Articles Posted in Personal Injury

Legislative action is planned again for next year to reintroduce a state measure that would quantify the legal amount of drugs allowable in a driver’s system.

The bill was introduced in the 2015 session as S.B. 162. As it was written for the last session, there would be further definition of the term “under the influence” in Ala. Code 32-5A-191 that would specify and prohibit “measurable amounts of specific substances in a person’s body.”

The action would also require minimum mandatory sentences for fourth or subsequent violations and would remove the requirement that a prior conviction would need to occur within the last five years in order to be considered. The law would state that it would be illegal to drive under the influence of any substance or substances that would render him or her incapable of safely driving.

In an injury lawsuit, there are often two kinds of damages: Compensatory and punitive.
Compensatory damages are those incurred by plaintiff for actual losses. These can range from medical bills and lost wages to pain and suffering and loss of life enjoyment. They are not necessarily tangible, but the goal is to restore those injured to whatever extent that’s possible.

Punitive damages, meanwhile, are those intended to punish defendant. It’s still the plaintiff who benefits from these damages, but whether plaintiff may seek them has little to do with his or her injuries and more to do with the egregiousness of defendant’s conduct. Punitive damages are often far in excess of compensatory damages, particularly if defendant is a larger entity.
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In a 4-3 decision, justices of the Montana Supreme Court remanded the case of Kent v. City of Columbia Falls to trial to be decided on its merits. bikepath.jpg

At its heart, this is a premises liability case. All other defendants aside from the local city government settled with plaintiff. Now, the primary question is whether the city is liable for negligent oversight of design and development of a subdivision where this tragic accident occurred. Initially, a trial court granted city’s motion for summary judgment on the public duty doctrine, which holds government entities can only be held liable for individual injuries when there was a breach of duty owed to the individual, rather than the public-at-large. It’s a tough hurdle because generally, the government owes a duty to the public, rather than individuals.

A number of states now refuse to recognize the public duty doctrine, but Alabama is not among them. The Kent case shows the tide may be turning within the courts.
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Not all injuries that occur in a hospital are medical liability claims.
This may seem an obvious point, but it’s one a fair amount of health care providers make when faced with premises liability claims.

It’s a key distinction because claims of medical liability are bound to a very stringent standard of filing and notification requirements, as well as a higher proof burden. Although state guidelines vary on these requirements, this is generally true across the board in all 50 states.

For example in Alabama, the evidentiary and procedural laws are quite extensive. While most civil cases simply requires proof to the jury’s reasonable satisfaction, a medical malpractice claim requires proof by substantial evidence. And a poor outcome is not enough. It must be shown the medical professional breached the applicable standard of care for someone in his or her position.
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The plaintiff in Cline et al. v. Publix Supermarkets, Inc. et al. had a son who was severely allergic to nuts. She kept Benadryl and an epinephrine pen with her at all times. She carefully read ingredient labels and always questioned whether cross-contamination may have occurred when obtaining food from restaurants, friends or grocery stores. cookie.jpg

Despite all of this, the Alabama woman says her son died of an allergic reaction he suffered after biting into a grocery store cookie that contained walnuts. This was after she says the store employee assured her there were no nuts in the cookie. After taking the cookie home, she even took two bites herself to confirm there were no nuts in it before giving the rest to her son.

However, according to the lawsuit, the boy took three bites before he ran to tell her his mouth was burning. His aunt administered the Benadryl while his mother gave him an epinephrine shot in the thigh. But the boy’s condition continued to worsen. As he lost consciousness, his family called for emergency help. His throat swelled. Emergency workers tried to revive him as they rushed him to the hospital. He did not survive.
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Evidence is the crux of any legal case. The truth, of course, is of paramount importance, but what is also key is what can be proven. Without the right amount and type of evidence, a case will go no where.
This is as true for personal injury cases as it is for those involving crimes.

Because certain evidence can be considered critical to a case, and those with vested interest in not having that evidence presented may be in possession of it for a time. The courts have long recognized the importance of sanctions for loss or destruction of evidence – regardless of whether it was intentional. When important evidence is lost, it’s called spoliation. By imposing sanctions for spoliation of evidence, the court provides incentive to protect key evidence that may be helpful to the opposing side.

Sanctions can include anything from a special instruction to the jury to a default judgment on the issue of liability or damages. It can result in the party disadvantaged by the loss of evidence winning the case.
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Railway crashes and accidents result in hundreds of deaths each year, according to the Federal Railway Administration, which reported a total of 1,734 train accidents in 2012. traintracks1.jpg

In comparison to the enormous carnage seen on America’s roadways involving solely motor vehicles (causing an estimated 33,000 deaths annually), it might seem a minor problem. However, 700 deaths in a single year – 2012 – is cause for concern. That’s only slightly fewer than the number of people killed in recreational boating incidents, so it warrants the attention of motorists.

Just recently in Alabama, a 27-year-old former contestant on the hit show “Survivor” was killed in Birmingham while working as a conductor when an axle on one of the cars derailed and he was thrown into another car in the yard.

Some of the more common causes of train accidents in Alabama include:

  • Failing mechanics
  • Malfunctioning lights or signals
  • Inadequate track maintenance
  • Failure to install/maintain safety gates
  • Unprotected crossings
  • Conductor negligence
  • Defective train or parts

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Typically the topic of “distraction” in injury law is most closely associated with motor vehicle accidents. And of course, it’s relevant in that context, as distraction behind the wheel is extremely dangerous. But it’s worthy of discussion in other areas of personal injury law as well, including premises liability.
The “distraction doctrine” holds that if the property owner had reason to suspect an individual on site may not have appreciated a danger – even an open and obvious one – due to distraction or preoccupation – he or she would still have had a duty to correct or warn.

In the recent Illinois Supreme Court case of Bruns v. City of Centralia, plaintiff asserted the distraction doctrine as an exception to the open and obvious danger of a large, hazardous crack in a sidewalk in front of an eye clinic on which the elderly plaintiff tripped and fell. Plaintiff argued the city should have reasonably foreseen a pedestrian would become distracted while walking up to the clinic, and the appellate court agreed. However, the state supreme court reversed on the grounds that the simple act of looking up does not impose on defendant a duty to protect a plaintiff from an open and obvious defect.
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The product liability lawsuit brought in Massachusetts by a man whose hand was mangled by lawn machinery failed after a jury apportioned him 73 percent fault for his own injury. In that state, plaintiffs who hold 50 percent of the fault or more for their own injury are barred from collecting on a claim.
In Alabama, our Montgomery injury lawyers know our courts follow a much stricter standard. In fact, we are one of just five states following the pure contributory negligence model, which holds a plaintiff who holds any percentage of fault for his own injuries will be barred from bringing a claim.

Per the 2002 Alabama Supreme Court ruling in H.R.H. Metals, Inc. v. Miller, a defendant proves contributory negligence by showing the plaintiff failed to exercise reasonable care.
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The most common type of premises liability lawsuit in Alabama arises as a result of a “slip-and-fall” or “trip-and-fall.” Circumstances vary widely, but tend to involve injuries caused by falling as a result of tripping or slipping as a consequence of liquid or debris on floors, uneven surfaces or defects in the ground, poor lighting or some other hazardous condition.
However, simply proving injury on a person’s property is not enough. State law burdens plaintiffs with many requirements. Included is establishment of duty according to plaintiff’s status on site, as well as a prima facie (first impression) showing that the foreign substance or object caused the fall and the defendant knew or should have known of it at the time of the fall and failed to address it. The requirements may differ slightly if the alleged hazard was a property defect, rather than a foreign substance. However, in either case, the plaintiff’s on-site status will be key.

Our Montgomery injury lawyers know the differentiation will determine the duty defendant owed the plaintiff.
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