The Iowa Court Of Appeals Rules That Motorcyclists Have No Right To Expect Cars To See Them

On December 18, 2013 the Iowa Court of Appeals upheld a defense verdict against a motorcyclist who sued for personal injuries after he was nearly hit by a car and crashed his bike trying to swerve around the vehicle.  The accident happened at one of Jordan Creek mall’s entrance/exit areas.  Interestingly, the defendant driver had a stop sign.  The motorcyclist had no stop sign and had the right-of-way.  The driver didn’t see the motorcyclist at first, pulled out in front of him, and caused the bike to crash when the rider had to make a choice between slamming into the side of the car or swerving around it.

The jury found that the other driver was not negligent.  The motorcyclist received no compensation for his physical injuries.  So how did the motorcyclist lose this case even though he didn’t have a stop sign and the other driver did?

One problem was that there wasn’t any contact between the car and the motorcycle.  Motorcycle cases can be more difficult to win when the bike doesn’t hit the other vehicle.  It’s almost like the biker would be better off biting the bullet, maintaining course, and smashing into the other vehicle.  Otherwise, motorcyclists will almost always face a defense argument that there was room to get around the vehicle and no need to take the evasive maneuver that led to the bike crashing.  And juries often agree.

I also wonder whether this motorcyclist was penalized for being on a bike instead of a more visible car or truck.  This quote from the decision certainly approves the “I didn’t see him” defense, but it’s not entirely clear whether the motorcycle’s small profile played a role: “The evidence in this case is clear that Swank did not see Barrett until after she proceeded into the intersection. It is additionally clear Swank looked forward and to both sides before moving the vehicle. Barrett’s argument faults Swank for failing to look over her shoulder and to the rear in order to see Barrett as he left 68th Street and turned to cross the frontage road.  Though . . . Swank had a duty to maintain and establish awareness of vehicles behind her, it does not follow that Swank was required to maintain awareness of a vehicle behind her, a distance to the side, and on another road.”  It’s interesting that this driver was able to see all the other vehicles at this intersection and yield the right-of-way to them, but somehow missed the motorcycle.

The court of appeals concluded its decision by laying blame with the motorcyclist for relying on his right-of-way and not anticipating that the other driver would fail to yield and pull out in front of him: “The situation that confronted Barrett was a foreseeable occurrence, which a prudent driver should reasonably anticipate. A driver pulling out into traffic at a stop sign in a busy mall parking lot is foreseeable. . . .”

The court of appeals doesn’t explain exactly what the motorcyclist was supposed to do in light of the apparent expectation that other drivers wouldn’t obey the law at the intersection.  Get off his motorcycle and walk it to the intersection?  Park on the side of the road until everyone leaves and he’s the only vehicle left in the parking lot?  Turn around and go home?  I think the Iowa Court of Appeals made a mistake in this case by concluding that the other driver wasn’t negligent.

Loss Of Consortium Claims Involving Children And Personal Injury Or Wrongful Death

Earlier I wrote about spousal loss of consortium claims.  But loss of consortium claims involving children can also arise from personal injury or wrongful death, defective product, car accident, motorcycle accident, or dog bite claims.  There are two types of consortium claims involving children — Those in which a parent sues for injury or death to a child and those in which a child sues for injury or death to a parent.

A child’s claim for damages caused by a parent’s injury or death is known as “loss of parental consortium.”  Loss of parental consortium represents the loss of the services that the injured or dead parent would have provided to the parent’s children.  Loss of parental consortium also  can compensate for the loss of the injured or deceased parent’s company, affection, and cooperation and the assistance of the injured parent.  In Iowa, adult children can also recover for the loss of parental consortium.

Another claim available to children that arises only for the death of a parent is “loss of parental support.”   A child may recover the value of the amount of financial support that the deceased parent would have contributed had the parent lived.  Damages for loss of support are generally limited in time to when the child reaches age eighteen, although there are a few exceptions to that rule that rarely come into play.

The factors used in determining the value of loss of parental consortium and loss of parental support are the same as those for spousal consortium and spousal support claims.  I identified those in my earlier post.

Iowa law also provides parents claims for injury to a minor child and death of a minor or adult child.   A parent may recover damages for the expense and actual loss of services, companionship, and society resulting from injury to or death of a minor child.  A parent may also recover for the expense and actual loss of services, companionship, and society resulting from the death of an adult child.  Note the key distinction between minor children and adult children under this law — Once a child is considered an adult under Iowa law, a parent may only sue for loss of consortium and other damages if the adult child dies.  Parents usually do not have any legal rights stemming from an adult child’s injury, no matter how bad that injury might be.

Remedies For Injury To Or Wrongful Death Of A Spouse Under Iowa Law

Under Iowa law, when one spouse suffers personal injuries or wrongful death, for example in a dog attack, motor vehicle accident, motorcycle accident, by a defective product, or as a result of police misconduct, the uninjured or surviving spouse has the right to sue for “loss of consortium.”  Spousal consortium is the fellowship of a husband and wife and the right of each one to the benefit of company, cooperation, affection, services, useful, industry, attention, and aid of the other.  Those types of damages are often placed in the categories of “loss of services” and “loss of marital benefits.”  If a spouse dies, the surviving spouse may recover  the value of the amount of financial support that the deceased spouse would have contributed had the spouse lived.

To decide the value of a deceased spouse’s services that would have been provided to the surviving spouse, courts evaluate  the circumstances of the deceased’s life; the deceased’s age at the time of death; the deceased’s health, strength, character, and life expectancy; the deceased’s capacities, abilities, and efficiencies in performing spousal duties; the deceased’s skills and abilities in providing instruction, guidance, advice, and assistance to the surviving spouse; the surviving spouse’s needs; and all other facts and circumstances bearing on the value of the deceased spouse’s services.

In determining how much support a deceased spouse would have contributed to the other spouse, courts consider the deceased spouse’s  age at the time of death; health, strength, character, skills, and training; life expectancy of the deceased and the surviving spouse; previous employment and earnings; expectancy for earnings in the future; the age of the surviving spouse; the present and future need for support; the amount of money out of the deceased’s income that would have been available for support after payment of federal and state taxes; and all other facts and circumstances bearing on the value of financial support.

Southern Telecom Recalls A/C Adaptors for Polaroid Internet Tablets Due to Fire Hazard

The U.S. Consumer Product Safety Commission has announced a voluntary recall of the following consumer product because the product could cause personal injuries or death due to product liability. Consumers should stop using recalled products immediately unless otherwise instructed.

Name of product:

A/C Adaptor (charger) included with Polaroid PMID 709 Internet Tablets

Hazard:

The adaptors can overheat, posing a fire hazard.

Consumer Contact:

Southern Telecom toll-free at (866) 450-4493 from 8 a.m. to 10 p.m. ET Monday through Friday or online at http://www.southerntelecom.com and go to Product Support and click on “PMID709 A/C Adaptor Exchange Program” for more information.

Description

The recalled adaptor, also commonly referred to as a charger, was included with the Polaroid PMID709 seven inch Internet tablet (also known as the PMID709KB). The adaptor has two prongs for plugging into an outlet on one end and a wire leading to a single plug for the tablet. A label on the bottom of the casing near the plug prongs has “Polaroid Power Adaptor” printed on it with the model number SX-30017-D.

Incidents/Injuries

The firm has received approximately ten reports of the adaptor overheating.  No injuries or property damage have been reported.

Remedy

Customers should immediately stop using the adaptor and contact Southern Telecom for a replacement adaptor at no cost.  Customers will receive an envelope for returning the recalled product with their replacement adaptor.

Sold exclusively at

Big Lots in July 2013 for $90 for the tablet and adaptor.

Source:  http://www.cpsc.gov/en/Recalls/2014/Southern-Telecom-Recalls-AC-Adaptors-for-Polaroid-Internet-Tablets/

The Iowa Court Of Appeals Reminds You To Prove Causation

There’s a question that sometimes seems to be overlooked in civil cases — How did the defendant’s supposed wrongdoing harm you?  You have to prove not only that the defendant violated some aspect of the law, but also that the defendant’s violation caused you injuries and damages.  That’s generally referred to as “causation.”  The standards for causation vary from one type of claim to another, but the basic principle is always that you must prove you were harmed by the defendant’s conduct or you have no claim.  The principle applies to a personal injury suit, products liability claim, motor vehicle accident claim, motorcycle accident claim, dog bite claim, employment or labor law claim, construction defect claim, business practices or contract law claim, debt collection practices law claim, nuisance law claim, or insurance law claim.

This is not an issue to be taken lightly.  Money damages do not automatically flow from a determination that a defendant violated the law.  If Point A is the defendant’s liability and Point C is your injuries and damages, you need to have a good argument for Point B, which is causation, or the connection between the defendant’s liability and your injuries and damages.

The Iowa Court of Appeals’s recent decision in Stutzman v. West Des Moines OB/GYN illustrates this concept in tragic fashion.  Stutzman was a wrongful death case involving Julie Stutzman’s death from cancer.  Her estate and surviving family claimed that her doctor committed malpractice in the manner in which the doctor handled some of Julie’s earlier doctor visits.  The plaintiffs argued that, had Julie’s doctor properly handled and responded to earlier communications from Julie, Julie’s cancer would have been detected sooner and she would have had a higher chance of survival.

The Stutzman plaintiffs lost because they could only prove one aspect of malpractice against Julie’s doctor and clinic — A charting error.  But they were unable to establish that the charting error made a difference in the course of Julie’s subsequent cancer diagnosis and death, i.e., causation.  So Stutzman is a recent, good example of the importance of having sufficient proof of causation to connect the defendant’s wrongdoing to your harm.  Even though Julie’s family proved that her doctor did something wrong, they could mot prove that the doctor’s error harmed Julie, and they lost their case.

The Impact Of Your Social Media Use On Your Legal Rights

Your social media posts are not private.  Nor is there any law that prevents a lawsuit opponent from using against you something you posted on Facebook, Twitter, Instagram, or any of countless internet websites and blogs.  If you’re involved in a personal injury suit, products liability claim, motor vehicle accident claim, motorcycle accident claim, dog bite claim, employment or labor law claim, construction defect claim, business practices or contract law claim, debt collection practices law claim, nuisance law claim or insurance law claim, that information could compromise your case.

It is routine for opposing counsel in all types of cases to request this information as part of their pretrial investigation.  They want to know if you’ve posted anything anywhere online that contradicts any part of your claim.  They also want to know if there are any photos or videos of you doing things that you shouldn’t be doing or claim that you can’t do.

Judges increasingly allow opposing counsel access to this information, even if you’ve marked it as private in your online profile or settings.  To judges, your online musings, pictures, and video are as much fair game in a lawsuit as would be a diary, journal, scrapbook with photos, etc.  So odds are good opposing counsel will get this information whether you like it or not.

And that only covers opposing counsel’s attempts to come in through the front door.  As long as opposing counsel doesn’t communicate directly with you, they’re also free to view anything that you’ve left publicly available.  So opposing counsel may be poking around your internet persona and you won’t even know it until it’s too late.

The moral of the story is to avoid putting anything online that your common sense tells you will be used against you by opposing counsel.  Chances are good counsel will eventually get that information somehow.  And they’re guaranteed to try to use it.

Schneider Electric Recalls APC Surge Protectors Due to Fire Hazard

The U.S. Consumer Product Safety Commission has announced a voluntary recall of the following consumer product because the product could cause personal injuries or death due to product liability. Consumers should stop using recalled products immediately unless otherwise instructed.

Name of product:

APC SurgeArrest surge protectors

Hazard:

The surge protectors can overheat, smoke and melt, posing a fire hazard.

Consumer Contact:

Schneider Electric IT Corp., toll-free at (888) 437-4007 from 8 a.m. to 5 p.m. ET Monday through Friday, or online at http://recall.apc.com, or www.apc.com and click on the Recall link to submit a claim and obtain more information.

Description

This recall involves APC 7 and 8 series SurgeArrest surge protectors manufactured before 2003. The model and serial numbers are located on a label on the bottom of the surge protector. The two numbers that follow the first letter or letters in the serial number sequence indicate the year of manufacture. The unit is included in the recall if the numbers are 93, 94, 95, 96, 97, 98, 99, 00, 01 or 02. APC and the words Personal, Professional, Performance or Network are printed on the surge protectors. The following model numbers are included in this recall.

7 Series model numbers	8 Series model numbers
NET7	NET8
NET7T	NET8N
NET7T-C	PER8T
PER7	PER8TR
PER7C	PER8TR-CN
PER7T	PER8TVR
PER7T-CO	PER8XTV
PER7T-U	PRF8T2
PER7TX137	PRF8TT
PER7-U	PRO8
PER7X148	PRO8T2
PRF7	PRO8T2C
PRF7T	PRO8T2MP12
PRO7	PRO8T2MP12B
PRO7C	PRO8TV
PRO7T
PRO7TX183

Incidents/Injuries

The firm has received 700 reports of the surge protectors overheating and melting and 55 claims of property damage from smoke and fire, including $916,000 in fire damage to a home and $750,000 in fire damage to a medical facility.  There are 13 reports of injuries, including smoke inhalation and contact burns from touching the overheated surge protectors.

Remedy

Consumers should immediately stop using the recalled surge protectors, unplug them and contact Schneider Electric for a free replacement surge protector.

Sold at

Best Buy, Circuit City, CompUSA, and other stores nationwide from January 1993 through December 2002 for between $13 and $50.

Manufacturer

American Power Conversion (APC), now known as Schneider Electric IT Corp., of West Kingston, R.I.

Source:  https://www.cpsc.gov/en/Recalls/2014/Schneider-Electric-Recalls-APC-Surge-Protectors/

Black Boxes Aren’t Just For Airplanes — The Use Of Vehicle Data Recorders In Products Liability Cases

 

The National Highway Traffic Safety Administration (NHTSA) has proposed new regulations requiring that automobile manufacturers include vehicle data recorders, frequently called “black boxes,” in all motor vehicles produced after September 1, 2014.   Data recorders constantly monitor different types of data from a vehicle.   Especially important for “crashworthiness” products liability cases, data such as vehicle speed, braking, and whether the driver was wearing a seatbelt is recorded and maintained if the vehicle is in a crash.  Vehicle data from seconds before a crash is saved if a vehicle’s air bags deploy or the data recorder senses a collision has occurred.

Personal injury or wrongful death victims of crashes caused by vehicle defects can use the data from the recording devices.  Data from the vehicle’s black box can help determine why a crash occurred and whether a design or manufacturing defect caused or contributed to the crash.  That can be extremely useful if the vehicle’s data supports your case because data from the black box is difficult for vehicle manufacturers to refute, almost like DNA evidence.

Along with products liability lawsuits, black boxes can also impact ordinary motor vehicle accident cases too.  Vehicle data devices could establish a vehicle’s movement, speed, braking, etc., as well as seatbelt use or nonuse.  That information may be evidence in deciding which driver was at fault in the crash.

 

Target Recalls Threshold Floor Lamps Due to Fire and Shock Hazard

The U.S. Consumer Product Safety Commission has announced a voluntary recall of the following consumer product because the product could cause personal injuries or death due to product liability. Consumers should stop using recalled products immediately unless otherwise instructed.

Name of product:

White 2-Bulb Floor Lamp

Hazard:

The lamp can short when a standard one-way bulb is fully tightened in the lamp’s three-way socket, posing a fire and shock hazard to consumers.

Remedy:

View Details

Refund

Consumer Contact:

Target at (800) 440-0680 from 7 a.m. to 6 p.m. CT Monday through Friday or online at www.target.com and click on Product Recalls under the Help tab, then click on Home & Kitchen for more information.

Description

This recall includes white plastic, turned-spindle design floor lamps with white fabric drum lamp shades and two 3-way pull-chain switches.  Lamp is illuminated by two 3-way 100-watt or 29-watt CFL bulbs and stands approximately 60 inches tall.  The model number PL1071 is located on a sticker on the bottom of the lamp.

Incidents/Injuries

Target has received six reports of short circuiting which have resulted in fires, minor property damage and two consumers being shocked.

Remedy

Consumers should immediately stop using the recalled lamp, unplug it and return it to any Target store for a full refund.

Sold exclusively at

Target stores nationwide and Target.com from September 2012 through May 2013 for about $70.

Importer

Target Corp. of Minneapolis, Minn.  

Manufacturer

J. Hunt & Company of Bono, Ark.

Manufactured in

China

Source:  http://www.cpsc.gov/en/Recalls/2013/Target-Recalls-Threshold-Floor-Lamps/

HALO SleepSacks Wearable Blankets Recalled Due to Choking Hazard; Sold Exclusively at Babies R Us

 

The U.S. Consumer Product Safety Commission has announced a voluntary recall of the following consumer product because the product could cause personal injuries or death due to product liability. Consumers should stop using recalled products immediately unless otherwise instructed.

Hazard:

Petals from the floral embellishment on the blankets can detach, posing a choking hazard to infants.

Consumer Contact:

Halo Innovations toll-free at (866) 819-8118 from 8 a.m. to 5 p.m. CT Monday through Friday, e-mail at halorecall@nrmsinc.com or online at www.halosleep.com and click on the product recall link on the homepage for more information.

Description

The recalled HALO SleepSack wearable blankets are 100% white cotton with pink-edged ruffles and a pink satin rose embellishment on the front. These sack-shaped wearable blankets have cut-outs for the baby’s arms, a zipper down the center, a sewn bottom and were sold in small and medium sizes. Only SleepSack products with GPU numbers 2701, 2781, 2886, 2887, 3007, 3035 and 3142 printed on a neck label under the primary neck label are included in the recall.

Incidents/Injuries

The firm has received six reports of the petals detaching from the blankets including one report of an infant found gagging on a detached petal.

Remedy

Consumers should immediately stop using the wearable blankets and contact HALO Innovations for a pre-paid envelope containing instructions to remove and return the flower and order a free replacement product.   

Sold exclusively at

Babies R Us and www.babiesrus.com from December 2011 through July 2013 for about $25.

Importer

Halo Innovations, of Minnetonka, Minn.  

Manufacturer

Jiaxing Huayan Fashion Co. Ltd, of Jiaxing Zhejiang, China

Manufactured in

China

Source:  http://www.cpsc.gov/en/Recalls/2013/HALO-SleepSacks-Wearable-Blankets-Recalled/