Archive for 2010

Dog Bites and Injuries: Dog Owners liable for Injuries Caused by Dog, not just Bites or Vicious Attacks

Wednesday, October 20th, 2010

Minnesota Statute § 347.22 mandates that an owner is liable to the full amount of the injury sustained if a dog injures any person who is acting peaceably in any place where the person may lawfully be.  Case law makes it clear that application of the statute is not limited to vicious attacks.  The statute clearly applies to trigger liability when a dog, even without the intent to attack or be vicious, directly causes injury to someone.  The Minnesota Court of Appeals in Boitz v. Preblich, 405 N.W.2d 907 (Minn. App. 1987) found that the statute applied when the defendant’s thirty pound Springer Spaniel ran out of the door and down a footpath as the plaintiff was walking.  The dog “bumped into the back of his legs” and the plaintiff fell down breaking his wrist.  The Court found that the statute applied even where the dog just bumped into the plaintiff.  Again the Court of Appeals demonstrated the breadth of the statute in Morris v. Weatherly, 488 N.W.2d 508 (Minn. App. 1992) when they found that the statute applied when a dog ran at the plaintiff causing him to attempt to dismount off of his bike and resulting in his falling to the ground and tearing his rotator cuff.  The Court of Appeals in Morris found the statute applied even though there was no physical contact between the dog and the plaintiff.  Finally, in Lewellin, on behalf of heirs of Lewellin v. Huber, 645 N.W.2d 62 (Minn. 1991) the Minnesota Supreme Court addressed application of the statute when a dog “injures” someone as opposed to “attacks” them.  The Minnesota Supreme Court said that the intent of the legislation would cover “when a dog exuberantly jumps upon or unintentionally runs into a person and injures that person”.  The case law addressing the application of Minn. Stat. § 347.22 makes it clear that the dog’s owners in this case would be liable.

Negligent Towing – Failure to Control Your Trailer

Tuesday, June 1st, 2010

Improperly securing a load or trailer can be very dangerous.  When a driver loses control of their trailer or the load they are carrying shift, very serious accidents and injuries can result.  This is more common in the spring and early summer in Minnesota as boating and farming activities increase.  The Minnesota state patrol urges drivers to make sure The Minnesota State Patrol is investigating the accident and has urged drivers hauling trailers to make sure hitches are fitted properly on the ball and locking mechanisms are secured.  Fault will generally lie with the driver of the vehicle and the owner of the vehicle for failing to operate the vehicle safely.  Fault may also rest  with the person who owns the trailer, or who secured the trailer or load prior to departure.

An example of this type of shared fault is found in a Minnesota Supreme Court case where a trailer with a 2-inch socket was attached by a supplier’s employee to a customer’s car which had a ball 1 7/8 inches in diameter and the employee at no time fastening the safety chains or coupling the brakes, and where the customer subsequently detached the trailer and reattached it to his car in the manner in which he observed the supplier’s employee do it, but also attached the safety chains thereto, it was held that the supplier would be held liable for injuries to persons in an oncoming car which was struck by the trailer after it had become detached from the customer’s car.  The court noted that the safety chains which had been supplied by the employee and which had broken in the accident were far below the tensile strength required by statute, further held that even if the customer was negligent in furnishing his part of the attachment, or in attempting to attach the trailer on his own, this did not relieve the supplier from his negligence in furnishing defective parts which were the proximate cause of the trailer subsequently becoming detached.   Kothe v. Tysdale,  46 N.W.2d 233 (Minn.1951).

Investigation will be very important in a case involving a loose trailer or a improperly secured load.  The claims may very well go beyond simple negligence of the driver and include legitimate claims against those responsible for the load.

Should I give a statement to the insurance company?

Monday, May 17th, 2010

Should I give a statement to the insurance company?

602.01 CERTAIN STATEMENTS PRESUMED TO BE FRAUDULENT.
Any statement secured from an injured person at any time within 30 days after such injuries were sustained shall be presumably fraudulent in the trial of any action for damages for injuries sustained by such person or for the death of such person as the result of such injuries. No statement can be used as evidence in any court unless the party so obtaining the statement shall give to such injured person a copy thereof within 30 days after the same was made.

When you’ve been injured in an accident the insurance company may want to take a “statement”.  They will ask you questions about how the accident happened and the extent of your injuries.  These statements can be very important in your case.   Information you provide in a statement can be used against you later in a deposition or at trial if you are not careful.  Sometimes the insurance company is looking for ways to avoid coverage under the insurance policies.  A savvy It is always a good idea to consult with an experienced injury lawyer before you speak to the insurance company or an investigator about your accident or injuries.

Hit and Run Cases and Accidents caused by an Unidentified or Phantom Vehicle.

Wednesday, May 5th, 2010

“Uninsured motorist coverage” (also known as UM coverage) pursuant to Minnesota law explicitly includes a hit and run motor vehicle.” Minn. Stat. § 65B.43, subd. 18. Caselaw has held that the term “hit-and-run” is synonymous with an accident where the driver flees from the scene, even though no physical contact occurred between the phantom vehicle and the vehicle of the person making the uninsured motorist claim. Halseth v. State Farm Mut. Auto. Ins. Co., 268 N.W.2d 730 (Minn. 1978).  Prior to 1975, the law allowed UM claims where the driver that caused the accident is unidentified, but the actual contact between colliding vehicles was required.  Minnesota law does not presently require physical contact with the phantom vehicle for an uninsured motorist claim to exist.  Heldt v. Truck Ins. Exchange, No., C7-94-1009, 1995 WL 1496 (Minn. Ct. App. 1995).

An important distinction exists, however, differentiating between “hit and run” situations which is “an accident causing damages where the driver flees from the scene” and situations where the driver at fault is unidentified because the claimant simply did not obtain the necessary information to be able to identify the defendant.  See Lhotka v. Illinois Farmers Ins. Co., 572 N.W.2d 772 (Minn. 1998) and Sao v American Family Ins. Group, C7-98-2010, 1999 WL 26213 (Minn. Ct. App. 1999).

Investigation is critical in UM cases involving hit and run or phantom vehicles.  Physical evidence and witness statements are crucial to the success of these claims, so fact gathering by an experienced personal injury lawyer is key.

Children’s Cases: Special rules apply to civil claims brought on behalf of minors

Wednesday, May 5th, 2010

Anytime the plaintiff in a civil lawsuit is a minor (under 18), there are special rules which must be kept in mind.  Minnesota Statutes require certain procedures be followed when handling such a claim.  These rules affect the ethical obligations if the attorney, require court approval of all settlements, and affect the distribution of the proceeds after the case is resolved.

Court Approval of all Settlements

By law every settlement involving a child must be approved by the court.  This law is in place to protect the child’s best interests from influence from insurance companies, attorneys, and parents.  It is also in place because minors cannot legally enter a binding contract.

Distribution of Funds

Any funds recovered on behalf of the child are placed in trust until the child turns 18.  These funds cannot be accessed without a court order.  Often they will be placed in a Certificate of Deposit (CD) or other conservative interest-bearing investment account at a local bank.  After turning 18, the funds are at the child’s sole disposal and discretion.  Your lawyer will typically provide a referral to an investment counselor or financial institution that can provide advice to make the most of the child’s asset once they reach adulthood.

Structured Settlements

A Structured Settlement is an agreement to make a series of partial payments over a period of years, rather than one lump sum payment.  In effect, agreeing to a structured settlement is like agreeing to let an insurance company invest the settlement proceeds.  Structures control the disbursement of proceeds even after the claimant is an adult, thereby reducing the likelihood that the asset will be squandered.  Structures can have significant tax benefits because not only is the original settlement not taxable, but the interest earned prior to disbursement may also be tax free. 

An experienced personal injury attorney can help you understandwhat settlement options will be in the best interest of your child when resolving their civil claims.

Texting Banned For Commercial Truck and Bus Drivers

Thursday, April 15th, 2010

In January 2010 the U.S Transportation Secretary announced federal guidance to expressly prohibit texting by drivers of commercial vehicles such as large trucks and buses.   Truck and bus drivers who text while driving commercial vehicles may be subject to civil or criminal penalties of up to $2,750.

FMCSA research shows that drivers who send and receive text messages take their eyes off the road for an average of 4.6 seconds out of every 6 seconds while texting.  At 55 miles per hour, this means that the driver is traveling the length of a football field, including the end zones, without looking at the road.  Drivers who text while driving are more than 20 times more likely to get in an accident than non-distracted drivers. Because of the safety risks associated with the use of electronic devices while driving, FMCSA is also working on additional regulatory measures that will be announced in the coming months.

President Obama also signed an Executive Order directing federal employees not to engage in text messaging while driving government-owned vehicles or with government-owned equipment. Federal employees were required to comply with the ban starting on December 30, 2009.

The regulatory guidance on today’s announcement will be on public display in the Federal Register January 26 and will appear in print in the Federal Register on January 27, 2010.

New law concerning texting while driving

Wednesday, April 14th, 2010

TEXTING WHILE DRIVING

Text-messaging, emailing or accessing the Web on a wireless device while driving — including while stopped in traffic — is illegal on Minnesota roads effective August 1. The violation can cost up to $300 and applies to drivers of all ages. As a primary offense, law enforcement can stop a motorist if they observe a violation of the new law.

Specifically, the law states that no person may operate a motor vehicle while using a wireless communications device to compose, read, or send an electronic message, when the vehicle is in motion or a part of traffic. The law does not apply to devices that are permanently affixed to the vehicle or global positioning systems or navigation systems.

According to the Department of Public Safety (DPS), crashes in which distraction or inattention was a factor — including text-messaging or cell phone use — are vastly underreported. The state reports distraction was a factor in at least 15 percent of all fatal crashes during 2005–2007, resulting in 240 traffic deaths. Another 1,163 motorists suffered serious, life-altering injuries as a result of distracted driving crashes during this period. The National Highway Traffic Safety Administration says distraction is a factor in about 25 percent of all crashes.

Cell phone use for teen drivers with a provisional license is completely prohibited by a law in effect since 2006. In an informal DPS Minnesota teen driving survey, teen respondents said texting was their biggest distraction while driving. Texting was also cited as the “most unsafe” behavior their friends engaged in while driving.