Arizona Personal Injury Blog - Workplace Injuries

Should Arizona Reconsider Statutory Immunity for Negligent Freeway Maintenance?

Staff Writer — Fri, 03 Aug 2007 10:13:36 GMT

A couple of days have passed since the tragic bridge collapse in Minneapolis which led to the deaths of at least five people. The cause of the bridge collapse on I-35W will not be known for quite some time. However, if the I-35W bridge collapsed due to ordinary wear and tear, such a tragedy may have been avoided had the Minnesota Department of Transportation placed a higher priority on bridge repair rather than continuously deferring needed maintenance. According to MSNBC, in 2005, the bridge had been rated by Federal Government inspectors as a step above "intolerable" needing major safety related reinforcements, upgrades or replacement. In 2005, the bridge had been considered

deemed to have met "minimum tolerable limits to be left in place as it is," according to the federal National Bridge Inventory database of inspection records.

Because it supposedly met minimum tolerable limits, it appears that safety and upgrade funds were not prioritized toward repair or upgrade work on this bridge. Two years later, the bridge collapsed. I guess that sometime after 2005, the bridge stopped meeting "minimum tolerable limits to be left in place as it its." At what point did this tragedy become preventable? What money could have been made available to do repair work on this bridge after Minnesota transportation officials received notice of safety dangers in 2005? If such a tragic event occurred in Arizona, would the State be held accountable for its refusal to make highway repairs right away? The answer to this question depends in large part on a review of statutes granting the state and other governmental entities immunity from suits challenging its policy and resource allocation decisions.

In Arizona, public entities may not be held responsible for negligence involving the exercise of fundamental government policy including:

1. A determination of whether to seek or whether to provide the resources necessary for any of the following:
(a) The purchase of equipment.
(b) The construction or maintenance of facilities.
(c) The hiring of personnel.
(d) The provision of governmental services.

Generally this means that if the Arizona Department of Transportation made a reasoned decision and considered yet rejected allocating resources to fix a bridge problem, the State may not necessarily be held accountable for its negligent decisions not to provide resources for construction or maintenance. However, it seems to me that if decisions not to allocate resources toward a particular safety project violate reasonable and sound engineering principles which later prove dangerously fatal, the State should not be immune from accountability for negligence. If the State contracted with a private company to make engineering resource-allocation decisions and the company acted negligently, it would accountable to the victims of its misplaced decisions. Why then should our State receive immunity for the same wrongdoing? I believe it may be time to re-examine the reasons for the legislative grant of immunity to this public entity. I wonder how quickly Department of Transportation officials would allocate monies to road and bridge repair knowing they would be held accountable for any unreasonable delays.

With current immunity protections in place, the Arizona Department of Transportation in its Traffic Engineering Policies, Guidelines and Procedures manual appears to prioritize safety projects by comparing the costs of safety countermeasures to the costs of fatalities, injuries and property damages. It suggests that each person's life should be valued at $3,000,000 and considers safety projects purely mathematically to minimize costs. Based on the agency policy manual, it will not commit to roadway safety countermeasures or modifications unless the costs of all fatalities, serious injuries and vehicle damages exceed the costs of safety improvements. Apparently the Arizona Department of Transportation is willing to accept death and injury on our state's roadways so long as the aggregate costs for deaths, injuries and vehicle property damages do not exceed the costs for bridge repair, installation of guard rails or other safety improvements. Does this mathematical justification for acceptable death and injury sound reasonable? Do you believe the State should place a value on life and only commit to safety projects when the safety project costs less than the total costs of lives for which it values at $3,000,000 per person? Does this economic model exclude social and non-economic costs of death, injury, property loss and disfigurement? What would happen in Arizona if a highway bridge collapsed. Applying the Arizona Department of Transportation economic formula to the bridge collapse tragedy which occurred in Minnesota, if the bridge repair costs exceeded $15,000,000, representing how the department values the loss of life of five people, policy-makers would accept such losses in Arizona. This is true even if decision-makers received notice of structural problems a few years prior.

Perhaps removing immunity protections for the decisions made by our state transportation department officials will ensure that freeway safety maintenance and upkeep projects occur quickly and efficiently and that the costs of safety improvements will not be compared to the cost of human life before considering particular hazard elimination projects.

What do you think? Should the Arizona Department of Transportation continue to receive immunity protection from various lawsuits against it? Are you satisfied with the safety decisions made and roadway projects undertaken by our Arizona Department of Transportation? Should the Department set as a goal the elimination of all hazards on our roadways or are some hazards, deaths and injuries simply acceptable? I'd like to hear your thoughts.

Originally posted at InjuryBoard by Staff Writer

Lawyer Advertising

Staff Writer — Sun, 19 Mar 2006 09:09:12 GMT

Do you select your attorney on the basis of which animal mascot the lawfirm included in its advertising slogan? Are you comfortable hiring lawyers who choose a flying animal or a four legged creature as a mascot? Do you make a decision to hire a lawyer on the basis of advertising? Fees? Experience? What criteria do you use to evaluate who to hire for your legal needs?

What resources do you rely upon to choose a lawyer? If you need legal help, do you know where to go? Some Arizona specific recourses include the Arizona State Bar Association, or the Maricopa County Lawyer referral service. Nationally, the American Bar Association contains some useful information about lawyer referral resources.

Once you do hire an attorney, the Arizona State Bar Association published a brochure containing information about your rights and responsibilities as a client. No matter if you choose a firm with an animal mascot, a firm with a glitzy Hollywood spokesman on television or a firm which relies almost exclusively on word of mouth for referrals, these rights and responsibilties may be of some assistance:

CLIENT RIGHTS AND RESPONSIBILITIES
Client Rights: When you hire a lawyer, you are entitled to one who:
Will represent you diligently and ethically.
Will be capable of handling your case. You are encouraged to ask about the lawyer's education, training and experience before hiring him or her. The lawyer will inform you periodically about the status of your case and give you copies, if you request, of legal documents prepared on your behalf.
Will charge you a reasonable fee and tell you in advance the basis for that fee. You are encouraged to ask questions about the proposed fee. You should request written confirmation of your fee agreement whether it is a contingent fee, based on a hourly rate, or some other method.
Will provide an estimate of the costs and legal fees. You should inquire as to the potential costs if your case is lost. Before paying a bill, you are entitled to a written statement which you are paying.
Will keep statements and information which you reveal in the course of your relationship confidential.
Will give you the right to make the ultimate decisions on the legitimate objectives to be pursued in your case, including deciding whether or not to settle your case.
Will show you courtesy and respect.
Will exercise independent professional judgment on your behalf, free from compromising influence.
Client Responsibilities: When you hire a lawyer, you have the responsibility:
To give the lawyer a truthful and candid recitation of the facts surrounding your case. A lawyer can only help a client when there has been full disclosure. You have the responsibility to promptly notify the lawyer of changed circumstances.
To give the lawyer prompt responses to reasonable and necessary requests.
To understand that the lawyer has many other clients and to realize that other clients are equally deserving of the lawyer's time and efforts.
To set appointments in advance rather than showing up at the office and expecting to be seen.
To treat the lawyer with courtesy and respect.
To communicate in a timely manner with the lawyer if you are unhappy regarding the representation and the reasons why.
To refrain from asking the lawyer to engage in behavior which is inappropriate, unethical, unprofessional, or illegal.
To be on time for all legal proceedings.
To pay the agreed upon lawyer's fee in a prompt manner. If unforeseen circumstances arise concerning payment, you should inform the lawyer of the reasons for nonpayment. If any billing entries are in question, you should give immediate notice to the lawyer.

Hopefully these resources may assist in your search for an attorney and provide information about your rights and responsibilities when you hire one. I am curious about what other resources you consider in the course of choosing an attorney? I look forward to hearing your responses.

Originally posted at InjuryBoard by Staff Writer

Dangerous Conditions on Construction Sites

Andrew Defusco — Wed, 01 Mar 2006 14:15:11 GMT

This is one record, like Joe DiMaggio's hitting streak and Wilt Chamberlain's single game scoring record, that we could all hope would never be broken.

Unfortunately we were wrong.

Last year, 13 workers died and one was critically injured in construction accidents in Southern Arizona, according to a recent article in the Arizona Daily Star. This broke the old record for 13 deaths/catastrophic injuries in Southern Arizona, set in 2000. Statewide, 20 workers were killed in construction accidents last year -- in the last three months of 2005 alone. So why the increase in construction accidents in Arizona last year?

We are still in a boom market for the construction industry, with everything from residential, commercial and industrial construction projects on the rise. With increased demand, there is additional pressure on construction companies to either increase employee workload, hire and quickly train inexperienced workers, or a combination of the two. Combining productivity pressure with insufficient or inadequate safety programs creates an unsafe environment and a recipe for disaster.

Wnen a construction worker is injured on the jobsite, what remedies are available to provide compensation for injuries? Ordinarily worker's compensation provides protection to the injured worker and provides all necessary and reasonable medical care. Workers compensation does not provide any compensation for pain and suffering and provides only limited compensation for loss of earnings. When an employee is injured on a jobsite, the nature of the hazard may suggest that another employer, subcontractor or even the site's general contractor may bear responsibility for the worker's injuries.

Under Arizona law, general contractors owe a duty to provide a reasonably safe work environment for ALL workers, including employees of subcontractors. Better oversight by general contractors over the work of its subcontractors, the fostering of clearer communication among the various subcontractors on a jobsite, and strict adherence to OSHA regulations regarding the safe use of equipment and avoidance of hazardous conditions will lead to safer work environments and fewer injuries and deaths on construction sites throughout Arizona.

Originally posted at InjuryBoard by Andrew Defusco

Arizona Punitive Damages Legislation

Staff Writer — Wed, 15 Feb 2006 10:36:45 GMT

Each year various members of the Arizona legislature introduce bills concerning all aspects of "tort reform." This year is no different. I recently learned that Arizona State Representative Jennifer Burns introduced a bill to prevent Plaintiffs from recovering punitive damges but not to outlaw puntive damages awards in their entirety. Rather than outlawing punitive damages, Representative Burns' legislation would direct that all punitive damages awarded by a jury be placed in a state fund for the benefit of health education services.

Throughout the years I have observed our Arizona legislature attempt to cut back on the rights of victims to seek punitive damages arising out of intentional conduct by a wrongdoer. This is the first time I can recall the legislature seeking to enrich the State of Arizona anytime a jury awards punitive damages. While the concept of funding health related programs may be a good one, I am afraid that in practice, requiring that punitive damage awards be deposited with the State for the benefit of health programs presents a host of unintended consequences. For example, how would these changes affect the ability of parties to settle their lawsuit knowing that if a jury awards punitive damages, Plaintiffs will never see any of these monies? Does this mean that a Defendant would be discouraged from participating in meaningful settlement negotiations and would offer artificially low settlements? Why should the State mandate the use for punitive damages awards? What if Plaintiffs who have suffered harm have a desire to see the punitive damages award used for other socially responsible causes other than health related programs? Also, will the State have new incentives to avoid licensing and oversight responsibilities in times of fiscal shortfalls knowing that budget shortfalls in certain health-related program areas could be made up by punitive damage assessments?

Is this bill another attempt at unwarranted government interference in our jury system or is it a good start at fixing a problem with allegedly outrageous jury awards? I for one think that government should stay out of this decision making process and if anybody should benefit from a punitive damages award, it should be the victim of outrageous conduct justifying such an award and not our government. Lastly, punitive damages awards are usually lower than an initial jury award and usually take a long time to wind their way through our judicial process before a Plaintiff can recover anything. In reality, the need for punitive damages reform in my opinion is exaggerated. What do you think? Click here to see the House Bill 2862, the proposed punitive damages reform bill.

Originally posted at InjuryBoard by Staff Writer

Building Partially Collapses in New York

Staff Writer — Mon, 09 Jan 2006 12:02:45 GMT

Two construction workers were injured when the building they were working in partially collapsed, with the first floor falling into the basement. The construction accident occurred just before noon this morning.

The full AP release:

NEW YORK (AP) - The first floor of a building under construction collapsed into the basement late Monday morning, sending two construction workers to the hospital, authorities said.
The incident happened at 331 E. 51st St. just before 11:30 a.m., the Fire Department said. The men were taken to New York-Presbyterian Hospital. There was no immediate word on their conditions.

Originally posted at InjuryBoard by Staff Writer