Injured - The FindLaw Accident, Injury and Tort Law Blog

July 2009 Archives

Legislation introduced in the U.S. Senate today would effectively impose a national prohibition on texting while driving. Referred to as the ALERT Act, the legislation, sponsored by four Senate Democrats (Charles Schumer of New York, Mary Landrieu of Louisiana, Robert Menendez of New Jersey, and Kay Hagan of North Carolina), would require the Department of Transportation to devise a penalty scheme for texting-and-driving offenses and would then require states to enact laws implementing the scheme.

The legislation follows the familiar example of previous federal laws raising the minimum drinking age, requiring seat-belt use, and imposing a 55 mile-per-hour speed limit. In order to regulate automotive-safety issues like these that are clearly within the authority of the individual states, Congress resorts to an indirect route, telling the states that unless they enact the laws that Congress wants, federal funding for highway projects will be withheld.
Microblogging site Twitter appears to have reached a cultural-awareness milestone: people are now suing each other over comments posted there. Today the story of the big, bad landlord and the put-upon tenant has shifted once again, as the landlord tries to shift blame to its allegedly litigious tenant.

The story so far: back in May, Twitter user and then-Horizon Realty tenant Amanda Bonnen complained via tweet that her landlord was apparently allowing her to live in mold-infested filth: "Who said sleeping in a moldy apartment was bad for you? Horizon realty thinks it's okay." The response this month from Horizon: lawsuit! A short complaint filed in Cook County court last week accused Bonnen of libeling Horizon in 140 characters or less, and sought $50,000 in damages.

Reaction on Twitter and in the blogosphere was predictably incredulous. Not only did this sound like a severe overreaction to a minor complaint made to about 20 Twitter followers; Horizon's own spokesman fanned the flames with an instant-classic quote, declaring his family's company a "sue first, ask questions later kind of an organization," according to the Chicago Sun-Times.
Today, for a change, we foray briefly into the relatively little-known area of maritime law, which among other things governs claims involving maritime workers injured on the job. In one of its traditional flurry of term-ending cases in late June, the Supreme Court ventured onto the high seas to declare that punitive damages are available in Jones Act suits. So just what is the Jones Act, and what does this mean for sailors?

The Jones Act covers the United States merchant marine, and  among other things, provides sailors with a remedy when they are injured working on U.S. ships. Before the Jones Act, injured sailors had to rely on the so-called "common law" protections of international maritime law, rules and procedures refined through experience over a couple of centuries. Under this system, an sailor injured on the job was entitled to "maintenance and cure," which meant that the employer was responsible for medical care and a daily stipend known as "maintenance" that was like a small room-and-board payment. The employer owed maintenance and cure regardless of who was at fault for the injury.

Does Speeding Still Kill?

The Debate On Speed Limits and Enforcement Continues.

Fourteen years after states were allowed to begin increasing their highway speed limits from 55 MPH, debate continues about what, if anything, should be done to curb the number of speeding-related traffic fatalities. An academic study and an advocacy group's report out this week highlight some advocates' concerns.

A study by researchers at the University of Illinois, Chicago, to be published in the American Journal of Public Health, has found that since the 1995 repeal of federally-mandated 55 MPH speed limits, there has been "a 3.2% increase in road fatalities attributable to the raised speed limits on all road types in the United States." Rural and urban interstates have seen particularly large increases in fatalities, at 9.1% and 4.0% respectively. The researchers recommend a return to nationwide 55 MPH speed limits in order to save lives.

Also lobbying for increased traffic enforcement is New York City group Transportation Alternatives, which just issued a report entitled "Executive Order: A Mayoral Strategy for Traffic Safety."

The National Transportation Safety Board has had a busy week of addressing transit crashes. After recommending changes for Washington's Metro, it issued its report on the May 2008 collision on Boston's Green Line that killed the operator of one train. The verdict: a combination of the operator's probable sleep disorder, leading to her falling asleep at the wheel, and a lack of adequate safety systems.

The Massachusetts Bay Transportation Authority, which operates the Green Line along with Boston's other 3 subway lines, is not having a good year, safety-wise. It was already forced, in May, to very publicly ban its train and bus operators from even possessing cell phones while on duty, after a train operator injured 50 people by slamming his trolley into another one while distracted by a text message.

Now the NTSB report on last year's fatal crash faults the transit authority for not adequately screening for sleep disorders and for not having appropriate safety systems in place. The board's two main recommendations:

Burr Oak Cemetery Lawsuits Begin

Recent Headlines Have Many Wondering: What Is Intentional Infliction of Emotional Distress?

In Chicago this week, eyes are on the gruesome story of the Burr Oak Cemetery, where several employees allegedly disinterred and dumped hundreds of bodies over the course of several years in a scheme to resell burial plots. The cemetery, historically a burial ground for many in Chicago's African-American population and the burial place of civil rights icon Emmett Till and musicians Dinah Washington and Willie Dixon, has been besieged in recent days by families wanting to know if loved ones' graves have been disturbed, according to the Chicago Tribune.

The stories are heartrending, and it is no surprise that several lawsuits have already been filed in the case. Such suits, in addition to seeking to compel the Burr Oak Cemetery to provide information about loved ones, might focus on enforcing a contract for the provision of a burial plot, or on holding the cemetery's owners responsible for negligently hiring or failing to supervise the workers who ran the scheme. But stories mentioning the suits also frequently reference claims for "intentional infliction of emotional distress." What is intentional infliction of emotional distress, and how does one prove it?

The National Transportation Safety Board is expected to take months to complete its investigation of last month's Washington Metro train crash, but it signaled strongly this week that it has already identified the major culprit in the collision.

According to a New York Times story, the NTSB issued an "urgent recommendation" on Monday to the Federal Transit Administration, urging them to tell transit operators nationwide to inspect for a train-detection issue in computerized systems.

It appears that the NTSB is concerned that a single circuit, designed to detect the presence of a train on a given segment of track, may have briefly failed, causing the train to become invisible to Metro's computerized control system. Compounding this problem was an alleged lack of redundancy in safety systems. The NTSB's recommendation thus urges transit operators to ascertain how their systems would react to a loss of train detection, and to investigate whether there are adequate redundant safeguards for such a situation.

General Motors emerged from bankruptcy protection last week, a month after Chrysler emerged from its own bankruptcy as a new subsidiary of Italian automaker Fiat. Both companies used the bankruptcy process more or less as expected, seeking to shed liabilities and reinvent themselves as, they hope, more successful enterprises. But in the key area of product liability, the two companies took very different paths, with potentially very different outcomes for their customers.

Car makers are no strangers to lawsuits alleging that faulty design or manufacture of their cars led to an accident. Product liability lawsuits are often filed against auto manufacturers in the wake of accidents, and settlements or judgments for injured consumers are not uncommon. Under bankruptcy law, however, a consumer's product-liability claim against a manufacturer may be treated as an "unsecured" claim, a type of claim that is among the last to be paid.

Pharmaceutical manufacturer Bayer HealthCare faces a series of federal lawsuits alleging that its oral contraceptives Yaz and Yasmin (brand names for the drugs drospirenone and ethinyl estradiol) have serious side effects that Bayer did not adequately disclose to consumers.

The birth control related lawsuits were filed last week in Ohio and Wisconsin, according to a press release by the law firm representing the plaintiffs. The four women who filed suit allege that they suffered side effects including deep vein thrombosis, pulmonary embolism, and stroke while taking Yaz or Yasmin pills. The suits allege that Bayer failed to warn of these potential complications.

Failure-to-warn claims are one of several legal theories under which pharmaceutical-drug-liability suits typically proceed. Pharmaceutical manufacturers are required to disclose known side effects to consumers, either directly or by making relevant information available to physicians, and to take reasonable steps to continue to ascertain and disclose side effects as long as the drug is on the market. Besides having a significant profit motive, a drug's manufacturer is assumed to be the leading expert on the drug's chemistry, with a responsibility to share this expertise in the name of consumer safety.

Survey Says: Teens' Driving Habits are Risky

The most inexperienced drivers on the road may also be engaging in some of the most dangerous behavior, according to a new survey that examined the habits of teenagers when they get behind the wheel.

61 percent of teens admitted to risky driving habits like chronic speeding, driving under the influence, and typing and reading text messages while driving, in a survey of over 1,000 drivers age 16 and 17, conducted by the American Automobile Association (AAA) and Seventeen magazine.

Here are some highlights from the survey, as reported in a News Release from the AAA:

One Million Kids' Play Yards Recalled by Kolcraft

Another day, another recall that raises more questions about the safety of products meant to keep children safe: Kolcraft Enterprises Inc. is recalling about 1 million portable play yards because of a latch defect that poses a fall hazard to kids.

The recalled play yards were sold under the product names "Kolcraft", "Carter's", "Sesame Street", "Jeep", "Contours", "Care Bear" and "Eric Carle". They were available for purchase at stores nationwide -- including Walmart, Kmart, and Target -- from January 2000 to January 2009, for between $50 and $160.

To find out whether you have a play yard that might be affected by the recall, look for the model number (should be printed on a white sticker on one of the feet of the play yard) and check out the CPSC News Release for detailed product information, including affected product lines and model numbers.

Nursing Home Abuse: Care Facility Duties and Resident Rights

Patterns of abuse at a number of nursing home facilities have been brought to the surface via news stories in recent weeks, drawing attention to the duty that nursing facilities have to prevent residents' mistreatment and harm, and the legal rights of vulnerable nursing home patients.

At LaSalle County Nursing Home in Ottawa, Illinois, a male resident has been linked to the sexual abuse of at least 10 other nursing home patients, and the Illinois Department of Public Health has concluded that the facility didn't do enough to prevent the abuse, according to an Associated Press story covered by WGIL-Galesburg.

In Minnesota, investigation and hearings are ongoing in a case involving allegations that a group of teenage nursing assistants were involved in the sexual and emotional abuse of 15 residents at the Good Samaritan Society of Albert Lea facility, according to a report in the Albert Lea Tribune.

What Cities Have the Safest Drivers? Insurer Releases Rankings

When it comes to safe drivers and the chances of getting into a car accident, where does your city rank? Allstate Insurance has released its yearly profile on the likelihood of traffic accidents in major U.S. cities, based on company data.

The fifth annual Allstate America's Best Drivers Report, released today by the insurance company, "ranks America's 200 largest cities in terms of car collision frequency to identify which cities have the safest drivers" in comparison with national averages, and also spotlights cities with the largest marked improvements in driver safety, according to an Allstate News Release.

Here's a closer look at Allstate's rankings of cities with the safest drivers:

Darvon and Darvocet Need Stronger Overdose Warnings, FDA Says

Drugs that contain the pain-killing ingredient propoxyphene -- including the popular prescription medications Darvon and Darvocet -- will need to carry stronger warnings and detailed instructions on safe use by patients, under orders issued today by the U.S. Food and Drug Administration (FDA).

The action is aimed at reducing the growing number of fatal overdoses linked to drugs containing propoxyphene, and it's part of the FDA's larger effort to appropriately assess and regulate the safety of painkiller medications flooding the U.S. drug market.

"Prescribers and patients should be aware of propoxyphene's potential risks when used at doses higher than those recommended," Janet Woodcock, M.D, director of the FDA's Center for Drug Evaluation and Research said in an FDA News Release on the Darvon and Darvocet Order. "Therefore, the FDA is requiring manufacturers to provide more information to help physicians and patients decide whether propoxyphene is the appropriate pain therapy," Woodcock added.

Since the King of Pop passed, many have wondered what ever became of his beloved pet chimp, Bubbles. In fact, the fate of Bubbles illustrates what should happen with many exotic pets. When Bubbles became too strong to safely live as a pet, he went to a wild animal preserve where he lives now. While the recent saga of Travis the Chimp illustrated what can go wrong with keeping a wild animal as a pet, Michael & Bubbles show us how the relationship can end well.

When people think of Bubbles, they tend to see him as yet another of the pop icon's eccentricities: dressing Bubbles up as a child, taking him to Liz Taylor's house for tea, teaching him to "moonwalk"...

Though keeping a wild animal as a pet in the first place is generally a bad idea, in the end Michael Jackson did right by Bubbles, and by those who could have been hurt by Bubbles. According to the LA Times, with Bubbles becoming more aggressive as he grew up, the chimp transitioned from Neverland Ranch to his trainer's ranch in 2002. Jackson reportedly feared for the safety of young Prince Michael II. In 2005, Bubbles went to the Center for Great Apes in central Florida, where he lives today. Here is Bubbles' resident webpage.

Pet Bites Causing MRSA Infection in People, Study Finds

Bites and scratches from dogs and other animals are infecting people with an antibiotic-resistant strain of staph bacteria, a new study finds. Now is a good time for dog owners and parents to take steps to prevent the occurrence of dog and animal bites.

In hospitals and veterinarian offices across the country, there is a rising number in cases of meticillin-resistant Staphylococcus aureus (MRSA) infections shared between pets and humans, according to the study Bite-Related and Septic Syndromes Caused by Cats and Dogs, published in The Lancet Infectious Diseases.

These MRSA infections are commonly spread through bites and scratches from animals, but they may also be spread from humans to animals, according to the Seattle Times: "Dogs used for hospital and nursing-home visits test positive for MRSA more often then other animals. And that could be because MRSA can be contracted from people who have open wounds or scratches."

Malpractice Claims Mount, But Chicago Doctor Still Practicing

Almost 50 medical malpractice lawsuits filed, and hundreds of dollars awarded to patients injured by botched LASIK eye surgery procedures. That's the recent litigation history against one Chicago eye doctor who is still treating patients, and just part of the alarming story being reported in the Chicago Tribune this week.

Almost a year ago, the chief medical prosecutor in Illinois investigated the mounting claims of negligence against Dr. Nicholas Caro, and recommended that the Chicago ophthalmologist's medical license be revoked or suspended, after Caro "mishandled Lasik surgeries and failed to properly manage treatment of post-operative complications," the Tribune reports.

But so far no action has been taken against Dr. Caro, who continues to perform eye operations, and the case highlights the sometimes glacial pace of disciplinary proceedings against doctors, even when those who are tied to stacks of complaints.

NHTSA: Fatal Car Accidents Hit Record Low in 2008

Fatal car accidents reached their lowest numbers in almost 50 years in 2008, and that nationwide trend is continuing into 2009, according to encouraging highway safety figures released by the National Highway Traffic Safety Administration last week.

Overall, last year saw a 9.7 percent drop in the number of people killed in motor vehicle accidents in the U.S. -- from 41,259 fatalities in 2007 down to 37,261 in 2008. That's the lowest number of car accident fatalities since 1961, and the decline in fatalities is the largest since 1982 in terms of both number and percentage, according to the NHTSA.

Here's a look at some of the highlights of the NHTSA's 2008 Traffic Safety Annual Assessment

Baby Pool Floats and 'Simplicity' Cribs Recalled

Two large-scale recalls have been announced today, involving products that pose serious dangers to kids: 4 million baby pool floats manufactured by Aqua-Leisure Industries, and 400,000 cribs made by Simplicity Inc. Get the recall details below, including the latest information from the U.S. Consumer Product Safety Commission.

Aqua-Leisure Industries Baby Floats. About 4 million inflatable baby floats are being recalled by Aqua-Leisure Industries, based in Avon, Massachusetts. The company has received 31 reports of leg straps on the floats tearing, causing children to fall into the water. There have been no injuries or deaths reported, but the defect poses an obvious drowning risk.

At least 14 different styles of the Aqua-Leisure floats are affected by the recall. The floats were sold at retailers nationwide -- including Target, Toys 'R' Us, and Wal-Mart -- between December 2002 and June 2009, for between $8 and $15, according to the CPSC. See the CPSC Press Release on the Aqua-Leisure Baby Float Recall for detailed product information and instructions for parents and caregivers.

A man burned at the Burning Man festival recently lost the appeal of his lawsuit against the festival's promoters. His case vividly depicts "assumption of risk," which can prevent a plaintiff from prevailing in a personal injury claim.

The San Franciso Chronicle reports that a California appeals court upheld a verdict that organizers of the annual Burning Man festival did not negligently cause the burns suffered by Anthony Beninati in 2005.

As recounted in the court's opinion, Beninati was attending his third Burning Man festival in 2005. As usual, the festivities concluded with the burning of a 60 foot effigy from which the festival draws its name. Once the structure collapses, participants often toss objects such as mementos into the bonfire.

Beninati went toward the bonfire in order to throw in the photo of a friend who had planed to attend Burning Man with him, but died six week before the festival. He tripped and fell into the fire, burning both hands badly.

Beninati sued the festival promoters, Black Rock City, LLC, for negligently causing his injuries by inviting participants to come forward and toss things into the fire without providing safe entrance and exits for doing so.

Stop-Smoking Drugs Will Carry Suicide Warning

The popular stop-smoking drugs Chantix and Zyban will carry strong "black box" warnings on risky mental health side effects, as suicides among users of the drugs continue to rise, the FDA announced today.

The new warnings will be required on the prescribing information for Chantix (made by Pfizer) and Zyban (manufactured by GlaxoSmithKline), and "will highlight the risk of serious mental health events including changes in behavior, depressed mood, hostility, and suicidal thoughts when taking these drugs," the FDA says.

The "black box" warnings -- so named because the cautionary information must be prominently displayed inside a black box, set off against other text in the drug's packaging -- were ordered based on reports of mental health problems and suicidal behavior submitted to FDA safety officials.

Big Rigs May Get Speed Limiting Devices

Mandatory equipment that would limit the speed of big rigs and other commercial trucks has the backing of many in the trucking industry, and the cause may soon get taken up by federal safety regulators or lawmakers, the Los Angeles Times is reporting today.

The use of speed-inhibiting devices on big rigs is being urged by a father whose son was killed when his car was rear-ended by a large truck, and the idea is being supported by the American Trucking Associations, according to the Times. The ultimate goal of Stephen Owings of Atlanta is either a U.S. Department of Transportation regulation or a bill from Congress requiring that the devices be installed on big trucks.

The speed inhibiting devices are disfavored by "conservatives who oppose government regulation of business as a matter of principle, truckers who own their own big rigs, and owners of smaller fleets," the Times reports.

Vicodin, Percocet Bans Could Be On the Way

The widely-prescribed painkillers Vicodin and Percocet could be banned in the U.S., if the FDA follows the recommendations of a panel of medical experts that met earlier this week.

The advisory panel assembled on Monday and Tuesday to evaluate the health risks of over-the-counter and prescription medications containing acetaminophen, and to recommend a course of action that might reduce health problems associated with these products -- specifically, the incidence of liver damage caused by high doses of acetaminophen. (For more background, see FDA Looking at Acetaminophen and Liver Damage.)

The panel looked at OTC acetaminophen medications like Tylenol and Excedrin; OTC "combination drugs" like NyQuil and Theraflu, which include acetaminophen and cold medications; and prescription drugs like Vicodin and Percocet that combine potent levels of acetaminophen with a narcotic.