Alabama Personal Injury Blog - Wrongful Death

South Carolina Surprise

Jon Lewis — Mon, 29 Jun 2009 21:36:08 GMT

It was reported this past week that South Carolina Governor, Mark Sanford, has had an affair. The media has treated this as landmark news. What I think would be landmark news is a politician who has not had an affair. Is this surprising? Should we expect anything less?

Why am I writing about this? Because I meet with clients every day who show surprise when the law doesn't go their way. What do I mean?

Let's take arbitration for example. Clients come into the office after being defrauded by a company or had a contractor treat them wrong. After reviewing the contract and seeing the arbitration clause, I tell them that they cannot sue the defendant in court. They have to arbitrate the claim. The reaction, "What?" "Are you kidding me?" "How can they do that?"

Or, what about when I have to explain Alabama's wrongful death law. In Alabama, when someone is killed by the negligence of others, you can only sue the other person or company for punitive damages, not compensatory damages. In other words, we have to argue to the jury that they must punish the defendant, not compensate the victim's family. That becomes VERY difficult when the defendant made a mistake such as running a red light or changing lanes without looking properly.

What is the respective clients' reaction to this? "What?" "Are you kidding me?" "How is that possible?"

What's the moral of the story? Pay attention. Pay attention to your spouse and to politicians, and maybe, you won't be surprised. Pay attention to your legislators and judges. Know what laws they are passing. Lobby your congressmen and let them know that these laws aren't right and need to be changed.

Originally posted at InjuryBoard by Jon Lewis

Under what circumstances may someone recover money damages for emotional distress?

Michael Roberts — Wed, 24 Jun 2009 15:09:56 GMT

The law varies depending on the jurisdiction, but many states permit such recovery. In Alabama, for example, damages for mental distress that accompanies a physical injury may be awarded by a jury where a person was wrongfully hurt. Thus, the worry and depression related to a disc herniation and its consequences can be the subject of a verdict award. Where there is no physical injury, and the other party is guilty of negligence, Alabama follows a "zone of danger" rule adopted by the Alabama Supreme Court in 1998. Under this rule, a company or person who negligently puts a person in immediate risk of physical danger (such as causing a fire from which a person escapes without an actual burn) is responsible for mental distress or mental anguish.

"Intentional torts" (where a party's conduct is worse than mere negligence, such as intentional assault, defamation, fraud or misrepresentation) can also warrant mental distress damage awards. In Alabama, breaches of certain types of contracts, such as some related to homes, can be the foundation of emotional distress damages. (For further discussion of cases, see Alabama Tort Law, 4th edition, Lexis Law Publishing.)

Originally posted at InjuryBoard by Michael Roberts

Confidential Settlements

Pete Burns — Mon, 01 Jun 2009 15:33:19 GMT

Confidential settlements create thorny issues. Lawyers who represent injured people do not like confidentiality agreements. Those agreements help culpable defendants prevent other injured parties from learning how strong their cases really are. However, when the client is offered a fair settlement in exchange for a release and confidentiality agreement many clients are so happy to put the matter behind them that they agree to keep the terms of settlement – and sometimes the underlying facts - secret. Such is the case with Bausch & Lomb’s eye fungus cases. http://www.forbes.com/feeds/ap/2009/05/31/ap6485916.html Thanks to AP’s Ben Dobbin for shedding some light on this litigation.

Originally posted at InjuryBoard by Pete Burns

Wrongful Death Damages in Alabama

Michael Roberts — Wed, 13 May 2009 10:43:08 GMT

WRONGFUL DEATH DAMAGES IN ALABAMA

Damages awarded in wrongful death cases vary significantly from state to state. In many states, damages include lost income that the deceased person would have earned, economic value of a life, and grief or emotional distress suffered by the surviving family members.

In Alabama, however, the measure of damages is different. All damages for wrongful death in Alabama are considered punitive or exemplary due to a nineteenth-century Alabama Supreme Court precedent. This means that, when a wrongful death case is tried to a jury, the jury is told to consider that these damages are imposed for the preservation of human life and as a deterrent to others to prevent similar wrongs. The amount of damages should be directly related to the amount of wrongdoing or culpability on the part of the defendant.

An Alabama jury is permitted to recognize the sanctity of human life in considering the amount of a jury verdict. In determining the proper amount of a verdict for a defendant’s negligence, it may consider the ease with which the defendant could have avoided the death. Examples of this factor could include the ease with which a driver could have paid attention at a red light; a trucking company instituting a safety program to better train its drivers; or a manufacturer implementing an interlock safety device on a machine which is subject to causing injury.

Originally posted at InjuryBoard by Michael Roberts

Investigate car wrecks promptly

Pete Burns — Tue, 12 May 2009 18:14:42 GMT

Prompt investigation of a car wreck involving serious injury or wrongful death is a must. Frequently alcohol is involved in car wrecks and bars are often the source of the alcohol. Dram shop laws are a way of holding bar owners who serve alcohol to minors or intoxicated persons responsible for the injuries caused by their drunken patrons. The sooner you launch an investigation the more likely you are to determine where and when the driver got drunk. Witnesses interviewed promptly after the wreck are frequently more willing to talk than after having days – and perhaps discouragement – to think about getting involved.

Originally posted at InjuryBoard by Pete Burns

Tort Reform: What's in a Name?

Pete Burns — Tue, 05 May 2009 18:04:50 GMT

The change the "reformers" want to persuade the American people to enact is to abandon the Constitutional protection of a righ to trial by jury. Rather than allow a group of 12 disinterested citizens to resolve a fact situation and apply justice for that particular case the insurance, tobacco and pharmaceutical industries want to limit the amount that they will have to pay regardless of the damage they cause. To do this they must convince voters that the present system is broken and that common people are unable to recognize justice. Don't be fooled.

Originally posted at InjuryBoard by Pete Burns

Jury Awards Nursing $6.5 million in Nursing Home Patient Death

Billy Cunningham — Fri, 01 May 2009 15:51:56 GMT

The Columbus Ohio Dispatch reported that a jury returned a verdict against Whetstone Gardens & Care Center due to the death of Peter Southard by dehydration- lack of water. Mr. Southard had suffered a stroke in 1984 and was cared for by his wife at home. She would occasionally admit him to a nursing home to give herself a break. In May , 2005 she took him to Whetstone Gardens & Care Center in Columbus. When she returned 15 days later, she found the 61-year-old Navy veteran incontinent with clothes strewn about his room and a bloody rash on his groin from urine-soaked bedding, according to her attorney Gerald Leeseberg.

Mr. Southward’s stroke had left him forgetful and always in need of water to drink. It was said he could be told to take a drink a water and ten minutes later forget that he had been told to drink. A glass of water was left by his TV stand, Leeseberg said. But brain damage had left Southard both thirsty and forgetful, which meant that someone had to make sure he drank enough water by watching him do it. That is the job of nursing staff.

The nine-day trial before visiting Judge Nodine Miller included testimony from doctors who said the care at the nursing home fell below minimum standards and from aides who said they were never told of Southard's critical need for water. His cause of death was dehydration nd kidney failure caused by the lack of fluids.

Keeping a resident hydrated and adequately fed are two of the most basic functions nursing homes should know to follow up on- especially with a person who may be forgetful, have suffered any kind of brain insult- like a stroke- or have dementia. Simple written instructions to the nursing staff along with follow up and reviews should be sufficient to ensure that patients are being properly hydrated and fed. the consequences are too great if this is not done.

Congratulations to Mr. Leeseberg and his office for obviously presenting a clear factual case to the jury and to the jury for recognizing that this type conduct by a nursing home should result in a significant award. Hopefully, the nursing homes in the US will know about this and recognize that there are consequences to inadequate care.

Originally posted at InjuryBoard by Billy Cunningham

Accidents Caused by Drunk Drivers - Part 1

Jon Lewis — Thu, 09 Apr 2009 14:46:47 GMT

Tragedy knows no economic status. It has been reported today that a Major League pitcher, Nick Adenhart, has been killed by a drunk driver. See CNN's report. Adenhart pitched for the Los Angeles Angels just prior to the accident which was his fourth Major League start.

Unfortunately, while such a death is tragic, it is an event which occurs regularly in every State. When it happens to a professional athlete, it brings attention to the subject. However, the occurrence is much more prevalent with everyday individuals.

We have handled numerous drunk driving accidents over the years, and they are always very difficult. One involved a twenty-year old individual who lost a leg. One, which we are handling right now, involves the death a man who had three minor children.

All of these accidents and tragedies are preventable. Clearly, these activities are illegal and subject to criminal penalty, but there are also civil remedies available. I will discuss these remedies in Part 2 of this series.

Originally posted at InjuryBoard by Jon Lewis

Alabama Truck Accidents - New Law

Jon Lewis — Fri, 27 Mar 2009 18:57:23 GMT

Alabama has finally passed a law to protect the public and State highways from future steel coil incidents. According to the Birmingham News, T. J. Willings, of the Alabama Trucking Association, called this "the toughest load securement legislation in the nation." Steel coil haulers have 60 days to be trained and certified in properly securing steel coils. Representatives from U.S. Steel, Nucor, and O'Neal Steel were on hand to see Governor Riley sign the bill into law.

The Alabama Department of Public Safety is responsible for certifying the drivers. The penalties for companies who have improperly secured loads has been increased. Companies can be fined up to $10,000, and drivers can be fined up to $1,000 and one year in jail. Certification is available online.

Alabama is now imposing the same rules on securing these types of loads as the Federal Motor Carrier Safety Regulations. This is a no brainer. Why not make the state laws as stiff as the Federal law? There have been too many incidents without injury. The next one could result in death. We should applaud the legislators and Governor for coming together to enact this safety measure.

Originally posted at InjuryBoard by Jon Lewis

Fire Alarms

Pete Burns — Tue, 06 Jan 2009 14:06:21 GMT

Deaths from fires and burns are the fifth most common cause of unintentional injury and deaths in the United States (CDC 2005) and the third leading cause of fatal home injury (Runyan 2004). In nearly 75% of the cases where a fire fatality occurred there was either no fire alarm present or it malfunctioned.

NFPA Standard 101, Life Safety Code, has been adopted by jurisdictions throughout the United States. The Code requires smoke alarms and automatic suppression systems for apartment buildings higher than three stories or with more than 11 units. Responsibility for maintaining these systems is incumbent on the landlord or property owner.

Functioning fire alarms prevent or reduce fatalities. If you do not have a fire alarm you can get one at a hardware store. If you have a fire alarm make sure it works. If you have a fire secure the fire alarm so you or your attorney can determine if it functioned properly.

Originally posted at InjuryBoard by Pete Burns