Washington Personal Injury Blog - Miscellaneous

More Hit and Run Collisions...This Time Bike Versus Pedestrian

Michael Myers — Wed, 25 Nov 2009 08:59:11 GMT

One of the attorneys in our office rides his bike to work every day. He doesn't own a car. He has some pretty strong opinions about Seattle drives (especially bus drivers).

But drivers aren't the only ones charged with obeying the traffic laws. Bicyclists have to follow them too.

King-5 News recently reported about a six year-old Seattle boy is home who may require reconstructive surgery after being struck by a hit and run bicyclist.

Noni Echo-Hawk-Lopez is a reserved boy to begin with, his parents said, but now he's not even allowed to talk because of a fractured and swollen jaw.

Doctors at Harborview Medical Center "had to completely wire his jaw shut," said his mother, Abigail Echo-Hawk.

Fortunately in this case the bicyclist was detained by witnesses before he could get away.

I'm unaware of any insurance companies that sell liability policies for bicyclists (the same way liability policies are sold for motor vehicles). But there are two valuable sources of insurance coverage if you're injured by a bicyclist: renters and homeowners insurance. Both cover negligent acts by an insured and it may well be that the rider who injured Noni lives in a home, condo or apartment where there is coverage.

Originally posted at InjuryBoard by Michael Myers

Kitsap Naval Base Injury Highlights Safety Issues

Michael Myers — Wed, 25 Nov 2009 08:27:59 GMT

Almost all construction site injuries are preventable. The Washington Department of Labor and Industries has promulgated an extensive and detailed set of rules regarding construction site safety. Contractors who follow these rules have few if any injured workers. Those who don't have significantly more on the job injuries.

KOMO News reported this morning that:

[A] 24-year-old contractor for Tutor-Saliba was working with a team moving concrete pylons when she somehow got trapped by one of them, injuring her legs, said a shipyard spokesperson.

The general contractor on a construction site is responsible for making sure that its workers are safe and that the workers of its subcontractors are safe. While the workers compensation statute limits claims that workers can bring directly against their employers, employees of subcontractors have the right to sue general contractors for failing to follow safety guidelines and provide a safe workplace.

There are numerous regulations in the Washington Administrative Code designed to prevent crush injuries. It is unclear whether they were followed at the Kitsap Naval Base.

Originally posted at InjuryBoard by Michael Myers

Animal attacks

Don Jacobs — Thu, 19 Nov 2009 12:14:00 GMT

Who out there isn’t a dog lover? America seems to have a love affair with pets. Pet food and supply stores have become national chains occupying huge warehouse stores set up to supply us with every need or whim for our pets. The latest phenomenon is the doggie day care facility where you take your pet to spend the day with other dogs while you go off to work. Heck, mine even has a web cam so you can check on your dog’s activities during the day. We truly are a nation obsessed with our pets. So what happens when one of our pets attacks someone? Animal bites can result in very serious injuries. Every year hundreds of people in Oregon and Washington visit emergency rooms because of attacks by dogs. Are we automatically responsible when this happens? What if the dog has never bitten anyone in the past and has always had the sweetest temperament? Washington State has enacted a strict liability law for dog attacks. It used to be that the owner wasn’t responsible unless they had knowledge of the dog’s dangerous propensities. Long referred to as the “first bite rule”, a dog owner wasn’t on the hook until there was a record of the dog biting someone in the past. In order to recover damages from the owner you had to prove they were negligent in allowing the dog to interact with people, given his history of biting someone in the past. This is no longer the case. Now an animal owner is strictly liable for his dog’s behavior. No matter how sweet the dog has been the past. As long as the person who was bitten was legally entitled to be where he or she was, and they didn’t do anything to torment or provoke the dog, the owner is strictly liable for the attack. You no longer have to prove any negligence on behalf of the owner. You are entitled to recover damages for the bite. This usually takes the form of medical bills, wage loss and an amount for what you went through, to include a reasonable figure for any permanent scarring left from the bite. When these claims are made, they typically are paid for by the dog owner’s homeowners or renters insurance. Claims resulting from animal attacks, like auto accidents, usually have to be brought with a certain time after the attack. If you miss the deadline, you can lose all right to recover damages.

Originally posted at InjuryBoard by Don Jacobs

Is My Case Going to Court?

Michael Myers — Mon, 28 Sep 2009 12:59:35 GMT

Court Rule 3 deals with commencement of a civil action. (Personal injury cases are "civil actions.") The text of the Rule reads:

(a) Methods. Except as provided in rule 4.1, a civil action is commenced by service of a copy of a summons together with a copy of a complaint, as provided in rule 4 or by filing a complaint. Upon written demand by any other party, the plaintiff instituting the action shall pay the filing fee and file the summons and complaint within 14 days after service of the demand or the service shall be void. An action shall not be deemed commenced for the purpose of tolling any statute of limitations except as provided in RCW 4.16.170.

(b) Tolling Statute. (Reserved. See RCW 4.16.170.)

(c) Obtaining Jurisdiction. (Reserved. See RCW 4.28.020.)

(d) Lis Pendens. (Reserved. See RCW 4.28.320 and 4.28.160.)

While it's possible to serve a summons and complaint without filing them, typically they are filed first and then served.

Clients frequently ask: "Will my case go to court?" In most instances, they mean: "Will my case go to trial?" That's what they mean because in most instances their case has already "gone to court".

It's increasingly necessary to file suit in order to obtain an offer that represents the full extent of a defendant's (or the defendant's insurer's) settlement authority. While it's possible to resolve cases without filing suit, more and more it seems like insurers want to test injured person to confirm that they have the constitution and wherewithal to actually file suit and proceed with litigation if a settlement isn't reached.

This is one of the primary reasons that injured people are almost never able to elicit full value offers for their cases. In fact, as I've written before, studies have shown that injured persons representing themselves received less than one third of what injured persons represented by counsel receive. (Assuming a one-third contingent fee, this means that represented persons receive over twice as much on average as unrepresented persons.)

It's no wonder that so many insurers – and claims adjusters – encourage injured persons not to hire attorneys. They are not motivated by a genuine interest in how much the injured persons "nets" but rather selfish desire to pay out as little as possible.

Court Rule 3 describes how to start a lawsuit. The information establishes a foundation but careful attention has to be paid to related rules and statutes (such as how to properly effectuate service of process). More on that later.

Originally posted at InjuryBoard by Michael Myers

Cruise Ships--The H2 of the Sea

Michael Myers — Sun, 21 Jun 2009 13:08:11 GMT

There's a close relationship between boats and the environment. Marketing materials--particularly for cruise ships--show vessels in pristine blue waters with fish whales and dolphins in close proximity.

The New York Times ran an article this weekend regarding the damage cruise ships do to our oceans and coasts.

Cruise ships emit nearly twice as much carbon dioxide as airplanes. They pollute far more--per passenger, per mile--than airplanes.

According to environmentalists, carbon dioxide emissions are just a drop in the ocean when it comes to eco problems on luxury liners. Most ships run on so-called bunker fuel, the cheapest and dirtiest fuel oil, which not only powers the vessel, but also all the amenities on board: restaurants, swimming pools and nightclubs among them.

The Article indicates one-week voyage on a large ship is estimated to produce 210,000 gallons of sewage, a million gallons of gray water (runoff from sinks, baths, showers, laundry and galleys), 25,000 gallons of oily bilge water, 11,550 gallons of sewage sludge and more than 130 gallons of hazardous wastes.

I saw a bumper sticker the other day. It read: Your Hummer Looks Stupid. The cruise lines need to clean up their acts. If they don't I hope the weight of social pressure makes cruising as unacceptable as rolling in a big black H2 through the middle of Fremont.

On a one to one basis, cruise ships are going to pollute more than jet skis or Zodiacs. But the same concerns apply. We should make sure that we're smart about fuel consumption and waste when we're on the water. Boating safety means more than preventing personal injury or drowning. It also means not injuring the environment.

Originally posted at InjuryBoard by Michael Myers

Cannondale bicycle recall

Don Jacobs — Fri, 19 Jun 2009 19:34:42 GMT

Consumers who purchased Cannondale bikes recently should take a close look at their purchase. Cannondale markets a wide selection of aluminum bikes in the United States. The company recently announced a recall of about 1,500 bikes due to a faulty part that can cause riders to lose steering and crash. Apparently the front end forks on the recalled bikes can lose alignment without warning, causing the front wheel to turn unexpectedly. So far, no injuries have been reported. The Consumer Product Safety Commission recently issued a news release on the problem. The recall involves the model year 2008 Cannondale Adventure 2, Adventure 3, Adventure 2 Feminine and Adventure 3 Feminine bikes. The model name can be determined by looking at the bicycle’s frame. The recalled bikes have a suspension fork with the words “Cannondale AT35 Adventure Trail” marked on them. The forks in question are from the JD Components company in Taiwan. According to the press release, the bikes equipped with the Rock Shox i-ride fork are not included in the recall. The recalled bikes were sold to consumers at Cannondale dealers in the late winter and early spring of this year. Consumers should stop using the bikes immediately and call their dealer for a free repair. For additional information, visit Cannondale’s website at www.cannondale.com.

Originally posted at InjuryBoard by Don Jacobs

Holland America's Medical Personnel--Health Care Providers or Investigators?

Michael Myers — Mon, 15 Jun 2009 13:46:00 GMT

I’ve blogged about Holland America’s responsibility for the health care provided on board its ships. This blog is a little bit different.

I think everyone would agree that curative treatment should be a health care providers’ top priority. But review of the records in numerous Holland America cases suggests that health care providers on board Holland American vessels place equal emphasis on documenting facts that give Holland America a leg up on the passenger should the passenger file a claim.

Holland America providers also appear to be the first-line of the carrier’s risk management program. Not only are medical records peppered with comments designed to assist Holland America in subsequent litigation, but they also include assessments of whether the customer’s pain, disappointment of being injured, etc. will turn into an actual claim or lawsuit. For instance, it’s not uncommon to find in either medical records produced by the ship’s doctor or one of its nurses indicating that the patient has not mentioned “claim” or “suit” yet but that follow up with the passenger might be appropriate.

It seems only fair if Holland America is going to treat its medical personnel as independent contractors and disclaim liability for their negligence that they should in fact be true independent contractors and that medical records developed on board the vessel should not be available to Holland America except through discovery.

Originally posted at InjuryBoard by Michael Myers

Slip and Falls: Not Just in the Produce Aisle

Michael Myers — Thu, 11 Jun 2009 12:51:47 GMT

Slip and fall accidents are among the most common causes of injuries on boats. Decks are made of fiberglass, wood, or steel. All can be slippery. Water, grease, scales and fish oil are just some of the factors that contribute to the equation.

Oftentimes variations of fiberglass, wood, or steel are used on walking surfaces in an apparent effort to make slip and falls less likely. However, appearances can be deceptive.

For instance, a material generically referred to as diamond plate is used in many maritime applications. Diamond plate gives the appearance of providing traction, but it typically does not (though there are certain kinds of diamond plates that do actually provide adequate traction even in marine environments).

Traction is technically referred to as the coefficient of friction. Coefficient of friction should be over .5 to ensure user safety. Measuring the coefficient of friction in a marine environment requires special testing with a device called a Tribometer. Care should be taken to test the coefficient of friction and actual conditions. For instance, to be tested on a fishing vessel should be tested with water and/or fish oil on the walking surface since those are ingredients that will most likely be present when the boat is being used.

Boating safety involves not only keeping the vessel afloat and avoiding collisions with other boats but also ensuring user safety when it comes to issues like slip and falls as well.

Originally posted at InjuryBoard by Michael Myers

Rules of the Road

Michael Myers — Mon, 08 Jun 2009 11:59:39 GMT

Liability in motor vehicle accidents is frequently determined based on application of the "rules of the road". Determining liability inclusions between vessels (for collisions between vessels and personal watercraft, water skiers, swimmers) is also determined by applying standardized rules. These standardized rules have been around for a lot longer than the rules of the road.

Between 1,000 BC and 600 BC, the people of Rhodes developed a strong commercial fleet and they were soon everywhere in the Mediterranean. The people of Rhodes developed rules of law to deal with occasional shipping disputes including, especially, a code of maritime law. It's referred to as the lex Rhodia.

Many of these rules – thousands of years old – have been codified by both Washington State and the United States Coast Guard.

When trying a case involving a collision between vessels or between a vessel and personal watercraft, water skier, swimmer or diver, it is important to ensure that the court gives the jury instructions about each of the applicable rules. While there is a pattern set of Washington jury instructions that include special instructions for the rules of the road, the pattern set does not include rules applicable to boating accidents. Therefore, it makes sense in these cases to start early in terms of educating the court so it can then, at trial, educate the jury about what law applies and give the jury a sound basis for citing the case.

Originally posted at InjuryBoard by Michael Myers

...And a Bottle of Rum

Michael Myers — Fri, 05 Jun 2009 12:01:01 GMT

There is a strong historical connection between alcohol and boats. It started with ancient seafarers and has continued to modern day.

While drinking and driving has a significant stigma associated with it, the same stigma has not taken such fierce hold in the world of boating. As a result, impaired operation of boats both large and small remains a significant problem.

During Seafair and other major events on Lake Washington there is a significant law enforcement presence and intoxicated operators are both ticketed and taken to jail. However, the rest of the year sees relatively little enforcement of these laws. As a result, collisions between vessels and other accidents involving alcohol are frequent.

Alcohol – while to some degree tolerated on the water – is one of the least tolerated factors when it comes to trying a personal injury or wrongful death case. The plaintiff's consumption of alcohol can often be the death knell for a case. By the same token, the defendant's intoxication bodes variably drive both favorable settlements and high verdicts.

It is important both for operators and occupants to realize that operating a boat while intoxicated carries the same risks as drunk driving.

Originally posted at InjuryBoard by Michael Myers