Under Alabama law, an individual  who operates a vehicle is not liable for injuries or damages sustained by a non-paying passenger within the vehicle unless the injured passenger can show that his or her damage resulted from willful or wanton conduct on the part of the driver. Alabama Code Section 32-1-2.  Although this law can be beneficial for some drivers, it can leave injured passengers without any recourse for recouping losses received due to the negligent actions of drivers.  For this reason, most states have abandoned these types of “guest” or “passenger” statutes.

The Alabama Guest Statute was passed in 1935. The law provides that the guest must be transported without payment in order for the statute to apply.  Therefore, if the evidence shows that the driver received any payment or other benefit (such as an Uber, cab or bus driver would), then the driver would not be shielded from liability under the Guest Statute. Additionally, if the injured passenger can show that the driver’s improper conduct was willful or wanton, the Guest Statute does not bar recovery.  Generally, “willful or wanton” is improper conduct that is greater than “mere negligence”.  Examples include drinking and driving, excessive speeding and other types of reckless driving.

The Guest Statute does not apply to a claim for negligent entrustment or supervision.  Therefore, in situations where the driver of the vehicle was entrusted the vehicle by another person or entity, an injured passenger may still have a valid claim against the owner of the vehicle in certain circumstances.  Additionally, an injured passenger may be able to recover damages under the Uninsured Motorist Statute where coverage is available.

workplace-150x150Last week’s blog addressed the increase in work place injuries.  While worker’s compensation is generally the exclusive recovery source from the employer, there are other potential sources of recovery. Below are some common scenarios from work place injuries that may result in your ability to recover for your injuries:

Motor Vehicle Accidents/Car Wrecks:

A very common type of third-party claim arising from a workers’ compensation action is when someone gets into a motor vehicle accident or car wreck while driving for work.  Many people drive as part of their jobs: truck drivers, package delivery personnel, sales people who make on-site client visits, construction workers who haul materials, home health workers, even lawyers who have to drive to and from court.

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In 2015, 4,836 workers were killed on the job in the United States.  That means, on average, 13 workers die because of injuries on the job every day in the United States.  This is more than the numbers were in 2013 and 2014.  Further, an estimated 50,000 died from occupational diseases.  This means that, in effect, 150 workers die each and every day from hazardous working conditions.

Older workers are at a greater risk. Thirty-five percent of all fatalities occurred in workers age 55 or older, and workers 65 or older have three times the risk of dying on the job as younger workers.

Temporary workers are at an even higher risk of injury.  Temporary workers often receive insufficient training or are inexperienced with how to protect themselves on the job site, but don’t want to complain about the lack of training for fear of losing their job. Temporary workers tend to be younger, less educated and disproportionately consist of minority workers, many of whom might be immigrant workers, according to researchers with the University of Massachusetts.  At the same time, temporary workers are employed in some of the country’s most hazardous jobs, including waste recycling, fish processing and construction.

heastone-150x150Lawsuits involving the death of a person in Alabama are generally governed by the Alabama Wrongful Death Statute.  Alabama handles lawsuits regarding a death in a unique way.  This article will address what is unique about Alabama’s wrongful death statute and the importance of hiring an experienced wrongful death attorney.

When someone is killed in a motor vehicle accident, or dies using a product like an ATV, or otherwise dies because of the fault of someone else, the civil case will be governed by the Alabama Wrongful Death Statute.  In Alabama, a personal representative of the deceased person’s estate is appointed by the probate court and is entitled to pursue the claim on behalf of the deceased person’s estate.  Unlike many other states, any recovery made for a wrongful death in Alabama does not actually pass through the estate of the deceased person.  If a person has a will, the will does not determine who gets the proceeds of any recovery of the wrongful death case.  If the person’s estate owes money to creditors, the creditors are not allowed to recover any of the money won in the wrongful death case.  Instead, recovery from the wrongful death case is governed by the laws of intestacy in Alabama that govern how a person’s estate would be distributed if they did not have a will.  The typical order of preference under the intestacy statue is for proceeds to go to a spouse, to children, to parents, and then to other relatives in order of relation.  There are special rules, for instance, when someone dies with a spouse and children that are not from that spouse.

Alabama’s wrongful death statute is also unique in the kind of damages that are awarded.  In most states, a person’s lost income they would make in life had they not died comes in as damages.  In this way, different lives are valued differently.  Alabama does not even allow for such damages to be considered.  Alabama takes the view that all life is sacred and of equal worth.  Thus, the only damages that are awarded are punitive damages.  Punitive damages are damages that are designed to punish the party who caused the death for their conduct and to serve as a deterrent to others from engaging in conduct that may lead to someone else’s death.  Alabama treats all lives equally, and so the focus in an Alabama wrongful death case is on the conduct of the defendant rather than how much earning potential was lost when the person died.

a-hand-holding-and-aiming-a-pistol-150x150Some politicians, and some gun manufacturers, think that there is complete immunity for such manufacturers for negligent or wrongful behavior, no matter the circumstances.  Here’s why:  in 2005 Congress enacted the Protection of Lawful Commerce in Arms Act (PLCAA).  This statute does give the gun industry broad immunity.  But it is not absolute.

The PLCAA has a few exceptions that can be used to find gun manufacturers liable.  If a manufacturer or seller knowingly falsifies federal or state records, sells a gun to someone who is prohibited from owning a gun or manufacturers a gun with a design defect that results in injury or death, there can be civil liability.

The issue of civil liability for gun sellers and manufacturers has become very controversial because of the power of the gun lobby and the efforts of the gun control lobby to stem the proliferation of assault weapons.  The tragedy of mass shootings and the rise of terrorist activity have also heightened this controversy.  Some efforts have been made to circumvent the reach of the PLCAA by using causes of action that may not be in violation of its provisions.  For example, following the horrible tragedy of the mass shooting at Newtown, Connecticut some families filed suit based on the cause of action for negligent entrustment.  The Trial Court dismissed the case and it is now before the Supreme Court of Connecticut.

“Vaping”, or the use of e-cigarettes, is viewed by many as a healthier – or perhaps less-damaging – alternative to smoking.  E-cigarettes utilize battery power to vaporize a liquid containing nicotine that the consumer then inhales. Although vaping is marketed as a safe alternative to traditional cigarettes, the use of e-cigarettes appears to carry numerous risks, prompting a wave of litigation.

Typically, cases involving e-cigarettes fall into one of the following three categories:

  1. Consumer Fraud, Unfair Competition and False Advertising – Consumers allege that the companies marketing and manufacturing e-cigarettes have made false claims that their products have health benefits or are a safe alternative to smoking, despite evidence that e-cigarettes contain carcinogens and other chemicals.

credit-report-002-1The Consumer Financial Protection Bureau (CFPB) announced a settlement with TransUnion and Equifax last week for their violations of the Dodd-Frank Wall Street Reform and Consumer Financial Protection Act. TransUnion and Equifax are 2 of the 3 largest consumer reporting agencies in the country.

The CFPB charged TransUnion and Equifax with violating the law by:

  • Selling worthless credit scores: TransUnion and Equifax told consumers that the credit scores they marketed and provided to them were the scores used by lenders to make credit decisions. The CFPB found that the scores sold by TransUnion and Equifax were not normally used by lenders to make credit decisions.

Trial lawyers are often on the lookout for dangerous products.  We are up to date on the latest recalls and companies that have a reputation for making questionable products.  When shopping for our families, we often look for the presence or lack of certain safety features that others would not because we have spent years dealing with the damage and trauma dangerous products can cause a family.

Common household items can often pose unknown hazards.  Button batteries, commonly used in automobile key fobs, watches, and many toys, have become a recent hazard for small children.  Over a 14 year period ending in 2010, approximately 40,000 ER visits resulted from children ingesting batteries, and over half of these cases involved these button batteries.  Button batteries pose several serious health issues for children that have resulted in severe injury and death.  Choking is a major concern that can happen immediately.  Chemical burns to internal organs can also result is serious health issues and can be difficult to diagnose because symptoms often do not appear until days after a child has ingested a battery.

battery-e1483564735814Many toy makers now require a screwdriver to enter the battery compartment of their toys.  While annoying to parents, this is a protection against small children ingesting batteries that is useful.  Some makers of these batteries have ignored the problem, some have begun to warn against the problem, and others have begun to take action to protect children from these now-known dangers.  For instance, a recent trip to the drug store revealed a company with a two-fold approach to preventing children from swallowing these button batteries.  They place a warning directly on the battery to let parents know of the danger.  They also seal the packaging for the batteries so that scissors are needed to open them.  This is the proactive approach to preventing a known harm that some companies are taking to protect the public.  Unfortunately, it can often take years of knowing about a problem and many lawsuits before some companies finally come around to preventing such accidents.  For some companies, customer safety is important enough.  For others, the threat of money damages from their product harming the public is what is needed to improve product safety.

It has recently come to light that many passenger cars have an apparent defect that can cause serious injury or death.  In a rear end collision, the front seat backs can collapse, thrusting the seat back and the occupant of that seat violently into the back seat.  This is very dangerous for the occupant of that seat, but it is even more dangerous for a passenger in the back seat who is located directly behind the failing seat back.  And if that occupant is a child the results can be tragic.

All parents, grandparents, aunts and uncles know that the safest place for a child to be placed in a car is in the back seat and in an approved car seat or booster seat if necessary.  But when the seat back in front of the child collapses backward the resulting injuries can be devastating and permanent.  A Texas jury recently returned a verdict of more than $124.5 million against automaker Audi because the failure of its seat back caused permanent brain damage and paralysis to a seven year old passenger in the back seat.  Subsequently, CBS news did an investigation into this problem.  Their findings are shocking.  The National Highway Traffic Safety Administration (NHTSA) promulgates safety standards for passenger cars.  Its seatback standard has not been updated since 1967.  When automakers are criticized for manufacturing flimsy and defective seat backs they proudly say that their seat backs meet or exceed the NHTSA standard.  Therefore, they say, their seat backs are not defective.  The jury in Texas disagreed.

Car makers and NHTSA have known about the danger and potential for seat back failure for many years.  Over one hundred people have been injured because of this failure.  Most of them were children.  Almost twenty people have died because of this defect.  Many of these defective seatbacks are incredibly flimsy.  They have been likened to a banquet chair.  Incredibly, even a banquet chair would apparently meet the NHTSA safety standard.  Testimony in a previous case from an automotive engineer indicates that the cost to fix this problem would be about one dollar per seat.

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In one of my favorite Holiday movies, “A Christmas Story” the main character Ralphie is a young boy who has his heart set on a “Red Ryder carbine action two-hundred shot range model air rifle.”  But, whenever he brings it up he is told “You’ll shoot your eye out!” Unfortunately in many cases, the dangers presented by toys are not so obvious as Ralphie’s BB gun.

The World Against Toys Causing Harm, Inc. (W.A.T.C.H.) has published its “Worst Toy” List for 2016, and some of the items are surprising.

Toy #1 is “Peppa Pig’s Muddy Puddles Family”.  Although some packages contain choking hazard warnings and “age 3+” recommendation, other packages are sold for children as young as two and up with no warnings about toy-related hazards.

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