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Our Birmingham truck accident lawyers recognize that many of these cases involve claims brought against the driver’s employer, usually for negligent training, negligent supervision, and violations of various standards set forth by the Federal Motor Carrier Safety Administration. trafficintovegas

These theories of liability ensure that trucking agencies will be held accountable when they hire drivers who aren’t qualified, don’t properly supervise them on the road, encourage overloaded vehicles, or push for drivers to work long, uninterrupted shifts to make delivery deadlines. All of these are often cited as contributing factors in tractor-trailer crashes.

Since we are dealing with the responsibilities of an employer, employment law sometimes intersects with injury law in these cases. Usually, in order for an employer to be held accountable for a trucker’s negligent actions, it must first be established that an employer-employee relationship existed. In some instances, this is a straightforward matter. However, larger firms routinely contract with various trucking agencies to provide delivery services, and this can complicate matters where the injury case is concerned.

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Usually, injury settlements end current and future litigation for the parties involved. However, the recent settlement reached with the NCAA over student athlete head injuries opens the door for more lawsuits to be filed. ouvtexas

Our  brain injury lawyers understand the $75 million agreement will allow money to be used by current and former athletes to receive medical testing and monitoring for suspected head injuries. Those who suffered head trauma as a result of participation in sports will have the opportunity to file their own individual lawsuits. Of the settlement amount, $5 million will be dedicated to head injury research.

The settlement was reached in the class action of In Re: National Collegiate Athletic Association Student-Athlete Concussion Litigation in the U.S. District Court for the Northern District of Illinois, Eastern Division. It also requires the NCAA to instruct schools to make changes to athletic program policies, specifically by implementing guidelines on “return-to-play” for athletes who have suffered a blow to the head.

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As with almost all liability insurance policies, auto insurance policies contain provisions that limit liability. This provides a maximum amount that can be provided in case of a single “accident” or “occurrence.” carthief

Some of these policies indicate a per-person cap on damages awarded for bodily injury resulting from “each occurrence.” This seems like a fairly straightforward concept. However, our Tuscaloosa car accident attorneys recognize there are circumstances, particularly when multiple plaintiffs or vehicles are involved, where it can be claimed the injuries arose out of multiple occurrences. This is true even when the primary catalyst for a multi-vehicle crash was the negligence of a single driver. That may have been the “trigger,” but subsequent wrecks could potentially be considered separate “occurrences” for insurance purposes.

Typically, the question of whether there have been multiple occurrences is a matter of law, to be decided by the court in advance of a trial. In most cases, the determination of the number of occurrences involves the court weighing whether there was repeated or continuous exposure to certain conditions.

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In most medical malpractice actions, expert testimony is essential for the plaintiff as a precursor to submission of a claim to a jury for determination on the merits. Absent the testimony of an expert witness on behalf of the plaintiff, most judges won’t allow the medical malpractice case to move forward. stethascope

Tuscaloosa medical malpractice lawyers recognize one major exception:  the common knowledge challenge. This rule holds that even though there is a general prerequisite for expert testimony to establish the standard of care and its breach in malpractice cases, this kind of expert testimony isn’t required when the subject of the substandard conduct is within the common knowledge of persons who aren’t medically trained. In other words, it’s fully comprehensible to ordinary, non-medical members of the public.

An example might be a dentist who takes out the wrong tooth or a surgeon who accidentally leaves an instrument inside a patient’s body. These cases would be relatively straightforward. Still, the expression “common knowledge” makes the whole process sound less challenging than is the reality. Expert medical witnesses are costly, and it can sometimes be difficult to find one who is both qualified and willing. It’s important not to spend time and money at the early stages if it isn’t necessary. However, there is a general lack of consensus among courts as to what qualifies as “common knowledge,” leaving the interpretation sometimes open, and varying from judge to judge or court to court.

One Tennessee appellate court judge was quoted in 1978 as saying the common knowledge exception is applicable when medical negligence is “as plain as a fly floating in a bowl of buttermilk.” This is indicative of a lack of meaningful guidance from courts on this matter, and plaintiffs whose attorneys incorrectly decide the exception applies face an adverse summary judgment in the favor of the defendants, meaning the client might never get his or her day in court.

More recently, the South Carolina Supreme Court weighed such an exception claim in the case of Brouwer v. Sisters of Charity Providence. Here, the court sided with a plaintiff in finding she had successfully invoked the common knowledge exception, as recognized in that state, and therefore was not required to file an expert witness affidavit in her notice of intent to file a lawsuit.

According to court records, the plaintiff was admitted to the hospital for a procedure used to treat sleep apnea. During the surgery, the plaintiff suffered a severe allergic reaction that required she be transferred to the Intensive Care Unit. The plaintiff attributed her reaction to a latex allergy. Although she had disclosed to medical personnel on several admission forms that she suffered from this allergy and was even given a wrist band identifying it, several medical personnel used latex gloves when performing the procedure.

Thankfully, she survived.

In filing her notice of intent to file suit, she indicated it was her good-faith belief that the allergic reaction to latex is within the bounds of common knowledge and experience, and therefore no expert medical testimony was required as a foundation for her claim.

Defendants moved to dismiss the claim for failure to include the affidavit of an expert witness. The trial court granted the motion to dismiss. The case was appealed to the appellate court, which then certified it to the state supreme court, which reversed the dismissal. Although the plaintiff failed to specifically invoke the common-law exception when filling her claim, that doesn’t mean her claim didn’t fall within those bounds.  That doesn’t mean that at some point the plaintiffs won’t need to secure an expert witness for trial. However, lack of one at the early stages won’t end the case.

This is a decision that must be made carefully on a case-by-case basis. It’s important to make sure whichever law firm you choose is experienced in handling these types of cases.

Additional Resources:

Brouwer v. Sisters of Charity Providence, Aug. 6, 2014, South Carolina Supreme Court

The Common Knowledge Exception to the Expert Testimony Requirement for Establishing the Standard of Care in Medical Malpractice, Nov. 27, 2007, By Joseph H. King, University of Alabama Law School, Alabama Law Review

More Blog Entries:

Kelly v. Haralampopoulos – Exception to Hearsay Rule in Medical Malpractice Claim, June 23, 2014, Tuscaloosa Medical Malpractice Lawyer Blog

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One of the worst parts about the disease of Alzheimer’s is that it transforms the sufferer into a shell of his or her former self. Behaviors in which they might never have engaged previously now become commonplace as a side effect of the disease. Unfortunately, one of the most commonly-cited behaviors among patients is aggression. seniorwoman

Stemming often from fear, confusion, or an unexpected change in routine, Alzheimer’s and other dementia patients have been known to lash out by kicking, biting, scratching, hitting, punching, and flailing. What the California Supreme Court recently ruled in its 5-2 decision in Gregory v. Cott was that in-home caregivers who agree to provide care for these individuals are not entitled to sue them, their loved ones, or their estate for injuries inflicted by a patient.

The reasoning was that those hired specifically to assist these disabled persons can’t sue when they encounter a hazardous condition they are paid to confront. (The same reasoning had already been applied to nursing home staffers encountering such conditions.)

However, our Birmingham nursing home abuse lawyers know that, by this logic, a patient in a nursing home setting should expect to be protected against other patients who display aggression. This is because, unlike dementia sufferers, nursing home administrators are fully aware and cognizant of the risk posed by certain patients. They also, armed with this knowledge, have a duty to protect patients from potential harm.

That means facilities have a duty to recognize and address aggressive behaviors in residents. That could mean hiring additional staffers to keep a watchful eye on aggressors and potential victims. It could mean adjusting therapies and medications for aggressors. It could also in extreme situations warrant a discharge of patients deemed a threat to others. The latter may be an option of last resort, but vulnerable patients should not be subjected to the risk of abuse for any reason, and the facility in charge of assuring the safety of its wards needs to do what is necessary to achieve this goal.

However, the duty of care element is different when the situation is reversed, and that’s what the Gregory case was all about. Here, the court held a patient with dementia can’t be held liable for actions arising from that condition.

According to court records, the plaintiff was contracted in 2005 to help an 85-year-old man provide care to his ailing wife, who suffered from Alzheimer’s disease. She continued to live in their marital home, and the home health care provider was contracted to supervise, bathe, dress, and transport the patient, as well as do light housekeeping as needed. Having previously worked with Alzheimer’s patients, she knew they could potentially be violent. Prior to taking this assignment, she was informed by the husband that the wife sometimes bit, kicked, scratched, and flailed.

One fall afternoon, the worker was washing dishes at the sink. The husband was not home, and the wife was seated at the kitchen table. Suddenly, while the worker was washing a large knife, the wife approached from behind, bumped into her and began reaching toward the sink for the knife. In attempting to restrain the wife, the worker cut her wrist. As a result, she lost feeling in the wrist and suffered from loss of feeling and recurring pain.

The courts held she was not entitled to losses for negligence or premises liability from the husband.

The worker did, however, secure workers’ compensation for her injuries. In these instances, it seems that remedy may be the only one available for workers.

To determine the parameters of possible liability in your case, it’s important to first consult with an experienced injury lawyer.

Additional Resources:

Gregory v. Cott , Aug. 4, 2014, California Supreme Court

More Blog Entries:

Avoid Alabama Nursing Home Arbitration Agreements, March 18, 2014, Birmingham Nursing Home Abuse Lawyer Blog

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A case of alleged nursing home neglect may proceed to trial after the Wyoming Supreme Court determined that, although the claim failed to meet technical statutory and constitutional requirements, the defendant did not adequately raise such deficiencies.brokenglasses

Our Tuscaloosa nursing home neglect attorneys understand this was essentially a case where a technical failing on the plaintiff’s part was negated by a technical failing by the defendant. Given that many for-profit nursing homes have deep pockets and can afford a top-notch defense, most plaintiffs can’t afford to make such errors. This is why it’s imperative to take your case to a lawyer with extensive experience and proven success.

The case of Harmon v. Star Valley Med. Ctr. began as many instances of litigation surrounding Alabama nursing home neglect do:  with a fall. The Centers for Disease Control and Prevention have found that the average 100-bed nursing home in the U.S. reports between 100 and 200 falls every year. Unfortunately, the vast majority of falls go unreported, and far too many patients lack the capacity to report on what has happened to them.

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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.

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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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