Articles Posted in Safety Tips

Libel vs. Slander

Defamation is essentially an injury to reputation. In Alabama, defamation is defined as a false statement of fact, published or spoken with some degree of fault, that tends to harm the reputation of another so as to lower him or her in the estimation of the community.  Libel and slander are types of defamatory statements. Libel is a written defamatory statement, and slander is a spoken or oral defamatory statement.

As in every case, the person bringing a defamation claim bears the burden of proof related to the elements of the cause of action and the damages claimed. The first legal hurdle in a defamation case is proving the statement in issue is false. Second, one must prove the statement was made with some degree of fault. This could include an actual intent to harm, but also could include a statement made carelessly. Next, one must show that the statement in question did in fact hurt or harm her reputation with the recipient (and to others who may have also received or heard of the false statement.) Finally, a claimant must prove the extent and nature of the damages caused by the false statement.

These four hurdles make defamation/libel cases somewhat difficult because unless one can prove all four elements, her case will not be successful. Alabama law does allow the recovery of punitive damages for defamatory statements but the claimant must also prove by clear and convincing evidence that the defendant consciously or deliberately engaged in oppression, fraud, wantonness, or malice with regard to the plaintiff in order to recover punitive damages. Also, before punitive damages can be considered in a libel action, the claimant must have requested a retraction before filing a lawsuit. Continue reading

Many new vehicles have significant problems. If these problems affect the use, market value or safety of the vehicle, the consumer may have an action under Alabama’s Lemon Law.  Lemon laws were enacted to offer consumers a clear recourse when faced with the unfortunate situation of a faulty vehicle and the financial struggle that such a vehicle may cause.

Alabama’s Lemon Law extends to self-propelled vehicles intended primarily for use and operation on the public highways.  The Lemon Law does not apply to motor homes or any motor vehicle having a gross vehicle weight of 10,000 pounds or more.  The Lemon Law claim must be made by certified mail and within one year after the date of delivery of the vehicle to a consumer or within the first 12,000 miles, whichever comes first.  Additionally the claim should describe the vehicle, state the problem and describe all previous attempts to correct the problem by identifying the person, firm or corporation making such an attempt, and when the attempt was made.

Once a claim is made, the manufacturer of the vehicle must have an opportunity to make repairs to the vehicle.   If, after reasonable attempts (defined in Alabama as three or more attempts), the manufacturer is unable to repair the issue, the consumer may be entitled to either a new vehicle or money damages, which may include the full price of the vehicle, any and all taxes and additional charges associated with the purchase of the vehicle, as well as finance charges incurred by the consumer after he or she first reported the issue to the manufacturer. Continue reading

As trial lawyers, we try to help our clients identify what type of conflict they may have and then try to help them resolve it in the manner that is the most cost effective and least emotionally draining for our clients.  While the majority of cases start in court, i.e., litigation, many end up in either mediation, arbitration, or both.  Most people haven’t experienced either of these processes and often get them confused.

Litigation is the process that people generally think of when you think of a lawsuit.  It is the courtroom drama, full of witnesses, testimony, exhibits, and evidence.  Litigation can be resolved by a jury or judge, depending on the type of litigation and whether you want to have a jury.  In Alabama, divorce cases, for example, are determined by a judge alone without a jury.  When filing a civil case, a litigant must make a decision between requesting a jury of 12 or allowing the judge to make a decision alone.  In most civil cases, a jury demand is requested.

The length of time from the filing of a complaint to a trial date varies by county but, in most counties, it takes between 12 and 24 months to have a case set for trial.  Considering some cases are not filed for 12 to 24 months after the injury occurs, this means a litigant could be looking at 2 to 4 years between the time of an injury and the time of a decision by a judge or jury.  After that decision is made, appeals can take another year. According to the latest Alabama Supreme Court statistics, the average time a case is pending on appeal is 350 days.  http://judicial.alabama.gov/docs/2014_SCStats.pdf.  This means that a case can take between 3-5 years (or longer) going through the litigation process.

With Memorial Day weekend marking the traditional opening of pools in many communities, a review of swimming pool and water safety is timely and may help prevent a tragedy. Unfortunately, unsupervised children are often victims of drowning deaths and swimming pool accidents.  According to the U.S. Consumer Product Safety Commission (CPSC), drowning is the leading cause of accidental death for children ages one (1) to four (4). (www.poolsafety.gov).

Property owners are responsible for keeping their pools safe and secure.  The most effective drowning prevention strategy is to cut off the access to the water by completely surrounding pools and spas with fencing and gates that latch and lock.  Prevention is key, and parents, pool owners and pool managers can and should take certain measures to ensure pool safety and keep children safer in and around the water:

–        Never leave a child unattended in a pool or spa and always watch your children closely around all bodies of water.

Blue Bell Ice Cream has recently issued multiple recalls for products manufactured by it that are linked to a listeria outbreak. This is the latest in a list of recalls that reminds us all that food poisoning happens daily.

The Centers for Disease Control and Prevention estimates that about 76 million people in the United States become ill from pathogens in food every year. Researchers estimate that the yearly cost of all food borne diseases in this country is $5 to $6 billion in medical expenses and lost productivity. The two most common food borne illnesses are a result of the bacteria Salmonella and Campylobacter. It is estimated that those two alone account for $1 billion in direct and indirect medical costs.

Food poisoning is often undiagnosed. The CDC estimates that 38 cases of salmonellosis actually occur for every case that is diagnosed and reported to public health authorities. This may be because symptoms from food poisoning often mimic a stomach virus and can include bloody diarrhea, chills, fever, muscle weakness blurred vision, dilated pupils, and headache. Symptoms in infants can also include a weak cry, lethargy, and weak sucking.

The laws in every State regulate the use of the public roads, whether by the operators of motor vehicles, pedestrians, or even operators of conveyances drawn by animals. These rules are usually codified in the statutory law of the State and are generally known as “the rules of the road.” In Alabama these rules are found in Sec. 32-5A-1, et seq. These are basic rules of driving. While the entire statutory scheme is a good bit more detailed than the handbook that we were given when we started to learn to drive, the idea is the same – there are certain things about using the public roads that we are all supposed to know. Ignorance of these rules can lead to unfortunate consequences.

Most of these rules are just common sense – for example, don’t exceed the posted speed limit, observe stop signs and other traffic control devices; and it would be impossible in the space of a few paragraphs to detail all of these rules.   But a brief overview may be both instructive and entertaining.

The rules of the road are fairly exhaustive. They include rules relating to traffic signs, passing and parking, right of way issues, turning, starting and stopping, alcohol related issues and many other matters. While most of the rules are very well known to most drivers, perhaps some of them deserve special mention. For example, the law gives to construction workers the right of way when they are operating a vehicle which is obviously engaged in work upon a highway. In our experience, work zones on roadways present one of the most dangerous environments for the public and for the road workers. Another set of very important rules (which are frequently ignored) have to do with the speed at which vehicles are operated. “No person shall drive a vehicle at a speed in excess of the maximum limits.” We all know that. But did you know that in addition to rules related to posted speed limits, the law prohibits driving more than 30 MPH in any urban district, driving more than 35 MPH on a dirt road or (and this is important) driving at a speed that is greater than is safe under the conditions and without regard to actual or potential hazards. Intersection crossings, railroad crossings, hill crests, curves, areas where pedestrians are common, road construction areas and wet weather conditions – all of these may require speeds at lower than the posted speed. There is also a rule related to the minimum speed required which is simply that no one shall operate a motor vehicle at such a slow speed as to impede the normal movement of traffic.