Personal Injury Primer: Recent Episodes
Personal Injury Primer
Safety Rules for Commercial Vehicle Operation Part 3https://personalinjuryprimer.com/wp-content/uploads/2022/11/Podcast-257-Safety-Rules-for-Commercial-Vehicle-Operation-Part-3.mp3I’m Katelyn Holub, an attorney focusing on personal injury law in northwest Indiana.
Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics.
As noted in our last two podcasts, we often are faced with the need to educate people serving on a jury about the safety rules governing commercial motor vehicles.
The Federal Motor Carrier Safety Regulations set out the rules for commercial vehicle operation.
Our first podcast noted that the regulations apply to all motor carriers. Which is any person who owns or leases a commercial motor vehicle.
In part 2, we defined a motor carrier employee as any individual who directly affects commercial motor vehicle safety, including independent contractors hired to drive and mechanics working on the vehicles.
In this third podcast, we focus on the requirement of commercial drivers to exercise extreme caution when the roadway presents hazardous conditions.
This is a big deal. Unlike drivers of cars and other private vehicles, the Federal Motor Carrier Safety Regulations at part 392.14 calls for extreme caution when a commercial motor vehicle driver encounters hazardous conditions, such as snow, ice, sleet, fog, mist, rain, dust, or smoke, that adversely affect visibility or traction.
Extreme caution may mean that speed must be drastically reduced when hazardous conditions exist, or extreme caution may mean that commercial vehicle operation is discontinued and not resumed until the commercial motor vehicle can be safely operated.
In practice, if the roads are wet and slippery for cars, drivers will slow down a little. In most cases, car drivers will not slow down nearly enough, but they at least slow down.
Heavy commercial vehicles cannot deal with slippery conditions as well as lightweight cars. The stopping distance may be doubled for heavy trucks when the roads are wet. Slowing from 55 mph to 35 mph may be necessary for trucks, and speed may need to be reduced even further on packed snow to meet the extreme caution requirement.
In our next podcast, part 4, we will focus on the requirement of commercial drivers to scan the roadway ahead to keep a lookout for other vehicles on the highway.
The requirement to keep a lookout ahead differs from the average car driver’s expectations.
I hope you found this information helpful. If you are a victim of someone’s carelessness, substandard medical care, a product defect, work injury, or another personal injury, please call (219) 736-9700 with your questions. You can also learn more about us by visiting our website at DavidHolubLaw.com – while there, make sure you request a copy of our book “Fighting for Truth.”
The post Ep 257 – Safety Rules for Commercial Vehicle Operation Part 3 first appeared on Personal Injury Primer.
Safety Rules for Commercial Vehicle Operation Part 2https://personalinjuryprimer.com/wp-content/uploads/2022/11/Podcast-256-Safety-Rules-for-Commercial-Vehicle-Operation-Part-2.mp3I’m David Holub, an attorney focusing on personal injury law in northwest Indiana.
Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics.
As noted in our last podcast we often are faced with having to educate people serving on a jury about the safety rules governing commercial motor vehicles.
The Federal Motor Carrier Safety Regulations set out the rules that deal with commercial vehicle operation.
In our last podcast we noted that the regulations apply to all motor carriers. Which is any person who owns or leases a commercial motor vehicle.
A motor carrier employee is any individual employed who in the course of his employment directly affects commercial motor vehicle safety. This definition is broad and covers independent contractors hired to drive, as well as mechanics working on the vehicles.
A commercial motor vehicle includes a tractor trailer, a straight truck weighing over 10,001 pounds, and some other vehicles weighing over 10,001 pounds.
Some of the more demanding rules deal with only heavy trucks weighing 26,001 pounds.
For the heaviest of trucks, a CDL is always required, log books are generally required, and drug and alcohol testing is required.
Let’s take a closer look at the requirement to maintain a driver’s qualification file.
A motor carrier has to keep a file showing a driver’s qualification and, in that file, must be materials including:
- – written application to be a driver
- – proof that the motor carrier checked with previous employers
- – 3-year driving history
- – proof the driver meets minimum medical and physical qualification
- – results of drug and alcohol screening
- – road test results or other proof of driving competence
- – and ability to read and speak English
As you can see, if a jury is made up of drivers who only operate cars and non-commercial trucks and pickups, trial will necessarily require witness testimony to educate them as to the safety rules governing commercial vehicles.
Our next podcast will delve into the requirement of commercial drivers to exercise extreme caution when the roadway presents hazardous conditions.
I hope you found this information helpful. If you are a victim of someone’s carelessness, substandard medical care, product defect, work injury, or another personal injury, please call (219) 736-9700 with your questions. You can also learn more about us by visiting our website at DavidHolubLaw.com.
The post Ep 256 – Safety Rules for Commercial Vehicle Operation Part 2 first appeared on Personal Injury Primer.
Safety Rules for Commercial Vehicle Operation Part 1https://personalinjuryprimer.com/wp-content/uploads/2022/11/Podcast-255-Safety-Rules-for-Commercial-Vehicle-Operation-Part-1.mp3I’m Katelyn Holub, an attorney focusing on personal injury law in northwest Indiana.
Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics.
Often, we are faced with having to educate people serving on a jury about the safety rules governing commercial motor vehicles. Sometimes we have to even inform judges.
Everyone who drives a car is required to know the rules of the road that apply to the safe operation of a car.
Car drivers think that they know the rules that apply to the safe operation of a semi-tractor-trailer truck. But most do not.
Even police officers think they know the rules that apply to the safe operation of trucks, and again, most of them do not.
Of course, police officers who serve as DOT compliance inspectors do know the specific rules that apply to safe truck operation. They are required to know the rules as a part of their job.
Do you know who else is required to know the rules applicable to operating trucks? Every truck driver. Every commercial motor carrier.
But the ordinary person does not know that the details of the rules known as the Federal Motor Carrier Safety Regulations.
These regulations obviously apply to motor carriers. Who is a motor carrier? The short definition is any person who owns or leases a commercial motor vehicle.
These regulations deal with all sorts of things that do not apply to driving a car. For example,
- – certain records about vehicle and drivers must be preserved
- – drivers have to undergo drug and alcohol testing
- – drivers have to have a commercial driver’s license called a CDL for short
- – a driver’s qualification file must be maintained where all aspects of a driver’s qualification are documented
- – drivers and motor carriers must be familiar with the mechanical parts and accessories of the vehicles they are operating
- – there are rules for inspection, repair, and maintenance of vehicles
We will delve into just one of these categories for a moment.
Let’s focus on the category of alcohol and drugs.
In most cases, there must be a pre-hiring screening for drugs or alcohol. There is a requirement for random testing.
But here’s where it really gets interesting, post-accident, there must be a test as soon as practicable if there is a fatality. There must be a test if a citation is issued to the truck driver involved in a crash.
If these tests are not conducted and should’ve been conducted, it violates the regulations.
If a test should have been conducted in a fatality accident but wasn’t, the family of the victim may be entitled to have the court instruct the jury that they are free to presume the motor carrier driver was using alcohol or drugs which would have precluded operating the vehicle.
Our next podcast will delve into one of the other categories.
I hope you found this information helpful. If you are a victim of someone’s carelessness, substandard medical care, a product defect, work injury, or another personal injury, please call (219) 736-9700 with your questions. You can also learn more about us by visiting our website at DavidHolubLaw.com – while there, make sure you request a copy of our book “Fighting for Truth.”
The post Ep 255 – Safety Rules for Commercial Vehicle Operation Part 1 first appeared on Personal Injury Primer.
Injured on a Water Slidehttps://personalinjuryprimer.com/wp-content/uploads/2022/11/Podcast-254-Injured-on-a-Water-Slide.mp3I’m David Holub, an attorney focusing on personal injury law in northwest Indiana.
Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics.
Today’s question comes from a caller who said she was hurt at a waterpark.
She was using a slide sitting in a tube.
Users slide down the waterslide into a pool at the bottom of the slide, where employees catch them and direct them safely into a wading pool area.
She had gone down slide a couple of times with no problem.
But when she went down the slide the last time no employee was present to catch her. She slammed into a concrete wall fracturing her leg in two places. She wanted to know her legal rights.
Water parks with water slides have been around for quite some time, and they can be fun when operated safely.
How does the law deal with injuries involving these types of amusement rides?
Under the law, anyone who decides to go down a slide at a waterpark is assumed to accept the risk of anticipated dangers.
Assumption of risk applies to most sporting activities. For example, if you voluntarily decide to play baseball, certain risks come with playing baseball. If you get hit with the ball and knock your teeth out, that generally fits into the category of assumed risk.
However, in a situation where a person is not a professional athlete participating in a sport or recreational activity, they can only assume commonly appreciated risks inherent in participation in the activity. So risk awareness has to be assessed against a particular plaintiff’s background, skill, and experience.
In the incident described by the caller, the waterslide was made safe by the presence of helpful employees at the bottom of the slide. These employees were there to grab participants and direct them into a safe area so they would not get hurt.
But the caller said that on the third occasion down the slide, no employee was present to direct her into a safe spot. She was unaware that she would be subjected to utilizing the slide where no one was there to put her in a safe position away from the wall she struck and fractured her leg against.
My guess is that if we question the employees, we would find that someone took a break or something drew the employee’s attention away from their job of safely maneuvering people away from the wall. Under such circumstances, the operator of the waterslide, in my guess, would be held liable by a court and jury.
Why? Because the stationing of employees at the base of the slide was an inherent safety feature for the slide. The caller enjoyed the benefit of these employees on prior occasions going down the slide.
There is no reason for her to think that she would be subjected to a circumstance where these employees providing safety functions would be withdrawn. She had no way to expect that she would have to fend for herself and avoid hitting the concrete wall on her own.
Her case would be bolstered if other slide users similarly relied upon the employees.
One would expect that if you question the owner of the water slide, they would have to admit that they put employees at the slide’s base precisely to provide a safe way for the participants to exit the slide and avoid crashing into a concrete wall.
I hope you found this information helpful. If you are a victim of someone’s carelessness, substandard medical care, product defect, work injury, or another personal injury, please call (219) 736-9700 with your questions. You can also learn more about us by visiting our website at DavidHolubLaw.com – while there, make sure you request a copy of our book “Fighting for Truth.”
The post Ep 254 – Injured on a Water Slide first appeared on Personal Injury Primer.
Difference Between Warnings and Instructionshttps://personalinjuryprimer.com/wp-content/uploads/2022/11/Podcast-253-Difference-Between-Warnings-and-Instructions.mp3I’m Katelyn Holub, an attorney focusing on personal injury law in northwest Indiana.
Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics.
We’ve previously discussed warnings and instructions regarding product liability claims.
But I don’t know if we explained the difference between product warnings and instructions.
A warning is a message intended to reduce the risk of personal harm or property damage by inducing behavior or discouraging or prohibiting other behaviors.
On the other hand, an instruction will tell the consumer how to use a product effectively.
In other words, an instruction tells you how to use the product to get the most out of the product. A warning describes the dangers of improper use or how to guard against risks inherent in the product.
You might be thinking, why is this difference significant?
Well, suppose the product maker is intending to communicate a warning. In that case, the warning has to be displayed prominently to alert the user of a hazard. It must also convey the magnitude of the hazard.
Instructional material can be in smaller print and need not be prominently displayed.
But a warning must be prominent and distinct. If not, and a person is injured, the manufacturer can be in trouble for providing an ineffective warning.
If you pull out typical product materials, such as the papers that are supplied with a blow dryer, those materials should deal with both warnings and instructions.
A warning will be, “to avoid electric shock, which can cause death or severe personal injury, do not immerse the product in water.”
An instructional item might say, “for best results, do not over-tighten the screws that hold the handle in place.”
But what if the instructional material contains words of warning, but the warning words are not prominent and fail to draw attention to dangerous behaviors? You may have a solid claim against the product manufacturer in such a case.
Here’s an example, suppose you manufacture bunk beds. You include a ladder so a child can climb up to the top bunk. In the instructional papers that ship with the product, you tell the buyer to be sure to tighten the screws that hold the ladder in place. But you neglect to explain why.
And further, you neglect to describe how a poorly secured ladder could present a fall hazard that could result in death or severe injury. In such a case, the words of instruction are inadequate and fail to serve as a warning.
If someone is injured, and there is no adequate warning that a ladder not screwed tightly into place with the provided screws could result in a fall and severe injury or death, the seller could be open to liability if the ladder detaches from the upper bunk bed and results in injury.
So, warnings are essential, and instructions are important.
Warnings are far more critical, and hiding or burying a warning in the instructional section of an operational manual is inadequate.
I hope you found this information helpful. If you are a victim of someone’s carelessness, substandard medical care, a product defect, work injury, or another personal injury, please call (219) 736-9700 with your questions. You can also learn more about us by visiting our website at DavidHolubLaw.com – while there, make sure you request a copy of our book “Fighting for Truth.”
The post Ep 253 – Difference Between Warnings and Instructions first appeared on Personal Injury Primer.
Fire Cause and Origin Determinationhttps://personalinjuryprimer.com/wp-content/uploads/2022/11/Podcast-252-Fire-Cause-and-Origin.mp3I’m David Holub, an attorney focusing on personal injury law in northwest Indiana.
Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics.
Whenever there is a fire, it usually becomes vital to determine the cause and origin of that fire.
It may be a case to collect fire loss insurance or a claim to recover for an injury caused by carelessness. But in either case, the cause and origin of the fire will be necessary.
You have probably watched TV shows where fire cause and origin are issues. But it is unlikely you were treated to the details of how someone goes about determining cause and origin?
One of the things that will be examined is the structure involved in the fire.
An effort will be made to determine the structure’s pre-fire condition. An investigator will examine whether utilities, such as gas and electric, were in place at the time of the fire.
Investigators will try to determine if the windows were open or closed. They’ll try to determine if there is evidence of an explosion occurring.
In nearly every case, extensive photography and video recording will be done of the scene. Such imaging will help determine where the fire started and disclose the combustible materials involved in the fire.
An expert in such investigations will try to reconstruct the fire event.
In this reconstruction, the investigator tries to determine the fire patterns to see which surfaces in the structure were exposed to fire for extended periods.
During this investigation, it will be important not to disturb the debris left after the fire. The debris can help show the pattern of the fire.
As you can imagine trying to sort through fire debris is a backbreaking job. You have to shovel through the material and, at the same time, make sure that in doing so, you do not disturb key evidence.
In all of these investigations, the focus will include ignition source, fire temperatures, ignition sequence, and the like.
As an investigator completes their investigation, typically, they will develop a model that reconstructs the fire. This is not a physical model but an explanation or scenario of what happened that fits the facts of the scene compellingly.
It’s often amazing to see what can be uncovered.
In one case, there was proof that a refrigerator motor overheated and started a fire in the kitchen. Who would think a refrigerator motor would overheat, but it did in this particular instance. In another case, a burner on a stove was left on.
I hope you found this information helpful. If you are a victim of someone’s carelessness, substandard medical care, a product defect, work injury, or another personal injury, please call (219) 736-9700 with your questions. You can also learn more about us by visiting our website at DavidHolubLaw.com – while there, make sure you request a copy of our book “Fighting for Truth.”
The post Ep 252 – Fire Cause and Origin Determination first appeared on Personal Injury Primer.
Injury Causation in Auto Collision Caseshttps://personalinjuryprimer.com/wp-content/uploads/2022/11/Podcast-251-Injury-Causation-in-Auto-Collision-Cases.mp3I’m Katelyn Holub, an attorney focusing on personal injury law in northwest Indiana.
Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics.
One of the most significant areas of dispute in auto crash cases involves whether the crash caused a specific injury.
Sometimes this is an easy question to answer, and other times it’s not.
When there is a broken bone, the defense team mostly concedes that it was caused by the crash. However, when it comes to spinal injuries like a derangement of a spinal disc, the defense team contests causation.
When spinal injuries are disputed, we often hear fallacious arguments about minimal vehicle damage, making it unlikely that the claimed injuries resulted from the crash.
The problem with these types of arguments is that everybody’s body is different; the forces exercised on the body during a crash affect each person differently.
An 80-year-old in somewhat fragile physical condition at the time of a crash may not come out of the crash injury free. A 20-year-old experiencing the same forces in the collision will likely have fewer injuries.
Medical doctors usually are called upon to decide these causation issues. Or at least a medical expert will be called upon to offer an opinion on the causation issue, ultimately left up to the jury to decide.
In grade school and middle school, most students learned about Newton’s laws of physics.
Do you remember hearing that force equals mass times acceleration? The formula is sometimes described as F = MA.
Another of Newton’s laws involves the concept of momentum. Momentum is defined as a vector of mass times velocity.
Of course, the most familiar of Newton’s laws is the third law. The third law says that every action has an equal and opposite reaction.
Suppose someone sitting stopped at a railroad track is hit from behind by a semi. The car gets pushed forward, and the person occupying the vehicle suffers substantial injury.
But then another truck hits the back of the first truck and pushes the first truck further into the car that was stopped.
Did the force of the second truck striking the first truck cause even more injury?
Dueling experts called witnesses for the parties involved in a lawsuit assist a jury in sorting out which impact caused what particular injury.
We cannot go into too much detail in a podcast. It takes a lot of expertise to deal with the causation of injury following a crash.
Issues such as these apply to neck and back injuries, hip replacement surgeries following a crash, the timing and cause of death, etc.
We find causation issues in seatbelt latch failure cases. We find causation issues when injuries are suffered when airbag covers strike passengers fracturing elbows or other bones.
But the same medical testimony is required where a person with pre-existing problems in their spine, but able to work and earn a living, finds themself disabled after a crash.
I hope you found this information helpful. If you are a victim of someone’s carelessness, substandard medical care, a product defect, work injury, or another personal injury, please call (219) 736-9700 with your questions. You can also learn more about us by visiting our website at DavidHolubLaw.com – while there, make sure you request a copy of our book “Fighting for Truth.”
The post Ep 251 – Injury Causation in Auto Collision Cases first appeared on Personal Injury Primer.
Tires Fly Off Truck Causing a Crashhttps://personalinjuryprimer.com/wp-content/uploads/2022/11/Podcast-250-Tires-Fly-Off-a-Truck-Causing-a-Crash.mp3I’m David Holub, an attorney focusing on personal injury law in northwest Indiana.
Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics.
Today’s question comes from a caller who said he was driving along the highway when two tires broke off a semi-tractor trailer truck ahead of him on the road. He said the pieces of tires flew off, smashing his windshield and causing him to lose control briefly after hitting him and injuring his shoulder, and wrenching his back. The semi kept traveling and did not stop. He was calling about his legal options.
Unfortunately, situations like that described by the caller are frequent.
Perhaps it’s the less-than-perfect economy that we live in. Still, trucking operators are cutting corners much more than in the past.
There are, of course, trucking industry regulations that require a vehicle’s tires to be inspected each day before the driver climbs into the cab and pulls out onto the highway. Brakes are also to be checked daily, and the lights on the vehicle are to be examined.
The caller’s situation depends on whether the semi-tractor trailer can be identified and, if not, whether the caller has insurance to protect him in such as situation.
Though the truck left the scene, an effort should be made to identify the truck. If not, there may be no way to sue the trucking company that put that truck on the highway.
Frequently callers will be able to get a license plate, and the license plate will allow identification of the vehicle. Once the vehicle is identified, you can pin down a particular vehicle’s location on the highway by checking GPS records.
The caller took pictures of the tires and the damage to the vehicle to establish what happened. He could not get a license plate, but he verified that it was a truck displaying a logo for a well-known trucking company.
If you don’t have a full license plate, all is not lost. Suppose you have solid proof that it’s a truck by an identifiable company. In that case, you could sue the suspect company and ask it to verify whether any of its trucks were in the vicinity of the crash at the date and time it happened. Secondarily the question would be to the trucking company, did any of your truckers report a loss of tires on that particular day for that specific location?
But suppose the vehicle that drove away cannot be identified. In that case, whether the caller has uninsured motorist insurance becomes critical.
Uninsured motorist insurance protects you if the driver responsible for hitting you has no insurance. In this case, the fault for the collision and injuries would rest with the semi-operator who threw off tires.
As we’ve noted in another podcast, some insurance policies providing uninsured motorist coverage require an impact between your vehicle and the vehicle that left the scene. In the caller’s circumstance, the tires would constitute the impact. So he would pass that hurdle.
In situations like the caller described there may be more avenues of investigation. Do not hesitate to hire an attorney in such a case.
I hope you found this information helpful. If you are a victim of someone’s carelessness, substandard medical care, product defect, work injury, or another personal injury, please call (219) 736-9700 with your questions. You can also learn more about us by visiting our website at DavidHolubLaw.com – while there, make sure you request a copy of our book “Fighting for Truth.”
The post Ep 250 – Tires Fly Off Truck Causing a Crash first appeared on Personal Injury Primer.
Camp Lejeune Justice Act of 2022https://personalinjuryprimer.com/wp-content/uploads/2022/11/Podcast-249-Camp-Lejeune-Justice-Act.mp3I’m Katelyn Holub, an attorney focusing on personal injury law in northwest Indiana.
Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics.
Today’s question comes from a caller who said he was stationed at Camp Lejeune in 1965. He said he had been diagnosed with bladder cancer and wondered if he would be qualified to make a claim.
The Camp Lejeune Justice Act of 2022 allows individuals to recover damages from the United States for injuries caused by exposure to contaminated water at Camp Lejeune, North Carolina, during 1953-1987. The law opens up a window of time, at least until August 10, 2024, when individuals harmed by water contamination at Camp Lejeune may bring a claim against the United States.
A personal injury or wrongful death claim can be brought by or on behalf of any individual, veteran, or civilian. Before a claim can be brought in court, it must be submitted for review by the appropriate federal agency. The agency may, in turn, accept or deny a claim. A claim must be submitted online to the Office of the Judge Advocate General, Tort Claims Unit.
In making a claim, there are certain things one has to show:
- exposure to the water at Camp Lejeune was for at least 30 days during the time beginning August 1, 1953 – December 31, 1987; and
- evidence that a causal relationship exists between the contaminated water exposure/ingestion and the injury suffered.
The Department of Veterans Affairs lists certain physical conditions that are presumed to be related to Camp Lejeune water contamination. Suppose someone has one or more diagnoses of these specific physical conditions and meets the exposure criteria for at least 30 days. In that case, they are presumed to have been harmed by the contamination. Those 8 presumptive conditions are:
- Adult leukemia
- Aplastic anemia and other myelodysplastic syndromes
- Bladder cancer
- Kidney cancer
- Liver cancer
- Multiple myeloma
- Non-Hodgkin’s lymphoma
- Parkinson’s disease
The governmental agency has also listed certain conditions as being potentially compensable diseases in connection with the Camp Lejeune water contamination:
- Breast cancer
- Esophageal cancer
- Female infertility
- Hepatic steatosis
- Leukemia
- Lung cancer
- Miscarriage
- Myelodysplastic syndromes
- Neurobehavioral effects
- Renal toxicity
- Scleroderma
Additionally, veterans making a claim for injuries caused by the Camp Lejeune water contamination can file not only for an award of damages through the Tort Claims Unit mentioned above but also for VA health care and disability benefits with the U.S. Department of Veterans Affairs.
If you or your loved one has been harmed by the water contamination at Camp Lejuene, contact an attorney today to discuss making a claim for damages.
I hope you found this information helpful. If you are a victim of someone’s carelessness, substandard medical care, a product defect, work injury, or another personal injury, please call (219) 736-9700 with your questions. You can also learn more about us by visiting our website at DavidHolubLaw.com – while there, make sure you request a copy of our book “Fighting for Truth.”
The post Ep 249 – Camp Lejeune Justice Act of 2022 first appeared on Personal Injury Primer.
Checking Car or Truck Recallshttps://personalinjuryprimer.com/wp-content/uploads/2022/11/Podcast-248-Check-for-Vehicle-Recalls.mp3I’m David Holub, an attorney focusing on personal injury law in northwest Indiana.
Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics.
Each year millions of cars and trucks are recalled. A recall occurs when a vehicle defect develops that could result in injury or fatality to those operating a vehicle. A recall is issued to hopefully prevent future accidents.
We recommend checking the recall status of your vehicle every six months. The manufacturers are supposed to send out a mailing to the purchasers of vehicles when a recall notice is issued. In an ideal situation, the recall notice should follow the car. The new owner should get a notification when a vehicle is sold or traded. This does not always happen.
Several years ago, we helped a family who bought a used minivan. They drove along at about 45 mph when the rear axle suddenly failed and they suffered numerous serious injuries. The failed axle had been recalled, but the family was the third owner of the van, and no recall notice ever reached them.
When you take a car or truck in for an oil change or other maintenance, the company providing the servicing should check for recalls, but often they do not.
Here are some of the issues that have been noted for recalls in the past year:
- pop-out windshields
- brake light issues
- rollaway risk
- fire risk
- airbag issue
- loose wiper arm nuts
- short-circuiting rear turn signals
- brake failure
- fuel line issue
- leaky brake lines
- rear suspension failure
- faulty seat belts
- chassis weld failure
- transmission-related rollaway
- tire pressure warning glitches
As you can see from the list, many of the reasons for recall mentioned could lead to injury if ignored.
Search the National Highway Safety and Transportation website to check on recalls and enter your vehicle’s VIN number.
I hope you found this information helpful. If you are a victim of someone’s carelessness, substandard medical care, product defect, work injury, or another personal injury, please call (219) 736-9700 with your questions. You can also learn more about us by visiting our website at DavidHolubLaw.com.
The post Ep 248 – Checking Car or Truck Recalls first appeared on Personal Injury Primer.
Complex Regional Pain Syndrome CRPS I’m David Holub, an attorney focusing on personal injury law in northwest Indiana. Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics. Today’s question comes from a caller who said his doctor diagnosed him with Complex […]
The post Ep 225 – Complex Regional Pain Syndrome CRPS first appeared on Personal Injury Primer.
Do You Open Up Your Entire Medical History When You Sue I’m Katelyn Holub, an attorney focusing on personal injury law in northwest Indiana. Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics. Today’s question comes from an existing client who […]
The post Ep 224 – Do You Open Up Your Entire Medical History When You Sue first appeared on Personal Injury Primer.
Liability for Tree Falling on a Carhttps://personalinjuryprimer.com/wp-content/uploads/2022/11/Podcast-223-Liability-for-Tree-Falling-on-Car.mp3I’m Katelyn Holub, an attorney focusing on personal injury law in northwest Indiana.
Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics.
Today’s question comes from a caller who was a passenger in a friend’s car when a tree fell on the car while the vehicle was parked at another friend’s home. She wanted to know if the property owner could be held responsible for her spinal injuries when the tree crushed the car’s roof.
The answer is most likely YES. A property owner may be legally liable if they let a dead tree or dead branch present a risk to others and fail to take steps to remove the tree or branch.
In residential areas, it’s not an undue burden for a landowner to inspect his property and take reasonable precautions against dangerous natural conditions.
Put another way: a landowner does have a duty to protect neighbors from the risk of damage or injury caused by a falling tree.
So, if you have a dead or decaying tree on your property. Don’t ignore it.
The law says you owe a duty of care to remove decaying or dead trees on your land to protect people traveling on a public roadway where they might get hit by a falling tree or branch.
The duty extends to all possessors of land, not just owners. So, suppose you hold a lease on a property with trees. You may have to answer in court if the condition of the trees creates an unreasonable risk of harm to those operating on a highway near the property.
Here is an example of a landowner being held responsible for damage caused by a falling tree.
A motorist was injured by a falling tree within a county-owned 30-foot right-of-way along a street. The tree was 50 ft tall, leaned sharply over the road, and was visibly damaged and decayed. Even a casual observer of the tree could see that it presented a hazardous condition. The tree fell on a nice day where weather was not an issue. There was no storm or high winds involved in the tree coming down. – Under similar facts the possessor of such a tree would likely be held legally liable.
If you have a healthy tree on your property, and a storm blows the tree down into the roadway and causes injury, you likely will not be held liable. Why? Because the tree did not present a hazard. And, because the wind was beyond your control.
But, if the tree was dead and known to be vulnerable to wind damage, you might be liable, even if a storm took the tree down.
Especially so if the surrounding healthy trees suffered no storm damage.
I hope you found this information helpful. If you are a victim of someone’s carelessness, substandard medical care, a product defect, work injury, or another personal injury, please call (219) 736-9700 with your questions. You can also learn more about us by visiting our website at DavidHolubLaw.com – while there, make sure you request a copy of our book “Fighting for Truth.”
The post Ep 223 – Liability for Tree Falling on a Car first appeared on Personal Injury Primer.
Drunk Driver Has No Insurancehttps://personalinjuryprimer.com/wp-content/uploads/2022/11/Podcast-222-Drunk-Driver-Has-No-Insurance.mp3I’m Katelyn Holub, an attorney focusing on personal injury law in northwest Indiana.
Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics.
Today’s question comes from a mother calling about her daughter, who was tragically seriously injured by a drunk driver. The police reported to her that the drunk driver had no insurance and was driving a stolen car. The caller wanted to know if there was anything legally that could be done to help her seriously injured daughter.
It is always challenging to deal with a situation like that described by the caller. It is very frustrating when a wrongdoer has no insurance.
But, several factors could lead to financial recovery to help defray the expenses of the injuries and lost time from work.
The first thing an experienced attorney will do in such a situation is to investigate how the drunk driver came to be intoxicated.
Drunks are usually good at one thing: figuring out how to get ahold of alcohol and get drunk.
Over the years, we have investigated cases like these. In some, we have found a third party to hold legally responsible.
Under a narrow set of circumstances, the law permits someone injured by a drunk driver to hold the person who supplied the drunk with alcohol responsible for the harm done by the drunk.
One such case involved a woman who had been to a wedding. She had been overserved at a bar supplied by the wedding party. There was no professional bartender, and nobody monitored the amount of alcohol served to the drunk driver.
We successfully asked a jury to hold the wedding party responsible in that case. Thankfully the wedding party had the foresight to have purchased liability insurance to cover the event.
Another case involved a tavern. The bartender had refused to serve any additional alcohol to the drunk because he appeared intoxicated. But, the bartender is the one who served him to the point of him becoming intoxicated.
Though the man was clearly intoxicated, as the bartender admitted, nobody took the person’s keys away. Instead, the bartender watched him get in a car and drive away.
Though the cases we just outlined for you are in the minority, there is always a reason to try to figure out where the alcohol came from.
One source for finding out where the alcohol came from is often the drunk driver involved in the crash. If the drunk driver survives, they can be asked where the alcohol came from once they sober up.
Sometimes of course, where a relative gave them the alcohol, they will lie and claim a lack of knowledge. But, sometimes they are remorseful and will truthful explain where they got the alcohol.
I hope you found this information helpful. If you are a victim of someone’s carelessness, substandard medical care, a product defect, work injury, or another personal injury, please call (219) 736-9700 with your questions. You can also learn more about us by visiting our website at DavidHolubLaw.com – while there, make sure you request a copy of our book “Fighting for Truth.”
The post Ep 222 – Drunk Driver Has No Insurance first appeared on Personal Injury Primer.
Rotator Cuff Tear Suffered in Car Crash I’m Katelyn Holub, an attorney focusing on personal injury law in northwest Indiana. Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics. Today’s question comes from a caller who suffered numerous injuries in a […]
The post Ep 221 – Rotator Cuff Tear Suffered in Car Crash first appeared on Personal Injury Primer.
Injured by Product that was Recalled I’m David Holub, an attorney focusing on personal injury law in northwest Indiana. Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics. Today’s question comes from a person who contacted us online who was using […]
The post Ep – 220 Injured by Product that was Recalled first appeared on Personal Injury Primer.
Slip and Fall on Wet Restaurant Floor I’m David Holub, an attorney focusing on personal injury law in northwest Indiana. Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics. Today’s question comes from a caller who fell in a restroom at […]
The post Ep 219 – Slip and Fall on Wet Restaurant Floor first appeared on Personal Injury Primer.
Liability for Fall on a Dangerous Sidewalk I’m David Holub, an attorney focusing on personal injury law in northwest Indiana. Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics. Today’s question comes from a caller who reported that she fell outside […]
The post Ep 218 – Liability for Fall on a Dangerous Sidewalk first appeared on Personal Injury Primer.
Are Motorcycle Accidents Really Different from Other Crashes I’m David Holub, an attorney focusing on personal injury law in northwest Indiana. Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics. Today’s question comes from a woman calling about her husband, who […]
The post Ep 217 – Are Motorcycle Accidents Really Different from Other Crashes first appeared on Personal Injury Primer.
Does the Signing of a Waiver Prevent Someone from Suing I’m Katelyn Holub, an attorney focusing on personal injury law in northwest Indiana. Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics. Today’s question comes from a mother calling about a […]
The post Ep 216 – Does the Signing of a Waiver Prevent Someone from Suing first appeared on Personal Injury Primer.
Injury in a Crash Made Worse by Doctor I’m Katelyn Holub, an attorney focusing on personal injury law in northwest Indiana. Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics. Today’s question comes from a caller who said she was injured […]
The post Ep 215 – Injury in a Crash Made Worse by Doctor first appeared on Personal Injury Primer.
Does Every Injury Claim Result in a Lawsuit I’m Katelyn Holub, an attorney focusing on personal injury law in northwest Indiana. Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics. Today’s question comes from a caller involved in a car crash. […]
The post Ep 214 – Does Every Injury Claim Result in a Lawsuit first appeared on Personal Injury Primer.
Distracted Driving is Negligence I’m Katelyn Holub, an attorney focusing on personal injury law in northwest Indiana. Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics. Today’s question comes from a caller who was rear-ended while at a stop light. The […]
The post Ep 213 – Distracted Driving is Negligence first appeared on Personal Injury Primer.
How to Lose Sense of Smell in an MVA I’m David Holub, an attorney focusing on personal injury law in northwest Indiana. Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics. Today’s question comes from a caller who indicated that he […]
The post Ep 212 – How to Lose Sense of Smell in an MVA first appeared on Personal Injury Primer.
The Consequence of Breaching FDA Regulations. I’m David Holub, an attorney focusing on personal injury law in northwest Indiana. Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics. Today’s question comes from a caller who got a recall notice on a […]
The post Ep 211 – The Consequence of Breaching FDA Regulations. first appeared on Personal Injury Primer.
More Bad Drivers are Hitting the Highways I’m David Holub, an attorney focusing on personal injury law in northwest Indiana. Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics. Today’s question comes from a friend who observed that driving behavior out […]
The post Ep 210 – More Bad Drivers are Hitting the Highways first appeared on Personal Injury Primer.
Contamination Picked Up in a Food Processing Planthttps://personalinjuryprimer.com/wp-content/uploads/2022/11/Podcast-209-Food-Contamination-1.mp3I’m David Holub, an attorney focusing on personal injury law in northwest Indiana.
Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics.
Today’s question comes from a caller who said she was injured after swallowing a hard, sharp piece of clear plastic. She swallowed the plastic while eating creamed corn that she poured directly from a can into a saucepan for heating. She had to undergo a painful scope procedure at the hospital to remove the item. She wanted to know if she could sue.
This type of claim falls under the Indiana Product Liability Act (IPLA). And, yes, the caller likely has a case against the food product manufacturer and distributor.
The IPLA covers strict liability for breach of warranty and negligence. Where a manufacturer sells a canned food product, placing the product into the stream of commerce in a defective condition unreasonably dangerous to any consumer, the victim has a right to sue for the harm caused by the product.
The caller had saved the can and the contents of the saucepan. The pan contained fragments of what were determined to be plastic pieces. She contended that the canned corn product was sold with several plastic pieces inside. If so, the product was defective, unreasonably dangerous, unwholesome, and unfit for human consumption.
The piece of plastic removed at the hospital matched the fragments that came out of the can.
One of the issues in such a case will be how the contaminants got into the can. Typically, the injured party will argue that the seller is liable based upon the doctrine of res ipsa loquitur. In other words, the injured party will contend that the seller had exclusive control over the manufacturing of the product. That under normal circumstances, plastic contaminants would not be found inside a canned corn product unless the manufacturer was negligent. Therefore, it can be inferred that the incident resulted from the seller’s negligence.
In cases we have handled of this type, we have confirmed that many food processing plants have procedures and equipment to screen out contamination of the kind involved in the caller’s case.
The contaminants involved in this caller’s case would not necessarily have been picked up in a food canner’s screening process if the screening machine was not set to a high enough sensitivity level to pick up such small pieces.
Investigating such a claim will require accessing the food canning company’s foreign substance-related audit logs. It may also require inspecting the processing equipment.
I hope you found this information helpful. If you are a victim of someone’s carelessness, substandard medical care, a product defect, work injury, or another personal injury, please call (219) 736-9700 with your questions. You can also learn more about us by visiting our website at DavidHolubLaw.com – while there, make sure you request a copy of our book “Fighting for Truth.”
The post Ep 209 – Contamination Picked Up in a Food Processing Plant first appeared on Personal Injury Primer.
Why a Settle?https://personalinjuryprimer.com/wp-content/uploads/2022/04/Podcast-208-Why-a-Settlement.mp3I’m Katelyn Holub, an attorney focusing on personal injury law in northwest Indiana.
Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics.
Today’s question comes from a client who called to discuss a possible settlement offer on their case. They asked why should we settle, don’t we have a strong case?
Lawsuits are time consuming, they are also emotionally, mentally & physically draining. They can consume months, maybe even years of your life, and the outcome of any case that goes to trial is never known until the jury verdict is rendered, which means that until the jury’s decision is made, you hope that you convinced them enough to rule in your favor.
So why do I share this with you? Why showcase the negative aspects of a jury trial?
When people feel wronged in any way they believe suing another is the easiest way to make a point or to be compensated for whatever damage was caused as a result of personal injury or property damage. For some, the damages or injuries aren’t high enough for a lawyer to consider their claim worthy of defending. Or the people have neither the time, patience nor resources to fight a lengthy lawsuit.
But here’s the reality of it all… 90% of cases settle before trial.
That’s right…settle…before trial.
As trial attorneys, our goal is first and foremost to fight for the rights of our clients. And we are always prepared to go the distance if that’s what the client wants. But, knowing that could take up several years of their life, most just want the experience behind them.
On any given week, we receive dozens of calls from people who believe they were wronged in some way. Yes, some of those calls are legitimate, others not so much. Some believe that just by calling a lawyer their claim will be magically acted on by said lawyer who will send letters to the party at fault notifying them of a trial date.
Trying to placate their demands with a simple phrase of…“Sir (or Madam) that’s not how it works”…usually is followed by the caller with “what do you mean that’s not how it work…that’s how it works on TV.”
The process is not that simple. It takes time. And although a letter may be required, a lawyer has no way of knowing an exact trial date a court will schedule in any given case.
So what about these case settlements?
A settlement is an agreement between the parties in a lawsuit that effectively stops the dispute process and any future litigation.
Besides the fact that trials are time consuming, they are also expensive. In weighing the time/cost factor, you might realize that a settlement is a very reasonable, logical approach. The victim receives a fair compensation for their claim while avoiding years of legal wrangling, allowing them to put the matter behind them faster.
Add in the stress and uncertainty of a trial, and a settlement becomes a more viable option over a trial.
The “stress factor” is different for everyone, but in the case of those injured, it comes down to is the case taking you away from your work and costing you money, is it keeping you up at night or otherwise eating away at you and harming your physical health? If so, then it may be wise to settle.
Additionally, the outcome of a trial is uncertain. A jury can swing either way. Why spend all that time, money and effort if there’s a possibility you won’t win a case?
Each lawsuit is different, with different facts and parties. It’s impossible to know whether a settlement is a good idea until the parties involved reach a specific point in the process when an agreement might be possible.
If you were injured by the negligence of another, it is critical that you consult with an attorney who has extensive trial litigation experience. If your case cannot be settled, it is crucial that your attorney understand how to prepare your case for trial and how to win your case.
I hope you found this information helpful. If you are a victim of someone’s carelessness, substandard medical care, a product defect, work injury, or another personal injury, please call (219) 736-9700 with your questions. You can also learn more about us by visiting our website at DavidHolubLaw.com – while there, make sure you request a copy of our book “Fighting for Truth.”
The post Ep 208 – Why a Settlement? first appeared on Personal Injury Primer.
Suing a Community Railway Company for Injurieshttps://personalinjuryprimer.com/wp-content/uploads/2022/04/Podcast-207-Suing-a-Community-Railway-Company-for-Injuries.mp3I’m David Holub, an attorney focusing on personal injury law in northwest Indiana.
Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics.
Today’s question comes from a caller who was hurt while working for a commuter railway company employee. Since he was injured on the job, he called thinking he had a worker’s compensation case. But that is likely not the case. In this episode, we explain why.
In an earlier episode, we discussed a FELA claim. The letters FELA stand for Federal Employees’ Liability Act. You can listen to Episode 109 for more information on FELA claims.
As strange as it sounds, the Federal Employees’ Liability Act extends to cover employees that don’t work for the federal government.
Unfortunately, more times than not, the name given to a statute doesn’t always describe the purpose of the law or the people covered by the statute’s scope.
In fact, many people would argue that the names assigned to statutes in many cases have little to do with the actual application of the law.
The FELA applies to any railway worker, even if the railway worker works for a subdivision of state government.
Those of you who follow this podcast probably already see where we are headed with this episode.
100 points if you guessed that because the commuter railway is operating as a subdivision of state government, the Indiana Tort Claim Act, requiring notice, comes into play.
What does this mean in practical terms? Well, the caller who was hurt on the job needs to give notice of an intent to sue within the 180 days required by the Tort Claim Act.
The notice to sue has to be given even though the nature of the claim the caller will be making is a FELA claim.
This is why we always suggest contacting an attorney soon after a crash.
In a recent Indiana Supreme Court case, the court held that to sue a commuter railway, a political subdivision of the state, even an employee must give pre-suit notice within 180 days of an injury. The court held the notice requirement applied to an injured employee who was hurt at work while hammering spikes into frozen track ties.
In this case, the employee failed to give timely notice of his intent to sue and could not proceed with a claim.
Indiana has long held that a passenger hurt on an Indiana commuter train has to give timely notice of an intent to sue before proceeding with their lawsuit.
However, the notice requirement had not until 2022 been extended to cover employees hurt on the job.
Every day you learn something new.
I hope you found this information helpful. If you are a victim of someone’s carelessness, substandard medical care, a product defect, work injury, or another personal injury, please call (219) 736-9700 with your questions. You can also learn more about us by visiting our website at DavidHolubLaw.com – while there, make sure you request a copy of our book “Fighting for Truth.”
The post Ep 207 – Suing a Community Railway Company for Injuries first appeared on Personal Injury Primer.
Liability for Recurring Weather-Related Road Hazardshttps://personalinjuryprimer.com/wp-content/uploads/2022/04/Podcast-206-Government-Liability-for-Recurring-Weather-Related-Road-Hazards.mp3I’m David Holub, an attorney focusing on personal injury law in northwest Indiana.
Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics.
Today’s question comes from a caller who said his car spun out and overturned when his car hit a patch of ice under an overpass bridge. He suffered a spinal fracture and other serious injuries. He wanted to know his legal rights.
As we have noted in other episodes, the Indiana Tort Claims Act requires timely notice to a government subdivision to succeed with a suit against the government in Indiana.
But, the Act does much more. It grants governmental immunity for injuries resulting from a temporary condition of a public roadway caused by the weather.
But just what is the meaning of the word temporary? The caller mentioned what happened to him to friends, and he was told that ice always builds up at the place under the overpass where he wiped out. Apparently, melting snow is known to refreeze where it drains down from the overpass and hits the cold pavement below.
The law is that a condition is not temporary if the government fails to remedy a known, existing defect in a public roadway despite an opportunity to do so. In other words, immunity does not apply where a defect manifests during recurring inclement weather events.
Accordingly, the caller who struck the recurring patch of ice just might have a valid case. Other non-temporary situations might include a recurring flooded area of a highway.
But before anyone gets too excited, the government only has to post a warning of the dangerous condition to protect itself from suit.
Still, posting a sign where a recurring condition could have timely been repaired may nevertheless result in a court upholding an injury claim against the government.
A critical factor in every case of this nature: did the government have time to respond.
Suppose that flooding develops on a roadway due to unforeseen blockage of a drainage ditch. Still, further, assume that the storm is so bad that no worker for the state can get out in the storm to post a flood warning sign. In such a situation, successfully suing might be very difficult.
I hope you found this information helpful. If you are a victim of someone’s carelessness, substandard medical care, a product defect, work injury, or another personal injury, please call (219) 736-9700 with your questions. You can also learn more about us by visiting our website at DavidHolubLaw.com – while there, make sure you request a copy of our book “Fighting for Truth.”
The post Ep 206 – Liability for Recurring Weather-Related Road Hazards first appeared on Personal Injury Primer.
Shipper Liable for Dangerous Loadhttps://personalinjuryprimer.com/wp-content/uploads/2022/04/Podcast-205-Shipper-Liable-for-Dangerous-Load.mp3I’m David Holub, an attorney focusing on personal injury law in northwest Indiana.
Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics.
Today’s question comes from a caller transporting cargo as a truck driver. When he reached his destination, he opened the trailer’s doors, and the cargo fell out and injured him. He was already pursuing a worker’s compensation claim. Still, he wanted to know if he could sue the shipper or other parties for his injuries.
When cargo is shipped, multiple parties can be involved. The party that ships the freight is called the shipper and the party that transports the cargo is called the carrier. I know that terminology is somewhat confusing.
Let’s go over an example. Suppose you own a large grand piano and you want to ship it from your home in Indiana to Florida, where you plan to retire. You might call a company that ships pianos. That shipping company might then call up a trucking company called a carrier to carry the piano to Florida.
Trucking companies will transport but not typically do they contract to load the truck. In our example, the trucking company will send a trailer to the piano’s location. Still, the shipper is charged with lifting the piano and loading it into the trailer.
In Indiana, the party holding the bag on liability is the carrier unless the shipper takes responsibility for loading the cargo, and any defect in the way the cargo is loaded is latent or concealed.
In our piano example, when the shipper loads the piano, it assumes responsibility for loading it safely. However, if the piano is loaded in an obviously dangerous manner, the carrier is liable. Why? Because the danger is obvious, the carrier can fix the problem with how the piano is loaded before transport. If the danger in the way the cargo is loaded is concealed, however, then the shipper remains responsible.
Suppose the shipper straps the piano down to a wood pallet that looks strong and looks like it would prevent the piano from moving in the trailer during shipment, but in reality, the wood pallet is undersized for the weight of the piano. The carrier looks the piano and pallet over. It deems the load secure before transporting the trailer with the piano to Florida. The pallet breaks during transit. When the trailer is opened in Florida, the truck driver is unaware that the pallet broke, permitting the piano to roll. When the trailer opens, it presses against the door, and the driver is hurt when the piano rolls out.
Since the defect in the pallet is hidden, the shipper remains liable.
These cases are fact-intensive, and they require careful investigation.
We used a piano in our example. But, most cases where someone is injured opening a trailer involve boxes, crates, pallets, and the like.
I hope you found this information helpful. If you are a victim of someone’s carelessness, substandard medical care, a product defect, work injury, or another personal injury, please call (219) 736-9700 with your questions. You can also learn more about us by visiting our website at DavidHolubLaw.com – while there, make sure you request a copy of our book “Fighting for Truth.”
The post Ep 205 – Shipper Liable for Dangerous Load first appeared on Personal Injury Primer.
Close Contact with Power Lineshttps://personalinjuryprimer.com/wp-content/uploads/2022/04/Podcast-204-Close-Contact-with-Power-Lines.mp3I’m David Holub, an attorney focusing on personal injury law in northwest Indiana.
Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics.
Today’s question came from a severely injured caller who came in contact with utility company power lines while decorating a tree with holiday ornaments and lights. He wanted to know his legal options.
Indiana courts have recognized that electricity can be a deadly dangerous force.
The standard of care owed to the public by utilities engaged in providing electricity recognizes that electric utilities must conduct their business operations with care commensurate with the deadly dangers inherent in electricity. There are three reasons for this:
(1) electrical energy possesses inherent dangerous properties,
(2) electrical utilities possess expertise in dealing with the delivery of electricity, and
(3) the general public cannot recognize and guard against the dangerous potential of certain situations.
In general terms, an electrical utility company is required to safely insulate electric power lines in places where the general public may come in contact with those lines.
However, an insulating covering is not required when the lines are sufficiently isolated such that the general public could not be reasonably expected to come in contact with them.
How does this work in practical terms?
If a high voltage line is raised on poles, where the general public cannot reach, then no insulation is called for because the wire is isolated.
But, where a wire is accessible by the general public and would expose the public to danger if contact were made with an uninsulated high voltage wire, the wire needs to be insulated.
The caller was in a lift that took him to the highest levels of a pine tree, nearly 50 feet in the air. The wires he came in contact with were not insulated.
The utility company will argue if sued that it did not need the wires to be insulated since it was not likely that anyone would be near the wires.
But, given that the same trees were decorated in past years, it was foreseeable that someone might come within a zone of danger presented by the power lines.
Where an injured party can establish that the electric utility had actual knowledge or notice of imminent danger to an individual, a duty arises to make the power lines safe or warn of the threat they present.
For example, an Indiana Court found that a municipal electric company was liable in one case. It had notice of a defective condition in the wiring in a building and knew, or should have known, that under certain conditions, that wiring would become highly dangerous and possibly fatal. This safety requirement applies to workmen whose employment would expose them to high-voltage wires.
A fact issue that will be important in any lawsuit is whether the power company should have reasonably noticed that trees near its line would be decorated? And, that each year the trees get taller as they grow?
I hope you found this information helpful. If you are a victim of someone’s carelessness, substandard medical care, a product defect, work injury, or another personal injury, please call (219) 736-9700 with your questions. You can also learn more about us by visiting our website at DavidHolubLaw.com – while there, make sure you request a copy of our book “Fighting for Truth.”
The post Ep 204 – Close Contact with Power Lines first appeared on Personal Injury Primer.
Insect Repellent Catches Firehttps://personalinjuryprimer.com/wp-content/uploads/2022/04/Podcast-203-Insect-Repellent-Catches-Fire.mp3I’m Katelyn Holub, an attorney focusing on personal injury law in northwest Indiana.
Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics.
Today’s question comes from a caller who applied insect repellent on his arms and face on a sweltering humid day. Notwithstanding 15 minutes passing from the time of application, the repellent applied to arms and face caught fire while grilling burgers for his family. The fire led to second-degree burns over a large percentage of his upper body. He was calling to discuss his legal options.
Many people are surprised that the ingredients in many insect repellent sprays are flammable.
For example, insect repellent ingredients DEET and picaridin are not safe to use in flammable or industrial work environments that include arc welding because they are flammable. DEET and picaridin applied to clothing, not just to skin, can negate flame-resistant characteristics of clothing.
In the caller’s case, more than fifteen minutes elapsed from the time he applied the spray, yet it remained flammable.
The FDA has released a warning about using certain sprays near an open flame, such as a burning grill, campfire, bonfire, candle, lighter, or cigarette. Many sprays contain flammable ingredients, including alcohol.
Standard flammable products include spray insect repellant, sunscreen, and hairspray. I think I saw a movie once where a character sprayed one of these products close to an open flame and ended up with a blowtorch.
FDA warnings note that severe burns can even occur after applying spray sunscreen.
Whether it is insect repellent or sunscreen, the warning is to avoid coming close to a lit cigarette, a lit candle, or a grill. Catching fire can happen near an open flame or a spark.
Moreover, any spray product with ethyl alcohol is flammable.
In the caller’s case, waiting for the spray product to dry did not prevent it from catching fire. The hot and humid weather likely played a part in the product remaining flammable.
Most insect repellents carry a warning label that the product is flammable and warn the user to “keep away from heat, sparks, and flame.” ‘
If the caller ends up suing, the adequacy of the warning given will be the primary area of dispute. If the warning did not include information that even after the product appears to have dried, it can still catch fire, it likely would be inadequate.
I hope you found this information helpful. If you are a victim of someone’s carelessness, substandard medical care, a product defect, work injury, or another personal injury, please call (219) 736-9700 with your questions. You can also learn more about us by visiting our website at DavidHolubLaw.com – while there, make sure you request a copy of our book “Fighting for Truth.”
The post Ep 203 – Insect Repellent Catches Fire first appeared on Personal Injury Primer.
Tanning Bed Defecthttps://personalinjuryprimer.com/wp-content/uploads/2022/04/Podcast-202-Tanning-Bed-Defect.mp3I’m Katelyn Holub, an attorney focusing on personal injury law in northwest Indiana.
Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics.
Today’s question comes from a caller injured while using a tanning booth when her finger and hand got caught in an exhaust fan at the top of the booth. The large metal blade fan was isolated from the patron by only a metal grid of circular bars with wide gaps of 1/2 inch. The gaps permitted fingers to slip into the blades of the exhaust fan. She wanted to know her legal options.
The caller’s situation would involve issues concerning negligent acts and omissions by the business making the tanning booth available for her use on its premises.
As in any premises liability situation, the property holder could be held liable for exposing a patron to a dangerous tanning booth.
In discussing the matter further, it appeared that the tanning booth was a cobbled-together stand-up tanning booth that the salon owner bought used. It was about 12 years old. The age is important since a manufacturer can only be directly sued in Indiana during the first 10 years after a product is sold.
The caller also said that the booth was a stand-up booth, requiring patrons to lift their hands over their heads to get an even tan. Another wrinkle. The patron had to wear eye protection goggles.
Thus, she had to feel for grab handles near the exhaust fan. The cover around the fan blades failed to isolate the blades from customers’ fingers, having to hold onto the grab handles at the top of the booths.
Photos showed that high-speed fan blades on either side of a grab handle at the top of the booth were poorly shielded, and fingers could reach the blades.
The type of legal issues that such a case presents would include:
– failing to comply with engineering guidelines and standards calling for the hazard to be eliminated or safely guarded against to stop fingers from getting into the fan, and
– failing to warn of dangers associated with equipment supplied to customers to use
In short, yes, legal remedies are available, where a person sustains physical and mental injuries, endures physical and psychological pain and suffering, incurs medical bills, and suffers disfigurement in the type of situation described by the caller.
I hope you found this information helpful. If you are a victim of someone’s carelessness, substandard medical care, a product defect, work injury, or another personal injury, please call (219) 736-9700 with your questions. You can also learn more about us by visiting our website at DavidHolubLaw.com – while there, make sure you request a copy of our book “Fighting for Truth.”
The post Ep 202 – Tanning Bed Defect first appeared on Personal Injury Primer.
Crushed by a Package Being Deliveredhttps://personalinjuryprimer.com/wp-content/uploads/2022/04/Podcast-201-Crushed-by-a-Package-Being-Delivered.mp3I’m Katelyn Holub, an attorney focusing on personal injury law in northwest Indiana.
Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics.
Today’s question comes from a caller who was hurt when a large package was delivered to his home and fell on him, resulting in serious injury. He wanted to know his legal rights.
Home delivery of products is a big business. Companies like Amazon incur billions of dollars in shipping costs. Fed-ex and UPS are significant players in shipping goods to our doorsteps.
But who is responsible if, during delivery, you get injured?
In talking to our caller more, I found out that an air compressor fell on top of him while it was being unloaded from a delivery truck.
The delivered product was huge. The 80-gallon compressor was affixed to a shipping pallet. Together, the compressor and pallet weighed close to 600 lbs.
At the time of the delivery, the delivery driver could not fit his pallet jack under the 80-gallon compressor. Why? It seems that the shipping pallet was defectively manufactured and broken so that the tines of the jack would not fit under it.
In the ordinary course of an item this size, the delivery driver would fit a motorized pallet jack under the pallet holding the compressor and then lift the object. The driver would then let the jack do all the work and slide the packaging onto a gate, which would hydraulically gently lower the platform and jack and pallet to the ground. Once on the ground, the package could be wheeled into the customer’s garage.
Because the pallet was broken, the caller and the delivery driver tried to slide the package manually. In doing so, the entire package fell on its side, crushing the homeowner’s legs.
Who do you sue in such a case?
First, you would look to a suit against the shipping company and its driver. Second, you would consider suing the compressor manufacturer and any seller/distributor responsible for the defective pallet.
Keep in mind the defendants in such a case will argue that the homeowner assumed the risk of being injured by volunteering to help.
A big question will be, did the homeowner act unreasonably? Did the homeowner have reason to know the package might tip over?
Thus, warnings and notices of tip-over dangers on the cardboard packaging surrounding the compressor would be essential pieces of evidence in this kind of case.
So, in the caller’s situation, there sounds like there is definitely a case to be investigated and pursued.
I hope you found this information helpful. If you are a victim of someone’s carelessness, substandard medical care, a product defect, work injury, or another personal injury, please call (219) 736-9700 with your questions. You can also learn more about us by visiting our website at DavidHolubLaw.com – while there, make sure you request a copy of our book “Fighting for Truth.”
The post Ep 201 – Crushed by a Package Being Delivered first appeared on Personal Injury Primer.
What Makes a Malpractice Claims Difficult to Pursue?https://personalinjuryprimer.com/wp-content/uploads/2022/04/Podcast-200-What-Makes-a-Malpractice-Claim-Difficult-to-Pursue.mp3I’m Katelyn Holub, an attorney focusing on personal injury law in northwest Indiana.
Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics.
Today’s question comes from a caller who explained that he wanted to sue for dental malpractice. He had gone into his dentist’s office to have a tooth pulled, and he came out with the wrong tooth pulled. He wanted to know if he could sue.
Though one person can sue another person at any time, the real question is would a lawsuit be successful?
By successful, we mean does the anticipated recovery from the litigation outweigh the cost of pursuing the litigation.
Imagine you are supposed to have your right knee joint replaced, and the surgeon operates on a perfectly healthy left knee. Most people would be calling an attorney immediately.
While the case of doing surgery on the wrong knee seems similar to pulling the wrong tooth, the two cases are far different.
Doing surgery on the wrong knee will be easier to prove. It will also likely lead to a recovery that outweighs the cost of litigation.
The case recovery will likely outweigh the cost, because the consequence of the surgery on the wrong knee will be significantly. You lost your good knee. You’ll still need surgery on the bad knee. Your ability to walk and work may be seriously impacted. The medical expense will be high. The pain and suffering will be major. The therapy and rehab will be major.
To win a lawsuit against a dentist when you allege that the wrong tooth was pulled, you must prove substandard care. You have way more than two teeth. Proving the wrong one was pulled may not be easy.
What proof do you have that the wrong tooth was pulled?
Perhaps x-rays taken before the pulling of the tooth show that a different numbered tooth was decayed and should have been pulled. Maybe those x-rays show that the extracted tooth was healthy, and perhaps the x-rays reveal that the extracted tooth was also decayed.
But is x-ray proof enough? In most cases, the tooth that was pulled has not been retained. That tooth would be strong proof that it should not have been removed if it was available to test and examine after extraction.
Why? The dentist will argue the extracted tooth needed to be pulled regardless of what the patient was told beforehand. Or that the patient misunderstood which tooth was to be removed.
But the real question is: what value would a jury place on the pulling of a healthy tooth that should not have been pulled? Part of that calculation would be: does the tooth that should’ve been pulled still need to be extracted? If so, what further cost is associated with removing it?
The cost of proving malpractice against a dentist could easily well-outweigh the value that a jury would assign to the loss of the tooth, especially if it is a tooth that isn’t readily visible. Or a tooth that can be easily replaced with a prosthetic. Once a tooth is pulled (wrongly or rightly), the pain will go away. There will be no loss of work. No risky surgery or lengthy hospital stay.
What we find in most situations is that after you pay for experts, which can cost between $10,000 and $15,000, to give an opinion as to whether the tooth extraction was performed negligently, the cost of proving a case far outweighs whatever a jury would award if the patient is successful.
That’s not to say that having the wrong tooth pulled is a good thing. It is not. It is just frequently too costly to pursue in court.
All of these factors go into the calculation that needs to be made when you speak to an attorney.
That said, certain types of dental malpractice situations can result in serious injuries and justify pursuing malpractice. These cases would include:
– a nerve is severed, cutting off feeling to part of the face and jaw
– the sinus cavity is punctured resulting in a severe infection leading to loss of the jaw bone
– surgery is performed without checking if the patient is on blood thinners leading to significant bleeding
– an infection results from a botched root canal therapy where no steps to mitigate infection were taken
– the dentist intentionally misdiagnoses the need to remove all teeth just to sell unnecessary treatment (yes, we have seen this happen)
I hope you found this information helpful. If you are a victim of someone’s carelessness, substandard medical care, a product defect, work injury, or another personal injury, please call (219) 736-9700 with your questions. You can also learn more about us by visiting our website at DavidHolubLaw.com – while there, make sure you request a copy of our book “Fighting for Truth.”
The post Ep 200 – What Makes a Malpractice Claims Difficult to Pursue? first appeared on Personal Injury Primer.
Can’t Begin to Explain to a Jury the Reason You Want to Suehttps://personalinjuryprimer.com/wp-content/uploads/2022/04/Podcast-199-Cant-Begin-to-Explain-to-a-Jury-the-Ridiculous-Reason-You-Want-to-Sue.mp3I’m David Holub, an attorney focusing on personal injury law in northwest Indiana.
Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics.
Today’s podcast is a little different. Usually, we discuss answers to frequently asked questions. But in this episode, I’m going to explore why I can’t even begin to explain to a jury the ridiculous reason a caller wants to sue.
We received a call from a person claiming she was injured at a cafe in another state. She was in the restroom leaning on the sink. She was joking around with her friend who was taking too long in a toilet stall, telling the friend to hurry up and said, “I’m just gonna go [urinate] in the sink then.” As she leaned on the sink to do so, the sink came off the wall, and she fell on it. The glass shattered, cutting nerves in her hand requiring surgery for nerve damage. She is missing time from work, has mounting medical bills, and is in tremendous pain. She is wondering if she can sue.
When we get calls of this nature, we do our best to take them seriously and address the caller’s question.
It’s easy to think that any time you are hurt on someone else’s property, it’s the property owner’s fault. But that’s not always the case.
Suppose you misuse the property in a manner that was not intended and unanticipated. In that case, you certainly will receive significant pushback from the defendant if you sue.
In this caller’s situation, she was using a bathroom sink in a manner in which it was not designed to be used.
Most sinks are built to building code, and no building code requires a sink to be constructed and installed to bear the total weight of an individual.
We’ve all probably seen in a public restroom a foldout shelf that is to be used as a diaper change shelf for a baby. No one could reasonably expect that shelf to support the weight of a full-size adult.
When someone sues for an injury, a jury must evaluate the conduct of all the parties involved. First, the reasonableness of the defendant’s activity must be evaluated. Second, the reasonableness of the plaintiff’s conduct must be considered.
Based on the caller’s explanation of what happened, I’m at a complete loss regarding how to justify the caller’s conduct.
That said, I’ve had cases where a person slips on a water spill on a restroom floor and falls against a sink, and then the sink comes down on them and causes an injury. That case of a sink coming loose and breaking can be reasonably explained. The activity of the person grabbing onto it to try to keep themselves from falling makes sense. But purposely putting all of your weight on an object not designed to bear your weight strikes me as unreasonable.
There may be other attorneys who would take a case like this. But I’d have to decline and pass.
We have had some successful cases where supplied restroom furnishings have collapsed to result in serious injury.
One such case involved a fellow who stopped at a motel. He was paralyzed from the waist down and required unique equipment in a special shower with wheelchair access. When he slid off the wheelchair onto a handicap shower stool supplied by the motel, the chair collapsed, resulting in serious injury.
We were able to establish that someone at the motel put together the plastic handicap shower stool and over-tightened the screws in the legs of the chair, and that caused the seat to collapse. We were able to get a very sizable settlement for the client.
So, the bottom line is sometimes we listen to injury stories that we just can’t justify filing a lawsuit over.
That’s not to say that another attorney might not see something valid in a case where we don’t. However, to do an excellent job for a client, we have to present an argument to a jury that we believe in.
I hope you found this information helpful. If you are a victim of someone’s carelessness, substandard medical care, a product defect, work injury, or another personal injury, please call (219) 736-9700 with your questions. You can also learn more about us by visiting our website at DavidHolubLaw.com – while there, make sure you request a copy of our book “Fighting for Truth.”
The post Ep 199 – Can’t Begin to Explain to a Jury the Reason You Want to Sue first appeared on Personal Injury Primer.
What is Subrogationhttps://personalinjuryprimer.com/wp-content/uploads/2022/04/Podcast-198-What-is-Subrogation.mp3I’m David Holub, an attorney focusing on personal injury law in northwest Indiana.
Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics.
Today’s question comes from a caller who had a question about subrogation. The question was prompted by his auto insurance carrier sending him a check for his $1000 deductible months after it paid the claim for the total loss of his car.
Subrogation describes an insurance carrier’s right to pursue a claim against the party that caused an insurance loss to an insured.
In other words, when an insurance carrier pays for harm someone else causes to you, it reserves for itself the right to recover the amount paid against whoever caused you damage.
For example, let’s assume Joe owns a barbershop on the corner of Main and Broadway. Suppose Bob in the building next door negligently starts a fire, and the fire burns down Joe’s barbershop. Joe makes a claim with his fire insurer. The insurer reimburses Joe for his loss of $200,000.00. The insurer, in doing so, acquires the right to go after Bob, and Bob’s insurance carrier, to recoup the money it paid to Joe.
Subrogation literally refers to the act of one person or party standing in the place of another person or party.
When an insurance company pursues a third party for damages, it is said to “step into the shoes of the policyholder.” Doing so will give it the same rights and legal standing as the policyholder.
Most insurance policies contain language granting an insurer, once losses are paid on claims, the right to recover funds from a third party if that third party caused the loss.
Subrogation is standard with auto insurance policies. Especially with property damage claims.
Your insurance may promptly pay for your property damage and then subrogate against the other driver and his insurance carrier.
It may take months or years for the insurance companies to fight it out, though you have quickly been paid and replaced your car.
When an insured driver’s car is totaled through the fault of another driver, the insurance carrier reimburses the covered driver and then pursues legal action against the driver at fault. Suppose the carrier is successful and recovers an amount greater than it paid out (say, an amount that includes the deductible). In that case, it must repay any deductible collected from the insured.
The refund of the deductible is what prompted the caller’s question.
Subrogation also occurs within the health insurance industry.
If a health insurance policyholder is injured in an accident and the insurer pays $50,000 to cover the medical bills, that same health insurance company is allowed to collect $50,000 from the at-fault party to reconcile the payment.
I hope you found this information helpful. If you are a victim of someone’s carelessness, substandard medical care, a product defect, work injury, or another personal injury, please call (219) 736-9700 with your questions. You can also learn more about us by visiting our website at DavidHolubLaw.com – while there, make sure you request a copy of our book “Fighting for Truth.”
The post Ep 198 – What is Subrogation first appeared on Personal Injury Primer.
Past Results Do Not Predict Future Outcomeshttps://personalinjuryprimer.com/wp-content/uploads/2022/04/Podcast-197-Past-Results-Do-Not-Predict-Future-Outcomes.mp3I’m David Holub, an attorney focusing on personal injury law in northwest Indiana.
Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics.
Today’s question comes from a fellow who texted us. He said he was absolutely sure he had a great case, and he wanted to sue for a Bazillion Dollars! He wanted us to call him right away.
Setting aside the paradox of texting us to demand that we call him, I was intrigued that he knew how much he wanted to sue for. Most people rely upon their attorney to make that decision, but this fellow had all the answers.
Anyway, we tried calling the number he gave in the text, and surprise – there was no answer.
Keep in mind that a bazillion is not even an actual dollar amount. Also, keep in mind that what you ask for in a case has little relationship to what you might get through a settlement or verdict. Lastly, keep in mind that even if you get a large verdict after a trial, you still have to collect on that verdict. If the person you won a judgment against has no insurance and no assets, well, good luck collecting anything.
We understand that people often contact an attorney when they are frustrated, angry, and injured. Perhaps they have lost someone close to them due to negligent medical care or an auto accident caused by a distracted or drunk driver.
Sometimes it is just a matter of seeing ads or billboards tabulating how much money a law firm has won for their clients over the years. The person contacting an attorney thinks, “hey, I want that too.”
What those ads, billboards, and lawyer websites don’t always display is a disclaimer that says:
“Past results are not an express or implied prediction of future success and should not be construed as such. Past results cannot guarantee future performance or case outcomes. Any result in a single case is not meant to create an expectation, promise, guarantee, or prediction of a similar result in a future case. Each case has many different factors, including different facts and legal issues. Verdicts may be reduced by comparative fault, contributory negligence, or following an appeal. Results will always differ on a case-by-case basis.”
That’s right … the case you decide to contact an attorney about, although similar in nature to what you might have read about, is not the same as that case. And the jury that heard that big award case will not be the same jury to decide your claim, and everything will be different. And even if you win and are awarded a figure of some sort, it may or may not be the number you envision.
We’ve spent years educating our clients on what to expect if injured and are now considering bringing a lawsuit.
Our website is filled with information that can help guide viewers to the truth. You might even find articles that resemble the situation you might be in. But, if so, let us remind you that every case, jury, and outcome is unique and not guaranteed to present the same results.
In our book “Fighting for Truth,” we highlight past verdicts and past results. In doing so, however, we make clear that past performance does not equal future results.
I hope you found this information helpful. If you are a victim of someone’s carelessness, substandard medical care, a product defect, work injury, or another type of personal injury, call us at (219) 736-9700 with your questions. Learn more about us by visiting our website at DavidHolubLaw.com. And, if you want to know more about our past verdicts and results, please request a copy of our book “Fighting for Truth.”
The post Ep 197 – Past Results Do Not Predict Future Outcomes first appeared on Personal Injury Primer.
Social Media is Not the Place to Ask Legal Advicehttps://personalinjuryprimer.com/wp-content/uploads/2022/04/Podcast-196-Social-Media-is-Not-the-Place-to-Ask-Legal-Advice.mp3I’m David Holub, an attorney focusing on personal injury law in northwest Indiana.
Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics.
Today’s topic is focused on the alarming practice of some people posting personal information online to obtain advice from the online world.
Not sure when it became trendy to do it. But too many people nowadays are not only posting their medical history online for all to see, but they are also seeking legal and medical advice from online connections. And, they seem to expect that whatever direction is posted will help them overcome some problem they or a loved one is experiencing.
Most lawyers will never respond to these postings as they could be construed as offering legal advice.
Doctors and nurses are also instructed not to respond as their advice could create a conflict of interest or potentially set them up for a malpractice lawsuit.
And yet, people still post their medical and legal inquiries online for all to see, hoping someone will validate their feelings or ideas.
Examples of posts of this type can be found on prominent social sharing platforms. Are you tempted to post about medical issues, whether it be about kidney stones, gallbladder issues, mental breakdowns, hospital emergency room visits, or the like? If so, you might be one of those people giving out “too much information” and need to put the brakes on your posting.
While we understand the frustration that can lead to posting personal information to get advice. The practice can be hazardous to your health, finances, and pretty much every other aspect of your life.
And, we should be thankful that doctors and lawyers do not respond to such posts. Put yourself in the position of a lawyer or doctor who might be considering responding. Would that lawyer or doctor be free to rely upon everything in a post being truthful? If not, any advice given could lead to more harm than good.
Three Things That YOU Should Remember About Social Media
- What you post about is not private.
- Anything you post is often still available to those who know where to look (even after you delete it and think it’s gone).
- Information you share can be used against you in legal matters.
But for those who like to share every detail of their lives on social media, here’s what we suggest…
- Never post anything that you wouldn’t want a judge to see.
- Never post anything that reveals private information about another person.
- Never post anything that shows you acting irresponsibly.
I hope you found this information helpful. If you are a victim of someone’s carelessness, substandard medical care, a product defect, work injury, or another personal injury, please call (219) 736-9700 with your questions. You can also learn more about us by visiting our website at DavidHolubLaw.com – while there, make sure you request a copy of our book “Fighting for Truth.
The post Ep 196 – Social Media is Not the Place to Ask Legal Advice first appeared on Personal Injury Primer.
Use Care Signing Treatment Authorization Formshttps://personalinjuryprimer.com/wp-content/uploads/2022/04/Podcast-195-Beware-of-Language-in-Treatment-Authorization-Forms.mp3I’m Katelyn Holub, an attorney focusing on personal injury law in northwest Indiana.
Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics.
Today’s question comes from a client who encountered language in a medical care provider’s treatment authorization form that shocked him.
This client simply wanted to get medical care following a car crash. Many people do not even read what they are asked to sign.
This client read the form, and it seemed that he was being asked to sign away his legal rights in exchange for getting treatment. And, it appeared that it was all because he was in a car crash.
What we found when we analyzed the form was that the care provider planned to accept insurance if the patient injured a leg playing volleyball, but REJECT insurance if the patient’s leg was injured in a car crash.
Here is the type of language we are talking about:
I authorize and instruct my attorney, to pay directly to my provider money owed for medical services rendered to me in consequence of this occurrence and withhold money from any settlement, judgment, or verdict to protect said provider. I further give a lien on my case against all proceeds of any settlement, judgment, or verdict paid due to the injuries for which I have been treated.
Here is the problem in a nutshell. Any provider who inserts such language into treatment authorization paperwork when they know there is available insurance to pay for treatment is laying a trap against the unsuspecting signer.
We suggest that anyone confronted with this kind of language consult an attorney before signing.
We understand that it’s sometimes not practical to do because the person is faced with the language at the facility. The pressure of needing treatment can make one reluctant to walk out until they have a chance to talk to an attorney.
But being asked to sign something that signs away your rights before you get treatment should be a red flag that the provider really does not have your best interests in mind.
Even if you sign, you can always ask for a copy of what you signed. Then you and your attorney may choose to write a letter that sets the record straight as to billing and how you’re going to pay for services.
Since our economy is not as resilient as it once was. We suspect this language has appeared because some providers want to cover every angle to make a scarce dollar.
Obviously, there’s nothing wrong with someone being paid a fair wage for their services. But some providers will decline available insurance payments because they do not like the lower fee insurance pays them.
Let’s say a provider bills $500 for a service. Insurance may, by agreement, pay the provider $50, despite the $500 charge. Keep in mind that the provider agreed with an insurance company to take the lower amount.
It can be enticing to decline insurance payments and convince a customer to sign a paper to pay the $500 charge out of a lawsuit recovery.
Most attorneys are happy to help a client figure out how to pay for treatment in a fair way that uses all of their insurance resources available to pay for treatment.
I hope you found this information helpful. If you are a victim of someone’s carelessness, substandard medical care, a product defect, work injury, or another personal injury, please call (219) 736-9700 with your questions. You can also learn more about us by visiting our website at DavidHolubLaw.com – while there, make sure you request a copy of our book “Fighting for Truth.”
The post Ep 195 – Use Care Signing Treatment Authorization Forms first appeared on Personal Injury Primer.
Failure to Diagnose Cancerhttps://personalinjuryprimer.com/wp-content/uploads/2022/04/Podcast-194-Failure-to-Diagnose-Cancer.mp3I’m Katelyn Holub, an attorney focusing on personal injury law in northwest Indiana.
Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics.
Today’s podcast involves a question raised by a caller who just learned that he tested positive for prostate cancer. He, of course, was surprised. His family doctor would every year have him get a PSA screening test. When he confronted the family doctor, he was shocked to learn that his PSA scores were highly elevated for several years. Yet his family doctor never told him. He wanted to find out about his legal options.
Unfortunately, we find this kind of situation happening reasonably often. It’s usually not intentional neglect on the part of a family physician. When they ordered the screening PSA tests, their head was in the right place. They just didn’t review the results, or if they examined them, it didn’t register with them that the results were in the range that would suggest cancer. This can happen with other cancers like skin cancer or breast cancer.
Of course, the patient would prefer a cancer be caught quickly, and that’s why they go through the screening procedures. It’s reasonable for them to consult an attorney in such a case.
Imagine being told that you could have been cured had your cancer been diagnosed early, but that now there is no hope. Then imagine that the cancer was capable of being diagnosed early (that the screening tests came back positive for cancer) but that your physician simply dropped the ball.
Of course, you will want to consider the legal option of suing the doctor who failed to do their job.
But here’s where things get tricky. With some very slow progressing cancers, the failure to detect cancer for one or two years may not make a difference. On the other hand, with very aggressive forms of cancer, a one or two year delay can mean that the cancer is likely to win.
So the legal analysis must focus on what’s called a loss of chance. Under the law, if it is very insignificant, the loss of a chance doctrine will make proceeding with a court case very difficult.
A case has a far greater likelihood of being successful at trial, where medical negligence results in a loss of a chance so significant that experts agree leaves the patient’s outcome in grave doubt.
Here is the legal formula that a jury will be instructed to use in such a case:
A physician may be liable to a patient for a loss of chance of survival resulting from the physician’s failure to exercise reasonable care.
To recover damages from the physician, the patient must prove by the greater weight of the evidence that:
(1) the physician’s care and treatment of the patient fell below the appropriate standard of care;
(2) if the physician had met the appropriate standard of care, the patient would have had a chance of survival;
(3)the physician’s failure to meet the appropriate standard of care decreased the patient’s chance of survival; and
(4)the physician’s failure to meet the appropriate standard of care was a substantial factor in causing harm to the patient.
To make this determination, consider the evidence presented about:
(5) the patient’s percentage chance of survival before the physician’s alleged negligent acts or omissions, and
(6)the patient’s percentage chance of survival after the physician’s alleged negligent acts or omissions.
The difference between these percentages is the percentage value of the patient’s loss of chance of survival.
After determining the percentage value of the patient’s loss of chance of survival, determine the value of the total damages based on the evidence presented.
Multiply this dollar amount by the percentage value of the patient’s lost chance of survival.
Let’s simplify all that. Suppose the chance of survival was 90% and is now 80%. The difference is 10%. In such a case, an attorney might advise against pursuing a lawsuit.
On the other hand, if the chance of survival was 90% and is now 20%, the difference is 70%. Pursuing a lawsuit makes much more sense.
Suffice it to say, to evaluate such claims, an attorney would need to see the patient’s medical records, those of all treaters.
I hope you found this information helpful. If you are a victim of someone’s carelessness, substandard medical care, a product defect, work injury, or another personal injury, please call (219) 736-9700 with your questions. You can also learn more about us by visiting our website at DavidHolubLaw.com – while there, make sure you request a copy of our book “Fighting for Truth.”
The post Ep 194 – Failure to Diagnose Cancer first appeared on Personal Injury Primer.
Coaching Certification to Deal with Concussion Injurieshttps://personalinjuryprimer.com/wp-content/uploads/2022/04/Podcast-193-Coaching-Certification-to-Deal-with-Concussion-Injuries.mp3I’m Katelyn Holub, an attorney focusing on personal injury law in northwest Indiana.
Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics.
Today’s question comes from a caller who said his daughter was on the school basketball squad at an Indiana high school. During a basketball game, she fell and suffered a severe concussion. He found out that the coaching staff had no concussion training and did nothing to deal with the injury. In fact, the coach made his daughter continue to play with a severe headache and dizziness. The doctors are now telling him the damage is much worse than it would have been if the child had been removed from play and prompt medical care had been given. He wanted to know his legal rights.
First, let’s set aside issues about giving notice to sue a school, a governmental entity. We have explained in other podcasts that specific notices must be timely served on the government after an incident to sue. Second, in other episodes, we have also discussed how governmental entities in many situations are statutorily immune from liability. So, let’s set that issue aside.
At the heart of the caller’s question is a lack of coaching training to deal with concussion injuries or willful disregard of the needs of concussion victims.
Since at least 2017, Indiana has had a law setting forth certified coaching education requirements for concussion awareness. [IC 20-34-7-7]
The statute applies, with limited exceptions, to a head or assistant coach who coaches any interscholastic or intramural sport.
The statute states that before coaching a student-athlete in any sport, a head coach and every assistant coach … must complete a certified coaching education course that:
– contains player safety content on concussion awareness;
– requires a coach to complete a test demonstrating comprehension of the content of the course; and
– awards a certificate of completion to a coach who successfully completes the course.
The certification course must be approved by a licensed physician who has expertise in concussions and brain injuries.
Suppose a coach complies with the certification program and provides coaching services in good faith. In that case, the coach may not be held personally liable for damages in a civil action due to a concussion or head injury suffered by a student-athlete participating in athletic activity. However, a coach may be held personally responsible if the coach’s conduct amounts to willful misconduct or gross negligence.
It will be essential to learn whether the coach completed a certification course on concussion awareness in the caller’s case. And if so, why were the signs of concussion exhibited by the child ignored? If it was to win a game at the expense of the child’s health, there might be a tough time of reckoning for the coaching staff.
I hope you found this information helpful. If you are a victim of someone’s carelessness, substandard medical care, a product defect, work injury, or another personal injury, please call (219) 736-9700 with your questions. You can also learn more about us by visiting our website at DavidHolubLaw.com – while there, make sure you request a copy of our book “Fighting for Truth.”
The post Ep 193 – Coaching Certification to Deal with Concussion Injuries first appeared on Personal Injury Primer.
Cosmetic Surgery Gone Wronghttps://personalinjuryprimer.com/wp-content/uploads/2022/04/Podcast-192-Cosmetic-Surgery-Gone-Wrong.mp3I’m Katelyn Holub, an attorney focusing on personal injury law in northwest Indiana.
Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics.
Today’s question comes from a caller who said she went in to have cosmetic surgery. They removed some fat tissue from around her abdomen, and it was supposed to be a simple tummy tuck. But, the wound became seriously infected, leading to extensive hospitalization and permanent scarring. She wanted to know her legal options.
Most cosmetic surgery is what is called elective surgery.
In other words, it’s not a surgery that is required for functional or health reasons. Instead, it is a surgery that the patient chooses to do for self-improvement.
With elective procedures, the medical professional is required to obtain the patient’s informed consent to proceed.
Informed consent should include a listing of all of the risks associated with the particular procedure. If those risks are not described or explained, the consent is not what the law calls informed consent.
Just like any other surgery, there are risks associated with elective surgery.
Those marketing cosmetic surgery tend to downplay those risks. The marketing materials often show people smiling and happy after a procedure. These marketing materials often convince those inquiring about the procedure to proceed with surgery.
In checking with this caller, it was evident that infection was one of the risks spelled out in papers signed before the procedure. The caller also indicated that the doctor verbally said infection would be a risk.
But, just because you, the patient, suffer an injury on the list of described risks, does that mean you don’t have a case?
No. Not at all.
It does not mean that you are precluded from bringing a case. It just means the analysis of what happened during the procedure may be more complex than with other types of injury claims.
You see, if everything is done correctly during a procedure, there still may be a risk of infection, and that risk may be 1 in 1000.
But what if the surgeon fails to sterilize the instruments used in surgery.
That failure could raise the risk of infection to 1 in 25. Or, perhaps make infection a near certainty.
Just because a risk is listed on a consent form, and you suffer a complication on the risk list, you are not automatically foreclosed from pursuing a case.
The attorney will need to review the medical records before, during, and after surgery to answer the caller’s question. The circumstances of the surgery will need to be reviewed in careful detail. Moreover, an expert consultant may need to be hired to analyze the records and determine if malpractice occurred.
I hope you found this information helpful. If you are a victim of someone’s carelessness, substandard medical care, a product defect, work injury, or another personal injury, please call (219) 736-9700 with your questions. You can also learn more about us by visiting our website at DavidHolubLaw.com – while there, make sure you request a copy of our book “Fighting for Truth.”
The post Ep 192 – Cosmetic Surgery Gone Wrong first appeared on Personal Injury Primer.
Dangerous Flash Flooding on Highwayhttps://personalinjuryprimer.com/wp-content/uploads/2022/04/Podcast-191-Dangerous-Flash-Flooding-on-Highway.mp3I’m David Holub, an attorney focusing on personal injury law in northwest Indiana.
Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics.
Today’s question comes from a caller who said: “My wife was seriously injured when she lost control of her vehicle after it hydroplaned on a state highway during a heavy downpour. I’ve since learned that the state has received numerous complaints about this portion of the highway having issues with flash flooding during heavy rain storms, but never did anything about it. Can we sue the state?”
Generally, the government can be held liable for damages caused by dangerous defects and/or conditions on public roadways.
Keep in mind, there are strict rules about suing the government, including very limited time frames for bringing actions against the government. We have explained these rules in other episodes.
But for purposes of this caller’s question, we’ll assume the deadline by which to file a claim against the government has not expired.
That said, the state has a duty to ensure that it’s public roads are safe.
There are many ways a state can breach its duty to provide safe roads to the public, including, but not limited to failing to use reasonable care in designing or constructing roads, and failing to properly maintain roads.
In this caller’s example, the state was aware of the flash flooding problem on this particular stretch of highway, yet apparently did nothing to fix the problem.
Perhaps the state failed to clear out storm drains and catch basins in the area, thereby giving rise to the flash flood problem.
Alternatively, perhaps the state failed to close the portion of dangerous highway despite being aware of the flooding problem and the impending severe storm event.
There are a variety of possible reasons a state could fail in its duty to provide the public with safe roads and highways.
Each situation is unique and it’s important to seek a good lawyer to advise you of the strength of your potential claims against a state.
I hope you found this information helpful. If you are a victim of someone’s carelessness, substandard medical care, a product defect, work injury, or another personal injury, please call (219) 736-9700 with your questions. You can also learn more about us by visiting our website at DavidHolubLaw.com – while there, make sure you request a copy of our book “Fighting for Truth.”
The post Ep 191 – Dangerous Flash Flooding on Highway first appeared on Personal Injury Primer.
Parent Failing to Control Child Results in Injuryhttps://personalinjuryprimer.com/wp-content/uploads/2022/04/Podcast-190-Parent-Failing-to-Control-Child-Leads-to-Injury.mp3I’m David Holub, an attorney focusing on personal injury law in northwest Indiana.
Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics.
Today’s question comes from a caller knocked down by a child on a bicycle. The caller was walking on a city sidewalk when an 8-year-old girl came from behind her on a bike and knocked the woman down, fracturing her shoulder. She wanted to know if she could sue the parents of the child.
Where a parent purchases a bicycle for a child, and the parent has knowledge that the child customarily operates it in a dangerous manner, for example, on a public sidewalk, and the child negligently strikes a pedestrian from the rear, the pedestrian likely will have a valid claim against the parents for the harm caused by being knocked to the ground and injured.
In such a case, where a parent has failed to control a child, it will be essential to prove that the parent:
(a) had knowledge that the child’s conduct was creating an unreasonable risk of harm to others, and
(b) had an opportunity to exercise control over the child.
In the caller’s case, the parent entrusted a bicycle which, although not inherently dangerous, was known to be likely used unreasonably to cause harm to others.
Permitting a child to use a thing or engage in an activity that the parent knows or should know is likely to result in the child harming others amounts to a legal wrong.
Suppose there is an ordinance against riding a bicycle on city sidewalks. Suppose further, the child’s parents told the child to ride on sidewalks or permitted the child to ride on sidewalks. Suppose further, the parents know the child had neither the experience nor the knowledge to safely operate and control the bicycle. In such a case, the child’s bike operation would constitute a menace and hazard to pedestrians lawfully using the sidewalk.
The parents of Dennis the Menace, who know Dennis does dangerous things that can harm others, can indeed be held legally responsible for the harm Dennis causes.
Suppose Dennis gets a hold of an unsecured gun, other weapons, or another inherently dangerous item. If Dennis hurts someone, the parents can be held liable.
I hope you found this information helpful. If you are a victim of someone’s carelessness, substandard medical care, a product defect, work injury, or another personal injury, please call (219) 736-9700 with your questions. You can also learn more about us by visiting our website at DavidHolubLaw.com – while there, make sure you request a copy of our book “Fighting for Truth.”
The post Ep 190 – Parent Failing to Control Child Results in Injury first appeared on Personal Injury Primer.
Can a Doctor Be Sued for Lack of Diligence in Attending a Patient?https://personalinjuryprimer.com/wp-content/uploads/2022/04/Podcast-189-Can-a-Doctor-Be-Sued-for-Lack-of-Diligence-in-Attending-a-Patient.mp3I’m David Holub, an attorney focusing on personal injury law in northwest Indiana.
Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics.
Today’s question comes from a caller who claims his wife, who is in a nursing home, is not getting proper care from her doctor. In short, he says the doctor only comes to the nursing facility once a month and she is not being diligent in attending to her patient. He wants to know his rights.
The phrase “lack of diligence in attending a patient” is rather difficult to define.
A doctor’s failure to give proper attention to a patient, is different from claiming the physician acted without skill, or that the physician made an error in diagnosis, or that the physician neglected to give the patient proper treatment while in attendance.
A lack of diligence in attending a patient means something a bit different.
Generally, under the law, a physician, in the absence of an agreement to the contrary, is, during the existence of the physician and patient relationship, under a duty to give to the patient: all necessary care as long as the patient requires attention. Thus, any unwarranted lack of diligence in attending the patient after assuming to care for the patient exposes the physician to liability for damages.
Here is another way to state things. During the existence of the relationship of physician and patient, the doctor is under a duty to give to her patient the needed continued care, and a lack of required diligence on the part of the physician in attending the patient constitutes negligence or malpractice making the physician liable.
If lack of diligence in attending a patient is the basis of a claim, the plaintiff must show that the physician’s lack of diligence in attending the patient was the proximate cause of the injury at issue.
So, in response to the caller’s question, a delay in or the infrequency of visits by the physician can support a claim of liability against the physician.
A physician must use reasonable care and skill in determining the frequency of her visits, and if she does not answer a call or allows intervals to elapse between the visits where attention is needed, she is negligent in doing so.
There are many different ways a physician can be negligent. These include the physician’s failure or delay in examination of a patient. A failure to give proper instructions for the patient’s care. A failure or delay in sending the patient to a hospital. Premature discharge of a patient from care. Or, the failing to notify the health authorities where a statute requires such notification (for example, in a suspected abuse case).
A physician is not negligent if she stays in contact with the patient by telephone and her physical presence is not necessary. A physician is not liable for lack of diligence in attending a patient if she temporarily leaves or interrupts her practice, provided (1) she makes proper provision for the attendance of a competent physician during her absence in case of a call; (2) timely informs her patient of her unavailability and the substitution; and (3) does not absent herself while the patient is in a critical condition.
So, in the caller’s case, the key will be to establish that the delay in attending to the patient wife was both unreasonable, and harmed the patient in some way.
I hope you found this information helpful. If you are a victim of someone’s carelessness, substandard medical care, a product defect, work injury, or another personal injury, please call (219) 736-9700 with your questions. You can also learn more about us by visiting our website at DavidHolubLaw.com – while there, make sure you request a copy of our book “Fighting for Truth.”
The post Ep 189 – Can a Doctor Be Sued for Lack of Diligence in Attending a Patient? first appeared on Personal Injury Primer.
What is the Fireman’s Rule?https://personalinjuryprimer.com/wp-content/uploads/2022/04/Podcast-188-What-is-the-Firemans-Rule.mp3I’m David Holub, an attorney focusing on personal injury law in northwest Indiana.
Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics.
Today’s question comes from a caller whose husband, a police officer, was injured when he responded to a call to a tavern. An underaged patron was consuming alcohol. The patron became belligerent and slammed a chair over her husband’s back, seriously injuring him, when the officer responded to the call. She wanted to know if we could help.
Of course, the police officer injured as described by the caller would have a workers compensation claim due to the work injury he suffered.
But suing the patron who assaulted him or the tavern that served the alcohol and called him to the scene is the real question here.
Police officers and fireman have their normal ability to sue restricted by what is known as the “fireman’s rule.”
The “fireman’s rule” is a legal principle which states that a landowner owes no duty to a professional whose occupation by nature exposes them to particular risks, except the duty to abstain from any positive wrongful act which might cause them harm.
Let’s simplify that. The fireman’s rule, aside from limited exceptions, prevents a fireman or policeman from suing where they come onto the property to do their jobs if they are hurt while doing their jobs.
So, if her husband was another customer at the tavern and got hit by a chair, that customer could sue. The tavern owes her husband no duty, because his job required him to come to the tavern in response to a call for help.
Classic example. Your house is on fire, and you call the fire department. A fireman comes to put out the fire. If the fireman gets hurt putting out the fire, he can’t sue you.
Well, the fireman could sue you if, when he got to the house and asked if there were any explosives in the house, you lied and said no, and it turned out you were storing ammo, and the ammo exploded and injured the fireman.
Why? You did a positive wrongful act when you lied, which caused the fireman to enter the house. So you could be sued. If you told the truth about the danger, the firemen could stay back and stay safe while hosing down the fire. They went into the home and got hurt only because of the lie. Positive wrongful acts involve an element of willfulness on the part of the wrongdoer.
Suppose you called the fire department to put out a fire, and the fire started because you were using the house, in violation of statutes, to produce meth. Because of the statutory violation, the meth house operator could be sued for injuries suffered by a fireman.
The fireman’s rule makes sense in the large scheme of things. If a person is afraid they’ll be sued when reporting a fire, they might hesitate to report the fire. The fire might then spread beyond the ability to control. So, in their wisdom, courts established the fireman’s rule.
In the case of the caller, there still may be hope. As we said, the person operating a Meth house can be sued by a fireman injured responding to a fire. The minor was served alcohol and became belligerent. The tavern operator called for police help. Serving alcohol to minors is prohibited by law. The fireman’s rule should not bar a suit by the officer and his wife.
The violation of any statutes or ordinances not explicitly enacted to protect police officers responding to a complaint on a landowner’s premises should permit a lawsuit.
I hope you found this information helpful. If you are a victim of someone’s carelessness, substandard medical care, a product defect, work injury, or another personal injury, please call (219) 736-9700 with your questions. You can also learn more about us by visiting our website at DavidHolubLaw.com – while there, make sure you request a copy of our book “Fighting for Truth.”
The post Ep 188 – What is the Fireman’s Rule? first appeared on Personal Injury Primer.
Hospital Tests that Show Marijuana Before a Crashhttps://personalinjuryprimer.com/wp-content/uploads/2022/04/Podcast-187-Are-Hospital-Tests-that-Show-Marijuana-Before-a-Crash-Admissible.mp3I’m Katelyn Holub, an attorney focusing on personal injury law in northwest Indiana.
Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics.
Today’s question comes from a caller who said she was involved in a collision while she was driving a car. An ambulance took her to the hospital from the scene and tests showed cannabinoid use in a minimal amount. She says the other driver ran a red light and caused the collision. However, the insurance carrier says she bears fault for having used marijuana. She wanted to know her rights.
Urine screens and blood tests while being treated in a hospital following a car crash often pick up controlled substances in the body.
Cannabinoids are inactive marijuana metabolites. Their presence in urine does not and cannot without supporting expert testimony constitute proof of impairment or intoxication.
The presence of cannabinoids in blood or urine samples taken following a crash, standing alone, would generally be immaterial to any issue at trial.
However, where the sample is taken from a driver, driver impairment will be an issue.
In most cases, evidence of trace cannabinoid amounts in a driver would be immaterial and irrelevant.
However, trace amounts of cannabinoids will be material and relevant at trial if the sample is taken from the driver of a commercial vehicle. Commercial driver’s license holders are held to stricter standards than other drivers when it comes to drug or alcohol use.
On the other hand, the presence of cannabinoids in a sample taken from a mere vehicle passenger, should, in most cases, not be material to the case.
Another issue when dealing with cannabinoid blood or urine test results involves false positives. Urine screens are more likely to result in a false positive than blood tests. Typically, only a blood test can determine if the active form of marijuana was in the body and thus producing psychoactive effects.
If no blood draw was tested, but only a urine screen test, then no evidence of intoxication or impairment will likely be admissible, since such evidence would be based just on a urine screen alone.
Urine screens are designed to determine if a person has ingested marijuana. The metabolites from the broken-down marijuana will remain in the urine for up to 30 or so days after using marijuana.
Urine screens are usually used for persons on probation or parole who have been ordered to be substance-free.
The use of a urine screen result cannot determine and does not determine intoxication or impairment at the time of a collision. It can show that within 30 days before the test, marijuana was ingested. But, nothing more.
I hope you found this information helpful. If you are a victim of someone’s carelessness, substandard medical care, a product defect, work injury, or another personal injury, please call (219) 736-9700 with your questions. You can also learn more about us by visiting our website at DavidHolubLaw.com – while there, make sure you request a copy of our book “Fighting for Truth.”
The post Ep 187 – Are Hospital Tests that Show Marijuana Before a Crash Admissible? first appeared on Personal Injury Primer.
Liability for False Imprisonmenthttps://personalinjuryprimer.com/wp-content/uploads/2022/04/Podcast-186-Liability-for-False-Imprisonment.mp3I’m Katelyn Holub, an attorney focusing on personal injury law in northwest Indiana.
Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics.
Today’s question comes from a caller who stated that he was leaving after buying groceries when a security guard came up and threw him to the ground. The guard seriously injured him, and he wanted to know his legal rights.
When we questioned him further, we found that he had been released from the hospital a week earlier after suffering a mild stroke. When he got flustered, he slurred his speech and became easily confused. The security guard told the police that the cashier reported the man as drunk. The guard also told the police that he thought the man was mumbling and walking with a halting gait and was intoxicated.
Thankfully, the hospital did a blood screen when treating the caller’s broken leg and confirmed he had not consumed alcohol or drugs.
This scenario fits into a category of law that is called false imprisonment.
A store owner can be held liable in a false imprisonment action brought by a customer if the store operator fails to act in a “reasonable manner” when dealing with a business invitee.
The caller’s case was a bit unusual. But false imprisonment applies to his situation, just as it applies in more ordinary situations.
Here is an example of where the tort of false imprisonment would come into play.
Suppose a security officer stops a customer and accuses the customer of shoplifting shirts. In response, the customer tells the security guard he has receipts in his vehicle for the shirts that the guard suspects him of shoplifting. The guard declines to go with the man to look for the receipts. Instead, the guard escorts the customer in handcuffs to the office. Then the guard and another employee berate the customer, and they refuse to let the customer take diabetes medication. When the police arrive, the guard roughly forces the customer to the floor and knees the customer’s back while store handcuffs are removed. Such wrongful conduct is a classic example of false imprisonment, a civil wrong for which a victim can sue for compensation.
The store operator will likely rely on the shopkeeper’s privilege rule in defense of a false imprisonment claim. This doctrine grants a store operator reasonable leeway to detain a shoplifting subject while the police are called.
The store may also defend by arguing that the wrongful conduct was solely the result of the actions of a security guard company the store hired. The customer could try to show that the store owner negligently hired the security company without proper vetting in order to defeat the store owner’s defense.
Negligent hiring requires evidence that had the security company reasonably investigated the guard engaging in the wrongful conduct, it would have discovered the employee was unfit to be working for the company.
Another common example of false imprisonment can arise in situations with nightclub bouncers. Suppose a nightclub fails to train its security guard. In such a case, the lounge may be held liable for injuries to a nightclub patron when the security guard physically removes the patron from the premises.
I hope you enjoyed this episode. If you are a victim of someone’s carelessness, substandard medical care, a product defect, work injury, or another personal injury, please call (219) 736-9700 with your questions. You can also learn more about us by visiting our website at DavidHolubLaw.com – while there, make sure you request a copy of our book “Fighting for Truth.”
The post Ep 186 – Liability for False Imprisonment first appeared on Personal Injury Primer.
Proving Lost Earning Capacity in Courthttps://personalinjuryprimer.com/wp-content/uploads/2022/04/Podcast-185-Proving-Lost-Earning-Capacity-in-Court.mp3I’m Katelyn Holub, an attorney focusing on personal injury law in northwest Indiana.
Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics.
Today’s question was prompted by the subject of lost earnings capacity damages addressed in an earlier podcast. That episode prompted a question about how one actually goes about proving such a claim.
The elements of proof necessary to establish a claim for loss of earning capacity as an element of damage are pretty simple:
- Proof of the existence of some earning capacity–either actual or potential — before the injury:
– In other words, proof of the claimant’s track record or earnings history comes into play. Imagine a musician who has a band. When that musician suffers a hand injury and can no longer play piano or guitar, we will want to see what was earned playing at concert venues in the past.
- Proof that this earning capacity has been lost or diminished:
– Here, the plaintiff needs to establish that the capacity to earn has been restricted or impinged. Imagine the same musician can no longer perform because their hand is broken and cannot play concerts anymore.
- Proof that the cause of the lost or diminished earning capacity is proximately caused by the injury:
– Here, our example musician needs to establish with medical proof that the injury to the hand was suffered in the car crash or other injury event.
- Proof of the dollar amount of the loss:
– An economist may be of help in making this calculation. In our musician example, proof could be that the rest of the band became hugely successful, but since the injury plaintiff had to leave the band, they lost out on the success the others enjoyed.
Factors to be considered include:
A plaintiff’s physical condition before and after the injury. The plaintiff’s age and life expectancy before and after the injury incident. Previous earnings history. Work record. A calculation of the reasonable amount the plaintiff probably would have earned absent the injury. And the probability he would have continued to receive earnings over the balance of his working life.
Pretty simple right?
Maybe not so simple.
Suppose our example, the musician can no longer play in the band. However, they can write songs. They still earn a percentage of the band’s success going into the future, just a smaller percentage.
As you can see, the simple can become complex depending on the precise circumstances.
I hope you found this information helpful. If you are a victim of someone’s carelessness, substandard medical care, a product defect, work injury, or another personal injury, please call (219) 736-9700 with your questions. You can also learn more about us by visiting our website at DavidHolubLaw.com – while there, make sure you request a copy of our book “Fighting for Truth.”
The post Ep 185 – Proving Lost Earning Capacity in Court first appeared on Personal Injury Primer.
Options When Your Insurance Carrier Wants to Question You Under Oathhttps://personalinjuryprimer.com/wp-content/uploads/2022/04/Podcast-184-When-Your-Insurance-Carrier-Wants-to-Question-Under-Oath.mp3I’m Katelyn Holub, an attorney focusing on personal injury law in northwest Indiana.
Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics.
Today’s question comes from a caller who explains that she’s been making a claim for insurance benefits due to a fire at her home. She says she gave a statement under oath, and now the insurance company is denying her claim. She says it is time to get an attorney and know her legal options.
You may have heard the saying, “it is never too late.”
But, when your insurance company wants your statement under oath, the time to hire an attorney is BEFORE you comply with the request. Not after.
We get this question quite often. When an insurance carrier asks for a statement under oath, it is playing hardball.
Consult an attorney right away when you make a claim following a fire loss or car theft. It will be money well spent.
It is different if a storm rips off your roof. People can’t arrange to have a storm damage their home.
Fires can be arranged. Car theft can be arranged.
Whenever a loss potentially can be arranged, insurance carriers look for ways to avoid paying. They may not contest every such claim, but they always think about doing so.
But, if you handle the claim on your own, stop and contact an attorney BEFORE giving a statement under oath.
You might ask why?
Well, insurance companies are obligated to pay valid claims, and they’re also bound to not pay invalid claims.
If an insured is being asked to give a statement under oath, that’s a red flag that the insurance company is suspicious about the claim.
It wants to make sure it understands the basis of your claim and make certain that you are pinned down after swearing to tell the truth.
Chances are it has already put your claim in a pile on the desk marked: likely to reject.
When an insurance company gets to the point of requiring a statement under oath, it believes it has all the evidence needed to deny the claim. The statement under oath is icing on the cake from its perspective.
When you hire an attorney BEFORE giving such a statement, the attorney then has the opportunity to go over with you everything that you have told the insurance company. Every recorded statement you provided can be reviewed. The paperwork you gave your company in response to written requests for documents can be reviewed.
Often, an attorney will find that the insured acted in good faith but failed to fully comply with the letter of each document request.
For example, suppose the insurance company asked for all of your bank records, but you forgot to supply documents for a particular account. Or you provided some records, but you did not cover the entire period encompassed by the request.
Give your attorney a chance to figure out where you stand in policy compliance before giving your statement under oath. Give you and your attorney the opportunity to supplement any response to information requests made by the insurance carrier.
Having an attorney present while you are questioned under oath will permit that attorney to object where necessary. The lawyer can clarify questions and make sure all questions are answered truthfully and accurately.
We often find that an insured has failed to fully cooperate with their insurance carrier. The noncompliance is rarely intentional.
Sometimes an insured will be mad that they are being questioned after a fire loss and get a chip on their shoulder and only cooperate begrudgingly.
That won’t work when it comes to insurance claims.
The insured has to cooperate. The insured has to cooperate fully.
Playing games will not work. Playing games can result in a valid claim being denied.
So if you are asked to give a statement under oath, politely indicate that you will do so but want to arrange to have your attorney present. Then, hire an attorney immediately.
I hope you found this information helpful. If you are a victim of someone’s carelessness, substandard medical care, a product defect, work injury, or another personal injury, please call (219) 736-9700 with your questions. You can also learn more about us by visiting our website at DavidHolubLaw.com – while there, make sure you request a copy of our book “Fighting for Truth.”
The post Ep 184 – Options When Your Insurance Carrier Wants to Question You Under Oath first appeared on Personal Injury Primer.
Negligence in Boarding or Alighting of Passengerhttps://personalinjuryprimer.com/wp-content/uploads/2022/04/Podcast-183-Common-Carrier-Liability-for-Passenger-Injury.mp3I’m David Holub, an attorney focusing on personal injury law in northwest Indiana.
Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics.
Today’s question comes from a caller whose handicapped 15-year-old daughter fell while exiting a commercial bus and broke her ankle. She was calling to discuss their legal rights.
This question addresses the concept of common carrier liability.
What is a “common carrier,” you might ask?
A common carrier can be any type of vehicle that gets you from one location to another for a fee.
A plane, train or bus, or even a taxicab will fit the definition in many situations. And, yes, there is case law that has held Uber is a common carrier – subject to a duty to care for passengers.
Common carriers are required to exercise the highest degree of care, vigilance, and precaution for the safety of their passengers.
This duty has been variously characterized as “the utmost care and diligence,” “the utmost caution characteristic of very careful men,” and diligence “as far as human care and foresight will go.”
The general rule is that a common carrier must exercise the highest degree of care for the safety of its passengers or the substantial equivalent of that rule. The rule applies to every type of common carrier, and it applies concerning the boarding of passengers and their actual carriage.
Furthermore, the duty does not end when the carrier stops but continues until the passenger has safely alighted.
Since the caller’s daughter was a passenger injured while alighting from a common carrier, in descending down the steps, the public bus company owed the child the care required of a common carrier.
In questioning the caller, we discovered that though the daughter was age 15, she was mentally handicapped and had the mental capacity of a 12-year-old. We further learned that as she was stepping off the bottom stair of the bus, the bus driver let his foot off the brake prematurely. This caused the bus to lurch, ejecting the child from the bus and onto the concrete curb.
In such situations, a common carrier’s negligence in failing to assist passengers and allowing a passenger an insufficient amount of time to board or alight will result in liability to the common carrier.
With the caller’s situation, if the bus driver knew of the child’s mental handicap, the duty to give the child adequate time to clear the steps would be heightened. Arguably, he may have been required to put the bus in park and help her off if she was having trouble.
Keep in mind that common carrier liability is not strict liability.
There are defenses to be made and situations where a carrier may avoid liability.
A classic no liability example would be where a passenger sustains injuries while exiting the carrier vehicle tripping on a bag left in an aisle.
There would likely be no liability without evidence of when the bag was placed in the aisle, operator knowledge it was in the aisle, and proof passenger freedom of movement was unduly restricted.
I hope you found this information helpful. If you are a victim of someone’s carelessness, substandard medical care, a product defect, work injury, or another personal injury, please call (219) 736-9700 with your questions. You can also learn more about us by visiting our website at DavidHolubLaw.com – while there, make sure you request a copy of our book “Fighting for Truth.”
The post Ep 183 – Negligence in Boarding or Alighting of Passenger first appeared on Personal Injury Primer.
Landlord Liability for Dangers on a Leased Business Premiseshttps://personalinjuryprimer.com/wp-content/uploads/2022/04/Podcast-182-Can-a-Landlord-Be-Liable-for-Dangers-on-a-Leased-Business-Premises.mp3I’m David Holub, an attorney focusing on personal injury law in northwest Indiana.
Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics.
Today’s question comes from a caller who fell on a sidewalk curbing while going to her accountant’s office. The accountant says that if anybody is liable for her injury, it is the accountant’s landlord. The caller wants to know her legal rights.
A landlord may under certain circumstances be held liable for injuries sustained by a third person on the leased premises, regardless of the purpose for which the premises are leased.
A landlord who leases property may be liable to an injured business patron of a lessee, where the injury is caused by a defect with the premises.
Liability exposure can also result where the landlord was negligent in making repairs or improvements to the premises.
The curbing where she fell did not comply with the building code in the caller’s case.
The accountant had complained to the landlord in the past about the failure to comply with the building code.
Where property is leased for public use, which invites people to come to the property to transact business, the lessor may be held liable for personal injuries sustained by a business patron, where the injury is caused by conditions existing at the time of the lease, or under the landlord’s control.
While the typical defendant in an action for personal injuries occurring on business premises is the actual operator of the business in possession of the premises at the time of the accident. A customer of a business establishment injured on the premises should always consider the possible owner-lessor liability, where the business is operated by a tenant. There are circumstances in which the owner-lessor will be responsible for such injuries.
Therefore, the attorney representing the injured party in such a case should determine the ownership of the premises involved, and if the owner is not also the operator of the business, the precise relationship between them.
I hope you found this information helpful. If you are a victim of someone’s carelessness, substandard medical care, a product defect, work injury, or another personal injury, please call (219) 736-9700 with your questions. You can also learn more about us by visiting our website at DavidHolubLaw.com – while there, make sure you request a copy of our book “Fighting for Truth.”
The post Ep 182 – Landlord Liability for Dangers on a Leased Business Premises first appeared on Personal Injury Primer.
Hospital Liability for Fall Injurieshttps://personalinjuryprimer.com/wp-content/uploads/2022/04/Podcast-181-Hospital-Liability-for-Fall-Injuries.mp3I’m David Holub, an attorney focusing on personal injury law in northwest Indiana.
Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics.
Today’s question comes from a caller who reports that his wife fell in the hospital following surgery. He says the back surgery has to be redone since the fall caused the surgical wounds to burst open. He wants to know if the hospital could be held liable for his wife’s fall injury?
Patient falls are a common type of accident that leads to lawsuits against hospitals and nursing homes.
Many patient falls happen when a patient climbs out of bed, frequently to go to the washroom.
Many patient falls also occur while a patient is using hospital equipment such as a wheelchair.
Falls from examining tables and gurneys are also common, particularly in emergency rooms and radiology departments.
In many cases involving falls by patients while using hospital bathroom and toilet facilities, the patient is usually left unattended by the hospital staff.
We’ve also handled cases where a fall occurs while a hospital employee assists a patient.
In the caller’s case, a nursing assistant was helping the wife get out of bed when the wife fell. The nursing aide was trying to put slip-resistant socks on the patient when the nurse aide lost her balance and tumbled to the floor with the patient.
The patient’s condition at the time of the fall often is a critical factor in determining liability.
Falls most often involve the elderly, sedated patients, postoperative patients, semiconscious patients, and patients with a known fall history.
Suppose the patient’s condition is such that it is foreseeable that they are exposed to the risk of injury from a fall. In that case, the hospital, in the exercise of due care, is required to provide supervision of the patient. Liability may flow from a failure to do so or from negligent efforts to carry out that obligation.
The duty of care to protect a patient may be fulfilled by using protective devices designed to prevent the patient from falling and being injured.
A guardrail on a hospital bed is the most common fall prevention device.
If the patient is likely to climb over a guardrail to get out of bed (for example, going to the bathroom), due care may require a patient restraint. Or an alarm that warns the nursing staff that the patient is attempting to get out of bed.
I hope you found this information helpful. If you are a victim of someone’s carelessness, substandard medical care, a product defect, work injury, or another personal injury, please call (219) 736-9700 with your questions. You can also learn more about us by visiting our website at DavidHolubLaw.com – while there, make sure you request a copy of our book “Fighting for Truth.”
The post Ep 181 – Hospital Liability for Fall Injuries first appeared on Personal Injury Primer.
Evidence of a Lack of Other Incidents I’m Katelyn Holub, an attorney focusing on personal injury law in northwest Indiana. Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics. Every once in a while the defendant in a case will try […]
The post Ep 177 – Evidence of a Lack of Other Incidents first appeared on Personal Injury Primer.
Honey or Vinegar I’m Katelyn Holub, an attorney focusing on personal injury law in northwest Indiana. Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics. Today’s topic is prompted by a call from a client who wanted to attend the deposition […]
The post Ep 176 – Honey or Vinegar first appeared on Personal Injury Primer.
Hosting a Party Where Alcohol is Served to Minors I’m David Holub, an attorney focusing on personal injury law in northwest Indiana. Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics. Today’s question comes from a caller who stated that my […]
The post Ep 175 – Hosting a Party Where Alcohol is Served to Minors first appeared on Personal Injury Primer.
Backup Safety for Buses and Trucks I’m David Holub, an attorney focusing on personal injury law in northwest Indiana. Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics. Today’s question comes from a caller who had a school bus back into […]
The post Ep 174 – Backup Safety for Buses and Trucks first appeared on Personal Injury Primer.
Failure to Provide Worksite Respirator I’m David Holub, an attorney focusing on personal injury law in northwest Indiana. Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics. We have previously discussed Occupational Safety and Health Administration (OSHA) safety rules that require […]
The post Ep 173 – Failure to Provide Worksite Respirator first appeared on Personal Injury Primer.
Consequences of Lying in Court I’m David Holub, an attorney focusing on personal injury law in northwest Indiana. Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics. Today’s question comes from a caller who would like to know the legal consequence […]
The post Ep 172 – What Are the Consequences of Lying in Court? first appeared on Personal Injury Primer.
Recovering Lost Earnings in a Suit After a Motor Vehicle Crash? I’m Katelyn Holub, an attorney focusing on personal injury law in northwest Indiana. Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics. Today’s question comes from a caller who wants […]
The post Ep 171 – Can You Recover for Lost Earnings in a Suit After a Motor Vehicle Crash? first appeared on Personal Injury Primer.
Get the Witnessed Name and Phone Number I’m Katelyn Holub, an attorney focusing on personal injury law in northwest Indiana. Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics. Today’s question comes from a caller who indicated that a nice young […]
The post Ep 170 – Get the Witnessed Name and Phone Number first appeared on Personal Injury Primer.
Rammed from Behind at High Speed I’m Katelyn Holub, an attorney focusing on personal injury law in northwest Indiana. Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics. Today’s question comes from a caller who wanted legal advice based on the […]
The post Ep 169 – Rammed from Behind at High Speed first appeared on Personal Injury Primer.
Failure to Diagnose Blood Clot Malpractice? I’m Katelyn Holub, an attorney focusing on personal injury law in northwest Indiana. Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics. Today’s question comes from a caller who wanted to know if the following […]
The post Ep 168 – Failure to Diagnose Blood Clot Malpractice? first appeared on Personal Injury Primer.
Can a Witness in a Civil Action Assert the Fifth Amendment I’m David Holub, an attorney focusing on personal injury law in northwest Indiana. Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics. Today’s question comes from a caller who was […]
The post Ep 167 – Can a Witness in a Civil Action Assert the Fifth Amendment first appeared on Personal Injury Primer.
What Information is Stored in Car Event Data Recorder I’m David Holub, an attorney focusing on personal injury law in northwest Indiana. Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics. Today’s podcast discusses the modern technology available in most cars […]
The post Ep 166 – What Information is Stored in Car Event Data Recorder first appeared on Personal Injury Primer.
Highway Design Is Responsible for My Accident I’m David Holub, an attorney focusing on personal injury law in northwest Indiana. Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics. Today’s question comes from a caller who was in an accident and […]
The post Ep 165 – Highway Design Is Responsible for My Accident first appeared on Personal Injury Primer.
How Do You Prove Traumatic Brain Injury? I’m David Holub, an attorney focusing on personal injury law in northwest Indiana. Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics. This episode again addresses traumatic brain injury (TBI). One of the tasks […]
The post Ep 164 How Do You Prove Traumatic Brain Injury? first appeared on Personal Injury Primer.
Recall on CPAP Machines Causes Great Hardship I’m David Holub, an attorney focusing on personal injury law in northwest Indiana. Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics. Today’s question comes from another caller who was forced to stop using […]
The post Ep 163 – Recall on CPAP Machines Causes Great Hardship first appeared on Personal Injury Primer.
Reconstructing an Auto Accident I’m Katelyn Holub, an attorney focusing on personal injury law in northwest Indiana. Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics. Today’s question comes from a caller who asked: “The crash I was in involved multiple […]
The post Ep 162 – Reconstructing an Auto Accident first appeared on Personal Injury Primer.
Tesla Battery Causing Devastating Injuries I’m David Holub, an attorney focusing on personal injury law in northwest Indiana. Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics. A few podcasts back, we shared news about a Tesla Autopilot causing injuries. Now […]
The post Ep 161 – Tesla Battery Causing Devastating Injuries first appeared on Personal Injury Primer.
Autopilot Car Causing Injuries I’m David Holub, an attorney focusing on personal injury law in northwest Indiana. Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics. Today’s question comes from a caller who would like to know if they buy a […]
The post Ep 160 – Autopilot Car Causing Injuries first appeared on Personal Injury Primer.
Brain Injury and Vestibular Ocular Motor Testing I’m David Holub, an attorney focusing on personal injury law in northwest Indiana. Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics. In the last episode, we discussed the vestibulo ocular reflex. This reflexive […]
The post Ep 159 – Brain Injury and Vestibular Ocular Motor Testing first appeared on Personal Injury Primer.
Brain Injury and Vestibulo Ocular Reflex I’m David Holub, an attorney focusing on personal injury law in northwest Indiana. Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics. In earlier podcasts, podcast numbers 127 -129, we discussed the new advances in […]
The post Ep 158 – Brain Injury and Vestibulo Ocular Reflex first appeared on Personal Injury Primer.
Can I Sue If My Blender Explodes I’m Katelyn Holub, an attorney focusing on personal injury law in northwest Indiana. Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics. Today’s question comes from a caller who had their blender explode, and […]
The post Ep 157 – Can I Sue If My Blender Explodes first appeared on Personal Injury Primer.
Hit by a Rental Car Driven by A Foreigner I’m Katelyn Holub, an attorney focusing on personal injury law in northwest Indiana. Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics. Today’s question comes from a caller who was hit be […]
The post Ep 156 – Hit by a Rental Car Driven by A Foreigner first appeared on Personal Injury Primer.
The Importance of a Lawyer Having Multiple Offices I’m Katelyn Holub, an attorney focusing on personal injury law in northwest Indiana. Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics. Today’s question comes from a caller who asked if our law […]
The post Ep 155 – The Importance of a Lawyer Having Multiple Offices first appeared on Personal Injury Primer.
Common Sense Driving Tips I’m Katelyn Holub, an attorney focusing on personal injury law in northwest Indiana. Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics. Today’s question comes from an existing client who said, “last year during the lockdown, some […]
The post Ep 154 – Common Sense Driving Tips first appeared on Personal Injury Primer.
Recall on CPAP Machines and Possible Contamination I’m David Holub, an attorney focusing on personal injury law in northwest Indiana. Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics. Today’s question comes from a caller who uses a CPAP machine. He […]
The post Ep 153 – Recall on CPAP Machines and Possible Contamination first appeared on Personal Injury Primer.
Fast Food Leads to Death I’m David Holub, an attorney focusing on personal injury law in northwest Indiana. Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics. Today’s podcast is inspired by a report of a McDonald’s customer killed in what […]
The post Ep 152 – Fast Food Leads to Death first appeared on Personal Injury Primer.
Damages Recoverable in a Tort Case I’m David Holub, an attorney focusing on personal injury law in northwest Indiana. Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics. Today’s question comes from a caller with questions about the nature and extent […]
The post Ep 151 – Damages Recoverable in a Tort Case first appeared on Personal Injury Primer.
The Going Coming Rule and Traveling Employee I’m David Holub, an attorney focusing on personal injury law in northwest Indiana. Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics. Today’s question comes from a caller who was rear-ended by a driver […]
The post Ep 150 – The Going Coming Rule and Traveling Employee first appeared on Personal Injury Primer.
Beware of Moving Sidewalks I’m Katelyn Holub, an attorney focusing on personal injury law in northwest Indiana. Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics. Today’s question comes from a man who fell when a moving sidewalk at a store […]
The post Ep 149 – Beware of Moving Sidewalks first appeared on Personal Injury Primer.
Is There Such a Thing as a Safe Car I’m Katelyn Holub, an attorney focusing on personal injury law in northwest Indiana. Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics. Today’s question comes from an existing client who needs to […]
The post Ep 148 Is There Such a Thing as a Safe Car first appeared on Personal Injury Primer.
E-cigarette Explosions I’m Katelyn Holub, an attorney focusing on personal injury law in northwest Indiana. Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics. Today’s question comes from a caller whose son was injured when an e-cigarette exploded. The injuries are […]
The post Ep 147 – E-cigarette Explosions first appeared on Personal Injury Primer.
Truck and Car Defect Cases I’m Katelyn Holub, an attorney focusing on personal injury law in northwest Indiana. Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics. Today’s podcast was inspired after watching one of the many online videos that people […]
The post Ep 146 – Truck and Car Defect Cases first appeared on Personal Injury Primer.
Lay Witness Opinions https://personalinjuryprimer.com/wp-content/uploads/2021/11/Podcast-145-Lay-Witness-Opinions.mp3 I’m David Holub, an attorney focusing on personal injury law in northwest Indiana.
Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics.
Today’s question is inspired by a conversation with a client during trial prep who expressed shock that she would not be permitted to express her opinion to the jury that the defendant driver was at fault for the crash.
As attorneys, we have gotten so used to the rules of evidence that we forget that non-lawyers sometimes are surprised or shocked by the rules.
Evidence Rule 701 puts strict limits on lay people’s ability to express their opinions in front of a jury. For this rule’s purposes, any person who does not qualify as an expert on the subject at issue is a layperson.
There is a method to what seems like madness.
Suppose a trial involves a car crash. Witnesses observing an impact are, of course, qualified to state what was observed. A witness can say they saw the blue car enter the intersection against a red light. That is a statement of an observed fact.
But unless the witness qualifies as an expert (in this case, an accident reconstruction expert), they are not permitted to offer an opinion on fault. They cannot state that it is their opinion that the blue car that entered the intersection against a red light is at fault.
If you are still scratching your head, consider that the witness might not have ALL of the facts available to them.
Imagine that the blue car that entered against a red light is a police car with its siren blasting. But, suppose the witness was wearing earbuds and could not hear the siren that other witnesses did hear.
The evidence rules are designed to funnel to a jury only credible, legitimate facts. It is the jury’s job to decide fault.
Some witnesses qualify as skilled lay witnesses. These skilled witnesses can offer limited opinions on limited subjects within their skill set.
A skilled lay witness may provide opinions based on the perception of the witness. In many situations, a police officer may qualify as a skilled lay witness if the opinion at issue is within the officer’s training.
For example, a police officer’s “impression” based on his personal participation in conversations with drivers at the scene is a proper lay witness opinion under Rule 701 because the “impression” is rationally based on his opinion of perceived facts and helpful to a clear understanding of the testimony
A police officer acting as a skilled witness may not offer opinion testimony under 701 if the opinion is based on others’ information and not of the officer’s own observation.
In other words, a skilled lay witness may testify about their observations but also offer opinions based solely on facts within their personal knowledge. They are not to consider facts outside of their knowledge presented to them in the courtroom. Nor are they permitted to offer opinions based on hypothetical questions.
I hope you found this information helpful. If you are a victim of someone’s carelessness, substandard medical care, a product defect, work injury, or another personal injury, please call (219) 736-9700 with your questions. You can also learn more about us by visiting our website at DavidHolubLaw.com – while there, make sure you request a copy of our book “Fighting for Truth.”
The post Ep 145 – Lay Witness Opinions first appeared on Personal Injury Primer.
Impeachment by Criminal Conviction https://personalinjuryprimer.com/wp-content/uploads/2021/11/Podcast-144-Impeachment-by-Criminal-Conviction.mp3 I’m David Holub, an attorney focusing on personal injury law in northwest Indiana.
Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics.
Today’s podcast discusses the impeachment of a witness by evidence of a criminal conviction.
Impeachment in this context means presenting evidence that calls into question the integrity of a witness.
The rule that deals with impeachment by evidence of a criminal conviction is Rule 609.
The rule provides that a court must permit a witness’s credibility to be challenged by evidence that the witness was convicted of a crime.
But admissibility is limited. The rule is limited to evidence of convictions for:
(1) murder, treason, rape, robbery, kidnapping, burglary, arson, or criminal confinement; or
(2) a crime involving dishonesty or false statement, including perjury.
Other limitations apply. The primary limitation is that if more than 10 years have passed since the witness was convicted or released from prison, whichever is later, the evidence can only be admitted if:
– its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect; and
– the proponent gives an adverse party reasonable written notice of the intent to use it so that the party has a fair opportunity to contest its use.
If the witness has been pardoned for their crime, then evidence of the crime is not admissible.
The issue of evidence of a past criminal conviction is, as you can see, complicated.
We always encourage people to be sure they are forthright with their attorney if they have a conviction in their past.
Even though the rule might, on the surface, make the conviction admissible, a judge does have discretion in some situations to exclude the conviction.
But, if a person lies under oath in court or at a deposition and says they have no conviction (when they do have a conviction), the evidence will be admissible.
The reason? Because it proves that the person is a liar. In other words, it comes into evidence not as a conviction per se but as proof that the witness is a liar.
I hope you found this information helpful. If you are a victim of someone’s carelessness, substandard medical care, a product defect, work injury, or another personal injury, please call (219) 736-9700 with your questions. You can also learn more about us by visiting our website at DavidHolubLaw.com – while there, make sure you request a copy of our book “Fighting for Truth.”
The post Ep 144 – Impeachment by Criminal Conviction first appeared on Personal Injury Primer.
Interpreters at Trial https://personalinjuryprimer.com/wp-content/uploads/2021/11/Podcast-143-Interpreters-at-Trial.mp3 I’m David Holub, an attorney focusing on personal injury law in northwest Indiana.
Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics.
Today’s question comes from a daughter of a client who wants to know if the court will supply an interpreter for her father if her father’s case goes to trial?
Interpreters are a vital part of the legal system.
Courts do have a responsibility to ensure that a litigant has a qualified interpreter available for legal proceedings.
An interpreter is not the same as a translator.
These two terms are often used interchangeably, but different skills are required for each.
Interpreting means transferring a verbal message from the source language into a verbal message in the target language.
Translating means transferring a written message from the source language into a written statement in the target language.
Evidence Rule 604 deals with interpreters. An interpreter must be qualified and must give an oath or affirmation to do an accurate translation.
Family members and friends are not qualified to interpret during an official court proceeding. A certified interpreter who is neutral and does not know the parties should interpret a court proceeding.
Interpreters are to apply their skill and judgment to preserve faithfully the meaning of what is said in court, including the style of speech. Verbatim or literal oral interpretations are not appropriate if they distort a statement in the source language. Even if it appears non-responsive, obscene, rambling, or incoherent, every spoken word should be interpreted.
Suppose the need arises to explain an interpreting problem (e.g., a term or phrase with no direct equivalent in the target language or a misunderstanding that only the interpreter can clarify). In that case, the interpreter should ask the court’s permission to provide an explanation. Interpreters should convey the emotional emphasis of the speaker without mimicking the speaker’s emotions or dramatic gestures.
Interpreters must maintain an impartial attitude and avoid unnecessary discussions with counsel, parties, and witnesses, either inside or outside the courtroom, to avoid any appearance of partiality.
Each court interpreter shall guard confidential information and not betray the confidences which may have been entrusted to him or her by any parties concerned.
The interpreter must uphold the confidentiality of all privileged information obtained during his/her duties. The interpreter must maintain the attorney-client privilege, which requires secrecy concerning any communication between attorney and client.
Interpreters must also refrain from repeating or disclosing information obtained by them in their employment that may be relevant to the legal proceeding.
In most cases, the court must pay for interpreter services. To provide equal and meaningful access to limited English proficient individuals who access the judicial system, it is the court’s responsibility to pay the costs for an interpreter.
A trial court has the discretion to utilize the services of an interpreter even if a party objects.
The trial court must administer an oath to the interpreter to provide an accurate translation, just like the court must administer an oath to a witness before the witness testifies.
I hope you found this information helpful. If you are a victim of someone’s carelessness, substandard medical care, a product defect, work injury, or another personal injury, please call (219) 736-9700 with your questions. You can also learn more about us by visiting our website at DavidHolubLaw.com – while there, make sure you request a copy of our book “Fighting for Truth.”
The post Ep 143 – Interpreters at Trial first appeared on Personal Injury Primer.
Offers of Compromise https://personalinjuryprimer.com/wp-content/uploads/2021/11/Podcast-142-Offers-of-Compromise.mp3 Ep 142 – Offers of Compromise
I’m David Holub, an attorney focusing on personal injury law in northwest Indiana.
Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics.
In today’s podcast, we explain why an offer to settle or compromise a claim is inadmissible at trial.
Of course, an offer to compromise or settle a claim could be construed as an admission of fault. But an offer to settle could also be made to buy peace and resolve a dispute that the party making the offer disagrees with entirely, but for practical reasons, wants to avoid a trial.
Evidence Rule 408 provides in part:
Evidence of the following is not admissible … to prove or disprove … a disputed claim … : (1) furnishing, promising, or offering, or accepting, promising to accept, or offering to accept a valuable consideration in order to compromise the claim; and (2) conduct or a statement made during compromise negotiations about the claim.
Though you may, upon hearing this rule disagree with it. It does make sense.
The last thing a court wants to do is discourage settlement discussions.
If the law permitted parties to offer evidence of settlement discussions, there likely would never be another settlement discussion.
This rule excluding settlement discussion evidence applies to conversations between the parties, talks between the attorneys for the parties, and discussions with a mediator who tries to resolve a dispute.
That said, identifying a letter communicating a settlement offer as a “Rule 408 Offer to Compromise” is an intelligent thing to do. Doing so makes clear that the communication is not made as an admission of fault but rather as an attempt to settle the dispute.
People often call excited that the person they have a dispute with offered to pay for damages, believing that the admission will clinch their case if it gets before a jury.
I hope you found this information helpful. If you are a victim of someone’s carelessness, substandard medical care, a product defect, work injury, or another personal injury, please call (219) 736-9700 with your questions. You can also learn more about us by visiting our website at DavidHolubLaw.com – while there, make sure you request a copy of our book “Fighting for Truth.”
The post Ep 142 – Offers of Compromise first appeared on Personal Injury Primer.
Rule of Completeness https://personalinjuryprimer.com/wp-content/uploads/2021/10/Podcast-141-Rule-of-Completeness.mp3 I’m Katelyn Holub, an attorney focusing on personal injury law in northwest Indiana.
Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics.
Today’s podcast is inspired by a trial we went through several years ago. In the trial, the defense offered evidence of a diagram that a witness drew following a crash. The diagram was attached to a handwritten statement as to how the collision happened and described who the witness thought was at fault.
The diagram, taken in isolation, was helpful to the defendant. However, the rest of the witness’s statement, in his own handwriting, was entirely against the defendant.
We could have objected to the diagram being introduced into evidence, but we did not. Instead, as soon as the diagram was admitted into evidence, we moved to admit the entire statement of the witness.
Defense counsel objected. Can you guess what happened next?
The judge listened carefully to the defense objection. The judge studied the diagram and the rest of the writing made by the witness.
Then the judge said, “Counsel, I believe the rule of completion requires me to admit the entire document to be fair to the evidence. Objection overruled.”
The rule of completion was formulated under the common law years ago.
It is known today as Rule 106. It reads as follows:
If a party introduces all or part of a writing or recorded statement, an adverse party may require the introduction, at that time, of any other part—or any other writing or recorded statement—that in fairness ought to be considered at the same time.
The purpose of the rule of completeness is to provide context for isolated comments. It avoids misleading impressions that could flow from out-of-context statements.
If the court had allowed the defense to introduce a portion of the statement, the diagram without the context of why it was drawn, then the jury would have received a lie essentially.
The court ruling ensured that the jury would receive the truth, the whole truth, and nothing but the truth.
I hope you found this information helpful. If you are a victim of someone’s carelessness, substandard medical care, a product defect, work injury, or another personal injury, please call (219) 736-9700 with your questions. You can also learn more about us by visiting our website at DavidHolubLaw.com – while there, make sure you request a copy of our book “Fighting for Truth.”
The post Ep 141 – Rule of Completeness first appeared on Personal Injury Primer.
Twelve-year-old gets hurt, part 2 https://personalinjuryprimer.com/wp-content/uploads/2021/10/Podcast-140-Twelve-year-old-gets-hurt-part-2.mp3 I’m Katelyn Holub, an attorney focusing on personal injury law in northwest Indiana.
Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics.
Today’s question comes from a caller who says “my son is 12 years old and he found some old boards around an abandoned building, and built a ramp for his bike and the boards broke as he tried the ramp, and he fell and broke his nose and lost teeth, can we sue?”
In our last episode we addressed property owner liability and attractive nuisance. Not only did the boards break as the boy tried the ramp, but he placed the boards against a partially collapsed concrete wall on the property. Instrumental in his injury were the collapsed concrete wall and the discarded boards, all of which were in an area open to people passing by unguarded by a fence
In this episode we focus on whether under the law a 12-year-old can be held to be contributorily negligent.
Contributory negligence used to be a complete bar to recovery in Indiana. Now Indiana considers the fault of the plaintiff and defendant, and compares the fault of the two. If the plaintiff is less than 50% at fault, the plaintiff may recover damages, but the damages recovered will be reduced by the percentage of fault of the plaintiff.
Indiana recognizes a rebuttable presumption that children between the ages of 7 and 14 are incapable of contributory negligence. A rebuttable presumption is just that. The law presumes that a child between 7 and 14 cannot be at fault. But, the defense team at trial is allowed to prove that the child is nonetheless at fault.
A child under age 7 is flat-out presumed incapable of being at fault, and the law gives no opportunity to rebut it.
So how might a defendant go about proving the caller’s 12 year old son to be at fault? Well, suppose there is evidence that the 12 year old attended a bicycle training class. Suppose further that the class instructor carefully explained the danger of running bikes up and down ramps. – Such evidence might very well convince a jury that the 12 year old knew of the danger and was careless in going onto the property and building a ramp.
I hope you found this information helpful. If you are a victim of someone’s carelessness, substandard medical care, a product defect, work injury, or another personal injury, please call (219) 736-9700 with your questions. You can also learn more about us by visiting our website at DavidHolubLaw.com – while there, make sure you request a copy of our book “Fighting for Truth.”
The post Ep 140 – Twelve-year-old gets hurt, part 2 first appeared on Personal Injury Primer.
Twelve-year-old gets hurt, part 1 https://personalinjuryprimer.com/wp-content/uploads/2021/10/Podcast-139-Twelve-year-old-gets-hurt-part-1.mp3 I’m Katelyn Holub, an attorney focusing on personal injury law in northwest Indiana.
Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics.
Today’s question comes from a caller who says, “my son is 12 years old and he found some old boards around an abandoned building, and built a ramp for his bike and the boards broke as he tried the ramp, and he fell and broke his nose and lost teeth, can we sue?”
This is a complex question. We’re going to address it in two parts. This first part will focus on property owner liability. The next episode will focus on whether under the law a 12-year-old can be held to be contributorily negligent.
The attractive nuisance doctrine applies to unguarded dangerous conditions on land.
If an unprotected dangerous condition on a premises attracts and exposes a child to danger, and the child gets hurt, the victim may be able to successfully sue those in charge of the property.
The law is based on a belief that people have a social duty to protect children from dangers of which they, through their childish instincts, are unlikely to become aware.
The court-created doctrine of attractive nuisance is an exception to the general rule that a trespasser injured by a dangerous condition on another’s land cannot sue.
For “attractive nuisance” to exist, you have to prove 5 things:
1) the possessor of the place where the artificial condition exists must know or have reason to know that children are likely to trespass, and
2) the possessor must know or have reason to know of the condition and that it will involve an unreasonable risk of death or serious bodily harm to such children,
3) the children, because of their youth, must not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it,
(4) the utility to the possessor of maintaining condition and the burden of eliminating the danger must be slight as compared with the risk to the children involved, and
(5) the possessor must fail to exercise reasonable care to eliminate the danger or otherwise protect the children.
The caller’s 12 years old, who found old boards around an abandoned building, and built a ramp for his bike, may be able to sue the property owner.
In asking a few more questions, we found that not only did the boards break as he tried the ramp, but he placed the boards against a partially collapsed concrete wall on the property. So when he fell, he had climbed on the collapsed concrete wall and used the discarded boards, all of which were in an area open to people passing by and unguarded by a fence.
The lack of a fence is an important fact. If the child had cut a fence or climbed a fence, the attractive nuisance claim could fail since a property owner-installed fence would isolate the property from kids.
As we will discuss in the next episode, the boy’s behavior was certainly careless by adult standards. Can the property owner successfully defend a case by pointing to the boy’s negligent conduct?
I hope you found this information helpful. If you are a victim of someone’s carelessness, substandard medical care, a product defect, work injury, or another personal injury, please call (219) 736-9700 with your questions.
The post Ep 139 – Twelve-year-old gets hurt, part 1 first appeared on Personal Injury Primer.
My Doctor Modified My Medical Records https://personalinjuryprimer.com/wp-content/uploads/2021/10/Podcast-138-My-Doctor-Modified-My-Medical-Records.mp3 I’m Katelyn Holub, an attorney focusing on personal injury law in northwest Indiana.
Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics.
Today’s question comes from a caller who wanted to sue her doctor for medical malpractice. She got copies of her own medical records because she was concerned about her medical care. But, she is distraught because she thinks the records have been fabricated. She wants to know if her concerns are justified.
Unfortunately, in medical malpractice cases, spoliation of evidence is an all too frequent occurrence.
Traditionally, spoliation of evidence is defined as the destruction of evidence. Or altering evidence to render evidence permanently unavailable to the court and the opposing party.
Estimates are that as many fifty percent of medical malpractice cases involve altered records. Some alterations happen by accident or to insert billing codes. But, as many as ten percent of malpractice cases implicate fraudulently changed records.
Spoliation may be accomplished by altering a medical record or adding to the document at some time after initial entry. However, it may also involve deleting information, fabricating a substitute record, and destroying radiology images, laboratory reports, or biopsy specimens.
Spoliation may involve physical destruction (shredding), alteration (creating a paper copy or erasing electronic records), or concealment of evidence.
Courts have fashioned several remedies for the harm caused by record alteration or destruction.
One remedy is a spoliation inference. Another remedy is sanctioning the responsible party.
Remedial measures are needed to help restore record accuracy, compensate the victim, and punish those altering records.
The spoliation inference permits but does not require the trier of fact to find that the evidence not produced was harmful to the party altering the record.
A presumption of spoliation requires a jury to find that the missing evidence was harmful to the party that altered it.
Traditionally, to apply the inference of spoliation, five elements must be established:
1) destruction;
2) the destroyed information must be relevant to the case;
3) the destruction must be intentional;
4) the evidence must be destroyed when legal proceedings are pending or reasonably foreseeable; and
5) a party or its agent must destroy the records.
In almost every case of medical malpractice, an attorney should anticipate altered medical records. And work with witnesses and electronic record experts to determine if something was altered and when it was changed.
I hope you found this information helpful. If you are a victim of someone’s carelessness, substandard medical care, a product defect, work injury, or another personal injury, please call (219) 736-9700 with your questions. You can also learn more about us by visiting our website at DavidHolubLaw.com – while there, make sure you request a copy of our book “Fighting for Truth.”
The post Ep 138 – My Doctor Modified My Medical Records first appeared on Personal Injury Primer.
Livestock Hit in Roadway https://personalinjuryprimer.com/wp-content/uploads/2021/05/Podcast-137-Livestock-Hit-in-Roadway.mp3 I’m David Holub, an attorney focusing on personal injury law in northwest Indiana.
Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics.
Today’s question comes from a caller who stated that her husband was killed when the semi-truck he was operating collided with a black Angus bull. The bull had escaped days earlier from a farm by pushing up a fence in an inadequately secured pasture. The bull then escaped a second time from an even more poorly enclosed pasture that a second farmer put the bull in after that second farmer captured the bull. The caller was beside herself and wanted to know who could be held responsible for her husband’s death.
It turns out in speaking with the woman that the crash happened on a moonless night at around 10:00 p.m., along a stretch of unlit highway.
The escaped black bull wandered into the roadway. The skid mark evidence suggested that her husband tried to stop after seeing the black animal but just did not have time to stop. The force of the impact with the 2500 lb. animal caused the steering controls on the tractor to break, resulting in a complete loss of control of the vehicle. The collision caused the widow to lose her husband and her children to lose their father.
What legal principles apply when a farm animal escapes and gets into the roadway and causes a crash?
One who owns or has charge of an animal has a duty to prevent the animal from injuring another person or property and must take reasonable care to prevent it from doing damage to others.
In other words, one who undertakes control of the management and care or custody of livestock must exercise reasonable care to prevent the livestock from doing damage to others.
A keeper of livestock is defined as one who, either with or without the owner’s permission, undertakes to manage, control, or care for an animal.
So the owner of the animal would be a keeper of livestock under the law. The second farmer, who took control of the animal, also would be viewed under the law as a keeper of livestock.
The person responsible for livestock must exercise ordinary care to not let the livestock stray out onto highways.
In the caller’s case, both the owner of the bull that was allowed to escape would potentially be liable, as well as the second farmer who corralled the bull and let it escape.
The second farmer’s negligence would not operate to extinguish the first farmer’s fault.
The law would likely see the negligent actions of the two farmers as concurrent causes of the harm that flowed from unreasonably permitting the animal to escape.
Of note, a potential defense would be that the deceased should have seen the large bull in the roadway and avoided it. Thus, the argument would be that the deceased semi-driver was at least partly at fault.
The crash was on a moonless night, and there are no street lights in the country. Further, the bull was itself black. Proving that the semi-driver could have seen the bull or anticipated that a black bull would run across the road into his path may prove difficult.
I hope you found this information helpful. If you are a victim of someone’s carelessness, substandard medical care, a product defect, work injury, or another personal injury, please call (219) 736-9700 with your questions. You can also learn more about us by visiting our website at DavidHolubLaw.com – while there, make sure you request a copy of our book “Fighting for Truth
The post Ep 137 – Livestock Hit in Roadway first appeared on Personal Injury Primer.
Piercing the Corporate Veil https://personalinjuryprimer.com/wp-content/uploads/2021/05/Podcast-136-Piercing-the-Corporate-Veil.mp3 I’m David Holub, an attorney focusing on personal injury law in northwest Indiana.
Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics.
Today’s question comes from a caller who was injured in an MVA. She was turned down by attorneys because the at-fault driver was operating a business vehicle for a corporation. The vehicle had no insurance. She wants to know why she can’t collect from the corporation’s owners, a small local delivery business, if she wins her case?
When an at-fault party has no vehicle insurance, the critical question becomes whether the at fault party has assets against which a judgment could be collected.
If assets are available, then perhaps the judgment could be collected against available assets.
Keep in mind, a judgment in an injury case very well might be dischargeable in bankruptcy. But let’s set aside bankruptcy for purposes of this discussion.
Let’s focus on the caller’s question about a local small delivery business corporate defendant.
Suppose a person, or group, forms a corporation. In that case, the corporation can act as a shield to protect the assets of individual shareholders.
In fact, the ability to shield assets from collection efforts is a key feature and benefit of forming a corporation.
But is there a legal way to pierce that corporate shield?
The answer is yes.
It may take effort to pierce the corporate veil in most cases. But, in some circumstances, if the facts are right, it can be done.
Here are the factors courts look at.
Do the facts show that the corporation is organized and controlled and its affairs conducted so that it is a mere instrumentality or adjunct of another corporation? If so, the corporate veil may be pierced, and the fiction of separate corporations may be disregarded.
Does the evidence show perpetration of a fraud or wrong by the parent corporation through its subsidiary? If so, courts can sometimes be persuaded that it is unjust to shield assets from an injury victim.
Here is a real-life example of a case we handled several years ago.
A floral delivery truck ran a red light and injured the client so severely that he was permanently paralyzed.
The truck was owned by Company A (a floral delivery company). But that truck delivered exclusively for a floral arranging company, Company B.
Company A and B had the same shareholders. Same corporate officers. Same accountant and attorney. Kept their supplies and corporate records in the same building and even in the same filing cabinet. Oh, and they shared the same phone number.
We established that though the companies were separate on paper, the corporations acted as one entity. We successfully argued that they should not be recognized as separate entities.
As a result, we were able to collect against the assets of both Company A and Company B.
The entire relationship between corporate entities should be reviewed when determining whether piercing the corporate veil is appropriate.
In short, separate corporate entities may be disregarded when the facts show that the corporations are manipulated or controlled as one enterprise.
I hope you found this information helpful. If you are a victim of someone’s carelessness, substandard medical care, a product defect, work injury, or another personal injury, please call (219) 736-9700 with your questions. You can also learn more about us by visiting our website at DavidHolubLaw.com – while there, make sure you request a copy of our book “Fighting for Truth.”
The post Ep 136 – Piercing the Corporate Veil first appeared on Personal Injury Primer.
Subsequent Remedial Measures https://personalinjuryprimer.com/wp-content/uploads/2021/05/Podcast-135-Subsequent-remedial-measures.mp3 I’m David Holub, an attorney focusing on personal injury law in northwest Indiana.
Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics.
Today’s question comes from an existing client. We were discussing a settlement offer in his fall case. He asked, “won’t my case be a slam dunk once we show the jury that the defendant repaired the defect in the walkway that caused me to fall after we filed suit?”
This question requires us to explain that common sense and evidence rules sometimes have very little in common.
If you have proof of a repair being made after a fall, such proof would be very persuasive that the defendant knew that the defect was dangerous. If not, then why make a change or repair?
Just common sense, right?
But the rules of evidence reflect specific policy preferences by society in general. The rule against permitting evidence of subsequent remedial measures is based upon a policy determination that courts should do nothing to discourage defendants from repairing their property to eliminate existing hazards.
The argument behind the rule is that businesses would never repair a pothole or broken curb if doing so could be used in a trial against them filed by someone who fell.
The rule reads as follows:
When measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove:
- negligence;
- culpable conduct;
- a defect in a product or its design; or
- a need for a warning or instruction.
So the proof the client hoped would come before the jury and make his case a slam dunk is barred. The jury most likely will never know about the repairs.
But is that the end of the story? No.
The rule barring evidence of subsequent remedial measures has the following exception:
But the court may admit this evidence for another purpose, such as impeachment or — if disputed — proving ownership, control, or the feasibility of precautionary measures.
The most important phrase here is “feasibility of precautionary measures.”
The defendant can be asked:
- Would it have been feasible to either hire someone to patch the pothole?
- Would it have been feasible to buy asphalt patch mix at the local hardware store and fill the pothole so that there would not be a hole in the walkway supplied to your customer?
Of course, if the defendant denies feasibility, then proof of the repair is admissible to show that, indeed, a repair was feasible. … This can be very persuasive evidence because it not only proves that a repair was feasible, it proves that a defendant lied when he answered no to the feasibility question.
I hope you found this information helpful. If you are a victim of someone’s carelessness, substandard medical care, a product defect, work injury, or another personal injury, please call (219) 736-9700 with your questions. You can also learn more about us by visiting our website at DavidHolubLaw.com – while there, make sure you request a copy of our book “Fighting for Truth.”
The post Ep 135 – Subsequent Remedial Measures first appeared on Personal Injury Primer.
Collateral Source Evidence https://personalinjuryprimer.com/wp-content/uploads/2021/05/Podcast-134-Collateral-Source-Evidence.mp3 I’m Katelyn Holub, an attorney focusing on personal injury law in northwest Indiana.
Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics.
In today’s podcast, we discuss an evidentiary rule called the Collateral Source Rule.
The Collateral Source Rule deals with the admissibility of collateral source evidence in personal injury or wrongful death actions.
The rule is based on a statute.
The rule addresses whether the court in a civil trial for injuries or death can admit evidence of:
- payments of life insurance or other death benefits;
- insurance benefits for which the Plaintiff or members of the Plaintiff’s family have paid directly; or
- payments made by:
(i) the state or the United States
Here is how the rule comes into play.
Suppose a mom and a child are in a car crash caused by a semi-tractor trailer’s negligence where a load of logs breaks loose and slams into the car. The mom dies, and the surviving parent and severely injured child sue the trucking company.
Now suppose the mom had life insurance of $1,000,000, and the child is a beneficiary.
Without the collateral source rule, the trucking company could offer evidence of the $1,000,000 policy. The trucking company could then argue the child is now a millionaire, so the child suffered no real damage in losing their mother.
As reprehensible as that argument is, without the collateral source rule, proof of the insurance policy and payment would be admissible.
Suppose, in the same case, the injured child fractured their spine and incurred $1,000,000 in hospital bills, but because the family had health insurance, all the bills got paid.
Again, as bad as it sounds, proof of payment of those hospital bills would come into evidence without the collateral source rule. Proof of bill payments would permit the logging company to argue that the child’s medical charges were paid. So it should not be held legally responsible for any harm the crash caused the child.
The law recognizes that such proof of collateral payments really has no place in a trial.
The trucking company did not pay the life insurance premiums or the health insurance premiums. The family paid those premiums.
In a typical personal injury case, a plaintiff’s medical expenses may be paid by several collateral sources, including medical payments coverage under automobile insurance, private health insurance, or government programs such as Medicare, Medicaid, or Health Care for the Indigent (HCI) or under the Affordable Care Act.
Defendants in personal injury litigation frequently seek to reduce a plaintiff’s recoverable damages by introducing evidence of these collateral source payments.
Such attempts are contrary to the letter and the spirit of the Indiana Evidence Rules and the Collateral Source Statute.
A civil trial’s goal is to assess damages and tally up the harms levied against the victim.
Defendants often argue that the collateral source rule permits a plaintiff to make a double recovery. But nearly every health insurance policy has a provision requiring reimbursement if money is received from the wrongdoer. This precludes a double recovery.
As noted, the purpose of a civil trial is to place a value on harms suffered by the victim.
The jury is not charged with adding up compensation received or determining whether such compensation has to be paid back.
Such issues are handled after the jury assesses damages and determines fault.
I hope you found this information helpful. If you are a victim of someone’s carelessness, substandard medical care, a product defect, work injury, or another personal injury, please call (219) 736-9700 with your questions. You can also learn more about us by visiting our website at DavidHolubLaw.com – while there, make sure you request a copy of our book “Fighting for Truth.”
The post Ep 134 – Collateral Source Evidence first appeared on Personal Injury Primer.
Right of Way Backing Out of a Parking Space https://personalinjuryprimer.com/wp-content/uploads/2021/05/Podcast-133-Right-of-Way-Backing-Out-of-a-Parking-Space.mp3 I’m Katelyn Holub, an attorney focusing on personal injury law in northwest Indiana.
Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics.
Today’s question comes from a caller who says: “I was pulling into a store parking lot and a guy backing out of a parking space hit me. The store has a video of the crash. But the insurance carrier says I am at fault. What are my legal options?”
Parking lot accidents are common.
Who has the right of way when someone is backing out of a parking space? — It depends.
Parking lots often have driving lanes and then smaller arteries that feed to individual parking spaces.
The driving lanes allow people to enter and exit a street or access road.
In most situations, drivers operating in the driving lanes have the right of way.
People backing out of a parking space are expected to yield to anyone driving in the driving lane and even smaller arteries leading to individual slots.
If you back out, hitting a car moving behind you, you most likely will be found at fault for the crash.
But, suppose you were already halfway backed out, and a car speeds down the lane and hits you. In this circumstance, the driver speeding down the lane you are occupying may be found to be primarily at fault. The critical fact is because you already took control of the driving lane.
But where a backing driver backs into a moving car reasonably and carefully exercising the right of way in the driving lane, the person backing up will be held primarily at fault.
In the caller’s case, the video clip showed the caller pull into a lot where a person was three-fourths of the way backed out. The video showed that the caller simply ignored the backing driver. The caller was shocked when the tail end of the backing car caved in his car’s passenger side door.
In the caller’s case, the video put the caller primarily at fault. … He did not like our analysis.
When operating a car in a parking lot, a good rule of thumb is: drive defensively and respectfully. If you see someone mostly backed out in your through lane of travel, take a moment to yield to them and let them complete their maneuver safely.
A small courtesy can save everyone a lot of time and trouble.
I hope you found this information helpful. If you are a victim of someone’s carelessness, substandard medical care, a product defect, work injury, or another personal injury, please call (219) 736-9700 with your questions. You can also learn more about us by visiting our website at DavidHolubLaw.com – while there, make sure you request a copy of our book “Fighting for Truth.”
The post Ep 133 – Right of Way Backing Out of a Parking Space first appeared on Personal Injury Primer.
Sudden Brake Failure https://personalinjuryprimer.com/wp-content/uploads/2021/05/Podcast-132-Sudden-Brake-Failure.mp3 I’m Katelyn Holub, an attorney focusing on personal injury law in northwest Indiana.
Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics.
Today’s question comes from a listener who was rear-ended while waiting at a red light. He says the fellow who hit him is claiming that he is not responsible for the crash because his brakes suddenly failed. Is sudden brake failure a valid legal defense?
The general rule is that sudden unforeseeable brake failure can serve as a defense to negligence in the appropriate case.
But the burden will be on the party raising the defense to prove the defense.
Note, the brake failure must be both sudden and unforeseeable. What does that mean?
Well, it means that if the defendant driver noticed brake issues at the last stoplight a mile back from the crash scene, the defense fails. Why? Because a reasonable driver would pull over and stop driving. Continuing to drive with bad brakes is absolutely unreasonable.
When dealing with this defense, an inspection of the defendant’s car will be critical. Did the brakes really fail? If so, was the failure because of a brake component suddenly failing or because of a lack of maintenance?
In challenging this defense while representing a prior client, we investigated a defendant’s car’s maintenance history. The defense fell apart when we found that weeks earlier when the oil was changed in the car, the mechanic recommended brake work, which the defendant failed to authorize.
While the defense of sudden unforeseeable brake failure is a proper legal defense, modern vehicles have many safeguards that typically warn of impending brake failure. When a driver unreasonably ignores these warnings and continues to drive, the crash’s cause is driver negligence, pure and simple.
I hope you found this information helpful. If you are a victim of someone’s carelessness, substandard medical care, a product defect, work injury, or another personal injury, please call (219) 736-9700 with your questions. You can also learn more about us by visiting our website at DavidHolubLaw.com – while there, make sure you request a copy of our book “Fighting for Truth.”
The post Ep 132 – Sudden Brake Failure first appeared on Personal Injury Primer.