Alabama Injury Law Advisor

My Home Is My Castle - Claims for Damage to Real Property

Edwin Lamberth — Tue, 10 Apr 2012 07:35:41 -0600

That saying, or some variation thereof, was an old English proverb that was used by a famous (in legal circles anyway) judge to establish the principle that no one may enter your home without your permission. This principle was then expanded to create what we now call lawsuits for "trespass" and "nuisance." that is, if someone has trespassed on your property and caused damage, you may have a claim. If someone is using his or her property near you in a way that unreasonably interferes with your right to use and enjoy your own property, it is called a nuisance.

As you might be able to tell, trespass and nuisance don't just refer to a person's unauthorized entry into your home or property. They also apply to instances in which a person causes some thing to enter your property without your permission.

Recently, in Mobile County, there has been a focus on odors and chemicals entering various properties. A story in the Mobile Press-Register from last Thursday details the claims that several people from Eight Mile filed related to odors and chemicals from a gas pipeline.

Here at the Gilmore Law Firm, we are representing numerous individuals in the Grand Bay area related to odors, bacteria, and pollution from the spraying of sewer sludge (also known as biosolids) on property next to our clients' homes. I've personally been to these homes on numerous days, and the smell is downright nauseating. Children can't play outside, and it sickens adults to go outside when the sewage is present.

My point is this - as the title of this post says - your home is your castle. If someone is interfering with your right to use and enjoy it and causing you substantial harm, you may have a claim. Don't sit back and let someone else ruin your home. The great thing about our country is that we have a legal system that allows you to prevent such things from happening.

"Do Not Admit Fault"

Edwin Lamberth — Tue, 03 Apr 2012 16:05:29 -0600

When my car insurance renewal came in the mail this week, I just shook my head when I looked at the little cards they send you entitled "What to do if you're in an accident." Item number one said, "Stay at the scene and do not admit fault."

My first thought was, "Seriously? What if the collision actually was my fault? What am I supposed to do then? Lie to the officer? Keep my mouth shut when he or she asks 'What happened?'"

Second, if I honestly believe the collision was my fault, or if I KNOW it was my fault because I ran a stop sign, I was not paying attention, etc., why can't I take responsibility for my actions and admit I was wrong? Better yet, what if I actually apologized for my mistake?

My parents always made me do exactly that. It was downright awful sometimes to drag myself over the neighbor's house when I had done something wrong (what I won't say!), but my parents would no more let me get away with not apologizing than they would relieve me from my restriction.

Yet, now, I get a note from my insurance company telling me not to take responsibility for my actions. I understand a possible reason why they give this warming on the card - oftentimes people are shaken up at accidents and they say things they later regret or shouldn't - but I just don't think that reason outweighs the need to take responsibility and admit when you are wrong.

Insurance companies have tried to make the public believe that people are sue happy and that you should never say or do anything for fear of being sued. Bologna. In my experience as a trial lawyer, jurors believe in and appreciate personal responsibility. In fact, the civil justice system is built on personal responsibility. If more people had it, we'd have fewer disputes to settle in court. So have no fear in doing the right thing. As my wife likes to say, "if you break it, own it."

Alabama Supreme Court Reaffirms Right to Bring Wrongful Death Action on Behalf of Fetus

Edwin Lamberth — Fri, 02 Mar 2012 13:38:32 -0600

Just last fall, the Alabama Supreme Court overruled a long line of cases holding that a mother or father could not sue for the death of fetus that was not "viable." These older cases held that unless the parent could present evidence that the fetus would have been able to live outside the womb at the time of the injury or death, then the parent could not sue for wrongful death. The standard of proof in those older cases was simply whether the parent submitted "substantial evidence" that the child more likely than not (just greater than 50%) would have lived but for the injury causing death.

Before the court's decision last fall, the only remedy for an injury that caused the death of a nonviable fetus was a personal injury action on behalf of the mother. Such claims were well known to provide little legal compensation unless the mother herself suffered serious injury as well in the accident.

It might be easier to explain with an example. Assume that a mother who is eight weeks pregnant was injured in a car wreck caused by the fault of another person. Also assume that the injuries to mother also severely injured her fetus, to the point that the injuries were so severe that the fetus's heartbeat stopped, labor had to be induced, and the child was stillborn. A sad situation indeed.

Under the old court decisions, no remedy was available for the death of the child. The mother could sue for her personal injuries, but nothing else. Under the new court decision, the parent or parents could sue for damages under the wrongful death statute.

Several days ago, the Alabama Supreme Court issued yet another opinion on this issue. In Hamilton v. Scott, the court considered whether a mother could assert a medical negligence claim against her health care providers for failing to do more to prevent the death of her unborn child. The trial court dismissed the case, ruling that the evidence indicated that the child was not viable, and thus no claim existed. The Alabama Supreme Court reversed and held that the mother could pursue her claim.

Fox News picked up the story about the case, and noted that the court, and at least one of the justices, noted that the controversial abortion decision of Roe v. Wade, no longer applied to Alabama's wrongfuld death law. Fox News also reported that one of the justices challenged the continued use of Roe v. Wade in tort and criminal law, calling that application "outdated."

I report on these decisions not to take a position on these controversial issues one way or the other, but to let people know that the law has changed in Alabama, and that the Alabama Supreme Court seems committed to sticking with its decision overturning the older line of cases. From here on out, it seems that unborn children, even if not "viable" outside the mother's womb will have the right to sue for injuries that cause their death.

Don't Let Your Load Block the Road

Edwin Lamberth — Wed, 29 Feb 2012 08:43:59 -0600

That should be the mantra of anyone (whether 18-wheeler driver or not) trailering cargo on our highways. I picked up that saying from a recent discussion at a lawyers' conference about tractor-trailers making u-turns or other types of turns which block intersections, divided highways, and lanes of travel.

Making a u-turn, or any turn across multiple lanes, while pulling a trailer is just not as simple as making the same manuever in a car or light truck. For most full-sized tractor trailers, it takes the equivalent of five lanes of traffic to perform a u-turn. Such a turn is simply not possible in most parts of Alabama without blocking the oncoming lanes of travel for a significant period of time.

Consider this: It takes a car traveling 55 mph 10 seconds to travel 800-1000 feet. In 30 seconds, that same car travels 2400-3000 feet, more than half a mile. Therefore, what may seem like a situation where the "coast is clear" for a u-turn or other time-consuming turn can quickly change. The same thing goes when a vehicle pulling a trailer must cross a highway at an intersection. If the trailer is blocking the road, especially at night or in low-visibility situations, it presents a serious danger. Cars can "underride" trailers, which is one of the most dangerous crash scenarios on the road.

Another issue which can cause a collision is what as known as low or no "conspicuity," otherwise known as the ability to been seen or noticed. Federal regulations require that certain vehicles and trailers have lights, reflective tape, etc. so that they may be seen in low or no-light situations. Sometimes, these preventive measures do not function, either because they are not working properly or are covered up with mud, grease, etc. On other occasions, they may not be effective because they can't be seen due to the angle of the approaching vehicle or the existence of other lights in the area. Simply put, a person pulling a trailer cannot rely on these devices to prevent a collision. The best way to avoid such a collision is to avoid blocking the road in a dangerous manner.

Thousands of individuals are injured in collisions with trailers (both commercial and personal) in the United States every year. If pulling a trailer, take special care to prevent these collisions by considering how your turn might effect other drivers.

Tractor Trailer / Trucking Collisions Require Fast Action

Edwin Lamberth — Sat, 11 Feb 2012 13:53:03 -0600

Collisions involving a heavy truck (also known as a semi, a tractor-trailer, or an 18 wheeler) and an automobile require special attention. They are not just simple car wrecks. Why? Because if you are involved in a serious collision with a heavy truck, you can bet that the trucking company's insurance representative will try its hardest to beat everyone to the scene to "gather" evidence and investigate. These insurance companies have investigators literally on stand by so that if something happens, they can be on the scene immediately. That's why you need someone to help you protect your rights and protect your family should you unfortunately lose the ability to earn income while you are injured.

In 18-wheeler collisions, you have to deal with several issues almost immediately:

1. Make sure that the tractor-trailer is not taken to its home state if the driver is from out-of-state.

2. Make sure that the driver's logs (as in records) of his hours, destinations, etc. are preserved.

3. Make sure that any type of "black boxes" in the truck are preserved, and downloaded to preserve the truck's speed, braking, etc.

4. Determine whether the truck has a satellite tracking system, which can provide valuable information.

5. Preserve the load being carried by the truck to make sure that it was loaded properly and was not overweight.

The list goes on and on, but you get the picture and the point, which is, as I said above, that trucking accidents are simply not the same as automobile accidents. You must have experienced individuals working for you right of the bat. That's why we have a team of investigators and experts who can work for you. Let them sweat the details of the accident, while you do your best to get your life back on track.

Client Communications - Keeping the Client Informed

Edwin Lamberth — Tue, 07 Feb 2012 16:41:22 -0600

A recent article out at Lawyerist.com tells lawyers that lack of communication is the number one complaint by clients about attorneys. No surprise there, I wouldn't think.

At our firm, we do our best to communicate with you when you need information. We are committed to providing initial in-person meetings with attorneys, not staff. We are committed to making sure that your communications with us are confidential, and will not be discussed with others. I send my clients monthly updates on their cases whether the case has been active or whether we are simply waiting on a court ruling before we can get the case moving along.

Of course, we are not perfect. We are blessed to have hundreds of clients, and sometimes it can be a struggle to keep up. That's why we use the wonders of modern communication, e-mail, web intakes, and even text messages to improve our client communication. And we are always available for in-person meetings. Our attorneys set aside certain days of the week solely for meetings with you to update you on your case.

After our initial meeting for a personal injury case, there is usually a four to six week period of down time where we are working to gather your medical records and investigate your claim. Next, if we cannot resolve your case out-of-court, we must file your claim. After a claim is filed, the defendant has 30 to 45 days to answer your complaint. This results in another period which oftentimes seems slow. After the defendant answers, things start to pick up. Both sides exchange "discovery," which are usually written questions directed to both parties. Then, each party may take depositions. After depositions are complete, another effort at settlement is usually required by the courts. If that effort is not successful, your case is set for trial.

The court's trial calendar can sometimes be extremely full, and your case may not be tried the first time it is ready. We do our best to use our experience in the judicial system to make sure that your case is resolved or tried as promptly as possible. We know that you have suffered a loss, and the sooner we are able to get your case resolved, the better off you are. That said, cases will not be resolved on unfair terms simply because of delays in the court system.

Finally, we are ethically obligated to inform you of all settlement offers by the defendant, even if they are extremely low and not acceptable. We always communicate settlement offers to you and make counter-offers that you approve and which are acceptable to you.

The old saying is that communication is a "two-way street," and as the article referenced above says, both attorney and client can maximize their communication through their best efforts. If you need to speak to one us, make an appointment, e-mail us, or if it is urgent have a legal assistant track us down, even if we out of the office investigating another case. Lawyers are made to serve their clients, and that's our commitment to you.

Automobile Accident - Do I Need a Lawyer?

Edwin Lamberth — Fri, 03 Feb 2012 16:11:44 -0600

When our clients are involved in an unfortunate automobile accident, I often get this question: Do I really need a lawyer? It's clearly the other party's fault. Won't they just settle out-of-court? You would think that self-serving lawyers would always tell you that, yes, you need to hire an attorney to protect your rights. That answer is not because of the lawyer's self-interest, but because of certain statistics from the insurance industry itself which show that hiring a lawyer to represent you results in a much more favorable outcome for you.

In 2007, the Insurance Research Council released a study showing that accident victims who were represented by attorneys received two to three times the amount of an out-of-court settlement that unrepresented accident victims received. Leaked Allstate documents have shown that Allstate insurance company projected that if it could reduce the number of claimants who turned to attorneys for help, it could increase its stock price by $1.60 per share. So, who has the greatest self-interest in making sure that you don't hire a lawyer? The lawyer or the insurance company?

The fact of the matter is that here at the Gilmore Law Firm, and most any other respectable attorney that handles personal injury cases, we will tell you that we will not take your case unless we believe it is in your best interest and ours. We work only on a contingency fee basis, meaning that unless we recover for you, we do not charge you a fee. If an insurance company has made you an offer before you come see us, we will not charge you a fee if we cannot increase your recovery. Otherwise, what good have we done you or us? We are committed to keeping our reputation in our community as lawyers who look out for our client's best interests. If the word on the street is that we resolved your case for what the insurance company offered you, or even worse-- less, we've damaged our reputation and your case.

We have years of experience handling automobile accident cases. We know the statistics, the value of your case, the value of the property damage to your vehicle, and how to make sure that you are treated fairly by the insurance and medical communities involved. We use this experience to make sure that our clients get what the insurance companies already will know will happen if you hire us -- that you will get what you deserve. Of course, we can't guarantee results, but we can guarantee that we will use our experience and the knowledge we've gained over many, many years to reach the best result for you and your family.

The bottom line is: don't dismiss consulting an attorney for what appears to be even the simplest automobile accident. Our consultations are free, even if you decide not to hire us to handle your case. Above all, we want what is best for you.

State Declares Mediation Day - What in the world is it?

Edwin Lamberth — Wed, 19 Oct 2011 09:00:01 -0600

In a news story out today, the Montgomery Advertiser reports on the State of Alabama's new push to resolve court disputes through mediation. The Alabama State Bar has declared next week "mediation week," and the Governor has declared next Friday "Mediation Day."

Many years ago, the Alabama Legislature adopted several laws creating a mediation program in Alabama. Nowadays, just about everyone of our cases goes through the process of mediation, either by court order or by the parties voluntarily agreeing to go through the process. When I tell our clients that we are going to participate in mediation, I always get some puzzled looks. Most folks simply don't know what it is, so let me explain, or at least sum it up.

Mediation is nothing more than an informal attempt to resolve your dispute either without a trial or without filing a formal lawsuit. It can be done before or after a lawsuit is filed. It can even be used in criminal cases. In the mediation process, the court can appoint a mediator, or the parties can agree on a mediator. The mediator is a third-party who is neutral and has no connection to the case. His or her only job is to attempt to have the parties resolve their differences without a trial or a claim being filed. Many mediators go through special training. Some are former judges. Every one I have ever worked with is an attorney, although I have heard of some non-lawyers conducting mediation. There are also Christian mediation services for believers to submit their disputes to a bible-based process. Mediation is confidential. Nothing said, offered, or rejected in mediation can be used in trial or for any other reason.

According to most statistics I have seen, about 85% of civil cases resolve before trial through the mediation process. That's good and bad. Mediation can be good because it allows the parties to reach certainty about the outcome of the case. If you are injured and settle your case at mediation, you will usually have your compensation within just a few weeks. A trial, on the other hand, could be serveral months, if not years, away, and then the defendant could appeal. The reason a mediation could be bad is that you lose your ability to have your day in court. My partners and I are trial lawyers. We love to try cases. Some cases need to be tried. When you resolve your dispute by mediation, you won't get a trial. Also, there is a reason that the other name for a settlement is a "compromise." A compromise means that both sides give up something they want in order to resolve their differences. Sometimes, the compromises are too much and the case has to go to trial.

The news story says that mediation week/day is being declared to reduce the workload on the courts because the court system is overwhelmed due to a lack of funding by the legislature. To which I say, fund the court system! Absent that, they should examine the court statistics and find out which kinds of cases are creating a drag on the court system. According to most stats I have read, the majority of civil cases are filed by businesses, as opposed to personal injury victims. In fact, those same stats say that personal injury filings are way down over the last two decades. Maybe an analysis of the business cases will help reduce the drain on the court system.

All that being said, any program that furthers amicable resolution of disputes is a good one, and I applaud the Bar and the Governor for taking these steps. Let's hope mediation week and day continues the past success of Alabama's mediation program.

Crashworthiness Defined: Will your vehicle adequately protect you in a collision?

Edwin Lamberth — Tue, 18 Oct 2011 09:30:18 -0600

Just the other day in a vehicle defect case, during my deposition of a defendant's "expert" in a vehicle defect case, the expert looked at me and said: "I don't know what you mean by this term you keep using - the term 'crashworthiness.'" I asked him to use his definition. He said he couldn't because he wasn't familiar with the term. I was flabbergasted. How can an expert for a vehicle manufacturer, someone who is supposed to be an expert engineer in the field of vehicle safety, have no idea what crashworthiness is or how to define it? OK, I get the fact that he may have been playing dumb for a reason, but still, there the guy was - on a video depostion - for all the world, the jury, and the judge to see - defending his product without knowing how (or without admitting how) to define crashworthiness. Hence, the inspiration for this post.

Defining crashworthiness is really no more difficult than thinking about the word itself. If something is "worthy" of a crash, it has the ability to withstand and protect those people involved in the crash. The concept applies to every kind of vehicle - cars, trucks, semi-trucks (18-wheelers), airplanes, helicopters - you name it. If it moves and is susceptible to an impact in a collision, it should be "crashworthy."

When looking at it in a legal context, crashworthiness, or more precisely lack thereof, can lead to a claim for damages when someone is injured. A vehicle that is not crashworthy is defective. A defect that causes injury or death can be the subject of a legal claim. It's easier to explain with examples:

First, you can have a vehicle where the manufacturer cut safety corners for cost reasons. The most-often-cited example is the Ford Pinto. As Public Citizen (a non-profit, non-partisan organization dedicated to consumer safety) has written about the Pinto:

The Ford Pinto was affordable, gas efficient, and stylistically pleasing-- but lacked one essential element: safety. Ford discovered fatal design flaws in the gas tank during a routine crash test performed right before production of the Pinto was to begin. Ford’s crash tests revealed that several design defects in the fuel tank and rear structure exposed consumers to serious injury or death in 20-30 mile-per-hour collisions. In April 1971, shortly before the 1972 Pinto was placed on the market, Ford’s vice president of car engineering, Harold MacDonald, chaired a product review meeting to discuss a report that had been prepared by Ford engineers. This report recommended deferring, from 1974 to 1976, the incorporation into all Ford cars, including the Pinto, of either a shock absorbent "flak suit" to protect the fuel tank at a cost of $4 per car, or a nylon bladder within the tank at a cost of $5.25 to $8 per car.

This deferral would allow Ford to realize a savings of $10.9 million. Ford’s management knew that the gas tank created a significant risk of death or injury from fire but decided to go forward and begin manufacturing the new Pinto anyway, knowing that these "fixes" were feasible at nominal cost.

Another example occurs when manufacturers try to boost profits in the face of competition. As Public Citizen has written about GM's use of side-saddle gas tanks in GM/Chevy pick-up trucks:

The problem began when the trucks were redesigned in the late 1960s. At that time, the pickup truck gas tanks were inside the passenger cab, which of course was extraordinarily dangerous. As GM debated where to relocate the tanks, Executive Truck Engineer Alex Mair recommended in a 1964 memo that the new underbody gas tanks be placed as close as possible to the center of the vehicle, inside the frame rails. But the top brass at GM wanted to be able to advertise a truck that could hold more gas than the competitive Ford and Chrysler trucks, whose tanks were inside the frame rails for safety reasons. Ignoring safety, GM decided to place two 20-gallon tanks outside the frame, enabling them to boast in ads that GM truck owners could drive farther than in competitors’ trucks without having to stop for gas.

Placing gas tanks outside the frame makes them highly vulnerable to destruction in side-impact crashes. As one former GM employee said, these tanks split open "like melons." Crashes produce sparks that ignite spilling gas, leading to fires that literally roast helpless victims. Another GM engineer said that the only worse place to put a fuel tank would be on the front bumper.

Both of these defects caused the deaths and injuries of thousands in post-collision fires These defects were exposed during lawsuits, and many more like them are exposed during litigation every year.

The concept of "crashworthiness" in law and in engineering is a critical one. Without knowing how to define it and make sure we develop it into our vehicles, we risk the lives of fellow citizens. When those risks turn into injuries, they often become lawsuits. We take our work on these product defect cases seriously. These cases are expensive to prosecute and involve one of the most important aspect of personal injury law: consumer protection and safety by preventing manufacturers from repeating their mistakes and errors in judgment.

House Fires from Defective Products

Edwin Lamberth — Wed, 21 Sep 2011 10:40:13 -0600

The National Fire Protection Association (NFPA) has just released its latest statistics for 2010 fire losses in the United States. The NFPA is an international nonprofit entity, established in 1896, whose mission "is to reduce the worldwide burden of fire and other hazards on the quality of life by providing and advocating consensus codes and standards, research, training, and education."

Unfortunately, 2,640 people were killed in house fires last year, an increase of 2.9% from 2009. Injuries from fires also increased last year by 3.9% to 17,720. Even more unfortunate is the fact that the southern U.S. is most at risk for home fires and death or injury from home fire. The risk is higher in small communities in the South. In fact, southern rural communities have the highest fire incident death rate in the U.S.

The report does not provide research or data regarding the major causes of fires, but the NFPA has provided prior reports on the major causes of house fires. Their research identifies: electrical products, electrical wiring or wiring components, upholstery, and smoke alarms (either a lack of them or defective alarms).

This research is entirely consistent with what our attorneys have seen in the real world. We've handled cases involving defective electrical appliances, such as water heaters, dishwashers, window air-conditioning/heater units, and numerous other defective appliances, smoke alarms, wiring components, upholstered furniture, and the like. These cases have resulted in settlements of millions of dollars on behalf of the families we represented.

The purpose of these cases, though, is not simply to get justice for the loss of a family member. It's to bring attention to defects that need to be corrected to prevent future harm. Sometimes, only a sizeable jury verdict or settlement will get the attention of a manufacturer and cause it to change its ways. Thankfully, the NFPA is also focusing on ways to reduce deaths and injuries from fires. It says its "five major strategies" are:

First, more widespread public fire safety education is needed on how to prevent fires and how to avoid serious injury or death if fire occurs. Information on the common causes of fatal home fires should continue to be used in the design of fire safety education messages. Second, more people must use and maintain smoke detectors and develop and practice escape plans. Third, wider use of residential sprinklers must be aggressively pursued. Fourth, additional ways must be sought to make home products more fire safe. The regulations requiring more childresistant lighters are a good example, as are requirements for cigarettes, with reduced ignition strength (generally called ―fire-safe‖ cigarettes). The wider use of upholstered furniture and mattresses that are more resistant to cigarette ignitions is an example of change that has already accomplished much and will continue to do more. Fifth, the special fire safety needs of high-risk groups, e.g., the young, older adults, and the poor need to be addressed.

No one wants to be involved in a house fire. It is one of the most terrifying experiences ever. Hopefully, the efforts mentioned above will reduce deaths and injuries from house fires.