What Goes Up May Come Down and Kill

Not many people realize that there are several thousand elevator deaths every year. Most happen on job sites.

“Just about anyone that has ever worked on a construction site realizes that accidents can and do happen, despite safety measures and other precautions. While most people figure the main reason for accidents is working with scaffolding or heavy, moving equipment, many of them don’t realize that construction site elevators are often the source of an injury,” recounted Brooks Schuelke, an Austin personal injury attorney with Perlmutter & Schuelke PLLC.

Elevators on a work site definitely have their uses and are helpful for moving workers between floors or taking heavy equipment from one place to another without the hassle of using stairs. The problem is, elevators are places where a great many workers have sustained injuries while on the job. “If an onsite work injury is sustained, you may be able to claim workers’ compensation benefits or seek other remedies depending on the facts. However, not all claims go as they should and it’s a smart move to have the help of an experienced lawyer,” added Schuelke.

“Many of the accidents that we tend to see in practice related to working with elevators are falls, cuts, abrasions, lacerations, amputations, people trapped between the elevator and shaft wall, and doors opening onto an empty shaft. Other accidents happen during ascent, descent, stops or while accelerating,” he observed.

Getting hurt on the job often devastates those who were injured. The recovery time may be anywhere from weeks to years. “You may face astronomical medical bills, lose wages or your job, pay for therapy and medications, and never quite be the same again. While it helps to file a claim, in many instances there may be issues with that claim and they result in delays you can’t afford since you are injured,” commented Schuelke.

In addition to possible delays in dealing with claims, the whole process of filing a workplace injury claim is often not only complicated, but frustrating when all the worker wants to do is file a claim and get compensation for their injuries. “This is yet another reason why it’s a good idea to have an experienced lawyer help you. Workplace injuries have a way of becoming other things over time if they are not treated effectively and promptly,” said Schuelke.

Contact Perlmutter & Schuelke PLLC at http://www.civtrial.com or (512) 476-4944.

Lawers? Need Ethics CLE?

Here’s a diversion from my normal posts.  But this Wednesday, judge-elect Amy Clark Meachum and I will be the speakers for a nationwide webinar, Legal Ethics 2010.  The webinar has been approved for 2 hours of CLE credit in 45 of the 50 states, including Texas.  I’m not promising it will be fun, but it will be passable.  If you need your ethics hours at the end of June, consider joining us.

Posted on: June 28, 2010 |

Think Teens Are The Biggest Texting-While-Driving Threats? Think Again

We all know the stereotype of teens stupidly texting while driving.  We all know that older drivers are smart enough not to do that.  Don’t we?

Maybe not.  A new poll from Pew Internet found that adults were more likely than teens to text while driving and engage in other distracted driving habits.  The poll found that 34 percent of 16 & 17 year olds who used their phones to text said they did so while driving.  Shockingly, 47 percent of adults said that they did it.  Additionally, far more adults than teens responded that they had talked on their cell phones while driving.  And 17 percent of the adults surveyed admitted that they had hit someone because they were distracted by their cell phones.

So the next time that we’re griping about texting and driving and blaming the kids, remember that it’s not them so much as it’s us.

The article and study have more startling statistics so I urge you to click the links and learn more.

Posted on: June 26, 2010 | Tagged

A Lesson Learned From A Capital Metro Bus Wreck

Both KXAN and Fox7 reported last night on a collision between a Capital Metro driver and a pedestrian.   The story caught my attention because I’ve been on both ends of that.  I’ve represented a number of people, including one pedestrian, that have been hurt in wrecks with Capital Metro.  And I’ve also had the pleasure of representing a number of Capital Metro drivers, and I know that it’s a hard job.

But watching the KXAN story last night, one thing in particular struck me.  As the original story was going, the news camers showed a Capital Metro employee out there taking photos of the bus and the scene.  (Unfortunately, the story on the website doesn’t show the entire story so you won’t see this if you’re watching the link.) 

In our book HOLDING WRONGDOERS ACCOUNTABLE: AVOIDING MISTAKES THAT CAN RUIN YOUR TEXAS ACCIDENT CLAIM, one of the mistakes we talk about is not documenting the scene.  Many times when you’re in a wreck, you’re too hurt to do anything.  But in some instances, you’re able to take our your camera or cell phone and snap a few pictures of  the cars, skid marks,  debris, people standing around, etc.  This time of information will almost always help in some way or another as the case proceeds. 

This type of investigation is especially important when you’re involved in a wreck with a commercial vehicle, such as a bus or an 18-wheeler.  They will have investigators out on the scene as soon as they can.  And if they’re the only ones that get to document what’s going on, then it’s a huge advantage for them.  

Documenting the scene is also one of the most important reasons why you should talk to an attorney sooner rather than later.  If an attorney is hired early, we might be able to get an investigator out there that can find some skid marks, left over debris, etc.  that won’t be there as time passes.  It’s also sometimes easier to get witnesses to cooperate if we can talk to them shortly after a wreck instead of waiting until months or years later.


After I finished the post, Steve Lombardi, writing in The Verdict, provided additional insight to his clients involved in accidents and stressed how preserving the evidence at accidents whith photographs is equally vital and important to being able to win your case.  In Why Is The Bus Company Photographing The Bus At The Accident?  Steve adds to the idea that car-truck-bus-motorcycle accident investigations require you to have your own independent investigation to preserve evidence for you.  We’ve been doing that at Perlmutter & Schuelke, PLLC  for years.  And now that it’s easier to make digital presentations to the adjuster, through a demand or at mediation, having that type of evidence in disputed cases is more critical than ever.

Present Value Calculation for Death Compensation

One of the most confusing things about wrongful death compensation is how it is calculated.

It’s hard enough to handle the fact that you suddenly lost a loved one due to the negligence of another, let alone understand how to calculate wrongful death compensation. These cases definitely need the skill of an experienced Austin personal injury lawyer to navigate the choppy waters surrounding death calculations and how an award is translated to present day dollars.

Texas wrongful death claims are unusual. When a person is wrongfully killed, the claims are governed by the Texas Wrongful Death and Survival statute. This statute describes who can sue in a death claim and what damages they may recover.

When a person is wrongfully killed, the person’s estate has a “survival claim.” The estate has the right to seek damages for any medical or funeral expenses that the person incurred as a result of the incident, plus claims for any pain and mental anguish the deceased might have experienced before his or her death.

The statute also allows some family members to make a “wrongful death” claim. In Texas, the only people that can make a wrongful death claim are the deceased’s spouse, children and parents. The spouse and children get to ask for damages of pecuniary loss (loss of care, maintenance, support, services and advice that the person would have provided), loss of companionship, mental anguish, and loss of inheritance. Surviving parents may also seek these damages, except the loss of inheritance damages.

Needless to say, it can be extremely confusing and complicated.

Loss of inheritance is based on the lost income of the person killed. Future lost income is usually figured out based on the amount of income a victim would have earned had they not been killed. This may be calculated by taking the deceased’s income when they died and then multiplying it by the years left until retirement (and finding a formula to compensate for increases in income the person would have received) or until their expected death. As you may have already guessed, retirement ages differ from one person to the next and when a person dies is based on complicated actuarial tables.

An example of how this would work would be a 50-year-old man making $40,000 a year when he was killed and was not banking on retiring for another 15 years. That individual’s income, when he was killed, would be multiplied by the number of years he had left to work. That would be $40,000 x 15 years which would make his future losses of $600,000 (give or take).

The fly in the ointment is accounting for raises the person would have received and reducing the overall value to present day dollars because Texas law requires awards of future income to be “discounted” to present value. In many cases, one of the biggest fights is the fight among each side’s economists arguing about the way these two calculations should be done.

Something to remember is that wrongful death compensation figures are not always calculated the same way simply because of the presence or absence of various factors may be different in each case. The only way to get a good idea of what compensation may be in a wrongful death case is to discuss the matter with an Austin personal injury lawyer. They would be able to outline how the process works and what you could expect to see during the course of the trial.

Brooks Schuelke is an Austin personal injury attorney with Perlmutter & Schuelke PLLC. Contact an Austin injury lawyer at Civtrial.com or (512) 476-4944.

It’s Summer — Blue Skies, Swimming Pools, and Head Injuries??

While we’re all prepared for the good summer fun, the American Assocation of Neurological Surgeons is reminding us that summer activity-related head injuries are on the rise.  Why?  The two main causes are bicycling and water sports.

The number of biking-related head injuries rose from 70,800 in 2008 to over 85,000 in 2009.  And one of the big suspected reasons?  Cell phones and text messages.  Anecdotal stories of talking on the cell phone or texting while driving and cycling are getting a lot of the blame for these increases.  To protect yourself from head injuries, use your helmet, obey traffic signals, wear bright clothing, and, by all means, don’t talk on a cell phone while you’re riding your bike.

The second major area of concern is water-related injuries.  The biggest problems continue to be diving into shallow water, running on the pool deck, and rough-housing in or near the pool. 

We’ve represented a number of people who have suffered head injuries, and it’s horribly sad to see how one poor decision can affect an entire life.  Enjoy the summer and enjoy the outdoors, but be smart about how you do it.

Posted on: June 22, 2010 | Tagged

Boating While Intoxicated & Other Ways To Get Sued While Boating

Like many of you, my family spent part of the Father’s Day Weekend boating.  While we were out, we saw a number of concerning things:  people jumping off of cliffs (without life jackets, of course), drunk passer-by urging the cliff jumpers on (though this did provide a learning moment for my kids about peer pressure), and a group of guys carrying another guy up the bank of the lake  (I’m not sure what happened there).

I’ve spent a lot of time writing about boating safety, but this weekend, I saw a blog post on  boating safety from my friend Steve Lombardi, a personal injury lawyer in Des Moines.  Steve said he spent some time thinking about all the ways people could get in trouble from a lawsuit standpoint while boating.  I’m reprinting his list (with his permission) below:

Off the water and before you leave the dock:

  • Not enough life vests for the number of passengers who will be onboard.
  • No fire extinguisher.
  • Not having a compass, GPS or map of the area.
  • Not being familiar with the area.
  • No water onboard and too much drinking that tends to dehydrate.
  • No communication device to call shore in the event of an emergency.
  • Not filing a float plan and leaving it with someone on shore.
  • Not checking to make sure you have enough gas.
  • Not checking the weather before heading out.
  • Not having an anchor.
  • Not having rope to secure the boat.
  • Not knowing how to use an anchor.
  • Not knowing how to tie a knot.
  • Not having a knife to cut the rope if needed.
  • Not having simple tools onboard that would allow you to make simple fixes.
  • Not taking a water safety course.
  • Not having a light to signal with if you get stuck after dark.
  • Not having a first aid kit.
  • Not bringing along ice in a ice chest to keep the food from spoiling.
  • Not making sure every passenger has the right gear for the length of time they will be on the water.
  • Knowing your passengers and which ones will listen and do as the captain says.
  • Failing to choose a designated driver for the day.
  • Allowing an inexperienced operator to take the boat out.

On the water:

  • Drinking alcohol and driving the boat.
  • Allowing passengers to drink too much.
  • Driving too fast before all passengers are secured or seated and ready to go.
  • Allowing swimmers near a moving propeller.
  • No spotter when pulling a water skier or other passenger behind the boat.
  • No water skier vest being used.
  • Not watching ahead as you pull a skier.
  • Creating a wake while overtaking a smaller boat.
  • Fooling around while the boat is in operation.
  • Getting too close to dangerous man-made objects- like dams and waterways.
  • Failing to have the proper operating lights after dark.
  • Not staying to the right when approaching another boat.
  • Not paying attention to the buoys and other water markers.
  • Not watching ahead for swimmers in the water.
  • Not knowing the lake or river and where it is safe to be and not safe to be.
  • Not knowing when things on the boat are getting out-of-hand.
  • Not maintaining control of the passengers.
  • If in a sailboat, tying the mainsail.
  • Fishing for sharks or whales in a rubber raft. (Just wanted to make sure you were listening!)

Pulling the boat:

  • Towing the boat without the safety chains.
  • Exceeding the limit of safety while pulling the trailer and boat.
  • No spare tire for the trailer.
  • Failing to secure things left inside the boat as you tow it down the road or highway.
  • Not having all the trailer lights working on the boat trailer.
  • Not using hand signals and trailer light signals.
  • Failing to double check the hitch assembly to make sure you put on the safety chains.

My step-dad was a pilot for American Airlines for a long time, and one of the key safety features in the airline industry is the checklist.  Before every flight, pilots go through an exhaustive checklist to make sure that they haven’t forgotten anything that might threaten the safety of the plane or its passengers.  The checklist was important to make sure all the details were taken care of, particularly the smaller, routine items.  People don’t forget the big things, they forget the small, routine things, that can be just as dangerous.  People need to think about using a checklist for boating, and Steve’s list is just about as good as any list I’ve seen.  (And if you’re interested in learning more about the need for checklists, I highly recommend The Checklist Manifesto: How To Get Things Right by surgeon Atul Gawande.  It’s a good read that might really make a difference in how you do some things.)

Posted on: June 21, 2010 |

Beware The Dangers Of Pulling Over On The Side Of The Road

I received a news story of a trucking wreck on IH 35 in Oklahoma where two gentlemen, Phillip Martin and Brian Robertson, were having car troubles.  They pulled over to the side of the road, got out of their vehicle, and went to sit against the passenger side of their truck in the shade until help could arrive.  Unfortunately,  a truck driver came along, hit the disabled truck, and killed Mr. Martin.

This is but the latest example of how dangerous it can be to be parked on the side of the road.  Almost all of us have to pull over at some time or another.  We may have car trouble, run out of gas (that’s included for my mom), or have a child or passenger that needs you to pull over so they can throw up (as happened to one of my kids recently).  Regardless of the cause, many of us have found times when we needed to pull over. 

 Unfortunately, motorists have a tendency to look at disabled vehicles or other cars pulled over on the side of the road, and when motorists look over in that direction, their cars tend to drift in that direction, creating a significant risk of collision and injury.

Perhaps the best examples of these dangers is from police traffic stops.  Police officers have long realized the dangers of being stopped on the side of the road.  For example, from 1993-2002, law enforcement officials estimate that 681 officers were killed in accidents involving traffic stops.    Police departments across the country are now working on a number of solutions to help minimize these risks.  Some of the things discussed include policies on how officers should position vehicles, how cars can be modified to provide the best visibility, to legislative solutions (such as the Texas law requiring motorists to significantly slow down when passing a traffic stop).

For other drivers, technology is helping with the risk.  A number of car manufacturers are are investigating or starting to equip their vehicles with lane departure sensors that let drivers know when they might be inadvertently drifting into other lanes.  A good summary of these can be found in this Wikipedia article.   

But until that technology becomes common, it’s critical that all of us pulling over be cautious and aware of what’s going on around us.

Lake Austin Named A Top Boating Destination; But Be Safe While You’re There

Loop 360 boat ramp


Discover Boating recently named Lake Austin as one of the top boating destinations in the country. In ranking Texas as the second best boating state in the country (behind Florida), Discover Boating noted this:

Hot Spot: Lake Austin — In the heart of energetic Austin, Lake Austin offers an ideal setting to cruise, waterski, fish and be entertained with a plethora of restaurants and live music venues to dock at along the shore.

Living within walking distance of the lake, my family and I sure appreciate it.

But we also recognize that with boating, comes danger. In fact, just last weekend, a young boy from Houston died after swimming around a boat dock on Lake LBJ.

It’s critical that people are aware of the risk and are cautious when they’re enjoying Austin’s lakes.  Make sure to take these precautions when you jump on the boat this summer (tips via KXAN):

  • Know where you are — carry a lake map with you, pay attenton to where you put your boat in the water, watch for lake milemarkers, and consider investing in a GPS unit.
  • Be very careful when you boat at night — abide by the recommended speed of 20 mph, always make sure you have the proper lighting on your boat, use radar technology.
  • Wear a personal floatation device and make sure all of the ones on the boat are easy to get to.
  • Don’t drink — many boat accidents are alcohol related.  Remember driving a boat with a blood alcohol content over .08 is illegal.  Also remember that the effects of alcohol are magnified when boating due to the sun, the water and the constant motion.
  • Slow down — it’s hard for other boats to judge your speed.  Driving a boat isn’t like driving a car.
  • Don’t cliff dive — no matter how deep the water is, there’s no way to know what debris could be lurking just a few feet below the surface.

(flickr photo courtesy of rutlo)

If You’re In A Car Wreck, Does It Matter Who The Other Driver’s Insurance Company Is?

We often know whether a car wreck claim has a chance of being resolved without the necessity of a lawsuit simply by knowing what insurance company insures the other driver.  Some insurance companies will make reasonable offers, giving cases a chance to settle, but with other insurance companies we know we’re not going to get a fair offer until we file a suit and get the case ready to be tried.

A story in today’s Dallas Morning News talks about two of the worst offenders.    According to the article, the Morning News analyzed Texas Department of  Insurance complaints and found that Fred Loya and Old American County Mutual (which is owned or run in part by Loya) both far exceed other insurance companies under the state’s “complaint index.”   And then the article gives some examples showing the shoddy treatment that people in wrecks had received from these two companies.

When you’re hit by another driver, you don’t get to choose what insurance company they have.  You’re at their mercy, and the company (and even the individual adjuster signed to  your claim) can make a big difference in how the case proceeds.

But you do get to pick your own insurance company, and you should factor in how that company might respond.  For example, I recently filed a case against Fred Loya on an underinsured motorist claim  (uninsured/underinsured motorist coverage is coverage you may purchase on your own policy in case the person that hits you doesn’t have any or enough insurance ).   Fred Loya told me that they were denying coverage because the driver of the car was excluded under the policy.  But when I requested that they provide copies of the policy or other documents to support that claim, they would never respond.  So I filed suit.  Surely you’d expect your own insurance company to get back to you, but that wasn’t the case here.

The article was important for another thing — pointing out that the insurance department has little power over the insurance companies.  As the article said: 

For example, the department cannot force a company to pay a disputed claim if there is no violation of the law.  Also, the agency cannot decide who is at fault in an accident.  

That means that those of us that are trial lawyers are the last defense you have to help wrong these rights.

Schuelke Law maintains offices in Austin, Texas. However, our attorneys and lawyers represent clients throughout the state of Texas, including Dallas, Houston, San Antonio, Forth Worth, El Paso, New Braunfels, San Marcos, Kyle, Buda, Round Rock, Georgetown, Lockhart, Bastrop, Elgin, Manor, Brenham, Cedar Park, Burnet, Marble Falls, Temple and Killeen. By Brooks Schuelke

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