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Articles Tagged with law

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A negligence case has four components:  duty, breach of duty, causation, and damages. Sometimes, a particular situation – such as a slip and fall injury, an act of medical malpractice, or a defective product – turns a simple negligence case into a more complex inquiry.Sometimes, however, the opposite is true. A recent case from the Kentucky Court of Appeals illustrates this point.

Facts of the Case

In Campbell v. Pro Video Audio Productions, Inc., the plaintiff was working as a professional stagehand at a concert in Louisville in 2012 when his foot became entangled in a tarp placed on the stage. He fell approximately seven feet, hurting his arm, leg, face, and hand. He sued the defendant, who was in the business of providing stage construction and sound system services, alleging that it had created an unreasonably dangerous condition by failing to place handrails around the stage.

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By Kyle Roby, Attorney
English, Lucas, Priest and Owsley, LLP

Car accidents, truck wrecks, and other motor vehicle crashes fall under the general law of negligence. In order to prove a negligence case, a plaintiff has to prove four separate elements:  duty, breach of duty, causation, and damages. Each element must be proven by a preponderance of the evidence, which is when the jury finds that the plaintiff’s version of the facts is more likely true than not. It does not require the injured person to prove beyond a reasonable doubt these elements, as in the criminal justice system, but rather only that it is more likely than not that there was a breach in a duty owed to the injured person that caused damages.

Once the plaintiff has presented his or her case at trial, and the judge has determined that he or she has made a prima facie case of negligence, the defendant has the right to offer evidence that contradicts the plaintiff’s version of the facts or impeaches the plaintiff’s testimony. The jury is the ultimate trier of fact, taxed with the duty of deciding which witness to believe when the testimony is conflicting.

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Workers’ compensation was designed as a compromise. An injured worker does not have to prove that his or her employer was negligent (as is required in most personal injury cases), but the worker’s monetary recovery is typically less than it would be in a negligence case. Whether or not this is a fair trade-off is a controversial subject.

The good news for an injured worker is that he or she can receive medical care and payment of temporary and, if applicable, permanent disability benefits, even if he or she cannot show that the employer did anything to cause the injury complained of. The bad news is that, even if the employer was at fault, the payout to the worker remains the same, with no compensation for pain and suffering or loss of consortium to the injured person’s spouse.

Sometimes, the parties disagree as to whether an injury was sustained during the course and scope of employment. For instance, an employee may be away from the business premises at the time of an accident (such as a car crash) but still arguably engaged in work for the employer.

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Regardless of the merits of a party’s complaint, it will never be heard unless the courts find that it was timely filed. Failure to comply with the statute of limitations isn’t just a small “technicality.” It is a deal breaker when it comes to negligence litigation. A recent underinsured motorist claim case in Kentucky highlighted the importance of hitting deadlines.

It can also be a mistake to file suit on the eve of the running of the statute of limitations. As the plaintiff in the case set out below discovered, waiting until shortly before the expiration of the limitations period can be very costly.

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By Kyle Roby, attorney
English, Lucas, Priest and Owsley, LLP

Even car accident cases that seem simple in the beginning can grow complicated very quickly. In a recent Kentucky fatal car accident case, who was driving the car at the time of the accident was the legal question. The alleged operator of a car involved in a fatal collision accused his passenger of being behind the wheel, even after the operator had pled guilty to manslaughter in criminal court.

It was up to the trial court – and the court of appeals, on review – to decide whether the issue was to be resolved by judicial admission or by the jury at trial.

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By Kyle Roby, Attorney and Partner
English, Lucas, Priest and Owsley, LLP

It often comes as a surprise to those injured in car accidents that dealing with one’s own insurance company can be just as vexing and contentious as dealing with the insurance company of the driver whose negligence or recklessness caused the accident.

Fortunately, the law does provide some protection for insureds who have to fight with their own insurance company to get that to which they are contractually entitled. However, the threshold for success in such cases is high, and not every case results in a judgment in the insured’s favor.

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By Kyle Roby, Attorney
English, Lucas, Priest and Owsley, LLP

Although the basic law of negligence is the same across the country – namely, that to be successful, the plaintiff must show duty, breach of duty, causation, and damages – there are some nuances of negligence law that are different in various states. Thus, the outcome of a particular case can vary considerably, depending upon the state in which the accident occurred.

For instance, under the law of comparative fault, there can be wide variations in the outcome of a suit based on similar circumstances, depending upon the state where the suit is filed. The state of Tennessee follows what is called the “modified system of comparative fault.”

Beginning with the 1992 case of McIntyre v. Balentine, a plaintiff may recover damages in proportion to a defendant’s percentage of fault in an accident, as long as the defendant’s fault outweighed any fault by the plaintiff. In cases in which the jury finds the parties to be equally at fault (or finds the plaintiff to be more than 50 percent at fault), the plaintiff recovers nothing.

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Car accidents fall under an area of tort law known as “negligence.” To make out a successful case, a plaintiff must prove four things:  1) the defendant owed him or her a duty of care, 2) the defendant breached that duty, 3) the plaintiff sustained actual damages, and 4) the plaintiff’s damages were caused by the defendant’s breach of duty. It seems simple enough, right?

Unfortunately, many cases are not as simple as they initially seem. Issues such as comparative fault – an allegation by the defendant that the plaintiff is responsible for some part of the accident – can quickly complicate matters. The resolution of such issues often depends upon the law of the state in which the wreck occurred. This Tennessee car crash case is an example.

Kentucky is one of about a dozen states that follow the “pure comparative fault” doctrine, under which a plaintiff’s damages are reduced in proportion to his or her fault, but he or she is still allowed to recover against the defendant for the defendant’s percentage of fault. In Tennessee, however, the rule is one of “modified comparative fault,” with the plaintiff only being allowed to recover if his or her fault is less than 50%. If the plaintiff is found to be 49% at fault, he or she can recover 51% of his or her total damages, but there is no recovery at all if the parties are determined to bear equal fault.

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Most civil lawsuits involving personal injury are subject to a statute of limitations, or time limit, after which a party has no legal recourse unless a special exception applies. When this happens, it is often said that the statute of limitations has been “tolled.” Both the length of the limitations period and the possibility of tolling can vary widely, depending upon the state in which the accident occurred.

The recent case of Beaumont v. Zeru discussed the extent to which an insurance company’s payment of certain benefits affects the time period during which an injured motorist may file suit against the responsible party.

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In Babich-Zacharias v. Bayer Healthcare Pharmaceuticals, Inc., a woman filed a product liability lawsuit against a pharmaceutical company in the U.S. District Court for the Western District of Kentucky after she allegedly suffered a number of adverse health effects from using the company’s intrauterine contraceptive device (“IUD”). According to her complaint, the woman developed idiopathic intracranial hypertension as a result of her use of the device that was designed to stay in the body for up to five years. If not properly treated, the condition can result in severe headaches and temporary blindness.

The woman claimed the patient pamphlet provided to her when the IUD was inserted failed to warn her of the link between her condition and use of the product. Despite this, the woman admitted the information stated further research regarding the medical product was needed. The woman also claimed that the medical device manufacturer failed to conduct sufficient clinical testing and intentionally concealed known risks associated with use of the device from patients and medical professionals in the company’s marketing products.

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