Trial Attorney Blog

This is the time of year where it seems that everyone who rides in an automobiles passes a high school football practice. The sweltering sun and heat of this summer, which is particularly hot, is obviously a danger to those practicing. If those responsible for the players are not careful, deaths can ensue. Indeed, it has almost become commonplace every summer to read about the death of a high school or college football player due to extreme heat conditions.

Our firm, regrettably, has been involved in cases where football players have died. Two years ago, we represented the family of a member of the football team of a state university who died during extreme heat on the very first day of his team’s practice. This particular player had failed the physical provided by the team’s doctor the week before practice began but inexplicably, even though the doctor wanted to conduct more tests, the coaching staff allowed the player to practice with the all to predictable result the he succumbed to the heat. To make matters worse, when the player got into trouble, there was no trainer on the field nor were there any defibrillators present to render aid to the stricken player who died from a heart attack.

Obviously, caution is the best word here particularly for members of the coaching staff. Coaches need to make sure that their players are properly hydrated. They need to have a defibrillator present. Indeed, we contended in the case we handled that the failure to have a defibrillator readily available was negligence in and of itself. Most sports trainers would agree that in this day and age this is inexcusable particularly since these events are predictable.

In Georgia, owners and occupiers of land or buildings owe certain duties to those who come on the premises. The duties vary according to the relationship between the owner and the person coming onto the premises. The mere fact that one owns or occupies land or a building does not make one liable for injuries sustained by persons who have entered onto the land or the premises. It is a commonly accepted in Georgia law that the owner of a building or land is not the insurer of the safety of those who enter the property.

In general, the respective duties of care owed are determined by the person’s status while on the property. There are three categories by which the status of one on property is classified —- trespasser, licensee, and invitee.

A trespasser is one who enters upon the property of another wrongfully and without express or implied permission for the trespasser’s own benefit or amusement.

Toy maker Mattel, Inc. issued recalls yesterday for about 9 million Chinese made toys that could be potentially dangerous for children. The recalls were negotiated by the Consumer Products Safety Commission. The majority of the toys subject to the recall contain magnets that can be swallowed by children and the rest have lead paint. The recall includes play sets, including the Polly Pocket dolls and Batman action figures as well as almost a quarter of a million die cast cars that contains lead paint.

This massive recall followed other recent recalls of toys produced in China. Currently, it is estimated that more than 80% of the toys sold worldwide are made in China. The recall involving lead paint was Mattel’s second in two weeks. Earlier this month, consumers were warned about 1.5 million Chinese made toys that contain lead paint.

A parent should be cautious of any products containing magnets which children can potentially swallow. If more than one magnet is swallowed, they can attach to each other and cause intestinal perforation, infection or blockage which can be fatal. Mattel reported that since the initial recall of Polly Pocket play sets on November 11th of this year, three children had been injured by swallowing more than one magnet. All three suffered intestinal perforations which required surgery.

Nokia Corp. warned Tuesday that up to 46 million batteries used in some of its cell phones could pose a serious risk of overheating. The batteries subject to the warning were manufactured by Matsushita from December 2005 to November 2006. Matsushita Battery Industrial Co. Ltd. of Japan is one of several suppliers that have together made some 300 million BL-5C batteries.

Nokia is the world’s largest mobile phone maker. The lithium-ion battery is one of 14 different types of battery used in Nokia phones.

Nokia reported 100 incidents of overheating of the Matsushita-made BL-5C batteries. “Consumers with a BL-5C battery subject to this advisory should note that all of the approximately 100 incidents have occurred while charging the battery,” the Finnish company said. “According to Nokia’s knowledge this issue does not affect any other use of the mobile device.”

Legislation is being considered in both houses of Congress to fund pilot projects in 10 states that would create administrative panels known as “health courts.” This legislation is being strongly supported the medical and insurance lobby. The legislation is based on systems in Scandinavia and New Zealand. The state of Florida also has an existing administrative procedure for dealing with birth-related neurological injuries.

The legislation, if passed in its current form, would eliminate jury trials in medical negligence cases. The standard by which the actions of health care providers is judged would not be the traditional negligence standard, but one of avoidability. All decisions would be made by health court judges who could rely on experts serving on specialized panels. Damages would be limited to a range of predetermined amounts which are assigned to specific injuries.

Similar bills were introduced last year, but were modified and reintroduced this year following intense scrutiny during Congressional hearings. The requirements were modified to allow patients to voluntarily withdraw from participating in the health court proceeding due to serious concerns about the constitutionality of denying access to juries.

Powers Fasteners Inc., the company that provided the epoxy adhesive blamed in the fatal Boston Big Dig tunnel collapse was indicted this week in the death of a woman killed on July 10, 2006, when tons of falling concrete crushed her automobile. Milena Del Valle, 39, was killed when as she and her husband drove through the Big Dig tunnel. Her husband escaped with only minor injuries.

An investigation by the National Transportation Safety Board concluded the collapse could have been avoided if designers and construction crews had considered that the epoxy holding support anchors for the panels could slowly pull away over time. The report of the investigation spread blame for the collapse among the many corporations, consultants and engineers involved in the Big Dig project, the most expensive highway project in U.S. history. The agency also faulted the Massachusetts Turnpike Authority for failing to conduct a timely tunnel inspection program.

The indictment alleges that Powers Fasteners knew the type of epoxy it marketed and sold for the nearly $15 billion project was unsuitable for the weight it would have to hold, but never told project managers.

Our lawyers have successfully represented many clients at mediations, covering a wide range of actions such as truck accidents, medical malpractice, auto collisions, and premises liability. Our experiences have led us to conclude that, under the right circumstances, mediation can be of great benefit to plaintiffs. It generally allows the matter to be concluded long before a trial can be scheduled, removes the risks associated with the trial of some cases, and allows the client to control the result, as opposed to a jury, judge, or arbitrator.
Mediation, is a form of alternative dispute resolution (ADR), which aims to assist two (or more) disputants in reaching an agreement. The key component of mediation is that whether an agreement is reached, and the nature of that agreement, if any, is determined by the parties themselves rather than being imposed by a third party. Mediators use appropriate techniques and/or skills to open and improve dialogue between the parties, aiming to help the parties reach an agreement on the disputed matter. In order for mediation to be successful, all parties must view the mediator as impartial.
Arbitration is a procedure for the resolution of disputes outside the courts, wherein the parties to a dispute refer it to one or more persons (the “arbitrators” or “arbitral tribunal”), by whose decision (the “award”) they agree to be bound. Arbitration is today most commonly used for the resolution of commercial disputes, such as between businesses. In many cases contracts between the parties require mandatory arbitration. This is almost universal in investor/broker contracts. It is also used to resolve other types of disputes, such as labor disputes, consumer disputes or family disputes, and for the resolution of certain disputes between states.

Many state, county, and local governments are protected from lawsuits even though their employees may have been extremely negligent in causing severe injuries to innocent citizens. In most instances, the doctrine of sovereign immunity precludes a lawsuit against these entities, unless the governing body, such as the legislature, has waived the protection of sovereign immunity. Even when there has been a waiver, it is generally restricted to a maximun amount of recovery.

For example, in a ruling involving last summers deadly Comair plane crash at Lexington Kentucky, a judge ruled Thursday that the Kentucky airport cannot be sued because it is protected by sovereign immunity as part of the merged Lexington-Fayette County government. This is a severe blow to the airline’s efforts to divide blame and apportion potentially millions of dollars in damages.

Comair had countersued the airport, arguing that it is partially to blame for the crash because of poor runway signs and markings that might have contributed to the pilots trying to depart from a runway that was too short.

The Fifth Circuit Court of Appeals in New Orleans ruled Aug. 2, 2007, in In re Katrina Canal Breaches Litigation, No. 07-30119, that property owners in New Orleans whose buildings were flooded as a result of levee breaches in the aftermath of Hurricane Katrina cannot recover losses from their insurance companies because of the flood exclusions in their insurance policies. Thousands of policyholders of various insurance companies will be affected by the ruling and it is estimated that the policyholders may have to absorb losses in the range of 1 billion dollars.

The policyholders had argued that because their properties were flooded as a result of the levee breaches, a “man-made act,” the flood exclusions in the policies were void. They argued that the flooding in the city was the result of the negligent design, construction, and maintenance of the levees.

In the Fifth Circuit opinion, which the insurance industry is applauding, the court held “that even if the plaintiffs can prove that the levees were negligently designed, constructed, or maintained and that the breaches were due to this negligence, the flood exclusions in the plaintiffs’ policies unambiguously preclude their recovery. Regardless of what caused the failure of the flood-control structures that were put in place to prevent such a catastrophe, their failure resulted in a widespread flood that damaged the plaintiffs’ property. This event was excluded from coverage under the plaintiffs’ insurance policies, and under Louisiana law, we are bound to enforce the unambiguous terms of their insurance contracts as written.”

The lack of visibility of large trucks on the road after dark is a major factor in many accidents which our lawyers have investigated. The scientific term used to describe this area of study is “conspicuity.” Conspicuity refers to the factors of (1) perceiving that something is on the dark road ahead, (2) identifying the object as a large truck, (3) appreciating the truck’s position and slower speed as a danger, and (4) stimulating you to take evasive maneuvers to avoid the imminent collision.

Many car-into-truck accidents occur in the dark of night, when a large truck or tractor-trailer rig is pulling onto a road or backing into a driveway. Often, the tractor’s headlights are aimed toward the oncoming driver and they create a “wall of glare” that conceals the fact that the trailer behind it is stretched dangerously across the dark road ahead.

Since the 1960’s, the trucking industry had known about the safety benefits of reflective tape, but generally ignored the conspicuity issue. Studies in the 1970’s showed that truck underride crashes at night were often “surprise” events to the oncoming driver, who didn’t perceive the truck until it was too late to avoid the crash, and they noted that reflective tape could help solve this problem.