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Are elderly drivers to blame for car accidents resulting in wrongful death?

Anneke Kurt — Fri, 28 Dec 2007 16:32:40 GMT

Wrongful death caused by car accidents involving elderly drivers is currently at the same rate of death caused by teenage drivers, with an average of three deaths per 100 million drivers, according to the AAA Foundation for Traffic Safety.

Personal injuries from car accidents are also on the rise as the baby boomers age. Many elderly drivers hang on to driving as a way to preserve their independence, but some don't have the ability to operate a motor vehicle, according to the AAA Foundation.

Our attorneys see firsthand the effects that personal injuries and wrongful death from car accidents can have on a family. Recently in Northwest Ohio, two people died, one a teenager, after a collision caused by a 90-year-old man who ran a stop sign.

The aging body presents many hazards to driving a motor vehicle. As people get older, their reaction time slows, quick decisions are harder to make, and distractions are easier to succumb to. Cataracts blur vision, glaucoma affects peripheral vision, and macular degeneration makes the center of objects such as stop signs and speed limit postings harder to see. Arthritis can affect the ability to grip a steering wheel, and stiff joints can make it difficult for an elderly driver to look over their shoulder or move from the gas pedal to the brake pedal.

To keep elderly drivers in your family safe, watch out for signs that they are unfit to drive. Deteriorating vision and difficulty walking or getting in and out of a vehicle are signs to look out for. Signs of Alzheimer's disease, low blood sugar due to diabetes, Parkinson's disease or stroke are also important issues that need to be brought to the attention of family members, caretakers, and doctors before letting an elderly person get behind the wheel.

For more information on this subject, please refer to the section on Car and Motorcycle Accidents.

Originally posted at InjuryBoard by Anneke Kurt

Can a waiver change liability of personal injury?

Anneke Kurt — Thu, 07 Feb 2008 17:20:31 GMT

Our Toledo, Ohio personal injury attorneys handle car accidents, medical malpractice, wrongful death, trucking accidents, motorcycle and ATV accidents, dog bites and criminal defense. Check out Attorney Dale's Emch Toledo Blade "Legal Briefs" column addressing personal injury after a waiver is signed.

Dear Dale: While I was at a local bar recently, I decided to ride their mechanical bull. Before I could ride, somebody from the bar made me sign a form that said I couldn't sue the bar if I got hurt. While I was riding the bull, the guy who was running it sped it up, I guess because I had not fallen off. I got thrown off the bull and my foot got caught in the stirrup, causing me to break my ankle. Even though I signed the form, can I still sue the bar for my injury? Also, does it matter if I was drunk when I signed the form?
ANSWER: In Ohio, an owner of a business offering a recreational activity may have a participant in that activity sign a waiver of liability that relieves the owner of a negligent act unless that act constitutes wanton or willful misconduct. Essentially, the owner and the participant to the recreational activity are entering into a contract.
The waiver forms generally say something like "the undersigned understands parachuting is an inherently dangerous activity and agrees to release AAA Parachuting Company from any and all liability and negligence resulting in personal injuries or death." The forms use more legal language, but that's the gist.
When someone signs a waiver of liability before participating in a recreational activity like parachuting, scuba diving, or even mechanical bull riding, that signature really means something. We've had cases in our personal injury office that we couldn't pursue because a waiver of liability was signed. Though there are exceptions, a release generally bars someone who gets hurt participating in a recreational activity from successfully pursuing a personal injury claim alleging negligence.
The lesson is that we should all think twice about the potential consequences of signing our names to any legal document. If you have any doubts, and the issue is significant enough to you, consult an attorney to review the document. Most of us don't believe we're going to get hurt - or we overlook the danger - when our hearts are set on diving, parachuting, or just swimming at a water park, so we sign on the dotted line and hope for the best. I'm not sure that we really contemplate that the owner or employees of the business might do something stupid that could get us hurt or killed. And, if that happens, there's probably little recourse.
That said, there are a few things to consider. First of all, an attorney would have to examine the waiver form to see if it's easy to read, is in large enough type, if the meaning is clear, and if the language of the release is specific enough to shelter the owner from a negligence claim. That's not an exhaustive list, but you get the idea. If there are problems, those flaws should be construed against the drafter of the contract.
Another factor that keeps liability waivers from being completely bulletproof is whether the owner or an employee committed willful and wanton misconduct. The rough idea is whether someone's behavior created an unreasonable risk that was substantially greater than a routine negligence standard. So, if someone gets hurt because the parachute they've been provided doesn't open because it was packed improperly, that's probably just negligence and you're out of luck if you've signed a waiver. Alternatively, if the parachute instructor knows the weather conditions aren't right for a jump and the chute he provides you with isn't designed to withstand the elements, but he has you jump anyway, I'd contend that's willful and wanton conduct. In the latter case, I'd argue the waiver shouldn't bar a claim.
So, viewing your question threw that prism, the elements to consider are whether the liability waiver was flawed in the way it was drafted or whether turning the speed up on the mechanical bull constituted willful and wanton misconduct. If you can't show either of those elements, you may be out of luck unless you can prove the bar employees knew you were drunk when you signed the waiver.

Originally posted at InjuryBoard by Anneke Kurt

Which cities have the most fatal teen car accidents? | Ohio car accident lawyers

Chuck Boyk — Wed, 28 Jan 2009 13:38:07 GMT

Many factors can contribute to teen car accidents, including cell phone use and text messaging behind the wheel, drinking and driving, or other distractions in the car like friends or music. Mix those distractions with ADD, or Attention Deficit Disorder, which the CDC reports over 2 million teens nationwide suffer from, and it turns into a recipe for disaster.

Our Toledo, Ohio fatal car accident lawyers see the devastation that deadly car accidents can have. While fatal car accidents can happen to anyone, car accidents are the leading cause of death among teenagers, according to the US Centers for Disease Control.

According to a recent study by Allstate Insurance Company, Tampa, Florida is considered the top city for fatal teen car accidents between Thanksgiving and New Years Day out of the 50 largest metro areas in the country. Here are the other top nine cities in the US where fatal teen car accidents are the most prevalent:

Jacksonville, FL

Orlando-Kissimmee, FL

Kansas City, MO

Birmingham-Hoover, AL

Phoenix-Mesa-Scottsdale, AZ

Las Vegas-Paradise, NV

Oklahoma City, OK

Louisville, KY

Richmond, VA

If you or someone you know has been injured in an Ohio car accident, contact our office for your free copy of The Ohio Accident Book.

Originally posted at InjuryBoard by Chuck Boyk

Congratulations to Lucas County Dog Warden Tom Skeldon, Named Dog Warden of the Year

Chuck Boyk — Fri, 19 Dec 2008 19:58:05 GMT

Tom Skeldon has worked hard to keep children and adults safe from vicious dogs and dog bites.

Our Toledo, Ohio attorneys would like to extend our congratulations to the Lucas County Dog Warden, as he was just named Dog Warden of the year by the nation's only dog bite advocacy group, DogsBite.org. DogsBite.org was founded by a person who was a victim of a pit-bull attack in Seattle.

DogsBite.org agrees with Mr. Skeldon's hard work. They write, "Tom Skeldon has vigorously worked to prevent horrendous pit bull maulings resulting in serious injuries or death of human beings, their domesticated pets and livestock."

If you or someone you love has been injured by an dog bite in Ohio, contact our office using the form at right to order your FREE copy of The Ohio Dog Bite Book. Our attorneys are available 24 hours a day, seven days a week.

Originally posted at InjuryBoard by Chuck Boyk

Emotional distress questions answered by Toledo, Ohio car accident lawyer

Chuck Boyk — Tue, 04 Nov 2008 15:27:00 GMT

What happens is someone else’s recklessness causes you to suffer emotional distress? Are you entitled to any sort of compensation? Toledo, Ohio car accident lawyer Dale Emch addresses the issue of emotional distress as a type of personal injury in his most recent Toledo Blade “Legal Briefs” column.

Dear Dale: I am interested in finding out whether I can make a claim against my doctor for causing me tremendous emotional distress. Could you please address this issue in your column?

ANSWER: The quick answer is that people can sue for infliction of emotional distress, but without knowing the specifics of your situation, it's really tough to say whether you have a claim. I'll try to provide you with enough information about the law so you can decide whether you have a case worth pursuing.

Under Ohio law, people can bring claims for intentional infliction of emotional distress and negligent infliction of emotional distress. The two are very different - one requires purposeful behavior, while the other is similar to an accident. It's sort of like the difference between someone who purposely rams his car into another driver's vehicle, as opposed to the person who causes a routine traffic accident because he took his eyes off the road.

A claim for intentional infliction of emotional distress requires extreme and outrageous conduct caused by someone's intentional or reckless behavior. The person bringing the claim has to demonstrate serious emotional distress.

Here's an example of intentional infliction of emotional distress: Let's say Bob, a CPA, decides to destroy his business rival, Barbara, by sending anonymous letters to some of her best customers that she's being investigated by the FBI for embezzling clients' money and, by the way, that she's also having an affair with a 16-year-old boy.

Further assume that poor Barbara's client base begins to dwindle and that her husband divorces her because he's heard the rumor about the 16-year-old. Finally, let's say that all the stress from the business failure and her divorce causes Barbara to experience a severe depression as well as debilitating anxiety attacks for which she seeks mental health treatment.

Fortunately, Barbara finds out that Bob is the culprit of her financial and emotional demise. In this case, she can bring a claim against Bob for intentional infliction of emotional distress (as well as a lot of other claims). As the Ohio Supreme Court put it, it's the type of behavior that would make someone exclaim, "Outrageous!"

Barbara would be able to sue for her medical bills for the mental health treatment she received, the pain and suffering she experienced, her lost wages, and punitive damages designed both to punish Bob and serve as an example to others that such outrageous conduct won't be tolerated in our society.

A claim for negligent infliction of emotional distress generally would result from accidental conduct. Here's an example: John, while fiddling with the radio, loses control of his car, runs up onto the sidewalk and strikes little Rodney who is taking a walk with his mother, Marjorie. Rodney survives, but Marjorie develops post-traumatic stress syndrome and enters extensive counseling to deal with her mental health issues.

In this case, Marjorie would be able to bring a claim for negligent infliction of emotional distress. Some of the factors to consider would be that she witnessed the scene of the accident - in fact, she was almost physically injured herself, she suffered a direct emotional impact, and Rodney was related to her.

Marjorie would be able to seek compensation for the bills incurred to treat her post-traumatic stress syndrome, the pain and suffering she experienced, and wages lost from missing work. Unlike with intentional infliction of emotional distress, she wouldn't be able to seek punitive damages because John's conduct was not purposeful or reckless - it was simply an accident.

I can't answer whether you have a claim because I don't know the details, but I hope this provides a framework for you to examine your situation.

Originally posted at InjuryBoard by Chuck Boyk

Car Crashes Into Parked Truck And House In Groton Township

Chrissie Cole — Wed, 19 Aug 2009 21:20:00 GMT

A vehicle smashed into a parked truck and a house before bursting into flames Monday night. Three people suffered injury, one critically in the crash.

Mason L. McGough of Green Springs was driving a 2005 Dodge Stratus when he lost control shortly after crossing the train tracks on Portland Road.

The car skid through the yard of a home and struck the back of a Chevy pickup that sat nearby, causing it to roll 10 feet into the flower bed.

It appears the driver but not his passengers were wearing a seatbelt, Ohio State Highway Patrol said.

The investigation is ongoing and it is unclear at this time if alcohol or drugs are a factor in the crash.

A nearby neighbor, Brad Gilbert, witnessed the crash and helped to pull the driver and his passengers from the fiery vehicle.

No one was injured inside the home, but a portion of the siding was melted and a corner of the house was damaged. Debris was strewn about the yard.

Originally posted at InjuryBoard by Chrissie Cole

Is homeowner liable for what happens to social guests?

Chuck Boyk — Tue, 03 Jun 2008 18:38:00 GMT

Toledo, Ohio personal injury attorney Dale Emch discusses the liability surrounding property owners in his most recent “Legal Briefs” column found in the Toledo Blade. “Legal Briefs” is a question and answer column, covering such legal topics as personal injury, workers’ compensation, dog bites, and trucking accidents.

Dear Dale: A family member recently decided to become a back-yard beekeeper and bought several beehives. His wife, who likes to give frequent back-yard parties during the summer, is concerned that if a guest or even a neighbor in his own yard gets badly stung, her family could be sued. The family has debated this and we all have differing opinions as to what the responsibility would be in this case. What kind of laws, if any, apply in a case like this?

Answer: First of all, it’s not illegal under state law for someone to keep bees in a neighborhood setting. The beekeeper just has to register with the director of agriculture before the first of June of each year. I’ve got no clue whether any zoning regulations would prevent keeping the hive in certain areas, but I tend to doubt it.

As to the issue of liability, a host does not have a duty to protect a social guest from all harm. The only thing the host has to do is exercise ordinary care so that his guest isn’t injured by an act or dangerous condition on the property.

The host must warn the guest of any condition that the host should reasonably consider dangerous if the guest doesn’t know about the danger and could not discover it on his own.

In this case, the first issue really is whether a beehive counts as a dangerous condition. That probably depends on the situation. If the hive were naturally occurring and the owner didn’t know about it, there would be no liability to a guest who was stung.

Here, though, the hive is being purposely placed on the property. Depending on where in the yard it’s located, it’s reasonable to assume that a bunch of bees could create a dangerous condition if they were located near a place where guests tend to gather.

While I realize that the bees probably won’t hurt anyone, it probably would be smart to post a sign near the hive to warn people it’s there. It also wouldn’t hurt to verbally warn guests about the beehive so they can make the decision about whether to stick around in the yard. If the goal here is to avoid liability, warning guests about the hive would provide pretty good protection. Whether or not it’s wise to have a hive located in close proximity to people, especially if there will be recreational activities going on nearby, is a call for your family member to make.

One other issue you may want to consider is whether the bees would constitute a nuisance to neighbors. Again, it depends on the specifics of the situation. If the hive is located in such a way that the bees have to fly directly over your neighbors’ picnic table or pool on the way to doing their bee thing, I could see a nuisance complaint. The test would be if the hive interfered with the neighbors’ use and enjoyment of their land.

In one case I found – and there weren’t many, which leads me to believe this hasn’t been much of an issue for beekeepers over the years – a beekeeper was found to have created a nuisance because the bees he kept near a neighbor’s property tended to hang around the neighbor’s pond so they could drink the water. A number of people, including kids, had been stung and the neighbor contended that his use of his property had been diminished. He won and the bees had to be moved.

Hopefully, your family member’s bees won’t bother anyone and he’ll get a lot of enjoyment out of his new hobby. Maybe having some background on some of the basic legal issues will provide some peace of mind.

Originally posted at InjuryBoard by Chuck Boyk

$36 million awarded to family of man killed at Wal-Mart | Toledo, Ohio wrongful death lawyers

Chuck Boyk — Thu, 05 Feb 2009 10:37:00 GMT

A paranoid schizophrenic who was supposed to be under the State's care drove to an Arizona Wal-Mart in 2005 and fatally shot two men, then drove away. A witness gathered his license plate number and called police.

The mental patient was off of his medication at the time of the shooting, since his appointment was canceled by his care provider at ValueOptions and his medication ran out. ValueOptions held the contract for providing care to the state's mental health patients.

Since the mental patient was a patient of the State of Arizona's mental-health system for over 20 years, a jury found the State of Arizona and ValueOptions liable in one of the man's deaths. The jury awarded $36 million to the family of one of the deceased. A separate lawsuit is pending in the other wrongful death.

Our Toledo, Ohio fatal shooting lawyers handle devastating wrongful death cases like this one all of the time. If you or someone you know needs help dealing with a tragic situation like this one, contact our office to speak with an Ohio tragic accident lawyer immediately. We have also written The Ohio Wrongful Death Book, which can be ordered for FREE by contacting our office.

Originally posted at InjuryBoard by Chuck Boyk

If you pass out behind the wheel, are you responsible for causing a car accident?

Chuck Boyk — Wed, 23 Jul 2008 13:55:00 GMT

If you pass out behind the wheel and cause a car accident that injures another person, are you responsible for compensation of that personal injury? Our Toledo, Ohio car accident attorney Dale Emch addresses this issue in his “Legal Briefs” column found in the Toledo Blade.

Dear Dale: An acquaintance of my wife recently was involved in a traffic accident after she blacked out while at the wheel. We wondered whether she could be held responsible for the injuries caused to the other drivers or the damage to their vehicles.

Answer: Your question raises an interesting legal issue. It speaks to whether it’s fair, on the one hand, to hold someone responsible for the consequences of events over which they had no control or, on the other hand, to say innocent accident victims are barred from recovering for their injuries.

In Ohio and most other states, a person who loses consciousness and causes an accident generally cannot be found to have acted negligently and therefore won’t have to compensate the injured person. Under what’s called the sudden-emergency defense, the driver who blacked out can only be found negligent if he or she had reason to anticipate the loss of consciousness.

It’s not enough, though, for someone who lost consciousness to simply declare she passed out so she shouldn’t be held liable. The person asserting the defense has the burden of proof to show the loss of consciousness caused the accident and that the blackout couldn’t have been anticipated.

An example might help to illustrate how this could play out. Let’s say that Betty was driving down Monroe Street one afternoon when she had a heart attack, lost consciousness, then crossed the centerline and crashed into Bob, causing serious personal injuries. If Betty can show she actually lost consciousness before the accident, the sudden-emergency defense will work in her favor and Bob will be out of luck.

If, though, Betty was driving down Monroe Street after a visit to her cardiologist and the doctor told her she had severe heart problems and shouldn’t be driving because she could pass out at any moment, she’d have a tough time using the defense. Her cardiologist’s warning would be reason for her to anticipate the loss of consciousness and she could be found negligent.

The rule is understandable and most courts across the country recognize the sudden-emergency defense. People who pass out from a medical emergency aren’t acting irresponsibly or driving dangerously, so they shouldn’t be held liable.

The problem with the rule is that it can produce an unfair result for the person who was injured. As a personal injury attorney, I naturally sympathize with the people like Bob in the example above. Even if the injuries are severe, no recovery is possible, which could be devastating to a family if the injured person was the breadwinner and is no longer able to work or will live in pain for the rest of his life.

Even accident victims who carry uninsured and underinsured motorist coverage are out of luck as a result of the sudden-emergency defense. This seems particularly troubling given that people buy this insurance to protect themselves when coverage isn’t available from the at-fault driver. But the only way that coverage kicks in is if the other driver could be deemed negligent, which doesn’t apply in the scenario we’re talking about. It would seem that the Ohio General Assembly could tweak the uninsured and underinsured motorist statute so coverage would be available in such circumstances. Bipartisan legislation to do just that has been introduced.

Originally posted at InjuryBoard by Chuck Boyk

What happens if you are in a car accident while on the job?

Chuck Boyk — Mon, 22 Dec 2008 17:06:00 GMT

Ohio workers’ compensation attorney Dale Emch addresses the issue of Ohio car accident work injuries in his Toledo Blade column “Legal Briefs.” Attorney Emch answers general legal questions every other Sunday on topics ranging from Ohio dog bites and wrongful death, to medical malpractice and Ohio ATV accidents. Read his column below.

Dear Dale: If one of our employees is injured in a car accident in a company vehicle while on the job, what can we recoup from the person who caused the accident? If our workers' compensation payments increase, can the person who caused the accident be forced to pay the difference?

You've raised a few points about the degree to which someone who causes a traffic accident might be held financially responsible. To provide answers to your specific questions, it might be helpful to have a more general understanding of how much money the victim of an injury accident can recover.

Generally, the victim in a personal injury accident can recover for all of his financial loss. The injured person can recoup losses for medical bills incurred, lost wages, pain and suffering experienced, and the cost of vehicle repair. In some limited situations, such as when the person who caused the accident was intoxicated, punitive damages may be awarded as a way to punish the driver and set an example to others.

The idea is to make the injured person whole for actual expenses incurred and provide compensation for the pain experienced. The person who caused the accident is responsible for the financial damage caused to the extent the injured person can provide evidence of his injuries. Obviously, these expenses can mount quickly, which is why we're all required under Ohio law to carry liability insurance.

The same concept applies to anyone who experienced a loss as the result of another's negligence. So, if you're an employer and your employee is injured in a company vehicle, the person who caused the injury is financially responsible for the damage to your vehicle. Usually, this is the easy part of an accident claim. If it's clear that one person is responsible for causing the accident, that person's insurance company generally will settle the property damage. You may not always think the compensation offered is fair, but usually you'll get it worked out.

Applying these ideas to your situation, you should be able to recoup any losses caused by damage to your company vehicle. The workers' compensation issue is a lot trickier. In Ohio, employers either pay into a state fund or qualify for self-insured status. It's a no-fault system, which means that generally, regardless of whether the employee causes the injury or if it's somehow caused by the employer's conduct, workers' compensation will provide benefits to the injured worker.

It seems that you're concerned that if one of your employees is injured as the result of a third party's negligence, you'll be stuck paying higher premiums. This may not be the case at all. Your premiums may not budge as a result of the claim, especially if the injury was caused by a third party not related to your company.

If your injured worker brings a personal injury claim against the person who caused the accident, workers' compensation has a right to recoup any money it paid for the workers' comp claim. That recovery is based on a formula that includes such things as the amount recovered, the expenses incurred to secure that recovery, and the attorney's fees. You might get credit for the amount the system recovers on the claim, but I don't think you'd be able to sue the third party for any increase in your premiums.

I don't have enough space in the column to provide a lot of details about the impact to your workers' compensation premiums, but if you think your company may be affected by this type of situation, I'd recommend that you contact the Bureau of Workers' Compensation.

Originally posted at InjuryBoard by Chuck Boyk