conduct, but the “mere acquiescence in the use of one's land by another is insufficient to constitute an invitation.” Id. Invitee status is often further sub-divided into “business invitee,” “public invitee,” and social guest. As the names imply, each status is distinguished by the underlying facts of the visit to the premises. 23 Ind. Prac., Personal Injury Law & Practice § 3:14. “A public invitee is a person who is invited to enter or remain on land as a member of the public for a purpose for which the land is held open to
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the public,” “[a] business visitor is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land,” social guests are “[g]uests [who] come only to receive their hosts' hospitality.” Burrell v.
Meads, 569 N.E.2d 637, 642-643 (Ind. 1991).
A landowner owes trespassers and licensees a duty to refrain from willful or wanton injury or to act in any manner to increase their danger. Additionally, a landowner must warn a licensee of any “latent” (hidden/dormant) dangers on the premises of which the landowner has knowledge. The highest duty of care owed by a land owner is to an invitee. A land owner must exercise reasonable care for his or her protection while on the landowner's premises. Id. In regard to invitees, Indiana has adopted § 343 of Restatement (Second) of Torts which provides: “A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he (a) knows or by the exercise of reasonable care would discover the condition and should realize that it involves an unreasonable risk of harm to such invitees; and (b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it; and (c) fails to exercise reasonable care to protect themselves against the danger.” 23 Ind. Prac., Personal Injury Law & Practice § 3:14. Additionally, a landowner is not liable to invitees for physical harm caused to the invitee by any activity or condition of the land whose danger is known or obvious to them, unless the landowner should anticipate the harm despite such knowledge or obviousness. 23 Ind. Prac., Personal Injury Law & Practice § 3:14. Also of note, an invitation to come on the premises for one purpose does not invite entry for all purposes. The premises owner must only anticipate what is “usually and customarily” done by an invitee “within the scope of or to carry out the purpose of the invitation.” Markle v. Hacienda Mexican Restaurant, 570 N.E.2d 969, 973 (Ind. Ct. App. 1991). The landowner's duty of reasonable care exists only so long as the visitor is on a part of the premises to which the invitation extends.
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Indiana Premises Liability
Indiana Premises Liability Laws – cont. An invitee's status may change to licensee if his or her actions are not within the scope of the invitation. 23 Ind. Prac., Personal Injury Law & Practice § 3:14. In regard to children invitees, the standard is the same as for adults, but the court takes into account the “abilities, age, experience, and maturity” of the child. Johnson v.
Pettigrew, 595 N.E.2d 747 (Ind. Ct. App. 1992).
The three different types of invitees are: “business invitee,” “public invitee,” and social guest, all of whom are entitled to a duty of reasonable care. However, there are some subtle differences defined by case law and statutes. For example, a landowner typically owes a duty to business invitees to exercise reasonable care to keep the premises in a safe condition for the use which the customer is impliedly invited to make of it. The owner must make such inspection of the premises from time to time as an ordinarily prudent person would make in a reasonable effort to discover and remedy defects. The owner’s responsibility includes protecting the invitee from the dangerous behavior of others on the premises. 23 Ind. Practice, Personal Injury Law & Practice § 3:14. Also of note, a business owner's duty may extend beyond his business premises “when it is reasonable for invitees to believe that the invitor controls the premises adjacent to his own or where the invitor knows that its invitees customarily use such adjacent premises in connection with an invitation.” Jump v. Bank of Versailles, 586 N.E.2d 873 (Ind. Ct. App. 1992). Public invitee status is particularly important to note due to Indiana statutes that limit the claims of those persons. A public invitee is one who is invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public. St. Casimir Church v. Frankiewicz, 563 N.E.2d 1331 (Ind. Ct. App. 1990). Indiana's Recreational Use Statute limits the claims of persons who go upon another's premises “to hunt, fish, swim, trap, camp, hike, sightsee, or for any other purposes, without the payment of monetary consideration…” Under such circumstances, the owner of the premises assumes no responsibility and incurs no liability for injury to such persons caused by an act or failure to act of other persons using the premises. The recreational user is not entitled to any assurance that the premises are safe. 23 Ind. Prac., Personal Injury Law & Practice § 3:14. Finally, the court would look at whether the damage was causally related to the breach.
the case law that can be found focuses on the question of whether there was a breach of the duty and how the facts of the case lead to such a conclusion. Therefore, it is important for practitioners to have a full grasp of the circumstances surrounding the incident so that we can anticipate any problems with the case. A recent case by the Indiana Court of Appeals speaks to this prong of the test. On February 21, 2012 the Court of Appeals of Indiana decided Schulz v. Kroger, which is considered one of the most significant Premises Liability decisions in recent times. In Schulz v Kroger, Mr. Schultz slipped and fell over a clear liquid in a Kroger grocery store. In that case, the Court found that Kroger had no actual or constructive knowledge of the spill. No Kroger employee had actual knowledge (saw or was told of the spill) and for constructive knowledge to attach the condition must have “existed for such a length of time and under such circumstances that it would have been discovered in time to have prevented injury if the storekeeper, his agents or employees had used ordinary care.” Schulz v. Kroger Co., 963 N.E.2d 1141, 1144 (Ind. Ct. App. 2012). Kroger had procedures in place that allowed the judge to conclude that the spill had happened no more than 10 minutes before the patron’s fall. In Schulz, no liability was imputed to Kroger and Summary Judgment in favor of Kroger was appropriate.
Is Constructive Notice Dead? Schulz v. Kroger Many premises liability cases in Indiana are litigated under the “Breach” prong of the premises liability test. Much of
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Personal Injury Warriors
Indiana Premises Liability
Indiana Premises Liability Laws – cont. Does the Schulz case remove the issue of constructive notice as a question of fact for the Jury? Possibly, however, it depends on the facts and circumstances before the court. The Court’s main focus in Schulz was time, they looked at Kroger’s procedures for cleaning up spills as well as the evidence before them and decided that given the facts the spill had happened no more than 10 minutes prior to the fall which was not enough time to put Kroger on notice. Therefore, when preparing your case for Summary Judgment you must consider the period of time that elapsed between the incident and the spill.
A “Social Guest” vs. a “Licensee” In Androusky v. Walter, 970 N.E.2d 687 (Ind. Ct. App. 2012), the Indiana Court of Appeals analyzed the difference between a “Social Guest” and a “Licensee”. In Androusky, the father of a three year-old child who drowned in a homeowner’s swimming pool brought a child wrongful death action against the homeowner under theories of premises liability. The Jury entered a verdict for the homeowner and the appeal ensued. The mother of the child (Tamara Androusky) remarried a man named Hollingsworth and Hollingsworth wanted to visit his former step-father, Cole Walter (homeowner), in Indiana. Walter told Hollingsworth he could visit but Mother and the Children were not welcome. Late in the evening of July 22nd Hollingsworth, mother and the children arrived at Walter’s house while Walter and his live-in girlfriend were asleep. Walter did not know that Hollingsworth had brought Mother and the child until his live-in girlfriend told him the following day. Eventually, Walter told Hollingsworth, Mother and the children that they had to leave but allowed them to stay one more day since they had nowhere to go. The following day one of the
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children drowned in the pool while Hollingsworth was watching them and Mother was asleep. In order to address the duty owed to the child the Court had to analyze whether the child was a “social guest” or “licensee”. A “social guest” is one who enters the landowner's property pursuant to an express or reasonably implied invitation. “Licensees” are not invited guests and enter the land of another for their own convenience, curiosity, or entertainment; they have a privilege to enter or remain upon the land by virtue of the landowner's permission or sufferance. “[T]he decisive factor with regard to whether the possessor had extended an ‘invitation’ or ‘permission’ is the interpretation that a reasonable man would put upon the possessor's words and actions given all the surrounding circumstances.”
Androusky v. Walter, 970 N.E.2d 687, 692 (Ind. Ct. App. 2012) quoting Rhoades v. Heritage Inv., LLC, 839 N.E.2d at 792. The Court went on to decide that given the circumstances, the Mother and her children were not “social guests” but rather “licensees” merely permitted by Walter to stay there until the morning.
Duty of a Landlord in Assault or Intentional Acts Cases In 2012 the Indiana Court of Appeals decided Santelli v. Rahmatullah, 966 N.E.2d 661 (Ind. Ct. App. 2012). The Santelli decision generally discusses allocation of fault of an intentional tortfeasor to a person who negligently fails to protect plaintiff (when under a duty to do so). Abu Rahmatullah owned a Super 8 Motel and during the course of a robbery in October 2005 a hotel patron (Santelli) was murdered. Joseph Pryor was a maintenance man at the hotel but was fired prior to the
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Indiana Premises Liability
Indiana Premises Liability Laws – cont. incident. Rahmatullah did not run a criminal background check before hiring Pryor. Pryor kept a master key after he was fired. Eventually, Pryor broke in and killed Santelli while Santelli was staying there. Liability of the killer and the hotel was imputed to the hotel when dividing fault. However, this case should be closely watched as it is up on transfer to the Indiana Supreme Court.
Other Important Decisions Winfrey v. NLMP, Inc., 963 N.E.2d 609 (Ind. Ct. App. 2012). In Winfrey, the Plaintiff was leaving a doctor’s appointment located at the premises when he attempted to maneuver his pickup truck around another vehicle causing his truck to slide down an embankment into a retention pond. The plaintiff sued the property owner for damages, pain and suffering and property damage. The court entered Summary Judgment in favor of the property owner and this appeal followed. In reaching its opinion the Court stated, “[E]ven though a visitor may be an invitee when he comes on to the property, his status may change to that of a licensee while he is on the premises if the use to which he puts *613 the property does not correspond to the owner's reason for holding the property open. . . [a] person's status on the land, along with the duty owed, is a matter left for determination by the trial court, not the jury.” Winfrey v.
NLMP, Inc., 963 N.E.2d 609, 612-13 (Ind. Ct. App. 2012).
The Court said that there is no question that parking in a parking lot was within the scope of Winfrey’s invitation to a doctor's appointment as is leaving the lot. Winfrey’s actions were not outside of scope of the invitation and he never lost his status as an invitee as a matter of law.
“unreasonable” risk of harm, and thus it implicitly recognizes that some activities have a risk of harm that is “reasonable” that a landowner is not required to protect the invitee against.” Hale v. SS Liquors, Inc., 956 N.E.2d 1189, 1192 (Ind. Ct. App. 2011). The Court went on to state that the doctrine of res ipsa loquitor did not apply to render the mere fact of a fall is not sufficient to establish negligence. Specifically, that the Plaintiff must present some evidence of what caused the fall in order to survive summary judgment rather than simply stating that they slipped on “something”.
Closing Remarks Incidents involving premises liability are numerous and some of the most difficult cases to handle. In 2012, Indiana Courts decided a number of cases that will have a lasting effect on our area of practice. The most significant decision being Schulz v. Kroger since many of us will be faced with a similar situation at some point in our practice. As practitioners we must be vigilant with our knowledge of the case law as well as the details surrounding our case so that we may overcome summary judgment. Provided by:
Alexander Limontes is a personal injury attorney with the Law Offices of William “Bill” Hurst based in Indianapolis, IN. He is a regular contributor to this magazine and other publications about accident and injury law topics. For more information on his firm and their practice go to: http://www.billhurst.com/
Winfrey v. NLMP, Inc., 963 N.E.2d 609, 613 (Ind. Ct. App. 2012). As such the grant of summary judgment was not
appropriate and should be reversed leaving the question of breach of that duty to the trier of fact.
Hale v. SS Liquors, Inc., 956 N.E.2d 1189 (Ind. Ct. App. 2011). In Hale, a hotel guest brought a personal injury action against a hotel owner and a bathtub treatment company after the guest slipped and fell in the tub causing injury. Summary Judgment was granted to the bathtub treatment company and the owner and this appeal ensued. The Court reiterated, “[a]lthough a hotel owner has a duty to exercise reasonable care to protect its guests from harm, there is no duty to insure the guest's safety while on the premises. Booher, 937 N.E.2d at 395. Section 343 also expressly only requires a landowner to eliminate the
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Personal Injury Warriors
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evoking emotion
Moving Away From the “Free Consultation” Call to Action To A CTA That Resonates and Evokes Emotion
random search of lawyer sites and calls to action provide a central theme of “Free Consultation” or “No Win No Fees” when it comes to the CTA of these firms and attorneys. Does this really provide the underlying emotional appeal that we could be using to secure clients for these lawyers?
Marketing a Personal Injury! We all know that a personal injury or wrongful death is not a pleasant life occurrence. We also already know that many injured folks will not necessarily want to share their injuries, fears or anxieties about the injury or death. Experienced personal injury lawyers know what emotions their clients are experiencing or conveying to them, whether it is on a telephone conversation within a first consultation, or even later on in the client-lawyer relationship that subsequently develops. What are these emotions or states of mind and how can we tap into these emotions to evoke action?
Common reactions to trauma and disaster Following a traumatic event, it’s normal to feel a wide range of intense emotions and physical reactions. These emotional reactions often come and go in waves. There may be times when you feel jumpy and anxious, and other times when you feel disconnected and numb. Normal emotional responses to traumatic events
Shock and disbelief – you may have a hard time accepting the reality of what happened Fear – that the same thing will happen again, or that you’ll lose control or break down Sadness – particularly if people you know died Helplessness – the sudden, unpredictable nature of natural disasters and accidents may leave you feeling vulnerable and helpless. Guilt – that you survived when others died, or that you could have done more to help or prevent the situation. Anger – you may be angry at God or others you feel are responsible Shame – especially over feelings or fears you can’t control Relief –you may feel relieved that the worst is over, and even hopeful that your life will return to normal
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“When someone close to you dies, you might experience a variety of emotions, including shock, disbelief, numbness, sadness, anger or loneliness.” Source
Of course this can vary from the severity of the experience as well as from one person to the next. Let’s take a car accident as an example. Fear/Anxiety/Helplessness: What is going to happen, with their ability to get to and from work being hindered due to an auto accident? How will they pay their medical expenses? If they miss work, how will they replace the income they will lose? If their injury results in permanent impairment that prevents them from continuing in the same job, what will they do to earn a living and feed their family. Trauma/Shock: The shock and disbelief when you are struck out of blue from behind or broadside at an intersection while taking your children to school or doing any number of other “normal” day to day activities. Anger: No one asks to be the victim of a car accident where someone else is texting and driving, operating a motor vehicle under the influence or simply not paying attention. Why should the victim have to bear the financial and emotional burden of this carelessness? Relief: Yes, there is hope! Hope comes in the form of a zealous advocate who knows the system and how to obtain the most recovery. An attorney that will make sure your car is repaired or replaced, make sure you get the medical attention you and your family need, make sure you are compensated for lost wages and for the physical pain and emotional distress.
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Evoking Emotion cont. Helpguide.org provides a number of “Common Reactions to Trauma and Disaster” here, and these not only include the above, but also mention shock & disbelief, sadness, guilt, anger, shame and more. We can relate to this in a number of cases that a personal injury attorney will encounter, by the very nature of these traumatic events such as wrongful death, loss of work due to injury, and so on.
more clients by setting yourself apart from your competitors.
Resources: http://us.reachout.com/facts/factsheet/after-someone-has-died-howyou-might-feel Traumatic Stress
How Can We Accomplish This Goal of Emotional Connection in Our Call To Action? As opposed to the usual “Free Initial Consultation,” using the emotional aspect that the prospective client may be experiencing may well resonate with the individual within their process of making a decision in contacting you or your firm. Conveying the shock & disbelief of losing a loved one or the breadwinner of a family stands to establish the connection with the individual that is visiting your site, and then providing a CTA that offers hope may offer an alternative to the usual CTA’s that your competitors are using. Promising a successful outcome is clearly unreasonable (and unethical under most if not all state bar guidelines), however ‘advertising’ past results and perhaps giving the reader hope may be the deal clincher in securing the client’s trust and their business. This needs to be incorporated on the specific landing or practice page (e.g. Wrongful Death) with a tailored message and call to action, with separate contact form where applicable, in order to measure the efficacy of your message. By communicating with the prospective victim that is visiting your site and within the current emotional spectrum they may be experiencing and offering a solution, the lawyer allows for resonance with that prospect and this may lead to a connection being established for legal representation.
Conclusion You as an attorney know what feelings and emotions your clients experience and what their fears and concerns are. There is an underlying trend that allows you to tap into this market within an ethical and empathetic manner and to increase your chance of connecting with these potential clients and getting them to make contact. You can then further establish your emotional bond with the in person consultation and, this will, hopefully lead to
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Provided by Andre van Wyk who provides digital marketing and remarketing services within the legal, real estate and medical fields.
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Intentional Torts
Personal Injury Warriors
Intentional Torts: How To Find Liability and Coverage to Compensate Victims of Gross Negligence and Crimes
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s a personal injury lawyer for the past 18 years, I have found one area of tort law to be both the most difficult to prosecute and the most rewarding all in the same breath. This is the area of intentional torts. When an individual commits an intentional act to harm another person such as an assault or battery, the criminal justice system can only do so much to remedy the problem. They can incarcerate the wrongdoer and, usually, keep them away from the victim but, beyond the limited criminal restitution processes (which are ineffective in my opinion), the criminal justice system can do nothing to compensate the victims or their families for the physical and mental pain associated with these acts. This is where a creative injury attorney can step into the fray and find ways to obtain monetary compensation for things like present and future medical expenses (including psychiatric treatment) and damages for the devastation that these types of incidents cause to a person's psyche (emotional trauma that can be lifelong and for which responsible parties should be made to pay).
people being victims of criminal activity in parking lots and commercial structures to domestic violence disputes at residences. False Imprisonment: The holding of a person in confinement without legal justification or consent can occur in conjunction with an assault or battery or in scenarios such as retail establishments who hold patrons under false allegations of theft. Fraud: Defrauding of individuals comes in many different forms including intentional misrepresentations of facts to gain monetary advantages or even making false promises based upon unreasonable assumptions. Driving under the influence of alcohol or drugs (DUI) and other grossly negligent acts.
How To Find Liability and Insurance Coverage Or Some Other Pocket To Collect From In Intentional Tort Claims
Potential Scenarios Where Intentional Torts Occur I have represented numerous victims and their families over the years in various incidents involving the intentional or grossly reckless conduct of persons. Some examples include the following:
Sexual Assault and Abuse Claims: To me, the most heinous of all intentional wrongs comes in the form of sexual assault of women, children and other vulnerable individuals such as persons suffering from mental incapacity. Unfortunately, these instances can and do happen on a regular basis and the common thread seems to always be a person of "authority" such as a teacher, doctor or other medical "professional", priest or other religious leader, school officials or other similarly situated persons taking advantage of their power over persons that they manipulate into sexual encounters for their own personal gratification. Providing protection, compensation, and hope in the form of care and treatment for victims of these crimes is one of the most rewarding endeavors I have had in the entirety of my career as a personal injury lawyer. Assaults and Batteries on residential or commercial property: There are many times especially in large urban areas like Los Angeles but, even in smaller communities, where persons are beaten while on the property of another. These include every type of instance from overzealous bouncers in night clubs to
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Every personal injury attorney knows that being able to obtain monetary recovery for a tort victim requires three major components, namely, prove-able damages, liability and a source of money to pay the victim. With intentional tort claims, proving damages is usually the easiest of these three components. Persons who have been victimized through the malicious intent of another through sexual abuse, assault, being held against their will or being defrauded have suffered real and present harm. The issue usually comes down to the other two, interrelated components of recovery: (1) liability; and (2) finding a source of money. In general, negligence cases such as car accidents do not involve insurance coverage disputes beyond payments at or above the policy limits. On the other hand, just about every insurance policy written
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Intentional Torts cont. including auto, homeowners, and business and commercial liability policies have exclusions for intentional acts. The key in these situations is to find a theory of liability that involves negligence rather than intent. Some common examples include the following:
Negligent Hiring, Retention and/or Supervision of Employees: Oftentimes, the wrongdoer is employed by or acting as an agent on behalf of some other entity. While the insurance provider for that employer or principal may exclude from coverage intentional or criminal acts of their employees or agents, they are usually required to cover negligent acts. The most common means to plead negligence is by alleging and proving that the employer knew or should have known that the employee who committed the wrongful act was prone or susceptible to engaging in this type of conduct. This requires conducting background checks on individuals, obtaining personnel records, taking depositions of human resources personnel and other managing agents who were responsible for hiring the individual in question, supervising their job performance and choosing to continue their employment in the face of evidence that the individual was a 'bad seed'. Tying the Wrongful Acts to An Officer, Director or Managing Agent: Oftentimes, corporations and other business entities will disavow any legal liability for wrongdoing on the part of individual employees. However, if the employee is a key representative of the company with the power to bind the corporation in its affairs, holding the company responsible becomes a much easier task from a liability standpoint. Negligent Entrustment: This most often comes into play in the DUI scenario or other forms of reckless driving. If the owner of the vehicle entrusts that vehicle to a person whom they know or should know to be incapable of operating a motor vehicle for any reason including being under the influence, the vehicle owner may be held responsible for lack of due care, which is something that the auto carrier will and usually does cover. Prior Criminal Acts: Under the laws of the State of California and many other states, a property owner may be held liable even for criminal acts on their property if it can be shown that there was sufficient criminal activity of a same or similar nature in and around their property to put them on notice to take additional security measures to protect their tenants and other persons lawfully coming onto their premises.
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Importance of Hiring An Attorney If You Have Been the Victim of Intentional or Criminal Conduct The importance of hiring a quality injury lawyer if you have been the victim of a crime such as a battery, sexual assault or abuse, fraud or drunk driving cannot be stressed enough. In an average "run of the mill" negligence claim, the factual issues are usually fairly easy to ascertain and prove (e.g. "the light was red" can be proven by the property damage on the vehicles, the placement in the intersection at the time of the crash, witness statements, etc.). In the case of proving that a person or entity was negligent and should be held legally responsible for the intentional or even criminal conduct of an individual, strong evidence is required and, oftentimes, this is not the type of evidence that can be easily obtained. In depth investigation as to things like the criminal and employment background of the perpetrator, the criminal activity in and around a piece of property, the ties between the wrongful acts and the higher ups of a corporation are not things that can be obtained except through the diligence of a knowledgeable personal injury attorney adept at the investigation and discovery process. Timing is also crucial in that key evidence can be altered, modified or destroyed if the injured party waits too long. What can be more rewarding than knowing that you reached down a hand and helped a person who suffered the devastation of a person intent on harming them because they were weak, defenseless, and vulnerable? While obtaining money for these individuals can never truly put them back to square one, it can certainly put them in a much better position on the road to recovery and feel some sense of justice and closure.
Steven M. Sweat is a personal injury attorney and managing partner with the Los Angeles based law firm of Glotzer & Sweat, LLP and has been prosecuting civil claims on behalf of injured victims and their families in California for almost 18 years. He has received numerous awards including being named a "Personal Injury Super Lawyer" by Thomson Reuters News Service and Los Angeles Magazine. He is a regular contributor to this publication and others on the subject of personal injury law.
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