Automobile safety is a topic that generates a lot of publicity, as it has the potential to save lives on a daily basis. Indeed, our firm of Providence car accident lawyers actively encourages safe automobile practices. Aside from the more widely recognized areas of auto safety such as distracted driving and seat belt safety, tire safety is less widely known and followed, but has a similar potential to save lives and prevent accidents if properly followed.
A recent article in Trial, an American Association for Justice publication, cites a notable case from Los Angeles County Superior Court (Olguin v. Michelin N. Am., Inc., No. BC456659) that shows the dangers that can flow from unsafe tires. In the case, a multi-million dollar verdict was awarded against an auto repair facility for negligence after installing a 13 year old used tire on a vehicle. The plaintiff acquired four used tires from a salvage lot and had them installed on his vehicle. Eleven days later, the tread separated on one of the tires, causing a rollover accident. The plaintiff experienced significant physical injuries, including spinal fracture, traumatic brain injury, head and arm wounds as well as emotional injuries. At the time of trial, the plaintiff had incurred over $300,000 in medical expenses and was expected to need future medical expenses of about $1.5 million dollars. The jury found the defendant negligent for installing the old tires after they showed signs of cracking.
Fortunately, the dangers associated with tires that Rhode Island personal injury lawyers frequently see are largely preventable. The National Highway Traffic Safety Association encourages taking the following steps every month to prevent accidents and save lives.
· Check tire pressure
· Inspect for uneven wear on tread, cracks, foreign objects
· Make sure all tire valves have caps
· Do not overload your vehicle
· If towing a trailer, remember that some of the weight of the loaded trailer is transferred to the towing vehicle.
Further, the Rubber Manufacturers Association advises use of the PART acronym, which stands for Pressure, Alignment, Rotation and Tread, to encourage tire safety. Drivers should inspect each of these four elements regularly and in accordance with manufacturer specifications.
Of particular concern to insurance companies and injured plaintiffs alike is a common law rule that many jurisdictions continue to adhere to, despite controversy and a new tendency for some jurisdictions to shift away from the long established general rule. The collateral source doctrine basically acts as both a rule of evidence and a rule of damages calculation in a court case. Fundamentally, the rule bars admission payments by collateral sources that tend to benefit an injured plaintiff.
The rule may come into play toward the end of a trial, as part of the instructions to the jury. For example, a RI personal injury lawyer might say that: In determining the appropriate award of damages in this case if any, you must not be concerned about whether or not any of plaintiff’s claimed damages (including medical treatment, dedications, or other economic damages) have been or will be paid for by any other source.
This rule often comes into play in instances where payments are made by a third party. For example, an injured plaintiff may have private health insurance which will pay for some of a plaintiff’s medical expenses. The insurance payment is considered a collateral source, and despite the fact that the payment relieves the plaintiff from the duty to pay for a certain sum of money, the payment cannot be credited to the defendant. That is to say that the defendant is still responsible for the full amount of medical expenses representing damages.
The purpose of the rule is to ensure that a plaintiff in a personal injury case is made whole for injuries that he or she sustained. However, there is controversy surrounding the issue. The American Tort Reform Association (“ATRA”) identifies the problem and both sides of the debate in its article titled Collateral Source Rule Reform, stating:
The collateral source rule bars the admissibility of evidence at trial to show that a plaintiff’s losses have been compensated from other sources, such as the plaintiff’s insurance or workers compensation.
PROBLEM: The collateral source rule keeps important information relevant to the determination of damages from reaching the jury. It allows plaintiffs to be compensated twice for the same injury.
ATRA’S POSITION: ATRA supports permitting the admissibility of evidence of collateral source payments at trial or requiring awards to be offset by the amount paid to plaintiffs by collateral sources, less the amount paid by the plaintiff to secure the benefit.
OPPOSITION: The personal injury bar’s argument in support of the collateral source rule – that a plaintiff should not be penalized for having insurance – fails to take into account the fact the jury should full information when making as determination about damages.
The article also gives a state by state look at the application collateral source laws around the country, pointing to RI General Laws Section 9-19-34.1 as the standard that a Providence personal injury lawyer should apply in our jurisdiction.
Given that automobile accidents result in thousands of deaths and millions of dollars of property damage every year, it’s no surprise that so many agencies dedicate their resources to the prevention of car accidents. Perhaps the most effective way of preventing car accident injuries is the use of restraint devices, including seat belts and car seats. Research has shown the effectiveness of these systems and has prompted state legislatures to mandate the use of these and other driver safety features.
The Centers for Disease Control have produced a Seat Belts Fact Sheet which shows the current data regarding seat belt use, stating that car accidents are the leading cause of death for 5-34 year olds in the United States, with injuries being most prevalent after car accidents in the 18-24 age group. They report that the most effective way to prevent death and serious bodily injury during a collision is with the use of seat belts, claiming that seat belts reduce the risk of injury by 50 percent.
The National Highway Traffic Safety Association (“NHTSA”) collects and distributes similar research regarding the use and effectiveness of seat belts. NHTSA’s Traffic Safety Facts Research Note reports that in 2011, 84 percent of drivers used their seat belts, a statistic that has increased significantly over the last 20 years and has been linked to an overall reduction in the number of traffic accident fatalities in recent years.
State legislatures have appropriately responded to the positive results that seat belt use produces and have enacted laws mandating that drivers and passengers appropriately use safety restraint devices. The RI Department of Transportation lists the state specific laws regarding child restraint and seat belt laws. RI General Laws Section 31-22-22 states that “any passenger thirteen years of age or older, in any seating position, shall be transported properly wearing a safety belt” and “[a] motor vehicle operator shall be properly wearing a safety belt and/or shoulder harness system.” RI personal injury lawyers are in a unique position to see firsthand the effects that such laws have on car accident victims. RI car accident lawyers generally agree that laws such as this one reduce in number and severity the injuries seen after a collision.
The Rhode Island law is still the subject of some debate, like similar laws nationwide. Our state has since 2011 been a primary enforcement state, which means a driver can be stopped by police solely for failure to wear a seat belt. Those who are stopped without wearing a seat belt face an 85 dollar fine. The current law is set to expire soon if legislative action is not taken to renew the law. Hopefully, action will soon be taken in this matter, as the positive impact on safety is well worth the slight inconvenience that the law creates.
The National Safety Council has operated for over 100 years with the goal of utilizing up to date scientific research and investigation for the purpose of educating the public at large in how to save lives and prevent injuries. The Council promotes June as National Safety Month, dedicating the first week of this month to preventing slips, trips and falls. RI premises liability lawyers frequently endorse similar goals and advocate change in industrial and personal settings as well as change in local laws that are likely to enhance safety and benefit the general public.
Various groups around the country participate in National Safety Month to spread the word about current trends or new research that may have a potential impact on safety now or in the near future. For example, the American Ladder Institute, in support of this year’s National Safety Month theme, “Safety Starts with Me,” has stated
[our institute] contributes greatly to [National Safety Month] through its Ladder Safety Training, which is offered on-line at no cost. It is an ideal opportunity for companies whose employees use ladders and for individuals to participate in National Safety Month. Learning about proper ladder use, selection and care is just one way to be involved. ‘We encourage all companies and individuals who use ladders to participate in National Safety Month by taking advantage of ALI’s on-line safety training. Our number one concern is reducing accidents that result from improper selection and use of ladders,’ said Jeff Inks, Executive Director, American Ladder Institute. ‘[Our] safety training goes hand in hand with [this year’s] theme.’
With any kind of personal injury, prevention is always the best remedy. We urge people to use caution and look out for their own safety. Unfortunately, the startling statistics show that slip and fall accidents are increasing, particularly among high risk groups such as the elderly. RI slip and fall attorneys frequently prosecute negligence actions in civil court on behalf of injured victims who experience injuries as a result of slips, trips, and falls and understand the serious nature of these types of accidents. If you have experienced such an incident, we can assist you in obtaining compensation for damages. Call one of our offices to set up a consultation with a top RI personal injury lawyer. Our no fee guarantee ensures that you pay nothing unless we are successful in handling your case.
The dangers of distracted driving have become widely publicized in recent years as the annual incidence of injuries resulting from car accidents continues to increase. RI Car Accident Lawyers frequently see the disastrous consequences of texting and driving and other forms of distracted driving as they prosecute actions in civil court to preserve the rights of injured victims.
Our firm of RI Personal injury Lawyers has reported on the recent statistics of texting and driving and distracted driving and we continue to advocate for any change in the law that will prevent accidents and help to protect the community.
A current Rhode Island General Assembly Press Release recognizes the need to address this issue and quotes the National Transportation Safety Board as reporting that
at any given moment, 13.5 million drivers are on handheld phones, and that in 2010, more than 3,000 roadway deaths involved distracted drivers. Additionally, according to the Virginia Tech Transportation Institute, sending or receiving a text message takes a driver’s eyes away from the road for an average of 4.6 seconds. At 55 miles per hour, this is the equivalent of driving a full 100 yards, the length of a football field, completely blind.
In response, House Bill 2013-H5655 has been enacted into law to enhance the training that drivers in this state will receive prior to issuance of a driver’s license. The bill presents an amendment to RI Gen. Laws Section 31-10-19 which governs driver traffic safety education. The bill adds the following section to the existing law:
Dangers of distracted driving, including, but not limited to, use of cell phones would be included in this section curriculum and included in all testing as part of the state’s driver’s license examination.
This requires education in the dangers of distracted driving as a prerequisite to obtaining a driver’s license in this state. Hopefully, this law will have an impact on the growing statistics and reduce injuries and fatalities from car accidents in the future.
Our firm understands the effects that a car accident can have and we are prepared to assist you in handling your claim. If you have been injured after a car accident, call a RI Car Accident Lawyer who has the necessary experience to handle your case quickly and efficiently in order to protect your legal rights.
Bicycle safety is a great public safety concern that affects nearly everyone. According to the Centers for Disease Control, hospitals treat more than 500,000 people across the country annually, and more than 700 people die from of bicycle-related injuries each year. Children account for the majority of injuries that result from bicycle accidents. In 2001, children under 16 accounted for 59% of all bicycle-related injuries seen in the United States.
Many people don’t know that state law mandates the use of bicycle helmets for children. RI Gen. Laws Section 31-19-2.1 states that
any person fifteen (15) years of age or younger who is operating or who is a passenger on a bicycle or who is using or operating a skateboard, rollerskates, scooter or inline skates on a public highway, bicycle trail or path, shared use path, park and/or recreational area, school property or on any other public right of way shall wear a helmet. The helmet shall fit the person’s head and shall be secured to the person’s head by straps while the person is operating the bicycle, skateboard, scooter, rollerskates or inline skates. The helmet shall meet the standards for helmets established by the United States Consumer Product Safety Commission (CPSC) or subsequent standards. In no event shall failure to wear a helmet be considered as contributory or comparative negligence, nor shall the failure to wear a helmet be admissible as evidence in the trial of any civil action.
The law is based in part on the research conducted by public agencies, for example, the National Bicycle Safety Network, which are charged with the development of national strategies for advancing bicycle safety to eliminate the incidence of traffic related bicycle accidents.
Every year, the RI Association for Justice offers a bike helmet safety program that aims to reduce and prevent injuries from bicycle accidents. The program is overseen by local RI personal injury lawyers who donate bike helmets to young children to help them understand the importance of bike safety and preventing traumatic head injuries. Mike Bottaro, as a RI bike accident lawyer and founder of the Bottaro Law Firm, has been active in this and other public service programs for many years. See The Bottaro Law Firm Facebook page for detailed information about the success of this year’s helmet safety program.
After experiencing an injury, retaining the services of an experienced Providence personal injury lawyer can prove to be a sensible decision. An attorney can evaluate the availability of any claims for relief that you may have and can discuss with you the options from which you can pick to pursue your claim. Given that a trial in state court may take several years to finalize, alternative dispute resolution is a popular way to provide efficient resolution of personal injury cases. Of these, arbitration is one of the most widely used. As stated by the American Arbitration Association,
Arbitration is a time-tested, cost-effective alternative to litigation. Arbitration is the submission of a dispute to one or more impartial persons for a final and binding decision, known as an “award.” Awards are made in writing and are generally final and binding on the parties in the case. The AAA’s arbitration services include access to its superior case management services, well-screened expert neutrals who undergo continuous training, and the AAA’s Rules and Procedures that govern the various ADR processes.
In Rhode Island, arbitration administered by the RI Superior Court is mandatory for several kinds of cases. Although this is non-binding and performed under state-specific rules, it does not preclude utilization of binding arbitration. Therefore, these e a viable options for you and your RI car accident attorney to discuss.
Should you elect to enter into a binding arbitration, you will likely be able to resolve the matter quickly, however your ability to later enter the court system will be very limited. For a good example of how limited court review of an arbitration award is, see the case of Wheeler v. Encompass Insurance Co., 2011-313 (RI 2013). That case showed the narrow scope of a court’s authority after an arbitration award was made that granted prejudgment interest in excess of an insurance contract’s policy limits.
If you have experienced personal injury and would like to speak to an attorney about all the options that are available to you, call one of our offices to schedule a free consultation with one of our knowledgeable Providence personal injury attorneys.
Our last post discussed the case of Oden et al. v. Schwartz, M.D., 2013 WL 2109929, a recent RI Supreme Court decision which dealt with a number of relevant issues of particular interest RI personal injury lawyers. One argument that the state’s high court had to rule on was the defendant’s argument of intervening and superseding cause, where the defendant essentially stated that “even if he [was negligent], this negligence was trumped by Dr. Singh’s [negligence],” and therefore he should not be held responsible for the damages that ultimately flowed from the wrongful acts.
Recall that in this case, a plaintiff underwent open heart surgery and a heart valve replacement. Shortly after the surgery, the plaintiff was diagnosed with aortic insufficiency related to an errant suture placed during the surgery. The plaintiff’s condition required additional open heart surgery to correct. The Plaintiff ultimately filed suit against the defendant, an echocardiologist who assisted the first surgery, along with the surgeon and the hospital. Expert testimony admitted at trial by the plaintiff’s RI medical malpractice attorney tended to show that both the surgeon who operated on the plaintiff and the defendant acted negligently.
The defendant argued that the surgeon’s negligence was enough to break the causal connection between his own negligence and the plaintiff’s injuries which resulted after the first surgery. At trial, the judge refused to allow a jury instruction on intervening and superseding cause, and thus the defendant claimed that there was reversible error in the case.
The Supreme Court agreed with the trial judge, and held that a jury instruction on intervening and superseding cause would have been improper, stating that
[i]ntervening cause exists when an independent and unforeseeable intervening or secondary act of negligence occurs, after the alleged tortfeasor’s negligence, and that secondary act becomes the sole proximate cause of the plaintiff’s injuries.
The trial judge reasoned that in a complex open heart surgery, the functions of all the physicians are intertwined, and each physician owes a duty to the patient to perform adequately. The negligence of the two doctors in this case could hardly be said to be independent of each other. Therefore, the court concluded that it was proper not to allow the requested jury instruction.
Medical malpractice cases often involve complex legal issues such as the ones reviewed in this case. If you have experienced injury and believe you may be the victim of medical negligence, call an experienced RI medical malpractice attorney who can advise you as to whether or not you should make a claim for compensation.
Earlier this week, the RI Supreme Court handed down an opinion in the case of Oden et al. v. Schwartz, M.D., 2013 WL 2109929. This case presented an issue of first impression to the Court, the constitutionality of the RI prejudgment interest statute, a law that is widely used by RI personal injury lawyers when obtaining compensation for their clients.
The RI law is codified as RI Gen. Laws Section 9-21-10 governing interest in civil actions, and states
(b) … in any action filed on or after January 1, 1987, for personal injury or wrongful death … based on professional negligence, … such medical malpractice actions in which a verdict is rendered or a decision made for pecuniary damages, there shall be added … interest at the rate of twelve percent (12%) per annum thereon from the date of written notice of the claim … to the malpractice liability insurer, or to the … health care provider or the filing of the civil action, whichever first occurs.
In the recent case, the plaintiff underwent open heart surgery and a heart valve replacement. Two months after the surgery, the plaintiff was diagnosed with aortic insufficiency related to an errant suture placed during the surgery. The plaintiff’s condition required additional open heart surgery to correct. The Plaintiff ultimately filed suit against the defendant, an echocardiologist who assisted the first surgery, along with the surgeon and the hospital. Both the surgeon and hospital settled before trial.
At trial and on appeal, the plaintiff’s RI medical malpractice attorney had the daunting task of defending an attack on the constitutionality of the RI prejudgment interest statute. The defendant argued that the statute violated the due process clause of the United States and Rhode Island Constitutions, claiming infringement of a defendant’s right to jury trial because the statute may cause a defendant to settle rather than risk a verdict and an assessment of prejudgment interest. In response to the Defendant’s constitutional claim, the trial court judge
“rejected [Oden’s] contention that the right to a jury trial triggers strict scrutiny; rather, [the judge] reasoned, the correct test to be applied was the rational basis test. Since awarding prejudgment interest promotes settlement and compensates plaintiffs for the loss of their money while cases are pending … the statute passed constitutional muster under a rational basis analysis. Furthermore, … having a uniform prejudgment interest rate ‘ensures certainty in the calculation of final judgments.’”
The Supreme Court agreed, stating that
“’payment of interest [is] an appropriate subject for legislative action,’ and we cannot say that, even in today’s economy, 12 percent is not a ‘reasonable measure of the loss sustained through delay in payment.’”
1. Open Water Swimming
When swimming in our ocean or bay, first understand the tide and currents. If you are caught in a riptide, swim parallel to the current until you can safely reach shore.
Avoid swimming alone. When swimming with children, use the “touch system” by staying within an arm’s reach of the child.
2. Outside Sports
Acclimate to the sun and heat by shortening outside exposure and increasing rest time.
Experts advise four to eight ounces of water before your activity and 12 to 16 ounces during each hour of your activity. Wear lightweight, light clothing. Despite the heat, it remains important to properly warm-up before exercising and stretch thereafter.
3. Sunburn Prevention
Sunscreen can fade quickly with sweat and watersports. Apply at least 30 spf and keep the sunscreen handy for re-applications throughout the day. Consider wearing a hat and limiting your skin’s direct exposure to the sun.
4. Boating Safety
For adults and children, use life jackets every time and only use “US Coast Guard Approved” life jackets. For children, avoid “floaties” and similar types of inflatables that can be unsafe and are not thoroughly tested.
Before using life jackets, take the time to ensure proper fit.
Know that excessive alcohol use is involved in a large percentage of boating accidents.
5. Diving – Know Your Depth
Each year, life altering spinal injuries occur from people diving and striking their head on the bottom of a pool, lake or other body of water. Avoid diving until you know water depth. Additionally, understand that water depth can change, for example, with the tides. Be sure to re-check depth at each visit to your favorite spot.
Be safe and have fun this season!