Injuryboard Commentary - wrongful death

Wrongful Death Suit Reinstated in Virginia (VA) Against Parents Hosting Visting Teen

Rick Shapiro — Fri, 06 Nov 2009 18:41:31 GMT

Courts and juries can find adults who have temporary supervision or custody of children liable for injuries to those children even when the harm resulted from the actions of someone other than the supervising adults.

Summarizing this Nov. 5, 2009, ruling by the Virginia Supreme Court in a single sentence is difficult. As is all-too clear above.

What the ruling means for babysitters, parents who allow their children's friends to sleep over or spend other long periods visiting, or teachers and care providers is that they can be found to have a legal and civil duty to protect other people's children even when the children are not physically with the babysitter, host, teacher or caregiver.

Virginia's High Court voted 5-2 to support this interpretation of adults' child care responsibilities and liability when partially reversing a lower court's ruling that Richmond-area parents could not be held liable for the death of a North Carolina (NC) who was spending the night at their home.

The lawsuit stemming from the car crash death of 14-year-old Jaimee Elizabeth Kellerman now returns to a Virginia circuit court. In 2005, Kellerman died when a car she was riding in and which was being driven recklessly by 17-year-old Nathan DeFrank ran off a rural highway and hit a tree. Kellerman had permission from her parents to sleep over at the home of Paul and Paula McDonough. But, according to a Daily Press report, Kellerman's parents had specifically asked the McDonoughs not to let Jaimee ride with "boys with cars."

The Kellerman family is seeking $15 million from the McDonoughs in a wrongful death suit for being negligent in protecting Jaimee.

I cannot speculate on the outcome of the reinstated lawsuit, but I can say the Virginia Supreme Court has affirmed a high degree of liability for responsible adults in protecting children from the actions of other people. Broad determinations of liabilities are not rare, especially in regards to wrongful death claims. In light of this, and particularly the ruling in the Kellerman case, I can only advise adults asked to supervise minors (i.e., anyone under 18 years of age) to exercise the greatest care in ensuring those children's safety--a rule nearly all parents already follow but one which this tragic case underscores..

About the Editors: The Shapiro, Cooper, Lewis & Appleton personal injury law firm, whose attorneys work out of offices in Virginia (VA) and North Carolina (NC), edits the injury law blogs Virginia Beach Injuryboard, Norfolk Injuryboard, and Northeast North Carolina Injuryboard as pro bono services.

EJL

Originally posted at InjuryBoard by Rick Shapiro

3.8 million Toyotas Equal 6th Largest American Recall:Too Late For Four Killed

Mike Bryant — Tue, 03 Nov 2009 23:32:44 GMT

Apparently two years ago there were five complaints from owners of the 2007 Lexus ES 350 about unintended acceleration. It took them a little while, but after an apparent "thorough investigation" Toyota and the National Highway Traffic Safety Administration have now recalled the all-weather floor mats in 2007 and some 2008 ES 350s as well as their sibling, the Toyota Camry. Admitting that the floor mats could jam accelerators on 3.8 million Toyotas.

If they had acted faster would they have saved the four people in California who were killed in a recent crash involving a Lexus with a stuck accelerator pedal? Do you think it was the complaints of the potential litigation that finally caught up with Toyota and made them do something? Maybe, tort deform damage caps might have gotten them to act faster? You have got to be kidding me or maybe you own stock in Toyota.

The recall will affect 2007-2010 model year Toyota Camry, 2005-2010 Toyota Avalon, 2004-2009 Toyota Prius, 2005-2010 Tacoma, 2007-2010 Toyota Tundra, 2007-2010 Lexus ES350 and 2006-2010 Lexus IS250 and IS350.

For more information, consumers can contact the National Highway Traffic Safety Administration's hotline at (888) 327-4236, Toyota at (800) 331-4331 or Lexus at (800) 255-3987.

If you or a family member is injured by a product, you need to get immediate medical care. If there is a significant affect or injury, you should contact an attorney concerning the problem. Early investigation can include the collection of product, checking recall alerts, and the proper notifying of those who caused the problem.

Originally posted at InjuryBoard by Mike Bryant

Entertainer Impaled by Gate Operated by Indian Wells, Widow Sues City

Paul Kiesel — Tue, 03 Nov 2009 20:30:46 GMT

From The Desert Sun:

A trial date for a case involving the death of a local entertainer is expected to be set by the end of the year, officials said.

Victor Leon, 63, of Palm Desert died Jan. 12 after he was impaled by a gate that pierced his car as he was driving through Indian Wells.

Leon was executive producer of Musical Chairs, a local tribute concert series featuring music by great American songwriters.

The incident occurred at the corner of Miles Avenue and Highway 111, near the construction site for the Indian Wells Crossing project.

Leon's wife, Elizabeth Leon, filed a lawsuit June 15 against the city of Indian Wells, the Coachella Valley Water District and two Illinois-based companies — Miles Lodge LLC and Jerson Investments LLC, demanding a jury trial.

A court hearing for the case was scheduled Oct. 7, but was canceled.

The next hearing date is set for Dec. 14, where it is expected that the judge will set the trial date, said Paul R. Kiesel, the Los Angeles-based attorney representing Elizabeth Leon.

“The investigation is ongoing to determine why this tragedy happened,” Kiesel said.

Miles Lodge LLC and Jerson Investments LLC are listed as owners of the property where the gate was, Kiesel said Friday.

Indian Wells and CVWD, however, had a legal easement that allowed employees to have access to and control of the area as well, he added.

According to court documents, the listed defendants “negligently designed, installed, maintained, controlled and operated the gate” that subsequently swung out into Miles Avenue, impaling Victor Leon.

Click here for the rest of the article.

Originally posted at InjuryBoard by Paul Kiesel

DWI La-Z-Boy Isn't - Trademark Foul Kills E-Bay Auction at $43,500

Joe Crumley — Tue, 03 Nov 2009 08:37:39 GMT

E-Bay officials pulled the auction of the infamous DWI La-Z-Boy, aparently after the LaZ-Boy company claimed a trademark violation.

Proctor police chief Walter Wobig got a fax Monday morning from a La-Z-Boy representative, and had what he called a "congenial" phone conversation later. He thought the issue was done, but later in the day noticed the auction had been pulled just 11 hours short of ending.

The Star Tribune reported:

The [LaZ-Boy] representative told the chief to just make sure the eventual buyer doesn't continue referring to it as a La-Z-Boy chair. "And good luck with the sale," he said, according to Wobig.

But all went afoul by nightfall when the chief noticed the chair auction was off the website. Earlier in the day, Wobig said he tried to e-mail and call the folks at eBay but said there was no way to do that.

All he can do now is repost the listing without the trademark name, begin the bidding at $500 once again and hope bidders will drive the price to former heights.

An autographed photo of the former owner, Dennis Anderson, sitting in his chair, fetched $710 on eBay. Anderson's family and friends said the money will be used to help pay legal fines and legal fees after he crashed his recliner into a parked car while driving drunk.

Wobig is a little tired of the whole thing:

Hoping that bidding will begin again today, Wobig said he'll end the auction after three days instead of the original five. He has fielded calls, letters and e-mails from some who love the auction idea and others who "want to string us up for taking the man's chair away."

"In the past four days I've done nothing but dealt with this thing," he said. "I can't go through that again."

The chair is agian up for auction, but the bids have not yet approached the $45,000 that was achieved on the first auction.

Originally posted at InjuryBoard by Joe Crumley

Another Motorcyclist Killed After Bike Leaves The Road

Mike Bryant — Sun, 01 Nov 2009 22:58:00 GMT

Seems like there have been a lot of single bike collisions with resulting deaths this year. The St Cloud Times had the story of another one today:

A Clearwater man died this afternoon when his motorcycle went off Minnesota Highway 24 north of Annandale.

Our sympathies go out to his family and friends. Hopefully, the investigation will uncover what happened and help with the prevention of more loses like this.

While the numbers for motor vehicle deaths has dropped over the past two years, deaths from motorcycles have tripled, from a record low of 24 in 1997 to recent high of 72 in 2008. That is the highest number of fatal crashes in past 24 years. So far this year is on pace to meet that number. The steady rise in motorcycle crashes has become a top concern of the U.S. Department of Transportation, said Secretary Mary Peters, who broke her collarbone a few years ago when she crashed her Harley-Davidson Road King at 40 mph.

To address the problem, the Transportation Department is developing national standards for entry-level riders and has launched an educational campaign on the importance of wearing helmets and other safety gear. Congress has also become involved, authorizing $2 million to study crash causes.

For every driver and rider it's important that the following be kept in mind:

1. Yield the right-of-way.

2. Start seeing motorcycles.

3. When on a motorcycle, make sure people see you.

4. When just starting to ride, make sure you have the correct training.

The road is big enough for everyone.

A recent Minneapolis Star Tribune editorial got a number of comments after it made the following suggestions to deal with the increase:

Increased training of new drivers.
More emphasis on sober riding.
The Increased use of safety equipment.
Drivers paying more attention on the roads.

The discussion about helmets dominated most of the responses. Clearly, this is one there may not ever be an agreement on, but as to the other suggestions, they really make a lot of sense. Every new driver needs to get the all important training that riding a motorcycle isn't like a bike or a car.

As an attorney who has represented a large number of riders, I've seen the devastation caused by car/bike collisions. As with any death in a Minnesota motor vehicle collision, there are a number of issues that will need to be reviewed. My partner, Joe Crumley, addressed this topic in a recent article for the Minnesota Lawyers Trial magazine. I was interviewed last year on the same topic.

Originally posted at InjuryBoard by Mike Bryant

Great Website For Information About Our Food

Mike Bryant — Sun, 01 Nov 2009 16:21:00 GMT

If you spend some time looking around the Injuryboard website, you will find hundreds of articles about various issues with food. The peanut butter salmonella issue was covered from a number of angles. If you look under the toxic substances tab, you will see the many different issues we specifically have looked at from the Minnesota perspective. Usually, there is death or serious illness involved with the stories.

But, today it is great to be looking at a great website that hopefully will help cut down on the need for future stories. Yet another example of what a difference an administration makes with the way the FDA is handled. We are seeing signs of actual action on food from overseas, forcing companies to pay for hurting people, and information that helps the consumer, instead of taking rights away.

The site has email alerts and an RSS feeder, which will make it easier for people to get information. Hopefully, more and more people will find the site and use it for vital health information.

If you suffer from food poisoning, you need to get immediate medical care. If it continues or there are long term affects, you should contact an attorney concerning the problem. Early investigation can include the collection of samples, checking for health alerts, and the proper notifying of those who caused the problem.

Originally posted at InjuryBoard by Mike Bryant

Truck Spins Out And Kills Two in Otter Tail County

Mike Bryant — Sat, 31 Oct 2009 20:35:00 GMT

Friday afternoon, a truck lost control in the snow and hit an oncoming car head on. The crash occurred early Friday afternoon near the Otter Tail County town of French, about 6 miles west of Fergus Falls. Two people in the pickup,the driver and his mother were killed. Two others in the truck and the driver of the other vehicle were injured.

These deaths, like any other on Minnesota roads is particularly unfortunate considering it comes a month after the Minnesota Department of Public Safety (MDPS) reported that overall the number of highway deaths has been down for 2009 with more than 300 people having died this year in Minnesota traffic collisions. There were 458 deaths in 2008, which was a drop from 510 in 2007. In this tragic case, sorrow for the family of the couple killed goes out.

It's October, but tragedies like this remind us that we are just starting to see snow. It's never to early to be safe and review the winter road tips from DPS and MnDOT :

Always use seat belts.
Accelerate and decelerate slowly on icy/snow-covered roads to retain traction and avoid skids.
Do not use cruise control.
Do not “power up” hills, which may cause wheels to spin. Build momentum before reaching a hill and don’t stop while traveling uphill. Reduce speed before going downhill.
Know your brakes. Keep the heel of your foot on the floor and use the ball of the foot to apply firm, steady pressure on the brake pedal.
Give yourself plenty of travel time. Don’t put your schedule before safety.
Clear snow and ice from vehicle windows, hood, headlights, brake lights and directional signals.
Headlights must be turned on when it is snowing or sleeting.

Most police officers asked say the key is usually to Just Slow Down.

As with any death in a Minnesota motor vehicle collision, there are many issues that will need to be reviewed. My partner, Joe Crumley, addressed this topic in a recent article for the Minnesota Lawyers Trial magazine. I was interviewed last year on the same topic.

Originally posted at InjuryBoard by Mike Bryant

DWI La-Z-Boy Attracts $$Thousands in E-Bay Bids

Joe Crumley — Sat, 31 Oct 2009 11:08:32 GMT

Update here: DWI La-Z-Boy Isn't - Trademark Foul Kills E-Bay Auction at $43,500

_________________________________________

A motorized La-Z-Boy recliner seized by police after being involved in a DWI is attracting large bids on E-Bay.

For details, more photos, and some interesting comments, take a look at my earlier article: Driver Guilty - Drunk Driving a La-Z-Boy?!

The La-Z-Boy was seized from its owner and builder, Dennis Anderson of Proctor, near Duluth, Minnesota. Anderson who was arrested August 31 after leaving a bar and crashing the chair into a car in the parking lot. He had a 0.29 blood alcohol, over 3 times the legal limit, and it was his second DWI. Minnesota law allow seizure of vehicles used in more serious driving while intoxicated offenses.

As of 11:30 PM October 31, the bid was $38,100. The item can be viewed at online aution site E-Bay.

The Star Tribune described the chair:

The chair runs on a converted gasoline-powered lawnmower engine and has a steering wheel, headlights, rear roll bars, a power antenna, stereo and cup holders. It can top out at 15 to 20 miles per hour. Stickers on the back include a National Hot Rod Association logo and one that reads, "Hell yeah it's fast."

All the funds from the La-Z-Boy sale will be kept by the the police, state and the court system, according to the Duluth News-Tribune.

AHow high will the bidding go? Check back here, and I'll update the totals till the auction is finished Tuesday Night.

Anderson is selling an autographed photo of himself sitting in his La-Z-Boy to offset his legal fees, but that offering is getting substantially lower bids. As of 9:30 AM October 31, that bid was "only" $405, but there were apparently problems with those bids. By 11:30 PM, the top bids was $166.

Originally posted at InjuryBoard by Joe Crumley

Family of Jennifer Strange Wins $16.5 Million for Water-Drinking Contest Death

David Mittleman — Fri, 30 Oct 2009 15:34:54 GMT

Thanks to a Sacramento County jury, the notorious case of Jennifer Strange, a young mother of three who died after participating in a radio station’s water-drinking contest, has come to a close. Jennifer’s family will receive $16.5 for their daughter’s 2007 death after the jury found the radio station liable for the actions of its employees.

Sacramento radio station KDND-FM held a contest in January 2007 called “Hold Your Wee for a Wii”, a contest whereby participants were instructed to hold their urine for as long as possible after drinking large amounts of water. Jennifer died of acute water intoxication after consuming nearly two gallons of water. In response, the plaintiff’s attorneys filed the wrongful death lawsuit on behalf of Jennifer’s husband and their two sons, as well as her oldest son and his father.

The plaintiff’s attorneys alleged that the radio station was negligent in holding the contest. However, the defense attorneys countered that Jennifer’s death was her own fault by “contributory negligence”. Nevertheless, jurors ultimately found Entercom Sacramento LLC liable for the actions of its employees at radio station KDND-FM.

Originally posted at InjuryBoard by David Mittleman

Does Having a Company Logo on a Truck Make Them Responsible for the Driver?

Karl Truman — Fri, 30 Oct 2009 15:05:00 GMT

A truck driver runs a red light, hits someone and kills them. There is a logging company who hired the truck driver and has their logo on the side of the truck. The logging company is responsible, right? Not necessarily, says the Indiana Court of Appeals.

The driver had the company's logo on his truck. But, the driver owned the truck, determined the details of the work, did not drive exclusively for the company and was paid by the mile or load.

The court found that the driver was an independent contractor and did not have a duty to the person the driver ran over and killed and was not responsible.

This shows that things are not always as they seem. Sometimes, only through through thorough discovery can you learn the complete facts.

Beatty v. LaFountaine, 896 N.E.ed 16 (Ind. Ct. App 2008)

Originally posted at InjuryBoard by Karl Truman