Roll-over Accidents — Recognizing Product Defect Claims

Last week, I wrote about the tragic story of Alex Brown, a teenager who was killed in a one-car collision when she was texting while driving.  She lost control of her car, and it eventually rolled over.  She was killed when she was ejected from the vehicle. 

When I was watching the news story about her wreck, it occurred to me that her wreck was a good example of a roll-over accident.  Because if you look at the cab of her truck, it is largely intact.

When people think of roll-over accidents, they immediately think that any survivors are lucky to be alive.  But that’s not the case.  In fact, the opposite is true.  If the vehicles are doing their job and working properly, most people should survive roll-over accidents.

The biggest dangers in roll-over accidents occur when (1) occupants of the vehicle are ejected or partially ejected from the car and then get hurt; (2) the occupants are thrown around inside the vehicle and hit other objects in the vehicle; or (3) the roof of the vehicle caves in and crushes the occupant.

But today’s cars should now be designed to protect against all of these dangers.  Vehicles are supposed to be designed to maintain a safe zone for the occupants so that occupants aren’t killed in these types of crashes.  For example, properly functioning seat belts (and side air curtains in many new cars) will keep occupants from being ejected and from being thrown around in the vehicle.  Similarly, vehicles should now be designed so that the roof and sides of the vehicle can take the forces from a roll-over without collapsing on the occupants. 

So if you see serious injuries in a roll-over wreck and someone dies, the real question should be, “What went wrong?”  Was the person in the vehicle not wearing a seat belt (and there are ways for our accident reconstructionists to go back and make this determination after a wreck)?  Did the seat belt fail? Did the roof crush in?

If you have a loved one seriously injured in a roll-over collision, it’s very important that your attorney be familiar with these types of claims and able to look for them.  And it’s really important to get an attorney fast.  If the vehicle isn’t preserved, then any hopes of making a product defect claim are probably lost.

Now that you’ve read this, go back and watch the story about Alex Brown and look at her truck.  Notice how the cab of the truck maintains its integrity.  If she had not been ejected from the vehicle, she would probably be with us to tell her story herself.

Austin Personal Injury Lawyer Advises Car Wreck Victims to Contact Counsel Quickly

A driver going the wrong way slammed into two other vehicles, causing a horrific wreck. The wrong-way driver was killed in the raging inferno of her exploding car.

“This particular accident was a shock to all those involved. It happened when a wrong-way driver, in control of a Mercury Tracer, was heading south in the northbound lane of I-35 near Austin. She slammed into a Ford F-150. Just seconds after the first impact, a Toyota hit the Tracer. The second impact detonated the gas tank on the Tracer, trapping the driver inside,” said Brooks Schuelke, an Austin personal injury lawyer with Perlmutter & Schuelke, L.L.P.

Emergency crews arrived quickly, but discovered the Tracer driver was dead. The survivors of the wreck were taken to the nearest medical facility for treatment. The police report had no further details pertaining to whether or not drugs or alcohol were involved in this accident and a full investigation would be launched.

The first thing most people think about when they have been in an accident is whether or not they will be OK – be able to walk and live a normal life. They are in shock and not thinking straight. When the chills wear off and they are medically assessed as being OK, or evaluated with serious injuries and will need extensive care, many then start wondering whether or not they can claim compensation for their medical bills, lost wages, pain and suffering and property damage.

“The answer to that is ‘Yes, they can file a personal injury claim for compensation.’ The first step in that process is to contact an experienced Austin personal injury lawyer and find out what your rights are and how a trial comes together and, as odd as it may sound, to find out if there was negligence involved and whether or not negligence may be apportioned between the other driver and the plaintiff,” Schuelke said.

In this particular case, any plaintiffs choosing to file a lawsuit would be filing against the estate of the dead Tracer’s driver. If drugs or alcohol did play a role in this wreck, this is information a lawyer may use to highlight the wilful negligence of the driver. “Mind you, the fact that she was already driving south in a northbound lane is a good start to indicate there was negligence,” Schuelke said.

Do not wait too long to seek legal counsel, as every state has a Statute of Limitations that will kick in and bar an action if a plaintiff waits too long to file. This is information that needs to be discussed with an attorney prior to proceeding with a personal injury case. “It is my job to deal with cases like this and to advise those who have been injured what their options are to recover compensation. If you have been in a car wreck and need help, I’d be pleased to talk to you about your case,” Schuelke said.

Contact Perlmutter & Schuelke PLLC at Civtrial.com or (512) 476-4944.

Austin Scaffold Collapse — A Case Study

Yesterday, one worker was killed and another injured when the scaffold they were using collapsed.  The workers were maintenane workers for the Retreat at North Bluff apartment complex.  They were apparently using a make-shift wooden scaffold for their work.  The Occupational Safety and Health Administration is now investigating the incident.

If you’re involved in such an incident, what types of issues might you face in bringing a claim?

The first issue in on-the-job injuries is whether your employer had true worker’s compensation insurance.  The Texas worker’s compensation system provides protection for employers who carry worker’s compensation insurance.  If  your employer carries worker’s compensation insurance then the insurance will pay for medical expenses and some lost wages for you for any on-the-job accident regardless of who caused the accident.  But the protection to your employer is that you can’t sue your employer for any other damages, such as pain and suffering, mental anguish, etc.

The one exception to this protection is if your injuries were caused by your employer’s gross negligence.  Generally, that means is that your employer knew it was doing something dangerous and putting you at risk but did it anyway.   If you are killed or seriously injured by your employer’s gross negligence, then you may still be able to bring a claim against your employer even if the employer has worker’s compensation insurance.  But you may waive this right by accepting worker’s compensation benefits so it’s important to talk to an attorney right away to make sure you don’t waive your rights.

Because the state wants to encourage employers to carry worker’s compensation insurance, there is also a penalty for employers that don’t carry worker’s comp. Those employers are deprived of any comparative responsibility defense.  In a normal case, a defendant is generally only liable for the percentage of damage it causes you.  For example, if a jury finds you suffered $10,000 in damages, but that the defendant was 60% responsible and you were 40% responsible, then you only get to recover 60% of the damage (in this example, $6,000).  But if a “non-subscriber” case where the employer doesn’t carry worker’s compensation insurance, your employer is responsible for all the damages even if it only contribute 1% responsibility to your injuries.

So the first thing we need to know in these cases is whether your employer has worker’s compensation insurance.  A good first start is the Texas Department of Insurance website, which will verify whether your employer carries worker’s compensation insurance or not. 

The second thing we ask is whether any other entity (other than your employer) contributed to your injuries.  Perhaps you were working on a jobsite and the property owner had a dangerous condition there.  Perhaps you were on a jobsite and your injuries were caused by an employee of a subcontractor or someone else working on the same job.  There are a lot of possibilities that we look for here.  (I”ll also add that the law in this area is very complicated.  It would take a book to explain the ins and outs of potential third-party liability claims.  I’m not trying to explain all that here.)

Once we determine who we might be able to sue, we then focus in on what they did wrong.  Just because you’re injured on the job doesn’t mean that your employer is liable for your injuries.  We have to be able to prove that your employer’s negligence contributed to your injuries.

In a case like the example, that should not be difficult.  Scaffolding is very dangerous and is thus highly regulated.  

OSHA has several requirements for scaffolding safety. Initially, it is critical that the scaffolding be constructed properly. OSHA has very detailed requirements for the construction of scaffolds. These requirements include:

  • each scaffold and scaffold components must be capable of support four times the maximum intended load on the scaffold
  • any suspension ropes must be capable of supporting at least six times the maximum intended load
  • the working levels must be properly planked and decked
  • scaffold components manufactured by different manufacturers must not be intermixed unless the components “fit together without force” and the structural integrity is maintained
  • supported scaffolds (as opposed to scaffolds suspended from the roof) must be plumb and braced to prevent swaying
  • for suspended scaffolds, there must be a normal operating brake and an emergency brake or locking pawl that automatically engages when there is an instantaneous change in momentum or an accelerated overspeed

In addition, OSHA has specific guidelines for fall safety systems, which includes a requirement that each employee on a walking/working surface with an unprotected side or edge which is more than six feet above a lower level must be protected by a guardrail system, safety net system or personal fall arrest system. The OSHA rules also specific requirements governing the guardail, safety net and personal fall arrest systems.

When looking at this claim, we would investigate to determine whether your employer complied with these requirements.  If your employer failed to comply with the requirements, then we have a good start to argue that your employer’s negligence contributed to your injuries.

In addition to looking at regulations, we also look to other actions that your employer might have taken or not taken that contributed to the incident.  For example, in many cases, people are injured by co-workers.  In those cases, we’ll look at the hiring process or the training process to try and determine whether your employer’s hiring or training process contributed to your injuries.

Once we’ve done the investigation regarding your injuries, then we’ll turn to your injuries and start investigating those.

A Harsh Reminder About The Dangers of Texting While Driving

Jeanne and Johnny Brown visited Dripping Springs High School yesterday to help make sure that their daughter’s life wasn’t lost in vain.

In 2009, Alex, the Browns’ honor student daughter, was killed in a rollover accident as she was driving to school.  Alex was texting and driving at the time.

Now, the Browns are driving across the state, with the wrecked vehicle, to try and teach Texas high school students first hand about the dangers of texting while driving.  These are lessons that can’t be learned sitting behind a desk or talking to parents. 

Interestingly, the Browns are also suggesting the use of a device known as the “Get Home Safe” device that can block text messages while your car is moving. 

I’d urge all of you to watch the Browns’ story below  an to share it with your kids to help make sure that Alex’s death isn’t in vain.

Texting while driving no LOL matter: kxan.com

 

UPDATE:  This amazing family was featured on the January 30, 2011 episode of Extreme Home Makeover, a special two-hour episode of the show that really talked about the dangers of texting while driving.  You can also learn more about their story and about the dangers of the texting while driving at the family’s website for the Remember Alex Brown Foundation.

Rick Springfield Suffers A Torn Rotator Cuff In A Motorcycle Accident

There was big entertainment news this week when pop-rocker Rick Springfield announced on a talk show that he had to suspend his current performances because he suffered a torn rotator cuff in a recent motorcycle wreck.

Why am I writing about this?  Two reasons.

First, I don’t think we do a good enough job educating people about the types of injuries they might sustain in wrecks.   It goes without saying that most of the injuries we see from motorcycle wrecks are horrific.  When a motorcycle rider collides with a several thousand pound vehicle, the result is almost never good for the bike rider.  And riders should think about that.  If you’re out there, be mindful of the other crazy drivers.

But second, I didn’t want to pass up an opportunity to talk about rotator cuff injuries.  I’ve worked on these cases before (and have one now) and these are painful injuries.   In many cases, conservative care (rest, ice and strengthening) are enough to treat the problem. 

 But in many other cases, surgery is required.  Surgery can be in the form of a full open repair or through arthroscopic means.  In either case, you’ll probably be in a sling for four to six weeks following the surgery and then start with some physical therapy to regain range of motion and to strengthen the shoulder.   

In most cases, your prognosis is good.  Depending on the studies you look at, between 80 and 95% of those having surgery are happy with the outcome.  Of course, if you’re in that small minority, these can be painful injuries to endure.

How Might The Texas Budget Crisis Help Reduce Texas Car Wrecks?

If you haven’t been paying attention, the Texas legislature is in session and facing a huge budget shortfall — with most estimates predicting a shortfall between $15 and 27 Billion.  Because the Republican leadership is pledging not to raise taxes or tap into the state’s rainy day fund, the balanced budget will only be achieved through significant cuts and creative ways of raising  additional funds (somehow this is different than a tax increase).

One of the creative funding mechanisms may help reduce the number of Texas car wrecks.

How?

One of the proposals to raise more money contained in the House of Representatives’ budget is to ban the use of wireless communication devices while driving — in other words, no more texting while driving or talking on a cell phone while driving. If this is adopted, it will significantly improve the safety of Texas roadways.  I’ve often written about the dangers of texting while driving  (see a collection of some of my posts on texting while driving).    It is a real threat, and making it illegal will likely help make the roads safer. 

And how is this related to the budget?  The Legislative Budget Board estimates that this move will generate $2.3 million.  They’re not clear on how that will occur, but I’m guessing that it is through expected fines for those that will continue to violate the law.

I think this is also an interesting study on how to position legislation.  For years, some legislators have championed the idea of banning cell phone use while driving because of the safety issues.  As a safety issue, the idea has never received much traction.  But if it now passes based on the argument that it’s a money making idea, it will be a telling lesson about the legislature’s priorities.

More Austin/I35 Hit And Run Accidents

I’ve written about hit and run accidents before, but the problem just seems to be getting worse. 

The Austin American Statesman is reporting on two more hit and run accidents from last week.

In the first accident, Lacey Marie Seljos was charged with intoxication assault and failure to stop and render aid after she allegedly hit a bicyclist just off of I35 last Thursday morning.  Fortunately for the victim, a police officer saw the wreck and was able to stop Ms. Seljos.  She was apparently so intoxicated that she didn’t know that she had hit anyone.

The second victim wasn’t as fortunate.  Friday morning an elderly man was struck and killed while walking on the I35 access road.

As I’ve written before, in most hit and run cases, the other driver is never found.  But just because you can’t find the driver doesn’t mean that you can’t obtain a recovery.  If you own a vehicle and purchased uninsured/underinsured motorist coverage on your insurance, that policy will likely provide you an avenue of recovery.

In fact, I just resolved a similar case.  Our client was a bicyclist who was hit by a car.  The driver stopped, but gave our client false information.  Even though she was riding a bike, she was able to make a claim on her uninsured motorist policy covering her car.  And even better, through some hard work, we were able to identify the driver of the vehicle and ultimately make a claim against his insurance.

So if you’re the victim of a hit and run accident, don’t give up.  There are potential avenues for recovery.

Austin Personal Injury Lawyer Points Out Trucking Companies May Cause Accidents, Not Just The Trucker

It is not always the trucker alone who is responsible for big rig wrecks. Fault may lie with the trucking company.

It goes without saying that driving on the highway in the presence of 18-wheelers is enough to give many drivers serious concerns. It is well known that big rigs can and do get involved in some really nasty accidents, often resulting in either serious injuries or death for those they hit. While they keep American industries moving, they are often in violation of rules of the road, rules of safety or rules of the government in order to get paid a decent living.

“The very size of these vehicles means any wrecks will be ugly and often fatal. Truck versus car collisions can also be caused by a car driver, a negligent trucker, a defect with the truck or the company that owns the vehicle and hired the trucker,” said Brooks Schuelke, an Austin personal injury lawyer with Perlmutter & Schuelke, L.L.P.

It is fairly common knowledge that there is a legal limit on the amount of time a trucker can drive each day. This is often referred to as hours of service. The idea behind this is to keep fatigued drivers off the road, because being tired means making just about as many mistakes as being drunk; a disaster in the making.

“Sadly, some trucking companies turn a blind eye when truckers violate the hours of service rules or instruct them to ignore the rule and get stuff delivered fast, to meet or beat a deadline. Trucking companies are not immune to the rules and when they choose to flaunt them, they may be held responsible for a truck wreck,” Schuelke said.

Negligent hiring is another very real concern in the trucking industry. This means precisely what it says, that the trucking company hires without checking driver’s extracts or records. For all they know, the person has a string of citations for reckless driving or has been fired previously for driving like a maniac.

Instead of just hiring someone with a pulse, companies need to do due diligence to ensure drivers are safe, reliable, trustworthy and good drivers. Should they ultimately hire a lemon without checking the background details and an accident happens, the company could be the one on the mat facing the music.

“Not training their new hires properly or not maintaining the fleet as required are two other areas where trucking companies may run afoul of the law when one of their truckers is involved in an accident. These various scenarios are one of the many reasons why trucking accidents are as complex as they are. If you have been involved in one, you will need to know where you stand. I’d be happy to answer your questions if you call me,” Schuelke said.

Contact Perlmutter & Schuelke PLLC at Civtrial.com or (512) 476-4944.

When Is A Car Wreck More Than A Car Wreck?

There was a horrific car wreck yesterday morning on Highway 290.   A pickup truck driven by Rudy Cruz had a collision with an electricity truck driver.  Both Cruz and the electricity truck briefly pulled over.  But then Cruz took off again and ended up driving on the wrong side of 290.  He hit a an Acura driven by Dr. Bishal Anand and then hit another pickup truck, driven by Carl Bonn.  Sadly, Dr. Anand and Mr. Cruz were both killed.

From a civil liability standpoint, this is obviously a car wreck case. 

But the thing that struck me, other than the obvious tragedies with the deaths involved, was the damage to the vehicles involved.  One of the vehicles was literally ripped apart.  It isn’t supposed to happen that way.

In tragic cases, it’s easy to spot the easy car wrecks and leave it at that.  But as attorneys, we need to look farther.  In many cases, such as this one, an attorney might ask whether the vehicle involved held up like it was supposed to.  These days, vehicles are designed to withstand collisions and protect those inside of vehicles.  When they fail to do that adequately, then there might be a products liability case against the vehicle manufacturer.  These types of cases are called “crashworthiness” cases — and the issue is whether the vehicle was reasonably well designed to stand up to crash forces. 

An attorney might also look at the seat belts — did the seat belt stand up to the collision like it is supposed to?  Or a personal injury attorney might investigate to see whether there were other factors that might have contributed to the wreck. 

In this wreck, it doesn’t sound like many of these factors will apply.  But a personal injury lawyer has to keep an open mind to really analyze when a car wreck presents more than just a car wreck case.

Posted on: January 13, 2011 | Tagged

Austin Street Racing Car Wreck Claims A Life

Earlier this week, Jose Guadalupe Diaz-Hernandez, a passenger, tragically lost his life in a car wreck that appears to have been the result of street racing.  While this death was tragic, it is not uncommon. 

Last year, two women were killed when they sat at a bus stop and a vehicle that was street racing lost control and hit them. 

In 2008, the Austin Police Department acknowledged that Austin has a street racing problem and vowed to crack down on racers.  In the wake of these latest deaths, maybe it’s time for APD to reaffirm that commitment and taking additional steps to protect Austin’s roadways and motorists.

For additional information, you may read:

Does Austin Have A Street Racing Problem?

Street Racing Leads To Car Wrecks

Perlmutter & Schuelke, PLLC 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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