2009 March | Los Angeles Accident & Injury Law Firm

Archive for March, 2009

Paraplegia Caused by Accidents

Paraplegia involves a spinal cord injury resulting in the paralysis of the body below the level of the neck. “Vertebrae” are the bony structures that make up the spine, and which protect the spinal cord—which runs down the center of the vertebrae—from injury. There are seven cervical vertebrae at the top of the spine that, if injured, can result in quadriplegia. Below the cervical vertebrae, the spine is made up of twelve “thoracic” vertebrae (“T-1” through “T-12,” in descending order). Below the thoracic vertebrae and making up the lower back are the five “lumbar” vertebrae (“L-1” through “L-5”).

Next to quadriplegia, paraplegia is the most serious of all the spinal cord injuries and one of the most devastating injuries a person can sustain. Paraplegia results from the fracture, dislocation, or compression of one or more of the thoracic or lumbar vertebrae that make up the majority of the spine, causing severance of, compression of, or tears to the spinal cord itself. It is not necessary to suffer a fracture to become a paraplegic, just as a fracture to a thoracic or lumbar vertebra does not automatically mean you will be paralyzed.

Unlike quadriplegics, who often must have around-the-clock caregivers to assist him or her and are unable to return to work, paraplegics are often able to return to a relatively independent and productive life through intensive (and expensive) rehabilitation and retraining. In many cases, the person who has been rendered paraplegic due to another’s careless conduct (“negligence”) will be able to return to work, if not at his or her old job, then, with proper education and training, to a new job that can accommodate their physical condition and all that goes with it.

The damages in terms of financial costs for treating a paraplegic are high, running into the millions of dollars. There are tremendous “economic damages,” including medical expenses, intensive physical therapy and rehabilitation, the costs of a caregiver, lost wages while the victim was off work or due to the inability to return to a career or job, the loss of earning potential, educational expenses to be trained for a new career, the costs of making modifications to the house to accommodate a wheelchair, the purchase of a specially-equipped van or other vehicle to transport the paraplegic or so that the paraplegic is able to drive himself or herself with special features. Damages for so-called “non-economic damages” such as pain and suffering and “loss of enjoyment of life” are substantial in cases involving victims who have been rendered paraplegic.

The life span of a person who has been rendered paraplegic is often shortened due to an impaired immunity system that leaves the quadriplegic victim more susceptible to infections and diseases. For instance, pneumonia is a leading cause of death among paraplegic persons. Infections from bedsores (“decubitus ulcers”) are common in paraplegics, and are caused by sitting or lying in one position too long. This is why it is crucial that a paraplegic change his or her position regularly to prevent the development of bedsores. Untreated bedsores can result in deadly infections.

Besides the serious physical injuries, a person who suddenly and unexpectedly gets into an accident that causes him or her to become a paraplegic, the mental and emotional side of the injury must also be considered. The victim may go into despair and grieve for the loss of use of his or her lower limbs. The victim may become depressed, withdrawn, hopeless, even suicidal. The mental health aspects of becoming a paraplegic can be serious and require appropriate psychotherapy and even psychoactive medications.

Slaughter & Slaughter has the experience necessary in representing clients who have been rendered paraplegic due to the careless conduct (“negligence”) of another person, a company, or a defective product. We understand the physical, financial, and emotional toll paraplegia takes on the injured victim and his or her family. We will work hard on your behalf to get you the maximum recovery possible to help you to adjust to your new living requirements. Call now and talk to a lawyer free – 310.882.6810 or Toll Free: 888.222.8286

Tags: negligence, paraplegia
Posted in Types of Injuries | No Comments »

Laws about Recreational Airplanes, Helicopter and Hot Air Balloon Accidents

Hundreds of thousands of Americans own their own small aircraft that they use for pleasure flying, attending fly-ins with airplane clubs, and taking vacations. Suppose your friend owns a small plane and asks you if you’d like to go for a ride. You enthusiastically agree, but while in mid-flight, there is a problem with the engine and its stops the propeller from turning, and you crash land. Can you sue your friend for injuries you suffered in the crash? Or in the case of fatal injuries, can your loved ones sue your friend’s estate for your “wrongful death”?

A privately-owned owned noncommercial plane owner who does not regularly charge a fee for transporting persons—whether the flight is just for a couple of hours of sightseeing or your friend taking you from one place to another—is considered a “private carrier.” As such, your friend has the legal obligation (“owes you a duty”) to use ordinary and due care in making sure the plane is airworthy and that he or she is qualified and fit to be at the controls and not make any careless errors that result in the passenger’s harm or death. In legalese, the “standard of care” applicable to private pilots flying pleasure craft is one of “ordinary negligence” for the safe transportation of their passengers. Ordinary care is that degree of care that an ordinarily prudent person would use under like circumstances when charged with a like duty. Ordinary negligence is a lack of due care; and due care means commensurate care, under the circumstances, tested by the standard of reasonable prudence and foresight.

Suppose a newlywed couple takes a paid hot-air balloon ride over the Napa Valley wine country during harvesting, but because of some defect in the balloon or gondola or a mistake on the balloon’s pilot, the hot air balloon crashes, seriously injuring or even killing the couple. The person or company that provides the hot-bar balloon rides is considered a “common carrier” and as such owes its passengers the highest degree of care for their safety so far as is consistent with the practical operation and conduct of its business.

A private carrier (sometimes called a “contract carrier”) is one who makes an individual contract in a particular instance for the carriage of passengers to a certain destination. The private carrier does not hold himself out to the public as ready to accept and carry as passengers everyone who offers to pay the fare. Each act of transportation is a separate and individual act. It is not for the public convenience and necessity, but is a private transaction. The private carrier may refuse to carry the prospective passengers. The chief test applied to determine whether a mode of transportation (that is, a “carrier”) is a common carrier is whether or not the operator of the carrier, either by express written or oral statements, or by his course of conduct, holds himself out to the public as willing to carry at a fixed rate all persons applying for transportation so long as his vehicle (airplane, helicopter, hot air balloon, etc.) will carry them. The standard of care to which the private carrier is held is the duty to exercise ordinary care for its passengers’ safe transportation.

A common carrier is one who holds himself out to the public as engaged in the public business of transporting persons for compensation from place to place, offering his services to such of the public generally as choose to employ him and pay his charges. The distinctive characteristic of a common carrier is that he undertakes as a business to carry for hire on a uniform tariff all persons wanting transportation, so long as he has the room to accommodate them. Whether one is a common carrier is determined by looking at whether he holds himself out as such, either expressly or by a course of conduct, the he will carry for hire on a uniform tariff all persons applying, so long as he has the room.

A common carrier owes its passengers the highest degree of care for their safety so far as is consistent with the practical operation and conduct of its business. The rule of “utmost care” does not merely require the degree of care usual among ordinarily prudent and competent carriers. It requires the degree of care to be expected of an unusually prudent and competent carrier. It is then something more stringent than the rule of “ordinary care” under all circumstances.

“Holding oneself out to the pubic” means that the carrier in some way makes it known to its prospective patrons the fact that its services are available. This may be done in various ways, as by advertising, solicitation, or the establishment in a community of a known place of business where requests for service will be received. However the result may be accomplished, the essential thing is that there must be a public offering of the service, or, in other words, a communication of the fact that service is available to those who may wish to use it.

For a transporter of passengers such as an airplane to be a common carrier, it is not necessary that it have a regular schedule of flights, a fixed route, or a relatively unlimited carrying capacity. For example, a carrier that provides air transportation may limit its operations solely to charter flights and still be legally considered to be a common carrier. Important factors used to determine whether an operation is a common carrier include an established place of business, engaging in the operation as a regular business and not merely as a casual or occasional undertaking, and a regular schedule of charges.

To be a common carrier, it is not necessary for the carrier to leave one place and transport its passengers to another place. A sightseeing tour that embarks from and returns to the same point can be considered a common carrier. Hence, an airplane pilot who offered sightseeing flights to the ocean and back was held to be a common carrier, even though the flights took off and landed at the same airport. Similarly, a company that provides sightseeing helicopter rides for a fee is a common carrier, even though it takes off and lands at the same helipad. Commercial hot air balloons that advertise or otherwise promote their business of sightseeing trips from point A to point B are common carriers.

California law has an expansive definition of carriers of persons for reward, i.e., common carriers. A “common carrier” is broadly defined as everyone who offers to the public to carry persons, property, or messages, except only telegraphic messages. Operating railroad cars upon a scenic railway, where the train starts from and ends at the same point of origin, is subject to the higher duty of care applicable to a common carrier. Like passengers in an airplane who go for sightseeing trips, the passengers on a scenic railroad tour are subject to great risk to life and limb. The steep inclines, sharp curves, and great speed necessarily are sources of peril.

Carriers of persons are treated differently depending upon whether they act gratuitously or are paid. A carrier of persons “without reward” is subject only to a duty to use ordinary care and diligence for their safe carriage, while a carrier of persons “for reward” is subject to a heightened duty.

California law requires that a common carrier (a “carrier for reward”) use the utmost care and diligence for its passengers’ safe carriage, must provide everything necessary for that purpose, and must exercise to that end a reasonable degree of skill. Common carriers are not, however, insurers of their passengers’ safety, giving them an absolute guarantee that nothing will go wrong and they will not be injured or killed in any way whatsoever. Rather, the degree of care and diligence which they must exercise is only such as can reasonably be exercised consistent with the character and mode of transportation adopted and the practical operation of the carrier’s business.

The common carrier is also legally required to provide vehicles that are safe and fit for the purpose to which they are put, and is not excused for default in this respect by any degree of care. Also, the passenger’s motive for seeking transportation is not relevant in determining the carrier’s liability. The common carrier owes the same high duty of utmost care whether the passenger rode for pleasure or business. A passenger’s purpose in purchasing transportation, whether it be to get from one place to another or to travel simply for pleasure or sightseeing, does not determine whether the provider of the transportation is a carrier for reward. Undisclosed purposes on the passengers’ part does not affect the duty of the common carrier to exercise the highest degree of care for the safety of the passenger. The fact that a passenger begins and ends a journey in the same place does not mean he or she has not been transported. A tourist in San Francisco who takes a round-trip ride on a cable car solely for entertainment has been transported and is no less entitled to a safe ride than another passenger on the same cable car who disembarks earlier to visit a store or restaurant.

A carrier, even a common carrier, that carries passengers on sightseeing tours often requires its prospective passengers to sign a release and waiver of liability (also called a “hold harmless” clause) before the tour. In such a release, the prospective passenger agrees not to sue the carrier for injuries or death even if such injuries or death were caused by the action, inaction, carelessness, or negligence of the carrier or its employees. The law generally looks with disapproval on attempts to avoid liability or to obtain exemption for a person’s future negligence. Accordingly, these so-called “exculpatory clauses” are strictly construed against the person relying upon them. Nevertheless, courts will enforce releases and waivers of liability of common carriers if they meet certain criteria.

To be valid and enforceable, a release from negligence must be in clear, explicit, and understandable language, clearly conveying to the prospective releaser, as an ordinary person untrained in the law, that he or she is releasing the other party from liability for the releasor’s personal injury or death caused by the negligence of the releasee. The agreement, when read as a whole, must clearly notify the prospective releasor of the effect of signing the agreement. The fact that the person failed to read the release or waiver of liability before signing it is no defense. If, however, the person is given the release to sign at the door of the airplane or helicopter, or immediately before the hot air balloon takes off, a good argument can be made that the carrier did not give the person a sufficient amount of time to read the release or waiver. Generally speaking, the provision containing the release ordinarily must be set in large and perhaps bolder type than the rest of the agreement that compels notice and must be distinguished from other sections of the document, that is, it must be conspicuous and obvious. An exculpatory clause is not binding if it is printed in small type and is not readable, clear, and comprehensible.

Releases and waivers of liability are enforceable against the person signing them so long as they do not conflict with the public interest. For instance, an air transportation company that provides sightseeing trips can require prospective riders to sign releases and waivers of liability for ordinary negligence because the subject of the contract—a sightseeing or pleasure trip—does not involve an important pubic policy. A commercial airline such as United or American, on the other hand, cannot avoid its duty of utmost care to its passengers by having its prospective passengers sign as release. The reason for this is that the commercial airliner performs a service of great importance to the public, which is often a matter of practical necessity for some members of the public.

An aerial sightseeing tour is not an essential service or necessity affecting the public. Accordingly, a common carrier that provides sightseeing trips, whether by plane, helicopter, hot air balloon, train, or other means of transportation, can require that its potential passengers sign a release or waiver of liability or its ordinary negligence. The carrier cannot, however, limit its liability for more serious conduct than simple “ordinary” negligence, such as gross negligence or intentional misconduct. “Gross negligence” is either a lack of even scant care or an extreme departure from the ordinary standard of conduct. In layman terms, ordinary negligence may be defined as general carelessness, while gross negligence may be defined as recklessness, a higher level of misconduct.

If you have been injured or a loved one killed in an accident involving a recreational or sightseeing carrier, such as a plane, helicopter, train, or hot air balloon, you should contact an experienced personal injury law firm as soon as possible. It is also important to promptly contact an experienced personal injury law firm, as the law firm may want to send its own investigator to the scene of the accident to inspect and take pictures of the accident site and any dangerous condition that caused or contributed to the accident, especially before there is a change in the condition of the area or vehicle. The attorney or his or her investigator will also want to talk to any witnesses to the accident as soon as possible while the facts are still fresh in their minds.

Call now and talk to a lawyer for free about your case. 310.882.6810 or 888.222.8286

Tags: Aviation Law, plane crash, plane crash attorney, plane crash law firm
Posted in Aviation Law, Helicopter Accidents, Recreational Accidents | No Comments »

Amusement Park Injuries and Cases

California hosts many of the world’s most popular amusement parks including Disneyland, Six Flags Magic Mountain and Universal Studios just to name a few. While these amusement parks are created for the entertainment of millions of people every year, the unfortunate truth is that thousands of people are hurt or even killed at amusement parks every year due to a dangerous or faulty ride, improper maintenance or dangerous premises.

Injuries at amusement parks can be caused by many things including a product defect in the ride itself, brake failures, improper maintenance and a whole host of other defects in the rides themselves. Injuries can range from whiplash all the way to brain injuries, broken bones, amputations and even death.

The law does not allow nor does it allow an amusement park to get away with having a dangerous ride or improperly maintained rides for use by its patrons. Amusement parks are required to ensure that each ride is safe and properly maintained. Since these amusement parks charge each guest to enter its park, the law has established that each ride as a the same as a commercial bus, or train or plane. The law calls this a “common carrier.”

A common carrier is typically a business that provides its services to the general public. As such, a common carrier is subject to special laws holding them to the highest degree of care. In a landmark case, which was taken up to the appellate level here in California, the court agreed that amusement parks will be held by the law to owe the highest degree of care to their guests that ride their rides and are liable for injuries or death. Hence confirming the theory that amusement park rides are considered as common carriers.

County fairs and traveling roller coaster events would also need to follow the laws as provided by common carriers.

Common Types of Injuries on Amusement Park Rides:

Closed Head Injuries (including brain damage)
Amputation (loss of limb)
Broken Bones
Death
Soft Tissue Injuries

If you or a loved one have been seriously injured while visiting an amusement park, call now or use the contact form on this page to speak with an attorney about your case. Our firm routinely works with expert witnesses, engineers, doctors and engages the use of technology in proving our cases.

Posted in Amusement Park Accidents, Brain Injury, Product Liability, Recreational Accidents | No Comments »

Fatal 210 Crash on Friday Leaves 2 Dead in Irwindale

Early this morning, a deadly accident on the 210 freeway in Irwindale resulted in the death of two, while leaving four others seriously injured. The crash happened near the Irwindale Avenue exit near 6:00am. Several vehicles were involved in this tragic crash including a Foothill Transit bus, two stake bed trucks, and at least five passenger vehicles one of which was a SUV.

210 Crash in Irwindale

The California Highway Patrol is still investigating the cause of this horrific accident, which is expected to last several weeks. However, a preliminary CHP report says that at around 5:47am, two passenger cars were involved in an accident. The cars then pulled ot the side of the freeway and the drivers had gotten out of their vehicles when a stake-bed truck collided had to make a sudden lane-change to avoid them. As a result, the stake-bed truck was rear-ended by another stake-bed truck which then collided with the drivers who had gotten out of their cars.

Maximiliano M. Medina, 28, was killed and pronounced dead at the scene of the accident from blunt-force trauma. Medina was driving the second truck which rear-ended the first stake-bed truck. Sandra Resford, 73, also suffered from fatal injuries as a result of this tragic crash. Resford was driving a Ford Focus.

Reports indicate that there were no passengers on the Foothill Transit Bus. All traffic on the 210 freeway had to be stopped to allow for medivac helicopters to land and transport the injured.

If your have been seriously injured or a loved one has been killed as a result of a tragic accident, call immediately and talk to a lawyer for free. Don’t guess about your legal rights, or whether you even have a case or not. Talk to an experienced personal injury attorney who can help. Free Consultation Now: 310.882.6810 or Toll Free: 888.222.8286

Slaughter & Slaughter is a full-service personal injury law firm dedicated to serving victims and families of those seriously injured in accidents. With over 20 years of experience Slaughter & Slaughter handles personal injury cases only and has the resources, the track record and the reputation for what it takes to achieve success in serious injury and death cases. Don’t delay, call now.

For more information visit our truck accident or car accident page

Posted in Personal Injury, Truck Accidents, Wrongful Death Claims | No Comments »

Elevator and Escalator Accidents and Injury Attorney

Every working day, millions of Americans who work in buildings having multiple floors get to and from their offices by taking elevators. Many apartment, condominium, and co-op residents use the elevator to get to and from their units. And every day, countless Americans ride escalators to transport them from floor to floor inside retail department stores.

There are approximately 600,000 elevators in the United States and 120 billion rides on elevators and escalators each year. There are twenty times more elevators than escalators in the United States, but the numbers of persons injured and killed by the two modes of transportation are about equal. This means that you are twenty times more likely to have an accident on an escalator as compared to an elevator.

In California, it is well established that commercial operators of elevators and escalators are “carriers of persons for reward.” This means that elevators and escalators are “common carriers.” As a common carrier, the owner and/or operator of an elevator or escalator has a higher standard of safety and care, and can be held financially responsible (“liable”) to passengers who have been injured by even the slightest amount of carelessness (“negligence”). The California Supreme Court stated that a higher standard applies to all persons who submit their bodies to another’s control by which their lives or limbs are put at hazard.

Civil Code section 2100 requires a carrier of persons for reward (a “common carrier,” including commercial elevators and escalators) to use the utmost care and diligence for their safe carriage, must provide everything necessary for that purpose, and must exercise to that end a reasonable degree of skill. Civil Code section 2101 requires a common carrier of persons to provide vehicles safe and fit for the purpose to which they are put, and is not excused for default in this respect by any degree of care. Accordingly, an elevator car or escalator must be in “safe and fit” order; the fact that the building or store owner regularly maintains and repairs the elevator or escalator is no defense to its liability.

California law requires a common carrier to use the “utmost care and diligence” for the safe carriage of its passengers. The owner/operator of an elevator or escalator is bound to use the utmost care and diligence that a very cautious person would as far as human care and foresight can go, and are responsible for injuries resulting from the slightest neglect against which human care and foresight might have guarded. Common carriers are not, however, insurers of their passengers’ safety. An “insurer” of a person’s safety is liable for all injuries and deaths arising from its acts or neglect, even though it was not negligent in any way; it is a guarantee that the person will not be hurt, regardless of the cause of those injuries. In cases against common carriers such as elevators and escalators, although the owner/operator of the device owes them the utmost care and diligence, it is still necessary to prove that the owner/operator was negligent in some manner, even though the slightest carelessness is enough to impose liability.

If a person is in the process of getting on or off an elevator car or escalator, he or she is considered a passenger even though the person may not be physically in the car. A person is considered a passenger until he or she has safely gotten off the elevator or escalator in a relatively safe place. The elevator’s or escalator’s responsibility to its passengers continues until the passengers have had sufficient time to get away from the elevator or escalator without injury.

A passenger’s motive for using the elevator or escalator is irrelevant in determining the common carrier’s liability, and the common carrier owes the same high duty of care whether the passenger rode for pleasure or business. So if a passenger is injured by an elevator that he or she was taking for the sole purpose of getting to the top of a skyscraper to enjoy the view, and did not intend to transact any business in the building, he or she is no less entitled to a safe elevator than one who uses the elevator to get to an office to conduct business. Or a department store visitor who is injured by a defective and dangerous escalator while “just looking” is owed the same high duty of care as a person who goes to the store with the intent of purchasing an item.

Many elevator-related injuries occur when people are getting off the elevator, but the bottom of the elevator is not flush with the outside floor. Sometimes the difference between the bottom of the elevator and the outside floor is a foot or more. More frequently, however, “trip and fall” injuries often result when the floor of the elevator stops short of or overshoots the floor by as little as one or two inches. This can result in the person’s foot being tripped by the uneven lip between the elevator floor and the outside surface, causing the person to fall and suffer serious injuries, such as a broken leg, arm, or hip, or hitting his or her face on the ground causing broken bones and disfiguring injuries, or striking his or her head on the ground, resulting in a traumatic brain injury (TBI).

Hand and forearm and foot and lower limb injuries can occur when a person attempts to stop the elevator’s doors from closing so he or she can board the elevator car. The doors may be closing too quickly or too forcefully, causing injury. Occasionally an elevator cable will break, causing the elevator to drop to ground level in a free-fall, seriously injuring or killing the passengers. Modern elevators are usually equipped with a safety brake system to prevent this from happening, but the safety brake system has been known to fail, resulting in catastrophic, even fatal, injuries.

Many elevator accidents occur on construction sites when workers are traveling from floor to floor. If the worker’s employer installed the elevator and is the one in charge of servicing and maintaining it in a safe condition, but the worker is injured in an elevator accident, the worker’s sole remedy is usually worker’s compensation benefits. But if another company (i.e, a subcontractor) installed the elevator and has the duty of maintaining it in a safe condition, the worker injured by a defective and dangerous elevator may be able to sue the elevator company.

It has been estimated that as few as 15 percent of escalator accidents are the result of “unsafe acts.” The majority of accidents are caused by worn, damaged, or faulty equipment, many of which could be avoided with proper inspection, servicing, and maintenance. Unlike, say, a car, the mechanical workings of an elevator and escalator rolls are not easily accessible. This means that less effective techniques are often used instead of physical inspection. As a result, reliability is reduced and the potential for accidents is greatly increased.

Not surprisingly, a large number of the persons who are injured while riding an escalator are young children. Young children do not have the same stability as adults and are especially vulnerable to falling and being injured at the slightest bump or shake of the escalator. Young children are frequently fascinated by the movement of the stairs and will attempt to put their fingers or hands between the moving stairs and the stationary rail. Young children also have a harder time getting on and off and escalator, often falling in the process and being injured. Children under the age of five are exempt from the rule of “comparative negligence,” as a child of such early years is legally incapable of realizing and understanding that his or her conduct may result in his or her being injured by the elevator or escalator on which he or she is riding or playing. In short, the young child does not appreciate the nature and extent of the danger and voluntarily encounters it without regard for his or her own safety.

An elevator or escalator owner/operator is a common carrier only in regards to individuals who are using the elevator or escalator for the purpose of transportation at the time of the injury. For instance, children who are playing at the top or bottom of an escalator, and not intending to ride the escalator, do not get the benefit of the common carrier higher standard of care. This does not mean, however, that the owner/operator of the elevator or escalator do not owe any degree of due care toward the child. In such case, the owner/operator still owes the child the duty to exercise reasonable care, that is, the standard of care owed under general negligence principles, to keep the premises reasonably safe. The owner/operator of the elevator or escalator may have a duty to protect children playing on the elevator or escalator, particularly where the owner/operator knows that other children have played on the elevator or escalator in much the same way, while those who should have been watching them were busy shopping. Because the owner/operator knows or could anticipate that young children would play on or around the elevator or escalator, the owner/operator has a duty to take reasonable steps to prevent those children from being injured or killed by the elevator or escalator.

The company that services, maintains, and inspects the elevator or escalator to ensure that it is operating properly and is free of conditions that might pose a hazard to persons using the elevator or escalator can be held liable for injuries resulting from its negligence in inspecting, maintaining, and servicing the elevator or escalator. If the owner or operator fails to have the elevator or escalator regularly for dangerous condition, it can be held liable for injuries to or death of persons using the elevator or escalator.

Ordinarily, a passenger on an escalator stands and does not sit on the steps. When one considers, however, the enormous numbers of patrons of stores that supply escalators as a means of transportation, one must conclude that occasionally someone will fall and his or her hand must rest upon the tread of the step either for a very brief time or for almost the whole descent, depending upon the force of the fall, the ability of the person to recover his balance, his ability in regaining his position, and similar factors. Children use escalators in great numbers, and their hands may be on the treads even though they have not fallen. A department store invites not only persons who are alert and nimble and adult to use its escalators, but all of its patrons, with the possible exception of those patrons whose age and infirmity would make any use or moving stairs hazardous. Under the duty to use utmost care required of a common carrier, the escalator must be constructed, maintained, and operated with the purpose and design to prevent injury to those whose hands do get into the treats.

Unlike an elevator, which has doors separating the moving car and its passengers from the stationary shaft, an escalator must move alongside a stationary balustrade. It is important that openings (“apertures”) between treads and risers, and between steps and balustrades, be kept to a minimum in order to prevent a rider’s hand from being caught between them.

As noted above, it is well settled in California law that commercial elevators and escalators are “common carriers” and owe a higher duty of care towards its passengers than ordinarily required. However, as to persons not on an elevator or escalator, nor in the process of getting on or off, the owner and/or operator owes them only the ordinary standard of safety (“due care”). Thus, if a part of an escalator broke off and was thrown twenty feet, hitting a shopper, the legal and financial responsibility (“liability”) to that person would be determined using ordinary rules of negligence law, and not the higher duty owed by common carriers, as the person was not a passenger on the escalator at the time of the incident.

If the elevator or escalator was defective because it was not properly made or designed, and a person is injured or killed due to that defect, the injured person (or the next of kin, if the person was killed) have the right to bring a strict products liability lawsuit against the manufacturer, supplier, owner, and operator of the elevator or escalator. Strict products liability law does not require that the injured person prove that the manufacturer or other person had failed to use due care (was “negligent”) in designing or making the elevator or escalator. All that needs to be proved is that the elevator or escalator was made or designed defectively and that defect was a cause of the person’s injury. There is no requirement that a specific act of carelessness (negligence) be shown.

If you have been injured or a loved one killed in an accident involving an elevator or escalator, you should contact an experienced personal injury law firm as soon as possible. If the elevator or escalator was owned or operated by a pubic entity, such as the state, a county, or a city (for instance, City Hall or the County Recorder’s Office), it is generally necessary to file a claim for damages with the proper governmental agency within six months of the date of the incident. In addition, there are other short and potentially dangerous statutes of limitations which if you miss, may bar you completely from bringing a claim for injuries. An experienced personal injury attorney will know how and where to file this claim on your behalf.

It is also important to contact an experienced personal injury law firm as soon as possible after the accident, as the law firm may want to send its own investigator to the scene of the accident to inspect and take pictures of the accident site and any dangerous condition that caused or contributed to the accident, especially before the owner or operator of the elevator or escalator makes repairs or changes the condition. The attorney or his or her investigator will also want to talk to any witnesses to the accident while the facts are still fresh in their minds.

Posted in Premises Liability, Slip & Fall / Trip & Fall | No Comments »

Montana Plane Crash; 17 Dead as NTSB Investigates Causes

A small single-engine airplane carrying passgeners, the majority of them children on a ski trip crashed on Sunday in Butte, Montana. All 17 people onboard were killed as the plane approached the airport. Neither the Federal Aviation Administration nor the National Transportation Safety Board has released the cause of this tragic crash but their investigation continues.

The plane had left Oroville, California and was headed to Bozeman, Montana where the passengers were headed to a resort in Big Sky Montana. It is not clear why the pilot changed its route and was attempting to land in Butte.

Few reports have been made that ice may have played a part in the cause of this crash. Recently, ice has been a major contributor to causing commercial and small aircraft crashes. Other reports indicate that the small plane was carrying more passengers than the limit allowed. It appears that the plane was designed for 10 passengers.

Some of the victims of this horrific plane crash were identified as follows: Erin Jacobson, Amy Jacobson, Taylor Jacobson, age 4; Ava Jacobson, age 3; Jude Jacobson age 1; Michael Pullen, Vanessa Pullen, Sydney Pullen, age 9; Christopher Pullen, age 7; Brent Ching, Kristen Ching, Heiley Ching, age 5 and Caleb Ching age 3. All passengers onboard from from California.

Our thoughts and prayers are with the families of this tragic plane crash. This crash along with the recent FedEx plane crash in Tokyo remind us how fragile life really is.

Posted in Aviation Law | No Comments »

FedEx Plane Crash Leaves 2 Dead

A FedEx plane arriving into Toyko airport crashed during landing. The plane burst into flames upon touching down onto the runway, killing both American pilot and co-pilot aboard. Kevin Kyle Mosley, 54, of Hillsboro Oregon was the pilot, and Anthony Stephen Pino, 49 of San Antonio, Texas, was the co-pilot. They were the only two on the plane at the time of the crash.

Fire and rescue teams rushed to the scene of the plane crash immediately after the impact. Video footage of the crash is available online and we have posted it below.

If you have lost a loved one as a result of a plane crash, it is important that you speak with an experienced aviation law firm about your case. Plane crash cases are complex and involve many jurisdictional issues. Although many aviation disasters happen outside of the country, your legal rights should not be compromised. Don’t guess about your rights and those of your family. Call now for a free legal consultation by one of our experienced attorneys 888.222.8286

Tags: Aviation Law, fedex plane crash, plane crash, plane crash attorney
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Dog Bite Laws in California – Strict Liability Explained

If you or a loved one has been attacked by a dog, or have been injured as a result of a dog bite in California, it is important that you know your legal rights. California follows the strict liability rule when examining dog bite cases. This means, that there is no such thing as “one bite rule” or disputed liability. The dog owner is “strictly liable” for the injuries caused by their dog. The law does not allow for a dog owner to dispute who was at fault – the dog owner is automatically responsible to pay for your damages.

At one time, California followed the rule that a person who had been bitten by a dog could not recover monetary damages from the dog’s owner for his or her injuries unless the dog’s owner knew or should have known that his or her dog had bitten someone else and thus had a “vicious nature” or “dangerous propensity” to bite humans. This was derisively known among legal professionals as the “first-bite-free” rule, as the dog was deemed to be docile and tame toward humans and would not turn on a person and bite him or her for no reason. A dog is, after all, man’s best friend. This first-bite-free rule resulted in thousands of persons going uncompensated for their injuries, and the people of the State of California pressured their elected representatives to change the law.

As a result, California legislators enacted section 3342 of the California Civil Code. This law (a “statute”) makes the owner of any dog liable for the damages suffered by any person who is bitten by the dog while the person is in a public place or lawfully in a private place, including the property of the owner of the dog, regardless of the former viciousness of the dog or the owner’s knowledge of such viciousness. A person is lawfully upon the private property of such owner within the meaning of this section when he is on such property in the performance of any duty imposed upon him by the laws of this state or by the laws or postal regulations of the United States, or when he is on such property upon the invitation, express or implied, of the owner, such as a meter reader.

Section 3342 allows a person to recover damages caused by a dog bite without having to show that the dog’s owner was careless (“negligent”) in any manner. It creates a system of fault without having to prove any wrongdoing, a form of liability that is known in law as “strict liability.” Section 3342 imposes a duty of care on every dog owner to prevent his or her dog from biting persons in a pubic place or lawfully in a private place so as to prevent dogs from becoming a hazard to the community.

The terms of strict liability mean that the dog’s owner is automatically responsible under any and all situations for the injuries inflicted by the bites of his or her dog. An exception however, for example, section 3342 does not apply if the person bitten was a trespasser on the dog’s owner’s property.

Under the legal doctrine of “primary assumption of the risk,” a veterinarian assumes the inherent risk that any dog, regardless of its apparent docile nature, might bite in the course of treatment. The veterinarian determines the method of treatment and handling of the dog and is in the best position to take the necessary precautions and protective measures. Thus, the risk of being attacked or bitten in the course of veterinary treatment is an occupational hazard that veterinarians accept by agreeing to treat the dog. This so-called “veterinarian’s rule” is justified on the basis that, by contracting for the services of the veterinarian, the dog owner stands in a special position with respect to the veterinarian, who receives special training and compensation for the hazardous work of treating dogs.

This “veterinarian’s rule” has been applied to deny recovery for dog bites to veterinary assistants, animal behavior specialists, dog trainers, kennel workers, and dog groomers, the courts holding that the risk of dog bites during treatment is a specific known hazard endemic to the very occupations in which these persons voluntarily engage. However, if the dog owner knew or should have known of his or her dog’s specific vicious propensity to bite, yet fails to inform the veterinarian, veterinary assistant, groomer, or other person of this fact, the owner can be found to have exposed the veterinarian or other person to an unknown risk, and thereby can be held strictly liable for the veterinarian’s or other person’s injuries.

In addition to Civil Code section 3342, the owner or keeper of a dog can be held strictly liable under traditional legal principles (the “common law”) if he or she knows or has reason to know that his or her dog (or the dog in his or her care, custody, and control) has a propensity to bite humans. In such a situation, the dog may be kept only at the owner’s or keeper’s risk. The owner or keeper will be held liable for damages resulting if the dog bites someone, even though the owner or keeper took all reasonable steps and precautions to prevent the dog from biting a person, that is, that there was no negligence or lack of care on the owner’s or keeper’s part in keeping or attempting to restrain the dog. The heart of the action is the owner’s or keeper’s knowledge that the dog possessed the propensity to bite people. Liability in this type of case is based not on the manner of keeping the vicious animal, but the keeping of it at all with knowledge of its vicious propensities. Note that the common law strict liability rule applies to owners, keepers, and anyone else having custody, care, and control of the dog, while liability under Civil Code section 3342 applies only to dog owners.

Tags: strict liability
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“Minor” Head Injuries – The Truth About Brain Injuries

The recent death of 45-year-old actress Natasha Richardson demonstrates the importance of getting a full medical check-up even if you’ve only been in a minor traffic accident or other incident in which you struck your head even slightly. Richardson hit her head when she fell on the beginners’ slope of a ski resort while taking a ski lesson. According to news reports, there was no sign of blood or trauma. Two members of the ski patrol went to her aid and reported that she was conscious, smiling, and making jokes. An hour later, however, Richardson complained of a headache and was taken to a local hospital in an ambulance, still conscious. However, at some point she lost consciousness and was transferred to another hospital. Unfortunately, she died the next day of an epidural hematoma, a condition in which bleeding occurs from an artery in the brain.

Richardson’s condition is what emergency room doctors refer to as “walk and die” syndrome, in which the person who has suffered a minor blow to the head at first feels fine, but within an hour or two begins to feel symptoms that indicate the possibility of traumatic brain injury (TBI) that requires immediate treatment to prevent serious damage. The arteries in the brain are under high pressure, and blood can accumulate rapidly in the area, pushing the brain to one side and leaking blood down into the brainstem. There it can cause a change in mental status, including a coma that can result in the person’s death. This is why it is important that if you have hit your head in an automobile accident, a slip-and-fall, or any other type of incident in which you struck your head, you should always go to the emergency room to get checked out.

Note that it is not necessary to actually hit your head on something to suffer a serious TBI. For example, having your head snap violently back and forward in whiplash injury in a traffic accident or even while riding a roller coaster at an amusement park can result in damage to the brain.

Ideally, when a person goes to the emergency room after suffering a blow to the head, the best thing for doctors to do is admit the person for observation for 24 hours. Unfortunately this is not always feasible and the ER doctor must use his or her best judgment in deciding whether to admit a patient for observation. If the doctors do not admit you to the hospital, they will ordinarily discharge you with a “head sheet” telling you to return immediately to the emergency room if any of the symptoms on the head sheet occur. Some signs of a serious head or brain injury are:

Headaches or neck pain that won’t go away
Dizziness
Disturbances in your speech, such as slurring your words
Disturbances in your vision, such as blurriness or double-vision
Feeling nauseous
Feeling tired and fatigued for no reason

If you have struck your head or suffered a whiplash-type injury and have any of the above symptoms, you should promptly seek emergency medical care.

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Drunk Driving Accidents and Your Legal Rights

According to the National Highway Traffic Safety Administration, approximately 13,000 people are killed and innumerable thousands of others are injured each year in automobile accidents involving alcohol. Out of all traffic fatalities, some 30 percent involved a driver with a blood alcohol content (BAC) level of .08 or higher, the California (indeed, nationwide) standard for defining driving under the influence of alcohol. About three out of every ten Americans will be involved in an alcohol-related crash at some time in their lives. Although this article will deal with driving while intoxicated, a person who causes an accident may do so because he or she is under the influence of an illegal drug (e.g., marijuana or cocaine) or even a prescription drug that impairs his or her driving skills. For example, one study showed that smoking even a small amount of marijuana doubles the risk of getting into a fatal highway accident. And the risk of getting into an accident skyrockets when the driver combines alcohol with many prescription and over-the-counter medications.

The rate of alcohol impairment among drivers involved in fatal crashes is four times higher at night than during the day. In fatal crashes, the highest percentage of drivers with a BAC level of .08 or higher was for drivers ages 21-24 (33%), followed by ages 25-34 (29%) and 35-44 (25%). The BAC level of .08 is the point at which the fatal crash risk significantly increases and virtually everyone with that level of alcohol in their system is seriously impaired. At .08 BAC, all of the critical driving skills are affected: braking, steering, lane changing, judgment and response time. Drivers with BAC levels of .08 or higher involved in fatal crashes were eight times more likely to have a prior conviction for driving under the influence (DUI) than were drivers with no alcohol. More than half of the drunk drivers involved in fatal crashes had a BAC of .15 or greater. Men make up the vast majority—over 80 percent—of all drivers involved in fatal crashes with a BAC of .08 or higher.

According to the Disease Control and Prevention Morbidity and Mortality Reports, motor vehicle accidents are the leading cause of death in the United States for persons under 24, and of those, more than 40% are alcohol related. For motor vehicle crashes in general, a person with a BAC of .08 is 11 times more likely to be involved in a crash than a person without alcohol in their system, while a person with a BAC of 0.10 is 48 times more likely to have an accident. A driver whose BAC is 0.15 is 380 times more likely to have an accident! As far as accidents involving deaths are concerned, a driver with a BAC of 0.10 or greater is seven times more likely to be involved in a fatal motor vehicle collision than is a driver who has not consumed alcoholic beverages. A driver with a BAC of 0.15 or greater is about 25 times more likely to get into a fatal accident than a non-drinker.

Note that a person need not have a BAC of .08 or higher for it to affect his or her judgment and driving skills. Even after “just a couple” of drinks, a person’s driving ability may be impaired, causing him or her to drive erratically, affect the reflexes such as the ability to respond to an emergency stop, or divert his or her attention from watching the road. A BAC of .02 causes a decline in some loss of judgment, a decline in visual functions, affecting the ability to track a moving object, and a decline in the ability to perform two tasks at the same time. A BAC of .05 results in significant impairment in eye movements, glare resistance, visual perception, reaction time (especially in emergency situations), certain types of steering tasks, information processing, and other aspects of psychomotor performance.

When someone drinking is near the level of intoxication (.08), studies show that he or she has poor muscle coordination, affecting their balance, speech, vision, reaction time and hearing. This makes it more difficult for them to detect danger and exhibit impaired judgment, self-control, and reasoning ability and memory. A driver with a BAC of .08 will have difficulty in concentration, ability to judge the speed of the vehicle, will experience reduced information processing capability, and demonstrate impaired perception.

Alcohol affects people differently, according to their sex, weight, and experience drinking. Some people have a higher response to drinking alcohol than others. For instance, a person with a high response to alcohol can experience signs of impairment at the .02 BAC level that others do not experience until the .05 level.

A 2008 study found that young adults aged 18 to 22 enrolled full-time in college were more likely than their peers not enrolled full-time to use alcohol in the past month, binge drink, and drink heavily. Past month alcohol use was reported by 63.7 percent of full-time college students compared with 53.5 percent of persons aged 18 to 22 who were not enrolled full-time. Binge drinking and heavy use of alcohol rates were 43.6 and 17.2 percent respectively, compared with 38.4 and 12.9 percent respectively for 18 to 22 year olds not enrolled full-time in college. Nearly three million college students admitted to driving a car while under the influence of alcohol!

Injuries or deaths caused by drunk drivers, particularly those who have a previous conviction for DUI, frequently involve the issue of uninsured or underinsured motorist insurance coverage. 50 to 75 percent of drunk drivers whose licenses are suspended continue to drive, usually without insurance, in which case you will have to make a claim under the uninsured motorist coverage of your own insurance policy.

Driving inexperience and immaturity are considered to be the main causes of motor vehicle accidents among drivers ages 16 to 20, even when alcohol is not involved. Adding alcohol to the mix, however, drastically increases the chances of this age group of causing an accident. Youthfulness combined with alcohol often leads to reckless driving and risk taking, such as speeding due to an under-appreciation of their behavior and overestimation of their driving skills.

Suppose the drunk driver who hit you became intoxicated at a bar, restaurant, or even a friend’s house. Can you sue the bar or friend for selling or otherwise furnishing the alcohol to the person knowing he or she was going to be driving home, and the intoxicated person causes an accident on the way home? Generally not.

California law makes it a criminal misdemeanor to sell, give, furnish or otherwise provide alcohol to “any habitual or common drunkard or to any obviously intoxicated person.” However, a person who sells, gives, or otherwise furnishes any alcoholic beverage to any person, including a “habitual or common drunkard” or an obviously intoxicated person cannot be held civilly liable to any person injured or the family of a person killed as a result of intoxication by the consumer of the alcoholic beverage. The law is that it is that it is the drinking (“consumption”) of the liquor that is the cause of the intoxication, not the serving, selling, or otherwise furnishing of the alcoholic beverage. California law specifically states that a social host who provides alcoholic beverages to any person, including minors, cannot be held liable for damages suffered by a person injured by the guests drunken driving, or for injury to the person or property of, or death of, any third person resulting from the consumption of those beverages. This includes providing alcoholic beverages to obviously intoxicated persons whom the host knows is going to be driving a vehicle after leaving the social host’s premises.

The one exception to this rule of non-liability is that a person licensed to sell liquor who sells, gives, or otherwise furnishes an alcoholic beverage to an obviously intoxicated minor can be held liable for injuries, death, and/or damages caused by the minor where the furnishing, sale, or giving of the alcoholic beverage to the minor is the proximate cause of the personal injury or death. The question that frequently arises in these cases is whether the minor was “obviously intoxicated” at the time he was sold or given the alcoholic beverage. This is called a dram-shop cause of action.

“Obvious intoxication” refers to visible and outward manifestations of intoxication that would lead a reasonable person to believe that the minor is intoxicated. Some of “visible and outward manifestations of intoxication” include incontinence, unkempt appearance, alcoholic breath, loud or boisterous conduct, bloodshot or glassy eyes, incoherent, slow, deliberate or slurred speech, flushed face, poor muscular coordination, unsteady or slow and deliberate walk, loss of balance, impaired judgment, or argumentative behavior. For a person to be obviously intoxicated, he or she must exhibit one or more of these outward and visible signs of intoxication sufficiently to cause a reasonable person to believe that he or she is intoxicated. Simply put, a supplier of alcohol must use reasonable care to ensure that the person receiving the alcoholic beverage is not an obviously intoxicated minor. A seller or supplier of alcoholic beverages must heed those symptoms of intoxication that are plain to a reasonable person having normal powers of observation.

Suppose you give your keys to the manager, bartender, or other employee and tell them not to return them to you if you are not fit to drive your vehicle after you are finished drinking. In such a case, the bartender may have a duty not to return the keys until the patron is able to drive safely or alternative arrangements to drive or take the intoxicated patron home have been made. In such a case, the manager or bartender has been found to have voluntarily undertaken the duty to ensure the person was able to drive safely and could be held responsible for returning the patron’s keys if he or she were intoxicated.

Under the “going and coming” rule, an employer generally is not vicariously liable for injuries caused by the careless (“negligent”) driving of its employer on the way to work or home. However, an employer may be held liable for injuries and damages caused by an employee on his or her way home from work who became intoxicated at a social function sponsored by the employer that the employee was required or expected to attend. Thus, where an employee had attended a banquet where he was invited by the employer for the purpose of receiving an award, the banquet was paid for by the employer, the liquor was furnished by the employer, and the employee was expected to attend the banquet, the employer was held vicariously liable for injuries caused by the employee while driving home intoxicated.

An employer was also held legally responsible for injuries caused by an intoxicated employee who got into an accident while driving home from work in an intoxicated condition, where the evidence showed that the employer permitted recurrent drinking parties on the premises, purchased the liquor from the company accounts, and encouraged the activity as both a business and social gathering.

If you have been injured by a drunk driver, it is important to contact an experienced personal injury law firm as soon as possible after the accident, as the law firm may want to send its own investigator to the scene of the accident to inspect and take pictures of the accident site and any dangerous condition that caused or contributed to the accident, especially before there are any significant changes to the condition from the time of the accident. The attorney or his or her investigator will also want to talk to any witnesses to the accident while the facts are still fresh in their minds. If a government employee was the intoxicated driver who harmed you, you may be able to sue his or her employer, the State, the county, the city, or the public agency. If that is the case, you need to act quickly, however, as a claim will have to filed with the appropriate government agency within six months of the accident. An experienced personal injury law firm will know how and where to file the claim on your behalf.

An experienced personal injury law firm can also help with seeing to it that you obtain appropriate and thorough medical care for your physical, emotional, and psychological injuries suffered as a result of the accident. They can also do everything possible to ensure that you obtain full compensation for your medical expenses, pain and suffering, mental anguish, property damage, lost wages, and all of your other injuries and damages. If you have been injured by a drunk driver, in additional to the traditional injuries you can recover, you may also be entitled to recover “punitive damages” against the driver. These are damages designed to punish the driver for his wrongful conduct and also to serve as a message to the driver that this type of conduct will not be tolerated. Punitive damages are also designed to send a warning to other drivers that, if they drink and drive and cause an accident, they will be held to pay the price.

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