Archive for the 'Personal Injury' Category

Indiana HIV Epidemic – Rights for Those Infected

Over 100 people in southeastern Indiana recently tested positive for HIV. Governor Mike Pence declared a public health emergency within the county on March 26 due to the massive amount of cases for a town with a minimal population.

hiv epidemic in indianaThe HIV outbreak is caused by intravenous drug users sharing of needles. Most of the infected people injected a liquefied version of Opana, a prescription painkiller.

State health officials introduced a new needle-exchange program that allows drug users to turn in their used needles in exchange for clean ones. Officials announced participants will not be arrested for participating in the program, nor will they receive any repercussions for engaging in drug use. The program was initiated to combat the HIV epidemic that is taking over Scott County, Indiana.

Rights for Those Infected

What rights do you have if infected by a needle? Infection can occur at a hospital, tattoo parlor, or anywhere needles are used. Many diseases can be contracted through needles: HIV, Tetanus, Cellutitus, etc. What can you legally do if infected through a needle?

First, you need to prove the accused caused the transmission. Evidence including sexual history, testing history, and scientific evidence are needed in order to prosecute. Intentional sexually transmitted HIV is much harder to prove than intravenous transmitted HIV. The needle holds DNA and strains of HIV within the liquidated drug. The needle is the most important piece of evidence to use in this type of case.

What If You Were Infected at a Tattoo Parlor?

What if you contract a disease through tattooing? The legal principle used in such cases is negligence. Even though waivers are required in order to receive a tattoo, shops can be held liable if negligence is proven.

To avoid claims based on negligence, tattoo parlors should do the following:

  • Artist asks a series of questions about your medical history and any allergies you may have before beginning the tattoo
  • Artists asks if you are over 18 (it is illegal to tattoo anyone under that age)
  • The tattoo parlor displays health and safety certificates
  • The artist to uses a new and sterile needle on each client
  • The artist to washes his or her hands thoroughly and wears disposable gloves, and
  • The artist to gives you adequate after-care advice.

Implied assumption of risk is commonly used as a legal defense. There is obvious risk in receiving a tattoo or injecting drugs. Therefore, tattoo parlors or the person providing the needle can use the implied assumption of risk defense to avoid prosecution.

Parent Liability for Their Children’s Gun-Related Accidents and Crimes

Parent’s Liability When Children Find Their Guns

Two children have recently died and one has been injured in Harris County, Texas. All three incidences happened in a four day period last week. A three year old and four year old both accidentally shot themselves with a gun found at their home, and a five year old critically injured his six year old brother with a gun found as well.

parent gun liability for childrenOn average, between 2007 and 2011, 62 kids per year have died from gun related mishaps like the incidences above. After three tragedies in just four days, Houston authorities have urged parents to lock their firearms in a safe and inaccessible place to children.

Are Parents Responsible?

In Texas, residents do not need a permit to purchase a gun, a registration of firearms, or a licensing of ownership in order to own a gun. It’s common sense to keep a gun out of reach to children in the home, but clearly a lot of parents fail to recognize this basic safety precaution.

Texas has Child Access Prevention (CAP) laws that are specific to kids and guns. Depending on the circumstance, parents can be penalized with a prison sentence or a fine when their children get a hold of a gun in the home.

Texas imposes criminal liability on parents who allow their child access to a gun and do not store the gun safely. But, parents are not held responsible if the gun was in a locked container.

The three children’s parents will most likely not be prosecuted. But when a child (most likely a teenager) steals a gun from the home and shoots people in a public place (usually schools) the parents are much more likely to be held criminally liable.

Could Rolling Stone Magazine Be Found Liable for the False Rape Story?

If Sued, Will Rolling Stone Be Found Liable for the False Rape Story?

In November 2014, Rolling Stone magazine published an article titled, “A Rape on Campus,” describing the brutal gang rape of a freshman named Jackie at a Phi Kappa Psi party at the University of Virginia. As a result of the story, Greek activities on the UVA campus were suspended. Multiple protests of Greek life were held on the UVA campus criticizing the initiation and pledging process of its fraternities.

Rolling SInvestigations into the case have found that the Rolling Stone story was, in fact, not truthful. Rolling Stone has since issued an apology for the story, stating that their trust in Jackie was “misplaced.”

In recent months, many have raised the question whether Phi Kappa Psi or any other fraternity with a UVA chapter could sue Rolling Stone for defamation based on the false story.

What’s Required for a Libel Lawsuit against Rolling Stone?

In order to be found liable, it must be proven that Rolling Stone had actual malice. In other words, it must be established that Rolling Stone knew that the story was materially false. Also, it must be found that the story damaged the fraternity chapter and its members.

Damages include material damages such as being displaced for the period that their fraternity house was closed resulting in hotel costs. Fraternity members could also claim damages in less tangible ways such as emotional distress.

As a result of the story, there were multiple protests throughout the campus. Protests were aimed at a “fight against this victim blaming, slut-shaming culture we have that sexualizes women, yet shames them for being sexual,” as stated in the UVA student newspaper The Cavalier Daily. Fraternity members could argue that they were wrongfully demonized as a result of the article.

While the issue of sexual assaults at fraternity parties remain the subject of intense focus, UVA fraternity members could argue that the focus switched to them specifically, as they were named in the article. The University Phi Kappa Psi President said they will consider all options, though they have not come to a decision as to whether or not they will sue.

When it comes to whether the University of Virginia could possibly sue, the answer is clear. Government entities, such as the University of Virginia, cannot sue for defamation, regardless of whether it can be proven that Rolling Stone knew the article was false when it was published.

 

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A Teacher Was Raped and the State’s Response Is Unacceptable

A female teacher was raped in an Eyman Prison in Florence, Arizona on January 30 2014. She was administering a pre-GED exam to seven convicted sex-offenders and mentally handicapped prisoners. The convicts arrived unescorted, and the classroom was in a remote location without security cameras or in the view of security guards. After the test, all inmates left with the exception of 21 year old Jacob Harvey. Harvey was convicted of a day-time home invasion where he brutally raped and beat a woman while her toddler watched. He was sentenced to 30 years in March 2013.

Jacob HarveyHow can an unarmed woman who is not trained in self-defense protect herself when in a classroom of convicted sex offenders? Should the state be held liable for her injuries? After all, she is an employee, isn’t it their job to protect her? According to Laurie Roberts of The Arizona Republic, the attorney general’s reasoning was essentially “The woman knew she was in a prison, so what did she expect?”

The only communication device she was given was a radio to reach prison guards if an incident occurred. When the inmate attacked the teacher, she tried using the radio, but it was tuned to a channel the guards didn’t even use. She also tried screaming, as Harvey threw her to the ground and stabbed her with pencils, choking her and slamming her head into the floor all at the same time. No guard came to help. The teacher has accused the state of negligence, false imprisonment, and violation of her civil rights.

The state of Arizona has requested that the teacher’s negligence lawsuit be thrown out. But, U.S. District Judge Susan R. Bolton stated that the suit “contains sufficient allegations” and is letting the civil suit go forward. She stated the teacher “faced an unusually serious risk of harm” and the defendants “acted with deliberate indifference in failing to take steps to address that danger”.

The Attorney General’s Office stated the teacher “has attempted to recast absolutely routine prison events”. So an employee being raped by a prisoner is a routine prison event?

Scott Zwillinger, the teacher’s attorney, believes this is a classic case of victim-blaming. On top of physical injuries, he stated “the emotional part of this has tore my client’s life up” and it’s like we’re back in 1952 because “Absolutely, it’s blaming the victim”.

Who is at fault, is yet to be decided. The pretrial conference is set for February 23rd. To me, if an employee is subjected to physical harm with a clear lack of protection that is expected from a prison, the state is at fault and should pay the highest amount of restitution. Victim blaming is not the answer.

Should Parents Be Liable for Their Child’s Creation of a Defamatory Facebook Page?

In Georgia, two seventh graders posted defamatory remarks about a classmate on a fake Facebook page that they created under her name. Their parents may be held liable for their actions once the parents learned of the account, and did not take measures to remove it. This is an unprecedented case that will decide whether parents should be held liable for their children’s activity on the internet.

cyberbullying parent liabilityThe students used a “Fat Face” app to twist the girl’s features out of shape, and made derogatory remarks about her. Per the court document, both students added material to the profile that mentioned that the girl held racist views and was a homosexual. They also had the fake Facebook page send invitations to the girl’s friends, teachers, and relatives. According to the court, the material on the fake Facebook page was “graphically sexist, racist, or otherwise offensive.”

When the girl’s parents found out about the fake Facebook page in the name of their daughter, they discussed the matter with the principal of the school. The two students responsible for creating the page admitted their involvement. They were then suspended from school for two days.

Even after the students’ parents were informed in writing of their children’s behavior, the fake Facebook page could be viewed for an additional 11 months, after which Facebook made the account inactive. It is the opinion of the court that during that time, the fake persona kept extending or accepting requests to become Facebook friends with more users, and that other users saw the page, and posted on it.

The judge ruled that the parents may be held liable for not compelling their son to remove the fake Facebook page that made possibly libelous remarks about the girl. According to the opinion of the judge, “Given that the false and offensive statements remained on display, and continued to reach readers, for an additional 11 months, we conclude that a jury could find that the [parents’] negligence proximately caused some part of the injury [the girl] sustained from [the boy’s] actions (and inactions).”

The case is now going to be tried in the lower court. Hopefully, the trial court will decide in the girl’s favor and hold the parents liable, thereby setting a new precedent that will deter other students from engaging in the same type of bullying behavior.