Des Moines Personal Injury Lawyer - Property Owner's Liability (Slip & Fall)

Trucker Hits Stray Cow on Highway and Dies. Is anyone at fault?

Steve Lombardi — Fri, 20 Nov 2009 12:01:00 GMT

Who’s to blame when a stray cow comes in the path of a moving vehicle? I’m sure that’s just what the family of the driver of a semi trailer is asking today. At about 2:15 a.m. on Tuesday October 20^th 2009 a still unidentified man hit a cow in the middle of Iowa Highway 14 between Chariton and Millerton. After the truck hit the cow it went into a ditch and then into a creek. Apparently the truck driver died. In rural Iowa this isn’t such a rare occurrence.

With cases like this one, lawyer-talk would refer to it as animal at-large case. For layman it’s a black cow standing on the highway. I know it makes no sense to most people but the law isn’t interested in the pop culture or hip talk or any talk that takes away from its history. The law is passed on down from generation to generation of lawyers, judges and some farmer legislators. We have to talk the same language and so it’s not something that can change with generations. Maybe that’s one reason why law school is difficult; we talk what must seem like a foreign language to most people. But that’s the nature of the law.

So this cow in the motorway is standing there and it causes an accident. The Iowa Supreme Court on November 13, 2009 published its opinion in Thompson vs. Kaczcinski and Lockwood, No. 08-0647 involving slightly different facts but resting on the same legal principles applicable in the news case under consideration. In its decision the Court agreed with the Iowa District Court a duty could not rest upon Iowa Code Section 318.3 but could rest upon the common law. Kaczcinski had to do with a disassembled trampoline that wasn’t secured to the ground and blew into the roadway causing an obstruction that resulted in Thompson swerving to avoid it, then rolling his car and suffering injury.

I find the Court’s narrow reading of the legislature’s intent behind 318.3 unsettling. Recent thinking of how the courts are to act when interpreting the law relegates the duties of the third branch to that of a scrivener. The judicial branch shouldn’t be mindless robots doing the bidding of the uneducated legislature. The judicial branch is supposed to be the branch of government with a heart, soul and mind where justice is more than just your day in court.

Most laypeople reading t his will scratch their heads wondering what the Court is talking about. Suffice to say they sent it back to Judge Goodhue in Madison County for trial on the common law negligence count. That means the Reverend Thompson gets his day in court for the jury to decide whether the owners were negligent in not tethering it down to the ground and then not acting quick enough after the storm to secure the trampoline from the highway.

The part of the decision most people would find quirky but right on the money are the inferences by concurring Justice Cady mentioning patio furniture and things we have in our yards that might act similar with wind gusts. While I appreciate the thought it’s not likely a picnic table has the same sail-like qualities as does a large sheet trampoline.

To read Thompson vs. Kaczcinski and Lockwood, No. 08-0647 follow the link.

Originally posted at InjuryBoard by Steve Lombardi

What happens when a member of your hunting party decides he wants to take “random target practice”?

Steve Lombardi — Thu, 19 Nov 2009 12:01:00 GMT

In this case the death of an 18-year-old from Manchester was caused by accidentally being shot by a member of his own hunting party. These men were hunting on Monday October 19^th 2009 about one mile north of Dundee when a member of the hunting party decided to take some random target practice and accidentally shot and killed a fellow hunter. The member of his hunting party was unidentified according to the Delaware County Sheriff’s Office. The dead man was out of sight behind some dense foliage when the accident occurred officials are reporting.

Like a fact situation out of law school case books this case intrigues anyone who takes a shine to the law.

So what are the rules of your hunting party? Make sure you know the rules and that all members of the hunting party are in agreement. Never randomly fire a weapon without knowing where ever member of the party is located. Do you have a group pow-wow to discuss where everyone will be and how the group will proceed? Does it take place before everyone removes the safety? Or are you all just playing Russian roulette? Is this just “one of those things that happens” or are there ways to avoid the risks associated with hunting in groups?

It shouldn’t take you long to recall a most recent incident involving very prominent people who were hunting quail when a member of the party was shot in the face. (February 11, 2006) For a list of articles follow the link. Ignoring the comedic crap someone added listen to what the Vice President says about fault. Hunting with a party requires knowing the location of other party members before you pull the trigger. Make sure your homeowner’s insurance covers any liability you may have in the event you shoot another member of your hunting party.

http://www.youtube.com/watch?v=pR7CH9zvD6s

I rest my case.

Originally posted at InjuryBoard by Steve Lombardi

Tort Reform Begins at Home with Maintenance

Steve Lombardi — Mon, 09 Nov 2009 12:01:00 GMT

According to the Cedar Rapids Fire Department the fire started on October 8^th 2009 was started by a 3 year old boy playing with matches or a lighter. What’s still unclear is how a 3-year-old obtained the matches or lighter. Another question all parents should ask is why the batteries had not been replaced in the smoke detectors making them operational. When was the last time you tested the detectors in your house?

Here is the link to the story. One-year-old Diarrana Lockett who was severely injured in the fire has since had her condition improve, but further details beyond that are still unavailable. Firefighters had originally responded to the townhouse at 3000 J Street S.W. around 4:33 p.m. Thursday and found the girl on the second floor next to a mattress. Her grandmother, Lesia Funchess had put the young girl to bed at about 3 p.m., sometime after that her grandson had gone upstairs then came back down reporting that there was a problem upstairs.

The grandmother and an unidentified neighbor tried to put the fire out, but were unsuccessful in their attempts. The fire department believes that the fire was started on the mattress.

Part of child-proofing a home is removing temptation. Another part is checking batteries in smoke detectors. Children have a natural curiosity that at times leads to danger. This appears to be one of those situations. House fires like this one should be a warning or an example for other families to get busy checking batteries and the location of matches and lighters. Make them inaccessible.

We wish the families well and if our law firm can be of any help to others with legal matters arising due to house fires, you can contact me through the Lombardi Law Firm website. House fires create legal issues with the insurance companies refusing to pay claims or offering less than the owners believe they are owed. Also in the case of wrongful death there can be claims involving insurance coverage. We assist with each type of claim.

Originally posted at InjuryBoard by Steve Lombardi

Protecting Your Child from the Day Care Provider

Steve Lombardi — Sat, 17 Oct 2009 10:50:00 GMT

Here is the story from the Des Moines Register. On September 25^th 2009 police charged Melissa Watts with felony child endangerment in a case involving the brain injury of 4 month old Emiliano Ramirez of Urbandale. Allegedly, Watts is not a licensed day care provide. Allegedly, Emiliano was taken to Blank Children’s Hospital on September 15^th 2009 after his grandmother picked him up and noticed that he looked pale, further tests revealed that the child had bleeding of the brain along with retinal hemorrhages. The condition was monitored for several days before the doctors had to drill into the child’s skull to relieve pressure on the brain. According to popular theory the injuries suggest that Emiliano was either shaken or slammed into a soft surface. You can draw your own conclusions.

On the same day another baby was taken to the hospital under similar circumstances. Arayu Rieman was also charged with child endangerment following a similar investigation. Doctors discovered bleeding on the baby’s brain and additional tests found previous similar injuries that were allegedly caused by shaking and were in different stages of healing.

The question of the day is how mothers and fathers can check up on the day care caretakers or the babysitter before the child’s life is endangered? The difficulty of checking-up on what goes on in the center versus what occurs in your home are very different.

How do you know if the babysitter or someone in your house might be causing injury to your child?

A note of caution is in order for babysitters in your home. I've seen those reports where a parent sets up a video camera and surreptitiously records the image and voice of the babysitter and catches them red handed slapping or tossing the baby around. That may seem like an easy way to catch the sitter but it may be illegal. I have no time today to research this issue in every state across the nation, so if you plan on doing it call a local lawyer. There is both state and federal legislation on this issue involving electronic surveillance.

NANNY CAMS

http://www.youtube.com/watch?v=2A05x9VRHUI

Generally speaking it’s illegal to record a voice between two or more people when at least one hasn’t given permission for the recording. Normally this type of “secret” recording has the voice recorder on one of the persons; the person who is authorizing the recording. But when a camera is set up and you’re not home, then there is no person present who has authorized the recording. I know, I know it’s your home and your baby and you’ve given permission for the baby but the baby is too young to give permission and even though technically the parents may be able to give permission as if they were the child, you don’t want to be making that argument in a criminal court. I’m trying to keep you out of criminal trouble. For you to do this you need to get permission from the babysitter or daycare center person or you need to shut off the sound recording. Another way you could do it is to have the babysitter sign a form giving permission to have their movements and voice recorded. It would have the added benefit of making the babysitter cautions that their behavior with your child may be recorded.

http://www.youtube.com/watch?v=qlleFDxpSdo

Originally posted at InjuryBoard by Steve Lombardi

Is it time to finally outlaw pit bulls?

Steve Lombardi — Thu, 15 Oct 2009 10:28:00 GMT

Is it time to finally outlaw pit bulls? On September 19^th Joyce Haynes heard a child screaming and ran outside to see a pit bull charging a child. When she attempted to intervene the dog turned on her going after her legs biting her calves and taking a sizeable piece of flesh.

A second neighbor came to her rescue using a bike to shield himself from the dog while getting it away from Miss Haynes. She will have permanent scars from the attack both physically and I will assume mentally as well. The real question is where was the owner? In today’s day in age with all the education and information on the dangers of dogs such as pit bulls how could this possibly happen? The owner of the dog will no doubt be getting a hefty bill from the hospital but will there bill criminal charges? What would have happened if the dog had gotten ahold of the child and killed it? More needs to be done to protect every day citizens from out of control dog owners with egos that say owning a vicious dog is somehow a good idea. The pit bull owners and the Taser people have one thing in common; they see the U.S. Constitution as a document protecting only them.

This is a subject I've covered in other posts.

InjuryBoard Des Moines Archives | June 2009 The Des Moines Register reports that Daniel McAfee, 29, is the caretaker of a pit bull that is owned by Cody Pendleton, age 27. The dog is reported to have ...
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Originally posted at InjuryBoard by Steve Lombardi

The End of the Mowing Season

Steve Lombardi — Sat, 26 Sep 2009 14:45:00 GMT

I love the fall season for the cooler weather, but just before fall starts, there is the end of summer blues.

With the end of the mowing season fall cleanup can’t be far behind. Getting all the summer equipment winterized and stored for winter is a signal that winter can’t be far off.

Robert Uhler died in early September while working on a utility tractor. Whatever happened pinned him underneath it. The local Sheriff concluded Mr. Uhler tried to start the tractor while not on it, the tractor lurched forward and he was killed. We wish his family well.

Mr. Uhler’s incident should remind us all that safety never takes a vacation. With the cold weather coming on it’s easy to get in a hurry or to rush to get jobs completed. As you can surely see we have to keep our heads about us while getting the season-ending work done. Stay safe, watch out, think and avoid unnecessary risk.

Originally posted at InjuryBoard by Steve Lombardi

The 250th Anniversary of Sir Arthur Guinness' 9,000 Year Lease

Steve Lombardi — Thu, 24 Sep 2009 14:05:00 GMT

Today we celebrate Sir Arthur Guinness and his shrewdness. For today is the 250th anniversary of the lease he signed in the year 1759. For a mere 100 pounds down and the promise to pay 45 pounds in annual rent he obtained the leasehold interest in St. James’s Gate in Dublin for a period of 9,000 years. This is the place where Arthur Guinness first brewed that amazing dark ale known as Guinness. From Archbishop Price Sir Arthur inherited 100 pound and turned it into a business that lasted for over 250 years.

http://www.youtube.com/watch?v=YM6qclgh4Ro

Barbara is Irish. So for our honeymoon we ventured to Dublin to walk the streets where James Joyce lived and wrote. St. James Gate no longer is the place where Guinness is brewed but it remains intact along with a pub atop the Guinness Storehouse. From the pub you can sip a Guinness while looking out over the City of Dublin.

If you’d like to take a podcast tour of the Dublin City Center and the Guinness Storehouse follow the links. The audio file plays on iTunes and is in Italian, German, French and Spanish.

http://www.youtube.com/watch?v=t8qWjQR_C0Y

My stepdaughter, Katrina (I nicknamed her Fenway.) is an L1- at the University Of Iowa College Of Law in Iowa City. This first semester she has contracts with Professor Peggie Smith; a Harvard and Yale grad. I suggested she could write her way into history at the law school if in todays contracts class she followed this advice.

What you should do to impress everyone is in contracts class give an answer to the professor's question and then announce, "... But the most famous contract is being celebrated today, the day which marks the contracts 250th anniversary. If you know the contract to which I refer you then know why thousands of people will today take a day off of work to celebrate it. The contract has been in place since the year 1759. And if this school were as good to its students as is Trinity College in Dublin to theirs, we would all be allowed a free pint of Guinness each and every day." Then sit down, reach into your purse, take out a can of Guinness, pour it into a Guinness glass, offer up a toast and for the rest of your life everyone will be talking about Fenway on Guinness Day.

Katrina, here’s a toast to the Irish!

May you have the hindsight to know where you've been
the foresight to know where you're going
and the insight to know when you're going too far.

Fenway must know this Irish blessing because she didn’t take my advice.

Originally posted at InjuryBoard by Steve Lombardi

Electrocuted To Death While Showering In Iraq

Steve Lombardi — Thu, 10 Sep 2009 08:37:00 GMT

Another man has died from electrocution in Iraq. This one was a contractor looking to earn enough money to buy a house for his wife. Joining the military at 17-years of age, then doing three tours in Iraq with the Air Force, then taking a job with a private contractor, Triple Canopy, Adam Hermanson, 25 died on September 1, 2009. He is survived by his wife Janine. To date there have been 18 electrocution deaths of U.S. soldiers in Iraq. Eight involved possible equipment faults or malfunctions.

Originally posted at InjuryBoard by Steve Lombardi

1,000 Golf-Cart Accidents Per Month

Steve Lombardi — Wed, 02 Sep 2009 11:27:00 GMT

In 2008, a group of researchers at the University of Alabama at Birmingham (UAB)investigated how often golf carts were involved in causing trips to the emergency room. Their findings were remarkable. First, they concluded that approximately 1,000 golf cart accidents occur in the United States every single month – that means over 30 per day. Second, and even more surprisingly, they determined that roughly half of the injuries occur off the golf course. In recent years, golf carts have grown in popularity as low-risk, low-speed forms of general transportation; however, this study suggests that they might be more dangerous than they seem.

When driving a golf cart, one must be vigilant of two unique risks.

First, passenger ejections. These types of injuries account for approximately 35% of golf cart accidents, and in almost every case it is the passenger who has fallen out of the vehicle. Oftentimes, the passenger will be ejected when the driver makes a sudden turn. Drivers do not need to be particularly concerned about these expulsions; their grip on the steering wheel will counteract the centrifugal forces. Passengers, on the other hand, must be careful. Golf carts have no doors, and oftentimes provide few handholds but the ones most do provided (especially ones at hip level, where most of them are) are positioned in such a way that they actually assist the ejection forces. To avoid these injuries, simply drive slower when going around turns and warn your passengers about upcoming maneuvers. Hey, I'm going to do a wheelie, hold on!

Second, rollovers. Rollovers account for only 10% of golf cart injuries, but they are often the most devastating. In many ways, the root of these accidents lies in poor manufacturing. Most golf carts are produced with rear-braking wheels, a set-up that, when the cart is rolling downhill, encourages fishtailing and, in extreme situations, rollovers. Just like ejections, rollovers are easy to avoid. Take downhill slopes slowly, and if the cart begins to fishtail, do not brake harder.

Golf carts are convenient and simple, and, with an ounce of precaution, are safe as well.

Originally posted at InjuryBoard by Steve Lombardi

In this day and age is it still necessary to yell "FORE!"?

Steve Lombardi — Fri, 28 Aug 2009 14:04:00 GMT

As any Caddyshack fan knows, a day at the golf course isn’t always a relaxing retreat. But can it be a minefield of potential lawsuits? Specifically, does a golfer need to shout ‘fore!’ before hitting his or her ball? Or does "fore!" need to be yelled if the ball goes off course?

This tradition dates back to at least 1881. Some think that the term comes from British military history, because the artillerymen would warn ‘beware before’ before they shot their cannons. According to another theory, the word evolved from the term ‘forecaddie,’ a man hired to accompany a group of golfers and stand by the holes to recover any stray shots. This man was little better than a servant; by calling his position, ‘forecaddie,’ the golfers alerted him that he needed to get to work. Over the years the golfers got even lazier, until all they could manage to utter was ‘fore.’ Now, even that tradition has passed away.

What, then, is a golfer to do if he or she is hit by a golf ball? If the golfer lives in New York, then the court system is unlikely to intervene. An appellate court in Brooklyn has declared that stray balls are an inherent risk in the sport, and that by stepping onto the green a golfer implicitly accepts that danger. Interestingly, the court seems to favor dreadful golfers; if the ball is so off-course that no one would expect it to hit anybody, they say, then one cannot be expected to call ‘fore’.

Courts in New Jersey, however, disagree somewhat. According to an appeals court in the state, if a golfer takes an unexpected second shot, also known as a ‘mulligan,’ then he or she must warn all other golfers in the area. This is the reasoning: since nobody will be watching out for the second shot, then the golfer must alert them to the impending danger.

The lessons to take away? First, you don’t need to call ‘fore’ unless you are doing something very unusual. Second, and more importantly, pay attention when you are on the golf course. It’s all fun and games until someone loses an eye!

Your eyes of course being just under your "forehead".

Originally posted at InjuryBoard by Steve Lombardi