Archive for the 'Personal Injury' Category

Pokémon Go and the Dangers That Come With It

It looks like Pokémon is back at it again. Pokémon Go, the latest product in the Pokémon franchise, has caught on like wildfire. This new app, developed by Niantic, brings a fresh perspective to gaming. Available on both iOS and Android devices, this mobile game allows players to catch Pokémon but must do so in real time. With GPS capability, the app pinpoints where Pokémon can be found and the player then must make the effort to actually go to these locations.

Once there, the player can then attempt to catch the Pokémon. These Pokémon can be found in various locations, from your backyard to public venues and even in government facilities such as courthouses. As this game takes the world by storm, the dangers of this form of gaming have become more apparent. Just as texting and driving has been such a big problem, the same issue could arise with this new app.

Potential Hazards

The Pokemon app demands that the player explore the outdoors if they want to catch Pokemon. Irrespective of this game, mobile devices can be dangerous. Texting and driving has been one of the leading causes of death in the past few years. Pedestrians too have put themselves in risk of danger by crossing the street carelessly while being preoccupied with their smart devices.

Surely, this Pokémon app could pose similar dangers. The game has been out for less than two weeks and there are already news reports of such accidents. One victim reported that he was “wandering aimlessly looking for Pokémon” when a car clipped him. As the game picks up speed, similar reports will undoubtedly come in. Now the question becomes, what can be done about this? Pokemon Go 2

To address this issue, let’s look back at some of the solutions that were reached when it came to driving and texting. For one, California imposed a law that would fine people who were driving and texting. Without a doubt, this has had deterrent effects. Looking at the accident reports as a whole, the numbers have waned due to this law. Can a law be enacted mandating that gamers not cross the street while playing Go?

Now this sounds silly but there have to be some measures that can be taken. Obviously the same aforementioned law applies here because the Go is a mobile game and as such, is on a mobile device. Ultimately, the question becomes what measures can be taken to prevent such incidents from happening and who should be held responsible for them?

Comparative Negligence

The gamer should obviously be held responsible for being careless and negligent. Of course, the degree of blame should also depend on who the gamer is and in particular, how old they may be.

If a 12-year-old has carelessly walked into the street, then they might not have known any better. Now, if it was a fully grown adult doing the same, then this could change things. Comparative negligence, which is the standard of fault in California, adjusts the degree of fault for all the parties involved, depending on the circumstances of the case. This standard applies primarily to personal injury lawsuits. For example, if the gamer is crossing the street when he should have stopped, then the driver who hits this person will not be entirely at fault for the accident.

The point being, if more states adopted this comparative negligence approach, it would make life a whole lot easier for both parties involved in the accident. It also provides a deterrent. The gamer so preoccupied with catching his Pokémon will stop and think because now he knows under this framework, he would potentially have to pay for his own injuries if he isn’t careful. At the same time, the driver will have a defense, which is that the Pokémon devotee was being rather careless.

Trespass

Now this comparative negligence approach is not universal in that it does not apply to all incidents. It applies mainly to personal injury lawsuits. For example, what would happen if the player finds himself in someone else’s private property and the property owner decides to take matters into his own hands? How should this be resolved? Obviously not through the comparative negligence standard.

Each state has its own particular set of laws with regards to gun control and what trespass dictates. These sets of laws will help guide the well-being of people. For now, we will just have to wait and see what our legislators will do in response to this new groundbreaking form of entertainment. This only feels like the beginning. With virtual reality and this “augmented” reality taking shape, who knows which direction we’ll be headed from both a lifestyle perspective as well as a legal one. For now, enjoy and make sure you catch as many lovable Pokémon as you can. Safety first though.

Other Legal Considerations

As mentioned, Pokémon Go is sending ripples through the legal space. Besides personal injury, other areas of the legal field that are facing questions due to the Go are in privacy and intellectual property. In terms of privacy, it is a question of how to protect individual privacy. Go collects account information, location data, and other such data collected through web beacons and cookies.

There are also certain privacy issues at play here. How far can Niantic go in acquiring such data and what can they use this data for other than the game itself? There are intellectual property issues as well. Does catching a Pokémon make that Pokémon your personal intellectual property? This is a bit absurd but it is questions like this that have been coming up. In the meantime, we are left to ponder how this new gadget is changing the legal landscape.

D.C. Vote Leaves Accident Victims in Dismay

Washington D.C. council has postponed a vote to change the city’s contributory negligence laws to comparative negligence with regards to automobile-bicycle collisions. This decision has frustrated bicyclists and pedestrians because under the current contributory negligence framework, the victims of such accidents are not entitled to recovery. Under contributory negligence laws, if the victim is viewed as being at least partially responsible for the accident, they will not be awarded damages.

D.C. has a “pure” contributory negligence system, which means that even if the victim of the accident is 1% at fault, they may not recover from either the driver or insurer. This is a very strict standard and in most circumstances denies any form of compensation to victims of such accidents. The only time the damaged party may recover is if their behavior which led to the accident was non-negligent (meaning entirely free from fault) and that the driver was negligent. It is very difficult to establish non-negligence.

Transition Phase – Contributory to Comparative Negligence

In general, the United States as a whole has been transitioning from a contributory negligence framework to that of comparative negligence over the last few decades. Aside from D.C., only four states have stayed with the contributory negligence system. Under a comparative negligence approach, the victim can be compensated even if they are partially at fault; however their recovery will be deducted by the percentage for which they are at fault. This seems like a far more reasonable approach than the other more stringent standard that is slowly fading out.

For the driver and the insurance companies, contributory negligence is ideal because they will not be held liable whatsoever. This of course is a double-edged sword.  Victims prefer the comparative negligence standard, but there is a nefarious element to this. Victims surely will be awarded damages under the comparative framework. Bicycle

However, there have been instances where bicyclists and/or pedestrians have intentionally come into the crosshair of the driver simply to recover damages. One of the reasons contributory negligence exists is because politicians and congressmen such as D.C. Councilmember Kenyan R. McDuffie want to provide safeguards against such acts. The driver should not always be held responsible, for there are times when the victim is in fact the perpetrator.

News reports and various statistics, including one from Gallup, show that states which enforce the contributory negligence standard have far fewer cases of automobile-bicycle accidents than states with comparative negligence.

Obviously, statistics only provide a glimpse of the truth but they should be given some thought. This statistic implies that bicyclists under this framework are more wary of accidents because of the fact that they will not be awarded damages, and it also has a deterrent effect on those “particular” bicyclists/pedestrians that want to fill their pockets by intentionally engaging in vehicular accidents.

Comparative Negligence Discrepancies

Of course, even under those states that apply comparative negligence, they are not all uniform. There are variations on comparative negligence; for example, there is something known as “pure” comparative negligence and another common variant is the modified comparative negligence scheme.

Under the “pure” comparative system, which is the typical approach, the victim may recover, but recovery will be reduced based on the degree of fault. In the modified system, there are two approaches. One is if the victim is 50% or more at fault, then they cannot recover whatsoever. The second approach is that if the victim is 51% or more at fault, then they cannot recover. The difference between the two approaches is a mere 1%. In general, the modified system is far less favorable to the damaged party than is the pure comparative system.

Impact – How It Will Affect Both Driver and Pedestrian

Just to reiterate what has already been stated, D.C. transitioning from one system to another can have drastic implications. For one, as mentioned above, the comparative system favors the victims and the contributory framework benefits the driver and/or insurer. The people of D.C. are unhappy that the vote came out the way it did, as they would prefer to be compensated in the case of an accident. They don’t want the insurers walking all over them. The contributory negligence framework allows for this and gives the insurance companies an excuse not to cover the damages.

At its core, these two diverging systems provide a mechanism that a defendant can invoke if he or she is sued. On the other hand, there are nuances to the law that prevent full protection for one party or the other. Ultimately, the law of the state will determine how both perpetrators and victims of accidents will be treated.

The country is headed towards a comparative approach but as is the case here in D.C., not all legislators are ready to give up on contributory negligence. There are repercussions that go beyond benefiting the insurance companies. The comparative negligence framework might lead to increased insurance premiums and this potential effect is not ideal for the many decision-makers that want to maintain their seat on the throne.

The comparative negligence approach seems like the more reasonable approach because it gives the victim of an accident some form of remedy. It gives certain remedies to the driver and the victim depending on the circumstances. The driver may not be penalized fully if the damaged party was somewhat responsible and the victim will be rightfully compensated.

Cinemark Wins Lawsuit, Demands Shooting Victims Pay $700,000 for Litigation Costs

Cinemark just won a legal battle with the victims of the 2012 mass shooting that occurred outside a Century 16 movie theater in Aurora, Colorado. Cinemark is also asking for a good chunk of change to pay off their legal fees. Seems harsh to ask the victims of a mass shooting to pay your legal fees, but Colorado law allows a winning party to recover reasonable litigation costs.

After the murder of 12 and the injury of 70, Cinemark was sued by several victims of the attack; the plaintiffs alleged that because Cinemark had a lack of security, such as armed guards and gaps in security camera coverage, they helped enable the attack. Last month, a jury sided with Cinemark and found the company wasn’t liable for the shooting.  Now, Cinemark has turned in a bill nearing $700,000 requesting the Court to order the victims to pay up.

In another similar case recently won by Cinemark in a federal court, a judge awarded the company “reasonable costs”; Cinemark has yet to turn in a bill for that case so it’s hard telling how high that one will be. What will this mean for the victims?  Will they be required to pay?

Sounds Extreme, Huh? Well, It’s Not a New Concept

It’s not necessarily a new concept that the losing party be asked to pay litigation fees. Traditionally, here in the U.S., parties are required to pay their own fees so that individuals can pursue litigation without fear that costs will be excessive, but there’s obviously exceptions.  Most states that have these types of laws were enacted for the purpose of encouraging parties to settle their own lawsuits and, thus, keep the court dockets unclogged.  Movie Shooting

This can be especially true in states, like Colorado, that have more specific statutes that state the losing party will pay litigation costs if they lost the case and refused a significant settlement amount prior to trial. More than half of the victims in the federal case against Cinemark settled prior to trial; no doubt that some of them factored into their decision the possibility of having to pay Cinemark’s litigation fees if they lost.  For those that didn’t, it’s probably a risk they weighed with their attorneys.

Since Colorado allows prevailing parties to recover some of its costs expended in order to go to trial, it’s important to note the distinction between costs of litigation and attorney’s fees because they are two entirely different things.

Costs of litigation are out-of-pocket expenses; though not an inclusive list, these can include anything from costs of expert witnesses, transcript and deposition fees, travel and photocopying costs, and trial-exhibit preparation costs. These are submitted to the court as a “bill of costs,” which is precisely what Cinemark did.

Attorney fees are what the attorney earned for working on the case and are generally not recoverable unless the lawsuit is found to be frivolous and groundless, which is actually pretty rare. In either case, judges have considerable discretion when determining which categories of costs to award, as well as the amount.

Awards Must Be Reasonable and Judges Have Discretion

What happens when a losing party is unable to pay? Unfortunately, if the plaintiffs are ordered to pay, Cinemark can use any legal means available to recover the money, even if the company knows the plaintiffs don’t have the money. The victims of the Aurora shooting could try negotiating a settlement with Cinemark.

In exchange for releasing the victims from any amount the Court orders them to pay, the victims could agree not to appeal the decision to a higher court.  This can sometimes just be used as a scare tactic, though.  According to The Wall Street Journal, attorney for the plaintiffs, Marc J. Bern, said the $700,000 bill “is an outrageous attempt to keep the plaintiffs from appealing” and said he plans to file an objection with the court.

Luckily, there’s still a sliver of hope for the Aurora victims. When determining what and how much of a party’s costs can be recovered, Colorado case law says that the judges should examine the overall context of the case and where the parties spent the majority of their time and resources.  The presiding judge on the case still has to approve any amount awarded to the company and it’s possible the judge might find the whopping $700,000 bill unreasonable.

Alligator Attack at Walt Disney World: How Wild Animals Can Change the Claim

On June 14, 2016, Lane Graves, a 2 year-old boy, was dragged from the shallows of a lagoon near the Walt Disney World Resort. He was later found dead, after the alligator dragged him away from his family and killed the child. The attack shocked park-goers and families throughout the nation. Soon, the news was filled with stories of parents sharing pictures of their children playing at the exact spot where the little boy lost his life.

Since then, The Walt Disney Company has taken every step to show remorse, sympathy, and compassion for the Graves family and visitors. But despite good will and efforts to remedy the situation, Lane’s family has a possible cause of action against the Happiest Place on Earth.

But what is the possible cause of action, or claim, they can file? Most importantly, what does this mean for Disney and other landowners who may face the same problems? What does it mean for their guests?

A Strict Liability Claim

Under strict liability, an owner of a wild animal can be held strictly liable for any injuries or damages caused by the animal, even if the owner took precautions or was not at fault. Wild animals are considered abnormally dangerous and ultra-hazardous due to their very nature. Alligator

But, here Disney can argue that they do not own the alligators on their property. In fact, Disney has removed 244 alligators from 2006 to 2016. After the attack on June 14, they removed six more from the area. If the alligators return enough to be a “nuisance”, they are euthanized. So in this case, Disney does not want the alligators on their property and do not own them. So in the end, Disney cannot be held liable under a strict liability claim, but can only be held liable under a negligence claim.

A Negligence Claim

Under Tort law, the Graves family can sue Disney for failing in their duty to protect their guests from known, dangerous wildlife on property. To establish their claim, the Graves family will need to prove that Disney had:

  • a duty to keep the area safe;
  • they breached the duty;
  • the breach was the cause of the child’s death; and
  • the family suffers measurable damages due to the death.

While the analysis may seem obvious in cases like these, each aspect must be proven in turn. Disney World Resort is a commercial property, owned and operated by The Walt Disney Company. It invites people onto their land for a fee, and once they pay the fee, the guests are legally considered “invitees”, or more specifically “business invitees” or guests. The legal status of the Graves family is important, as it will determine the level of due care that Disney owes in the situation.

In this case, it is clear that the Grave family are guests of Walt Disney Resort. Disney did not put up adequate signs to warn guests about the real danger of alligator attacks. Their failure to put up proper signs should have been foreseeable to them that their guests may be hurt by an alligator, and that their guests would not have gone near or into the water if there was an adequate warning sign. Finally, it is undeniable that the Graves family suffered a terrible injury from the attack.

In this case, it is unlikely that Disney will be able to defend against a wrongful death claim from the Graves Family. But is it fair for Disney and other property owners to not face strict liability?

Landowners Get Additional Protection from the Law, So They Must Give Additional Protection to Their Guests.

As discussed earlier, landowners are held strictly liable for any injuries caused by a wild animal they own on their property. This includes pet tigers, lions, bears, and any other animal that is not domesticated. But it does not include wild animals that happen to roam the property.

The law was written with the understanding that wild animals are uncontrollable, especially animals that enter private property without knowledge of the owner. The law does not hold landowners responsible for the actions of a random, wild animal on their land.

But it does not mean landowners, like Disney, won’t face punishment for injury or death of a guest. The law declares that landowners like Disney have a duty to repair and correct known dangers, as well as a duty to reasonably inspect, discover, and correct unknown dangers in areas that guests are able to access.

What is “reasonable” is decided by the court, and it is often based on what the landowner is capable of doing. For example, Disney is a multi-billion dollar and they are known for exercising great control over the quality and safety of their parks. So the court may order Disney to do far more than an average landowner who also has alligators on their property.

Should the Parents of the Boy Who Fell Into a Gorilla Enclosure Have Been Held Liable?

What would you do if your child wandered away from you in public and you found yourself facing national scrutiny as well as possible criminal liability? That’s just what happened to Michelle Gregg and Deonne Dickerson after an incident with their three-year-old son at the Cincinnati Zoo over Memorial Day weekend.

On May 28th, the three-year-old boy climbed over a 3-foot barrier before falling 15 feet into a moat inside a gorilla enclosure. The boy was then confronted by Harambe, a 450- pound silverback gorilla. Harambe violently dragged and tossed the child around the enclosure before he was fatally shot by zookeepers.

Harambe’s death sparked international outrage. Critics lambasted the zookeepers for resorting to killing a member of an endangered species, as well as the boy’s parents for what they saw as their negligent behavior. In fact, a petition posted on change.org calling for Michelle Gregg to be investigated by Child Protective Services has over 60,000 signatures.

The Cincinnati police announced that they would look into filing criminal charges against the boy’s parents. However, on June 6th Ohio prosecutors announced that they would not be pressing charges.

But exactly what sort of legal liability could the boy’s family have faced? And could a case against the parents be seen as anything but frivolous?

Could the Boys Parents Have Been Charged For Harambes Death?

The outrage directed at Michelle Gregg and Deonne Dickerson after Harambe’s death is reminiscent of the backlash against Minnesotan Walter James Palmer. In 2015, Palmer shot and killed Cecil the lion while on a hunting expedition in Zimbabwe.

Like Harambe, Cecil was a member of an endangered species. Also like Harambe, Cecil lived under human observation—he resided in a national park where he was popular with tourists. While zookeepers shot Harambe in order to protect a child, Palmer hired two guides to assist him in killing the lion. Once in Africa, Palmer allegedly assisted in tying an animal carcass to the back of a vehicle to lure Cecil out of the park. Palmer later shot and killed Cecil after 40 hours of stalking him through the wilderness. Gorilla

However, the most important difference is that Palmer potentially faced charges under the Lacey Act, which makes it a federal crime to trade in wildlife killed in violation of foreign law. Palmer’s accomplices faced $20,000 in fines and up to 10 years in jail on poaching charges. There isn’t a comparable statute in the Harambe case. Ultimately, however, Palmer was not charged with a crime in Cecil’s death.

In lieu of a law that could directly charge anyone with Harambe’s death, outraged animal lovers urged supporters to sign a petition to instate “Harambe’s Law.” The petition, which will be delivered to an Ohio representative and a senator, asks that in the event of an incident similar to Harambe’s death “…the negligent party and or party’s [sic] be held financially and criminally responsible for any harm and or loss to an animal, specifically when said animal is Critically Endangered.”

Could the Parents Actions be Considered Child Endangerment?

If the boy’s parents had been found criminally liable, they might have been charged with child endangerment. According to Ohio Revised Code (ORC 2919.22), a caregiver commits child endangerment when he or she creates a “substantial risk to the health or safety of the child, by violating a duty of care, protection or support.” In other words, a parent or guardian who puts the child under their care in a situation where it is likely that the child will be exposed to harm could be found guilty of child endangerment.

While it might seem that a prohibition against exposing a child to harmful situations could make allegations of child endangerment a slam dunk to prosecute, this is not always the case. For example, while leaving a toddler unattended in a bathtub for up to four minutes could possibly be a situation that poses a “substantial risk to the health or safety” of a child, an Ohio court ruled that the mother in the case was not guilty. Similarly, another Ohio mother was not charged after she left her child unsupervised in a car in a mall parking lot.

However, there is an example of a parent who was held legally liable for an incident at a zoo. In 2015, a woman was sentenced to probation and parenting classes after she dropped her young child into a Cleveland zoo’s cheetah pit. The two-year-old child lunged out of his mother’s arms after she dangled him over a railing. The woman was charged with child endangerment, but eventually pleaded no contest to aggravated trespassing.

Although some animal lovers have been critical of what they see as Michelle Gregg’s parenting failure that day at the zoo, the charge of child endangerment does not hold up so easily in her case. According to witnesses, Gregg lost track of her child for perhaps two minutes. Unlike the Cleveland Cheetah case, Hamilton County prosecutor Joe Deters stated that he did not believe she acted in a way that put her son in danger.

So Would Charging the Boys Parents Have Made Any Sense?

While the death of Harambe was a loss to the Cincinnati Zoo and animal lovers everywhere, the prosecution’s decision not to press charges against Michelle Gregg is correct. After all, Michelle Gregg did not poach Harambe, as was alleged in the case of Walter Palmer. Additionally, the couple of minutes Gregg lost of her son does not rise to the standard of child endangerment.



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