Every year millions of people are injured in motor vehicle collisions. Motor vehicle collisions are the leading cause of injury in the United States for people ages 1-34.
Many vehicle manufacturers have made safety improvements to their vehicles including air bags, rollover bars, reinforced frames, better tires, etc. Additionally, many states have passed tougher drunk driving laws. As a result, many lives may have been spared. However, with an ever increasing number of vehicles on the road, motor vehicle accidents still occur with alarming frequency. In fact, according to the National Highway Traffic Safety Administration, every 10 seconds someone in the United States is involved in a car accident.
A high percentage of traffic crashes and deaths involve large trucks. A large truck is any truck whose vehicle weight is over 10,000 pounds. Because of their size, crashes involving large trucks are more likely to result in serious injury and death than are car crashes. Approximately 10% of all those injured in a large truck crash will die. Large trucks are more likely to be involved in multiple-vehicle crashes than are passenger cars.
Both federal and state regulations govern trucking and cover areas such as safety of equipment and hours of the drivers. Trucking companies are required to keep records of such information and it will be necessary to find and research such records. Poor equipment and driver fatigue can be causes of such crashes, and a careful study of the trucking company records may be needed to determine if negligence has occurred.
Each year thousands of construction workers are injured or killed in construction site accidents. Even though construction companies are typically obligated to inspect each site with safety engineers and provide safety programs, accidents still occur.
Generally, an injured worker cannot sue his or her own employer for injuries arising out of work related activities; however, if it can be shown that a third party’s negligence caused the injuries, that party can be held liable. Additionally, in some instances workers may be injured at a construction site due to their own inadvertence or due to a condition that was no person’s fault. When a worker is injured due to his or her own negligence or that of his or her employer, or due to a condition which was nobody’s fault, that injured party can still receive compensation in most states through Worker's Compensation. Worker's Compensation Acts provide benefits to workers who are injured on the job or suffer an occupational disease arising out of and in the course of employment. The benefits under Worker's Compensation include weekly payments based on a percentage of the employee's average weekly wage for temporary total disability, partial disability, permanent and total disability and permanent loss of function and disfigurement. Worker's Compensation also covers medical expenses for treatment that is reasonable, necessary and related to the industrial injury and vocational rehabilitation services.
In some instances, however, a third party is to blame for injuries that occur on the job site. When a construction site accident occurs, the owners, architects, and manufacturers of equipment can be held responsible for inadequate safety provisions. The general contractor and all subcontractors are required to provide a reasonably safe site, to warn of hazards inherent in the site and work, to hire careful employees, to coordinate job safety and to supervise compliance with safety specifications.
Manufacturers of construction equipment are responsible for designing and maintaining safe products. Defective or dangerous products may include the following: scaffolding, cranes, power tools, derricks, hoists, conveyors, woodworking tools, ladders, winches, trucks, graters, scrapers, tractors, bulldozers, forklifts, back hoes, heavy equipment, boilers, pressure vessels, gas detectors and other types of construction equipment.
Therefore, it is often possible to find liable third parties in the event of a construction related injury. This is often important because Worker’s Compensation benefits do not provide compensation for the pain and suffering that a person endures as a result of an accident.
Product liability deals with cases involving defective or unsafe products. Manufacturers, wholesalers, and retailers of products can be held liable for damages arising from the use of defective products. Products covered by this area of law, include food, drugs, and real estate, as well as virtually all consumer products. The user who is injured and seeks damages does not need to be the original purchaser of the product. Nor does a person seeking damages have to prove negligence in many cases. Product liability frequently is a question of strict liability: that is, if the product is defective and that defect caused injury, the injured user may sue for damages as long as the product was used as it was meant to be used and not substantially changed from its original condition.
If the injured user was using the product in a manner not intended by the manufacturer or retailer, or had altered the product so that safety features were disabled, it may not be possible to prove that injuries were caused by defects in the product. The defendant may be able to successfully claim that the injuries were caused by the acts of the plaintiff.
Questions of negligence and breach of warranty are also grounds for a claim for damages under product liability. In the case of negligence, if it can be shown that a company was negligent in testing its product adequately or in supplying directions for its use, the injured party probably has grounds for filing suit. Similarly, a manufacturer implies a warranty for fitness of use and freedom from defect when an item is sold. If the item proves to be defective, or is unfit for the purpose intended, an injured user can file a product liability case. In a case of negligence, it is important that the plaintiff be able to show that the product was defective when it left the control of the party he is suing. It is not possible to hold someone liable for a defect that occurred after that party had control over the product.
In product liability, there are various areas of defects that can occur. If a claim of strict liability is to be pursued, the injured party will need to show that the product was unreasonably dangerous for its intended use, due to a defect. There are generally three areas in which a product can be unreasonably dangerous:
The manufacturer or seller can fail to warn about angers associated with the products use. Manufacturers and sellers are expected to give adequate warnings about possible dangers, and to provide clear and adequate instructions of use. Failure to do so can cause a useful product to become deadly. For instance, coolants used in automobiles are extremely toxic – failure to print warnings of this toxicity on the product labels could lead to an accidental poisoning and thus to a suit for damages.
The product may have a design defect. This means that the product is manufactured with a defect, even if it is assembled perfectly. An example would be a car gasoline tank that is designed with weak walls such that an impact can rupture the tank and cause the car to catch on fire, even when the tank is correctly assembled and installed.
A manufacturing defect exists when an otherwise safe product is rendered dangerous because it is assembled improperly. A car whose wheel is installed with missing or cross-threaded bolts may lose a wheel at high speed, injuring or killing the driver and passengers. If it is proved that the car was manufactured with that defect, the manufacturer will be liable.
In all cases of product liability, it is essential to the success of the case that the product be preserved and that all paperwork showing the origin of the product be made available. Receipts showing purchase, any repair records, etc., can be vital to building a successful case.
Wrongful death is the term used when someone causes the death of another person. The death may be caused by the actions of someone or by their failure to act (neglect). Wrongful death is a civil action rather than a criminal action. Since the person killed (decedent) cannot file suit or collect damages, it is the family or representatives of the estate that do so. The intent is to recompense family members who have suffered monetarily and emotionally from the death. Damages can be assessed for lost wages and benefits, loss of companionship, and emotional pain and suffering caused by the trauma.
A defendant can only be held responsible for a wrongful death if it can be proved that the defendant's conduct was the cause of the death. It must be proved that the death would not have occurred without the defendant's act. The time between the defendant's action and the death of the decedent is not a factor as long as it can be proved that the defendant's action was the cause of death.
If it can be shown that the decedent was partially responsible for his death, then he may be found to have comparative or contributory negligence and dependent upon the state in which the incident occurred, damages may be awarded based on the percentage of negligence imputed to the decedent. Also, if the decedent failed to seek appropriate medical care and that failure led to his death, there may be no grounds for a wrongful death claim or a reduction to an award.
Different states have different methods for deciding who may file a wrongful death suit and who may recover damages. Generally, it must be shown that the death was caused by another's wrongful act; that the act was such that the decedent would have been due damages from the act; and that monetary damages did arise from the act. If these three criteria are met, it is possible that a wrongful death claim can be filed.
In a case of wrongful death, damages are assessed to compensate family members for their loss. There are many ways in which damages can be calculated. Since damages can be awarded in a number of areas, it is important to examine each one carefully.
The most obvious loss in a case of wrongful death is the actual expense occasioned by medical and death expenses. These are usually easy to determine.
Less obvious but equally important is the loss of future earnings and benefits, as well as the loss of companionship. These damages are more difficult to calculate and include anticipating the lifespan and earnings of the decedent, as well as the relationship to remaining family members.
Loss of companionship is very difficult to calculate since it is totally subjective and does not lend itself to empirical measurements. It is a measure of the emotional pain and suffering experienced by the survivors.
A final area of damages is punitive damages. This is an amount awarded to punish the person who caused the death, rather than to compensate for a specific loss. It can typically only be awarded when the action of the defendant was intentional or grossly negligent.
Traumatic brain injury, also called TBI, occurs when the brain is injured by a sudden force, or trauma. The brain can be driven into the side of the skull by a sudden blow, or by the force of shaking or “whiplash”. In either case, the brain can suffer bruising and swelling, and in some cases the impact will be sufficient to tear blood vessels in the brain, causing intracranial bleeding.
If the trauma results in damage to the skull itself, such as a crack or break, the trauma is considered a penetrating head injury. More difficult to diagnose are closed head injuries, in which the brain is injured but the skull remains undamaged. This can occur from a blow or impact, or from severe back-and-forth shaking, such as whiplash. Babies and small children can suffer such injuries from being shaken, the so-called “shaken baby syndrome”.
In any case of closed head TBI, it is necessary to study the symptoms that follow the accident in order to diagnose the condition. Anyone who has sustained a blow to the head or whiplash-like injuries should be evaluated by a medical professional to determine if TBI has taken place. In many cases the symptoms may be so slight as to escape the victim’s notice, but if treatment is not available, further injury can develop. Often the symptoms may be delayed for many hours, until swelling in the brain reaches a point that if affects the victim.
TBI can cause serious, life-threatening events and can result in permanent irreversible damage to the brain. It can lead to paralysis, seizures, blindness, memory loss, impaired communication skills, and many other disabilities. Symptoms may be as obvious as coma or as subtle as a change in emotional behavior. TBI can have a profound effect on quality of life, including inability to work, inability to interact socially and within the family, loss of normal body skills, etc.
Chemicals can damage our persons and property by exposure through air, water, and bodily contact . Kleinpeter & Schwartzberg, L.L.C. has successfully prosecuted toxic tort cases for more than 25 years on behalf of injured people. Our cases have set legal precedent, clarified the law, and achieved fair compensation for our clients.
Laws passed by the state require that your employer, or your employer's insurance company, compensate you, or your family, for injuries or death that may occur while you are working. You may be entitled to:
What should I do if I am injured?
- Weekly benefits while you are temporarily totally disabled and unable to work.
- Payment of your medical expenses.
- Weekly payments or a lump sum payment for partial or total disability
from a work related injury.
You should report the injury immediately to your employer. If you cannot reach an agreement with your employer or their insurance carrier, as to what benefits or medical expense payments you are entitled to, you can file your claim with the Industrial Commission.
The Jones Act
The Jones Act provides an injured seaman a remedy against employers for injuries arising from negligent acts of the employer or co-workers during the course of employment on a vessel. Claims brought under the Jones Act can also raise claims against a vessel's owner that a vessel was unseaworthy. If a seaman dies, a wrongful death claim may be based on the Jones Act, general maritime law, or on a separate federal statute, the Death on the High Seas Act.
The Jones Act is a federal law that provides remedies to seamen who are injured while working on a vessel. The Jones Act extends the provisions of the Federal Employers' Liability Act (FELA), a statute that provides remedies for injured workers, to provide similar remedies for seamen. As a result, an injured seaman can recover damages from the employer when an employer or a co-worker's negligence causes an injury. The Jones Act applies only to seamen, which are persons with an employment-related connection to a vessel in navigation and who contribute to the vessel's function or mission; that is, persons who do the ship's work. A person whose work is covered under the Longshore and Harbor Worker's Compensation Act may be treated as a Jones Act seaman in some cases. A lawyer can help figure out whether someone is a seaman for purposes of the act.
The Jones Act applies to negligence claims against a seaman's employer when the employee is injured or killed during the course of employment.
Seamen may be protected by the Jones Act even if they are not working on a vessel. If a seaman is injured while working temporarily elsewhere, the Act may still apply. However, if the temporary assignment is not "in the service of the ship" when he was injured, the act may not apply.
Failing to provide a safe place to work can give rise to a Jones Act claim, if the unsafe place is the vessel or if it is another place under the employer's control. An unseaworthiness claim also may be pursued if the employer is also the owner of the vessel, and the injury is caused by an unsafe condition on the vessel. An employer can also be liable if there is a violation of a safety statute which is the cause of the injury. An employer can also be liable for failing to provide adequate medical care.
The Jones Act also holds an employer liable for the negligence of other employees or individuals for which the employer is responsible, including the negligence of the seaman's co-workers during the scope of their employment. An independent contractor can sometimes be viewed as an employee under the Jones Act.
The employer must attempt to rescue or search for a seaman if he jumps or falls overboard for as long as it is feasible that the seaman could be alive in the water. Failure to do so can result in liability under the Act.
An employer owes a seaman a higher duty of care under the Jones Act than an ordinary negligence case, and the employer can be liable if its breach of that duty, no matter how small, contributed in any way to causing the seaman's injury. If a seaman contributed to causing his own injury, the employer's liability may be reduced. Even if the seaman assumed the risk of injury by intentionally proceeding with a dangerous activity aware of the risks- this will not reduce the amount of compensation under the Act.
A Jones Act claim must generally be brought within three years of the injury. The claim can be filed as an admiralty claim either in federal court or state court, or as a "law" claim in federal court. A lawyer should decide where to file the claim as this choice can affect the amount of the recovery.
The Longshore and Harbor Worker's Compensation Act provides Worker's Compensation benefits for maritime workers who are not seamen. The benefits the statute provides, like a state workers' compensation scheme, do not depend on finding that the employer was at fault. These benefits include disability payments and rehabilitation services. The act also provides benefits to survivors when a maritime worker dies from work-related injuries.
The Longshore and Harbor Worker's Compensation Act
The Longshore and Harbor Worker's Compensation Act is a comprehensive worker's compensation scheme for maritime workers who are injured on navigable waters. The law fills a gap that exists between the Jones Act, which protects seamen, and state worker's compensation, which cover injuries occurring within a particular state, but not usually on navigable water. The compensation system is administered by the Federal Department of Labor, and injured workers who qualify for coverage are entitled to disability benefits. Under the Longshore and Harbor Worker's Compensation Act the right to receive benefits does not depend on a finding that the employer was at fault for the worker's injuries much like state worker's compensation law.
The scope of the Act: Who is covered?
The Longshore and Harbor Worker's Compensation Act covers injuries that occur during maritime employment on navigable waters of the United States. Maritime employment includes loading/unloading vessels, repairing vessels and building a vessel. The term refers to navigable waters as places beyond where a boat could float - navigable water can include places on land that adjoin water. A worker who is injured on a pier, wharf, dry dock, or terminal, can be compensated under the Act. Areas near a pier or wharf can also be included in navigable waters such as areas for loading, unloading, repairing, or building vessels.
The Longshore and Harbor Worker's Compensation Act provides medical and disability benefits as well as rehabilitation services. The medical services must relate to the injury or illness sustained on the job. Occupational disease that "arises naturally" from marine employment are also included such as a welder who worked in a shipyard who develops a chronic illness as a result of handling asbestos at work. The Act also provides wrongful death benefits to survivors of a worker who is killed on the job.
Rules for claiming the benefits
An employee who is injured on the job has just 30 days to give the employer notice of the injury. When the employee develops a disabling condition or illness that is work related, notice also must be provided. A formal Longshore and Harbor Worker's Compensation Act claim for benefits must be filed with the Department of Labor within one year from the date of injury. An employer can dispute the claim or begin voluntary payment within fourteen days of the accident. If an employer disputes the claim there is a conciliation procedure designed to help the parties come to an agreement about how the dispute should be resolved. If the parties cannot resolve the problem, an administrative law judge (ALJ) working for the Department will conduct a hearing and render a decision.
The Longshore and Harbor Worker's Compensation Act also allows an injured worker to sue persons or entities, other than the employer or a co-worker, whom the worker believes to be at fault for his or her injuries. When a worker is injured on a vessel, for instance, there may be a claim of negligence against the vessel and its owner; however, the worker is not permitted to allege a claim of unseaworthiness, because that claim is reserved to seamen.
Each year thousands of people are injured in boating accidents. Accidents can occur in a variety of situations ranging from ocean-going commercial and cruise line vessels to small pleasure craft on our navigable waterways. When referring to a motor vehicle accident we often refer to the “Rules of the Road” in order to determine what each person’s responsibilities were regarding the safe operation of their vehicle. Similarly, there are rules established by the Coast Guard and various state agencies that outline the rules for safe boating.
What Should I Do If I Am Involved In A Boating Accident?
Boating accidents usually require a report to either the state agency regulating boats or to the United States Coast Guard or both. If an operator is involved in a collision with another boat or an "allision" (which means striking a fixed object or a non-moving vessel), he or she should immediately contact the state agency regulating boats to ascertain if any type of report is required. Failure to remain on the scene, render aid, and report the boating accident to an appropriate law enforcement agency in a timely manner is a crime. If someone was injured or extensive property damage was incurred be sure to contact your insurance company. If someone else was responsible for the collision contact us as soon as possible.
Environmental litigation poses unique legal challenges because of the complex scientific and technical issues frequently addressed, and because of the overlapping authority of numerous administrative agencies and courts at the local, state, and federal levels. Environmental litigation involves reviewing claims for injured persons and property damage caused by the discharge of numerous toxins from large and small companies. Protection of people and their property from large corporate polluters is the main focus.
In 1970, the U.S. Congress passed the landmark Occupational Safety and Health Act. This law established, for the first time in America, a national policy “to assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources.” Sadly today, 35 years later, that pledge too often is not honored.
Millions of American workers face avoidable illness and injury hazards every day at work. These hazards come from a large number of dangerous chemicals, from toxic dusts and metals, various types of radiation, physical hazards such as excessive noise and heat, and a number of biological agents such as viruses and bacteria. Unsafe conditions often result from machines and tools, poorly maintained or selected improperly, or lacking proper safety guards. Workplaces can have insufficient ventilation, poor lighting, and electrical hazards. Workers may not have proper personal protection such as respirators, work gloves, or chemical resistant clothing when needed. Critical information for workers about the health effects of toxic chemical hazards and vital job safety training may not be given, even though required under the law.
Occupational diseases can affect virtually every organ in the body. Work related diseases have been documented for the heart and lung, the brain and nervous systems, the kidneys and urinary tract, the reproductive system, the gastrointestinal tract, and the endocrine and hormone system. The kinds of well recognized occupational illness include cancers, asthma, heart attack, nerve damage, anemia, bronchitis, brain damage, kidney failure, vascular disease, and psychiatric illness.
Occupational diseases occur in a wide variety of industrial and job settings. They have been documented in chemical processing, construction, transportation, manufacturing, health care, marine and commercial fishing, farming, computer and electronics, and oil and gas drilling industries. Plant workers, carpenters, nurses, roughnecks, technicians, tankermen, truck drivers, assembly line workers, laborers, insulators, and dock workers are just a few of the job categories at increased risk for work related diseases and injuries.
It is estimated that more than 100,000 Americans die each year from job-related injuries and illnesses, but no one knows the exact count. Many more are injured or become ill every year. A significant number of these are harmed permanently, suffering chronic illness, recurrent pain, poor health, and loss of ability to work and enjoy life. This burden of work related disease drains the resources of workers and their families, the health services of communities in which they live, and causes an enormous economic loss for the entire nation every year.
Much of the occupational disease suffered by American workers is unnecessary and preventable and would not occur if the existing laws and regulations were properly followed, and well known safety and health precautions were routinely taken by employers.
Since workers can have job related illnesses that are similar to medical conditions due to other causes, careful diagnosis and investigation is necessary to determine whether a particular disease is work related or not. This is often a complex undertaking, and requires sophisticated legal assistance in order to preserve a worker’s rights.
Attorneys at Kleinpeter & Schwartzberg LLC have more than 20 years experience in providing legal counsel and aid to injured and sick workers with occupational illnesses of many kinds. We are ready to evaluate cases from the straightforward to the most complex circumstances to ensure that injured workers are able to receive appropriate compensation.