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Kearney Case Catalyzes Public Outrage About Hit and Run Collisions

Michael Myers — Wed, 25 Nov 2009 08:45:23 GMT

Hit and run collisions seem to increase this time of year. It gets dark earlier and the rain makes it difficult to see pedestrians. It makes sense that the number of accidents increases. But weather and visibility don't explain or justify drivers leaving the scene after hitting a pedestrian, bicyclist or vehicle.

A recent case illustrates the point. KOMO News reported:

Jeff Kearney was hit while walking across a crosswalk on 16th Avenue Southwest in White Center. The vehicle hit Kearney so hard that its side mirror sheered off. But police say the driver slowed for just a moment before speeding off.

Two points.

First, I think that hit and run collisions increase this time of year because (a) people drink more around the holidays and (b) the same factors which increase collisions due to decreased visibility also provide an opportunity for drivers to leave the scene of a collision undetected.

Second, UM/UIM (Uninsured Motorist/Under Insured Motorist) insurance covers hit and run collisions. Even collisions with pedestrians. Buy as much UM/UIM coverage as you can afford. It's not expensive and provides excellent coverage in case a drunk driver runs from the scene of a collision.

Originally posted at InjuryBoard by Michael Myers

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

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

The Intersection Between Rights and Responsibilities - The Left Hand Turn

Michael Myers — Mon, 26 Jan 2009 17:59:53 GMT

Many motor vehicle accidents start with a left hand turn. Most car versus motorcycle and car versus bicycle accidents find their genesis in left hand turns.

In fact, left hand turns are such a frequent cause of accidents that there is a specific jury instruction devoted them. WPI 70.02.01 governs rights of way involving a vehicle making a left turn. It provides:

[A] driver intending to turn to the left within an intersection shall yield the right of way to any vehicle approaching from the opposite direction that is within the intersection or so close thereto as to constitute an immediate hazard. This right of way, however, is not absolute but relative, and the duty to exercise ordinary care to avoid collisions at intersections rests upon both drivers. The primary duty, however, rests upon the driver turning to the left, which duty must be performed with reasonable regard to the maintenance of a fair margin of safety at all times.

"Nursing Home" Falls--Response Times and Call Buttons

Michael Myers — Fri, 16 Jan 2009 11:50:10 GMT

We have a case that involves a resident’s fall at a (physical) rehabilitation center and, unfortunately, the resident’s ultimate below knee amputation. The basis of the claim is that the resident pressed her call button for assistance to the restroom. Assistance never came and, after approximately half an hour, she attempted to transport herself to the restroom using her walker. She fell when she reached the threshold between her room and the restroom.

The rehabilitation center claims that the call button was never pressed and they didn’t know that she needed assistance.

In cases like these do facilities (whether rehabilitation centers or nursing homes) have a duty to ensure that call button systems work consistently and without interruption or, does the rehabilitation center and nursing home have to have actual or constructive notice that the system was not working in order for it to be found liable in situations like this? What do you think is fair to both the facility and the resident? If you had a family member in a facility and this happened, what do you think would be a fair resolution?

Originally posted at InjuryBoard by Michael Myers

Bicycles and UIM Coverage...Why do I Need Auto Insurance if I Ride a Bike?

Michael Myers — Sat, 10 Jan 2009 20:47:13 GMT

I recently read about a hit and run accident at another blogger's site:

A bicyclist was taken to Harborview Medical Center with life-threatening injuries Tuesday after a hit-and-run collision on Beacon Hill.

The collision happened about 1:50 p.m. near 21st Avenue South and South College Street.

The preliminary investigation determined a person driving a navy-blue 1980s-model Oldsmobile Cutlass or Chevrolet with a white top drove into the oncoming traffic lane to pass another vehicle at a stop sign.

Police said the person ran the stop sign going northbound on 21st Avenue South and hit the 20-year-old cyclist, sending him into the air.

We've had a spate of hit and run incidents in Seattle recently. (One of the comments at the original post makes the good point that a hit and run incident is not an accident: the collision may have been an accident but the decision to drive off was a purposeful choice.) It highlights the importance of purchasing UIM coverage when renew your auto insurance even if you spend most of your time riding a bike.

When there is a hit and run incident and its timely reported to the police, a cyclist's UIM coverage will provide the same benefits as the driver's insurance (had the driver done the honorable thing and stayed at the scene to assist the injured cyclist).

UIM coverage is only available as part of auto insurance. Do you think that bicyclists should be able to purchase UIM coverage without having an auto policy?

Originally posted at InjuryBoard by Michael Myers

Slip and Fall Cases in Parking Garages

Michael Myers — Tue, 06 Jan 2009 13:59:00 GMT

Slip and fall cases – particularly slip and fall cases in parking garages – find plaintiffs caught between the wolves and the sea. The bigger the slippery surface, the more forceful the defense argument that client should have seen and avoided the hazard. The smaller the hazard, the more persuasive the defense argument that it did not have the opportunity to detect and clean up the hazard.

These basic rules were recently on display in a case we handled. Our client was walking through an underground parking structure and slipped in a deposit of oil. He testified that the patch of oil was approximately one foot by four feet. This obviously placed a heavy burden on the manager of the parking facility to clean it up. However, it also imposed significant degree of potential comparative fault on our client for not having seen the virtual oil slick.

Another big issue in the case was when was the oil deposited? We addressed this issue by emphasizing that the oil had not splattered on our client’s clothing when he stepped in it and that his foot – as it slid through the oil – left a lasting impression (indicating that the oil on the parking surface had partially dried and was not the result of a leak).

This case also emphasized that lighting is a significant issue in many slip and fall cases and may help alleviate the challenges posed by the “wolves and the sea” dilemma described at the beginning of this post.

When pursuing any inadequate lighting claim (or an inadequate lighting allegation as a supplement to the slip and fall claim) it is necessary to hiring a lighting engineer to both measure the light available at the location of the slip and fall and also to familiarize counsel with the applicable codes and standards. Also, in pursuing the inadequate lighting claim, it’s important to consider whether responsibility for lighting in the garage is the responsibility of the building owner or if it has been allocated to the management company that runs the garage. The safest course of action in any parking garage case is to file suite against both the building owner and the management company that runs the garage for the building owner.

The case used as the point of reference in this post has settled. It did not go to trial and there was not a determination regarding comparative fault. However, we were on the brink of trial and prepared the case extensively.

While we did not conduct a formal focus group or present the case to a mock jury, we did discuss it extensively with both legal colleagues and people who worked outside the law. They were universally concerned about our client’s decision to walk through other parking stalls in order to get to his car.

Query: Do you think the decision to walk through other parking stalls (particularly in the absence of a designated walkway) makes the plaintiff comparatively at fault or increases the comparative fault allocated to him?

We’re interested to hear your thoughts and comments. Thank you very much.

Originally posted at InjuryBoard by Michael Myers

Duty of Care on Board Holland America

Michael Myers — Sun, 04 Jan 2009 09:43:10 GMT

A lot of people go on cruises over the holidays. Many of these people will cruise on Holland America. Holland America is one of the “high end” cruise lines.

Passengers develop the expectation that they deserve more from Holland America. And, quite frankly, they do.

Passenger expectations primarily relate to customer service. But certainly cruise passengers, and particularly those on Holland America should also receive the highest standard of care when it comes to on board and excursion safety.

Many passengers are legally owed the highest standard of care. This applies to passengers on trains, buses, etc. However, the law has evolved in such a way that cruise lines, including Holland America, owe their passengers only an ordinary duty of care.

Duty of care is important because it sets the parameters by which negligence claims are judged. The bar is set much higher for the defendant if the defendant owes the plaintiff the highest duty of care rather than simply an ordinary duty of care.

The majority of claims against Holland America involve falls and food-borne illness. The majority of claims involving falls require a "mechanical" analysis to determine whether the fall could have been prevented had Holland America exercised ordinary care towards the injured passenger. Food-borne illness cases are somewhat more complicated because they involve a two-step process. First, was the illness in fact food-borne (did passenger contract the illness while eating aboard the ship as opposed to on shore) and second could the exercise of ordinary care, insurance of hygiene and food handling process have prevented the passenger's illness?

Many passengers – no doubt due, in part, to the high fares charged by Holland America – have the expectation that if they get hurt on a Holland America vessel the cruise line will compensate them. This expectation, while perhaps reasonable, does not align with the law. In order to recover for an injury suffered aboard Holland America it is necessary to prove that the cruise line was negligent. This requires the not only an attorney but also the intelligent utilization of experts.

Without an attorney, passengers injured or who become ill while cruising with Holland America are not going to receive an offer from the cruise line that approximates the actual value of their case. In order to maximize value, the injured person needs to retain counsel familiar not only with personal injury law but also with its application to cruise lines and, in particular, Holland America.

Originally posted at InjuryBoard by Michael Myers

Servers and Bartenders Underpaid--Pooled Tips Partially to Blame

Michael Myers — Sun, 30 Nov 2008 11:05:45 GMT

We are seeing more and more cases involving unpaid wages. Along those lines an interesting case out of Texas called Bernal v. Vankar Enterprises, Inc.

Mr. Bernal worked at a series of Texas bars. Tips from customers that were placed in a tip pool and distributed among all employees including managers. Mr. Bernal’s base hourly rate of pay was less than federal minimum wage, and did not receive time and a half pay for overtime.

Mr. Bernal instituted a class action. He alleged violations of the Fair Labor Standards Act ("FLSA"). The FLSA establishes a minimum hourly wage and overtime requirements.

However, some employers are permitted to pay employees less than the minimum wage if the employees receives tips that, when added to their hourly wage, amount to more than the statutory minimum. This practice, known as taking a “tip credit,” is only permitted if the employer has informed the employees of the tip credit provisions and if the employees retain all tips.

The Court held:

1. The Bars violated their minimum wage obligations by failing to inform employees of the tip credit provisions, by requiring employees to cover cash register shortages and unpaid tabs, and by requiring employees to participate in tip pools which distributed tips to managers and janitors.

2. The Bars violated the FLSA by failing to pay appropriate overtime wages.

The economy's tough. You work hard. If you are not getting paid what you deserve, you should contact an attorney to review both your situation and your employer's practices.

Originally posted at InjuryBoard by Michael Myers