photo_38132_20150520There is a common perception that lawsuits involving car accidents are about which driver was at fault in an accident involving two or more vehicles.  Often such disputes arise, or maybe it is clear who the at-fault driver is, but the insurance company for the at-fault driver is not treating the injured person fairly.  Thus, people hire attorneys who pursue the case for them

What is often overlooked in this common perception about automobile accident lawsuits is that many accidents that involve terrible injuries or even death may not involve the fault of a driver at all, or may involve only a single vehicle.  Our firm regularly is called upon to investigate and pursue automobile accidents that involve much more than deciding who was at fault in an accident.  Here are a few examples of potential claims that often go unnoticed by families of accident victims.

Vehicle design and crashworthiness

Electronic cigarettes seem to have become very popular. It is commonly believed that E cigarettes are safer from a health perspective than regular cigarettes. However, there are some serious risks. An electronic cigarette has three basic components: 1) a cartridge that stores the liquid nicotine, 2) an atomizer which heats the liquid nicotine and 3) a battery. The battery is the source of the explosion risk.

Electronic cigarettes use lithium ion batteries. These are very powerful. They are also very common and can be found in any number of electronic devices such as cell phones, cameras and lap tops. The difference with electronic cigarettes is the proximity of the lithium ion battery to the atomizer which is a heating source. Lithium ion batteries are sensitive to extreme temperatures and have been known for some time to have a risk of explosion if they get too hot.

A lithium ion battery explosion is a very significant and destructive event. This is a very hot explosion that can cause significant burn injuries. Sometimes referred to as a thermal runaway, it can cause and has caused serious injury and in rare cases even death.

There are two court systems in every state.  One is a federal court system and one is operated by the state.  Each system has jurisdictional issues and cases are filed in one system or the other depending on the type of case it is.

Federal courts are considered courts of limited jurisdiction.  That’s because Congress and the Constitution set forth what cases can be heard in federal courts. The United States Constitution (Article III, Section 2) sets forth the jurisdiction of the federal courts.

Some cases start in State court but then get removed to federal court.  Removal is automatic and the plaintiff has to seek remand within 30 days of removal or lose his or her right to do so.  Courts have federal removal jurisdiction only over cases that could have originated pursuant to the Court’s federal subject matter jurisdiction. 28 U.S.C. §1441(a). The Courts’ subject matter jurisdiction is limited to those involving a federal question or where diversity of citizenship exists. 28 U.S.C. §§ 1331, 1332.

Many people are familiar with claims arising from injuries due to slip and fall accidents.  However, “slip and falls” are only one of many categories of “premises liability” cases.  “Premises liability” refers to the legal concept that governs cases involving injuries that occur on the premises of another due to an unsafe or defective condition on the property of another.

As in most personal injury cases, premises liability cases are based in negligence.  In order to prevail on a premises claim, the injured person must show that the property owner or manager failed to use reasonable care in connection with the property.

Premises cases include a wide range of factual circumstances.  They include:

Every year, approximately 36 million people are injured and 34,000 people are killed by using everyday consumer products.  This includes everything from falls off ladders to appliances that malfunction and catch fire.  These are staggering numbers.  While many of the injuries and deaths are the result of someone misusing a product, many also result from dangers built into the products themselves that could be prevented.

There is a concept in design engineering called the safety hierarchy.  It is also called the hazard control hierarchy.  It is supposed to govern decisions about how products are made, tested, and redesigned before they come to market and are used by the public.  It is a set of checks to eliminate or drastically reduce the number of injuries and deaths associated with using a product.  If a danger is found in a product, the hierarchy goes like this:  1. Design out the danger, 2. Guard against the danger, 3. Warn against the danger.  Unfortunately, the hierarchy is not always followed.

Design out the danger

On March 31, 2016 a teenage motorist was killed in Texas when a Takata airbag malfunctioned in her 2002 Honda Civic.  This model vehicle had previously been recalled because of a safety defect in the Takata airbag but this car did not have the recall fix performed.  A recall is issued when a vehicle manufacturer determines that a vehicle or some equipment associated with that vehicle fails to meet minimum safety standards.  A recall may also be instituted by the National Highway Traffic Safety Administration (NHTSA).

If your vehicle has been recalled, you may be contacted by mail or telephone by the manufacturer.  Recalls can target the vehicle, equipment, components, car seats or tires.  A safety recall should take place when the manufacturer or NHTSA thinks that one of these items poses a risk to motor vehicle safety or may exist in vehicles of the same design.  Manufacturers are required to notify or attempt to notify owners of a recall.  If you hear about a recall but have not been notified you can contact the manufacturer or the dealership to get more information.  You can also go to the website;/vin/ to look up recalls by your vehicle identification number (VIN).  To find out what your VIN is you can either look on your bill of sale or look on the lower left of the windshield.  There you will see a plate containing the seventeen digits VIN.

It is estimated that about twenty five percent of all United States vehicle that are subject to a recall are never fixed.  Fifty-one million vehicles were recalled in this Country last year.   Car manufacturers and the Alliance of Automobile Manufacturers have now asked major United States Insurance Companies to remind car owners of recalls when they review their policies.

The Bureau of Labor Statistics provides that in 2014, nearly 3 million cases of non-fatal injuries were recorded in the private sector alone.  That’s an average of over 8,200 incidents per day in U.S.  If you have suffered an on-the-job injury, you probably know that you may be entitled to workers’ compensation benefits for medical bills and lost earnings.  But you may not know that you may have a viable claim for damages against parties other than your employer.

Alabama, like all other states, has a separate system for addressing the claims and needs of those who have been injured on the job.  Our system of workers’ compensation provides for workers by allowing them to make claims for injuries and recover benefits without having to go through the process of filing a personal injury lawsuit, and without having to prove that their employer was at fault for the accident. But the trade-off for sparing workers from having to file a lawsuit and prove causation is that workers are generally prohibited from suing their employers in court for work-related injuries.

The problem for many injured workers is that workers’ compensation benefits may not cover all of the costs of their medical treatment, rehabilitation needs and lost earnings.  Additionally, the amount of compensation provided may not be enough to support injured workers and their families while they remain unable to work. Additionally, other damages that might have been available in a civil lawsuit, such as compensation for pain and suffering, are unavailable for workers’ compensation claims.

cementery-1-1442117The loss of a family member in Alabama can bring with it not only immense grief but also practical concerns. Family members who depended on the decedent may worry about how they’ll pay a mortgage or rent, take care of necessary expenses like groceries, and get through their days. If a decedent’s death happened within the borders of Alabama, and the death was caused by someone else’s wrongful act, negligence, or omission, the personal representative of the decedent’s estate can bring a wrongful death claim to recover damages. Our experienced and caring attorneys can guide you through the process of pursuing damages.

You should be aware that in Alabama, family members can’t file wrongful death claims for their own benefit when the decedent is an adult. Instead, the personal representative of the decedent’s estate is the only person who can file a wrongful death lawsuit under Alabama Code section 6-5-410. The personal representative may, of course, be a family member. Damages recovered through the lawsuit aren’t subject to the payment of the debts or liabilities of the decedent. Instead, they are distributed according to the statute of distributions.

The estate of the decedent brings the wrongful death lawsuit in cases in which the decedent could have filed a personal injury lawsuit had he or she survived. In other words, the estate steps into the shoes of the decedent to seek compensation. For example, if the decedent died as a result of injuries in a truck accident in which the truck driver was drinking, the decedent’s estate can bring the case. Had the decedent lived, he or she could have brought a personal injury lawsuit against the truck driver and the trucking company. Wrongful death claims can’t be brought based on contractual grounds, such as a breach of warranty.

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truck-accident-1450067When they collide with a smaller passenger car, trucks often have devastating consequences. The injuries may be catastrophic, particularly if they involve the brain or spine. In many cases, an 18-wheeler accident results in the deaths of the occupants of a passenger car. Accordingly, there are detailed, complex federal regulations that govern interstate trucking companies and their drivers.

Because of the likelihood and severity of catastrophic injuries in connection with commercial vehicles, the Federal Motor Carrier Safety Administration (FMCSA) has regulations that cover hours of service, maintenance of commercial motor vehicles, cargo restrictions, inspections, logbooks, and record keeping. In addition, trucking companies are required to conduct background checks of applicants for commercial driver positions.

Most 18-wheeler accident cases require a plaintiff to prove an 18-wheeler driver’s negligence. The elements of negligence are duty, breach of duty, causation, and damages. When a truck driver has violated an FMSCA regulation or other safety law, the doctrine of negligence per se (negligence as a matter of law) may apply. For example, if a driver is driving on a suspended commercial driver’s license, this is likely to be evidence of negligence as a matter of law.

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traumatic-brain-injury-lawyer            In recent months there have been developments that have raised public awareness of the dangers and prevalence of brain injuries.  Last month a federal district judge in Chicago gave preliminary approval to a reworked head injury settlement between student athletes and the National Collegiate Athletic Association (NCAA).  Under the terms of this proposed settlement a seventy million dollar fund would be established to test for brain trauma.  In addition, the NCAA is required to strengthen return-to-play rules after a brain injury.  U.S. District Judge John Lee also suggested removing an across-the-board prohibition from future class action lawsuits relating to concussions.  This announcement regarding the NCAA settlement follows an earlier settlement of the National Football League’s (NFL) concussion related lawsuits.  The NFL settlement involved the payment of $765 million in potential compensation.

Just this week it was disclosed that former University of Alabama football great Ken Stabler was suffering from Stage 3 chronic traumatic encephalopathy (CTE) when he died.  Stabler succumbed to colon cancer this summer but for years before his death he displayed symptoms suggestive of CTE.  CTE is a degenerative brain disease that is believed to be caused by repetitive head injuries.  It was originally found in boxers but has now been diagnosed in football players and even baseball players.  Unfortunately, CTE can only be diagnosed positively after death by a microscopic examination of the brain.  CTE involves neurological and physiological changes to the brain including the presence of an abnormal protein called tau.  CTE causes symptoms similar to Alzheimer’s disease and eventually to a progressive deterioration of the brain that leads to dementia.  The NCAA and NFL settlements were, in part, recognition of the prevalence of CTE among student and professional athletes.

The research into these types of brain injury is still in its infancy.  There are many unanswered questions.  It is not known how many concussions it takes to cause CTE or over what period of time this might develop.  The Center for the Study of Traumatic Encephalopathy (CSTE) was only created in 2008.  It is believed that repeat head injuries are required to cause CTE.  For this reason the focus of research has been on athletes.  However, this research may eventually assist medical professionals and trial lawyers in evaluating the length and severity of traumatic brain injury in their patients and clients.  What we are learning from this, however, is that the symptoms of TBI can be permanent and even degenerative.