Archive for the 'Personal Injury' Category

Dangers of Flying Drones in Public Places

A University of Kentucky law student, Payton Wilson, allegedly crashed a drone equipped with a high-powered camera, into a stadium suite. The incident occurred during the UK season football opener against Louisiana-Lafayette in early September 2011. Wilson is charged with wanton endangerment. Endangerment is the act of exposing someone or something to danger, harm, or peril.

In Kentucky, an individual is guilty of this crime in the first degree when showing an extreme indifference to human life. The conduct may cause substantial death or serious injury to someone. Wanton endangerment is a second degree charge when the individual’s conduct creates substantial danger of physical injury.  Drone

Wilson allegedly endangered the lives of military parachutist delivering American flags and a game ball to the pre-game show. The University of Kentucky’s police chief claimed it was very dangerous to operate a remote-controlled, non-piloted aircraft where there’s a lot of people. Wilson faces up to one year in jail.

A recent LegalMatch blog discussed drone technology and privacy issues. The task of determining whether or not a person could use a drone is currently left up to local jurisdictions.

Sports Injury is Any Injury Occurring at a Sporting Event

The criminal act of flying a drone in a stadium and having it crash into a suite poses another legal issue. If the drone had caused serious injury to someone sitting in the suite, would the injured bystander be allowed to sue?

In tort law, often referred to as personal injury law, an individual can sue a company or another person because harm or injury suffered. The defendant in this situation could be University of Kentucky and/ or Wilson.

A plaintiff’s injury caused by a drone crashing into a stadium suite is considered a spectator sports injury. This type of injury arises out of:

  • An inherent hazard or risk of watching a sport
  • Actions of a third party, sports team employee, or another spectator
  • Hazardous defects to the equipment or arena that is unrelated to the sports event

Most spectator sports injuries aren’t successful because of assumption of risk. Assumption of the risk occurs when a person knows of the risks and dangers involved in a particular activity and voluntarily accepts those risks and dangers. For instance, a baseball player hits a foul ball. The ball travels into the stands and hits a spectator, breaking his nose. The spectator is liable for his own injuries. He knew there was a possibility of getting hit by a foul ball. He accepted the risks and went to see the game.

A drone crashing into a suite isn’t something a spectator would expect to occur while at a game. If one of the suite spectators was injured by the drone, he would have a legal claim to sue UK. He didn’t assume the risk of a drone injury.

Negligence is the Failure to Use Care an Ordinary Person would Use in Similar Circumstance

An individual injured by a flying drone would have a personal injury claim based on negligence. Negligence is the failure to use the amount of care an ordinary person would use in the same or similar situation. The standard of care can be based on an ordinary person, reasonable prudent person, or one with special skills. The exact “person” used to determine negligence depends on the circumstances. For instance, a doctor would be someone with special skills.

Negligence assumes an ordinary person like Wilson would use an amount of care to prevent harm when flying a drone. The plaintiff would have to show the defendant had a duty not to cause any injury while flying the drone.

Once a plaintiff can show a duty, the next element is breach of duty. Breach of duty refers to a person violating his duty not to cause harm. The person is in violation of his duty because he knows he’s putting another individual at risk or foreseen there was a risk in his activity. An individual injured after the drone crashed into the stadium suite is an example of a breach of duty to keep people safe.

For an act to be negligent, there must be a cause-in-fact, or cause of the accident. A plaintiff can show the defendant is liable in two ways:

  • Indirect, or proximate cause
  • Direct, or actual cause

If Wilson was sued, he’d be the direct cause of the accident because of the “but-for” test. But for Wilson, the plaintiff would have never been injured.

Once a plaintiff can successfully show those three elements, he’d have to prove damages. To receive money, the plaintiff must have incurred some damage or loss as the result of the defendant’s failure to exercise care. Damages include physical injury and/or financial loss.

It’s not know whether drone that hit the stadium suite caused injuries or not. Any individual injured by a drone would have to consult a lawyer to determine if the other person was liable for any injuries suffered.

Red Team vs. Blue Team: Gun Control

Today’s article is a special two for one: two of our writers debate the merits of gun control. Who do you think makes the most convincing argument?

Current State of Gun Control Legislation Requires More Gun Control

By Pearl Rimon

Random acts of gun violence have been a prominent leading story in U.S. headlines for decades. Last month, a gunman killed two people and injured nine others in a Louisiana movie theatre and a gunman fatally shot nine people in a church in Charleston, both purchased their guns legally; this occurred the same month James Holmes was convicted on twenty-four counts of first-degree murder for a shooting in Aurora, Colorado. These horrific events trigger debates about the current state of gun control laws in our country.

Mass killings have been on the rise in America even though gun ownership is declining overall. However, the support for gun rights in America remains resolute. The tragic shootings of churches, elementary schools, and movie theatres are not enough to motivate lawmakers to enact stricter gun control laws. In research conducted by Mother Jones tracking mass shootings since 1982, a majority of the shooters had obtained their guns legally.  Cat Stakeup

The region with the highest percentage of guns in a household is unsurprisingly the South. States with stricter gun control laws have fewer gun related deaths, but this statistic nor the recent mass shooting tragedies have motivated legislators to enact new laws. Shockingly, after the Newtown Massacre, the Pew Research Center found that Americans showed more support for gun rights than gun control.

Congress has not passed new gun control laws since the 1993 Brady Bill and the now expired 1994 Federal Assault Weapons Ban. In the aftermath of the Sandy Hook shooting, Congress failed to pass background check legislation. There has not been significant gun control reform since then.

Gun Control Laws

There are federal and state gun regulations in place that try and curb gun violence. However the number of gun deaths in the U.S. compared to other countries that do not have the Second Amendment right to bear arms makes it clear that these gun control laws are not as effective as they could be. For instance, according to 2013 statistics, Brazil has almost the same homicide rate as Washington D.C.

Seattle and Cook County, IL have taken the typical federal and state laws a step further and have imposed a $25 tax on guns and a 5-cent tax on bullets sold within the city limits. This new law is referred to as a “gun violence tax” since proceeds will be used for prevention and research programs to reduce violence. Chicago has banned possession of certain semi-automatic firearms defined as assault weapons and magazines that hold more than 15 rounds of ammunition. Previously, Chicago prohibited the sale of firearms within city limits but it has since been overturned for being unconstitutional.

Federal law requires background checks for all gun sales by federally licensed gun dealers; this is one of the provisions part of the Brady Bill. However, this does not prevent sales between private individuals and sales at gun shows from being conducted complying with federal law. Since 1998, 202 million background checks have been conducted with only 0.5% of purchases were blocked, the most common reason being prior felony convictions.

Recently, three Senate Democrats (Chuck Schumer-NY, Murphy and Blumenthal-CT) are attempting to impose gun control change by appealing to retailers of guns due to the failure in advancing legislation. A loophole in federal law allows firearm transactions to proceed if a background check is not completed within three days, the Senators are asking retailers to require completion of background checks to close the loophole. This loophole has proven to be deadly, since it is how Dylan Roof, the shooter of the Emanuel African Methodist Episcopal Church in Charleston, procured the gun he used.

The “gun culture” in this country obviously stems from the Second Amendment. The U.S. has the highest rate of gun ownership in the world, as well as the highest rate of homicides among advanced countries. According to studies there are 88 guns for every 100 people. Following the Charleston church shooting, President Obama stated “At some point, we as a country will have to reckon with the fact that this type of mass violence does not happen in other advanced countries,” he said. “It doesn’t happen in other places with this kind of frequency. And it is in our power to do something about it. I say that recognizing the politics in this town foreclose a lot of those avenues right now.”

“The only thing that stops a bad guy with a gun is a good guy with a gun,” said Wayne LaPierre, NRA’s executive vice president. Apparently, the American public agreed with LaPierre following the tragic events of Newtown. However, the dangers of untrained people shooting guns seems like it would lead to a larger body count. The focus should not be on arming more people with guns, due to the likelihood of accidental shootings and injuries. Instead, the focus should be on enacting stricter gun control laws and closing any existing loopholes in background checks.

Reforming Mental Health, Not Guns, Will Prevent Mass Violence

By Jason Cheung

Gun control proponents often criticize the Second Amendment as the reason for mass shootings in America. However, if we expand “mass shootings” to “mass violence,” America is actually not different from the rest of the world in large scale acts of violence. Therefore, the solution to mass violence lies not in restricting the type of weaponry used by the killers, but in addressing the underlying psychological issues the killers have in common.

On the same day the Sandy Hook Massacre took place, another mass killing occurred across the Pacific Ocean. In Chenpeng Village, China, a 36 year old man stabbed 23 children and 1 elderly woman. Private gun ownership is almost completely illegal in China, so the Chenpeng attacker used a knife instead. The Chenpeng stabbings were not an isolated incident. In China, there have been at least 11 mass stabbings from 2010 – 2014. In contrast, there have been at least 14 mass shootings in the United States during the same years. The numbers are not greatly different. President Obama was wrong in claiming that mass violence is unique to America. These incidents show that mass violence is a problem shared by many nations.  Panda with a gun

Gun control proponents might argue that a stabbing is safer than a shooting. It’s true that a gun can kill people faster than a knife, but knifes can be just as fatal as guns. The fact that dozens of people have died in some of China’s mass stabbings indicate that a man with a knife in the right location can be as dangerous as a gunman. Guns are loud and can alert other potential victims to the attacker’s presence. In contrast, knifes are silent and thus the attacker can stab more people before anyone has time to flee. Although it takes more skill to use a knife, the need for skill is not as great if an attacker can simply board a crowded train or walk into a classroom.

It is also incorrect to assume that “gun culture in this country obviously stems from the Second Amendment.” The U.S. began in a rural environment with plenty of game and numerous Native America efforts to recover their land. Until the 20th century, Americans constantly expanded westward, and often relied on guns for hunting and protection. The rural environment made guns a necessity. The urban environment of America in the modern and contemporary era makes guns less attractive.

Our history and geography explains why gun ownership is declining – most of the population now resides in urban cities on the coasts. People who live in urban environments have less incentive to own a gun and urban governments are more likely to pass gun control laws. However, many parts of the South are still a rural environment, where hunting is prevalent and spread out residential areas require more self-defense. The Second Amendment is not the cause, but an effect of gun culture.

Mental Health Reform

It is important to recognize the role the Second Amendment plays in our culture. If the Second Amendment is a byproduct and not a cause, then reinterpreting the Second Amendment to allow for greater restriction of guns would not stop the violence. China has outlawed private gun ownership, but mass violence still exists in that country.

However, there is a factor that mass shootings in America and mass stabbings in China have in common. The attackers are typically men in their twenties or thirties from low economic backgrounds and/or have mental issues. Many of the recent cases of violence involve ethnic tensions. Charleston was an attack against a black church and China’s most deadly mass stabbing in 2014 involved Muslim extremists from its western provinces.

Ms. Rimon points to Brazil as an example of a less violent nation, with 2013 statistics on Brazil showing a homicidal rate equivalent to that of America’s capital. Brazil has some forms of gun control, including gun registration, a minimum gun ownership age of 25, and a ban on gun carrying outside the residence. On the other hand, Brazil has the second largest arms industry in the Western Hemisphere, guns are often smuggled back into Brazil, and its voters’ rejected a 2005 proposal to ban civilian gun ownership. Brazil is not as extreme as either the U.S. or China in its gun control or gun rights, so Brazil’s statistics can hardly be attributed to its gun policies.

What Brazil does have that China and the United States does not, is that Brazil reformed and expanded its mental health services in the 1990s. In contrast, the United States and China have allowed their mental health services to wither. The United States has cut mental health budgets, most of the remaining budget is spent on ineffective medication, and any available treatment is usually too expensive for the men most likely to go on a rampage. Obamacare’s mental health mandate may do more to prevent mass shootings than any gun control measure passed. Instead of gun control, the focus should be on reforming our mental health services and providing greater care to those who most need it.

R.J. Reynolds May Be Found Liable for Smoker’s Death

A former smoker’s widow named Joyce Hardin filed a lawsuit in Miami against R.J. Reynolds Tobacco Co. She alleges that the company’s statements and omissions regarding the addictiveness of cigarettes as well as their harmful effects caused her late husband to become ill. She is requesting more than $20 million in compensatory damages.

In 1996, her husband, named Thomas Hardin, was diagnosed with chronic obstructive pulmonary disease (COPD). According to plaintiff’s attorney Allan B. Kaiser, Hardin was raised in rural Alabama, and started smoking at the age of nine. Kaiser alleges that the company conspired with other cigarette makers to hide facts about how addictive and detrimental cigarettes can be over the course of several years.88642-full

Hardin did not know how addictive cigarettes could be when Hardin was younger because the tobacco company and its conspirators hid the facts from people like Hardin. Although tobacco awareness and education is well known today, the jury should not use today’s standards to evaluate cases like Hardin’s. The risks of smoking were not as well advertised in the 1950’s, when Hardin first began smoking. Young Hardin could only rely on statements made by the tobacco industry, which failed to issue any warnings about the risks of smoking. Thus, without any knowledge of the dangers of smoking, Hardin became addicted, and his addiction led to his illness, and eventually to his death.

Preventing Future Hardins

There were thousands of cases, such as this one, arising from the 1994 Engle class action lawsuit against tobacco companies. The Florida Supreme Court permitted up to 700,000 individuals to use a jury’s findings about addictive tobacco to file their own lawsuit. The jury found that smoking causes certain diseases, and that the perils of smoking were concealed by tobacco companies.

In order to win a judgment, Hardin’s estate must persuade the jury that Hardin suffered from an addiction to nicotine that was caused by his cigarette smoking. The Hardin estate must also convince the jury that Hardin’s smoking of R.J. Reynold’s cigarettes caused his COPD and emphysema that ultimately resulted in his demise. In the event that the jury arrives at these conclusions, the jury is then required to decide the percentage of fault that is attributable to each party for Hardin’s disease, and perform a calculation of compensatory damages for his widow.

I think that the jury should render an award as close as possible to the requested amount of $20.2 million to compensate Joyce Hardin for her pain and suffering, and her loss of companionship. The jury should take into consideration Hardin’s early stages of COPD, the severe illness that he suffered for six-and-a-half years, and his projected lifespan of 12 years that was reduced.

I also believe that the jury should render a verdict that includes punitive damages. By adding punitive damages, other tobacco companies will be dissuaded from engaging in the same type of deception about the dangers of smoking that was committed by R.J. Reynolds.

Decriminalization of Marijuana in Delaware

The governor of Delaware, Jake Markell, recently signed a bill that decriminalizes possession and private use of miniature quantities of marijuana. The maximum amount of marijuana you can legally possess and use is one ounce. However, police can still seize the drugs.

According to the statute, the penalty for using marijuana publicly will be reduced to a fine of $100. Previously, possession of marijuana was a misdemeanor for which you could face up to six months in jail, and be fined up to $1,150. However, simple possession of marijuana is still a criminal offense for anyone who is under age 18. In addition, if you are caught using marijuana in a moving vehicle, in a public place, or within 10 feet of property that is open to the public, you will be charged with a misdemeanor.

Governor Markell signed the bill into law on Thursday, June 19th, and the law becomes effective six months from then. The bill passed the Senate and the House of Representatives, both of which are controlled by Democrats, and was opposed by Republicans, who claim that the bill sends the wrong message to youth.   Marijuana

A lobbying group called the National Organization for the Reform of Marijuana Laws has said that 18 states, including Delaware, have enacted laws decriminalizing personal use and possession of marijuana in small quantities. There are 23 states, including Delaware and the District of Columbia, that permit the use of marijuana for medical reasons. Ballot measures legalizing marijuana for recreational adult use were approved by voters in Washington, D.C., Colorado, Oregon, Washington state, and Alaska. Nevertheless, marijuana is still an illegal narcotic under federal law.

The Dark Side of Marijuana Legalization

Despite the growing popularity of marijuana, I am inclined to agree that legalizing the drug sends the wrong message to young people, who are very impressionable, and will be more likely use, and even abuse, the drug. According to the National Institute on Drug Abuse, marijuana can have adverse effects on the brain, such as impaired memory, altered senses,  altered sense of time, mood changes, and impaired body movement. Marijuana can also make it harder to think clearly and solve problems.

Marijuana also has long-term adverse effects on the development of the brain, especially when people start using the drug during their teenage years. Use of the drug can diminish thinking, memory, and learning functions, as well as impact the ways in which the brain forms connections between the areas needed for these functions. The effects of marijuana on these abilities may be lengthy or could even be permanent.

Other health effects of marijuana include lung irritation, which can lead to breathing problems; increased heart rate, which can give rise to heart attacks; and child developmental problems during and after pregnancy. Use of marijuana on a long-term basis can cause mental illness, including temporary hallucinations, temporary paranoia, and aggravated symptoms in patients who have been diagnosed with schizophrenia.

Thus, with the exception of medical marijuana, I think that legalization of the drug can only lead to an increasing lack of awareness concerning its ill effects, and a rise in the use among young people. There may also be an increase in the number of people who suffer from the above-mentioned health problems.

Employer Who Provides Bucket as Toilet Faces $4M Lawsuit

Andrew Lane was using the restroom at work when he was killed by carbon monoxide poisoning. Mr. Lane’s crew was cleaning the gutter and pressure washing a home in Oregon when Lane was killed. His employer, Superior Home Maintenance, only provided a bucket for its employees’ restroom needs. So when 22 year old Lane went to use the bucket in the rear of the work truck, he was poisoned by the carbon monoxide emitted by an adjacent washer.

The tragic incident occurred on May 13, 2014, in the afternoon, after which Lane’s co-workers discovered his body in the rear of the truck. They had been working outside a home, and according to the attorney for the victim’s estate, they were instructed not to use the bathrooms inside the home. The lawsuit depicts the company’s toilet policy for workers as “demeaning, debasing, and dehumanizing.”

In its defense, Superior Home Maintenance claimed that the main cause of the worker’s death was use of methamphetamines, and not carbon monoxide poisoning. While the first autopsy revealed that the victim died from using methamphetamines, a second autopsy determined that carbon monoxide poisoning was the cause of death. Bucket system toilet

The results of the second autopsy were confirmed by a report from the Occupational Safety and Health Administration (OSHA) that was issued in September 2014. According to the report, the pressure washer, which was secured to the floor of the cargo area inside the truck, filled the truck with toxic amounts of carbon monoxide in less than one minute.

Lane’s estate alleges that his employer was aware he suffered from irritable bowel syndrome (IBS), a digestive disorder that is marked by a sudden and frequent need to use the restroom. OSHA requires that on the majority of jobs, employees have reasonable access to toilet facilities. An investigation conducted by OSHA disclosed that on the day of the victim’s death, the closest public restroom was eight minutes away from the job site by car.

Just three years ago, in 2012, two workers received a jury award of $332,000 in a lawsuit against their employer, who failed to provide toilet facilities at their job site. Like Andrew Lane, the two men also used a bucket, and after filing a complaint with OSHA, an inspector from OSHA cited the company for neglecting to provide bathroom facilities. The men were terminated from their jobs that same month. As the jurors in that case stated, “having easy access to a toilet is a basic human right.”

Mr. Lane’s death could easily have been prevented if his employer had merely read and taken heed of the warnings outlined in the owner’s manual for the pressure washer. Among the warnings were the following:

  • “Exhaust contains poisonous carbon monoxide gas that can build up to dangerous levels in closed areas.”
  • “Never run the engine in a closed or even partially closed area where people may be present.”

Had his employer had any respect or concern for him and his co-workers, management would have provided them with adequate toilet facilities. It is unconscionable that so many workers feel that they have to endure inhumane and atrocious conditions in the workplace, and are overcome by feelings of helplessness and powerlessness. And all too often, they don’t complain for fear of losing their jobs, which may be their only source of income.