Articles Posted in personal injury

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As the weather gets colder and the holiday season approaches, proper phone etiquette while on the road can help everyone to arrive at their destination in one piece, while helping to achieve a low stress driving experience that ensures safe driving conditions for all. Please make a conscious effort to send text messages to your loved ones prior to putting your key into the ignition. By agreeing to put the cell phone down while driving this holiday season you can help to make the roadways less congested, with better traffic flow, and far less deadly. With legislation, education, and laws on the books, most of us know that drinking and driving is a lethal mix, yet too many Americans are quick to write-off the dangers of texting while driving. The Philadelphia based law firm of Rosenbaum and Associates with offices in New Jersey, and Western Pennsylvania, understands first hand the perils that driving and operating a cell phone can cause. For over 25 years our highly experienced personal injury attorneys work on behalf of seriously injured pedestrians and plaintiffs to secure the best representation for our clients.

The National Highway Transportation Safety Administration study found that texting while driving is the equivalent of driving after having four beers. Every month some 171.3 billion-text messages are sent in the United States alone, often with fatal consequences. No matter how quick you believe you are, texting requires cognitive, visual, and manual attention that is directly siphoned from your driving skills. Furthermore, if you would like to cut down on seasonal traffic decrease your instances of multi-tasking, by staying alert and not driving distracted you lessen the chance of needing to overcompensate for lost mileage. According to the Institute for Highway Safety Fatality Facts, nearly 25 percent of all car accidents are caused by texting and driving. The Cohen Children’s Medical Center in New York’s 2013 study found that 300,000 teens are injured and more than 3,000 die each year as a result of sending a text message while behind the wheel. Approximately 11 teens loose their life everyday because of texting and driving, overtaking drunk driving as the leading cause of death for America’s teenagers. This holiday season let us slow down, put the phone down, and multi-task less while driving, in order to get where we need to be safely.

Can those who send a Text Message be held Liable for a Crash?

A New Jersey, Appeals Court, tackled the question of, whether or not you can be held legally liable for sending a text message to a driver prior to the driver being involved in a car crash. The case involves a September 21, 2009 multi-vehicle car crash in Mine Hill Township, New Jersey. At approximately 5:45 p.m. the then 19-year-old teen driver, Kyle Best sent and received text messages from friends and family that evening while driving. Prior to a car accident Best received a text message from his girlfriend, when his pick-up truck then drifted across the center line and hit a couple who were on their motorcycle, the Kubert’s. The couple both lost their left legs as a result of the crash. What makes this case scholarly remarkable is that the Kupert’s settled their case with the driver, who admitted in municipal court to driving while texting, and then they chose to sue the defendant’s 17-year-old girlfriend under the legal doctrine of civil liability. The Kupert’s attorney claimed that Shannon Colonna was “electronically present” at the time of the crash and that by sending a text messages to the driver, she was liable for distracting the driver at the time of the accident. While the Superior Court judge concluded that the remote texter could not be held liable, this past August a state appeals court panel agreed in part and reversed in part the lower court’s ruling.

The New Jersey Appeals Court agreed that Shannon Colonna, in the current set of circumstances could not be held liable and that a Superior Court judge was correct in dismissing the lawsuit against Colonna for “aiding and abetting”. The court also held that “a person sending text messages has a duty not to text someone who is driving if the texter knows, or has special reason to know, the recipient will view the text while driving.” Further holding “that the sender of a text message can potentially be liable if an accident is caused by texting, but only if the sender knew or had special reason to know that the recipient would view the text while driving and thus be distracted.” It is a very narrowly tailored set of circumstances, carved out by the New Jersey appellate court, where a person knowingly texts a driver that they are reasonably certain that the driver would read the text while driving, can they then be held liable for the actions of the driver. Texting has become a primary way of communicating, this holiday season let’s use technology wisely.
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Vehicle crashes, according to the National Highway Traffic Safety Administration, are one of the leading causes of death for children between the ages of 1 and 13 years old. With the vast array of car seats and manufacturing design options for passenger cars, SUVs, trucks, and vans, it is understandable why child car seats and installation can be viewed as challenging. Even the Duke and Duchess of Cambridge were recently scrutinized in their car seat performance after bringing their infant son home for the first time. While car seats in the United States have saved the lives of approximately 9,600 children aged four and younger during the span of 1975 to 2010, many more lives and life altering car crashes can be avoided by proper use and installation of child car seats. If you or your child were injured in a car crash and you suspect that your car seat malfunctioned, the experienced products liability attorneys at the Philadelphia based law firm, Rosenbaum and Associates, may be able to assist you.

Even among those who do install car seats in their vehicle, a recent study found that nearly three out of every four car seats did not meet proper use and installation standards. As many who have attempted the cause know, after reading the car seat instruction manual and your vehicle’s owner’s manual on car seat installation, it can still be difficult to try and install the car seat while insuring that the lower anchors or LATCH system is being fully engaged. Couple that with the dreaded seat belt that never wants to lock in place and you have fully executed a frustrating jam-packed afternoon. There is hope for parents and caregivers alike, many local fire and police stations offer free seat checks. There are people specifically trained to inspect the installation prior to you intrusting the car seat to protect your infant or child, for free. The website http://www.nhtsa.gov/apps/cps/index.htm will direct you to the closet trained inspector locations. For those that prefer the do it yourself approach, how-to-videos have been posted to the website www.SaferCar.gov/therightseat.

For those still on the fence about whether or not to implement a three-phase car seat approach for your growing child (a rear-facing car seat or car bed typically for premature babies, then a forward-facing car seat, followed by a booster seat), consider that the American Academy of Pediatrics and the National Highway Traffic Safety Administration found in a recent 2009 study that children in booster seats had nearly half the injury risk as children who wore seat belts alone. The study also found that children involved in side impact crashes, the second most common type of car accidents typically known as a “T-Bone” crash, derived the largest protection when using a properly installed booster seat. The reduction in risk produced approximately 68 to 82 percent decline in risk of injury. The same study also found that there was no detectable difference in the risk of injury for children who were seated in a backless booster seat versus those seated in a high-back booster seat. Regardless of the length of a car trip, safety must always be a priority as car crashes can occur at any time. Lastly remember child passengers, typically those under the age of 13, should not rely on airbags as a safety measure as airbags can severely injure or even kill children involved in a car crash that would have otherwise been survivable.
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Often times the first thing that comes to mind for many teens and parents when talking about in-vehicle driver monitoring is the notion of invasion of privacy or the possibility of breaking the teen’s trust. What if this stigma was framed in a different light, what if instead of a big brother monitoring device we think of monitoring devices more similarly to training wheels. Monitoring your teen driver would be out in the open and just part of the learning curve required to successfully learn how to drive. Like training wheels, when the teen driver and their parents and or guardians become more confident in the teen’s ability to drive safely, then and only then would the device be removed. More studies are beginning to show the benefits of teens that drive with a form of in-vehicle monitoring are less likely to drive in a reckless or risky manner (Farmer et al., 2010, McGehee et al., 2007, Simon-Moton et al., 2013). It is widely known that teen drivers pose the greatest crash risk to themselves as well as to other drivers on the road. Less known is the starling statistic from the Center for Disease Control, which found that motor vehicle injuries are the leading cause of death for those 13-19 years of age (CDC, 2012). For those who have been injured in a car crash, the law offices of Rosenbaum and Associates have over 25 years of experience working with families who have been injured in automobile accidents throughout the Philadelphia area.

While the rate of death for new teen drivers is slowly declining, in part due to better education programs warning of the dangers of driving while using your cell phone and driving without your seatbelt, as well as, new laws in Pennsylvania for graduated driver licenses which limits the number of passengers and requires the driver to wear their seatbelt, the average number of teen who loose their life due to car related accidents is still about seven teen deaths a day. The CDC estimates that in 2010, about 2,700 teens in the United States aged 16-19 were fatally injured, with an additional 282,000 treated and released from emergency rooms for injuries suffered from automobile accidents. Yes, monitoring devices can be seen as a bit extreme, but since when have parents not been willing to go the extra mile to ensure their children’s well being. Numerous studies have shown that teens drive more safely when a parent or guardian is in the car with them. However, this is not always an option, plus the teen driver is beginning to display the need for some freedom and space. A monitoring device, which does not monitor the teen per se, but more so how the teen is driving, is an option that many parents are turning to. With the increase in technology options available the prices have begun to drop a bit making the in car devices more readily available.

Speeding which is something many automakers are trying to help prevent in teen drivers offer special keys and built in options which limit the amount of speed a car can accelerate, allow the parents to set up geo-fencing paired with the car’s GPS, lower the radio, or even fully shut off the radio if the driver or passenger takes off their seat belt while driving. Such automakers as Ford, Hyundai, Mercedes-Benz, and Infiniti are leading the way with options built into the car to help make giving your teen driver the keys that less hair raising. With more time tested on the road these options will also become more attuned. Even with all the applications, video recorders, GPS tracking devices, and cell phone blocks out there, studies still show that a straight forward talk with your teen about the dangers on the road and risky behavior is still the best approach.
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Federal preemption of state laws has become a popular way for large, powerful entities to try to avoid personal injury lawsuits. Federal preemption means that a federal law trumps a state law; courts can find preemption expressly written into the law or find that it’s implied because the two are somehow in conflict. Preemption formed the basis for several U.S. Supreme Court cases that had bad outcomes for people hurt by generic drugs and medical devices, for example. In Bell v. Cheswick Generating Station, GenOn Power Midwest, L.P., a power company attempted to have a lawsuit against it dismissed by arguing that the Clean Air Act preempts Pennsylvania state tort claims. The Third U.S. Circuit Court of Appeals reversed dismissal of the lawsuit, finding no preemption.

Kristie Bell and Joan Luppe represented a class of at least 1,500 Pittsburgh-area homeowners who claimed improper construction and operation of the coal-fired Springdale, Penn. power plant caused ash and contaminants to settle on their properties. This is unpleasant, requires constant cleaning and keeps them inside for fear of health effects, their complaint said. They sued for common-law negligence, nuisance and trespass. In the trial court, GenOn removed the case to federal court for diversity reasons, and then moved to dismiss the claims as preempted by the federal Clean Air Act. The CAA has a “citizen suit” provision permitting private parties to sue violators; the EPA also develops air quality standards that individual states enforce. The CAA has a “savings clause” saying it does not restrict rights under any statute or common law to seek relief. The plant’s operating permit issued by Allegheny County also has such language.

The district court nonetheless agreed that the CAA preempted the case, and dismissed it. On appeal, however, the Third Circuit reversed. The issue is one of first impression, the court said, but the U.S. Supreme Court found no preemption in a similar situation involving the Clean Water Act, in International Paper Co v. Ouellette. The two federal laws’ savings clauses have no meaningful differences, the Third said; the differences concern boundaries between the states, which do not exist in the air. The Sixth Circuit has also found no preemption of the CAA in a lawsuit involving a Michigan statute. Thus, it found Ouellette controlling, meaning the suit was not preempted. The Third then rejected arguments that permitting such lawsuits would undermine the CAA, and that the CAA shows this is a political rather than legal question. It reversed the district court.

This ruling is important because it averts a drastic change to the way courts have traditionally handled environmental nuisance lawsuits. If the Third had upheld the district court’s preemption finding, it would have barred any attempts by individuals to assert their common-law rights to be free of pollution, simply because the polluters have permits. Unfortunately, having a permit is not the same as not being a polluter, as communities around the United States might agree. And by preempting all injury lawsuits that seek to enforce rights similar to those granted by the CAA, the court would have taken away one of the few avenues available for ordinary people to protect themselves against companies with many times more money and power. It’s hard to believe that’s what Congress intended by passing a law intended to clean up the environment.
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As a Philadelphia accident lawyer, I was sad to read about a suburban Philadelphia accident involving a tractor-trailer whose driver was apparently breaking the law. According to the Times of Trenton, a Brooklyn truck driver was trying to make an illegal U-turn in Mercer County, New Jersey, when an SUV struck it and became trapped underneath the truck. The crash killed Jamella Tisdale, 25; Jaevon Durante, 9; and a baby boy, Jaden Tisdale. Driver Shaqwan Tisdale, 25, and passenger Mellady Duante, 8, were hospitalized with injuries. All of the victims were from Levittown, Pennsylvania. The Mercer County prosecutor’s office has charged trucker Richard Williams, 45, of Brooklyn, with three counts of death by auto.

Both the Tisdale SUV and the tractor-trailer driven by Williams were heading south on Brunswick Pike in Lawrence, N.J., when the crash happened. Authorities believe Williams was trying to make a U-turn at the intersection with Darrah Lane around 6:30 p.m. on August 2 when the SUV struck the side of the truck and became wedged underneath it. Emergency crews found two-thirds of the SUV underneath the truck and had to stabilize the truck before they could begin extracting the passengers, which took several hours. No injuries to Williams were reported. He was being held in the Mercer County Corrections Center in lieu of $100,000 bail.

Unfortunately, this pattern of deadly injuries to victims in cars while truck drivers walk away is not uncommon. As a Philadelphia injury lawyer, I know that truck drivers are well protected by their much larger, much heavier vehicles. By contrast, a Chevy Tahoe like the one this family was driving is far lighter than the truck–and therefore contributes much less force to a crash. That’s why people inside ordinary cars can be catastrophically injured in crashes with big rigs, even when the crash was clearly the trucker’s fault. When truck drivers and their trucking companies break the law–or violate trucking safety regulations–the innocent motorists around them can suffer. As a Philadelphia personal injury lawyer, I believe the cost of that suffering should be laid at the feet of the irresponsible driver or trucking company that caused it.
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As a Philadelphia accident lawyer, I was disappointed to see a report of serious injuries attributed to a drunk driver here in Philadelphia. According to the Philadelphia Daily News, driver Erika Williams swerved to miss a ball in the road and instead hit a five-year-old girl, her two-year-old brother, her mother and her aunt. The crash took place just before 11 a.m. Saturday night, as the family attended a birthday party in the neighborhood of Summerdale. The victims were all hospitalized, the little girl in critical condition with a severe leg injury. Williams was taken into custody and charged with multiple counts related to the crash, including DUI with aggravated assault, reckless endangerment, criminal mischief, possession of an instrument of crime and more. Her bail has been set at $40,000 and she will appear in court July 24.

Police say Williams was speeding and drunk when she drove down the Summerdale street shortly before 11 p.m. On the street were Anya Mwagala, 5; Lamar Mwagala, 2; their mother, Dwania Dreuitt; and their aunt, Asheena Sutton. A ball reportedly rolled in front of Williams’s car, and she swerved into the sidewalk. Both of the adults suffered injuries that were not life-threatening; Sutton had surgery for an injury not specified. But the children suffered serious injuries. Neighbors pulled the car off the victims, and two administered CPR on the children until paramedics arrived. NBC 10 Philadelphia reported that Anya’s leg had to be amputated below the knee because of a severe injury; she is in a medically induced coma. Her brother Lamar, 2, suffered a dislocated pelvis and was listed in good condition. Witnesses said Williams apologized to Dreuitt after the crash and sat down to wait for the police.

My heart goes out to this family, which has suffered very serious injuries through no fault of their own. As a Philadelphia injury lawyer, I know that they are also likely to start getting very large hospital bills as a result. The kinds of injuries that require a medically induced coma are very serious indeed and may require that Anya have long-lasting therapy or accommodations for a permanent disability. That’s on top of the loss of her leg, which is certainly a disability. All of this costs money the family may not have, and the person responsible for causing the accident is legally liable for those costs under Pennsylvania law. My job as a Philadelphia personal injury lawyer is to help victims secure fair payment from at-fault drivers, and their insurance companies, so they can get the medical and personal care they need and pay other costs of a crisis someone else created.
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In 2008, a new high school was being built in Reading, Pennsylvania. Perrotto was the general contractor on the project and Reigel was hired to procure and install the structural steel for the building. Ralph Ferraro, an employee of Riegel was working with two other men in a five story, stairway tower. He was standing on a lift platform installing steel and when he attempted to secure a 300 pound piece, he lost his balance and fell 30 feet. He filed suit for his injuries against Perrotto and Turner, the lift company. Perrotto filed and was granted a request to bring Riegel into the suit. Perrotto claimed that in accordance with their subcontractor agreement, Riegel is required to defend, indemnify and hold harmless, Perrotto.

Reigel agreed that under the agreement they would have to take the fall if they or their employees were negligent, but argued that they were not required to indemnify Perrotto if Perrotto was negligent. Perrotto settled the matter with Ralph and is now seeking for Reigel to indemnify, or cover the settlement costs.

In order for a business, which has settled a case for personal injuries to recover the costs of the settlement from someone they have an indemnity contract with, they must demonstrate that the underlying claim against them was valid, that settlement was reasonable and that any attorneys fees were reasonable. Otherwise they would just settle the matter regardless of fault and seek payment from the other party.

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Very late one night in Harrisburg, Pennsylvania a police officer noticed Isaac Roberts engaged in suspicious activity in his vehicle. The Officer pursued Isaac, who instead of pulling over, sped down the road with his headlights off. The Officer pursued Isaac at high speed. Isaac collided with the passenger side of a vehicle at an intersection. The passenger, Akeem Cornelius, ultimately died at a local hospital from the injuries he sustained in the accident.

Mary Cornelius, administratrix of Akeem’s estate, filed a civil action against the Officer and the Harrisburg Police Bureau. Mary alleged that the Officer operated his cruiser in a negligent manner, by initiating and maintaining a high speed in pursuit of Isaac and that this was in violation of police regulations. Mary also alleged that the Bureau was negligent in failing to train and supervise the Officer.

Defendants claimed that police officers do not owe a duty to innocent bystanders during police pursuits of fleeing suspect. And further, that the Bureau was protected from Mary’s negligence claim for failure to train and supervise by governmental immunity. The Court of Common Pleas dismissed Defendant’s claims that they did not owe a duty and had immunity and this determination was appealed to the Commonwealth Court.

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In 2011, after seeing a film, Eileen Sheil and her sister Brigid Smyth entered the ladies room at a movie theater in Newtown, Pennsylvania. As Eileen walked to the sink her show and cane slipped and she fell to the floor. She was taken to the hospital by ambulance after the fall. She didn’t see what she slipped on but believed it was water because after the fall, the seat of her pants was wet. The sisters had been to this theater many times and reported seeing water on the floor of the bathroom many times.

The bathroom had mats under the hand dryers but not by the sink and there was no “wet floor” signage. The theater’s associate manager, Henri Scott, responded to the incident and prepared a report which stated that there was no water on the floor when he inspected the bathroom after Eileen’s fall. The theater’s policy is to inspect the bathroom every thirty minutes. It was unknown when this bathroom was last inspected.

Eileen filed a lawsuit against the movie theater for negligence. Eileen was what is called a “business invitee” and therefore the movie theater owed her a duty to protect her from foreseeable harm. Under Pennsylvania law, to succeed on a claim of negligence against a business owner, Eileen must show that the movie theater: 1) knew or by reasonable care, should have known, of an unreasonable risk of harm to business invitees; 2) should not expect invitees to discover or protect themselves from the danger; and 3) failed to exercise reasonable care to protect the invitees from the danger.

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According to the National Highway Traffic Safety Administration, 9,870 people died in drunk driving crashes in 2011. That is one every 53 minutes. And one in three people will be involved in an alcohol-related crash in their lifetime. Everyone knows that driving under the influence of alcohol is wrong, but is it ‘outrageous conduct,’ ‘done with a bad motive or reckless indifference to the interests of others?’ This question was recently posed before a Pennsylvania Court of Common Pleas.

Elvin Jenkins was driving east and John Krivosh was driving west on New Year’s Eve 2011. Elvin was driving a truck and it crossed into the opposing lane and struck John’s vehicle head on. John suffered serious injuries including a broken thigh bone, elbow bone, a closed head injury, internal bleeding and multiple bruises. John alleged that Elvin was under the influence of alcohol while driving the truck and requested punitive damages in his complaint.

Punitive damages are also called exemplary damages. They are not intended to compensate the injured but are meant to reform or deter the defendant from similar behavior. They are meant to set an example for society. Even though these damages are not meant to compensate the plaintiff, they will receive all or some portion of the punitive damages. In Pennsylvania, “[p]unitive damages may be awarded for conduct that is outrageous because of the defendant’s evil motive or reckless indifference to the rights of others.” Chambers v. Montgomery, 192 A.2d 355, 358 (Pa. 1963) citing Restatement (Second) of Torts § 908(2).

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