Question:

1. A duty.

2. A breach of the duty.

3. Damages.

4. Your damages need to be proximately caused by the negligence of the "tortfeasor" the wrongdoer.

In your case you are simply missing 3 and 4. You have no damages and therefore no damages were proximately caused by the wrongdoer. Your personal injury is what the law refers to as de minimis. Lay people would use this definition and lawyers this one. Frankly it was what the McDonald's marketing machine was all about but they were completely wrong and fooled most people into believing the sky was falling.

De minimis is a Latin expression meaning about minimal things, normally in the locutions de minimis non curat praetor ("The praetor does not concern himself with trifles") or de minimis non curat lex ("The law does not concern itself with trifles").[1][2]

In risk assessment it refers to a level of risk that is too small to be concerned with. Some refer to this as a "virtually safe" level.[3]

An abbreviated form of the Latin Maxim de minimis non curat lex, "the law cares not for small things." A legal doctrine by which a court refuses to consider trifling matters.

In a lawsuit, a court applies the de minimis doctrine to avoid the resolution of trivial matters that are not worthy of judicial scrutiny. Its application sometimes results in the dismissal of an action, particularly when the only redress sought is for a nominal sum, such as one dollar. Appellate courts also use the de minimis doctrine when appropriate.

But the personal injury aside you did also mention a wage loss being caused by your having a tough time keeping a job. It didn’t take me 30 years of practice to know it’s going to be extremely difficult to prove you’re not being able to find any truck driving job is somehow proximately caused by this one little accident. There must be more than you’re telling me; either that or you aren’t trying hard enough to find work.

Make sense? Now get back to work.

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. 

Rock crushers and shredders shred rock, engine blocks, appliances and cars. This machinery is dangerous to work around and can be deadly. If you’re interested in seeing how it works, follow the links below. 

If you’re curious about injuries caused by rock crushers a search on Google will provide several stories or YouTube videos involving mining.

http://www.youtube.com/watch?v=-Z9Cm92vfQA

Rock crusher and shredding machinery operating in the workplace: link, link, link, link and link.

This accident got me wondering what a rock crusher looks like. There are several on YouTube that can give us an idea of the scope of this machinery.

Portland, Oregon rock crusher accident being trailered. Link.

Grade School Bus Accident - In Janesville, Iowa an 11-year-old boy, Justin Bradfield got off the bus, dropped something and then ran in front of the bus, was struck and killed. The driver is not being charged, at least not yet, the article indicates the matter continues to be under investigation by the Iowa State Patrol. Questions about the driver’s focus and understanding of which way the boy would normally head home will be of interest. A photograph of young Justin can be seen by following this link. That article discusses the Kensett school bus death from May 10, 2011 involving Aaron Gunderson, 32 of Northwood. The article indicates vehicular homicide charges by operating a motor vehicle while intoxicated and then leaving the scene of an accident can be criminal sanctions for this type of accident. Drivers always have to keep a watchful eye on disembarking students.  Update: No charges are expected against the bus driver or the school. 

Slow down and leave more room to stop - Next we move onto West Des Moines, my stomping grounds and Interstate 35 where we have a multivehicle crash. In this crash for whatever reason, not explained, a southbound vehicle is described as having crossed the median and crashing into a northbound car. This article is kind of sketchy so let me check the ISP reports to see if there is at least a preliminary report. Update: The driver of what appears to be the at-fault vehicle was Danny Knowles of Des Moines. He was 58-years-old. I’m still waiting for the other drivers to be identified. Update: Police spokesman is Lt. Jim Barrett.

Trucking, give them room - One of many accidents on I-80 this one near Coralville-Iowa City around 7:30 pm killed a driver. This is a truck driver who hit the barrier, the Jersey barrier, then rolled onto the left side and caught fire. The carrier is Dart Transportation out of Cary, Illinois. This will in all likelihood result in a workers’ compensation claim. The widow, if any, should contact the Capron & Avgerinos firm that does good work out of Chicago, Illinois. They are a firm that handles workers’ compensation injury work. If it’s Iowa benefits they need or want we can help you. 515-222-1110 or sdlombardi@aol.com. I’ll check further reports and add to this post.

Can you say carbon monoxide poisoning - A metro Ice Arena mysterious illness is probably carbon monoxide poisoning from either the Zamboni or else a fresh air intake vent. Although Urbandale police did not find elevated levels they might check out venting where the patrons were seated. I’ve seen this up north at UNI where deliver trucks would park with engines running outside the facility, a lab, and the fumes were then being sucked into the building making the lab workers sick. I’ve covered carbon monoxide poisoning previously. Follow this link to the Lombardi Law Firm search for carbon monoxide poisoning.

Unexperience and Teen Driving - Onto Winneshiek County we head, where a one-vehicle crash killed a Minnesota teen and injured several others. Riding as a passenger in a Ford F-150 pickup truck Joshua Evers, just 18 out of Rochester, Minn. died as a result of personal injury caused by the collision. ” The injured include the driver, Brenden Christensen, 18, of Winnebago, Minn.; Bobby Wild, 19, of Lansing, Ia.; Shenyse Tharp, 18, of Holy Cross, Ia.; Trey Dylsin-Hillyer, 18, of Frost, Minn.; Keisha Kerr, 19, of Postville, Ia.; and Kristin Easley, 19, of Preston, Minn.”

According to the article from the Register Christensen was the driver and failed to negotiate the curve at 245^th Avenue to the north of 200^th Street. The accident happened at around 9:15 a.m.

Medical condition while driving - From northeastern Iowa we go again to central Iowa and specifically to Ames, Iowa and back again on I-35. In this car or bus accident the rock-band bus for Georgia rock band Widespread Panic died of a medical condition just prior to a series of collisions. I’ll update this post with names when I locate the accident report. I keep trying to persuade my wife that we should buy a rock band bus, make fake rock concert tickets and t-shirts, then get on the road giving them away. All across the country we will take pictures of people with promoting gullibility and having a great time. Update: Interesting enough this chain reaction is described as common when people driver and fail to leave enough room between the front of their car or truck the rear of the one to the front. Add speed and you’ve got a recipe for disaster.

Watch the road - On U.S. Highway 59 Marcella Schwery, 68 from Panama is thought to have crossed the center line hitting a car being driven by Christina Cotant, 26 of Avoca. It looks like three people were killed including Robert Schwery, 71 of Panama. Check out the article here. If the cause of this head-on collision is accurate then Schwery would be the at-fault driver, although if there was a medical emergency she may not have been excused from her fault. Interesting huh?

Playing by the rules - More charges came out of Polk County over the filmmakers’ use of tax credits. See the article here. These have to do with two California filmmakers. Can you say black eye?

The Economy makes people do stupid things - From Iowa Orchard we have the Great Pumpkin caper and 220 pumpkins going missing. Seems like a sign of these bad economic times. 

Iowa man injured in tractor rollover
CanadianBusiness.com
By AP | October 12, 2011 OXFORD, Iowa (AP) — Authorities say a man injured in a tractor accident near Oxford was rescued by a Johnson County road worker. ...

Authorities say road worker used grader to free man trapped under ...
The Gazette: Eastern Iowa Breaking News and Headlines
A county worker spotted the man and push the tractor off of him by using a road grader. The man was airlifted to the University of Iowa Hospitals and ...

Iowa man injured in tractor rollover
cbs4qc.com
OXFORD, Iowa (AP) - Authorities say a man injured in a tractor accident near Oxford was rescued by a Johnson County road worker. ...

Road worker uses machine to free man pinned under tractor
The Gazette: Eastern Iowa Breaking News and Headlines
On-scene authorities said a Johnson County road worker happened to be passing ... Greg Hipple said the injured man was airlifted to the University of Iowa ...

1. Uncovered gathering points where the auger was exposed and grain was dropped out of the gravity boxes and into a put or container box.
2. The underside where the turning shaft would catch loose clothing, pulling farmers into the turning shaft and between the main auger tube.

These tools of the farming trade are as unforgiving as a woman scorned. 

See also KGAN.

For another type of farm related auger accident see Auger Accident Kills Man on Cambridge Farm. In this one the man was disassembling the auger when it collapsed and killed him.

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".

High Power Electrical Line Maintenance Worker or their Instructor – On a magic carpet. Remember this because you'll need to know about the Faraday Cage later today.

A PTO is a power takeoff shaft commonly found on tractors and used to transfer power from the tractor to a piece of motor-less equipment. (See also universal joints.) Farm implements that standalone, like augers and other types of grain lifts need power to turn the gears and conveyor mechanism; to do that power is provided by a tractor’s power take off hookup. The shaft is a separate piece of equipment that hooks into the rear of the tractor and then into the implement, in this case the auger. The shaft turns, and like a drive shaft as it turns the power turns gears through couplers that power the implement and make it useful for work.

A properly shielded PTO shaft has a cover; if not covered it’s an accident waiting to happen and an exposed PTO can be legal grounds for punitive damages should an accident occur. Like fall protection gear the covering on a PTO shaft is intended to shield the workers from injury that sooner or later will befall busy workers. When working around a spinning shaft, assume it’s unshielded and stay as far from it as you can. Never, never, never step over a spinning PTO shaft. Loose clothing, like a pant leg, will get caught up in an unshielded spinning shaft. Trust me when I say this is not something you want to learn about while on the job. 

To get a better idea of what I’m talking about I’ve included three images; below the fold is the rear of the tractor where the PTO connects, a close up view and a protected (yellow) PTO already hooked between a tractor and piece of far; implement.

If you’re wondering what types of injuries can be caused by spinning PTO shafts consider broken legs, quadriplegia, paraplegia, brain damage and if you’re lucky death. While good tools make work more efficient, they can also maim and kill workers who take them for granted. Unshielded PTO shafts are as unforgiving as a woman scorned.

.

Here is a news item from Cloquet, Minnesota that I found of interest. It involves an I-35 overpass accident that appears due in part to poor snow  maintenance. The way the accident happened should be a concern to state highway department snow clearing crews and the public in general. Snow that accumulated on an overpass appears to have created a ramp of sorts, that allowed a skidding car to be ramped up and over the side rail and onto the interstate highway below. The smashed up car created a bit of a conundrum for the police. When they arrived, the police found the car upside down with the roof crushed and pointing in the wrong direction on I-35. There were no skid marks and no other cars involved. The officer needed to walk up the incline to the overpass before he could figure out how the car got in the north bound lane.

Woman whose car fell off Cloquet bridge 'lucky to have survived'
Duluth News Tribune - The car landed where northbound I-35 and Minnesota Highway 33 merge. “The best we could tell is that it landed on its roof,” Vereecken said. ... See all stories on this topic »

Now consider passing underneath an overpass and what that could mean to you.

"Honey is that car going to fall on us?"

Now I would agree that Minnesota gets a lot of snow, but this case is a warning to one and all who use the overpasses and typically see snow pushed up along the overpass side rail.

I'm assuming that maintenance issues will become a more serious problem as state budgets get worse. So be aware of what can happen and how accidents start. 

Shoeless Joe

Lancaster, PA - Is a manure pit an attractive nuisance? A 4-year-old boy drowned after falling into a partially frozen manure pit on the family farm. The manure pit is described as 8-feet deep surrounded by a chain link fence and the pit is 42 feet in diameter.

Pink Pajamas – Inmates in Maricopa County detention center are provided pink thermal long johns and extra blankets. Anyone that gets cold in Arizona is probably a genetic weak link; join us in Iowa and then talk about cold.

Give me the TV Remote you Moron! - Meanwhile in Nevada, Iowa Story County inmates were involved in a fistfight over which television show to watch. The one guy is being charged with assault. I wonder if the fight was really over the color of their pajamas or jump suits. By-the-way it’s Nevada (sounds like potato) not Nevada (sounds like tomata).

Drinking, Bad Dudes, Bad Girls and Concealing a Weapon - New rules for Iowa handgun owners will go into effect on the 1^st. sheriff’s previously could deny issuing a permit within their discretion. Under the new law the sheriff is required to tell you why you’re a bad guy. Also previously you couldn’t drink alcohol when carrying a concealed weapon. Now you can be almost drunk and still legal. Your BAC has to stay under .08. Hey you might want to buy a pocket breathalyzer. It’s nice that we are making Iowa a place where the NFL can expand into.

I Never Saw Nothing! We didn’t even know him! – A Davenport party at the Casa Loma Inn and Suites was the place for a party of sorts on New Years Eve. Seems someone brought a gun. Seems like someone was shot. Seems like a 20-year-old ended up dead. Hmmm…. Reminds me of the Forest Avenue area just east of the Drake Campus when I attended law school; a guy would be in the bar lying dead from a gunshot wound, the police would show and even though there were shoulder to shoulder patrons no one saw nuttin.

Is that fan working? When was the last time you oiled the motor? Not sure. Do you smell something funny? A downtown Waterloo hotel was evacuated after a fire started n the ceiling from an overheated fan motor.

A Russian passenger jet with 124 people caught fire as it taxied down the runway in Siberia, then exploded killing three passengers and injuring 43 others. I’ve been in Russia and flown as well as rode a train from Moscow to St. Petersburg, a trip I highly recommend. But the plane flight to the Mt. Elbrus region I don’t recommend. It felt like flying in the 1960’s.

Safety Check Lists – Are they a waste of time?

Property Damage: Did you shut the valve? No, did you? Keokuk, Iowa – A tank was cleaned and the drain valve was left open. Then the pumps were turned back on and 6,000 gallons of corn syrup spilled into the Mississippi River.

http://www.youtube.com/watch?v=F_rTMNnxwSE

Notice the safety equipment is named “fall-arrest” or “fall-protection”, not fall prevention. That’s  because falls are inevitable with working at heights. The idea is to limit the falls and to arrest the worker who does fall.

Read reporter Brinton’s article, here is a quote from the investigative report.

In a written statement, O’Haver said he was working on the roof of the law school assisting Fosdick saw a glass frame.

“I was keeping a eye on him [Fosdick] because I had a bad feeling he wasn’t tied off,” O’Haver wrote.

O’Haver said when Fosdick finished what he was cutting, “he lost his balance…and fell to the right making the ladder lean to the right.”

“It teetered right then back,” O’Haver wrote. “Tommy fell backwards hitting the ladder twisting Tommy around.”

O’Haver said when Fosdick started to fall he “grabbed his belt buckle trying to straighten him out in the process,” but had to let Fosdick go.

“I lost feeling in my arm and had to let go so I didn’t fall off the roof,” he wrote. “He [Fosdick] loosened his grip in the process.”

Remember, it's fall-arrest gear. The assumption is, sooner or later you will fall. Like falling in love, sooner or later everyone does it. So all you construction workers need to understand that on this planet, with gravity, falls do happen and no worker can avoid the consequences when it does occur.

See also Worker at Iowa's law school falls and dies: Fall Protection?

Even without all the facts what’s the likely cause of this death on the job?

Today's feature video is from Russia. I did like Russia, it's an interesting country and people although I would never want to live there. Listen as you read because today's post is another example of the more we rush the father behind we get.  As personal injury lawyers we continuously see the worse. So listening to beautiful music is one way to escape. Listen as you read; and I should mention, the name is Russian, and should be spelled VIAgra or Via Gra and it means a cappella.

Rear warning devices are a necessary piece of safety equipment and if the audible part of the backing up warning isn’t working then the truck shouldn’t leave the yard. In that case we had several violations of the OSHA rules and the industry standards. Not only didn’t the device work but the driver couldn’t see to the rear and rather than get a spotter or stop, look and listen he just went ahead and backed up at a high rate of speed. He was moving semi-trailers in a yard with a type of small truck cab made especially for that type of work. I can’t recall the name of the truck, but I’ll check later and update this writing.

Bottom line in this case is that OSHA and IOSH will investigate and my guess is they will center on rear backup warning devices, what the driver could or could not see and whether a spotter was required in finding a safe or unsafe workplace.

For addtional reading on accidents from backing up see these posts:

Truck Accident Prevention: Garbage truck backing over woman may be ...

Nov 17, 2008 ... If the driver is intending to back up and can't see behind they simply need to .... Labels: 29 CFR 1926.601, audible, backing up, device, ...
www.lombardilaw.com/.../truck-accident-prevention-garbage-truck-backing-over-woman-may-be-an-accident-but-it-is-preventa.cfm - Cached - Similar - 3 visits - 12/21/09

Hi, I just read your article about injuries with the trucks backing up without the back up alarms. My car today was hit by a garbage truck (Ankeny ... www.lombardilaw.com/blog/ - Cached - Similar

Illinois Highway Construction Worker Backed Over | Lombardi Law Firm

Sep 18, 2009 ... He was run over by a dump truck backing up. The dump truck driver is 75 years old. This is a situation I've blogged on several times on The ...
www.lombardilaw.com/.../illinois-highway-construction-worker-backed-over.cfm - Cached

Intentional acts that cause injury are not covered by casualty ...

Apr 12, 2010 ... Hi, I just read your article about injuries with the trucks backing up without the back up alarms. My car today was hit by a garbage truck ...
www.lombardilaw.com/.../intentional-acts-that-cause-injury-are-not-covered-by-casualty-insurance.cfm - Cached

Another reason why kids shouldn't play in the street. | Lombardi ...

Mar 1, 2010 ... Hi, I just read your article about injuries with the trucks backing up without the back up alarms. My car today was hit by a garbage truck ...
www.lombardilaw.com/.../another-reason-why-kids-shouldnt-play-in-the-street.cfm - Cached

Pedestrian is killed and driver of Hummer is not charged.Why ...

Jun 3, 2010 ... Hummer owners can purchase back-up alarms and monitors for the H3. The official Hummer site describes the design as a truck. ...
www.lombardilaw.com/.../pedestrian-is-killed-and-driver-of-hummer-is-not-chargedwhy.cfm - Cached

Construction Accidents - Backing up and rear warning devices ...

Nov 17, 2008 ... At Lombardi Law we make it a point to blog about the issues that affect those who are effected by accidents. Call us for a FREE evaluation ...
www.lombardilaw.com/.../construction-accidents-backing-up-and-rear-warning-devices.cfm - Cached

Did texting while driving kill this Iowa teen? | Lombardi Law Firm

Jul 15, 2010 ... It's not clear whether the truck was backing up at the time of the ... Her car then burst into flames, came back onto I-380 and burned up. ...
www.lombardilaw.com/.../did-texting-while-driving-kill-this-iowa-teen.cfm - Cached

Pedestrian Collisions Causing Injury and Death | Lombardi Law Firm

Feb 22, 2009 ... Hi, I just read your article about injuries with the trucks backing up without the back up alarms. My car today was hit by a garbage truck ... www.lombardilaw.com/.../pedestrian-collisions-causing-injury-and-death.cfm - Cached - Similar

Gay Non-News - Bob Vander Plaats continues to distract voters with his efforts to get attention by blaming the Iowa Supreme Court for God’s work in making people gay. Now he’s saying the Iowa Supreme Court should have sent the issue to the Iowa Legislature rather than decide the controversy before them. Bob, Bob, Bob this isn’t all that difficult an issue. The Iowa Legislature passes laws and the Courts decide controversy’s interpreting or applying those laws. It’s basic civics 101 from high school. You did go to high school didn’t you? Next he’ll be advocating gay counseling to un-gay them.  I’m beginning to wonder why Bob is so interested in this subject.

Spencer, Iowa – The debate between Agriculture Secretary, Bill Northey and his challenger Francis Thicke involved a lengthy discussion about the egg recall, how it has affected Iowa’s reputation and how to change state regulations to protect consumers.

Justifying Deadly Force - The Webster City police officer that shot after a traffic stop was cleared. The investigation found his use of deadly force was justified. The Officer is Scot Ely.

Adventure Travel - An Iowa climber from Sanborn, Iowa was rock climbing in the Grand Teton Mountains and was knocked off the mountain after a bolt of lightning struck close by. His harness must not have been properly secured. He fell 3,000 feet to his death. The climber was Brandon Oldenkamp, 21. There is no mention of whether there was a climbing instructor with him, what company organized the trip and who the other climbers are. I’ll write more on this later this week.

Campus Life - A Drake University student apparently fell from the balcony of his apartment in the middle of the night and died. He was from Zimbabwe. Indications of drinking are being reported. He was Cliffton Murove from Gweru, Zimbabwe. Reports indicate a night of heavy drinking. This is the second death within the week for Drake University students. Ryan Henderson was discovered in his car near campus, dead from unknown causes. A toxicology screen is being processed at the state lab. And six months ago we had Benjamin Backstrom dying from a gunshot wound near Norwalk, Iowa. His death was later ruled a suicide.

Highway Deaths - A man from Emerson must have fallen asleep at the wheel, crossed the center line and struck a semi-truck head on, killing him. He was 65 and the location was U.S. Highway 34 near Hastings.  An autopsy should show if he had a heart attack. Were medications involved?

The Bar Scene - A guy from Windsor Heights was charged with public intoxication after being a scuffle with the bouncers at Uncle Bucks, 1720 25^th Street, West Des Moines on September 4, 2010. What makes this bar fight of interest is the bouncers may have handcuffed him, and then did their work. The guy is reported to have said at least four bouncers hit and punched him after he was handcuffed. Can they even use handcuffs?  That’s hardly a fair fight. The report further indicates Uncle Buck’s has had the police called 51 times in 2010. Here are the facts from the Des Moines Register. My guess is we are not far from the night the City Council does a review of this bar’s liquor license. Maybe UB’s can bring the bouncers to that meeting to see if they can impress the council.

Police have been called to Uncle Buck's 51 times in 2010. Ten calls were for assaults, nine were for fights, five were for public intoxication, and three were for disputes. The other calls were for collection things, such as keys locked in vehicles and violations of no-contact orders.

For comparison, police have been called to another large bar in West Des Moines — Cabaret in the West Glen development — 34 times this year.

But Uncle Buck's holds 553 people compared with 353 at Cabaret, and West Des Moines Police Lt. Jeff Miller said the difference in police calls is not significant.

Investigative Work - West Des Moines, Iowa – It’s more than a little unusual for the parking lot at West Glen Target to have a murder suspect being arrested but that’s exactly what occurred. The events leading up to charges of murder started in Texas with a knife and ended with police tracking his cell phone usage and triangulating his location. They knew he was traveling north on I-80 and spotted his car, allegedly a stolen vehicle. Interesting police work to say the least. Law enforcement from Huntsville, Texas are on their way to Iowa to collect the suspect and take him back to Texas.

Dam the Taxpayer Dollars - Delhi, Iowa – At a cost of almost $6 million dollars private lake owners at Lake Delhi are asking the State of Iowa taxpayers for a $5.8 million handout to foot the bill for restoration of the Lake Delhi dam that broke. Should the taxpayers who enjoy no access to the lake pay for what is a private enjoyment? No way. If they do someone needs to sue the homeowner’s board and collect from the HOA liability policy for failure to maintain the structure. Why should taxpayers pay for purely private structures? It makes no sense.

Later this week I'm going to write more about the young man falling to his death in the Tetons. Until then know your rights, protect yourself and "let's be careful out there."

Today let's look at job site safety and fall protection for construction site and maintenance workers.

I’ve written extensively about fall protection for construction or building and ground maintenance workers. See Construction Site Accidents section on the Lombardi Law Firm website. At the LLF site if you do a search within the site for “fall protection” you’ll see there are over 1,900 results to choose from. On March 26, 2010 it’s noted the top ten fines from OSHA include fall protection sitting in the number 3 spot and probably rising. Let's Look At The Top Ten OSHA Fines. Here are the details after which a safety video is in order. If the GC isn’t going to enforce rules then construction workers need to protect themselves. It’s that simply. Going to a work on a construction site is one thing, but coming home is quite another. It reminds me of mountain climbing and what they say about the summit. Getting to the top means you’re only half-way home. 

Workers need to know their safety equipment and to push aside supervisors who ignore safety rules. Having the right safety equipment is and how to use it correctly could save your life. If you aren’t schooled in the how’s and why’s then visit the Miller Fall Protection on the Miller site and read or contact the sales rep and let him visit with you about the right fall protection equipment. The solutions can be uniquely tailored to your own situation. They have permanent and temporary solutions for roof top work. If the GC and your supervisor want to act like knuckleheads, it doesn’t mean you have to join them. You can also do a general search on Google for fall protection.

Accident details:

• Place of accident: University of Iowa Boyd Law School Building
• Time of Incident: 10:48 a.m., Monday
• Date: august 30, 2010
• Job Site: UI had awarded a $1.5 million contract to Miron for exterior repairs at the Boyd building
• Injured Worker: Tom Fosdick, 49-year-old man from Cedar Rapids, Iowa.
• Investigating Body: Iowa OSHA, by Jens Nissen
• Employer: Swanson Glass, subcontractor
• GC: Miron Construction out of Neenah, Wisconsin
• Job duties at time of accident: an exterior window installation.

Interesting facts: Mr. Fosdick was an All-American diver at Cedar Rapids Kennedy, then joined the Hawkeye Swimming and Diving Team in 1979.

For additional reading,

• OSHA: Contractor had 19 violations, Press-Citizen
• Worker dies from incident at Iowa law building, Gazette Online
• Fall killed worker at University of Iowa project, Action 3 News, CBS
• Fall killed worker at University of Iowa project - KCAU, ContractorSafety.net includes reference to 24 news articles.

Fall Protection Training Video:

A two-car collision in Iowa City at the corner of Melrose Avenue and Mormon Trek Boulevard caused one of the vehicles to strike a pedestrian Iowa City flag worker doing maintenance work. This is one of those examples of a work related accident also creating a third-party lawsuit which the workers’ compensation carrier will encourage. Under Iowa law the work comp carrier seeks to recover what it pays in workers’ compensation benefits from the driver’s insurance company that ran the red light.  This case could be categorized as a workers’ compensation case, a car accident or a pedestrian case.

Salmonella remains a front-page story here in Iowa. Two Iowa farms are being linked to it by tests conducted by the FDA. Salmonella was found in chicken feed. The allegation is that the feed found at Wright County Egg contained an ingredient from Central Bi-Products. Center for Disease Control and Prevention believes there have been 1,470 illnesses.

The Des Moines Diocese alleges that more than $600,000 was stolen electronically from its Bankers Trust account. This is something that requires some attention.  Here is a quote from the Des Moines Register story:

“The thieves are believed to be "a highly sophisticated operation most likely based overseas" who transferred the money "to numerous recipients across the United States on Aug. 13 and 16," the diocese said in a statement announcing the theft.

Bankers Trust alerted the diocese to the fraud on Aug. 17. The bank immediately shut down relevant bank accounts and began a process to recover the funds. "To date, approximately $180,000 has been recovered," the diocese said.”

Flood damage in Iowa is expected to reach $150,000,000. That includes roads, bridges and other public facilities. The federal government didn't just turn down Lake Dehlhi for federal relief to assist with the broken dam; they told the State of Iowa it had to repay other monies paid. The pain just seems to get worse.

A woman from Clear Lake, Iowa probably had a good thought; thinking it wouldn’t be good to drive after drinking is allegedly now in trouble for having her 11-year-old daughter drive the car. Reportedly the driver was sitting on 3 phone books, had no seat belt on and her feet barely touched the pedals. The mother was put on probation for a year. I have to give the woman credit for not driving; she did avoid the OWI charge.  KCCI has its own report. Follow the link. The story is kind of interesting and also kind of sad too.

Five female workers filed suit against Manley Toy Direct claiming sexual harassment or a work environment that allowed such behavior to exist.  See also the KCCI report titled, 5 Women Claim Sex Harassment At Toy Company

In Iowa we can feel the fall coming quickly. Last night was cool and leaves were starting to get blown around. I saw Canadian geese flying overhead as they practiced for the long flight south. This morning on the way to the mailbox to get the newspaper it was still cold and blustery. The neighborhood is taking on the look and feel of fall.  Fall is coming fast. That means the garage needs to be cleaned and organized, the plow equipment readied for snow removal, the lawn equipment winterized and put away, salt buckets filled and shovels readied. Being prepared for an Iowa winter is a necessity. That's enough for today. I've got work to do!We'll see you on Monday.

I’ve written about workers, construction workers, interstate highway construction workers and pedestrians all getting run over by a truck on the jobs site that is backing up.  If you’d like to see what’s been previously written follow this link or just check out some of the titles added at the bottom of this post.

Today’s construction site is a highway job site in Rushville, Illinois. The actual roadway where the workers died was U.S. 24 in Schuyler County. The worker was a 53-year-old man named James Brink, the asphalt foreman with Brink Construction. It’s reported by the Hannibal-Courier-Post that the truck that backed into him was a Schuyler County dump truck. It appears from the news article Mr. Brink was knocked to the pavement and was then run over by the rear duals.

1. Was there a back-up alarm on the truck?
2. Was there a working back-up alarm on the truck?
3. Could the driver see Mr. Brink as he was backing up?
4. Either why wasn’t there a spotter or was the spotter in a place where he was not able to see?
5. Was there a spotter that wasn’t paying attention?
6. What was Mr. Brink doing at the exact time he was backed into?
7. How much room was there for the truck and workers at this site?
8. Did this driver have a record of any kind that should have indicated to the county of Schuyler he should not have been driving the dump truck?
9. Was drinking involved with either construction worker?
10. Where were the supervisor and the general contractor at the time of the accident?
11. Were there other accidents at this job site?
12. What was the safety record on this job?
13. Were there safety meetings?
14. What training did the men have on using spotters and back up warning devices.
15. What did OSHA cite and who got cited on this job after the fatality?

There is much to do and I’d suggest all involved talk with a good lawyer to protect their rights, responsibilities and interests.  More information may be available Hannibal Courier Post.

At another site in Fayetteville, Arkansas a stock worker was killed by a forklift. Few details were available but that accident may have some similarities to this one.  He was trapped under the forklift while at the job site. No name or other details were provided. I'm going to include this in the Life-On-Campus category because college students work construction as a summer job and they need to be aware of what this device is and how it's supposed to work.

Des Moines Accident Attorney and Iowa Worker's Comp Lawyer ...

May 19 Hi, I just read your article about injuries with the trucks backing up without the back up alarms. My car today was hit by a garbage truck (Ankeny ...
www.lombardilaw.com/ - Cached - Similar

The Lombardi Law Firm Blog | Lombardi Law Firm

- 12/21/09 - Hi, I just read your article about injuries with the trucks backing up without the back up alarms. My car today was hit by a garbage truck (Ankeny ...
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Pedestrian on I-380 is struck and killed | Lombardi Law Firm

Aug 16, 2010 ... Hi, I just read your article about injuries with the trucks backing up without the back up alarms. My car today was hit by a garbage truck ...
www.lombardilaw.com/.../pedestrian-on-i380-is-struck-and-killed20100816.cfm - Cached

Illinois Highway Construction Worker Backed Over | Lombardi Law Firm

Sep 18, 2009 ... He was run over by a dump truck backing up. The dump truck driver is 75 years old. This is a situation I've blogged on several times on The ...
www.lombardilaw.com/.../illinois-highway-construction-worker-backed-over.cfm - Cached

Truck Accident Prevention: Garbage truck backing over woman may be ...

9/18/09 - Nov 17, 2008 ... If the driver is intending to back up and can't see behind they simply need to .... Labels: 29 CFR 1926.601, audible, backing up, device, ...
www.lombardilaw.com/.../truck-accident-prevention-garbage-truck-backing-over-woman-may-be-an-accident-but-it-is-preventa.cfm - Cached - Similar

Pedestrian is killed and driver of Hummer is not charged.Why ...

Jun 3, 2010 ... Hummer owners can purchase back-up alarms and monitors for the H3. The official Hummer site describes the design as a truck. ...
www.lombardilaw.com/.../pedestrian-is-killed-and-driver-of-hummer-is-not-chargedwhy.cfm - Cached

Pedestrian Collisions Causing Injury and Death | Lombardi Law Firm

- Apr 18 - Feb 22, 2009 ... Hi, I just read your article about injuries with the trucks backing up without the back up alarms. My car today was hit by a garbage truck ...
www.lombardilaw.com/.../pedestrian-collisions-causing-injury-and-death.cfm - Cached - Similar

Did texting while driving kill this Iowa teen? | Lombardi Law Firm

Jul 15, 2010 ... It's not clear whether the truck was backing up at the time of the ... Her car then burst into flames, came back onto I-380 and burned up. ...
www.lombardilaw.com/.../did-texting-while-driving-kill-this-iowa-teen.cfm - Cached

Steve Lombardi | Lombardi Law Firm

Hi, I just read your article about injuries with the trucks backing up without the back up alarms. My car today was hit by a garbage truck (Ankeny ...
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Road worker killed in Illinois, Safety is never on break ...

Sep 18, 2009 ... He was run over by a dump truck backing up. The dump truck driver is 75 years old. - 515-222-1110 - 1300 37th Street, Suite 6 West Des ...
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Directions to Lombardi Law Firm | Lombardi Law Firm

Hi, I just read your article about injuries with the trucks backing up without the back up alarms. My car today was hit by a garbage truck (Ankeny ...
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The Lombardi Law Firm Blog | Lombardi Law Firm

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Video Library | Lombardi Law Firm

Hi, I just read your article about injuries with the trucks backing up without the back up alarms. My car today was hit by a garbage truck (Ankeny ...
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Eaton Corporation was fined because of the death of a worker at the Belmond Plant on February 17, 2010. Doug Barkema, age 51 died from injuries caused by a grinder. IOSH or OSHA settled with EATON on a $4,500 fine for failing to furnish a place of employment free from recognized hazards that were likely to cause death or serious injury and employees were exposed to flying debris.

The focus of the investigation centered on a torque wrench not being available for tightening bolts on the grinder wheel. I’m not sure of exactly how to explain this mechanical problem; the news article from Channel 3’s KIMT is good, but I’m finding it difficult this morning to fully understand Dave Hansen’s article. Follow this link to read Dave’s article.

Safety never gets a day off; safety doesn’t call in sick, doesn't ignore worker complaints, safety doesn't fail to evaluate the workplace to make sure the right tools are available and everyone in the shop shouldn't take their eye off the ball. Supervising workers should be all about safety.

Employers and supervisors need to be diligent in getting the work done, but they also need to listen to worker complaints about having the right equipment and enough of it to do the job safely.  Safety needs to be the number one priority for the entire work team including the foremen and forewomen on the job.

Job safety needs to be the number one priority!

If a company providing services, in which those services are paid for and terms of service are placed in which the paying parties have signed an agreement to and said company does not deal with violators whom breech these terms of service where everyone is expected to adhere to in a timely fashion. Is said company in breach of contract due to negligence of protecting those very people who agreed to said company's contract?

While we are talking being a lawyer let’s expand this thought and talk about how lawyers make their cases interesting to those who will hear and decide it. Whether judge or jury the structure of your case should be like a mystery novel that leads the fact finder through a tale of suspense. The chapters of the case should lead the jury to be the ones who answer the final question. That final question is one of, Who done it? I call this the Who Done It Case Structure. Because the structure of the case can draw a jury in and keep them awake throughout the questioning of what could otherwise be some pretty boring testimony.

You can control the cadence of the case through use large pigeon-hole charts that get filled in as the trial progresses. What you’re creating is a demonstrative exhibit that organizes complex testimony in real-time right before they eyes of the judge and jury. It allows complex testimony to be assembled out of order but in chart form that is simple to refer to and to understand. Of course you, the lawyer, work out what structure it should be in long before the trial begins. As an example I used such a chart and trial theme in a defamation case against a news organization. The jury was told in the opening statement that we would reconstruct every position in the news room on the night before the defamatory article was published. Through a second information flow chart we would reconstruct how information known to the public is turned into printed news that lands on their doorstep in the morning.  Using this technique the order of witnesses made little difference; in fact I’m of the opinion that taking them out of order was more beneficial because it added to the suspense of the case. The one witness I identified as the offending reporter and editor was called towards the middle of the end of witnesses to allow the jury time to finger him and by the end of the case those witnesses testifying after he did confirmed the juries suspicions.

In the end the lawyer turns into a scribe and the jury the detectives. A $2.4 million verdict, including $1 million punitive was confirmation this technique works. Now don’t ask me what happened on appeal because my blood pressure is high enough as it is. Safe to say I can fully appreciate Lex Hawkins comment that he’s lost more money on appeal than most lawyers make in their careers.

Our point today is reading a John Grisham novel or a Steve Martini novel and then considering how you can turn your case into a “who-done-it” novella can pay off with the jury. I do have a confession though. Personally think Steve writes a better novel than does John, John writes for Hollywood, is predictable and Steve Martini for lawyers. Pick up a copy of Prime Witness, Compelling Evidence or Undue Influence and see if you agree with me.

Now back to the question, but first another cup of coffee.... onward we march.

Insurance Lullaby: Ka-ching, ka-ching, ka-ching! Insurance Executives: Thank you juries! We fooled you again. Remember we're not to blame, it's those trial lawyers! The ones trying to help you! Oops sorry I wasn't supposed to remind you. We're your good neighbor; you know the one's you're in good hands with! Smile! Bigger ka-ching!

Sorry, when it comes to the insurance industry I love being sarcastic. A lady wrote asking me if the insurance adjuster can unilaterally assign her 50% fault for the accident even though she was not ticketed and the other driver received a citation for failing to yield the right-of-way.  The adjuster believes a driver is automatically at fault, no matter what, and he deducts 50% from the property damage. My advice is pretty straightforward and simple. He's trying to delay paying you. Can you say ka-ching?

Today let's talk about the American styled insurance that protects the float by promoting delay. When you're in an accident you need to know how to protect your claim. Because if you don't protect your claim by keeping the facts straight, you allow the adjuster to promote the float through their delaying a fair resolution. You may be honest, but don't be dumb and allow the adjuster to maladjust your case.

A lady wrote to me asking whether the insurance adjuster can just deduct 50% for her fault even though she was not ticketed and the other driver received a citation for failing to yield the right-of-way.  My advice is to the point.

Dear ____________, Thanks for writing to me. If you weren't ticketed (given a citation) then I see no reason why you would be at fault. I'm going to guess that the insurance company’s adjuster is saying that you struck the trailer, meaning you did not have control of the intersection and therefore the other guy had the right-of-way. Your observation that he sped up trying to get control of the intersection becomes that much more important. Coming to an intersection you’re supposed to slow down and assess the traffic situation; not speed up and yell damn the torpedoes.

Everyone has the right to assume the other guy will obey the law.

Stick to your argument that he sped up. He did not have the right of way, he had a duty to yield; instead of slowing down at the intersection he sped up; he was ticketed; you had the right of way, you were not ticketed. You simply have to argue that you are free from fault.

If he won't pay you will have no choice but to hire a lawyer and sue. If your only claim is for property damage less than $5,000.00 then you can sue in small claims court. If the driver or passengers were hurt and sought medical attention then you probably should sue in district court. Have you already told him there was no personal injury? If so I would think the adjuster has accomplished at least half of his goal; to pay you as little as possible.

You may need to hire a lawyer. Good luck.

Steve Lombardi

 Now let's end today with a good laugh. Watch this video of a wedding couple gone wrong. It's a video created for an insurance company.