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.

Recovery Of Money Damages For Assault And Battery

Along with negligence and other types of civil money damage claims, plaintiffs sometimes have the option of suing for assault and battery.  Assault and battery are intentional wrongs.  “Assault” refers to threats, fear, and the like that doesn’t result in actual physical contact while “battery” covers cases in which the defendant has intentionally made contact with the victim in some manner.

Assault and battery are separate claims.  An assault may not always be followed by a battery if the defendant stops the threatening behavior before it progresses to physical contact.  But once there’s unlawful physical contact a battery has occurred.  Thus an act battery is almost always preceded by an act of assault, although the assault may be extremely brief. 

An assault is an act done with the intent to put the victim in fear of physical pain or injury or in fear of physical contact thatwould be insulting or offensive.  The victim must reasonably believe that the act would be immediately carried out.  Threatening words alone do not constitute an assault unless it appears that the person has the ability to carry out the threat at the time the words were spoken.

There are two types of physical contact that may constitute a battery: (1) harmful contact and (2) offensive contact.  “Harmful” contact requires a physical impairment of the condition of the victim’s body or physical pain or illness.  Under the second type of battery, “offensive” contact, a defendant is subject to liability if the defendant acts intending to cause insulting or offensive contact with the victim or the victim’s imminent apprehension of such a contact and offensive contact with the victim directly or indirectly results.  An “offensive contact” battery claim does not require proof of a physical injury.  Bodily contact is offensive if it offends a reasonable sense of personal dignity.

Liability Of Cities For Sewer Backups

You hear about this all the time.  Heavy rains hit, your city’s sewer system doesn’t do its job, and you suddenly have a swimming pool filled with sewage overflow where your basement used to be.  Like anything else involving water damage, that can be a very expensive repair project because you have the cost of cleaning everything up, the cost of repairing any portions of the basement that were ruined by the water, and the cost of replacing any property items that were lost during the flooding.  If you have insurance to cover those losses, that’s great and the flooding won’t have much of an impact on you.  But many insurance policies provide minimal coverage in these circumstances, leaving you to pay out-of-pocket for everything that’s not covered by insurance.

So do you have any legal rights to recoup your losses in that situation?  You do, and there’s various options.  The obvious choices are to assert legal claims against whatever companies were responsible for designing, constructing, and installing the sewer system or connecting it to your property.

Another possible defendant is the city you live in, and that’s what I want to talk about.  There are three main theories of liability against cities regarding sewer overflow damage: (1) negligent design or construction of the sewer system; (2) negligent inspection, including granting of permits or licenses, of the sewer system; and (3) negligent maintenance, repair, or operation of the sewer system.

The first category, negligent design or construction of a sewer system, is a very difficult claim to make.  Iowa Code 670.4(8) provides cities with broad immunity for sewer design or construction liability on “[a]ny claim based upon or arising out of a claim of negligent design or specification, negligent adoption of design or specification, or negligent construction or reconstruction of a public improvement . . . or other public facility that was constructed or reconstructed in accordance with a generally recognized engineering or safety standard, criteria, or design theory in existence at the time of the construction or reconstruction.  A claim . . . shall not be allowed for failure to upgrade, improve, or alter any aspect of an existing public improvement or other public facility to new, changed, or altered design standards.”  A sewer system is considered a “public improvement.”  Iowa’s courts have stated that a violation of engineering or safety standards existing at the time the sewer system was constructed must be proved or the city is immune.

The second category, negligent inspection and licensing and permits, is frequently implicated when a city is accused of negligently granting a building permit or something similar during a construction project.  Two laws govern those types of cases.  Iowa Code 670.4(9) provides that cities cannot be sued on “[a]ny claim based upon an act or omission by an officer or employee of the municipality or the municipality’s governing body, in the granting, suspension, or revocation of a license or permit, where the damage was caused by the person to whom the license or permit was issued, unless the act of the officer or employee constitutes actual malice or a criminal offense.”  Iowa Code 670.4(10) confers immunity to cities from “[a]ny claim based upon an act or omission of an officer or employee of the municipality, whether by issuance of permit, inspection, investigation, or otherwise, and whether the statute, ordinance, or regulation is valid, if the damage was caused by a third party, event, or property not under the supervision or control of the municipality, unless the act or omission of the officer or employee constitutes actual malice or a criminal offense.”

Iowa Code 670.4(10) and its statutory predecessors have made regular appearances in lawsuits against cities in which a third party causes physical injuries or property damage and the injured party seeks to blame the city for essentially failing to prevent the problem.  Much of the fight in those cases concerns the “supervision or control” component of Iowa Code 670.4(10) because, if the city did not have supervision or control, then the injured party must meet the almost impossible burden of proving that the city acted with actual malice or committed a crime.  So establishing a right to go after a city for regular negligence because it had supervision or control is essential.

The third and final category of city liability for sewer overflows is negligence in the maintainence, repair, or operation of a sewer system.  In this category, cities are treated like any other property owner and have a duty to maintain their property (the sewer system) so that it does not injure anyone.  Common examples in this category are claims for obstructions in sewers or failing sewers that are allowing seepage, overwhelming the system, and increasing the chance of an overflow.  The city will be liable if the injured party can prove that the city negligently addressed the obstruction or the failing sewer.

As you can see, negligence claims against cities for sewer overflow flooding and damages are complicated and require a carefully nuanced legal approach.  This is an area where the legal manner in which you present your claim can have a substantial impact on your city’s potential liability for the flooding damage to your home.  If you approach your claim from the wrong legal direction, you will likely run into one or more of the city’s immunities, summarized above, and have your case dismissed by the judge before you ever get to trial.  Please feel free to contact me if you’d like me to review a possible legal matter involving your city’s sewer system.

Turn Signal Requirements

In an earlier post I discussed Iowa’s statutory law regarding headlight use.  This time I’d like to discuss when the use of turn signals is required.  The law actually gives drivers a lot of leeway on turn signal use to the point that turn signals may almost be always optional.  But for safety concerns, especially for vehicles traveling behind you, there doesn’t seem to be any good reason to not use your turn signals, even when the law doesn’t mandate it.
Here are the Iowa Code sections that govern turn signal use:
Iowa Code 321.314  When signal required:
“No person shall turn a vehicle from a direct course upon a highway unless and until such movement can be made with reasonable safety and then only after giving a clearly audible signal by sounding the horn if any pedestrian may be affected by such movement or after giving an appropriate signal in the manner hereinafter provided in the event any other vehicle may be affected by such movement.” (emphasis added).
Iowa Code 321.315  Signal continuous:
“A signal of intention to turn right or left shall be given continuously during not less than the last one hundred feet traveled by the vehicle before turning when the speed limit is forty-five miles per hour or less and a continuous signal during not less than the last three hundred feet when the speed limit is in excess of forty-five miles per hour.”
The highlighted portion of Iowa Code 321.314 provides the leeway I mentioned.  Under section 321.314 drivers are only required to use turn signals when another vehicle may be affected by the turn.  That interpretation of 321.314 has been accepted by Iowa’s appellate courts on several occasions.  So, if you don’t believe that your turn will affect another vehicle, you have no legal obligation to signal.
Interestingly, although signaling a lane change is a common driving tactic taught by probably every driving instructor in Iowa, that’s not actually required by the Iowa Code.  In a 2009 decision (http://www.iowacourts.gov/court_of_appeals/Recent_Opinions/20090917/9-647.pdf) the Iowa Court of Appeals noted that Iowa does not seem to legally require the use of turn signals during land changes.  It’s just one of those things you do so other drivers have a clue about where you’re going and don’t crash into you when your vehicle suddenly appears in their lane without warning.
As I said, signaling your turns is always something you should do for safety reasons even if you technically don’t have to.  The Iowa Department of Transportation offers the following driving tips on turn signal use.  Most of IDOT’s tips won’t be found in the Iowa Code.  Rather, they’re just good, common sense tips meant to help keep everyone safe:
“Turn signals give other drivers time to react to your moves.  You should use your turn signals before you change lanes, turn right or left, merge into traffic, or park.
• Get into the habit of signaling every time you change direction. Signal even when you do not see anyone else around. It is easy to miss someone who needs to know what you are doing.
• Signal as early as you can. Try and signal at least three seconds before you make your move. You must signal at least 100 feet before a turn if the speed limit is 45 mph or less. If the speed limit is faster than 45 mph, you must signal at least 300 feet before you turn.
• Be careful that you do not signal too early. If there are streets, driveways or entrances between you and where you want to turn, wait until you have passed them to signal.
• If another vehicle is about to enter the street between you and where you plan to turn, wait until you have passed it to signal your turn. If you signal earlier, the other driver may think you plan to turn where that driver is and he/she might pull into your path.
• After you have made a turn or lane change, make sure your turn signal is off. After short turns, the signals may not turn off by themselves. Turn it off if it has not canceled by itself. If you do not, other drivers might think you plan to turn again.
A quick word about civil liability for personal injuries or wrongful death.  If you cause a car accident or motorcycle crash because you violate the Iowa Code’s rules for motor vehicles, especially if you’re found guilty or plead guilty to a citation, you’ll almost certainly be held liable for the accident.  But the Iowa Code merely provides a minimum standard of conduct; civil negligence law can require you to do more than the Iowa Code requires if it’s reasonable to expect you to do so.  Turn signal use is a good example of that — There’s many things you should do with your turn signals (as advised by IDOT) that the Iowa Code doesn’t actually require you to do.  Regardless, you may still be civilly liable for causing an accident if a court or  jury determines that you reasonably should have done more, such as signal a lane change, than the Iowa Code expressly requires.

More Issues With Drawstrings In Children’s Clothes

The U.S. Consumer Products Safety Commission has another announcement regarding drawstrings on children’s clothes, which can cause strangulation:

“WASHINGTON, D.C. – The U.S. Consumer Product Safety Commission (CPSC) announced today that Sunsations Inc., of Virginia Beach, Va., has agreed to pay a civil penalty of $60,000. The penalty agreement (pdf) has been provisionally accepted by the Commission (5-0).

The settlement resolves CPSC staff allegations that Sunsations knowingly failed to report to CPSC immediately, as required by federal law, that it sold children’s hooded sweatshirts with drawstrings at the neck from March 2008 through November 2010. Children’s upper outerwear with drawstrings, including sweatshirts, sweaters and jackets, poses a strangulation hazard to children that can result in serious injury or death.

In December 2009 and again in March 2011, CPSC and Sunsations announced recalls of more than 15,000 children’s sweatshirts that
were sold in Sunsations stores in Virginia Beach, Va., Ocean City, Md. and North Carolina.

Federal law requires manufacturers, distributors, and retailers to report to CPSC immediately (within 24 hours) after obtaining information reasonably supporting the conclusion that a product contains a defect which could create a substantial product hazard, creates an unreasonable risk of serious injury or death, or fails to comply with any consumer product safety rule or any other rule, regulation, standard, or ban enforced by CPSC.

In 1996, CPSC issued drawstring guidelines (pdf) to help prevent children from strangling on or getting entangled in the neck and waist drawstrings of upper outerwear, such as jackets and sweatshirts. In 2006, CPSC’s Office of Compliance announced that children’s upper outerwear with drawstrings at the hood or neck would be regarded as defective and as presenting a substantial risk of injury to
young children.

In agreeing to the settlement, Sunsations denies CPSC staff allegations that it knowingly violated the law.

Note: On June 29, 2011, the Commission approved a final rule that designates children’s upper outerwear in sizes 2T through 12 with neck or hood drawstrings, and children’s upper outerwear in sizes 2T through 16 with certain waist or bottom drawstrings, as substantial product hazards.”

Source:  http://www.cpsc.gov/cpscpub/prerel/prhtml11/11317.html

Please feel free to contact me if you have a personal injury or wrongful death or products liability matter involving children’s products that you would like to discuss.  I’ll be happy to see if I can give you a hand.

Target Expands Recall Of Step Stools With Storage Due To Fall Hazard

News from the federal government about a dangerously defective stool that Target’s selling:

WASHINGTON, D.C. – The U.S. Consumer Product Safety Commission, in cooperation with the firm named below, today announced a voluntary recall of the following consumer product. Consumers should stop using recalled products immediately unless otherwise instructed.

Name of Product: Step Stools with Storage

Units: About 341,000 (206,000 were recalled on August 4, 2011)

Importer: Target Corporation, of Minneapolis, Minn.

Hazard: The wooden step stools can break apart or collapse under the weight of the user, posing a fall hazard.

Incidents/Injuries: Target has received 27 reports of the stools breaking or collapsing. Fourteen incidents involved children, eight involved
adults, and five incidents where the user’s age was unknown. Two adults fractured their wrists, and of those victims, one also fractured her hip and pelvis. Additionally, six children and one adult suffered scrapes and bruising.

Description: The wooden step stool has two steps and comes in various colors, including natural, natural and red, white, pink, blue and honey. The Circo step stool has a lid on the bottom step that lifts to provide storage. The Do Your Room (DYR) step stool has a lid on the top step that lifts to provide storage. The step stools measure approximately 13″ H x 13 5/8″ W x 14 1/8″ D. The Circo brand name or DYR brand name and UPC numbers are printed on a label found underneath the step stool. The following step stools are included in this recall:

Step Stools With Storage
Brand Name Style Description UPC Number Selling PeriodCircoWhite step stool w/storage490970403046 or
180970208597
June 2009-Feb 2010
Feb. 2010-Oct
2010
CircoNatural step stool w/storage490970403053 or
180970208610
June 2009-Feb 2010
Feb. 2010-Oct
2010
CircoNatural & red step stool w/storage490970403060 or
180970208665
June 2009-Feb 2010
Feb. 2010-Oct
2010
Do Your Room (DYR)Natural step stool w/storage097168014338Jan. 2007-Aug. 2009Do Your Room (DYR)Honey step stool w/storage390970402622Jan. 2007-Aug. 2009Do Your Room (DYR)White859090000076 or
490970401394
Jan. 2007-Aug. 2009Do Your Room (DYR)Pink801116004445Jan. 2007-Aug. 2009Do Your Room (DYR)Blue801116004438Jan. 2007-Aug.
2009

Sold exclusively at: Target stores nationwide and online at Target.com from January 2007 through October 2010 for between $25 and $30.

Manufactured in: China, Vietnam, Taiwan and Thailand

Remedy: Consumers should immediately stop using the step stools and return them to any Target store to receive a full refund.

Consumer Contact: For additional information, contact Target at (800) 440-0680 between 7 a.m. and 6 p.m. CT Monday through Friday, or visit the firm’s website at www.target.com

Source:  http://www.cpsc.gov/cpscpub/prerel/prhtml11/11311.html

Please feel free to contact me if you have a personal injury or wrongful death or products liability matter because of injuries by a household product.  I’ll be happy to see if I can give you a hand.

Black & Decker Agrees To Pay $960,000 Federal Penalty

The federal government has announced a penalty agreement with Black & Decker regarding a weed trimmer/edger made by Black & Decker:

“The U.S. Consumer Product Safety Commission (CPSC) announced today that Black & Decker (U.S.) Inc., of Towson, Md., has agreed to pay a civil penalty of $960,000. The penalty agreement has been provisionally accepted by the Commission (5-0).

The settlement resolves CPSC staff’s allegations that Black & Decker knowingly failed to report several safety defects and hazards with the Grasshog XP immediately to CPSC, as required by federal law. CPSC staff also alleges the firm withheld information requested by CPSC staff during the course of the investigation.

Federal law requires manufacturers, distributors and retailers to report to CPSC immediately (within 24 hours) after obtaining information reasonably supporting the conclusion that a product contains a defect which could create a substantial product hazard, creates an unreasonable risk of serious injury or death, or fails to comply with any consumer product safety rule or any other rule, regulation, standard or ban enforced by CPSC.

CPSC staff alleges Black & Decker knew, on or before May 2006, that the high-powered, electric Grasshog XP GH1000 was defective and could cause harm, but failed to report this to CPSC.

CPSC staff also alleges that Black & Decker failed to provide full information about defects with the Grasshog XP as requested in May 2006. Based on the incomplete information provided at that time, CPSC closed the case. The firm did not give CPSC staff full information about the extent of Grasshog XP defects or the mounting number of incidents and injuries until October 2006.

In July 2007, Black & Decker and CPSC announced the recall of about 200,000 Grasshog XP model GH1000 trimmer/edgers. By that time, there were more than 700 reports of incidents, including 58 injuries with the Grasshog XP. The trimmer/edgers’s spool, spool cap and pieces of trimmer string can come loose during use and become projectiles. This poses a serious laceration hazard to the user and to bystanders. The trimmer/edgers also can overheat and burn consumers. Black & Decker sold the Grasshog XP weed trimmers from November 2005 through spring 2007 for about $70.

The recall was reannounced in August 2009 with an additional 100 injuries reported. CPSC urges consumers with recalled Grasshog XP trimmer/edgers to contact Black & Decker for a free repair kit.

In agreeing to the settlement, Black & Decker (U.S.) Inc. denies CPSC staff allegations that it knowingly violated the law.”

Source:   http://www.cpsc.gov/cpscpub/prerel/prhtml11/11295.html

Please feel free to contact me if you have a personal injury or wrongful death or products liability matter because of pharmaceutical drug use.  I’ll be happy to see if I can give you a hand.