Articles Posted in Uncategorized

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:

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 https://vincl.safercar.gov;/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.

We’ve all been warned about the dangers of distracted driving. But what about distracted walking?  Distracted walking even has a term now – “Pedtextrian” – defined as anyone who walks while texting, tweeting, gaming, talking, surfing the web or listening to headphones.

Between the mid-1970s and early 2000s, pedestrian deaths steadily declined, eventually dipping to around 11 percent of all motor vehicle fatalities, according to a Governors Highway Safety Association (GHSA) report. But since 2009, pedestrian fatalities have actually increased by 15 percent — climbing to 4,735 in 2013.  That’s one pedestrian death every two hours.  Meanwhile, the percentage of pedestrians killed while using cell phones has risen, from less than 1 percent in 2004 to more than 3.5 percent in 2010, according to a study conducted by researchers at Ohio State University, cited by the GHSA report. And the number of pedestrians injured while on their cells has more than doubled since 2005, the report shows.  The GHSA report also provides the following statistics:

• 54% of adult cell phone users have run into something or someone while distracted by their devices;

Alabama law contains two statutes that create causes of action relating to the sale of alcohol: the Civil Damages Act and the Dram Shop Act.  The Civil Damages act is found at Sec. 6-5-70 of the Code of Alabama.  It provides that parents or guardians of minors have a right to file a lawsuit against any person who unlawfully sells or furnishes alcohol to a minor.  The statute states that the parents may recover such damages “as the jury may assess.  In order to be liable under this law the defendant must be shown to have knowledge that the person to whom he was serving alcohol was a minor.

The courts have ruled that the Civil Damages Act is penal in nature and therefore only punitive damages can be recovered.  This law only provides a right to sue to the parents or guardian.  It does not give the minor a right to sue.  The courts have also held that where there is evidence that the seller sold alcohol to a minor without requiring the identification required by the Alcoholic Beverage Control Board, this is proof of notice even if the minor did not look like a minor.  The word “minor” in the statute has been held to mean a person under the age of twenty-one years.

The Dram Shop Act is found at Section 6-5-71 of the Code of Alabama.  It takes a slightly different approach from the Civil Damages Act.  The Dram Shop Act provides that basically any person who suffered physical injury or property damage because of the intoxication of any person has a right to sue any person who caused the intoxicated person to be intoxicated.  Under the Dram Shop Act the plaintiff can recover both actual damages and punitive damages.  The right to sue given by the Dram Shop Act is in favor of the person injured and also the “wife, child, parent” who might be damaged because of the intoxication event.  The statute implies that those persons are entitled to recover damages if they have been damaged through loss of their means of support.  This statute requires proof that the sale or provision of the alcohol must have been “contrary to the provisions of law.”  The Dram Shop Act is a strict liability statute.  This means that contributory negligence is not a defense.  The Dram Shop Act does not apply to social hosts who are not licensed to sell alcohol.

The recent highly publicized NFL Concussion Settlement (In Re: National Football League Players’ Concussion Injury Litigation, No. 2: 12-md-02323 (E. D. Pa)) has brought to public attention the potentially devastating long term effects of repetitive mild brain injury.  However, there is growing evidence and recognition that there can be long term effects form non-repetitive traumatic brain injury (TBI).  Approximately 1.7 million people suffer TBI each year.  Motor vehicle accidents are the cause of about 60% of these injuries.

TBI is rated as mild, moderate or severe.  Obviously, long term effects are more likely with severe TBI but future problems can occur even with mild TBI.  Many injuries to the brain involve an injury to the frontal lobe of the brain.  This is especially true in cases involving head-on or offset frontal motor vehicle collisions.  These can be classified as closed head injuries – meaning that there is no fracture or opening in the skull – but the brain tissue impacts the inside of the bony skull.  This can result in bleeding, tissue damage, intra-cranial pressure, fluid buildup and possible neurochemical changes.  There can also be penetrating brain injuries which involve open fractures of the skull.  Penetrating injuries tend to result in more tissue loss and therefore more severe TBI.

Brain injuries can also be caused by anoxia, meaning that a reduction in the amount of oxygen in the brain causes brain cells to die.  Loss of an airway post-surgery can result in an anoxic brain injury.  This type of injury is rare but can be devastating.  Anoxic blindness and loss of fine motor control can result.  Exposure to certain chemicals can cause a toxic brain injury when the chemical crosses the blood-brain barrier.

Over the past dozen years or so, a certain herd mentality seems to have evolved surrounding our use of the English language.  Dismayingly, the trend has been particularly pronounced among some who use language as a primary tool of their trade.

Political reporters fell in love with the word “gravitas” in the early 2000s, and for a while it seemed reporters couldn’t describe a politician without a reference to his/her gravitas or lack thereof.   Gravitas seemed mainly bestowed by the reporters themselves and directly proportional to the recipient’s number of appearances on their respective networks’ Sunday morning talk shows.  A few years later, the word “ultimately” and the phrase “in the final analysis” were universally discarded by these same reporters and replaced by “at the end of the day.”  Reports even on events occurring in early morning hours were scripted to include a brief summation, a summation invariably introduced by the obligatory “at the end of the day…”    More recently, we have been assaulted by repeated use of the word “withering.”  Thankfully, the reporters are unaware of all but two circumstances in which the word can be cogently used:  as a modifier of “attack” or “criticism.”  Every single report we see concerning a verbal attack by one politician upon another makes reference not to just an attack.  It has to be a withering attack.  And even the slightest criticism must always be withering criticism.  One could offer a million dollar reward, with zero risk of having to pay it, for recent footage of a reporter discussing criticism without calling it withering.  Reporters seem compelled to use these same descriptions repeatedly, until they have drained every ounce of freshness and originality from them…and still they use them, and continue to use them, until the newest fad word comes along.  One can’t help but wonder if the practice is somehow tied to their compensation.

Sports reporters have their own, seemingly proprietary, affectations:  the appropriately specific phrase “in this game” is apparently verboten.  Instead, we hear, “on the day,” as in, “Manning has thrown three touchdown passes on the day,” the meaning of which is now, due to incessant usage, widely understood by viewers, but it must have caused mass confusion the first few times it was heard.  Worse, no viewers will ever get to hear, “Georgia Tech needs to make this third down conversion.”    Rather, we must sit through, “If you are Georgia Tech, you really want to make this third down conversion.”  While such wordy nonsense might slightly lessen the frequency of momentary “dead air” broadcasts, the image of a single listener morphing into an entire sports team, even analogously, is difficult to conjure.  I ain’t Georgia Tech, you dumbass.  Nor is anyone else.

Recently, the Alabama Court of Appeals struck down a law that grants legal rights to grandparents who want to visit their grandchildren.  The law, known as the Alabama Grandparent Visitation Act, allows grandparents to go to court to seek visitation with grandchildren even if the parents don’t approve, and is an amended version of a previous law that was struck down as unconstitutional on similar grounds in 2011.

In the underlying Autauga County case, a grandmother went to court seeking visitation with two of her grandchildren despite objection by the children’s mother.   The Court ruled that the Grandparents Visitation Act is unconstitutional because it violates the rights of parents to direct the upbringing of their children.  The Court noted that the Constitution provides heightened protection against government interference with certain fundamental rights and liberty interests such as the rights of parents to control the care and custody of their children in all aspects of their lives, including visitation with grandparents.

The Alabama Supreme Court struck a similar law down in 2011in its decision in the case Ex parte E.R.G. v. D.W.G.  In that case the Court held that grandparents have no “inherent” rights to visitation with their grandchildren.  In order for a grandparent visitation law to be constitutional, it must recognize the fundamental presumption in favor of the rights of the parents. The Alabama Grandparent Visitation Act, the court noted, makes no mention of the fundamental right of parents. Instead, it instructs the court to determine if visitation by the grandparent is in the “best interests” of the child. According to the law, the wishes of any parent who is living are merely among a long list of factors the court should consider. The court finally stated that, because a fit parent’s decision is protected by the U.S. Constitution, the wishes of the parent are always superior, not just a factor to be given consideration, making Alabama Grandparents Visitation Law unconstitutional.

The recent arrests of two Montgomery men for human trafficking has brought more attention to a nationwide problem. Human trafficking is defined by The Trafficking Protocol as:

• […] the recruitment, transportation, transfer, harbouring or receipt of persons, by means of threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal, manipulation or implantation of organs;

• The consent of a victim of trafficking in persons to the intended exploitation set forth in sub-paragraph (a) of this article shall be irrelevant where any of the means set forth in subparagraph (a) have been used;