Articles Posted in Personal Injury

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Child with broken leg in cast Suffering an injury as an adult can be a traumatic experience.  But when your child is hurt by the negligence of another, the experience can be even worse. Not only is your child suffering, but parents may be burdened with substantial medical bills and may miss time from work to take care of an injured child.  In Alabama, when a child is injured by the negligence of another person or business, there are several legal issues you should be aware of when you consider whether to pursue legal action.

Who has the authority to bring legal action on behalf of a minor child?

Pursuant to Alabama Code § 6-5-390, a father or a mother who are married shall have an equal right to commence an action for an injury to a minor child.  When the parents of an injured child are unmarried (whether by divorce or otherwise), both parents may want to pursue the child’s claim. Alabama Code § 6-5-390 states that in the event the parents of the child are not married, the parent having “legal custody” of the child shall have the “exclusive right” to pursue the child’s personal injury claim.  In Miller v. Dismukes, 624 So. 2d 1038 (Ala. 1993), the Supreme Court of Alabama affirmed the dismissal of a lawsuit because the father who filed the claim did not have authority to bring the lawsuit under 6-5-390.  A divorce decree provided that that child’s mother had legal custody of the child, therefore, the father did not have the authority to file a claim.

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Siniard 5 working groupIt can be difficult to know what to expect after you’ve hired an attorney to handle your personal injury case.  At Siniard, Timberlake & League we try to do everything we can to help you understand the process, what you’ll receive from us, and what we’ll need from you.

Here’s what you can expect after you’ve hired an attorney:

The attorney will request follow up information.

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Broken glass       The saying goes that “kids will do the darnedest things,” and sometimes—especially with mischievous teens—this can include things like spray-painting walls, breaking windows and mailboxes, damaging electronics, or keying cars.  Besides being potential crimes, such activities may cause damage to property that is difficult and expensive to repair.   In Alabama, this type of activity can expose the parents and guardians of the minor children who caused the damage to legal liability for the cost of repairing or replacing any damaged property.

       Generally speaking, parents are not legally responsible for acts committed by their minor children, unless the parents were themselves somehow involved in causing the incident, such as when parents negligently entrust something like a car or firearm to a young person who is not responsible enough to handle it safely.  However, if a minor child conducts certain intentional acts, such as vandalism or graffiti, his or her parents will be financially responsible for any resulting damage.   Under Alabama’s Parental Responsibility Act, Alabama Code § 6-5-380, parents can be held legally liable for up to $1,000 in property damage caused by their child, plus legal fees and court costs.  This law applies not only to parents, but to any relative, legal guardian, or other adult who has care or control of the minor and with whom the child lives.  The law does not apply to foster parents and foster children, however.

       The Parental Responsibility Act applies to any property damage caused by the intentional, willful, or malicious acts of a minor child who is under 18 years of age.  It covers “real property” such as homes or buildings, and “personal property” such as automobiles, computers, or personal effects.  The law applies regardless of whether or not the property is owned by an individual person, a business, a private organization, a government entity (such as a school or municipal building), or even the State of Alabama itself.  Under the Act, the victim is entitled to compensation—from the child’s adult parent or guardian—for up to $1,000 worth of property damage plus the costs of bringing the action against the minor child and their parent or guardian.  The child, however, may be personally responsible for any other damage beyond the $1,000 covered under the Parental Responsibility Act, and if the parent or guardian directly contributed to the incident, such as negligently entrusting a car to the minor, then the adult’s legal liability would not be capped by the Act, either.

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Backyard PoolUnder most circumstances, a landowner in Alabama has very minimal obligation to trespassers. Typically, a landowner is only required to refrain from creating traps or otherwise intentionally injuring anyone who is trespassing or on their land without permission.  With child trespassers, however, landowners owe a special duty to take reasonable steps to prevent injuries from hazards that may be considered an “attractive nuisance.”  An “attractive nuisance” is an artificial condition – meaning something made or done by human effort – that is potentially dangerous and that could potentially lure children onto the land.  The most common example of an attractive nuisance is a residential swimming pool, but Alabama courts have also held that a construction site, pit excavation, and utility tower could all also be considered attractive nuisances.  Alabama law places significant importance on the safety of children, and a landowner can be held liable for any injuries or deaths that occur if the landowner failed to take reasonable steps to keep children – even trespassers –  away from hazards presented by an attractive nuisance.

Under Alabama law, a landowner will be held liable for an injury to a child that occurs on their land if (1) the landowner knew or should have known that children would come onto the land; (2) the landowner knew or should have known that something on the land could pose an unreasonable risk of death or injury to a child; (3) that children were unlikely to appreciate the risk of the danger; and (4) that the landowner failed to take reasonable steps to secure the hazard and prevent injuries to children.  In an attractive nuisance case, the court might also look at the age, intelligence, and maturity of an injured child to determine whether or not the child should have appreciated the danger they faced.  In other words, the court is much more likely to find that a landowner is legally responsible if they failed to take reasonable steps to prevent a young child from accessing a swimming pool, than if a teenager intentionally climbed a fence and jumped into the pool without permission, despite knowing the potential risks.

It is also important to note that, under most circumstances, only a man-made “artificial condition” will be considered as an attractive nuisance, while “natural features” such as streams or caves normally will not be viewed as a potential attractive nuisance.  Making changes to the natural landscape, however, like digging an artificial pond or adding a ladder to access a cave entrance, could be considered as creating artificial conditions that may be attractive nuisances that could attract curious or mischievous children into a dangerous situation.

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Work injury form
There are essentially three benefits provided to injured workers through Alabama’s Workers’ Compensation Act:

  1. Medical Benefits: As long as you are receiving treatment for an injury that arose out of and in the course of your employment and that is provided by a doctor authorized by your employer or its workers’ compensation insurance carrier, then you should not have to pay anything out of your pocket for your medical care. An injured worker cannot choose the doctor who will provide care for his or her injury. You must go to the doctor that is authorized and approved. If you are not satisfied with the approved treating physician (ATP), then you are allowed one opportunity during the course of your claim to choose a different doctor from a panel of four physicians provided by the employer or insurance carrier.
  1. Temporary Total Disability (TTD) or Temporary Partial Disability (TPD) Benefits: If you are unable to work as a result of your injury, you are entitled to Temporary Total Disability payments.  The payments should equal 2/3 of your average weekly wage (determined by reviewing your prior earnings over 52 weeks).  If you are able to work, but are not paid the same as your pre-injury wage, you are entitled to Temporary Partial Disability payments to increase your wages to 2/3 of your pre-injury average weekly wage.  Either of these benefits will be paid during the time of disability and normally cease when your approved treating physician states that you have reached maximum medical improvement (MMI).
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Confused woman. Do I need a lawyerDear Siniard, Timberlake, & League,

 

Last week, I was involved in a car crash.  I was hit from behind and the impact caused a chain reaction.  In total there were four cars involved.  My vehicle was totaled as a result and I suffered severe burns and bruising from the airbag deployment.  As expected, I’ve also been really sore.  I did make a visit to the emergency room and am now seeing my family doctor.  Although I think I’ll be fine eventually, my family keeps urging me to consult a lawyer before I speak with the at fault driver’s insurance company.  I’m not sure if I need a lawyer and I’m concerned about how much it will cost if I do. 

 How do I decide if I should see a lawyer regarding the wreck?  

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Woman with broken arm

 It’s no secret among lawyers in Alabama that our Workers’ Compensation Act provides very minimal benefits to workers who are injured on the job. In fact, Alabama law provides the nation’s lowest workers’ compensation benefits for amputations. Therefore, knowledgeable personal injury attorneys will always try to find another avenue to recover compensation in addition to workers’ compensation benefits.  This is especially important when a client suffers a severe or life changing injury on the job.  The circumstances of how an injury occurred may allow a lawyer to recover additional compensation for an injured worker.    While the majority of injured workers will be limited to workers’ compensation benefits, there a few exceptions in which additional compensation may be pursued:

  • When the injury was caused by the negligence of a “third party”

        Under Alabama law, you cannot sue your employer or even a co-worker for simple negligence if you were injured on the job.  This is the case even when an injury is clearly the fault of the employer or a co-worker.  However, if the person/entity who negligently injured you was not your employer or co-worker (i.e. a “third party”), you can bring a claim against that person/entity for compensation in addition to workers’ compensation benefits. The most common situation involves an automobile wreck. For example, if you are a delivery driver and another person runs a red light and injures you while you are making deliveries, you would be entitled to both workers’ compensation benefits and damages from the other driver. Other examples include injury by a defective product while on the job or being injured on a job site by someone acting as an independent contractor.

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3 people sitting at the tableSiniard, Timberlake, & League attorney consultations are provided at no cost and are used to learn more about your background, the facts of your injury, and the impact of your injury on your home and work life.  All of the information we collect is confidential.  In the event you are unable to visit our office, consultations may be conducted via phone, or we may be able to make arrangements to come see you.

To help you feel comfortable and confident in preparing to talk to us, here’s what you can expect.

1. Collection of demographic/biographical information:  In order to best understand your background and specific needs, we will ask questions regarding your age, profession, marital status, family, and recreational activities. Essentially, we want to learn as much about your life and lifestyle as possible as this information can be very important when evaluating your claim.

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     If you suffer an injury while performing your job for your employer, the most important thing you should do is REPORT THE INJURY TO YOUR EMPLOYER IMMEDIATELY. Tell your supervisor, manager, human resource department or another person with authority.  Do not just mention an accident to a co-worker and assume that your employer has proper notice of the accident.  It is best to report an injury through some type of recorded writing, whether it be text message, e-mail, or other type of written document.    Reporting can be made in person or through a phone call but is best if there is a witness to the conversation.  If you suffer a serious injury and need emergency medical care, then you should seek medical help immediately. However, you must still report the accident to your employer as soon as possible.

       Notifying your employer about an injury is important because there is a specific provision in the Alabama Workers’ Compensation Act that requires an employee to provide written notice of an injury within five days after an accident.  Although the courts have not strictly enforced this time limitation and have allowed claims to proceed where there is good cause for delay or the employer has actual notice of the accident, the best practice is to provide notice as soon as possible.

       It is also important to make some type of documentation recording the details of how your accident happened, what part of your body was injured, whether your injury was immediately painful or disabling or if it worsened after time. You should also keep a record of the persons who witnessed an accident and if possible take pictures of the scene of the accident, any equipment or materials that were involved in the accident as well as the portion of your body that was injured if it is a visible injury.

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     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.

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