Florida Personal Injury Blog - Wrongful Death

11-Year-Old Dies After Pellet Gun Blast To Chest

Eddie Farah — Mon, 23 Nov 2009 23:56:31 GMT

Mitchell "D.J." Maxwell, 11, of Waycross, Georgia, was at a sleep over Friday night with two other boys at the football coach’s home when he was shot in the chest with a .177-caliber pellet gun. He died in the hospital about an hour later.

Our deepest condolences go out to the Maxwell family at this time. So many think that what is essentially a toy can do no harm. Unfortunately we have all found out otherwise.

The boys were reportedly playing a PlayStation 3 video game when one of the boys picked up the loaded pellet gun and pretended to shoot it. Then the next boy, a12-year-old, took over the rifle and pointed it Maxwell, shooting him point blank range in the chest.

Police report that the boys first tried to stop the bleeding themselves before calling the two adults watching television in the next room. No doubt that delayed treatment. Then when the adults called 911 they simply said the boy was unresponsive but he's breathing."

The 911 operator asked if the boy had asthma. A cousin confirmed he did.

An autopsy will be performed Monday in Savannah at the Georgia Bureau of Investigation. The young boy’s mother says she can’t believe her son is gone.

Mitchell Maxwell Sr., D.J.'s father, said he's dealing with pain and frustration, still trying to come to grips with what happened to his son, an honor roll student at Ware Magnet School where he played on the youth football team.

So many questions need to be asked. Did Ware County 911 respond properly? Without all of the information was the ambulance as quick as it needed to be? What was the resonse time?

Did paramedics perform CPR? Did their actions actually hurt the child’s chance of survival?

A .1777 is capable of producing velocities in excess of 900 ft/sec. and is generally used to kill small game or pests on a farm. This is not a toy and should be treated with the same care as a firearm. No doubt the supervision of these children will be a key to the investigation.

Again, our condolences go out to the family for their loss.

Originally posted at InjuryBoard by Eddie Farah

Halloween Safety at the Forefront After Clermont Child Struck by SUV

Angela Pulido — Tue, 03 Nov 2009 10:13:07 GMT

Halloween ended tragically for a Central Florida family when their eight year old son was struck by an SUV and killed while crossing Highway 50 to attend a Halloween party. This is a stark reminder of the need for drivers and pedestrians to be extra careful on Halloween.

According to WESH:

Officials said Mitchell Trompeter was crossing the street with his father's girlfriend to attend First United Methodist Church's annual Halloween event, called Trunk-or-Treat, when they were struck by a white Ford Explorer.

The woman suffered minor injuries.

"He was struck along with another family member," said John Johnson, of the Clermont Police Department. "He was pronounced dead at the scene and the other family member is being treated at Southlake emergency room."

Children are more than twice as likely to be killed by a car while walking on Halloween than any other night of the year, according to Safe Kids USA. More than 540 kids under age 14 are killed in pedestrian accidents each year. In an analysis of deaths from 2002 to 2006, the group found an average of 2.2 children are killed in pedestrian accidents from 4 to 10 p.m. on Halloween, compared with one child every other evening at the same time.

According to SafeKids, Halloween is consistently the most dangerous day of the year for kids to walk. Kids are at greater risk on Halloween simply because they're more likely to be walking after dark, sometimes without their parents around. Additionally, Masks can make it hard for youngsters to see around corners, and dark costumes can make it hard for drivers to spot them.

Drivers should be more cautious on Halloween. They need to slow down, turn lights on and be prepared that there will be more kids out. Most importantly, they need to understand that children are generally unpredictable. Unlike adults, children are more likely to dart out between cars, especially when excited. That makes it more important than ever for drivers to avoid distractions, such as cellphones and texting, and of course, driving under the influence.

In Florida, drivers have a duty to keep a proper lookout for children around streets and highways. In fact, there is a specific standard jury instruction on the subject which states:

Duty of Motorist Toward Children

A motorist must exercise reasonable care to guard against the unpredictable and erratic behavior of children on or near the street or highway if he knows or should know of their presence.

Originally posted at InjuryBoard by Angela Pulido

Missing Children and The Technology That May Find Them

Eddie Farah — Sun, 25 Oct 2009 23:28:46 GMT

According to federal statistics, there are about 115 child abductions by strangers every year in this country.

Unfortunately this week we had another in the Jacksonville area. The community of Orange Park is in shock following the abduction of 7-year-old Somer Thompson who was walking home from school. By Wednesday, two days after her abduction, her body was found discarded in a Georgia landfill.

Somer and her family are in our prayers. Nothing could be worse.

The first 24 hours after a child goes missing are crucial for finding her and entrepreneurs have been frantically working to come up with devices that allow us to track our children, similar to a way we track vehicles.

Many people think that microchips, put under the skin, help you find a child. But when put into our pets, they allow shelters to run a scanner and obtain information on the owner. They are not tracking devices.

The VeriChip Company makes VeriKid, used in Mexico where they put scanners in public places kidnapped children may be. VeriChip was primarily developed to hold a patient’s medical information and it does not contain a transmitter and is not satellite-enabled.

Wherify GPS Personal Locator combines GPS and digital wireless technologies to pinpoint a wearers position within a few feet. Parents can view satellite or street map or call an 800 number. Cost is $800 and $30 a month to monitor. Parents lock the bracelet onto the child’s wrist, which could be removed by a perpetrator.

Amber/AlertGPS is a small gadget that tells parents where their child is at all times. It features a button you child can push when they are in trouble sending out an SOS signal to five preselected people on their mobile phones and email addresses. The little square is placed in their pocket or backpack. It can also be used for speeding teenagers.

Again it's not cheap. At a cost of $379 with tracking plans ranging from $10 to $60 a month, it’s a little too costly for most parents.

GPS T80G Tracking Watch calls itself the world’s smallest watch. It contains a built-in GPS and looks like something a child would watch. It too comes with preset areas and sends out an SOS when the child leaves the area.

Lok8u is a real watch that tells time. If the watch is forcible removed from the child’s wrist an alert with location information is immediately sent to the parent’s cell phone. Parents can set up safe zones for the child. The cost is $200 with a $10 monthly monitoring fee.

There have always been bad people in the world and the community is on alert hoping and praying that this perpetrator is found soon. More than 1,000 tips have been called into investigators, but the identity of the bad guy is still a mystery.

Too bad he doesn't have a GPS device.

Maybe someday reliable and affordable technology can help us find missing children quickly. But today many parents are just relying on keeping them a little closer.

Originally posted at InjuryBoard by Eddie Farah

Protecting Your College-Student from Alcohol

Mark Willingham — Wed, 07 Oct 2009 10:50:45 GMT

We tell our college-bound (or college attending) children to be careful. We tell them not to drink. We may even tell them that if they must drink, always ride with a designated driver. Yet, 1,700 of our sons and daughters die each year and another 600,000 are seriously injured in alcohol – related incidents at college. Many of our children are the victim of sexual assaults and more still suffer academically as alcohol consumption interferes with their studies.

Is this the preverbal right of passage? Is this the experiential transition to adulthood that college students see as their birthright? More importantly, are the resulting alcohol related deaths, injuries, assaults, unprotected sex after drinking, and impaired driving crashes that come from youthful alcohol abuse part of the college experience you envisioned for your son or daughter? As the father of two children who managed to survive their college experience, I am sure it is not.

What can you do to help your children survive their college experience? Of course, you can provide them with guidance and “pearls of wisdom.” Parents can have a significant impact on their children’s drinking by setting expectations and reminding them on a regular basis of those expectations. Too often, however, college students fail to heed their parent’s advice. After all, they believe they are 10 feet tall and bulletproof. Unprecedented freedom and unlimited drinking opportunities are often temptations too great to ignore. Another alternative is to help ensure that their environment is as safe as possible.

Many universities, including public universities across the country, have bars on campus. This seems counter-intuitive when the majority of students attending the university are under the age of 21 and when few students over the age of 21 live on-campus. Logic suggests that at least some of these bars may rely on underage students to help pay the bills. What can you do to reduce the risk these bars present to your son or daughter? You can ensure that these businesses run properly. A bar on campus has an even greater obligation to prevent the sale to and consumption of alcohol by persons under the age of 21 because of the enhanced risk of underage sales caused by their proximity to underage students. Ask the university administrators to outline the responsible retailing practices utilized in these businesses. Make certain that on-campus establishments utilize effective alcohol service policies, practices, employee training, and management systems to prevent the sale and service of alcohol to minors.

Look at the advertisements posted on the bulletin boards, the walls of campus buildings, and on the columns of the colonnade. You may be surprised to see that on many campuses, almost all of these advertisements are for local bars. These bars are advertising in an environment where the vast majority of their target audience is not legally entitled to purchase their product. Advertisements such as these not only encourage underage drinking by offering all-you can-drink, drink-till-you-drop, free drinks for females, and low price drink specials, they also set a pro-drinking tone on campus. Encourage university administrators to restrict advertisements for bars and to restrict ads featuring all you can drink, gender based, and other “specials” designed to encourage over-consumption. University officials have the right to limit advertisements placed on their campuses. Remind them that consumer protection laws are available to restrict advertisements directly primarily at an audience that is precluded by law from purchasing the product.

On most campuses, local bars run shuttles to and from the campus to pick up students wishing to visit their establishments even though the vast majority of on-campus residents are under 21. Encourage university administrators to limit this practice. Party busses trolling through campus creates an unreasonable inducement to drink. Motivate the university to interact with the bars surrounding campus to implement responsible drinking practices. University officials can provide training resources and encouragement to establish safe alcohol service policies and practices in these establishments, which will prevent underage and youthful abusive drinking. For example, university administrators can reduce dangerous drinking practices in off-campus establishments such as the service of twenty-one shots on a student’s twenty-first birthday and drinking games like the ubiquitous beer-pong by working with off-campus bars to encourage acceptable practices. University officials can also utilize community and legal pressure when encouragement fails.

On average, 75 young men lose their life in alcohol – related fraternity hazing or initiation incidents each year. Others die from non-hazing alcohol-related activities. While fewer young women die while engaged in sorority focused alcohol-related activities, many die nonetheless. Members who are over 21 rarely live in the house and occupy positions of leadership. As a result, underage chapter members are left in charge of regulating the alcohol consumption of fellow underage members and pledges. The university’s interfraternity council office can tell you which fraternity or sorority has received alcohol use violations. This information can help you and your son or daughter make pledging decisions. Encourage university officials to require that each house have a house father or mother who will be present at all social events. Contact the fraternity or sorority’s headquarters and insist that national representatives visit the house on a regular basis enforcing fraternity or sorority alcohol policy.

Finally, insist that university officials promote alcohol-free sporting events. These range from prohibitions on alcohol advertising in and around sports stadiums to prohibiting the distribution of free alcoholic beverage samples to students at the event. Encourage the university to assign police resources to pre-game tailgating to prevent underage and youthful abusive drinking. Suggest the university breath test students under the age of 21 and those who have been ejected previously for alcohol offenses before allowing them into the stadium as the University of Minnesota does. Encourage students to come to the games sober. They will have a better time and will be safer at the game and afterwards.

Most university administrators understand the physical, emotional, and intellectual harm that comes from underage and youthful abusive drinking and want to reduce its impact in their communities. Your encouragement is often all they need to move forward with effective policies and restrictions.

Maj. Mark Willingham, www.alcoholsolutions.org

Originally posted at InjuryBoard by Mark Willingham

Dram Shop Laws - Effective Elements for Reponsible Alcohol Retailing

Mark Willingham — Tue, 08 Sep 2009 16:08:37 GMT

A foreseeable and preventable tragedy unfolds several times a day somewhere in the United States. Over fifteen thousand people are killed and thousands more are seriously injured in impaired driving crashes in the United Sates each year. Even more shocking is that half of these deaths and injuries can be attributed to drivers who were coming directly from a beverage license premises where they were over-served or allowed to over-consume alcohol.

Beverage alcohol is the only universally available consumer product that has the capacity to cause changes in the consumer’s emotional state, his or her cognitive ability, gross and fine motor skills, and can diminish the drinker’s ability to make rational decisions. Beverage alcohol is widely sold and consumed in businesses that are primarily accessible through the use of personally operated vehicles creating a reasonable expectation that many customers will also drive those vehicles away from the bar or restaurant. Many will be under the influence of the intoxicating effect of the product and unable to safely operate those vehicles. At least 80 million trips are made annually in the United Sates by drivers with a BAC over .08.

The business model under which the alcoholic beverage industry operates can be antithetical to the elements of responsible retailing. In many cases tips; a significant part of servers’ income, come from “good service” which often equates to heavy pours of alcohol, frequent replenishment, and a wink and a nod at increasing intoxication levels. Beverage retailers often utilize questionable promotions, two for one or all you can drink specials, for example, to gain a competitive advantage or to maintain marketing parity with other retailers. The choices bar owners and bartenders make in over-serving their guests often eliminate the choices their guests might have in moderating their drinking behavior.

The decision to have the first, second or perhaps the third drink rests solely with the drinker. At a certain point, however, the drinker loses his or her ability to make rational decisions about further alcohol consumption. The drinker’s ability to engage in appropriate behavior and make rational decisions is diminished. It is a truism worthy of a scientific designation; the more alcohol one consumes, the lower one’s ability to assess their own intoxication and assess their own ability to safely operate a motor vehicle. This most certainly creates a “Catch 22” logic model in which the person the retailer often believes responsible for determining whether their faculties are impaired becomes more and more impaired with each drink the retailer serves.

A beverage license is a privilege issued by the government. Its issue and retention is conditioned on the licensee’s agreement to act in the public’s interest. Responsible retailers provide an inviting and enjoyable hospitality experience with alcohol service as an adjunct to that experience. A responsible retailer’s obligation under that mantle is to prevent patron intoxication. Unfortunately, not all beverage retailers act in a responsible manner. Not all beverage retailers serve alcoholic beverages with the goal of providing hospitality while preventing patron intoxication.

Laws exist in every state except Florida and Nevada that place criminal and/or administrative responsibility on the bar or the bartender/server to monitor the behavior of the drinker and their consumption of alcohol. Once a drinker reaches the point where he or she reaches various levels of intoxication, and therefore, loses the ability to make rational decisions, responsibility for insuring the drinker’s safety and those the drinker may harm, shifts to the retailer through criminal and/or administrative prohibitions.

Thirty-eight states and the District of Columbia have determined that their public policy interests are better served by placing some responsibility for over-service or over-consumption on the alcohol server or the licensee through the civil justice system. These dram shop laws provide a plaintiff legal standing to bring an action against a tort feasor for an alcohol related injury or death. Most instances that bring rise to a civil dram shop lawsuit stem from a traffic crash. Other causes of action, however, relate to homicide, sexual assault, and other incidents where the intoxicated patron loses the ability of self-regulation.

Standards for dram shop lawsuits vary widely among states. Those standards include prohibitions of service to intoxicated, visibly intoxicated or obviously intoxicated patrons or when it should have been known that the patron was intoxicated. One state prohibits service to a drunken person in a criminally negligent manner. Another allows a civil action when the service was to a person clearly intoxicated. Several states require proof that the alcohol service was done in a reckless manner or that the alcohol was provided with reckless disregard to the rights of others. Other states require proof that the patron was intoxicated to the extent he or she presented a clear and present danger to self or other. Florida allows a dram shop action only when the alcohol service was to someone habitually addicted to alcohol. This standard is particularly difficult because alcoholics do not carry or present identification cards identifying them as such and rarely make self-admissions to bartenders.

The phase dram shop is based on a unit of measure popular in Victorian times; approximately 1/8^th of an ounce in our vernacular, and has become synonymous with a prohibition on the over-service of beverage alcohol to a patron or guest. The principal purpose of dram shop laws is to protect the public; and even the drinker himself, from the over-service or over-consumption of beverage alcohol and from the service of alcohol to persons under 21 years of age. This law calls upon beverage licensees and their employees to play a significant role in the enforcement of this important public policy. No other business type comes to mind where the holder of a government license; by acceptance of that license, is required to act as an agent of the state in taking affirmative action to monitor and intercede in the behavior of a citizen/business invitee.

Responsible retailing involves the development and implementation of effective alcohol service policies, practices, employee training and management systems. These elements are the keys to responsible retailing and the prevention of acts and situations leading to a dram shop lawsuit. Conversely, irresponsible beverage retailers do not employ these elements or they have developed ineffective policies, practices, training and management systems that fall below a reasonable standard of care.

Dram shop cases involve an examination of two elements; the fact situation involving the alleged service to an intoxicated patron or service to a minor and an examination of the premise’s alcohol service practices, polices, training and management systems, which allowed the beverage service to occur. In fact, findings related to the insufficiency of practices, policies, training and management also serve as the basis for punitive damages in many states. Beverage retailers simply cannot ignore the dangerous nature of these products and sell them as those the danger did not exist.

Examination of the fact situation can demonstrate that the retailer served an intoxicated patron. The drinker’s self-admission and/or witnesses describing the condition of the patron at the time of alcohol service can be illustrative. Over-service of alcoholic beverages can also be determined through receipts, credit card charge slips and extrapolation of the drinker’s BAC based on his or her personal characteristics such as gender, weight, and the elapsed time. Elapsed time can be determined through witnesses, charge slips, crash reports, and even triangulation of the drinker's cell phone position.

Examination of the business policies, practices, employee training and management systems can support the testimony of the fact witnesses. It can also illustrate the businesses’ alcohol service pattern and practice serving to support a finding of benign neglect or intent. This examination can be done through an assessment of written policies and training curriculum, through depositions of current and past employees, and through observations of current business practices.

Beverage retailers should have written policies that address, at a minimum, the prevention of the sale of alcoholic beverages to persons under the age of 21, including an apparent age that triggers an ID request, acceptable forms of identification, and how to properly examine and verify an ID; and policies to prevent over-service and service to an intoxicated patron including identification of an intoxicated patron, identification of a patron habitually addicted to alcohol, discontinuance of alcohol service and the provision of alternate transportation. When a beverage retailer does not have written policies, application of responsible retailing practices will be inconsistent and will be subject to the interpretation of the individual employees. Servers and bartenders will have no point of consistent reference guiding their actions and behavior. In fact, their interpretation may even vary from day to day without the consistency provided by a written policy. The lack of written policies also limits the licensee's ability to provide effective and consistent oversight and employee training.

The business practices of bars and restaurants should be designed to mitigate the risks presented by the business model, clientele, location, and environment. Beverage licensees have an obligation to prevent law violations regardless of the size of their establishment or their success. For example, happy hour and other gender, price, time, or quantity based drink specials and promotions are legal, however, they contribute significantly to the probability of patron over-service and service to minors. The court will look at these practices to determine if the beverage retailer appropriately scaled their intervention and prevention practices in response to the risks at their business. While many beverage retailers will seek to explain that they were unable to adequately control consumption by minors or over-consumption in their establishment because they had 1000 patrons going to 5 internal bars, dram shop liability does not diminish simply because the business is financially successful. Responsible retailing practices are scalable to meet the risks, if the retailer chooses to utilize them.

A responsible retailer will provide appropriate training to his or her employees and will ensure that the employees understand what is being taught and can apply the information. Training is not a one-time practice. It is unreasonable for a beverage retailer to believe that an hour or two of instruction on responsible retailing practices on the employee’s first day will serve that employee well for the next 5 or 10 years. Training must be ongoing. At the very least, beverage retailers should provide a structured training program to employees two or three times a year and provide mini-courses or shift reminders on a daily basis.

It is critical that bartenders and servers be trained using objective standards to determine if a patron exhibiting signs of intoxication. Beverage retailers will instruct their bartenders and servers not to serve alcohol to an intoxicated patron and then provide the server with outrageous examples of behavior to use as a guide, behaviors that would only emerge when a person’s BAC was already twice the legal limit. Even when the retailer tells the server to watch what they serve the patrons, the licensee will not provide the employees with BAC calculators or BAC charts or even information about standard drink units to help the bartender or server determine the maximum amount of alcohol that could be safely served to that employee in a given period.

Training should include role-play exercises so that servers and bartenders become accustomed to interacting with patrons and asking questions to help them determine whether the patron is of legal age or becoming intoxicated. Unfortunately, many bars and restaurants, including national casual dining chains, invest extensive resources and time in training their employees about menu items and the alcoholic beverages available for purchase and almost no time training a bartender or server to be a responsible alcohol server. Many retailers operate under the false economy that “telling” is easier and less expensive than training.

Management systems, may in fact be the most important aspect of responsible retailing. Without active and knowledgeable management, a beverage premises may be nothing more than a collection of independent contractors serving alcoholic beverages. Servers and bartenders stress those things they perceive to be important to management. If management believes that responsible retailing is important and continually stresses compliance with the law prohibiting service to a minor or service to an intoxicated patron, the servers will stress this as well through their actions. Conversely, if this is not important to management, it will not be important to the servers, regardless of potential criminal penalties.

How can the jury determine if a beverage licensee acted in good faith and exercised the appropriate standards of care to ensure safe service and consumption of alcohol? The jury will look at many issues concerning the operation of the business in making their determination. Did the business utilize appropriate policies, practices and training? Did the manager overrule a server’s assessment of intoxication and subsequently require the server to provide alcohol to intoxicated patrons? Did the manager downplay the importance of appropriate service standards? Did the business value repeat customer visits and high alcohol sales over responsible alcohol service?

The jury will look to see if the business attempted to comply with the law. Did the beverage licensee simply tell his or her employees not to violate the law or did they provide encouragement, knowledge, and tools to empower compliance? Did the beverage licensee provide BAC calculators to assist the bartenders and servers do their job? Did the beverage licensee or manager remind his or her employees what to look for to determine the subtle signs of intoxication before the person was a risk to themselves or others? Did the licensee employ mystery-shopping programs and video surveillance systems to ensure the bartenders and servers were not over-pouring alcohol, and were not ignoring signs of obvious and visible intoxication? These, and many more practices are indicative of responsible alcoholic beverage service.

Dram shop laws provide greater benefits than simply being the basis for civil lawsuits. Dram shop laws contribute to responsible retailing in a way that criminal and administrative penalties prohibiting over-serve and service to minors often cannot. It is an unfortunate fact that many beverage retailers look at misdemeanor criminal charges brought against their servers and administrative action brought against their alcoholic beverage license as a cost of doing business. To many, it is a cost benefit-risk analysis. In fact, these penalties are generally quite modest when they are actually imposed. Criminal and administrative laws against over-serving, when they even exist, are among the most disregarded laws in the country. Even though the bars and restaurants that over-serve and usher their intoxicated patrons out the door and into vehicles represent fewer than 10% of the beverage premises in any community, law enforcement and regulatory agencies either do not have the resources to adequately investigate and prevent these occurrences or do not give over-serving sufficient priority.

At least one large national beverage retailer has determined that their bottom line is better served by settling several wrongful death lawsuits per year rather than implementing effective alcohol policies and employee training which may offend some patrons and cause those patrons not to return. This bean-counter approach to the sale and service of alcoholic beverages is reminiscent of Ford Motor Co.'s decision to weigh the cost of correcting deficient fuel tanks in Ford Pintos against the cost of wrongful death lawsuits. Ford valued each potential death at $200,000 and determined that wrongful death settlements would cost less than investing $11 to correct the deficiency in each fuel tank. It is unfortunate that some members of the hospitality industry have the same perspective and value repeat and happy customers over responsible service practices.

Civil judgments can be significant and can cause change in the way in which alcoholic beverages are served both by the beverage retailer against whom the suit was filed and against other beverage retailers in the community. Their appreciation of the financial risk they face from engaging in irresponsible alcoholic beverage service, in many cases, will have an affect on the policies and practices they employ. The utilization of a civil dram shop law can significantly affect impaired driving crash deaths and injuries.

The use of dram shop laws and the civil justice system increases awareness of the negative consequences of over-service and over-consumption of alcohol because of the publicity that is generated about dram shop cases and their verdicts. Dram shop laws decrease excessive and illegal alcohol consumption by both adults and underage persons by reducing the incidence of lower-price drink promotions (like “happy hours”) which encourage excessive consumption in a limited amount of time and are attractive to underage drinkers. States with dram shop liability have more thorough checks of identification reducing the number of underage drinkers who are able to drink illegally in beverage-licensed premises.

Finally, dram shop laws do not decrease personal responsibility as more responsibility is shifted to beverage retailers. Creating a cause of action against an establishment that engages in over-service of alcohol does not mean that the individual is not also held responsible. Rather, punitive damages for both drinking drivers and serving establishments serve similar purposes – to show that penalties come with these actions and to cause the retailer and server to rethink their practices leading to over-service and over-consumption of alcohol.

Originally posted at InjuryBoard by Mark Willingham

A Family's Liability- when a family is negligent, does the liability extend down the family chain?

Gabrielle D'Alemberte — Mon, 24 Aug 2009 18:24:03 GMT

On July 26^th 2009, Diane Schuler loaded her 2 children and three nieces into her car and hit the road, returning home to Long Island after a weekend of camping. This was 9:30 in the morning. By 1:30 in the afternoon, Schuler, her nieces, one of her children, and three men from another vehicle were dead; killed in a head-on collision after Schuler drove for almost two miles the wrong way down the Taconic Parkway. The most recent toxicology reports from Schuler’s autopsy suggest that at the time of her death she had extremely high blood alcohol levels and had recently smoked marijuana. At this time, prosecutors have declined to file criminal charges, saying that “Diane Schuler died in the crash and the charges died with her.”

In the wake of this tragedy, the families of the three men killed are considering filing a variety of civil suits. They have publically, through the media, condemned her and her family members and said the civil suits are the only way to enforce justice is served. This piece is just a brief examination of what sort of wrongful death suits might be filed, and under what legal theories. The following discussion will assume that Ms. Schuler was in fact drunk at the time of the accident.

Most wrongful death suits are filed under a negligence theory, and this matter will probably not be an exception. Simply put, negligence means that the defendant had a duty toward the plaintiffs to take reasonable precautions to avoid causing injury, defendant failed to take those precautions, and the plaintiffs were actually injured as a result. In the current matter, it seems fairly clear that Diane Schuler was negligent. We all know that driving while drunk is dangerous. Reasonable people, therefore avoid doing it. The more interesting question is who can be sued.

If Schuler was negligent, her estate can be sued. Potentially the company insuring the car she was driving can be sued. The car was actually owned by, Warren Hance, Schuler’s brother, so he might potentially have been liable. This last theory is known as the doctrine of negligent entrustment. It means that if the plaintiff can show that Hance knew, or should have known that his sister was drunk, that Hance may have been negligent in allowing her to drive his car. At this time it does not appear that Schuler had begun drinking before she began driving, so this last theory is unlikely to be a winner.

Schuler’s autopsy indicated that she had ingested at least 10 shots of vodka and had high levels of THC, a metabolite of marijuana, in her bloodstream. This sort of binge drinking is often indicative of a long-term substance abuse problem and attorneys for the families of the three men killed have suggested that Schuler’s family must surely have known of any such problem. If this is so, the question becomes, were those family members negligent in allowing Schuler to drive that day, and should the families of those killed be allowed to recover from them?

This is a question that doesn’t appear to have been previously litigated, and ultimately the answer will come down to how far we, as a society, think duty should be extended. We have laws that hold sellers of liquor responsible for harm caused by their customers, but we don’t generally hold social hosts responsible for damage done by their drunken guests.

If Diane Schuler did have a substance abuse problem, which her family denies, how closely related would a family member need to be in order to be held legally responsible for her behavior? Her husband, surely, but who else? Three completely innocent people are dead here, and their families should receive restitution, to the extent that is possible. However, as a society we need to decide just how comfortable we would be if we personally were held responsible for the actions of our families.

Originally posted at InjuryBoard by Gabrielle D'Alemberte

Mother And Child Drown in Jacksonville Pool

Eddie Farah — Thu, 09 Jul 2009 16:07:47 GMT

There are many questions surrounding the drowning death of a young mother and her baby in an Arlington community pool on Wednesday.

Tiffany Sue Cecconi, 18, and her 18-month-old daughter, Kaylani, were found just after noon in a subdivision pool. The pool area is usually locked. Tiffany was said to be an accomplished swimmer. An unidentified 18-year-old man was found at the scene and hospitalized. He had reportedly ingested a great deal of chlorinated pool water. Investigators will be anxious to talk to him to determine if there was any foul play.

Our condolences and hearts go out to the family of this beautiful young mother and her child. What a tragedy unfolded to lose two such special people.

Neighbors wonder if a lightning strike might have hit the pool as area thunderstorms were occurring. We also understand that the pool was occasionally locked and wonder if there might have been undisclosed dangers around or in the pool area. Also neighbors report that kids break through the locked gates often and swim unsupervised as the pool doesn’t have a lifeguard.

Florida law says the property owner is responsible for any injuries you receive while on his/her property more than 90% of the time. Whether you were an “invitee,” a “licensee” or even a “trespasser,” the property owner generally will have some (if not all) responsibility for any injury you receive while on the property.

Florida has the highest unintentional drowning deaths in the nation for children between the ages of one to four and the third for other ages in the nation. In 2006, there were 72 drowning deaths of children under the age of four and Duval County is among the counties with the highest number of drowning deaths, according to the state department of health.

All of the pieces will be put together here eventually, but in the meantime all we do know is that there were two tragic losses Wednesday. Again, our condolences to the family and friends of Tiffany and Kaylani. #

Originally posted at InjuryBoard by Eddie Farah

Parental Waivers - Should They Be Enforcable?

Eddie Farah — Sat, 28 Mar 2009 01:11:53 GMT

Take a visit to Disney World and parents may be asked to sign pre-injury waivers so their children can participate in boat rentals, horseback riding or any other potentially dangerous activity. SeaWorld uses them too in its Discovery Cove before you swim with the dolphins.

Parental waivers have been standard fare for awhile and are favored heavily by Florida’s tourism industry – a big industry in Florida.

But a recent state Supreme Court ruling determined that parents do not have the right to release businesses from accountability when their children participate in sports, deciding the waivers are basically invalid.

The Florida legislature, with the help of Big Tourism, is trying to remedy that.

Supported by Disney World and SeaWorld Orlando, a controversial bill is making its way through the legislature. It ensures parents can sign pre-injury waivers on behalf of their children so they can participate in sports and they are enforcable.

The move is opposed by trial lawyers for one. The reason is a good one. What if a business is negligent? Don’t you want to be able to make them accountable? Frequently a lawsuit is the only way to do that.

Let’s say a rock wall company has a harness that slips. Or a boat rental company has a vessel that is sure to sink. Do you really want to sign away all of your rights to the American judicial system?

Business owners say plaintiffs can claim any negligence in any injury and that will cost them money to defend themselves. Already Gatorland has had to raise the age limit on its “Trainer for a Day” program from 12 to 18.

Call me crazy, but maybe raising the age of a gator wrestling sport isn’t such a bad idea.

The president of Gatorland agreed during a meeting that if there is gross negligence such as not adequately taping the mouth of a gator shut, that the business should be held accountable.

At last word, the Senate Judiciary Committee has postponed a vote on the measure while they wrestle with the finer points of the cost of responsibility and accountability and whether that may be worth the lives of young people. #

Originally posted at InjuryBoard by Eddie Farah

Jacksonville Link To Killer of Adam Walsh

Eddie Farah — Tue, 16 Dec 2008 23:47:26 GMT

27 years is a long time to look for closure, not that it can ever come when your child is murdered.

Today the Hollywood, Florida police chief announced that the 1981 murder of Adam Walsh had been solved.

Adam was never seen alive after his mother lost him in a mall Sears store. Reportedly the 6-year-old had gone to look at the video arcade just as a 17-year old guard told all of the kids to leave.

Adam’s head was found in a Florida canal two weeks later. His body was never found.

His father, John Walsh went on to become the host of the Fox show, “Americas Most Wanted,” and an advocate for children’s rights and for curtailing the rights of perpetrators, especially pedophiles.

The man named today, Ottis Toole, was a long-time suspect and no surprise.

Ottis Toole came from the Springfield section of downtown Jacksonville. Born in 1947 to poverty, Toole’s father abandoned the family when he was six. Toole claimed to have been sexually abused at an early age, and sent out in dresses by his mother. His grandmother practiced voodoo reportedly. Toole suffered from learning disorders, was illiterate, and suffered from epilepsy.

Toole claims he started murdering when he was 14 years old. Police didn’t know what to believe. Back there was no DNA evidence to make a match, even for the blood found in the trunk of his car after Adam was kidnapped.

Former Jacksonville homicide detective, Jesse “Buddy” Terry says he, along with Walsh, never doubted that Toole killed the boy. Toole had confessed to Terry about the beheading in 1983, even showing Terry where he killed the boy.

“He told us he killed a little boy down South and it made headlines,” Terry told the Florida Times Union in a phone interview.

But Hollywood police thought that Terry coerced the confession and provided confidential information to Toole about the case so he could write a book and gain movie rights to Toole’s life story.

Terry told the Florida Times-Union, he feels with the closing of this case, his reputation has finally been salvaged.

“It’s about time,” Terry, 71, said of the case’s resolution. “We had no book deal or anything else.”

Toole died in prison more than a decade ago, allegedly giving his niece a deathbed confession to the crime. He had confessed to more than 100 murders, many with serial killer Henry Lee Lucas whom he met in a Jacksonville soup kitchen.

“I have no doubt, I’ve never had any doubt,” Walsh always said.

Ironically, the child protection laws that Adam Walsh’s death sparked might have helped intervene in the life of this deranged, mentally incompetent and sexually abused child who became the killer Toole.

As many of the laws now encourage, step in and help a child you see in trouble. You might be averting the creation of a serial killer and save many lives down the line. #

Originally posted at InjuryBoard by Eddie Farah

Florida Slips in Health Ranking

Eddie Farah — Sat, 06 Dec 2008 11:57:00 GMT

Florida used to rank 41^st in states in terms of health, now that number has dropped.

Florida was No. 45 in the latest America’s Health Ranking. That represents a partnership between United Health Foundation, the American Public Health Association and Partnership for Prevention. Statistics in Florida come from the Department of Health.

The drop is at least partially attributable to the higher rates of uninsured people in Florida, and high incidences of infectious disease. On the flip side for positively affecting health is a low rate of air pollution and obesity. Also the number of folks who smoke has dropped by 8 percent.

Particularly upsetting is the number of children in Florida who live in poverty- that increased by 23 percent. And if you are black, you are twice as likely to have a low birth rate baby, than if you are a non-Hispanic white.

States were ranked by 22 health measures from infant mortality, to heart disease deaths, immunizations, violent crime, among other criteria. Unfortunately access to health care also falls along racial lines with 43.8 percent of Hispanics lacking health insurance compared to almost 18 percent of non-Hispanic whites.

While the healthiest state was Vermont followed by Hawaii, the states ranking lowest in the survey are all in the south - Texas, Tennessee, South Carolina, Mississippi and Louisiana.

The purpose of the report is to stimulate action by individual communities and public health professionals to improve the health of the population of the US. #

Originally posted at InjuryBoard by Eddie Farah