TOYOTA   ACCIDENTS | PRIUS–LEXUS-TOYOTA  RECALLS | “SUDDEN ACCELERATION”

Never before in the history of the automobile has there been a manufacturer’s recall even remotely approaching the 10,000,000 recall notices issued by the Toyota Motor Company.   It is a number that staggers the imagination and, inevitably, will lead to an avalanche of lawsuits.

The lawsuits will probably vary in kind.  Some lawsuits will involve class actions concerning the significant reductions in the resale value of cars affected by the  recall.

The most serious lawsuits will be brought  by those injured in accidents involving  recalled vehicles.

There has even been a report of an individual, involved in a serious accident attributed to him, that resulted in his being imprisoned when his story that there was sudden, unintended acceleration was not believed.  Presumably, if a review of the evidence indicates that a Toyota defect was actually the cause of that accident, there could be a lawsuit based upon the unjust incarceration.

While those whose cars have been recalled undoubtedly suffered enormous inconvenience, it would require a serious injury before a personal injury lawsuit would be entertained  by a Personal Injury Attorney.   Calls to our office from those receiving recall notices and who suffered  no injury, have had to be informed that, barring a serious injury, the costs to our office to bring a lawsuit would outweigh the recovery we could anticipate, even assuming the best of circumstances.

With new evidence becoming public, that relates to the “sudden acceleration” problems of the various Toyota vehicles including Prius and Lexus, the advantage to the injured litigant becomes  more  pronounced.  To those who have not yet had a chance to have their vehicles “repaired”, and even to those who have had their “repairs” completed  pursuant to the recall, any accident, involving both “sudden acceleration” and an injury, should be the subject of a call to a Personal Injury Attorney. ( There is significant basis to believe that Toyota  may not have fully developed a total “fix” for the problems their cars have experienced.).

TRIP & FALL CASES

“UNKNOWN CAUSE”

Countering the “Open and Obvious” and “Not Inherently Dangerous” Arguments

If the victim of a slip or trip and fall accident is unable to identify the cause of the fall, then the general rule applied by virtually all attorneys is that there is no viable case.  It is ultimately not sustainable  to attempt  to  hold another party responsible  for one’s injury if the cause, attributable to that alleged  responsible party, is only based  on speculation.

Experienced Personal Injury Attorneys, however, will not be quick to dismiss the possibility of a lawsuit based on the first hint of an “unknown cause”.  Truth be told, what may well not be evident to the layman that was injured, may be self-evident to a more experienced eye or to an expert.  A most obvious example may be the absence of a handrail which, to the average person, may not amount to an obvious defect.  Nevertheless, the absence of a handrail could well be the basis for a successful lawsuit.

The apparent absence of a cause of an accident is common in “single step” cases.  A person falls down a  single step.  The  potential defendant argues the absence of liability both  because the step  was “open and obvious” and certainly “not inherently dangerous”.    Both of  these  positions are traditional grounds  for granting defendants “summary judgment” (dismissal) of lawsuits.  The presence of “warning signs”, advising passers-by of dangerous conditions, adds  substance  to  such  defense  positions.

It is up to the Plaintiff’s team, the attorney backed by an expert, to direct the court’s attention to any existing defect – such as lack of handrails, a dangerous  slope, a riser that violates the building code, a cracked or defective lip, etc. that would resurrect  a potentially moribund lawsuit.  What the seasoned Personal Injury Attorney will do is anticipate arguments the defense will interject, and prepare the appropriate groundwork in  both  paperwork and deposition testimony, to give support  to countering those defense positions.

NEGLIGENCE: DUTY AND FORESEEABILITY

The overwhelming number of personal injury cases involve an act of “negligence” by one individual that results in an injury to another.   However, the fact that one individual’s negligent act results in another individual’s injury does not automatically create a valid basis for a lawsuit by the injured party against the negligent party.

The most famous “tort” (“tort”= a civil wrong) case studied by every law student for generations is Palsgraf v. Long Island Railroad. Mr. Palsgraf was standing on a train platform after buying his ticket, near some scales.  At the other end of the platform some men were rushing onto a train.  Conductors on the train helped the men aboard, but in the rush one man dropped a package which contained fireworks.  The fireworks exploded, causing the scales near Mr. Palsgraf, at the other end of the platform, to fall and injure Mr. Palsgraf.    Was the LIRR liable to Mr. Palsgraf for the injury he sustained?

The appeals court discussed  whether, in the first instance, there was any duty owed  Mr. Palsgraf by the LIRR and its conductors, since he was so far from the scene of the activity involving the alleged  negligence.  The lower court  ruled that there was a duty owed to Mr. Palsgraf.  The appeals court (overruling the lower court that found in favor of Mr. Palsgraf) decided that it was not reasonably foreseeable that the action by the conductors would result in injury to someone as remote as Mr. Palsgraf was to the scene of the acts. Consequently, there being no “duty”, there is no basis for the LIRR’s liability !

Since that case, courts have differed considerably in determining the basis as to whether negligent parties owe a duty to, and therefore become liable for, injuries that occur to remote individuals. The Palsgraf court established the principle of “foreseeability”–would a reasonable person have foreseen the possibility of the incident resulting in injury, in the manner the accident occurred?

Other courts have adopted a broader definition: was there a continuous and direct connection between the cause (the negligent act) and the effect (the injury)?   “Foreseeability” of the exact occurrence is not as dramatic an issue in this latter scenario.

STOP & FRISK

In 2009 there were approximately 575,000 “Stop & Frisk” reports filed by NYPD officers. Of these, only about 6% resulted in arrests, and another 6% resulted in a summons being issued. The position of the Police Department is that Stop & Frisks are an effective crime-fighting tool.  The Department holds onto the information it gathers in each Stop & Frisk “indefinitely,” with the intention of using that information, if necessary, in future investigations. Between 2004 and 2009 there were 2,798,461 “Stops” by the police, and 2,467,160 resulted in no action at all, yet each person stopped has a record with personal information on file with the police.

Certain members of the New York City Council have demanded that all the individuals, in instances where either no action was taken at the time of the “Stop”, or where action may have been taken but the person was later found “not guilty”, or was exonerated in some other way, be removed entirely from this database.  The majority of individuals affected are minorities (Black and Latino).

The final outcome of this tug of war between the New York City Police Department and the City Council has yet to be determined.  I will note, personally, as a former New York City council member, that it is my belief that any recalcitrance by the Police Department can be overcome by the City Council through the passage of legislation, if that is truly the Council’s desire.

MOTOR  VEHICLE  ACCIDENTS

Since  records of the “rate of traffic fatalities” have been kept, 2009 has recorded the lowest rate ever! “Fatality rate” involves the number of traffic fatalities combined with the number of miles traveled.

In just the last year alone, there was an 8.9% in the number of deaths reported:  37,261 in 2008 and 33,963 in 2009.  The “rate” of deaths in 2008 was 1.25 per “100 million vehicle miles traveled (VMT); in 2009 it was 1.16 per VMT–again, the lowest ever recorded!

Why the decline? According t the National Highway Traffic Safety Administration, it is due to a combination of factors including the increased  use of seat belts prompted  by national campaigns to promote seat belt use, and campaigns to reduce drunk driving and distracted driving (which involve the use of cell phones for calls and texting). In addition to these items indicated by David Strickland, NHTSA Administrator, we should also look  to the increased presence of collision avoidance devices appearing in automobiles.

ACT  OF  GOD: NATURAL DISASTERS

If, today, a tornado were to destroy your home, “who ya gonna sue?”  Hope that you had enough, and appropriate,  insurance  coverage?

Just recently a fierce winter  storm caused ice to fall onto, and break through, a glass atrium of a New York office building.  Several people were injured, though thankfully, only slightly.   In Washington, D.C., the impact of that same winter storm that wracked almost the entire East Coast, created winds gusting up to 60 mph that shook scaffolding, causing two workers to lose their footing and fall.  Though seriously injured, both survived.   “Act of God”?    Certainly.   End  of  story?  Not at all !

There are certainly certain natural events that occur that result in damage to individuals, and for which there will be no recourse, by way of a lawsuit.  God is not a viable litigant !

Before you jump to the conclusion, however, that any given event–any “Act of God”–even a hurricane, a  blizzard, a raging flood or a tsunami–may not lend themselves to seeking compensation from a source other than, or over and above, insurance, it would be wise to consult with an experienced Personal Injury Attorney.

Most common in the winter months are cases involving falls on ice and snow.  Without going into details in this area of law, which can be difficult, the experienced attorney will examine the existence of local ordinances regarding snow removal.  The attorney will also look at any acts by a property owner that aggravated what nature may have created, had there been no human interference.

With the examples of the glass atrium and the scaffold, we enter into areas of law that also lend themselves to imposing responsibility upon third parties.  In both instances, laws exist that will govern the imposition of liability on certain third parties (building codes, labor law).  And even in addition to those grounds for a lawsuit, there are many instances where the concept of “foreseeability” is applicable which will subject certain third parties to liability for what otherwise seem to be an “Act of God”.

“Foreseeability”, the facility to perceive, know in advance, or reasonably anticipate that damage or injury will probably ensue from acts or omissions (legal dictionary definition) will be dealt with in another posting.

FOOD  POISONING

Just this month  (March, 2010) a coalition of health and consumer groups  put out a study that estimated the annual health related cost of  “food borne illnesses”  to be $152 BILLION !

While lately there have been a rash of well publicized outbreaks of contamination of everything from meat to  lettuce to peanuts, the effect of food poisoning is an everyday occurrence, making the general public susceptible every time each of us enters any type of public eatery for a snack or a meal.  Health practice standards, set by a variety of government agencies, apply not only to the various type of foods as they are processed, manufactured and distributed, but apply as well to the handling of food in local restaurants and “take out” stores.   The disregard of these established standards is a leading cause leading to food poisoning.

According to the US Centers for Disease Control and Prevention, 76 million people get sick each year with food borne illnesses and, unfortunately, 5000 die.

For the practicing Personal Injury Attorney, it is crucial in attempting to bring a viable lawsuit, that once food poisoning was confirmed by competent medical examination, the source of the food poisoning can be firmly established.   The experienced Personal Injury attorney has a number of available methods to achieve this end.   The medical exam should reveal the cause of the poisoning–the organism involved.  With that in  hand, the attorney will then work backward to pinpoint the source.

The source may be a well advertised item that has recently been recalled.  It may be from the take-out food someone recently ordered and which, with some luck, may be still available to the victim making it easy to submit for evaluation.  In the case of a restaurant, knowledge of the organism involved would give us an idea as to how long the “incubation period” is for food poisoning to take effect for that particular organism.  Trace that back to the time the victim ate in a particular restaurant, and your suspect is before you.

Food poisoning can be extremely serious, and painful.  Too often individuals confuse signs of food poisoning with flu or other symptoms.

Below, for your help, is a list of common food poisoning symptoms.  If you ever suspect you, or a relative or friend, was a victim of food poisoning, try to do all you can to identify the source as soon as possible.

FOOD  POISONING  SYMPTOMS:

—onset of symptoms often sudden and abrupt

—watery and/or bloody diarrhea

—headache

—fever

—bloating and gas

AUTOMOBILE INJURIES: HOPEFUL SIGNS | POTENTIAL DANGER

A recent report by the Insurance Council of Texas indicated a steady seven year decline in Texas in the number of people injured or killed in automobile accidents. The decline is over 20%. The Texas Department of Transportation confirms a drop in five of the last six years. While we have not performed the research to confirm this point, scuttlebutt among the personal injury bar is that the number of automobile cases across the nation have diminished significantly over the past several years. This is reflected in caseloads involving auto accidents, and in the nature of cases appearing on court calendars. It is confirmed by the Insurance Institute for Highway Safety which indicated that Texas is following a nationwide trend. (“Claims Journal,“ Feb. 10, 2010)

Why is this the case? Simply because the safety features now available in cars assist the vehicle occupants to mitigate injuries when accidents do occur, and also assist a vehicle operator in avoiding an accident from occurring in the first place. Effective seat-belts, front and side airbags and head restraints fall into the mitigation of injury category. Electronic stability control, traction control, ABS brakes, and even forward collision and lane departure warnings fall into the accident avoidance category.

We remind the reader, however, that a major contributor to a potential upsurge in highway accidents lurks in mobile devices, whether handheld or otherwise, as numerous studies have indicated.

On this point, an insurance company recently settled a matter involving the death of two bicyclists in South Carolina for 5 million dollars (unusual in itself in that such a large amount of insurance was available). Why did the company settle on behalf of its inured rather than go to trial?: Their insured had pleaded guilty, criminally, to reckless driving after having been originally charged with “reckless homicide”. A basis for those charges: the driver of the vehicle was on a cell phone at the time of the crash. (Claims Journal, February 10, 2010)

If you have been injured by a driver that was on a handheld device in any manner contact our Manhattan Accident Attorneys office at Orlow Law today.