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A recent court decision from the Court of Common Pleas, in Hall v. Irving, held that plaintiff Elsie Hall, who had suffered severe soft tissue injury to her back and neck, including herniated and bulging discs in her spine, had sustained serious injuries at the fault of an uninsured driver to warrant a $100,000 verdict for pain and suffering. According to the National Highway Traffic Safety Administration, yearly there are more than 1,700 fatalities and over 840,000 injuries caused by vehicle crashes off of public highways, as was the case in Hall v. Irving, a car accident that occurred on Broad Street in Philadelphia, PA. This case and resulting verdict is particularly interesting as it shows that even if you do carry an uninsured motorist policy, insurance companies can still be hesitant to pay. Car accidents can result in long term injures as occupants in a car crash can be violently jostled, most commonly causing whiplash, traumatic brain injury, lacerations, spinal cord injury, and other soft tissue damage.

In Hall v. Irving, plaintiff Elsie Hall, was a passenger at the time of impact, when she and her husband were driving on Broad Street in Philadelphia, back in September 2011. Hayden Hall, the plaintiff’s husband was driving, when they allege that a second vehicle, owned and operated by Bernard Irving, collided with their car as the vehicle was exiting a gas station at the same time as the Hall’s were attempting to make a left hand turn. Defendant Irving’s vehicle collided with the front passenger side of the plaintiff’s car that was carrying the Halls. As we know, car accidents can have long-term effects on the injured party. Here, the plaintiff allegedly sustained back and neck injuries causing her to undergo physical therapy, electric stimulation, massage therapy, traction, and an MRI, which further revealed that Mrs. Hall had disc desiccation, as well as, multiple herniated discs. Following the car accident the Halls attempted to sue Irving for just compensation caused by the accident. Irving was found to be uninsured; therefore the Halls sought limited tort recovery from their insurance company State Farm Mutual Automobile Insurance Co., as they had carried an uninsured motorist policy. Uninsured motorist policies are often seen as a way to plan for the unexpected injury to person and property caused by an uninsured motorist. The driver trying to make a claim under the policy must prove that the uninsured motorist was in fact at fault for the accident caused.

In Hall v. Irving, State Farm, the court found discrepancies as to the cause and the extent of the damages resulting from the car accident. According to State Farm’s memorandum, State Farm found both drivers to be comparatively liable for the collision on Broad Street. State Farm sought to prove that the second driver, Irving, had already established himself in the left lane at the time of the accident, and that the Halls had not seen the defendant in time to avoid the crash. Pennsylvania has an affirmative defense to negligence actions called comparative fault. If driver Hayden Hall’s own negligence contributed to the Hall’s injuries, then the Halls would be barred from recovering the full amount of damages up to the percentage of their own liability in causing Mrs. Hall’s injuries. After a three day trial and two hours of jury deliberation, they found Hayden Hall was not liable for any part of the accident, and awarded Elsie Hall $100,000 in pain and suffering.
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When a car crash occurs involving three or more vehicles, it can set off a chain of events where proving liability can become a mammoth of a puzzle. As has been true this winter season, when weather conditions become hostile, extra caution such as leaving more driving distance between cars, not driving while distracted, and decreasing driving speeds, are all tools needed to help prevent car accidents. After being involved in a car accident it can be difficult to determine if you should enlist the services of a personal injury attorney. To complicate matters there is a time limit of 2 years from the date of injury where one is able to bring a personal injury claim, in both Pennsylvania and New Jersey. The 2-year time allotment to file a lawsuit is known as a statue of limitation, and claims are dismissed, or unable to proceed if the 2 years has already passed. Therefore, in order to have a greater chance at a successful claim, preservation of all necessary evidence is required if the case should go to trial. There are over 6 million car accidents that occur every year in the United States, at an alarming rate of 18,000 car accidents occurring daily, with roughly 40,000 fatalities annually. Chances are at some point in your life you will either directly be involved in a car accident, or a loved one’s life will be greatly impacted by a car accident.

A highly experienced personal injury trial attorney knows how best to represent and preserve your legal interests. Usually, when a multi-vehicle or chain reaction car crash takes place, one or more parties were at fault. The theory behind determining fault can be established by a multitude of resources, some of which the injured party can attain, such as medical records, police reports, witness statements, as well as documented images from the scene of the crash. Proving who is at fault relies on negligence, meaning that the injured party must establish that the other driver failed to act in a reasonable manner when operating their vehicle. Furthermore, the driver’s reckless, negligent, or careless actions while driving directly caused the party’s injuries. The burden of establishing negligence is on the party that brings the lawsuit, the injured party.

A driver’s license is a contract of sorts, by attaining it you are legally allowed to operate a 3,000 pound motor vehicle and accordingly, you are also agreeing to abide by the rules of the road and to not drive in a manner that endangers the lives of other motorists. When a driver fails to uphold their legal duty, car accidents can occur. The injuries associates with a car accident can be grave, from broken bones, torn ligaments, deep lacerations, soft tissue damage, and loss of limb, traumatic brain injury, and even loss of life. Distracted driving, driving under the influence, excessive speeding, failure to yield, dangerously changing lanes, running a stop sign, and failing to signal, are some instances where a driver can be held liable for their negligent driving actions, if these actions cause another party to be injured. By seeking compensation or money damages for the medical expenses, lost wages, and the injury itself, personal injury attorneys attempt to make their clients whole, as if they had not been involved in a serious accident, and further help to deter other motorists from driving in a dangerous manner, thus making driving a little safer.
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Ride-share companies or transportation network companies, also known by their car service apps names, such as Uber, Lyft, Sidecar, Drive, LeCab, Snapcar, and Flywheel, many of which got their start in San Francisco, are beginning to see their liability free loopholes begin to close. The recent boom in ride-share companies has come with significant backlash, much from the already highly regulated and liability insured limo and taxi drivers and their representative organizations. For years now professional drivers have been bring to light the dangers of ride shares. Much of the unfair competition claims stem from the fact that ride-share companies are seen as unregulated, underinsured, limited liability companies, that are not required to maintain their vehicles as vigilantly, or limit the hours of operation for their contracted drivers thus lessening driver fatigue, nor must they run background or criminal checks on their drivers, or require the ride-share companies to have liability insurance as costly or as inclusive as other forms of transportation require by both state and federal law. Contrary to distracted driving laws, ride-share companies also tend to utilize a GPS like interfacing system to communicate with their drivers, potentially leading to more distracted drivers on the cities roadways. Furthering frustrations, when accidents do happen these ride-share companies are quick to distance themselves from the driver and the subsequent harm caused.

While a fairly new business model, ride-shares are the online equivalent of the middleman. A “user” also known as a passenger, downloads an app, signs up for the service, linking their account to a credit card, and simply logs in to hail a cab, all in the convenience of their own home, business, or social gathering. The user/passenger would then have a picture of their driver, license plate number, and expected arrival time texted back to them on their mobile device. Uber, which is available in Philadelphia works like this; within a short amount of time the user will be greeted by either a base car, picture a black Lincoln model car, with a price tag of $7 plus total travel time, or an SUV option with a $14 base cost, plus the cost of the total travel time. Included in the cost is a tip for the driver. There is nowhere to indicate that the driver actually gets the tip and it is not just incorporated into the drivers total daily takeaway, therefore subject to be split with whatever agreed upon percentage the middleman acquires.

As a Philadelphia personal injury attorney I was particularly interested in a recent wrongful-death suit brought against the ride-share company Uber, and an Uber driver charged with vehicular manslaughter. The driver, 57-year-old Syed Muzzafar of Union City, was a driver contracted to work with Uber this past New Year’s Eve, one of the companies biggest surge pricing nights. The suit claims that Muzzafar was signed in to Uber and while not currently carrying an Uber passenger, the driver was interfacing with the Uber equipment on one of their busiest nights. While all rides vary in cost per the distance traveled in a taxi, for ride-shares companies, the cost is also contingent upon the particular time, place, or day that you happen to use your ride-share. Nearly all ride-shares use a form of price surging as a means to add incentive to drivers “to get out on the road during peak hours when riders need them the most.”

In this instance the driver Muzzafar, was working during such a peak time. He had already picked up an Uber passenger, dropped off a passenger, and was awaiting anotehr Uber call when he turned into the intersection. Muzzafar struck a group of pedestrians as they crossed the street, in a crosswalk near the Civic Center, in San Francisco. 6-year-old Sophia Liu, was fatally injured and died at the scene. Her 5-year-old brother was seriously injured and was transported to local area hospital for treatment. Their mother was also struck and injured as she walked with her children in San Francisco’s Tenderloin neighborhood. The suit alleges that Uber’s business practices run afoul of California’s distracted driving laws by requiring any Uber driver to interface with a device similar to a cellphone in order to secure and confirm a new passenger or user request. The suit requests unspecified damages as they claim negligent hiring and supervision by Uber, negligence with a motor vehicle, wrongful death, and infliction of emotional distress. It will be interesting to see how this plays out in court and what the rippling effects this lawsuit may have on the highly unregulated ride-share community.
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Yearly, thousands of children are injured and hundreds more are killed, by a preventable road collision called backover accidents. A backover accident occurs anytime a vehicle moving backwards strikes a person or property. According to the Department of Transportation, each year as a result of backover accidents, 292 people are killed and 18,000 more are injured. Approximately 44 percent of the fatalities resulting from a backover accident are children under the age of 5, with another 33 percent represented by adults over the age of 70. Backovers fall into the category of “nontraffic” incidents, meaning that they take place off of public roads or highways, and usually occur in private driveways and parking lots. Backover accidents typically occur at low speeds, but even at 5 MPH, your body and property can sustain significant damage, as a car on average weighs approximately 3,000 pounds. Typical injuries resulting from a backover accident include, broken bones, nerve damage, traumatic brain injury, internal bleeding, and death. According to KidsandCars.org, the first nonprofit organization to keep a record of children injured as a result of a backover accident, found that 50 children are backed over every single week, with two children dying as a result of their injuries. Even more tragic, in seventy percent of the cases, a family member or close relative was behind the wheel at the time of impact. Backover accidents devastate families across all cultures, races, and socioeconomic spectrums; despite the devastation of backover accidents these types of injuries are preventable tragedies.

Many families directly affected by the loss of a child as a result of a backover accident have petitioned their legislature to reform the automotive industry to require all new vehicles to come equipped with rearview cameras. Dr. Greg Gulbransen, a pediatrician from Oyster Bay, New York, knows the heartache associated with backovers all too well. One evening in October 2002, Dr. Gulbransen reversed his wife’s car down their driveway when he struck and killed his son. Cameron, Dr. Gulbransen’s two-year-old son, had just learned how to open a door, and did so for his first and last time that evening. Cameron died in his father’s arms. After many meetings with local representatives and interest groups, Congress unanimously passed, and former President George W. Bush signed into law, the Cameron Gulbransen Kids Transportation Safety Act on Feb. 28, 2008.

The law however did not specify how best to improve visibility behind vehicles, instead it left much to be decided by the regulatory system. After much delay, in November of 2010, the Office of Regulatory Analysis and Evaluation released their preliminary regulatory impact report indicating that backup cameras would save 95 to 112 lives per year. The National Highway Traffic Safety Administration charged with completing the new standards have repeatedly delayed proposal of any rule citing that it could cost up to $2.7 billion to equip a fleet of 16.6 million new vehicles with rearview cameras. Auto industry lobbyist through the Alliance of Automobile Manufactures, a trade group representing Ford Motor Co., General Motors Co., and other major automakers, agreed with the purpose of the law, but not in the proposed costly implementation. Instead regarding cameras as a consumer choice, not a government mandate. Approximately one out of every three cars sold in 2013 was equip with a rearview camera. In a writ of mandamus issued on September 25, 2013, Consumers Union, Kids and Cars nonprofit, and several families affected by backovers, petitioned the Second Circuit to compel the Department of Transportation to release a final rule within 90 days. The Transportation Department held that the court should dismiss the petition as NHTSA is examining “real-world evidence to analyze the performance of rearview video systems and how the drivers in those vehicles used the systems in the course of actual backover accidents…” Currently if the government meets its January 2015 deadline without further delay, automakers would still have over two years to fully implement the new safety requirements, and would not be in effect until 2017.

There seem to be two forces at work here, the unpredictability of children with their fearless attitude, and the lack of visibility in cars also known as “blind zones.” Rearview cameras aim to address the second concern but should not be viewed as a silver bullet. One recent study from Oregon State University researchers found that only one in five drivers actually used a rearview camera when it was available, but 88 percent of those who did use the camera avoided striking a child-sized decoy. Even with advances in technology, there is no substitute for parental vigilance and guidance of their young. We need not wait for a final ruling to decrease the frequency of backover accidents. Children must to be taught how to coexist with cars, and all the dangers associates with large transportation vehicles. Drivers in residential neighborhoods with small children can reduce this child fatality by implementing a low cost alternative, a sweep of your car prior to turning on the engine. As Consumer Reports states, “Your first line of defense against back-over accidents is to get out of your car and check behind it just before you back up.”
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According to the Old Farmer’s Almanac, winter begins with the solstice on December 21st and does not end until the commencement of the vernal equinox on March 20th; this leaves three long months of winter driving, with an increased potential for collisions, property damage, and loss of life. What makes winter driving so different from other seasonal driving? In short, the unpredictable weather factor, and the vast number of people on the road, many of whom are neither as experienced nor confident driving in winter conditions. The winter season happens to coincide with the three deadliest driving holidays, two of which fall within the winter months and one at the cusp, Thanksgiving, Christmas, and New Year’s. Nearly 39 million motorists were estimated to have traveled more than 50 miles to celebrate this past Thanksgiving holiday. The estimate according to AAA for motorists who drove home for Christmas this past year is expected to have lapsed the Thanksgiving estimate by the millions. The unpredictability of the type of weather one may encounter on a winter drive encompasses everything from blinding sunshine to a nor’easter. By slowing down, and estimating into our winter arrivals a bit more travel time, as well as tripling the driving distance between vehicles, we can all help to avoid a potential car crash. If we accept for argument’s sake that we as motorists in the United States enjoy the freedom of freely traveling, then we must also accept the responsibility for doing so in a safe manner.

Part of winter traveling that is especially different from other seasons is the cost of procrastination and the importance of preparedness. Take for example a typical springtime scenario, you got a flat while parked, and now your car wont start, and you have no idea where you placed those jumper cables. Assuming no other factors, you typically will be able to wait out a jump and tire repair from a local AAA road service assistant, without it impeding your health. Take that same example and place it during a February’s winter storm, and we are talking the difference between a potentially life and death scenario. Now that winter has arrived you may want to ask yourself is my winter survival pack replenished, and or restocked, and ready for the 2014 winter season?

Things to consider in your winter preparedness include are the windshield wipers in working order? Have you replaced your wiper fluid with high-quality winter fluid? Especially helpful for long drives, have you treated your windshield and mirrors to a coating of water-shedding material such as Rain-X? Are your lights in working order? Will other cars in limited visibility be able to see your cars headlights? Are you going to be driving in a place that regularly has significant snowfalls? If so, has your county or state regulated winter tires? Do the tires currently on your vehicle have sufficient tread and air pressure? If there is any major repair that needs to be done to your car, do so before you must drive your car for an extended period, such as a 6-hour drive to visit your family for the holidays. Can you easily access your ice scrapper, booster cables, blanket, warning flares, small snow shovel, gloves, flashlight, and a bag of abrasive material (such as sand salt mixture, or cat litter)? Lastly, if you do need to use your car as a shelter while waiting for AAA or road assistance, do you have everything you need to survive? The main difference between driving during the winter months and any other season is that when you break down, or are involved in a collision, the situation shifts from what can we do while we wait, to can we survive the wait.
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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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I was interested to read that medical malpractice payments nationwide are at an all-time low, according to a new study. MedPage Today reported that both the value of payments and their number dropped to their lowest levels in 2012, following ten years of declining values. But it’s not necessarily good news, according to MedPage Today. An academic at Temple University here in Philadelphia told the website that doctors’ groups are more hostile to medical malpractice lawsuits than they once were, and more governments have responded by enacting “tort reform” laws that limit patients’ rights to recover for serious injuries. Another expert said malpractice payments may be down because visits to doctors in general are down.

The study was authored by public-interest watchdog Public Citizen, which said the results showed that malpractice payouts aren’t to blame for rising health care costs. Over the past 10 years, it said, the cost of health care has risen 58.2 percent, while medical malpractice payments have fallen 28.8 percent. If malpractice lawsuits were really a major driver of health care costs, the organization argued, the total cost of U.S. health care in 2012 would have been less than half of the actual cost. It calculated payouts at 0.11% of national health care costs. Public Citizen said the drop in malpractice payouts wasn’t because of a measured drop in actual malpractice; it said between 1/4 and 1/7 of hospital patients suffer some kind of adverse event. Rather, the researchers attributed the drop to the large number of state laws enacted that limit patients’ rights to sue.

That includes many limits on medical malpractice lawsuits here in Philadelphia, where we have an affidavit requirement for new lawsuits, among other laws. The Pennsylvania legislature often attempts to make other such laws. The trouble is, these laws typically put difficult legal barriers in front of people who are seeking fair compensation for a catastrophic injury that was no fault of their own. The affidavit of merit requirement, for example, frequently stops plaintiffs when they miss deadlines to file the affidavit, have trouble affording it, or file one only to have it rejected by the trial court. That’s why attorneys like me who practice medical malpractice law in Pennsylvania are generally against further attempts to “reform” lawsuits in favor of the medical industry.
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