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Tuesday, 07 February 2012 10:45

Employer Liability in Car Accident Cases

accident-reconstruction1If a car accident occurs while an individual is driving a vehicle in order to perform his or her work duties or to do something for his or her employer, there may be employer liability. This is most often a problem in cases in which a truck driver or a commercial vehicle driver causes an accident and his or her employer is sued. In any case, whether or not an employer will be liable depends on whether there is some legal reason for assigning responsibility to the employer.

When Does Employer Liability Arise?

There are two main ways that an employer can be held liable for a car accident caused by an employee: negligence on the part of the employer and vicarious liability.

Employer Negligence

Employer negligence may involve, for instance, negligent hiring of the employee or negligent supervision of the employee. When a company hires someone that they know will be driving a company vehicle, the employer has a duty to exercise reasonable due diligence in order to make sure that the employee is a safe driver.

At a minimum, if the employee is going to be driving a commercial vehicle, the employer should make sure that the employee has a commercial driver's license that is in good standing and that has not been suspended. Many employers also take additional precautions like checking a past driving record or performing drug testing.

Negligent Supervision

Negligent supervision is another way in which an employer can become responsible for employee accidents. Employers should have reasonable safety policies in place and should make sure all of their drivers comply with safety laws. This means if an employer has truck drivers working for him/her, the employer should make sure the drivers follow logging requirements set by federal and state law and that cargo is properly weighted and loaded. If an employer fails to check and make sure that the employee is exhibiting reasonable care and skill in doing the job required, then that employer is liable for negligence.

Vicarious Liability

Vicarious liability doesn't necessarily require that the employer was negligent in any way themselves. Vicarious liability is a doctrine of law that asserts that the actions of an agent are essentially the same as the actions of the principle directing the agent. This means that an employer is considered to be the "principle", and when the employer tells employees (the agents) to do something, it is just as if the principle is the one acting. Of course, this rule only applies if the agent is actually in the process of doing something for the principle at the time when the accident happened.

For example, if an employee is sent to the store to pick up copies and got into an accident on the way to picking up those copies, then the employer could be liable. If the employee decides to stop for coffee on the way back and gets into an accident while getting coffee, he/she isn't acting on behalf of the employer/agent, so the employer usually won't be responsible. There are also usually exceptions that an employer will not be liable for intentional bad acts done by the employee, so if the employee decides he wants to run someone over, the employer won't be at fault.

Getting Help

If you have been involved in an accident in which employer liability might become an issue, consulting with a lawyer is recommended. Your attorney can explain to you what liability rules will apply in your case and how your legal rights can be best protected based on the situation that led to the accident.

Published in Workers Compensation
Tuesday, 06 April 2010 05:02

Determining Fault in Car Accidents

In most car accident cases, the primary issue is to be able to determine who is at fault. Quite often, a police report is generated which may state which driver is at fault. On occasion, an individual who wasn't even driving the vehicle or present at the accident can be assigned blame. These situations include when an employer is found to be liable for a wrongful act committed by an employee, or when you allow someone else to drive your vehicle. If you let a friend drive your car and they are involved in an accident, you are responsible for their actions.

Finding help in determining who is at fault may require more than a police report. Witnesses are used to testify as to what they saw. They may be called upon to give a recorded statement to the insurance company or assist in reconstructing the accident. If you choose to hire an attorney to represent you with your auto accident case, these professionals will sometimes hire "expert witnesses". These are people who have skills and experience in determining the cause of the accident by taking into account design and human factors, which may play a role in accident causation. A witness may not even be a human. Surveillance cameras can act as a witness, which doesn't rely on human recollection.

Traffic Laws

Being knowledgeable about the local and state traffic laws will help you in determining liability. For example, in several states across the nation, it is illegal to utilize a mobile phone that is not a "hands-free" device. That means you can talk on your cell phone via speakerphone or headphone attachment. If a witness or the other party involved in the accident saw you illegally using a mobile device, they can use this as evidence against you.

Be aware of the speed limit. If you were traveling 40 miles per hour in a zone marked as 30 miles for the legal limit, you can be given a speeding ticket. The claim of "not knowing" is never a defense.

Rear End Collision

The most common type of accident is the rear-end collision. A typical scenario is when a driver suddenly slows down or brakes to avoid hitting something in the road, the vehicle behind the first car hits them resulting in a rear-end collision. Injuries to the occupants of the impacted vehicle are generally much worse because they didn't have any warning. Whereas, the person who hits the vehicle may already have time to brace for impact when they realize they haven't been able to stop in time. The driver of the car that rear-ends the other vehicle is almost always found to be at fault.

These accidents usually involve injuries to the back and neck. Often, whiplash and soft tissue injuries are equally prevalent. In more severe cases, permanent or serious injuries can be a consequence. Make sure to always use your seat belt and ensure that all passengers are restrained as well.

State Vehicle Code

Each state has a group of laws, which are referred to as the vehicle code or traffic code. The Department of Motor Vehicle Guide can serve as basic information. However, there are new laws passed which may not be included in this reference material.

Another example of where the state laws differ is in the limits of blood alcohol content. For example, in the state of California, it is now unlawful for a person who is on DUI probation to operate a motor vehicle at any time when his or her blood alcohol is .01% or greater.

Obtaining and Using a Police Report

Certain police records and reports maintained by the police department are accessible to the public. You should contact the local police department or look on their website to see what information is required in order to obtain a report. These typically include the names of the parties involved, the date of the incident and the location. A fee will be charged as these fees may vary, but are usually $5.00 for an accident report. Some agencies will require you to pick up the report in person, while others will mail a copy of the report to you at no additional charge.

Since there is a great deal of information recorded in these reports, it can be an extremely useful tool in determining fault in the case of an auto accident. Most reports will list the name and telephone number of witnesses. In some situations, the report may contain witness statements about what happened. Obtaining their contact information can be a valuable asset for you and/or your attorney when proving what happened and who was at fault.

Accidents involving Cell Phones

Recent studies suggest nearly 2,600 people are killed each year in accidents involving drivers using their cell phones. Currently, a total of six states and the District of Columbia have banned driving while talking on a hand-held cellular phone. These states include, California, Connecticut, New Jersey, New York, Utah, and Washington. Text messaging is banned for all drivers in 14 states and the District of Columbia. In addition, 10 states currently have restrictions in place, which apply to drivers under a certain age. You need to make sure you are following the laws governing the state in which you are operating a vehicle.

You may be liable for a car accident if you were using a cell phone illegally while driving. In some cases, you may be found guilty for contributing to the accident due to careless driving which may include; driving with only one hand on the steering wheel, or taking your eyes off the road to reach for a cell phone or dial a number.

An employer can be held legally responsible for a car accident if an employee was on a work-related call at the time of the accident. The injured plaintiff is more likely to sue the employer as they generally have more money.

Motorcycle and Bicycle Accident Cases

According to recent statistics, motorcycle and bicycle crashes involve other vehicles 75% of the time. The most common are accidents in which the car or truck did not see the cyclist. They either collide or the bike is forced to swerve and crashes.

Due to increasingly high gas prices and the struggling economy, more people are riding bicycles. Accidents involving vehicles and cyclists are on the rise.

A common cause of motorcycle accidents is the fact that motorcycles are able to stop much faster and require less distance to stop than other vehicles. This causes a rear-end accident because the driver of the car or truck was negligently following too closely behind the motorcycle. Other potential hazards to cyclists include debris in the roadway, grease or motor oil on the pavement, uneven concrete or blacktop surfaces and potholes.

Helmet Laws

Currently, 46 out of the 50 states have a helmet law. The only states who don't include Colorado, Illinois, Iowa and New Hampshire. A total of 20 states have full helmet laws for all motorcycle riders. There are 19 states in which adult riders are exempt from the helmet laws. Seven states have laws that require adult bikers between the ages of 18 and 20 to wear protective headgear. These states include Arkansas, Florida, Kentucky, Pennsylvania, Rhode Island, South Carolina and Texas.

Always wear an approved helmet. It should fit snugly; sit low on the forehead and the two side plastic pieces on the straps should fit just under the ears. The buckle should be just under the chin, with one finger's width of space between the strap and chin.

General Bicycle Rights and Laws

In most states, bicyclists have the same rights to the roadways and must obey the same traffic laws as the operators of other vehicles. They must ride as far to the right as practical when a car and a bicycle can safely share the lane. A bicyclist should be allowed full use of the lane when the rider is overtaking and passing another vehicle going in the same direction.

A bike lane is usually marked by a painted bicycle symbol on the pavement and by a thick, white stripe separating it from the rest of the roadway.

If the lane is marked for bicycle use only, drivers may never use that lane as a turning or passing lane. When the lane is too narrow for both the car and bicycle, the cyclist is allowed full use of the lane. If the bicyclist is getting ready for a left turn at an intersection, the vehicle needs to yield the right of way.

Lane splitting is when a motorcycle rides in between the lanes in the same direction as the traffic. This is illegal in all states, except California where it's required to be done in a safe and prudent manner, which means not exceeding the speed limit, or moving faster than 10 mph over the surrounding traffic.

Premises Liability Accidents

Premises liability is defined the legal responsibility that a landowner and occupants of the property have regarding accidents and injuries that occur on their property.

When determining liability in regards to the property owner, several factors must be taken into account. A key factor for determining premises liability is the legal status of the visitor, or the plaintiff. This status can best be broken down into three categories; an invitee who is invited to be on the property for commercial or business reasons, a social guest or licensee who is invited to enter the premises for any purpose other than business; and a trespasser. Determining the status is of extreme importance as a trespasser is not likely to be compensated if the file a premises liability case.

The legal responsibilities of the property owner or possessor has a duty to inspect the property, to make any necessary repairs, to warn of hazards using proper signage and the duty to make the property safe.

Commercial Property Accidents

The owner of the property is typically responsible for injuries caused by negligent maintenance of the property. However, any commercial property, which is leased to a business tenant, may be held liable if their contract states that they are in control of the property and not the owner. If the landlord or tenant creates an unsafe condition, such as washing a floor and not posting proper warning signs, they are responsible if someone slips and falls on the wet floor.

In cases where snow and ice are present, the courts don't allow for claims where the condition is a natural accumulation. Snow or ice on steps or sidewalks which accumulated due to recent weather conditions, cannot be the basis for the claim.

Accident and Injuries Occurring on a Private Residence
The law will hold the property owner responsible for premises liability if they were aware of the dangerous condition and did nothing to correct it. They can also be liable if it was obvious that the owner should have known about a potential hazard and did not take steps to prevent injury.

If the homeowner knows that one of the steps leading into the basement is broken, and the guest is injured when the step gives way, the homeowner will be held liable. However, if a guest gets drunk and does something careless and gets injured, their claim will likely be denied.

If you are a tenant or guest in a rented apartment who is injured in an accident on the rental property, the person responsible for maintaining the property will be held liable. The landlord is responsible for everything outside the apartment such as hallways, stairs and entrances, while the tenant is responsible for the movable items inside the apartment.

Injuries on Public Property

While the most common premises liability cases involve a slip and fall, other cases may include injuries sustained from exposure to toxic chemicals or mold, lead poisoning, or improperly maintained equipment may also be to blame. Injuries or deaths resulting from accidents on public property may rest with the owner, tenant or management company responsible for the maintenance and care of the property. Inadequate security in a poorly lit parking lot may result in an individual being assaulted.

If an individual becomes injured while acting in an unexpected, unauthorized or dangerously careless way, the property owner or occupier is not responsible. For example, if a person decides to run up the down escalator in a public building and falls, they are acting in a dangerous manner and the property owner will not be liable.

Slip and Fall Accidents

Claims involving premises liability can be filed for a variety of reasons. A "slip and fall" accident may occur when someone trips over a broken sidewalk or are injured by a falling object. These types of injuries commonly occur in parking lots, at restaurants, supermarkets, and shopping malls or inside a building. Dangerous conditions such as torn carpeting, narrow or poorly maintained stairs or abrupt changes in flooring may be a contributing factor.

While the most common premises liability cases involve a slip and fall accident, these are not the only type of premises negligence cases that may require a plaintiff to file a claim. Lawsuits may also stem for danger or unsafe conditions on the premises or a defect in construction.

Other Accidents

Caused by Animals

Hundreds of people are injured each year when their vehicle comes into contact with wild animals, livestock, or stray domestic animals. The owners of livestock have a responsibility to make sure that their animals cannot escape and wander onto roads where they may become injured or cause a serious traffic accident. Stray cats and dog account for a large portion of rear-end collisions, yet it's difficult to find anyone to file a claim against unless the animal has a microchip with the owner's information in it. If you can prove that an owner was unable to control their pet from venturing onto a roadway and it causes an accident, they may be held liable.

It's estimated that 1.5 million vehicles have a collision involving deer resulting in over 150 motorists deaths. This is due in large part to deer migration and mating season when the deer are more aggressive and visible in residential neighborhoods.

In 1995, the Dog and Cat Management Act was passed. Under this law, the owner or person who possesses the animal is responsible for any injury, loss or damaged caused by their animal. Dogs account for over 30 deaths per year in the United States with a record 4.5 million dog bites in the United States each year. Topping the list of the most aggressive dogs include the American Pit Bull, the Doberman Pinscher, German Sheppard, Bull Mastiff and Rottweiler. The plaintiff does not necessarily need to show that the person responsible for the dog was negligent or knew that the dog was vicious or dangerous. However, the plaintiff may not have a case if the dog was provoked, the injured party was trespassing, another animal attacking the dog caused the damage, or the injured person contributed to the occurrence of the injury.

Caused by Children

General liability law varies in each state when minors are involved. If a child causes an accident, and they are old enough to be called before a court, many states appoint a special guardian to represent the interests of a minor during the litigation process. This individual is known as a guardian ad litem. If the child is below eight years of age, it is generally accepted that duty of care does not apply to them. Children of that age or younger cannot determine what a careful action is and therefore cannot be held liable. Judges have concluded that young children don't have the capacity to fully appreciate the consequences of their actions.

If you are a parent or legal guardian of a teenager, and your child becomes involved in an auto accident, you can be held responsible for the accident. If you add your child to your car insurance policy, you are accepting liability for an accident in which your child is at fault.

There are many more situations where the law intercedes regarding the liability of parents and children. In order to obtain a clear understanding of the law and your particular situation, it's best to seek legal counsel.

Caused by Dangerous Products

Each year, hundreds of thousands of people are injured or killed by dangerous products ranging from toys to household equipment, cars and industrial products. Injuries caused by dangerous or defective products can be just as serious as those received in a car accident or a slip and fall accident.

Most commonly, the companies sued in product liability cases include the manufacturer or wholesaler or distributor of the defective product. These cases include three different types of liability; a design defect, a manufacturing defect or a failure to warn or instruct the consumer regarding the use of the product. One of the challenges in any product liability case is the time it takes to conduct a thorough investigation with sufficient resources to properly evaluate and prove product defects. Quite often, attorneys are battling large companies with huge resources in which to defend themselves.

Published in Criminal Law
Tuesday, 06 April 2010 04:54

Discharging Taxes in Bankruptcy

Published in Business Law

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