Friday, July 28, 2017

Man Tased by Colorado Police Receives $110K Settlement

Tasers are often viewed as a non-lethal alternative to subdue criminal suspects, but they are far from perfectly safe. Victims have suffered miscarriages, brain damage, and even death. Therefore, tasers should be used rarely and only with good reason.

It turns out that a man asking "What for?" while his hands are above his head and his back is facing police is not a good enough reason. Darsean Kelley got a $110,000 settlement from the city of Aurora, Colorado, without even having to file a lawsuit, after body camera footage showed officer an officer tasing him in the back.

I Know My Rights

The footage of Kelley's tasing is not easy to watch, as his body stiffens, he falls backward onto the sidewalk, and can be heard crying afterward. The ACLU, who took up Kelley's case, described the scene:

Police in Aurora, Colorado, got a call about a man pulling a gun on a kid. They had no description of the suspect. On their way to the scene, they stopped two Black men walking down the sidewalk.
Darsean Kelley, one of the men, followed the officers' orders to hold his hands above his head and turn around. His repeated requests for an explanation as to why they had been detained went unanswered. Even though it was clear he had no weapons and he was no threat to the officers, Darsean was tased in the back just as he said, "I know my rights." Darsean fell backwards and hit his head on the pavement.

Kelley was arrested for disorderly conduct, or failure to obey a lawful order, after he was tased. That charge was dropped, but not before he spent three days in jail, unable to post his bond.

Within Policy

Suing the police can be tricky, but a lawsuit wasn't even necessary in this case. While Aurora City Attorney Mike Hyman stood behind the officers' actions, he said the settlement was a financial decision. "We disagree with the ACLU's characterization of the events in this case and their unwarranted attack against the Aurora Police Department," Hyman said in a statement. "This case was settled for the reason that many cases are settled -- to avoid the cost of prolonged litigation. That cost would have far exceeded the value of the settlement."

There was no punishment for the police officers involved, after an internal review board determined the use of force "was reasonable, appropriate, and within policy."

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from Injured http://blogs.findlaw.com/injured/2017/07/man-tased-by-colorado-police-receives-110k-settlement.html
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Thursday, July 27, 2017

Parents Sue Amazon and a Teenager for Sword Related Head Injury

Earlier this year, the parents of a teen that suffered a severe head injury sued the makers of a novelty samurai sword. Now, the parents of the injured teen have filed a second lawsuit, this time against Amazon, and, curiously, one of the three teens present at the accident.

In addition to the many claims against Amazon, a negligence claim was included against the teen who was directing and encouraging the two other teens to be playing with the sword in order to film them. The claim against Amazon is rather straightforward. In short, it's a product liability claim, similar to the one made against the manufacturer, and these claims hold each entity or person who had a part in the sale and distribution of a product liable when injuries result due to the product's faulty design or some defect.

What Did Amazon Do, Allegedly?

Product liability claims can extend well beyond the manufacturer of a product. The parties that can be held liable for injuries caused by defective products or failures to warn include the:

  • Manufacturer
  • Manufacturer of a component, or single piece of the product
  • Assembler, or installer
  • Wholesaler
  • Retail store that sold the product

The lawsuit against Amazon alleges that the retail giant actually processed the entire sale, from accepting payment for the item on their platform, to boxing up the item without any warnings, and shipping it, as well as profiting from the sale. The sword itself is alleged to be defectively designed for failing to warn consumers that it should not be used for anything other than decoration. Since Amazon was prominently involved in the sale, the lawsuit against them asserts that it should have, minimally, provided warnings inside the shipping box.

What Did the Other Teen Do, Allegedly?

The teen that is being sued for negligence is alleged to have encouraged the two other teens to play with the sword so that she could film it for social media. The lawsuit claims she choreographed the stunt, and induced the boys to act by the lure of "Instagram or Snapchat notoriety."

Under a negligence theory, when a person induces or encourages others to act, they can be held liable for injuries if that encouragement was malicious, reckless, or otherwise ill-advised. Additionally, if the end result is fatal, or rises to the level of criminality, criminal charges can be pursued.

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from Injured http://blogs.findlaw.com/injured/2017/07/parents-sue-amazon-and-a-teenager-for-sword-related-head-injury.html
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Wednesday, July 26, 2017

3 Bars Sued for Overserving Former Prosecutor Before Drunken Car Crash

Joshua Kuiper should've known the dangers of drunk driving, including the liability for causing an accident. Kuiper is a former Kent County, Michigan prosecutor, who was fired after crashing his truck into a parked car while traveling the wrong direction on a one way street, seriously injuring Daniel Empson, who was getting a coat out of his car parked on the street.

Kuiper, who was charged with a felony charge of reckless driving, should also be aware of dram shop laws, which hold bars and restaurants liable for injuries caused by overserved patrons. If not, he knows now -- the injury lawsuit Empson filed against Kuiper has been expanded to include three establishments that served him before the crash, alleging they should've known he was drunk.

Liquor Liability

Most states have liquor laws prohibiting the sale of alcohol to anyone who is already intoxicated. In addition, dram shop laws hold establishments civilly liable for personal injuries and property damages that result from the actions of the intoxicated individual. While the person who was overserved can't sue the bar, those, like Empson, who were injured by that person can.

Empson claims he was thrown 60 feet from his car and sustained injuries to his right shoulder, back, left hip, legs, and head. He was allegedly in a sling for six weeks and his injuries may still take six months to a year to completely heal. On top of his suit against Kuiper, Empson is now suing three Grand Rapids establishments -- McFadden's Restaurant & Saloon, Luna, and J. Gardella's -- in a separate lawsuit, claiming Kuiper was visibly intoxicated at all three, yet was still served at least one alcoholic beverage. Kuiper was allegedly out celebrating the retirement of another prosecutor.

Nasty Accident

The crash also had ramifications in the Grand Rapids police department. As reported by MLive:

The investigation of the crash led to the firing of Lt. Matt Janiskee, who was in the watch command office.
Officer Adam Ickes, the first officer on the scene, was suspended. Former Sgt. Thomas Warwick, in the command office before he drove to the scene, and ultimately took Kuiper home, was demoted and suspended.
Police at the scene did not ask Kuiper to take a breath test for alcohol.
When Ickes told Janiskee that Kuiper was "hammered," Janiskee told him to stop talking and call back on telephone line designated "non-recorded," Grand Rapids officials say in court records.

Those calls were in fact recorded, and are now the subject of separate litigation. That's at least three lawsuits and a criminal trial stemming from one prosecutor's bad choices.

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from Injured http://blogs.findlaw.com/injured/2017/07/3-bars-sued-for-overserving-former-prosecutor-before-drunken-car-crash.html
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Tuesday, July 25, 2017

Climbing Wall Injuries: Who's Liable, When to Sue

It seems like everyone has taken up rock climbing in the past few years, and gyms, recreational supply stores, and even college campuses nationwide are adding climbing walls to their facilities. While climbing wall injuries may be rare, they can have severe consequences.

So who's liable if you're injured on an indoor climbing wall? And can you sue?

Premises Liability

Property owners can be held liable for injuries that occur on their property, and business owners like gyms and climbing facilities must take reasonable steps to assure the safety of the premises. If the property owner or their staff should have known about a potential injury risk from a climbing wall and failed to take action or advice you of the risk, you may have a valid premises liability claim.

Product Liability

While climbing facility owners should make regular inspections of the facility for defects and potential dangers, sometimes defects with equipment can cause injury. Climbing equipment manufacturers have a duty to ensure their products, including climbing walls, are safe, and may be strictly liable if a person is injured using their product. Product liability claims against gym equipment manufacturers can be based on defects in design, defects in manufacturing, or defects in warnings.

Waiving Liability

One aspect about injury lawsuits that may be unique to climbing facilities is a waiver. Many gyms and indoor walls will ask participants to sign liability waivers which ostensibly prohibit you from suing if you get hurt while climbing. However, while courts will generally enforce negligence waivers that cover injuries caused by the facility or its employees' own negligence, other waivers that cover total liability or intentional acts have been found unenforceable. So even if you've signed a liability waiver for a climbing wall, you may still be able to sue if your injury is not your fault.

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from Injured http://blogs.findlaw.com/injured/2017/07/climbing-wall-injuries-whos-liable-when-to-sue.html
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Monday, July 24, 2017

Woman Sues Harrah's for Injuries From Casino Doors, Then Dies

In most cases, we might refer to a door hitting someone on the way out of a casino after losing money as adding insult to injury. But it was the other way around for 87-year-old Elaine Catuara, who was hit by a malfunctioning front door at Harrah's Casino Hotel in downtown Joliet, Illinois, "violently catapulting her to the floor."

Catuara suffered fractures to her hip and to two vertebrae in her lower back, and was hospitalized for almost three weeks. She filed a negligence lawsuit against the casino in late May, but passed away soon after. "We will be amending the lawsuit," Catuara's attorney asserted, "alleging a wrongful death count."

Negligence Injuries

According to her original lawsuit, Catuara was in the "vestibule area" leaving Harrah's "when the previously opened door quickly closed on her." She was thrown to the ground and "sustained severe injuries and has incurred substantial medical bills and other economic damages along with pain, suffering and loss of a normal life, disfigurement and other non-economic damages."

As a business open to the public, Harrah's has the legal responsibility to take reasonable steps to assure the safety of the premises. Instead, according to Catuara's attorney James McKay, Jr., the hydraulic door-closer at the casino "was broken, creating an unsafe condition for patrons exiting the premises."

Wrongful Death

McKay told the Joliet Patch that the injuries Catuara sustained at Harrah's "absolutely played a significant role in causing her death":

"It's just so sad for everyone related to her and connected to her," McKay said. "We're talking about a significant decline in her health from the moment that door struck and knocked Elaine to the floor. Elaine's survivors are entitled to be compensated due to the negligence of Harrah's Joliet Casino."

In order to win a wrongful death lawsuit, the plaintiff must prove:

  1. The death of a human being;
  2. That the death was caused by another's negligence; and
  3. That family members who survived the deceased are suffering monetary injury as a result of the death.

Catuara's original lawsuit sought an unspecified amount of damages to cover medical bills along with pain and suffering. An amended suit including a wrongful death claim may ask for more.

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from Injured http://blogs.findlaw.com/injured/2017/07/woman-sues-harrahs-for-injuries-from-casino-doors-then-dies.html
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Friday, July 21, 2017

Ferris Wheel Accident Leads to Lawsuits

"We treat it like a crime scene until we determine there's no foul play," Greeneville Police Detective Captain Tim Davis told the Times Free Press in August 2016. "We don't know at this time what caused the accident." There were no criminal charges filed after three people fell 30 to 45 feet from a Ferris wheel at the Greene County Fair in Tennessee last summer.

But two federal lawsuits have been filed against the ride's operators, Family Attractions Amusement Company, as well as the manufacturer, High-Lite Rides Inc.

Reynolds vs. the Ride

According to one lawsuit, filed by the family of 10-year-old Kayla Reynolds and her 6-year-old sister, Briley, claims the girls' gondola became stuck at around the one o'clock position and began to tilt. Ride operator Jesus Herrera-Cabanas failed to stop the Ferris wheel and the ride continued to move, the Greenville Sun reports:

As onlookers described hearing a "thump" or "click" and metal "scraping," "breaking" and "screeching," Kimberly fell from the gondola, hitting the roof of the gondola below before hitting the railing platform and falling onto the ground. Briley followed, hitting the gondola roof below and then falling straight to the ground.

The suit claims Briley remained unconscious for about 10 minutes after the accident, suffering seizure activity, and was put into an induced coma at Niswonger Children's Hospital due to swelling on the brain and ventilation for respiratory failure. Briley received extended treatments for traumatic brain injury, including physical, neurological, and speech therapy, and continues to suffer neurophysiological injuries, including frequent nightmares and short-term memory loss. Kayla's injures were less severe, but she did break her arm.

Beware Falling Passengers

The other lawsuit was filed by Lorena Cowhy, who was injured when the falling girls struck her gondola, causing her to fall onto the floor where her left shoulder and bicep hit the gondola's center pole as the ride continued to tip and sway. Her lawsuit claims her injuries required "extensive physical therapy, steroid injections and possible surgeries."

Both suits are seeking unspecified damages from the Ferris wheel manufacturer, operators, and anyone who may have performed any maintenance on the ride.

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from Injured http://blogs.findlaw.com/injured/2017/07/ferris-wheel-accident-leads-to-lawsuits.html
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Thursday, July 20, 2017

Wrongly Diagnosed With Hypothyroidism: When to Sue

Any misdiagnosis, whether falsely identifying an issue that doesn't exist or failing to discover one that does, can be harmful. This can be especially true for hyperthyroidism, which affects millions of people per year. If not accurately diagnosed, those people may go untreated, or undergo potentially harmful treatments based on a doctor's misreading of their symptoms.

Misdiagnosis is a form of medical malpractice, and doctors that fail to properly diagnose and treat hyperthyroidism can be held liable. Here's what you need to know.

Malpractice, Misdiagnosis, and Negligence

If you think a doctor failed to diagnose your hyperthyroidism or gave you an erroneous diagnosis, you may have a valid medical malpractice claim. In essence, most medical malpractice claims are alleging a form of negligence by a doctor or other medical professional. Medical malpractice claims based on a theory of negligence require four essential elements:

  1. Duty: A doctor owed you a duty of care, generally the basis of any doctor-patient relationship;
  2. Breach: A doctor breached his or her duty by misdiagnosing or failing to diagnose your hyperthyroidism when a reasonably competent doctor in his her same position would not have;
  3. Causation: The doctor's misdiagnosis -- and not some other factor -- caused you harm, a likely event if hyperthyroidism goes untreated or mistreated;
  4. Damages: That harm you suffered is quantifiable and compensable, to some degree.

Doctors, Diagnosis, and Complications

Courts will judge doctors and their decisions based on what a reasonably prudent doctor would have done under similar circumstances. So it may be difficult to prove malpractice if your doctor did exactly what any other competent doctor would've done in treating your hyperthyroidism (or lack thereof).

In addition, medical malpractice claims can be especially complicated, often requiring the disclosure of detailed medical records and patient information, along with experts to testify regarding your injuries and your doctor's alleged misdiagnosis. Talk to an experienced injury attorney if you're considering a medical malpractice claim based on a hyperthyroidism misdiagnosis.

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from Injured http://blogs.findlaw.com/injured/2017/07/wrongly-diagnosed-with-hypothyroidism-when-to-sue.html
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