Alabama Personal Injury Blog - Trip

Teen threatens to sue for falling in sewer while texting

Danny Feldman — Mon, 13 Jul 2009 09:13:10 GMT

This is the kind of headline that tends to aggravate reasonable people. Apparently, a New York teen fell into a sewer while she was texting. See story at: http://www.msnbc.msn.com/id/31853449/ns/local_news-new_york_ny/?GT1=43001 City personnel had removed a manhole cover while they were flushing out the sewer. Fortunately, the teen suffered only scrapes and bruises. Her mother now is promising to sue.

I don't know about the law in New York, but in Alabama, this young lady will find it very difficult to get any lawyer to take her case because, quite frankly, it's a loser.

First, even assuming that the City was negligent, and it sounds like they were given that pedestrian traffic should have been diverted when the manhole cover was taken off, or failing that, they should have placed cones or warning signs around the uncovered hole to prevent someone from falling in - the teen cannot recover if she too was negligent, and her negligence was a proximate cause (but for cause) of the incident. In other words, even though the City was negligent, because the texting teen also was negligent, there will be no recovery. I simply do not believe that many plaintiff lawyers will conclude that they can convince 12 out of 12 jurors that being oblivious to your surroundings because you are busy texting (even something as important as where you are planning to "chill" later on) is not negligent conduct and that but for that conduct the incident would not have happened.

Can this teen sue? Sure. Is she likely to find a lawyer willing to work on this matter with almost no chance of recovery? Pretty unlikely. If she does sue, will the suit result in her receiving any money? At least in Alabama (and I suspect the same is true in New York as well), the chances are virtually nil.

Originally posted at InjuryBoard by Danny Feldman

If I slip or trip and fall and get hurt, what am I entitled to?

Danny Feldman — Thu, 02 Jul 2009 12:11:29 GMT

The short answer is that you are entitled to be put back into the position that you would have been in had the incident not occurred. Unfortunately, no matter how good your lawyer is or how sorry the premise owner is for your injuries, no one can turn back the hands of time. Accordingly, what happens (assuming you prevail) is that you will receive a sum of money, either through a settlement or verdict. The amount you receive is supposed to be an amount to reasonably compensate you for what you have been through.

Certain aspects of your damage claim will be fairly precise numbers. For example if you earn $500/week and you missed one week of work due to your injuries, you will have a $500 lost wage claim. Of course, defendants will argue that you should receive nothing if you had sick days or if the missed time is not as a result of doctor's orders. Further, if you are in the 1/3 tax bracket, defendant will want to subtract this amount as well.

You also will be entitled to receive the cost of your medical expenses incurred because of the wreck. Once again, it will be your burden to prove, often by very expensive ($1,000/hour or more) testimony from your doctor that your injuries, more likely than not where caused by the incident, that the medical treatment rendered was necessary to heal and cure you, and that the cost of the medical treatment was reasonable compared to the cost for similar treatment in your community. In addition, if you have health insurance, defendant will argue that all you are entitled to is the amount of your "out of pocket" co-pays and deductibles and the amount of your health insurer's subrogation claim. Forget that you have had $800/month deducted from your paycheck for the last 20 years to pay for this coverage.

The hardest to quantify area of damages generally is referred to as "pain and suffering" and mental anguish/emotional distress. It amazes me sometimes how people think that if you hurt someone and pay their out of pocket medical bills, that the injured person has been reasonably compensated. How about the inconvenience of going to numerous doctor visits; the stress of worrying about bills that aren't getting paid because you can't work; the pain you feel from the injury; the inability to do things that you like or need to do because of the injuries you suffered - for instance, not being able to go on along-planed vacation, not being able to exercise, sometimes not even being able to do the normal activities of daily living, like driving, dressing, cooking, cleaning etc.? These are the types of things that a pain and suffering award is meant to compensate. Just because it is harder to quantify monetarily should not mean that it is any less real and therefore simply should be forgotten.

Finally, in some rare cases, you might be entitled to punitive damages. Punitive damages are not designed to compensate you for what you have been through; rather they are designed to punish defendant for reprehensible conduct and to deter others from engaging in similar conduct. Punitive damages are rarely awarded, but in certain cases, they do have their place.

Originally posted at InjuryBoard by Danny Feldman

If I slip or trip and fall can I sue?

Danny Feldman — Tue, 23 Jun 2009 08:31:39 GMT

Every time someone falls down, people make jokes that the injured person will end up "owning the place." What does the law say about a premise owner's potential liability if someone falls on your property?

In Alabama, and a few other states, it depends on the right, or lack thereof, that the person who fell had to be on the property. For example, the duty of a premise owner to someone who is trespassing on their property is very, very low. On the other hand, if someone is a "business invitee" - that is, if someone is on the property to benefit the property owner (like a customer of the store or restaurant) then the premise owner has a higher duty. However, that duty basically is not to be negligent - or in other words, to act as a reasonably safe business owner would act in similar circumstances.

Let's take a look at a couple of examples. Say you visit Wal-Mart or any store for that matter and another customer walking directly in front of tosses the proverbial banana peel. With your next step, you slip on it and break your neck. Can you sue Wal-Mart? Sure. Will you win? Absolutely not. You must show more than the fact that you fell on the store's premises and that you got hurt. You must show that the store was negligent. In the example above - what did the store do that was unreasonable? Not a thing. So, while you may have a claim against the person that tossed the peel (good luck recovering on that, unless the person happens to be Donald Trump or someone else of personal means) you do not have a claim against the store.

Let's vary the facts a bit. The same customer tosses the banana peel 8 hours before you enter the store. A manager sees it 15 minutes later and instructs an employee to clean it up. The employee gets distracted and does not do it. A couple of hours go by and the manager sees the peel again. He means to get on the employee for not picking up the peel, but he too gets distracted. Another couple of hours go by. Several other managers and employees see the peel, but do not remove it. You don't see the peel; slip and fall and break your neck. Negligence? Maybe - it'll depend on what the jury thinks. Was it reasonable for the store to leave the peel on its floor for 8 hours? Does the peel constitute a dangerous or hazardous condition? What about the customer - shouldn't he have seen and avoided the peel?

In my next blog, I'll address in more detail some of these issues and "affirmative defenses" So, the answer to the question is "yes" - if you fall you can sue, however, whether your lawsuit has any reasonable chance of success is another matter entirely.

Originally posted at InjuryBoard by Danny Feldman

AIG - Workers Compensation - The Bailout

Jon Lewis — Thu, 08 Jan 2009 13:24:55 GMT

Well, I have just seen first hand what the bailout has done for AIG: made them even more heartless and cold than ever before. We represent a family who lives in Mexico. Their son was employed by a company in Atlanta, and he was killed on the job. The company is insured by AIG, and it is a clear liability case. What is AIG's response?

First, they made this man's parents travel across Mexico, obtain a special permit to enter our country, and come to Atlanta to give a deposition with a translator. They do not speak English. These individuals live in a two bedroom, aluminum house with 8 family members. We cannot imagine the life they live.

They cried at their deposition over the loss of their son. This was VERY emotional for them. They went back to Mexico, and the defense attorney and I discussed the possibiliity of settling the case.

I learned today that AIG is not interested in settling this case because they want to make it hard on this family. They know how difficult it is for them to travel back to this country, and they know it's difficult to get them back into this country. It's a foregone conclusion that the case will be won, but AIG doesn't care. They want to hold on to their money until the last possible date.

So, not only does AIG know the case is a loser from their standpoint, but they want to make it difficult on a very poor family in Mexico who just lost their son while he was working hard for AIG's insured. Furthermore, AIG knows that they have nothing to lose by doing this because the worst that can happen is they pay what they should pay anyway. The Judge cannot rule that they owe more than what the workers compensation statute says they owe so what do they care.

I ask you the following questions:

1. Is this right?
2. Is this humane?
3. Should AIG be punished for taking this stance?
4. Should AIG's insured have to endure further litigation because AIG wants to hold onto its money?
5. Should my client's family be made to suffer further?
6. Should they have to spend more money to come back to this country?
7. How should our system handle these situations?

The next time you hear about trial attorneys and tort reform, think about this case. It is insurance companies that drag out litigation and increase costs. It is insurance companies that turn down fair settlement offers and make their insured's go through the litigation process. It is insurance companies that make us take doctor depositions. AND, it is insurance companies that blame everything on the trial lawyers of America.

Isn't it time someone started holding these insurance companies accountable? AIG received billions of dollars of our tax money, and yet, this is how they treat human beings while they go to their spas and on their English hunting trips. It is time for these companies and the individuals operating them who have fleeced America to start paying the price.

Originally posted at InjuryBoard by Jon Lewis

Club Liable for Stripper's Car Accident?

Jon Lewis — Wed, 28 May 2008 11:00:00 GMT

This is an interesting case. The Birmingham News reported in its May 27 edition that Patsy Hamaker has sued her employer, the Furnace, as a result of a single car collision which occurred after work one evening. According to the article, the club encourages dancers to increase liquor sales by giving them a percentage of the drink sales. As a result, Ms. Hamaker allegedly became highly intoxicated and was allowed to leave work in that state.

Without knowing more facts, it is difficult to assess whether the Furnace would have liability in this situation. Surely, the club's owners will deny the allegations. Furthermore, even if they agree that they encouraged their dancers to increase drink sales of customers, they will most certainly argue that they do not encourage their dancers to actually drink the beverages and get drunk.

While I would not argue that this is a frivolous case, it will definitely lead to such arguments simply given the facts, and the tort reformers are probably licking their chops. They will argue that the employee should be responsible and not get intoxicated. But, this is a business which allegedly encourages intoxication because it leads to more money. Whether you approve of strip clubs or not, an employer of such a business should never allow an employee to leave work intoxicated. In fact, the employer should have a duty not to allow an employee to leave work intoxicated. This should be the case not only to protect the employee but, also, to protect the other motorists.

Originally posted at InjuryBoard by Jon Lewis