Question: How is negligence determined in personal injury cases?  

Does negligence have to be established in order to collect damages in any personal injury case?

Statutes and Black Letter Law: The statutory law states that everyone must stop at a stop sign. If you run the stop sign you are negligent.

Common Law: If you behave in such a way as to increase the risk of injury to another knowing injury is likely then you can be found to have been negligent.

Contract: General contractors agree by way of a written agreement (the contract) to supervise the construction site and to make sure every subcontractor is abiding by OSHA's rules and regulations. If the GC knows a sub is not following OSHA rules/regs or fails to monitor whether the subs are adhering to OSHA rules they can be found to be negligent.

Criminal Law: Criminal law says if I walk up and punch you in the nose I'm guilty of assault and battery. If I walk up to one guy but hit another due to my being too drunk to make a straight punch, then I'm probably negligent. That's a standard that can be applied to civil law to find you acted negligently.

Professional Standards: Professionals are held to a standard created and recognized by other professionals and the associations that govern their conduct.

These are not all the ways standards are found in the civil law, but it will give you some idea of how standards are determined to exist and therefore formulate the basis for determining negligent conduct. 

Follow this link to the Modern Family website.

When Good Kids Go Bad

See also this link. 

While some school districts are hot on the trail of the wrong suspect others are ignoring, allegedly due to federal regulations, drunk bus drivers. 

See Another school bus drunk driver case on Tuesday's post. It's what you call "bus"sted.

When the virtual world is not so virtuous

A student posted this comment on a social media site: “Who wants to shoot up the DMACC Ankeny campus the same time I shoot up the Urban campus?”

Twitter post results in DMACC student’s arrest, Tom Alex, Des Moines Register

You can almost guess what happened next. He was charged with first-degree harassment.

But this isn’t an isolated incident of social media being used as the basis for the filing of criminal charges. In this country, land of the free and home of the brave, words alone posted in a virtual world have become evidence of criminal activity in the real world. With the wide dissemination of information on social media sites, free speech isn’t so free any more. Freedom of expression doesn’t equate to freedom to say anything. Anything you say can and will be used against you in a court of law.

A lawyer I recently broached this subject with, described how in a criminal case the defendants already charged with one crime, used Facebook to organize intimidation of witnesses against them. To their chagrin the prosecutor knew how to use Facebook. What is it with people thinking that you can say anything online and somehow you have immunity from reason? Why do people believe they can say anything in the virtual world without being held responsible? Is it because somehow there is a disconnect between what is typed and posted but not spoken by the out loud? 

One of my clients has filed a complaint with Facebook to remove content describing physical injury, including death, wished upon her by an entire family that describes themselves as descent people. Is this short sighted, idiotic, acceptable free speech or criminal activity meant to intimidate another person? You be the judge. Are these decent people who are simply misguided in wanting to get even? Are they blind to the fact that if something bad were to happen to the virtual victim they then become the primary suspects? 

Get a clue folks.

Another lawyer describes how in a mediation conference the agreement for settlement is reached based on an agreement for confidentiality, only to be broadcasted immediately to her friends from under the conference table by the injured teenager. This is a clear violation of the terms of settlement that could result in nullification of the settlement agreement.

When Social Media Becomes a Royal Pain

Bottom Line: Get a clue – some things are not meant to be a part of social media.

Facebook Crimes on the Rise, Experts Warn. Samantha Murhpy, August 11, 2011

9 Most Bizarre Facebook Related Crimes, Oddee Post, August 10, 2011

Cyber Crime, Facebook

Before talking to the insurance adjuster or defense attorney or the case mismanager remember this from I Claudius, don't touch the figs.

The premise held by most clients is that this system of law is fair. They'll say they want only to be treated fairly. When representing themselves they make the assumption that when defense lawyers talk to you they will be fair. Well I'm here to tell you, you had better not trust in being treated fairly. I mean exactly that and it has nothing to do with whether or not the defense lawyer or the insurance company is dishonest. They don’t have to be “honest” and they aren’t trying to be “fair”. Fact is they are hoping you aren’t smart enough to ask the right questions so they don’t have to not answer you. You think I’m kidding? Hell no. I’m not and I can prove I’m right. Here let me prove it to you.

Defense work has nothing to do with treating people fairly. If it did you could come up with the name of at least one defense lawyer who has said in the past, "I don't think you're asking for enough, can I pay you more?" Or, "Did you know you're entitled under the law to be paid more for your damages?” Go ahead find me one insurance company representative that has said that in the entire history of insurance. Go ahead, think real hard; I can wait, go ahead and think harder.

Umnnn dee dum, dee-dum... Have you remembered one? No? I didn't think so. I've not heard anything like that in 30 years.

Updated: This is too funny. I had a link to an insurance company's YouTube ad and they actually took it down so I could not tag them with how deceptive it is. Can you believe it? Yeah that's what they do. They advertise when they need more money, lie to you the premium payer and then when we lawyers point it out they take down what they said to erase the lie. That's reality folks, that's the insurance industry. 

In other words the defense lawyer's job is to treat you in a way to take advantage of your ignorance of the law as well as your mistakes. Frankly because this isn't about fairness their job is to treat you unfairly. Ethically they can, do and must treat you unfairly as most people think about the idea of fairness.

Fairness dictates honestly and with openness and candor. But ethics require the lawyer to maintain confidences provided by the client. I as your lawyer have to be candid and open with my client and if you're my client I act ethically. But the insurance company's lawyer isn't your lawyer and you the injured person aren't his client. So candor isn't going to be happening between the two of you. That's not the hand of a friend reaching out to shake your hand; the handshake being a sign of friendship, but this one is not one from a friend. Never confuse friendliness with friendship. The two are not one and the same.

The defense attorney or the insurance company representatives are like the slithering snake that delivers the poison being slipped into the wine goblet from which the injured drink.  Now you understand the legal concept of "fairness".

This next story is about a cheerleader who suffered a head injury, then continued to suffer seizures and later underwent surgery to remove a part of her brain in hopes it would stop the seizures. Ultimately it is our responsibility to protect those we love.

Cheerleader Has Part of Brain Removed to Stop Seizures - AOL Health

Cheerleader Has Part of Brain Removed to Stop Seizures

By Catherine Donaldson-Evans Feb 25th 2011 11:45AM

I do cover cheerleader safety, because of the incidence of serious injuries and how the sports world encourages cheerleading, but then treats them like second class citizens when it comes to insurance coverage. This next story is about a cheerleader who suffered a head injury, then continued to suffer seizures and later underwent surgery to remove a part of her brain in hopes it would stop the seizures.

Cheerleader Has Part of Brain Removed to Stop Seizures - AOL Health

Cheerleader Has Part of Brain Removed to Stop Seizures

By Catherine Donaldson-Evans Feb 25th 2011 11:45AM

Writer's Note: I'm in depositions today, so this is a short post, but nevertheless and important one about cheerleader safety.

The Des Moines Register has a report about a lawsuit against a Fort Dodge hospital about a 7-year-old interpreting or signing to her deaf mother. Okay I too am rolling my eyes over this story. Apparently there was a medication mix-up involving an antibiotic. The story says, “Addison didn’t suffer any serious problems from the 2009 incident…”. Well that remains to be seen but if the Plaintiff can’t prove damages they have no reason to file the lawsuit. In every personal injury lawsuit there are four things you have to prove and one is obviously damages. If there aren’t any damages the case fails as a matter of law. I can already hear the complaints from the tort deformers’ claiming this one lawsuit is a reason to shut down the entire system. Trust me folks, if this case has no legs the judge or the jury will no-bill it. I see it’s in federal court – the eye roll gets more pronounced – which judge has this? And God help the Plaintiff’s attorney if the evidence is slim. You do not want to be in federal court unless you have a good case. The federal courts lack the kind of broad jurisdiction of the state court system.

In Odebolt, Iowa – a place I’ve never even heard of – the Des Moines Register reports a bus driver was charged after a 7-year-old girl who was dropped off got struck by the bus. The bus driver reportedly continued on with her route. It’s not clear if the writer is saying the bus driver that hit the girl called 911 and radioed the school district for aid before continuing on her route; although it appears that may be the case. I just can’t tell from the story details. Are they saying the girl was left there alone or what exactly are they saying?

A dispatch tape was released, like we really need to hear this, of a mother’s final pleas as she and her 2-year-old were consumed in a house fire. Wheatland, Iowa. This is another town I’ve never heard of. You know the key to home safety begins with operable smoke detectors and landlords of multifamily housing have a legal obligation to install them and to make sure they are working. Bad batteries can lead to legal liability by those injured or killed.

Iowa’s judicial workers got 6% more in their paychecks than the rest of us will be getting. And you wonder why most Governors would like to ditch organized labor for governmental workers? Get a clue people; the rest of us can barely afford to hire even a single person to help out in the office. Most law firms are eking out a living and have let most of their staff go. The judicial workers are getting 6% over two years. Does that mean 12%? Oh, I guess not: “The salary increase for the AFSCME members will be split over time: 2 percent on July 1, 2011, then 1 percent on Jan. 1, 2012, then another 2 percent on July 1, 2012, and another 1 percent on Jan. 1, 2013.”

There’s been a lawsuit filed between ISU and some ex-employees of the veterinary clinic. Issues seem to be squaring off over confidential information including customer lists and financial information. These are pretty typical issues in this kind of case. Non-compete clauses may also be at issue.

To commemorate the occasion let’s play Ashley Tisdale in “He Said She Said” and CopyCat by Lacrimosa. If the law is going to be anything it needs to be somewhat fun, if not in reality then in your mind. And this will end it for today. Have a good one.

Plain and simple this is a stupid attempt by female reporters to make a power grab for attention. Ask yourselves why Diane Sawyer doesn’t get “objectified”. It certainly isn't  because Diane Sawyer isn't attractive, she certainly is an attractive woman. Why is Diane Sawyer treated with respect? What’s the difference between the two female reporters? Frankly if you need me to explain it then you’re not very objective and have no business being a reporter.

Let's examine the facts: Sainz is an attractive young woman, she's standing around a bunch of testosterone hyped-up young male jocks after a game, prancing around in towels and jock straps; she’s doing it with a lot of cleavage showing, her blouse is twice as tight as it needs to be just so she can show off her breasts, she’s wearing a short skirt hiked up to look like a provocative piece of work in high heels and smiling the entire time they are throwing the football her way. Then she professes to not understand why anyone puts up with men acting like men. The Jets' players acted like men act; to castigate the Jets' players for acting like healthy young men is to deny nature. Did you all miss biology? Perhaps your mother’s kept you from 4^th grade sex ed. This is not a work place setting where interviews should be taking place. Lawyers don't take depositions in a bathroom.

IS THERE EVEN AN IMPORTANT ISSUE WORTH DISCUSSING?

If I were a reporter would I be given access to the women’s locker room at the US Tennis Open?  Would Steffi Graf or Serena Williams have whistled at the male reporters if they dressed as provocatively as this young woman did? And if Serena did would anyone care? No and why; because it's not important to the rest of the world trying to earn a living. This is just one more example of the media thinking the news is all about them and trying to inject themselves into the story.

WHAT WAS SO BAD ABOUT WHAT WENT ON?

What actually happened in the locker room? If I understand the fact from fiction several athletes after a game whistled at a female reporter who was standing in their locker room while they were showering and wanting to get dressed and get on with their lives. The reporter egged them on; she knows how to get their attention and did.

IS THIS JUST A POWER GRAB BY FEMALE REPORTERS?

How uninformed and naïve do you think the public is? Stop trying to make yourselves the news; she wanted all that attention and the hair spray media is giving her 1000 times more than she and this matter deserves.

She got her 15" of fame; let's move on to something that is actually news worthy and not a grown woman who is acting less than her age. I have to wonder if this immature and seemingly insecure female reporter isn't just trying to make a name for herself. If female reporters wants to be treated like professional journalists then they need to dress and act like professionals.

DO ETHICS EVEN EXTEND TO THE MEDIA FROM PROFESSIONAL ATHLETES?

And who says there are any ethical standards as to how athletes need to treat the media? Who elevated the media to royalty? You’re supposed to be professional journalists; act like one. Grow thicker skin and develop professional attitudes. And dress like professionals not journalists vying for TV stardom.

WHAT’S THE REAL PROBLEM?

The real problem is that reporters think the news is all about them. That’s why they dress like they do, have hairdressers, makeup people, wear lipstick, face paint, dye their hair, spray it down, spend thousands of dollars on wardrobes, ask for million dollar salaries, live lavish lifestyles, report from exotic locations and then try and tell wage earners how to eat on $10 a day. You’re not one of us so stop trying and for God’s sake stop making the news all about YOU.

The female reporters, who started this nonissue, need to get a grip along with a life that looks beyond their dressing room mirror. The news is not about you the reporter. As for the Jet players who acted like men, here is some advice: the next time she comes into the locker room either shun her or shove her in a locker and pound on the metal door.

And one more thing, I don't see a wedding ring on the left hand. Do you?

Related media coverage:

• Caught on Tape: Horses' Rampage at Parade Kills 1, Injures Others - Chicago Tribune
• July 4th Horse Stampede Saddens Iowa - Injury Board Blog Network: St. Cloud, MN

They will loudly proclaim that no one should sue! No way, no how; after all that would be un-American! Wouldn't it?

Well that’s exactly what I’m going to suggest. After all who considers going to a parade to get killed or maimed by a stampede of horses? Hell, no one does. To those who say horses do unexpected things I say, so what, who cares and what difference does it make that a horse acts without reason? The object that acted without control was entered into a parade and within a few feet of people sitting in lawn chairs. And, it was predictable.

Think this is the first time horses have stampeded the crowd at a parade?

Let’s have a parade of pit bulls and other vicious animals we consider part of the American culture. How about a herd of buffalo, wouldn’t they make a cool parade. One thousand stampeding buffalo trampling everything and everyone in sight along hometown America. Or how about sharpshooters with guns that can take out elephants traipsing along the parade route just in case an animal steps out of line; that would work.

You see it doesn’t matter what you and I think is American or un-American. When it’s you that gets trampled and then maimed or your spouse or child killed it’s all about doing what is right by them; and that is what an integral part of the American tapestry is.

Do otherwise and you might as well have your next parade in Red Square.

One killed, 23 injured after spooked horses trample crowd at Bellevue parade, July 4, 2010

UPDATE: One dies after horses' rampage at Iowa July 4 parade - A pair of runaway horses in harness crashed into a Fourth of July parade float and collapsed, ending a rampage that injured nearly two dozen people and killed one, people at the parade said Monday. July 5, 2010

Horses take off, injure 24 people at Bellevue parade - Two runaway horses raced along a Fourth of July parade route in a small Mississippi River town in eastern Iowa on Sunday, trampling children who were in the street picking up candy and injuring 24 people, police said.