Just want to remind everybody today to take ten minutes and go to their local polling place to cast their vote. One of the greatest influences to our Rhode Island law is the people that we elect to put into office. Don't let your opportunity to be heard pass.
A Tennessee father has settled a case against Crocs on behalf of his four-year old daughter. Crocs, the soft-rubber soled shoes and favorite of Mario Batali, have become wildly popular over the last few years. The soft rubber sole, however, is potentially very dangerous and lawsuits have been springing up across the Country.
In this case, the four year old girl was riding on the elevator with her foot close to the edge. The soft rubber eventually became entwined in the teeth of the escalator and the four year old girl was trapped. She suffered permanent and serious injuries as her foot was mutilated by the escalator. Warnings are now placed on Crocs and similar soft rubber shoes highlighting the risk of riding on escalators, but millions of pairs were sold without such warning and much of the general public may be unaware that Crocs post such a danger.
The product liability attorney trying the case cited several studies which demonstrate the inherent risk of Crocs:
Studies, including one conducted by a Japanese consumer safety testing firm, showed the Crocs and their imitators that "appear to be prone to entrapment when pressed against the (side) skirt guard or step riser while standing on the yellow line of an escalator."
Children were at particular risk because Crocs for kids were smaller, thinner and more elastic, the Japanese study stated.
A successful product liability lawsuit must show that the product:
- Was manufactured improperly and was therefore defective; or
- Was designed improperly and was therefore defective; or
- Lacked adequate or sufficient warning of dangers that the product might present.
In this case, an experienced product liability attorney could make a case for point 2 and point 3 above. The design was such that the soft rubber sole could easily become caught in an escalator which is a device used everyday by millions of people. Therefore, the danger of using such a product on an escalator should have been foreseeable. However, the easier argument is point 3. For years, tens of millions of Crocs were sold without adequate warning to tell people they needed to be careful on escalators else their feet may become trapped in the belt. Hundreds of accidents, with injuries ranging from cuts to severed toes, were reported over the years and it was not until 2009 that Crocs were finally sold with a warning regarding escalators.
Today, criminal defense attorney Joseph Lamy secured another great result in Massachusetts. My client was charged with felony drug possession in Massachusetts following an arrest for ecstasy possession in Mansfield, Massachusetts. The case was brought in Bristol County District Court. After diligently working and fighting the charges and filing a Motion to Dismiss for Illegal Search and Seizure due to lack of probable cause, the prosecution finally agreed to dismiss all charges.
Drug possession arrests in Massachusetts and Rhode Island are serious. In this case, my client, with no previous record, still faced up to a year in prison. Instead, the case was thrown out without a plea, no probation, no community service, and absolutely no criminal record!
If you have been arrested for felony or misdemeanor drug possession in Rhode Island or Massachusetts, it is absolutely imperative that you contact an experienced and aggressive criminal defense attorney.
My office has been heavily involved with a fatal attack that occurred outside a Providence nightclub and in the past few weeks I have received a number of calls from people injured (sometimes severely) at a bar or nightclub. Sometimes the attack occurs inside the club and sometimes it happens outside in the street or parking lot.
It should not seem as a surprise that I have received a lot of calls about these types of cases since it seems every day that the news in Rhode Island is talking about a fight, stabbing, or shooting outside a Rhode Island club. You have to realize that a night out can be fun, but also dangerous. Sometimes it is best to walk away from a threat or potential fight because you do not know the other person involved and he may be capable of murder.
So if you or a friend is attacked and injured outside of a nightclub, who is to blame? Obviously, you can sue the person who attacked you and caused the injury. However, it is highly unlikely that someone starting fights at 3 a.m. is going to have any assets worth going after. The only real option is to try and hold the bar or nightclub responsible.
Bars and nightclubs make a great deal of money selling alcohol to patrons, but because of the dangerous nature of alcohol they have a responsibility to make sure that patrons do not become drunk or violent. Also, they must act quickly and responsibly in defusing a dangerous situation if it appears that a fight is about to break out. This may include calling the police if necessary (something which clubs never want to do because of the bad publicity!) If your injury is caused by a drunken and disorderly patron or because security failed to appropriately act, then the club may be responsible under liquor liability laws.
If you have been threatened or targeted in any way while inside a club it is important to inform security so that they may take reasonable action. Failure to act appropriately can be grounds for liability if you are injured. Look for witnesses and make a record with management and the police (if applicable) so that your side of the story is clearly on record.
Unfortunately, many insurance companies are now denying coverage for negligent security. This means that even if the club is insured they may not have any coverage if liability is based on improper or negligent security. In these instances, you need an experienced Rhode Island personal injury attorney who can think outside the box and try to find a way to compensate you for the injury suffered.
Several months ago I wrote a post about the unique difficulties and problems that arise when trying to settle a car accident claim with Geico Insurance. That Geico post generated a lot of calls and questions and even a woman from Nebraska who asked if I could help her settle her accident case with Geico. After explaining that I am not admitted to the Nebraska bar, I gave her the best advice I could and wished her luck.
So, I began thinking that I would write a similar post about the company that is most notorious for being difficult when settling personal injury claims, Allstate Insurance. If you ask any experienced personal injury attorney, who is the worst insurance company to deal with, a majority would likely respond, Allstate. In fact, Allstate was declared by the American Association for Justice, to be the worst insurance company in America.
Why is Allstate so terrible, you ask?
Allstate is notorious for unnecessarily delaying payments, forcing lawsuits, and making ridiculously low offers. I was recently retained by a client who was dealing directly with an Allstate adjuster for almost three years. He sustained a serious injury to his foot in a car accident that was clearly not his fault. He had twelve thousand dollars in medical bills and was treating with doctors for over a year! After almost three years, Allstate offered him an astonishing $4000. Less than one-third of his total medical bills. After the shock wore off, my client came into my office. I had barely enough time to file a lawsuit and protect the statute of limitations. Of course, Allstate made no effort to remind or inform my client that he only had three years to file a lawsuit, else be barred from ever bringing the suit.
This has been there practice for decades. In fact, Allstate has been in Court over the last several years trying to prevent the release of a book that documents their corrupt claims practice. In the 1990's Allstate had internal documents showing a pair of "boxing gloves" rather than "good hands". The purpose of the boxing glove documents was to say that they would give quick and cheap settlements to accident victims who did not retain attorneys, and fight tooth and nail with those victims who had the audacity to hire a personal injury attorney.
During this time, Allstate also established a computerized system for evaluating personal injury claims, called Collossus. Allstate used nationwide values to interpret medical records and injuries and forced adjusters to make the low-ball offers that Collossus "spit out". Adjusters no longer had any input into the value or merits of a claim. Settlements were controlled by a computer that was manipulated by Allstate Insurance.
Despite their notorious history, I actually do not find Allstate as bad as Geico for making low and insulting offers to injury victims. However, the story told above about my client and his experience in dealing directly with Allstate, demonstrates that you absolutely must hire an experienced car accident attorney if the at-fault driver was insured with Allstate.
Clients often ask me how does a pre-existing injury affect a personal injury claim. For example, what happens if a person with a previously herniated disc in their back is then rear-ended in a car accident. There is no simple answer to this problem, and it is imperative that you hire an experienced personal injury attorney to deal with the complications that arise from prior injuries. Do not think that because you have a pre-existing injury that you are not entitled to compensation for the pain caused by a new accident.
The short answer, and the one taught to us in law school, is "You take the plaintiff as you get them." In other words, the defendant is liable for the damages to a plaintiff who has a very bad back, even though the damages will be much higher than if he hit a person in normal health. A defendant can not choose his or her victim. In the real world, however, the insurance companies are going to argue that the injury was not caused by the auto accident or slip and fall, but was pre-existing and not their responsibility. This is where it can get tricky!
First and foremost, the defendant will always be responsible for any exacerbation of the injury. In other words, if you had a bad back but were not treating with an orthopedist and were relatively pain-free, the defendant is responsible if you suddenly require extensive treatment and medication. It is also very important that your accident attorney obtain all of your prior medical records (regardless of how long ago the accident occurred) and compare those records to the current records. The reason this is so important is because the new accident may have worsened the pre-existing condition. The defendant will be liable for the new WORSE condition.
For example, you were in an auto accident in 2006 and suffered muscle strains and a cervical disc impingement. These are serious injuries and may cause long-term pain. Then you are in another auto accident in 2010 that is not your fault. An MRI in 2010 shows that the previously impinged disc is now herniated. That is very serious and the defendant from the 2010 auto accident is responsible for your herniated disc.
Pre-existing injuries can make a personal injury case quite complicated and it a case for which you absolutely must have an experienced personal injury attorney.
If you have been injured in Rhode Island or Massachusetts, whether in a car accident, slip and fall, motorcycle or other type of accident, the first step in resolving the case is often through dealing with the insurance company. An experienced personal injury attorney will deal with the insurance company and is often able to negotiate a favorable settlement with them.
Hiring a personal injury attorney does not necessarily mean that you are filing a lawsuit or suing the other person. While a lawsuit may be inevitable, very few cases actually make it all the way to trial. That means, a personal injury attorney is essential even in the early stages of dealing with the insurance company.
As a former insurance adjuster, I can tell you that insurance companies work very hard to try and keep injured people from hiring attorneys. They know that if the person remains unrepresented by an attorney that the settlement will be much lower. Also, an attorney is best able to show that you are not at fault for an accident. If you do not have an attorney in your corner who understands the laws of Rhode Island, the insurance company may try to tell you that you are all or partially at fault for an accident that was not your fault.
In summary, if you have been injured in an accident of any kind, do not wait to hire an attorney. An attorney is most valuable to you right at the outset and can protect your rights and interests. Do not wait to try and work with directly with the insurance company only for the insurance company to offer a very low settlement. My office will deal directly with the insurance company from the very beginning and help you every step of the way. If, I am unable to obtain a fair settlement with the insurance company, then I am more than happy to file a lawsuit and take your case to trial.
You may be among the tens of thousands of people who come to Rhode Island each year, maybe to see Newport, or to attend a convention or see the sights in Providence. Perhaps you were coming to visit your son or daughter in college or visit family. Unfortunately, while visiting Rhode Island, you were seriously injured in a slip and fall, car accident, or other type of accident.
If you are injured in Rhode Island, it is Rhode Island law that will apply and any potential lawsuit must be filed in the Rhode Island Court system. For that reason, even if you live in Denver, Colorado, you will need to hire a Rhode Island personal injury attorney. My office has plenty of experience in helping out of State residents with their Rhode Island personal injury claim. I currently represent clients from Connecticut, Maine, Colorado, California, and Maryland, all of whom were injured while vacationing or visiting Rhode Island or Massachusetts.
Computers, faxes, email, Skype, and smart-phones have made it very easy for attorneys and clients to interact even if from thousands of miles away. If the case requires a lawsuit, you will have to appear at a deposition along the way. This can be arranged to suit your schedule with as little inconvenience as possible. Remember, however, that most cases settle and in that situation you will not have to return to Rhode Island, unless by choice.
The process is actually quite easy and my office utilizes every technical advance to limit the inconvenience of long distance representation.
It seems like almost every week that I have to call a client and tell them that the at-fault driver who hit them in a car accident is uninsured. Sometimes, my client carries uninsured motorist and we can simply go through their own insurance. Sometimes, however, my client does not carry uninsured motorist and the client, who was not at fault for the accident, is stuck with body damage to their vehicle, mounting medical bills, and lost wages. Your personal injury attorney could sue the at fault driver directly, but people who are reckless enough to drive their car without insurance are not likely to have any assets and are not worth suing in Court. You will be left without a car and without any personal injury settlement. It happens much more than you think and you should seriously consider spending the extra few hundred dollars a year to protect yourself with uninsured motorist.
In Rhode Island, it is the law that every registered vehicle carry an auto insurance policy equal to $25,000 per person injured. Rhode Island, however, does NOT verify the insurance information given. Therefore, when a car is registered the person can write down any insurance company that comes to mind and the clerk at the DMV will likely not even ask for proof. If proof is asked for, the person only needs to pay the first month installment, obtain a proof of insurance card, and then stop making payments for the rest of the year. No one is the wiser! Until an accident occurs.
In Massachusetts, insurance companies by law are required to notify the registry of motor vehicles when an insurance policy has lapsed so that the uninsured person loses their license and is forced off the road. Massachusetts' laws have teeth!
If you carry the appropriate uninsured motorist you will be able to have your car repaired and collect for all the personal injury damages to which you are entitled: past and future medical bills, lost wages, and pain and suffering.
Underinsured Motorist Coverage
An equally important reason to carry uninsured motorist coverage is because it will act as "under"insured coverage if you are seriously injured in an auto accident and the person who caused the accident only carries the state minimum of $25,000 in liability coverage. If your personal injury claim is worth $100,000 and the at fault driver only carries the State minimum, then you are losing $75,000. However, if you carry uninsured motorist of $50,000 then you would be able to collect that as well. Now if you have a $100,000 personal injury claim you can collect the $25,000 available from the at fault driver and the $50,000 from your own insurance company. Therefore, you end up with $75,000 instead of $25,000. Even though it is not the full value of your injury claim it is much better to suffer a $25,000 loss than a $75,000 loss.
Underinsured motorist coverage can become very complicated and you need to hire an experienced personal injury attorney. For one, the injury is very serious and you need an attorney who understands the value of a serious injury. Second, there are certain things you must do before accepting the policy limits from the other driver and going after your own underinsured coverage. If you do not handle this appropriately, you may lose out on tens of thousands of dollars. That is why it is imperative that you speak with an experienced Rhode Island car accident attorney.
A brain injury, whether mild or severe, is one of the most serious injuries that can occur in a car accident. Each year, roughly one million people are seen in emergency rooms for head injuries, many of which occur in auto or motorcycle accidents. Many of those people will suffer permanent and prolonged effects.
It is a mistake to believe that a head injury can only occur from a very serious accident such as being thrown from the vehicle or falling through the windshield. A head injury can occur in even a relatively mild car accident. You do not need to hit your head on an object, such as the windshield, airbag, or visor, nor do you have to be travelling at a high rate of speed. If you are traveling along the road at 40 mph when struck by another vehicle, your brain slows from 40 mph to zero in an instant. The soft tissue of the brain is forced forward, sideways, or backwards into the hard bone of the skull causing injury. This impact results in traumatic brain injury.
A brain injury is almost always serious. Nevertheless, the less serious brain injury results in a concussion. While a more serious brain injury can result in bleeding on the brain or hemorrhaging. Because the skull is a solid enclosed space, bleeding from a head injury can result in swelling and excess pressure because the fluid has no where to go. This is an extremely serious and life threatening injury. Brain injuries can occur on a microscopic level, so even diagnostic testing such as MRI's or CT scans, do not always reveal the injury.
Long term effects of brain injuries can include:
- loss of memory
- psychiatric disorders
- mood swings
- post-concussion syndrome
- increased likelihood of sustaining subsequent brain injuries with more severe consequences
If you or a loved one has been involved in a serious auto accident and sustained a head injury whether mild or severe, it is imperative that you contact a Rhode Island auto accident attorney experienced in dealing with brain injuries. These are extremely serious cases that require a great deal of attention.
Slip and fall accidents can be notoriously difficult to prove liability, especially if there are no eyewitnesses to the fall. In Rhode Island and Massachusetts all residential and commercial insurance policies will cover personal injury damages for a person hurt in a slip and fall, if the owner of the house or commercial property is responsible for the fall. There are three common ways to prove that the owner of a property is liable for your injury:
- That the owner of the house or commercial property, or an employee of the owner, caused the spill or other defect that caused the fall;
- That the owner or an employee of the owner, knew or should have known of the defect and did nothing to treat the problem;
- That the owner should have known of the defect because a reasonable inspection of the property would have identified the problem.
Following a fall your first concern should be to obtain necessary medical care. If, and only if, you are able to look for witnesses, try to find someone who may have seen the fall and obtain a name and phone number. If you are in a place of business, try to find a manager and see that an incident report is made. Also, if you are carrying a digital camera or smartphone able to take pictures, take as many pictures of the scene as possible and, in particular, the defect that led to the slip and fall.
Also, it is important to remember that in Rhode Island, a fall which occurs on city and State property must be reported within sixty days or you will be barred from bringing the lawsuit. The notice must include specific information and be submitted in an exact fashion so it is imperative that you speak to a Rhode Island personal injury attorney for such cases.
Massachusetts has joined a growing number of states, including Rhode Island, in addressing the danger of cell phones in cars. Today, September 30, the Massachusetts Safe Driving Act goes into effect. I wrote a similar post when Rhode Island officially banned text messaging while driving and I pointed out the immense dangers of texting while driving. In fact the distraction caused by using a cell phone is potentially more dangerous than drunk driving. US Transportation Secretary Ray LaHood poignantly described the danger of text messaging while driving:
If you're looking down at your texting device for four or five seconds, you drive the length of a football field in a 4,000 pound unguided missile
Among the numerous provisions of the statute, most important is that teenage drivers, aged 16 and 17, can not use a cell phone at all while driving in Massachusetts. Teenage drivers are notoriously the worst drivers on the road and frequently in auto accidents. The combined inexperience on the road and distraction of cell phones while driving is a recipe for disaster.
Drivers over the age of 17 can still use a cell phone while driving but can not use the phone to send text messages. Of course, police will have a tough time determining whether a vehicle operator was dialing a phone number or writing a text message. Therefore, enforcement of this new Massachusetts law will be difficult.
Under the new Massachusetts law, a first texting offense for adults comes with a $100 fine. For drivers under 18 years old, the first offense for using a cell phone comes with a 60-day license suspension and $100 fine, plus required attendance at an "attitudinal retraining'' course. The second-offense penalty is a $250 fine and a 180-day license suspension.
Any witness testimony that is secured either by payment from the State or because the district attorney gave the witness a favorable deal in their own criminal case, is always highly suspect. Is the witness telling the prosecution what they want to hear or what actually happened?
Today the Massachusetts Supreme Judicial Court ruled that prosecutors can have no involvement in a process that gives financial reward to witnesses. The case stems from a New Bedford murder involving defendant Wayne Miranda. The City's Chamber of Commerce offered any witness $3000 for information relevant to the investigation and an additional $2000 if their information led to a conviction. The prosecution, it should be noted, did not endorse or pay for this information. All monies strictly were paid by the City of New Bedford. Nevertheless, the prosecution wrote a letter on the witnesses behalf after the trial to confirm that the witnesses' testimony led to a conviction so that they could receive the additional $2000.
The Massachusetts SJC has ruled that this practice needs to stop to prevent even a hint of impropriety.
We recognize that, to prove the crime charged, prosecutors often need to procure the cooperation and truthful information or testimony of reluctant witnesses. The interests of justice, however, are not well served when a witness's reward is contingent on the conviction of a defendant rather than the provision of truthful information or testimony...
The murder judgment against Mr. Miranda was upheld on other grounds. The opinion regarding the letters for payment was not critical to the decision, but was ruled upon by the Court's authority to ensure that all such activity cease.
I have to thank a colleague for bringing this information to my attention. Rhode Island currently has seven nursing homes with outstanding citations and violations for substandard care. Those homes are Charlesgate, Woodpecker Hill, Harris Health Center, Summit Commons, Cortland Place, and Steere House. If you have a loved one at any nursing home, including those listed above, it is imperative that you keep in constant contact with your loved one to make sure that they are receiving proper care.
Nursing homes are notoriously under staffed and poor and negligent treatment can become quite common particularly for patients who do not have actively involved family members. Some of the common injuries and problems that can occur due to nursing home negligence include: Bed sores, neglected injuries or illnesses, improper and incorrect medication, verbal and emotional abuse, falls due to improper care and monitoring, etc.
The elderly and sick of this Country are vulnerable to nursing home abuse and neglect and the best defense is to keep active in your family members life so that the facility is aware of your involvement.
There was a fascinating story in the New York Times which talks about how innocent people can be coerced and pressured into confessing to crimes that they did not commit. At criminal jury trials, confessions carry a great deal of weight because jurors believe that no reasonable person would confess to a crime that he or she did not commit. But in fact, it can and does, happen.
The story follows Eddie Lowery who spent ten years in prison for a rape that he did not commit. There was absolutely no physical evidence linking Lowery to the crime, but he was convicted on his confession alone. DNA evidence would eventually prove that another man committed the rape but not until Lowery had spent ten years of his life in prison for a crime he never committed.
We know of at least 40 people who confessed to a crime that they did not commit only to be proven innocent years later by DNA evidence. Experts suggest that those who are mentally ill, possess below average intelligence, or are easily pressured and swayed, are the most likely to confess to crimes not committed.
It is also possible that investigating detectives wore down the defendant by using questionable tactics such as endless interrogation (sometimes lasting days), depriving him or her of water and/or food, uncomfortable chairs and heat, etc. They push a suspect to the point that they would rather confess and end the torment than continue to profess their innocence.
If the police are desperate to obtain a confession it means, quite possibly, that they do not have enough evidence to convict you absent a confession. If you have been arrested or simply brought in for questioning do not speak to the police. Even if you do not "confess" to the crime your statements can be used against you such as contradicting an alibi. Tell the police that you want to speak to your attorney and end the interrogation immediately.
There is no greater injustice than for an innocent person to spend years in jail for a crime they did not commit. False confessions are real and they do happen.