- Michigan Law (6)
- Auto Law (1)
- Dog Bite Law (1)
- Personal Injury Law (6)
- Injuries (2)
- Uncategorized (4)
LAWS/CASES
Suit: School Ignored Girl’s Claims of Rape
A special education student in Missouri has filed a lawsuit against Republic Middle School, saying school officials ignored her reports that she was raped by another student in 2008. The plaintiff claims in the suit that school officials made her write an apology note to the student that allegedly raped her and deliver it to him personally. She was raped again in 2010, and DNA proved it was by the same student she had accused originally. The suit alleges misconduct by school officials and is seeking unspecified damages. Rheana Murray , New York Daily News 08/17/2011
Read Article: New York Daily News
Wage Suit Filed Against Car Wash
A group of workers at Tower Car Wash in San Francisco have filed a lawsuit against their employer over unpaid wages. The lawsuit claims management at the car wash required employees to report to work hours before they were allowed to clock in and wait for the car wash to become busy. They were not paid for the waiting time, the suit says. The plaintiffs are seeking more than $3 million in back wages. John Coté, San Francisco Chronicle 08/17/2011
Read Article: San Francisco Chronicle
Ex-Cop Awarded $1.3 Million in Minor Accident
A former Philadelphia police officer has been awarded $1.3 million after suffering an injury in a minor traffic accident. The officer was sitting at a stop light when his vehicle was hit lightly from behind, his lawsuit states. He suffered nerve damage in his right arm which made it impossible to hold his firearm, ending his career as a police officer, according to the lawsuit. Sam Wood, Philadelphia Inquirer 08/16/2011
Read Article: Philadelphia Inquirer
City of Charlotte Targeted in Suit over Fatal Wreck
A 2009 fatal car accident has prompted a lawsuit against the city of Charlotte, N.C., and the developer of a local community accusing the defendants of negligence. The lawsuit claims a traffic light should have been installed at the intersection where the accident occurred. According to the suit, the city agreed in 2008 that a light was needed, but the developer refused to pay the cost, and nothing was done. “The city was aware of the danger of the intersection but took no steps to install a traffic light,” the suit says. Gary L. Wright, Charlotte Observer 08/18/2011
Read Article: Charlotte Observer
PRODUCTS
Hiker Boots Recalled
The Consumer Product Safety Commission has announced a recall of 5,200 Itasca Fusion Hiker boots distributed by C.O. Lynch Enterprises Inc. The agency reported that the boots could “fail to provide the intended protection against compression and impact, posing the risk of a foot injury to consumers.” The recall affects men’s shoes sizes 7 to 14. Staff Report, PR Newswire 08/18/2011
Read Article: PR Newswire
Nissan Recalls 20,000 Altimas
Nissan Motor Co. Ltd. announced earlier this month it would be recalling 20,000 Altima sedans over a steering problem that could lead to accidents. The company said that a bolt in the car may not have been tightened properly, and if it comes loose, the driver could lose control of the vehicle. There have been no injuries or accidents reported, a company spokesperson said. Staff Report, Chicago Tribune 08/01/2011
Read Article: Chicago Tribune
The Consumer Product Safety Commission unanimously approved new third party testing requirements for children’s toys to better ensure child safety. “Safeguards in the mandatory toy standard strive to eliminate electrical, thermal and mechanical hazards,” the agency said. The new requirements will go into effect on Dec. 31, 2011. Staff Report, PR Newswire 07/22/2011
WHO IS RESPONSIBLE FOR INJURIES OCCURRING DUE TO AN ANIMAL ATTACK?
If the attack occurred on private property owned by someone other than the animal owner, then it is necessary to prove that the property owner knew of the animal’s dangerous nature before the attack and failed to take reasonable steps to protect the victim.
No matter where the animal attack occurs, the animal owner is responsible for all reasonable and foreseeable damages resulting from the attack, unless the animal was provoked or the victim was in a location not permitted.
WHAT IS MEANT BY “PROVOCATION”?
The animal cannot have been provoked to attack.
Michigan law has not clearly defined provocation. Each case must stand on its own fact. However, there is one recent appellate case of importance in which the court upheld the dismissal of a case in which a two-year-old child was attacked while attempting to pet a dog chained in the owner’s front yard. The court held that the attempted petting constituted provocation and was a complete defense to the suit for injuries to the child.
WHERE MUST THE ATTACK TAKE PLACE IN ORDER TO HOLD THE ANIMAL OWNER RESPONSIBLE?
There are two primary area where an animal attack can occur: private property or public property.
The animal owner is responsible for the animal’s attack on public property, almost without limit. Whether the dog is loose or on a leash, if it is on public property and attacks without provocation, the owner is liable for all foreseeable damages which result.
If the attack occurs on the owner’s property to which the victim was not invited, unless it was reasonably foreseeable that a person would go there, the owner is not responsible. For example, to lock an animal in a lavatory which people would be likely to use would result in liability if the victim was not warned of the animal’s presence, and the victim was attacked when trying to use the lavatory.
If the attack occurs because the dog came onto another person’s property–either the victim’s or a third person’s–then the animal owner would be responsible for all foreseeable damages that resulted.
It should be noted that if the animal was frequently on the property of a third person, and if that person knew of the animal’s dangerous tendencies but failed to restrain it, or notify the police, animal control office or animal’s owner, that property owner could be held responsible for an attack on his/her property.
WHAT ARE THE TYPES OF DAMAGES FOR WHICH THE ANIMAL OWNER MAY BE RESPONSIBLE?
Medical expenses for emergency room and follow-up care and treatment are the most common. Occasionally, a wound will result in scarring which requires plastic surgery, psychiatric counseling or other services. Occasionally, there may be a loss of income or other out-of-pocket losses that must be reimbursed. The animal owner is responsible for all reasonable and necessary services which were the foreseeable result of the animal’s attack.
This information is not meant to be a complete or definitive treatise on the law of animal attack liability. It was meant as an overview, in order to answer the most commonly asked questions and to explain the most commonly experienced types of animal attacks.
Up to 50% of individuals who have sustained serious orthopedic injuries will suffer from PTSD. Symptoms usually don’t appear until 6 to 12 months post injury.
Reference: “Posttraumatic Stress Disorders in Civilian Orthopaedics,” J Am Acad Orthop Surg, Vol 19, No 5, May 2011, 245-250
Finally, a social science study with practical significance apparent to everyone: apologizing to a cop who pulls you over can really make a difference. If you’re going really fast it’s likely to reduce the fine significantly, but not at 10 m.p.h. over or less it. In fact, for low-level speeding, “excessive” excuses tend actually increase the fine. The effect holds true for both U.S. and Canadian drivers. The studies are reported in the June issue of Law and Human Behavior,
When people hear the term “mild brain injury” they may assume that such an injury is not that serious. The basic misunderstanding stems from the fact that “mild” is used to indicate to neurosurgeons that the injury is not life-threatening and does not require emergent surgery. “Mild” does not intend to describe the seriousness of the consequences resulting from the injury. In fact, a mild traumatic brain injury can potentially cause serious and long-term damage to the functioning of an individual’s brain.
What is a Mild Brain Injury?
A mild traumatic brain injury (MTBI) is an injury to the head caused by blunt trauma or acceleration or deceleration forces (i.e. whiplash). One or more of the following signs may accompany the injury:
- Confusion, disorientation, impaired consciousness
- Loss of memory (amnesia)
- Signs of neurological dysfunction (i.e. seizures, headache, dizziness)
These symptoms are a result of the trauma experienced by the brain. The brain is composed of fine nerve fibers and is surrounded by cerebral-spinal fluid enabling it to “float” under the hard skull. Therefore, when the head is struck or shaken that force is transferred to the brain causing potential damage. Motor vehicle accidents are a leading cause of traumatic brain injuries and the group most at risk is adolescents and young adults. Other causes of traumatic brain injury include sports, falls, physical assaults and injuries during birth.
How is an MTBI different than a concussion?
An MTBI is often referred to as a concussion. Within the category of concussion there are three different grades (1-3). In a Grade 1 or 2 concussion a person remains conscious and in a Grade 3 concussion the person loses consciousness.
The Brain Injury Association of America reports that approximately 75 percent of brain injuries are identified as MTBIs.
Diagnosis
These mild or non-catastrophic brain injuries may not be apparent on CT, MRI, or other standard brain imaging tests. There are abrasions to the brain and micro shearing of nerve tissue which may be present, but which are not detectable by conventional evaluations. Oftentimes those who suffer an MTBI will be referred to a neuropsychologist to determine whether there have been changes in brain functioning. Neuropsychologists will use a variety of tests to analyze the level of brain functioning and any areas of dysfunction. Examples of brain functions that may be tested include: attention, motor abilities, speech, sensory functioning, memory and emotions.
Consequences
It is important to understand that MTBIs can significantly impact a person’s functioning. Although a person may “look fine” on the outside, the brain injury may cause changes in thinking and memory which impact daily life.
According to the Brain Injury Association of America there are several symptoms those suffering from a MTBI may experience.
Early Symptoms
- Headache
- Dizziness
- Nausea and vomiting
- Lack of awareness of surroundings
Later Symptoms
- Inability to concentrate
- Lightheadedness
- Continuous low grade headache
- Becoming fatigued easily
- Ringing in ears
- Vision difficulties
- Irritability
- Anxiety and depression
As can be seen from the lists above, the symptoms from MTBIs can range from physical, to cognitive, to psychological/behavioral. Each person’s symptoms and recovery will differ. The variety of symptoms experienced by an individual who has suffered a MTBI often makes recovery challenging…………… (click on link to read complete article)
The Potentially Serious Consequences of “Mild” Brain Injuries uspolitics.einnews.com
Published by EIN News, a service for global professionals.
The national online legal community is smiling about MSU grad Brandon Eckerle’s choice to play ball as a Detroit Tiger draft pick rather than to begin law school at MSU College of Law in the fall. Eckerle, MSU’s all-time hits leader, carried a 3.98 GPA as a pre-law, general business administration major. There must be something about MSU, baseball, the Detroit Tigers, and the law. 2009 MSU grad and Academic All Big 10 pitcher Nolan Moody also postponed a law school career after signing with the Tigers. Moody, the son of the late Kevin Moody, Miller Canfield partner and winner of the State Bar’s Unsung Hero award, reportedly is doing a different kind of pitching, finding success in the advertising world.
ABA Journal, “College Grad Ditches Law School Plans to Play Major League Ball“
A “slip and fall” or “trip and fall” is the generic term for an injury which occurs when someone slips, trips or falls as a result of a dangerous or hazardous condition on someone else’s property. It includes falls as a result of water, ice or snow, as well as abrupt changes in flooring, poor lighting, or a hidden hazard, such as a gap or hard to see hole in the ground. The National Center for Injury Prevention and Control estimates that in 2004, more than 8 million people were injured in falls.
Fall related injuries are of large concern, mostly to older individuals. According to the Center for Disease Control, in 2005, 15,800 people age 65 and older died from fall-related injuries, 1.8 million age 65 and older were treated in emergency rooms for fall-related injuries, and over 433,000 of these people were hospitalized. If you are on someone else’s property and injure yourself as a result of a dangerous condition on the property, the landowner or business proprietor may be liable for your injuries. If you are a property owner and someone injures himself on your land, you may find yourself legally responsible for his or her injuries. Either way, you should seek the advice of an experienced personal injury lawyer right away. Call Hirsch First! 1-877-25FIRST
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This explanation of Michigan’s no-fault law is a general description without all of the details or exceptions. Please feel free to raise any question with your lawyer about the law or procedure that applies to your claim.
The Michigan no-fault law provides certain benefits to an injured person without regard to who was at fault in the accident. These benefits are called no-fault benefits. They can be thought of as a type of health and disability policy that insures the person and his or her family whether the injured person was in their motor vehicle or someone else’s or was a pedestrian.
COVERAGE
If an injury is the result of a motor vehicle accident (usually a car, truck, or bus and not a parked vehicle), there will generally be no-fault coverage. To qualify as a motor vehicle, the law requires that the vehicle have more than two wheels, operate by power other than muscular power, and be operated or designed for operation on a public highway.
Certain people are excluded from benefits if their uninsured car is involved in the accident and they are the owner of that vehicle.
Furthermore, motorcyclists are excluded from no-fault coverage because the vehicle is a two-wheeled vehicle. However, when a motorcycle collides with an automobile, a motor vehicle is involved and no-fault coverage will generally be provided, usually from the insurer of the striking vehicle.
WHICH COMPANY PAYS BENEFITS
No-fault benefits are similar to health and disability policies. They generally follow the person who bought the insurance rather than the motor vehicle that is insured. No-fault coverage is, to some extent, personal in origin and extends to the insured, the insured’s spouse, and relatives residing in the insured’s household. Thus, usually the injured person will get no-fault benefits based on the policy that the person has on his or her own vehicle. If that policy does not apply, no-fault benefits may be obtained from a policy on the spouse’s vehicle or that of any relative residing in the same household. If there is no coverage in the name of the injured person or a relative in his or her household, he or she will generally get coverage from the vehicle that he or she was an occupant in or, if the person was a pedestrian or motorcyclist, from the striking vehicle. If no insurer can be identified, there is an assigned pool set up to pay no-fault benefits to those who are entitled to them and cannot find a no-fault insurer. Motorcyclists first get coverage from the insurer of the striking vehicle.
APPLICATION FOR NO-FAULT BENEFITS
The law requires that certain information be supplied to the no-fault carrier within one year of the accident. Generally, the law requires an identification of where, when, and who was injured; a description of the nature of the injury; and a claim for no-fault benefits. A standard application for benefits form (which can be obtained through the Insurance Commissioner’s office or through any insurance company) can be used to apply for benefits. The form requests all of the factual information required by statute to be provided to the no-fault insurer. If the application for benefits with the appropriate information is not submitted to the insurer within one year of the date of the accident, the individual’s claim for no-fault benefits is forever barred. If a question arises regarding who should receive the no-fault application for benefits, a claimant is well advised to give the written application for benefits to each insurance company that may be responsible to pay no-fault benefits.
MEDICAL BENEFITS
The No-Fault Act requires that the no-fault insurer pay all reasonable charges for necessary products, services, and accommodations for an injured person’s care, recovery, or rehabilitation arising out of a motor vehicle accident. The medical expenses are payable for life and are unlimited in amount. Medical benefits include such things as hospital bills, doctor’s visits, medical tests, physical therapy, prescriptions, appliances, transportation to and from medical care, vans, wheelchairs, home modifications, and home or residential care, including attendant care provided by family members.
Nursing care is an entirely separate expense from replacement services. Nursing care benefits provide care for the injured person. Replacement services are those household tasks that the injured person would have performed for himself or herself or his or her dependents. Replacement service benefits have a maximum of $20 per day. There is no statutory maximum amount for nursing services.
COORDINATED/EXCESS MEDICAL COVERAGE
The no-fault law allows the no-fault insurance company to sell two types of no-fault coverage: full medical coverage and coordinated (sometimes called excess) coverage. Usually, there is a small premium reduction for the coordinated excess coverage compared to a full policy. An insurance agent must offer the choice of full coverage or the premium discounted coordinated coverage to the named insured. The election of a coordinated policy applies to the named insured, that person’s spouse, and any relative residing in the insured’s household.
If you have a coordinated or excess coverage policy, you must use the health care insurance or HMO first if the service is available. The no-fault insurer will pay for the care that is not covered by the health insurance or HMO or in excess of the HMO or health insurance coverages. For example, if the HMO limits the number of physical therapy visits to 16 and your doctor recommends 20, the no-fault carrier would be responsible for the remaining 4 physical therapy visits.
With a coordinated policy, the no-fault insurer will require proof that the bills have been submitted to the other health plan first and that the other health plan has either rejected them or made the appropriate partial payment under its contract before the no-fault insurance company will honor the submission.
With full health policy and no-fault coverage, under some circumstances (usually Blue Cross Blue Shield policies) the medical bills will be paid twice, once by the health insurer to the provider and a second time by the no-fault carrier directly to the injured person. Many health insurance policies include policy language to avoid paying for medical expenses resulting from motor vehicle accidents if there is no-fault coverage. Others have a coordination provision that states that the health insurer is not responsible for no-fault benefits if there is a full no-fault policy. That type of coordination has been allowed when there is a full no-fault policy. If you have a health insurance policy, you should examine it to determine whether or not it excludes motor vehicle accidents.
MEDICAL MILEAGE
Medical expense benefits include mileage to and from medical care. As a claimant, you should keep a record of the mileage expenses by date and miles for submission to the no-fault carrier.
FUNERAL EXPENSES
The No-fault Act also provides funeral expense benefits of a minimum of $1,750 with the right to purchase up to $5,000 in funeral and burial expense coverage. Depending on the amount that was purchased on the no-fault insurance policy that applies to the case, there will be at least $1,750 towards funeral and burial expenses in the event of a death resulting from a motor vehicle accident.
WAGE LOSS
The No-fault Act provides benefits for wage loss that are payable for three years from the date of the accident. The wage loss benefits may be up to 85 percent of a person’s wage and salary or the current monthly maximum amount whichever is less. The monthly maximum in effect at the time of the accident is the maximum for that injured person for the next three-year period. However, the no-fault wage loss maximum is adjusted annually for inflation. The income that is recoverable is what you would have earned, not what you could have earned. It is also not based necessarily on the last year or even the last month’s earnings. A new job, a promotion, and a new wage rate (if provable) is recoverable under no-fault insurance.
No-fault wage loss benefits are paid at the 85 percent rate since the statute assumes a 15 percent tax reduction. The no-fault insurer is allowed a tax reduction from the gross wage since the no-fault wage loss received is tax free under the Internal Revenue Code.
No-fault wage loss does not include most fringe benefits unless they are actual monetary payments such as cash bonuses or contributions to a specific savings or retirement fund. Other noncash fringe benefits such as health insurance, life insurance, etc., are not recoverable as a no-fault wage loss. However, no-fault wage loss does include overtime pay, wage increases, and bonus payments that are lost.
SURVIVOR’S LOSS
A dependent survivor of an individual who is killed in a motor vehicle accident has the right to survivor’s loss payments similar to the wage loss benefits of a surviving disabled claimant. Generally, the three-year income payment is paid to a narrow group of dependents, usually the spouse and minor dependent children. The maximum for survivor’s loss benefits is adjusted annually, which also includes the replacement service maximum of $20 per day. However, survivor’s income loss is broader than wage loss and includes fringe benefits, including health insurance and other premiums and coverages that the decedent’s employment would have provided, plus lost wages, salary, and other income.
COORDINATION OR SETOFF OF OTHER BENEFITS
The no-fault wage loss and survivor’s loss benefits are reduced by Social Security disability or survivor’s benefits or worker’s compensation benefits. If the no-fault policy that applies was a coordinated policy, the no-fault insurer is entitled to a credit for any private disability payments or insured medical payments made. Depending upon the nature of the benefits, the no-fault insurer does not get a credit or reduction from the wage loss or survivor’s loss benefits for sick pay, vacation pay, or similar employment-provided wage continuation (except for wage continuation benefits available through the employer that are paid by an insurance company or typically would be paid by an insurance company).
REPLACEMENT SERVICES
Under the No-fault Act, an injured person or the survivor of a deceased may recover replacement services. The no-fault law provides for the payment of up $20 per day for the loss of services that the injured or deceased person would have provided for himself or herself (if the person is surviving) and for dependents. The replacement services are only payable for the first three years after the accident. Typical replacement services include such things as housecleaning, washing dishes, yard work, home maintenance, babysitting, child transportation, etc. The service can be hired and paid to nonfamily members or provided by family members with a payment or promise to pay by the injured person. Benefits for replacement services are not adjusted for inflation and have not been increased since the act was enacted in 1973.
LAWSUIT FOR NO-FAULT BENEFITS
If a lawsuit is brought for no-fault benefits, the claimant may seek benefits going back to one year from the date of the filing of the suit and benefits that accrue while the suit is pending up to the trial. Under certain circumstances, the court may oversee future care beyond the trial date. The law does not allow one suit for the claimant to receive a lump sum cash amount for past and all future benefits.
If there is a substantial benefit in dispute, it is important for a lawsuit to be filed within one year of the date the expense is incurred. If suit is filed more than a year after the expense is incurred, that claim is barred. In most cases some interest will be awarded on benefits recovered. In some cases the court may award an attorney fee.
AUTO NEGLIGENCE SUIT
The no-fault law allows a lawsuit against the negligent driver under certain circumstances. The negligent driver must be 50 percent or more at fault in causing the accident to allow the injured person to recover noneconomic emotional and pain and suffering damages. Lawsuits may be brought against negligent drivers when an accident has resulted in death, permanent serious disfigurement, the serious impairment of a body function, or long-term income loss.
With regard to a claim based on a serious impairment of a body function, there must be a serious injury that can be objectively shown. An injury may be objectively established by such diagnostic tools as X rays, magnetic resonance imaging, CT scans, electromyograms, and other tests. On the other hand, neck or back pain, even if it lasts for years, sometimes cannot be shown by sufficient objective evidence to allow a suit to be maintained. A court may dismiss a claim if it determines that there is not sufficient objective evidence of a serious injury. The injury has to be serious, objectively manifested, affect an important body function, and affect a person’s general ability to lead his or her normal life. If you bring a claim now for an injury that the judge finds not to be serious enough and the injury later becomes worse, you will not be able to bring a claim for that injury later. In addition to proving that the other driver was at fault in the accident, it is important that there be sufficient evidence of an objective nature of a serious injury that affects an important body part and affects normal daily living. The Supreme Court declared that the injury must affect the course and trajectory of one’s life to be serious enough. Besides family members and treating medical providers, you should always mention to your lawyer friends, co-workers, and other persons who might be able to corroborate before-and-after differences and assess the impact that the injury has had on your life.
The rules for an automobile negligence lawsuit include the following:
• The other driver must be more than 50 percent at fault for the accident for the injured person to recover noneconomic pain and suffering and other types of noneconomic damages. Economic damages such as excess wage loss or survivor’s loss after three years may be recoverable even if the other driver was less than 50 percent at fault.
• For an injured person to successfully bring a claim for noneconomic damages such as pain and suffering, there must be an objectively manifested impairment of an important body function that affects the person’s general ability to lead his or her normal life.
• No claim against the other driver for medical or wage losses or replacement services may be made if the benefits are covered under the No-Fault Act by a no-fault insurer. Generally, this means that no wage loss or replacement services may be claimed for the first three years and no medical expenses will be claimed against the negligent driver. However, wage losses or replacement services in excess of the three-year, first-party benefits are recoverable against the at-fault driver.
• If the injured person owned and was driving an uninsured motor vehicle, noneconomic damages such as pain and suffering, embarrassment, or loss of enjoyment to life are not recoverable against the other driver. Economic wage losses or survivor’s losses may be recovered.
TIMING FOR A THIRD-PARTY SUIT
In general, a no-fault auto negligence lawsuit must be brought within three years from the date of the accident or the claim is forever barred. There are exceptions for the mentally impaired and for minors. A minor may bring a claim until his or her 19th birthday.
RETENTION OF AN ATTORNEY
The Michigan Court Rules allow clients to hire an attorney for a no-fault matter on either an hourly or a contingent fee basis. Normally, the client hires the attorney on a contingent fee basis. A contingent fee means that the client will pay the attorney a percentage of the recovery from the settlement or amount secured by suit. The typical percentage is 33 percent. A Michigan Court Rule regulates the use of contingent fee agreements and allows a one-third contingent fee as a maximum. If a client retains an attorney on a contingent basis and the case is unsuccessful, the client does not owe the attorney money for attorney fees. However, if the matter is unsuccessful, the client is responsible to pay the costs of the litigation. The costs are not the attorney’s or the staff’s time but the out-of-pocket money the attorney spends to process your case. Typically these costs include such things as filing fees, witness’s time at depositions, medical records, case evaluations, and other out-of-pocket expenses. Usually, the most expensive costs are to secure medical testimony to present to a jury (by either video deposition or live testimony) the nature of the injuries. Although these costs are the responsibility of the client whether the matter is won or lost, most attorneys pay the costs as they are incurred and are reimbursed at the end of the suit.
If the suit is successful, under the contingent fee contract and court rules, the attorney is first reimbursed for the costs that have been advanced in processing the claim. The net amount of the settlement after costs are subtracted is then subject to the contingent percentage, usually one third, which represents the attorney’s fee. The net balance of the settlement or result is payable to the client.
