Articles Posted in Personal Injury

     Many personal injury attorneys prominently advertise that they do not charge any fee for initial consultations and that there is no fee unless there is a recovery.  In reality, this is the way that most every personal injury attorney operates.  The majority of attorneys who handle personal injury cases work on what is called a “contingency fee” basis.  This means that the attorney’s fee is “contingent” on obtaining a recovery for their client. stl-blog-title-1-300x169 The attorney will only get paid for working on a case when – and if –  they recover on the client’s behalf.  If there is no recovery for a client, the attorney is not compensated for his or her time spent working on the case.  Likewise, most personal injury attorneys advance the cost of pursuing a claim and are not reimbursed for their expenses – which may be substantial – unless the claim is successful.

A contingent attorney’s fee is based on a certain percentage of the client’s overall recovery.  It works very similarly to a salesperson that works on commission, only instead of the fee being earned at the time of sale, it is earned at the time of settlement or when a final verdict is paid.

       The amount of an attorney’s contingency fee in a personal injury case will vary based upon the type of case.  In a workers’ compensation case under Alabama law, the fee is limited by the Workers’ Compensation Act to 15% of the recovery.  In other types of cases, it is common for a contingency fee to be 1/3, or 33.33%, of the recovery.  In the event a claim has to be filed in court and/or tried before a jury, the fee may increase to 40% of the recovery.  This allows the attorney to be compensated for the additional time, effort and expense associated with working on a case in litigation and/or trying a case to a jury.

       There are serious legal liabilities that can come with gun ownership and use, especially anytime a firearm injures another person—whether it was done intentionally or even accidentally.  If one person intentionally shoots another without legal justification, they can face criminal charges ranging from assault to murder, and may face serious jail time or worse.  However, the shooter may also face civil liability for an intentional shooting.  If the victim survives the shooting, the shooter may be forced to compensate the victim for medical expenses, lost wages, physical pain and suffering, and mental anguish. revolver_MJtlBX5_-1024x1024 The shooter may also be forced to pay punitive damages or additional money paid to the victim to punish the defendant shooter and make an example out of them for the community at large.  If the victim is killed, their family or next of kin may bring a wrongful death claim against the shooter to seek compensation for the loss of their loved one and to punish the defendant shooter for taking another human life.

       A shooter can also face hefty civil liability if they accidentally shoot another person—whether the shooting occurred because the gun was fired when they did not mean to shoot it, or in a situation where they intended to fire the gun, but hit the wrong target.  The victim of an accidental shooting has the right to sue the defendant shooter for monetary compensation for their injuries, just like in the case of an intentional shooting, but may only seek punitive damages under specific circumstances.  If the defendant shooter “wantonly” fired the gun, meaning that they did not mean to harm someone, but fired the gun with a reckless or conscious disregard for the possibility that someone could be injured, then the shooter could be forced to pay punitive damages to their victim.  If a person is killed because of an accidental shooting, then their family or next of kin would have the right to bring a wrongful death claim against the defendant shooter, just the same as with an intentional shooting.

       Most liability insurance companies do not provide insurance coverage for criminal acts, so in the case of an intentional shooting, the victim or their family are often forced to seek compensation from the shooter’s personal assets.  In the event that a shooting is unintended or accidental, a liability insurance policy – such as a homeowner’s insurance policy – may provide coverage to a victim.  Please keep in mind that some liability policies may not provide coverage for injuries resulting from the ownership or use of a firearm even in the event of an accident.  As such, gun owners should review the terms of their liability policy with their insurance agent and purchase an additional cover rider if necessary.

Boat in Water

       In Alabama, as in most states, the law that controls a claim for compensation for injuries will differ significantly depending on whether a person is injured on land or on water.  Most claims for injury on land are based on the theory of common law negligence or the failure to exercise reasonable care.   Although some claims for injuries on a waterway may be based on negligence, in many instances they are   controlled by specific statutes that comprise admiralty law.

       There are several key differences between a person’s rights in a common law negligence case and an admiralty law case. For instance, under the common law, Alabama applies the doctrine of contributory negligence, meaning that if you contribute to the cause of an injury, no matter how slightly, you are barred from any recovery.  Comparative negligence applies in Admiralty law cases so fault is apportioned between the parties. If one person is 10% at-fault, they can still recover 90% of the damages they suffered.  It is also significantly more difficult to bring a wrongful death action under admiralty law versus common law.  Another key difference between a motor vehicle collision under common law and a boat collision under admiralty law is that “guest statutes” such as the Alabama Guest Statute have been found not to apply.  In addition, common law motor vehicle injury cases in Alabama are governed by a two year statute of limitations, while an Admiralty boat collision case would have a three year statute of limitations in which to file a lawsuit.

       Although Alabama has adopted a Mandatory Automobile Liability Insurance Act, there is no requirement that an operator of a boat have liability insurance.  A person with a boating license may operate a watercraft at 12 years old so long as they are supervised by a person over 21 years old.  A 14 year old person with a license can operate a watercraft unsupervised.

pain-medicine-spilling-out_rtfhap4i-1024x685

     Errors in the prescribing and dispensing of medication are increasingly widespread problems that pose significant danger to consumers.  The Food and Drug Administration defines a Medication Error as “any preventable event that may cause or lead to inappropriate medical use or patient harm while the medication is in the control of the healthcare professional, patient, or consumer.”

     According to a Johns Hopkins Study released in 2016, over 250,000 deaths per year in the United States are due to medical errors.  This indicates that medical errors are the third leading cause of death in the United States. While there are many government oversight programs, such as the FDA MedWatch program and state administrative programs, medication errors continue to unnecessarily cause harm and death.

     Injuries from medication errors may involve a wide variety of healthcare providers, including pharmacies, home infusion companies, nursing homes, hospitals, physicians, nurses, and even medication couriers. The researchers at Johns Hopkins concluded that “most errors represent systemic problems, including poorly coordinated care, fragmented insurance networks, the absence or underuse of safety nets, and other protocols,” as well as physicians that are not following standard practices.

          Southern hospitality is a long standing tradition in Alabama and our residents take pride in offering guests food and drink — especially during college football season.  However, if you are serving anything more intoxicating than a glass of sweet tea to your guests, there are certain laws in Alabama that you need to understand and follow closely.  Most problems in this area are associated with a homeowner serving alcohol to minors.  STL-Party-BlogIn Alabama, the age of majority is 19 years of age, but a person must be 21 years old to legally purchase or consume alcoholic beverages.  Persons under 21 years of age cannot legally possess or consume alcohol under any circumstances, even in a private home or with parental permission.  Alabama Code § 28-1-5.

       Under the Alabama Civil Damages Act, social hosts can be liable if they provide alcohol to a a person under 21 years old and that person is injured or injures another person while intoxicated.  The parents or children of an intoxicated person under 21 years old that is injured can make a claim against the homeowners that provided the alcohol.  Other parties that are injured may pursue claims against the homeowners as well as the intoxicated person.  For example, if the host of a party provides alcohol to a person under 21 years old who then becomes intoxicated and causes a car crash as a result, the host could be sued by both the parents or children of the intoxicated person and by anyone else the intoxicated person injured in the crash.

               Homeowners may also be guilty of a crime if they allow persons under 21 years old to drink alcohol or use controlled substances on their property.  It is a misdemeanor for an adult homeowner to allow an “Open House Party” at their residence.  The Alabama Open House Party Law, makes it unlawful for an adult who is aware of the party and in attendance to allow a party to continue if:

According to Alabama Code § 32-5A-350, it is against the law to use a cellular telephone or other similar device to send or receive text based communications, including text messages, instant or direct messages, pictures, and electronic mail while operating a motor vehicle on a public road, street, or highway.  The penalty is $25.00 for a first violation, $50.00 for a second violation, and $75.00 for a third or subsequent violation.

0o1a2806-824-300x200

Violation of the statute can be the primary or sole reason for being stopped by a law enforcement officer.  This means that a law enforcement officer can stop a motorist for texting and driving without witnessing any other moving violation. If someone is texting and driving, an officer can stop that driver and issue a ticket, even if the driver is following all of the other rules of the road at the time.

Although texting is illegal, the statue allows the user of a device to “read, select, or enter” a telephone number in a device for the purpose of making a call while driving.  The statute also allows for the sending and receiving of messages with voice operated devices when driving an automobile. Continue reading

Dog-blog-1

Under longstanding Alabama law, the “owner or keeper” of a vicious or dangerous dog is legally responsible for any injuries caused by the animal.  In some cases, however, if a landlord or property manager has allowed a vicious or dangerous animal to be kept on a rental property, the landlord may be held responsible, if the animal attacks someone.  Alabama law is very complex in this area, but we have extensive experience with dog attack cases at Siniard, Timberlake & League, and are very familiar with the intricacies and challenges of this area of the law.

If a vicious or dangerous dog is present on the premises of an apartment complex or other rental property, Alabama law treats the animal’s presence much like it would any other physical hazard.  A landlord or property manager has a responsibility to handle a dangerous animal just as they would any other known danger on the property.  In Gentle v. Pine Valley Apartments, an apartment complex allowed a tenant to keep a vicious dog tied to a stair railing in a common area outside his apartment, and the dog attacked a passing child.  The Supreme Court of Alabama ruled that the duty of the landlord of an apartment complex extended to using “reasonable care” to protect tenants from dog attacks in common areas of the premises, just as with any other dangerous condition on the property.  In effect, this treats the dangerous animal as an unreasonably dangerous condition or hazard under traditional premises liability law, and the landlord or property manager has a duty to either provide a warning or remove the danger, just as they would with a defective stair, a slick spot, or a hole.

In a case that was handled by Siniard, Timberlake & League, the Alabama Court of Civil Appeals further refined this legal principle and applied it to a dog attack that occurred off the rented property.  In Berg v. Nguyen, the renter kept several vicious dogs in the back yard of a rental home and allowed the dogs to escape the property, which led to a person being attacked in the parking lot of a nearby business.  The Court of Civil Appeals agreed with Siniard, Timberlake & League on the principles of law, holding that a landlord could be held responsible for a dog attack that occurred when a vicious dog leaves the property to menace others when the landlord allows the animal to be kept on the property and either knows or should know that the animal is dangerous and poses a risk to persons off the premises.  In such a case, the most important details are whether the landlord or property manager knew the animal was dangerous and allowed it to be kept on the property and whether the landlord knew or should have known that the animal presented a danger to persons off the rented property. Continue reading

3Insurance companies can be difficult to work with when it comes to personal injury claims.  In some instances, an insurance company may deny their insured was responsible for an incident and refuse to make any settlement offer to compensate an injured person for their medical bills, pain and suffering, mental anguish, and lost wages.  In other cases, an insurance company may admit their insured is responsible but will make a settlement offer that does not fairly compensate the injured party or claim that an injury was not caused by the incident.  At this juncture, it becomes necessary to file a lawsuit to obtain a fair resolution.

A lawsuit starts with the filing of a complaint that identifies the responsible parties, describes the facts and circumstances of the incident and makes a claim for damages.  Thereafter, the discovery process allows the parties to gather information about the incident, as well as the injuries.  One of the most important discovery tools is depositions of parties and witnesses. A deposition is simply a question and answer session where a lawyer is allowed ask a witness questions to learn information about a claim. The witness must affirm that his or her answers will be truthful, and a court reporter will transcribe the testimony.  Depositions are often recorded on video so that the appearance and the demeanor of the witness is documented.

Rule 30 of the Alabama Rules of Civil Procedure sets forth the procedure for taking depositions in Alabama State Courts. Rule 32 of the Alabama Rules of Civil Procedure governs the use of depositions in court proceedings.  Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of a witness.  A deposition of a witness may be used in court instead of presenting live witness testimony when the witness is dead, is over 100 miles from the place of trial or is out of the state, or is unable to attend due to age, illness, infirmity or imprisonment.  Deposition testimony of licensed physicians or dentists can be used in court as an alternative to calling these witnesses to trial.

Continue reading