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A large portion of Alabama residents pride themselves on being owners of firearms. Assuming they are not felons and lack a substance abuse or mental health issue, that is their Constitutional right.OLYMPUS DIGITAL CAMERA

However, it’s no secret guns can be incredibly dangerous. In some cases, they are manufactured in a way that makes them unreasonably dangerous. Our Birmingham dangerous products lawyers recognize that it’s not enough to prove someone was seriously injured or even killed with a firearm.

In a case alleging product liability involving a gun, one must be able to prove that the weapon was unreasonably dangerous when used appropriately. Alabama law requires that products be fit for the ordinary purpose for which such goods are used. However, there have been some cases in which “ordinary purposes” have been shown to mean not only the use intended by the manufacturer or seller, but those uses that are reasonably foreseeable.

It was this argument that was presented in the case of Avery v. Cobra Enterprises of Utah, Inc., wherein the plaintiff alleged the defendant manufacturer should have anticipated that a carrier of this certain type of weapon (a derringer) might need to fire the gun so quickly that a pause to disengage the two safety features would destroy the defensive advantage.

In weighing this claim of injury caused by the weapon with a request for a summary judgment for the manufacturer, the U.S. District Court for the Northern District of Alabama Southern Division dismissed most claims, but did allow the plaintiff’s breach of implied warranty claim and his wife’s loss of consortium claim to continue.

According to court records in the case, the plaintiff’s son purchased the weapon for him as a means to retain a concealable firearm for protection. That was back in 2004, and the plaintiff carried the weapon with him daily for protection. He did not keep the safety engaged.

On the day of the incident, the plaintiff was running errands with the loaded weapon in his pocket, the safety disengaged as always. After completing his errands, he put all his bags in the vehicle and put the gun in the console. He dropped the gun, and it discharged, shooting him in the abdomen.

This was an individual who had received formal firearm training in the U.S. Navy and had experience with firearms since the age of 6. He indicated he kept the safety disengaged because, as the weapon was required for protection, he wanted to be able to pull it out and fire quickly, if necessary.

This was central to his argument against the manufacturer, which moved for a summary judgment. The court denied this request, finding it had not proven there was no evidence of a breach of implied warranty.

In order to prove such a claim, a plaintiff has to show that there was an implied warranty, that the warranty was breached and that damages proximately resulted from that breach.

The court noted that it could be an “uphill battle” for the plaintiff to prove that a reasonable expectation exists that a gun with the safety disengaged should be safe for users who may need to use it for a hair-trigger response. However, the court found that was a matter of fact for the jury, not a matter of law for the court.

More commonly, homeowners who negligently store firearms may face a premises liability action when a visitor or guest (typically a child) is injured or killed as a result of accidental shooting.

Additional Resources:

Avery v. Cobra Enterprises of Utah, Inc., May 23, 2013, U.S. District Court of the Northern District of Alabama, Southern Division

More Blog Entries:

Fatal Truck Crash Reportedly Caused by Fatigued Driver, June 10, 2014, Birmingham Dangerous Products Lawyer Blog

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The Alabama Court of Appeals has reversed a trial court verdict in favor of a shopper who brought a premises liability claim against a retailer after suffering injuries when struck in the face by a mounted metal bracket.shoppingcarts

Tuscaloosa premises liability lawyers understand the court determined the only way the plaintiff in Burlington Coat Factory of Alabama LLC v. Butler might have proven her case would have been based on the doctrine of res ipsa loquitur, which was not asserted and was likely not applicable. The phrase is Latin for “the thing speaks for itself.” In legal cases, it is the theory that one can be negligent if he had exclusive control over whatever caused the injury, even when there is no specific act of negligence alleged.

Instead, the plaintiff in this case had asserted theories of negligence or wantonness. While the trial court dismissed the wantonness claim at the conclusion of the trial as a matter of law, she was awarded $26,000 in damages for her negligence claim. The appellate court reversed, agreeing with the defendant that there was not enough evidence to show that the product was dangerous or defective or that employees on site had been negligent in their installations or inspections of the device.

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For years, courts in Alabama held that workers who suffer a job-related injury may not collect compensation for attendant care by family members if it does not serve to improve the disabled employee’s condition. When it serves only to prescribe the facility of independent functioning, the courts held it’s generally not covered, unless it serves to prevent the deterioration of one’s condition. businesshandshake

That changed in 2008 with the decision in Ex parte Mitchell, when the Alabama Supreme Court held this was too restrictive and not in line with legislative intent. Therefore, care that serves to prevent deterioration and preserve function is also covered.

Our Birmingham work injury lawyers understand this was what was at issue before the Alabama Court of Civil Appeals in the case of Alabama Forest Products Industry Workers’ Compensation Self-Insurer’s Fund v. Harris, an appeal that arose from the Marengo Circuit Court.

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A woman slipped and fell inside a bar and sustained serious injuries. The bar was found liable and ordered to compensate her $500,000, plus $112,000 in prejudgment interest.
decoration.jpgHowever, the company’s liability insurance maxed out at $500,000 per person per incident. How could the plaintiff collect?

Tuscaloosa slip-and-fall lawyers note that in Graf v. Hospitality Mut. Ins. Co. she sought a writ of attachment on the bar’s liquor license in order to secure the excess judgment.

A writ of attachment is a court order to “attach” or seize an asset. A prejudgment writ of attachment can be used prior to the conclusion of a case, while the outcome is pending, to freeze assets and ensure compensation will be available to the plaintiff in the event he or she is awarded damages.

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In Alabama medical malpractice cases, there are strict rules governing what type of evidence the jury will be allowed to weigh. bloodpressure

Generally, hearsay – or out-of-court statements or statements otherwise not of one’s direct knowledge – is barred, unless the statements fall under one of the noted exceptions as explained under Federal Rules of Evidence Rule 803.

Birmingham medical malpractice lawyers know that statements made for the purposes of medical diagnosis or treatment may fall into this exception. The 1987 Alabama Supreme Court ruling in Seaboard System RR, Inc. v. Keen established that such statements would be admissible – but only if made to a physician. However, Rule 803(4) expands this definition, and allows hearsay exceptions to be made to include all statements given for the purposes of medical diagnosis or treatment and/or to describe medical history or past or present symptoms or other details reasonably pertinent to treatment or diagnosis.

The recent case of Kelly v. Haralampopoulos is a good example of how defendants in medical malpractice cases will use this exception. This was a case reviewed by the Colorado Supreme Court, though the same federal rule of evidence applies.

According to court documents, a man rushed to the emergency room for treatment of severe abdominal pain. During intake, he denied drug use. Doctors ordered a CT scan, which revealed the presence of a large cyst on his liver. In order to determine whether the cyst was cancerous, the doctor ordered a biopsy.

During the procedure, performed by the defendant, the man went into respiratory and cardiac arrest. For 30 minutes, the medical staff struggled to revive the man. After that time, they were able to revive his heart, but the lack of oxygen during the ordeal left him in a vegetative state, from which doctors said he would not recover.

About two weeks later, the man’s friends and family met with doctors to talk about why the man’s body reacted so poorly to resuscitation efforts.

After that meeting, the patient’s ex-girlfriend approached the doctor to ask whether the patient’s prior use of cocaine could have been the cause of the negative reaction. The doctor indicated it might have contributed, but he could not say for sure because he was not a cardiologist.

The patient’s guardian filed a lawsuit against seven physicians for medical malpractice. The plaintiff filed a motion to bar the ex-girlfriend’s statement to the doctor as inadmissible hearsay not covered by exception. In citing Rule 803(4), the plaintiff indicated the statement was not made for the purposes of diagnosis and treatment. There was no “treatment,” the plaintiff argued, because the man was already in a vegetative state. Thus, the testimony regarding cocaine use was irrelevant.

The trial court denied this motion, finding the statement did constitute one made in the course of medical diagnosis and treatment. The appellate court reversed, reasoning that the statements were made after the patient was in a vegetative state. Treatment was no longer possible, and there was no diagnosis pending. Further, the court indicated even if the statements were admissible, their probative value didn’t outweigh the danger of unfair prejudice to the plaintiff.

However, the Colorado Supreme Court reversed, siding with the trial court. Specifically, the court indicated the term “diagnosis” doesn’t necessarily mean there will be subsequent treatment. In seeking to discover the cause of the patient’s reaction to treatment, the conversation did fall under the hearsay exception.

So the case will proceed. To what extent the patient’s previous cocaine use impacted his outcome will become a factor for the court to weigh.

Additional Resources:

Kelly v. Haralampopoulos , June 16, 2014, Colorado Supreme Court

More Blog Entries:

Laurel v. Prince – Physical Injuries Necessary in Alabama Medical Malpractice Claim, April 15, 2014, Birmingham Medical Malpractice Lawyer Blog

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A bicyclist who suffered a fall and injury from her bicycle due to an allegedly defective university sidewalk sued the city for failure to maintain its roads. In later proceedings, the city sought to bring in the state as a third-party defendant to share the liability. bicyclist1

In Madden v. City of Iowa City, the Iowa Supreme Court affirmed the trial court’s denial of the state’s motion to dismiss the cross-claim, finding a city ordinance could establish duty on the part of the state, and the claim of contribution of liability was not excluded under the state’s tort claims act.

Tuscaloosa bicycle accident attorneys recognize the relevance of this case to those who typically commute on bicycles at The University of Alabama. Previous case law in Alabama supports the idea that municipalities and state governments can be held accountable for injuries sustained by negligent maintenance of public roadways.

In personal injury cases, it’s critical to understand the full scope of potential liability. While this was an Iowa case, the state supreme court cited several out-of-jurisdiction decisions in reaching its conclusion.

According to the complaint, a woman was riding her bicycle on a sidewalk that abutted the grounds of a state-funded university. She lost control of the bicycle, crashed to the ground and sustained injuries.

She filed a lawsuit against the city asserting the city had control over the sidewalk, which contained a defect that caused the crash. She alleged the city was negligent in failing to prevent or fix the defect and also in failing to warn of the defect and otherwise not using reasonable care in the maintenance of the sidewalk.

The city moved to bring the state in as a third-party defendant, based on the fact that the school was publicly-funded, and an ordinance in city code required abutting property owners to maintain sidewalks in safe condition. This statute was backed by a state law that allows such ordinances, requiring property owners to maintain property outside the property line and inside the curb line.

In affirming the trial court’s decision to allow the city to be joined as a third-party defendant, the state supreme court cited Del Rio v. City of Hialeah, a 2005 Florida case which found the owner of abutting property, when contributing to or causing the dangerous condition on the sidewalk that is the proximate cause of a pedestrian injury, can be held liable. Liability may also be imposed when the sidewalk was constructed in such a way as to benefit the abutting land owner (citing the 1999 decision of Peretich v. City of New York).

Additionally, the court found the ordinance was sufficient grounds on which to establish the state’s liability.

Here in Alabama, in the 1975 case of City of Birmingham v. Brasher,the Alabama Supreme Court affirmed a trial court’s decision awarding damages to a pedestrian who was injured while walking along a sidewalk in a public park. She alleged negligent maintenance that resulted in her falling when she stubbed her foot on a raised portion of the concrete walkway. These conditions had existed for a long period of time, and had been the source of previous complaints from others who had stumbled and fallen. Evidence was presented that the city’s legal and engineering departments had been made aware of the defect, yet took no steps to improve or repair it.

Although that case did not deal with a third-party defendant issue, as in the Madden case, it underscores the fact that pedestrians and bicyclists do have remedies when injuries are caused by defective roadways and walkways.

Additional Resources:

Madden v. City of Iowa City, June 13, 2014, Iowa Supreme Court

More Blog Entries:

Report: Southern Pedestrians at High Risk – Birmingham Ranks 6th, June 8, 2014, Tuscaloosa Personal Injury Lawyer Blog


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A truck driver’s lack of sleep is blamed for a crash that critically injured comedian Tracy Morgan and killed another comedian in New Jersey. Authorities say the 35-year-old Georgia driver hadn’t slept for 24 hours before the crash, which occurred when he failed to stop for slowed traffic on the highway.
Federal law limits driving to 11 hours in a 14-hour period, followed by 10 hours of rest, although the driver’s employer, Wal-Mart, insists he was operating within those guidelines.

The truck was equipped with safety systems designed to slow the rig’s speed and notify the driver of stopped traffic ahead, but it’s unclear whether the technology was activated or that the system was operational at the time of the crash.

Birmingham truck accident attorneys recognize that while this case is under investigation, truck driver fatigue continues to be a serious ongoing problem throughout the country despite recent legislation.

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In Alabama, it’s estimated more than one in four drivers lacks auto insurance. Even among those who do carry insurance, about 55 percent have policies that only cover the bare minimum, which is $25,000 per person and $50,000 per crash.
This usually is not enough.

Medical bills for serious injuries could easily top six figures. This makes uninsured or underinsured motorist coverage practically a necessity in this state. By having one of these policies, you ensure you are covered in case the at-fault party didn’t have insurance or didn’t have enough insurance to cover the damages incurred. Coverage also extends to you as a passenger.

However, car accident lawyers in Tuscaloosa recognize that even those with coverage may find themselves in court, fighting to get the insurer to pay.

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Researchers at Smart Growth America recently analyzed the safety of pedestrians nationwide, finding that not only is the problem worsening, but it’s especially bad in the South.

In particular, the Dangerous by Design 2014 report found the Birmingham-Hoover metro area to be the sixth-most dangerous place for walkers in the country.
Study authors calculated the ranks by determining the average number of pedestrians versus the number of those killed on the streets and sidewalks. This gave them what they called the “pedestrian danger index,” or PDI.

Birmingham-Hoover tallied 148 pedestrian deaths between 2003 and 2012, resulting in a PDI of 125.6. Compare this to Houston, Texas, which had a total of 1,034 pedestrian fatalities during those years, yet ranked No. 7 with a PDI of 119.64. Rounding out the top 10, all but one of those cities (Phoenix, Arizona) was in the southeastern part of the U.S. Birmingham injury lawyers recognize these areas grew rapidly as post-war suburbia brought roads to rural areas. That meant wide streets and fast speed limits, primarily catering to motor vehicles. Pedestrians were an afterthought, if they were a thought at all.

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Every day, hundreds of thousands of large trucks traverse state lines to deliver cargo. When one of these vehicle is involved in a crash, it can raise a host of jurisdictional questions. The trucker could be from one state and the trucking company from another, while the accident occurred in a third state. There are even cases that are further complicated when an injured party is from yet another state.
Tuscaloosa truck accident attorneys recognize that sorting through these jurisdictional issues is important not only for the purposes of deciding which court should hear them, as we recently discussed in the Alabama Supreme Court decision in Cruz v. J&W Enterprises, LLC. The question of jurisdiction can also have a great bearing on insurance issues.

Basically, each state has differing requirements on what kinds of insurance must be carried and paid out and by whom.

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