Friday, October 12, 2018

Top 5 Legal Concerns About Common Carrier Liability

In the wake of the deadliest U.S. transportation-related accident in almost a decade, the operator of the limousine company whose "Frankenstein vehicle" was involved in the crash was arrested and charged with criminally negligent homicide. And while he is facing criminal liability for the 20 deaths as a result of the accident, he and the limo company may also face civil liability as a "common carrier."

But what are common carriers? And what are their responsibilities under federal and state tort law? Here's a legal roundup.

1. What Is a Common Carrier?

Common carriers are buses, taxicabs, commercial airplanes, passenger trains, cruise ships, and, sometimes, limousines, offer transportation services to the public. These businesses often fall under the authority of a state or federal regulatory body, and are required to exercise the highest degree of care and diligence in the safety of their passengers. If they fail to meet that standard, they can be sued for any damage or injuries that result.

2. Common Carrier Liability in Light of Amtrak Crash in PA

Amtrak and other rail operators are governed by the Federal Railroad Safety Act (FRSA) and are classified as common carriers. Such entities can be sued for injuries for failing to adhere to a particular regulation or failing to exercise the care and diligence that would be expected of a reasonably careful operator.

3. How to Sue an Airline Over Damage, Injury

Airlines are also common carriers and fall under federal regulatory authority. The Federal Aviation Administration (FAA) sets and enforces safety standards for pilot conduct, flight operations, and aircraft manufacturers through civil or criminal penalties.

4. Public Transit Accidents: Can You Sue?

Even if you're injured on local public transportation like a subway or bus, you might be able to sue under common carrier liability. However, many municipalities have "Tort Claims Acts" that set the rules for filing injury claims against public transit agencies, and may require notice of a claim before you file a lawsuit and could limit the amount of damages to which you're entitled.

5. What Is 'Logo Liability' in a Trucking Accident?

Even if a company is transporting goods rather than people, it could fall under common carrier liability. And that can get a little complicated when a commercial carrier transporting freight uses leased trucks and drivers instead of their own, or uses independent contractors to drive their own trucks instead of an employee.

Common carrier lawsuits can be complicated, and are often governed by local laws and ordinances. Contact an experienced personal injury attorney in your area for questions regarding your case.

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from Injured http://blogs.findlaw.com/injured/2018/10/top-5-legal-concerns-about-common-carrier-liability.html
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Wednesday, October 10, 2018

Foster Agency Sued for Fatal Pit Bull Attack in Kansas

A Kansas foster care agency is being sued in federal court after a foster child, who was placed back into her father's home, died from being attacked by pit bulls that lived in the home. The lawsuit is against the Department for Children and Families (DCF) and KVC Behavioral Healthcare, a private not-for-profit foster care contractor, and seeks damages of more than $75,000.

Plaintiffs, consisting of the child's mother and the child's estate, claim that the agency was negligent in placing the child back into the father's home, and for failing to adequately assess whether the home was safe.

Nothing Changes If Nothing Changes

The child, identified in the lawsuit as "PND," was removed from her family home when her father went to prison, and the home was deemed an unsafe environment. He had a history of drug and theft convictions.

PND was placed with DCF and KVC until the summer of 2016. Once her father was released from prison, DCF and KVC proposed to re-integrate PND into her father's home, even though it still was the same unsafe environment that they had removed her from, including two pit bulls that had already exhibited violence. As Albert Einstein so famously said, "The definition of insanity is doing the same thing over and over again, but expecting different results."

Within a month of PND living there, those pit bulls killed PND after she got into the family yard in the evening, while her father slept. Strangely, he slept through the entire attack.

Balancing Right to Safe Environment and Right to Live With Parents

According to Kansas law, foster youth have the right to live in a safe environment. This right is balanced with the right to live with a relative, if possible. Was it safe for PND to be placed in a home that had two pit bulls with histories of previous attacks? Probably not. Even though the the police had investigated the death, and felt criminal charges weren't in order against the parent and the pit bull owner, who resided with the parent, this has little bearing on the negligence of DCF and KVC. At issue in this case will be proving foster care's duty of care, and breach of that duty.

Why the Agency May Not Be Liable

Unfortunately, it isn't easy to sue foster care agencies. First, in order to prevail, plaintiffs will need to prove that the agencies' behavior exhibited "deliberate indifference" to a risk of harm to PND. This heightened standard of liability has been repeatedly exploited by careless foster care agencies to circumvent legal liability, and is difficult to prove. Second, plaintiffs will need to prove causation. After all, neither the agencies nor the adults killed PND; it was the pit bulls. Plaintiffs will need to show the deliberate indifference was a "substantial factor" leading to the death. Finally, even if plaintiffs can maneuver through heightened liability standards and causation, they will still have to dodge governmental qualified immunity. They truly face an uphill battle.

If you or someone you love has been the victim of negligence, whether by a government agency or someone else, contact a personal injury attorney. A legal expert can listen to the facts of your case, and determine if you are eligible for compensation. Many of these attorneys will take your case at no cost, and will only earn a fee if they win money for you. There's very little to lose by contacting one today.

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from Injured http://blogs.findlaw.com/injured/2018/10/foster-agency-sued-for-fatal-pit-bull-attack-in-kansas.html
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Tuesday, October 9, 2018

'Frankenstein Vehicles,' Limo Accidents, and Legal Liability

A tragic limousine accident last weekend killed 17 passengers, the driver, and two pedestrians, rocked the small town of Schoharie, New York, and raised new questions about limo safety, licensing, and legal liability.

According to reports, the modified 2001 Ford Excursion had recently failed a state safety inspection, the driver did not have the proper license to drive the vehicle, and even one of the passengers texted her concerns about the limo before the crash. The vehicle "was not supposed to be on the road," according to New York Governor Andrew Cuomo. So, who is liable for the accident?

Frankenstein's Monster

NPR reports that similar stretch SUV limousines are often created by modifying an existing vehicle, "essentially sawing it in half, then lengthening the body and refurbishing the interior." Deborah Hersman, president and CEO of the nonprofit National Safety Council and former chair of the National Transportation Safety Board, told NPR, "When we look at limousines and stretch limos, we see a really Frankenstein system of cars that potentially are cut up and put back together with parts and pieces that were not original to them. And additionally, some things may be taken off -- things like air bags or seat belts."

The limo, on its way to the Ommegang Brewery in Cooperstown for a birthday celebration, barreled through an intersection which was already known to locals at notoriously dangerous and through which local officials had banned large trucks from travelling. According to investigators, the stretch SUV failed to stop, crossed the busy highway, glanced off a second vehicle in a parking lot, struck and killed the two pedestrians, and then crashed into a shallow ravine.

Robert Sumwalt, the chairman of the NTSB, said there was extensive damage to the front and left side of the limousine, that the engine of the Excursion had been thrust backward into the driver's compartment, and that there were no skid marks leading to the crash site. While not indicating whether the limo driver had been speeding, Sumwalt cited evidence of a "high-energy" impact.

Blaming the Doctor

As noted, the "Frankenstein vehicle" itself had failed an inspection last month, and the limousine company, Prestige Limousine, has a trail of failed inspections and ties to a scheme to illegally obtain driver's licenses. Yesterday, investigators moved to suspend the company's operations and seize its remaining vehicles.

As of now, no lawsuits have been filed in the accident, but litigation is expected as the investigation proceeds.

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from Injured http://blogs.findlaw.com/injured/2018/10/frankenstein-vehicles-limo-accidents-and-legal-liability.html
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Florida Man Claims 'Free Alcohol' at Music Fest Led to Fall, Injuries

Like any experienced music festival attendee, Michael Ryan, of Panama City Beach, Florida, purchased VIP tickets for the Gulf Coast Jam country music festival in 2014. That gave Ryan access to unlimited quantities of free alcohol in the VIP area.

And like any experienced litigant, Ryan doesn't explicitly admit to consuming any of that free booze before he fell off a platform in the VIP section, "causing him to suffer severe and permanent injuries resulting in loss." Ryan also doesn't elaborate on those injuries in his lawsuit against the company hosting the music fest and the company providing security, but he is asking for $15,000 in compensation.

Sober Slip-Up

"Given the foreseeability that festival attendees with VIP credentials may consume alcohol, (Gulf Coast Jam) should have taken appropriate steps to protect the health, safety and well-being of such individuals which includes providing an area that was free from hazardous conditions," Ryan's lawsuit states (without confessing to such consumption). The lawsuit adds that Gulf Coast Jam "breached their duty to provide an appropriate, safe and secure area for its attendees with VIP credentials by erecting, promoting and implementing a restricted and reserved area for such individuals which was unfit for its intended purpose."

The injury suit, which names Panama City Beach Entertainment LLC (owner of Gulf Coast Jam) and Dothan Security Inc. (DSI), also asserts "it was reasonably foreseeable that alcohol would be consumed by some to the point where normal faculties might be impaired." Ryan (who has not conceded that he consumed free alcohol to the point of impairment) allegedly lost his balance and fell through a set of stairs on a "multi-level elevated platform" after a DSI security guard told him to sit down on one of the stairs. Ryan is alleging that Gulf Coast Jam should have known that unlimited free alcohol (which he may or may not have consumed), insufficient lighting, and an ill-constructed platform in the VIP area could result in an injury.

No Dram Jam

While so-called "dram shop laws" can hold bars and alcohol retailers liable for injuries or deaths of third parties caused by over-served or severely intoxicated patrons, they won't help Ryan. First, most of those laws don't cover injuries sustained by those over-served patrons themselves, and second, Ryan didn't drink any of the unlimited, free alcohol. Obviously.

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from Injured http://blogs.findlaw.com/injured/2018/10/florida-man-claims-free-alcohol-at-music-fest-led-to-fall-injuries.html
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Friday, October 5, 2018

Top 5 Tips for Suing After a Disaster

Accidents and natural disasters may seem inevitable or like an act of God. But that doesn't mean that all injuries stemming from a disaster are unavoidable, or that someone isn't liable for the accident itself.

Determining that liability, however, and recovering for your injuries, can be complicated. Here are some tips if you've been injured and are considering a lawsuit after a disaster.

1. Preventing Injuries During, After Hurricanes, Storms

The first step is always avoiding injuries during a disaster, to the extent possible. And while some injuries and damage are unavoidable when big storms hit, other are easily preventable. Find out how.

2. Top 5 Legal Issues Following Floods

Whether it's a hurricane or just an unusually rainy season, flooding can be disastrous. And, depending on where you live, access to flood insurance may be impossible or prohibitively expensive. Additionally, the after-effects of flooding can go far beyond water damage. And what happens if you have flood insurance, but the insurance company refuses to pay your claim?

3. When to Sue for Loss or Damages From Wildfire

The past few summers have seen devastating wildfires ravage several communities throughout California. And while some wildfires may simply be acts of nature, too often they are the result of careless people or companies. Does that make a difference in your ability to recover for property damage or personal injury following a wildfire?

4. Is Columbia Gas Liable in the Massachusetts Gas Pipeline Explosions?

A recent string of pipeline explosions killed one and injured dozens in the Boson area. In 2016, a natural gas line exploded in Portland, leveling buildings. And in 2010, a gas line explosion in San Bruno, California killed four people and injured as many as 50 more. So who is liable when a gas line blows?

5. What Is the Rail Disaster Family Assistance Act?

In some cases, existing legislation will determine the process for compensation after a disaster, natural or man-made. Noting that rail and air crashes can be devastating to families and communities, Congress passed laws allowing the federal government to provide services and compensation to families for loved ones injured or killed in rail accidents.

If you have questions regarding property damage or personal injury following a disaster, an experienced personal injury attorney is only a click or call away.

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from Injured http://blogs.findlaw.com/injured/2018/10/top-5-tips-for-suing-after-a-disaster.html
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Thursday, October 4, 2018

Widow Sues Walmart for Wrongful Death After Parking Lot Shooting

"Given the history of violence in their parking lots," a wrongful death lawsuit claims, "and Wal-Mart's [sic] knowledge they were not employing adequate security measures, it was foreseeable to Wal-Mart that the Plaintiff would be attacked in their parking lot and sustain serious injury or death."

That's the legal argument a widow is making against the megaretailer, and it may be difficult for Walmart to refute. Recent years have seen a crime wave at Walmart locations, from the serious to the silly. This time it was Fadil Delkic who was shot and killed after an argument in a Snellville, Georgia Walmart parking lot.

Isolated Incident?

The incident happened in August, and appears to have been an argument over parking in the crowded lot. According to the Atlanta Journal-Constitution, Troy Hunte's girlfriend was upset Delkic pulled his car too close to her family in a crosswalk. Surveillance video showed Delkic attempting to avoid an altercation. "(Delkic) actually left the first confrontation and went and parked," said Gwinnett County District Attorney Danny Porter. "Then, more or less, the fight was brought to him." Hunte's girlfriend (who has not been identified) then allegedly slapped Delkic in the face before Hunte pulled out a gun and shot him once in the chest.

Hunte has been arrested and charged with murder, and is also named in Bahra Delkic's lawsuit against Walmart. Delkic is asking for a jury trial and for compensation "for the full value of the life Fadil Delkic in an amount to be determined by the evidence."

Many, Many Isolated Incidents

"This appears to have been an unfortunate dispute between two individuals that we had no knowledge of and no way of knowing their argument was going to escalate into violence," Randy Hargrove told The Atlanta Journal-Constitution. While Hargrove may be correct about the specific incident involving Delkic, Walmart is certainly aware of the high crime rates in its parking lots.

Walmart CEO Doug McMillon made reducing crime a top priority when he took over in 2014, and the company allegedly keeps a detailed criminal database of incidents at their stores. And even if Walmart weren't tracking criminal activity internally, local police departments and media outlets certainly are. According to recent reports, incidents at Walmart accounted for nearly half of all criminal activity in Port Ritchie, Florida, and Tulsa police claim they were called to the city's four Walmart stores almost 2,000 times in a single year.

Not-So-Isolated Liability

Courts have become more likely to find retailers liable for crimes that occur in their parking lots over recent years. Whether Walmart, or any other retail store, will be legally responsible for injuries resulting from a crime on their property will depend on how foreseeable the crime was. Stores and parking lot owners are more likely to be on the hook for any injuries or deaths resulting from robberies or assaults in their lots if they operate in high crime areas or if their lots have often been the scene of a crime.

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from Injured http://blogs.findlaw.com/injured/2018/10/widow-sues-walmart-for-wrongful-death-after-parking-lot-shooting.html
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Monday, October 1, 2018

Can School Shooting Survivors Sue for Trauma?

Two years ago in South Carolina, on September 28, 2016, Jesse Osborne shot and killed his father. He then went to nearby Townville Elementary School where he shot three students and one teacher. One student died from excessive bleeding and cardiac arrest. Everyone else survived, but at what price?

Some of the survivors have suicidal thoughts. One had daily bouts with diarrhea, and once finally able to return to school, spiraled back down the recovery path after an unannounced intruder drill. Numerous children that weren't shot were still injured, not physically, but mentally. But is trauma alone enough for a negligence claim?

What Sort of Duty Is Owed to Students?

The parents of five surviving children from the Townville school shooting filed personal injury negligence lawsuits against Anderson School District 4 and the Anderson County Sheriff's Office, claiming the defendants are responsible for their children's post traumatic stress disorder (PTSD).

The lawsuit claims that the school district had a duty to train or ensure the training of its employees "to recognize and properly deal with an active-shooter situation on campus and the proper administration of life-saving first aid to injured students." It also alleges that the Sheriff's Office failed to perform a security assessment on the school to highlight strengths and weaknesses on the campus, which could have allowed officials "to develop a course of action" to address any weaknesses.

Can Trauma Alone Lead to a Successful Claim?

In order for these plaintiffs to prevail, they will need to provide a connection between the breach of duty and the shooter's decision to open fire at the school. These types of lawsuits are rarely, if ever, successful because of the difficulty in establishing a causal connection between the school's actions, or in this case, inactions, and the shooter's decision to shoot. Specifically, plaintiffs will need to prove that, had the district trained employees better, and had the Sheriff's Office created a better security protocol, the shooting would have never happened. That is very difficult to prove.

Plaintiffs will also need to prove that the injuries sustained were reasonably foreseeable, given the "inaction" of the district and the Sheriff's Office. If the causal connection can be proven, this may be easier to prove. But it wouldn't be a "slam dunk" by any means. Even if the defendants fulfilled their duties, and the shooter shot, would the students not have developed PTSD? And if they did, would that have been foreseeable? Even in the infamous Columbine shootings, this couldn't be proven. Stoneman Douglass shooting survivors suffering from PTSD have filed a Civil Rights lawsuit, though not a negligence lawsuit. That case is still making its way through the courts. Perhaps plaintiffs in the Townville case will find some legal precedent there.

If you or someone you love is the survivor of a school shooting, and suffering from PTSD, contact a local personal injury attorney. The tides are turning with each school shooting. What once wasn't foreseeable may unfortunately, soon be. It may be only a matter of time before such claims are successful.

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from Injured http://blogs.findlaw.com/injured/2018/10/can-school-shooting-survivors-sue-for-trauma.html
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