Articles Posted in car accidents

According to Consumer Reports, car seats for infants (the rear-facing seats for infants up to about one year in age) usually fail in broadside crashes — 10 of 12 models tested failed, some “disastrously” (the seat often separated completely from its base). One popular model — the Evenflo Discovery — failed not just in broadside collisions but also in head-on collisions.

One possible explanation for the failures: the manufacturers are only required to test infant seats in head-on collisions, despite that about 30 infants in the United States die each year in broadside collisions.

Parents are cautioned, however, that holding an infant in your arms during car travel is not a safe alternative.

If you — like many personal-injury victims — are taking over-the-counter (OTC) pain medications, you need to be aware of new proposed FDA (Food and Drug Administration) warnings.

On January 2, 2007, the Washington Post reported that the FDA has proposed stronger warning labels on over-the-counter “painkiller” medications, especially because of the risk of liver and stomach damage. These warnings would apply to all OTC medicines containing acetaminophen and nonsteroidal anti-inflammatory drugs (NSAIDs), including aspirin, naproxen and ibuprofen (in popular products such as Tylenol, Aleve, Motrin, Advil and Tylenol Arthritis Pain).

These medications — often used to treat headaches and muscle pain/discomfort — should be taken at the lowest dose possible for the shortest time possible, especially if one is taking any other medicine(s). There are additional known hazards when mixing alcohol with any of these medicines.

Traffic deaths in the United States in 2005 — 43,443 — reached their highest levels since 1990, according to government statistics cited by the Insurance Journal, The increase was more than 1 percent compared to 2004.

This increase was attributed in part to increased deaths from motorcycle and pedestrian accidents. One possible explanation for the spike in this particular segment of the population is that — as our urban/suburban populations rise, and our roads and highways become more crowded — we as drivers focus most on what endangers us — the bigger, looming objects on the roads like trucks and SUV’s — and we don’t look for or just don’t see the smaller figures on the roads like motorcyclists and pedestrians.

The lessons to all of us? Driving is not just about protecting ourselves; it’s also about looking for and protecting others, especially those who most need our protection — like the elderly pedestrian who is not alert or the child running mindlessly across a neighborhood street.

No, Virginia, your jury verdicts for injured men, women and children are not excessive or “out-of-control.”

The American Tort Reform Association — “ATRA” — has published its list of “Judicial Hellholes” of 2006 … and, Virginia, you are not on its list. You are not even an “Honorable Mention,” and you are not even on the “Watch List.” One sure way to get on the list? Allow runaway jury verdicts.

No doubt Virginia’s absence from this list will come as a great surprise to Virginia jurors who long have been besieged with the cries of ATRA and the insurance companies and corporations to the effect that jury awards for the injured are “everywhere” out-of-control.

A Circuit Court Judge in Virginia recently commented to me and other counsel that the defense of sudden emergency is “dead” in Virginia. I think the Judge was being somewhat facetious in order to underscore the significance of a recent Virginia Supreme Court decision, but the question remains — does sudden emergency still exist in Virginia?

On September 15, 2006, the Supreme Court of Virginia announced its decision in Herr v. Wheeler , 272 Va. 310, 634 S.E.2d 317. In that case Wheeler loses control of her vehicle in heavy rain when it hydroplanes on the wet roadway and suddenly crosses into Herr’s lane of travel. Wheeler had known of the slipperiness of the roadway, and was being “cautious.” The Herr Court (at 288) found that the trial court erred in granting Wheeler’s request for a “sudden emergency” instruction, holding that:

[W]hen abnormal conditions are known and the heightened hazards they create are reasonably foreseeable, the standard of ordinary care the law imposes is higher. Where nature has created hazardous conditions on a highway, and such hazardous conditions are open and obvious, the operator of a motor vehicle is required to take care in the operation of his vehicle proportionate to the known dangerous condition of the highway.

If you are a personal-injury lawer in the conservative state of Virginia or elsewhere in the land of tort reform, this is my admittedly provocative view — employed by my firm over the past six (6) years or so — of how to obtain just personal-injury settlements for your clients:

1. Don’t just dabble in personal-injury cases; the insurance defense lawyer is too good for that, and he will only smile as he runs over you while you are dabbling.

2. Study and read about how to be a better trial lawyer. If you don’t enjoy much of what you are reading, try something else (not just another book; try another line of work).

Marlo said she was injured in the accident. As her attorney, I believed her. But Allstate Insurance Company just knew that it could push her around. Allstate’s insured said that her car was barely moving when it hit Marlo’s. The only exterior damage to Marlo’s car were scratches on her rear bumper, without dents. Marlo claimed back pain, but she had complained about back pain a couple of months before the accident. Marlo had no medical expenses or lost wages. Her treating doctors largely dismissed her injuries and would not cooperate or testify at the Loudoun County, Virginia trial. Marlo went to a doctor outside her plan who told her that she would need some medical treatment — not now, but as she got older.

Allstate’s insured swore in writing that she had $100,000 of liabililty coverage. Marlo demanded settlement for the coverage limits. Allstate did not respond and made no offer.

Shortly before trial its insured swore in writing that her liability coverage was not $100,000 but only $25,000; and Allstate produced a declaration page verifying $25,000 in coverage. Marlo then demanded the $25,000 coverage, giving Allstate a short deadline by which to respond and stating that after the deadline she would not extend or respond to any settlement offers. Allstate did not respond and made no offer.

Coma, confusion and character. Mark Schluter had all three. In Richard Powers’ powerful novel The Echo Maker — recent winner of the prestigious National Book Award — Mark is the victim of a mysterious crash that leaves him comatose and confused, and needing every bit of his toughness and character.

In the first few hours of his living nightmare, an anonymous person leaves Mark a note at his hospital bedside:

I am No One but Tonight on North Line Road GOD led me to you so You could Live and bring back someone else.

On October 6, 2006, the Virginia Supreme Court reinstated a Fairfax County jury’s $1,800,000 verdict in a mild traumatic brain injury case that I tried in August of 2005. In Wu v. Wirthlin Worldwide, the trial court had found after the verdict that at the time of this accident Defendant Wirthlin’s employee was not within the scope of employment because at the time of this accident she was doing nothing more than merely traveling to work.

The Supreme Court rejected the trial court’s analysis that an employer cannot be vicariously liable when the employee is traveling to work at the time of the accident; instead, the Court focused on whether there was sufficient evidence of the employee’s intent to benefit the employer at the time of the accident. While the employee had testified that she was returning to the office to pick up her glasses and “other items,” her boss testified that the employee had told her that she was returning to the office in order “to pick up project files in preparation for” a meeting the next day. The Court held that:

Because the record shows conflicting credible testimony regarding (the employee’s) intent at the time of the accident, there existed a sufficient question of fact concerning whether she was acting within the scope of her employment to submit the issue of Wirthlin’s liability to the jury. The trial court thus erred in substituting its judgment for that of the jury.

On October 5, 2006, the Insurance Institute for Highway Safety in Arlington, Virginia — a non-profit organization focused on reducing injuries and deaths on our roadways — published the results of a new study on the safety benefits of side airbags.

The study’s findings included:

1) side airbags substantially reduce the risk of death;