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An instructor for the Exotic Driving Experience at the Walt Disney World Speedway was killed when a Lamborghini in which he was a passenger lost control and slammed into a guardrail, which impaled the vehicle. lamborghini

The crash occurred on a closed track with no other vehicles. Patrons pay hundreds of dollars to race luxury vehicles, and there is some degree of assumed risk. However, theme park officials have a duty to patrons and employees to understand that when dealing with inexperienced drivers operating high-powered cars at excessive speeds, accidents are more likely to occur and appropriate precautions must be taken.

Specifically, there is much discussion within the racing community about why this vehicle was being driven in the opposite direction from that which the track was designed. While NASCAR vehicles at the track travel in one direction – the direction for which the track was designed – the luxury vehicles travel in another. The big concern with this is not only that painted lines on the road may have caused confusion, but also whether striking the guardrail in the other direction could have contributed to the fatal crash.

Guardrails on public roads have drawn a great deal of controversy and civil litigation in recent years. In November, a man won a federal whistleblower lawsuit after alleging the design of the guardrails was altered by the manufacturer without permission from transportation officials, and changes to the design of the guardrail heads made them likely to impale vehicles, rather than deflect them on impact.

Several other lawsuits by those who have been injured or killed in guardrail-related traffic accidents are pending.

In this case, it is possible decedent’s family could pursue a product liability case, though it would depend on whether the guardrail was designed to protect traffic coming from the opposite direction, or whether there were explicit warnings not to do so.

According to news reports of the case, the track allows users to pay between $200 to $400 to ride luxury vehicles for several laps at up to 120 mph around a 1-mile, closed track with a professional driver seated beside.

Here, the driver had just turned 24, and the drive was a birthday gift from his wife. The 36-year-old professional driver sat next to him in the passenger seat. Although customers pay for the experience of pretending to be race car drivers, this case clearly shows the danger is in fact very real.

At some point, the driver lost control of the vehicle, which began spinning. Decedent tried to grab the wheel to steer it to safely, but it wrecked into the guardrail. He had been wearing both a helmet and shoulder belts. Authorities pronounced decedent dead at the scene.

Authorities with the Florida Highway Patrol would later say the driver was not operating the vehicle recklessly or under the influence. He is cooperating with investigators and is not expected to face any criminal charges.

This is reportedly the third time in the last year that there has been a death at a speedway that grants customers permission to drive fast vehicles. Another occurred last fall in Indiana and another happened in New Jersey.

Also launching an investigation is the Occupational Safety & Health Administration, as this was an on-the-job fatality for the professional driver. His family, which includes a wife and 2-year-old daughter, may likely have workers’ compensation death benefits available to them. However, it’s advisable in these situations to explore all potential legal options with an experienced wrongful death lawyer before accepting any settlements.

If you have been a victim of a traffic accident, call Chalik & Chalik at (954) 476-1000 or 1 (800) 873-9040.

Additional Resources:

Man killed when Lamborghini crashes at race car track, April 13, 2015, Associated Press, Florida Today

More Blog Entries:

Towe v. Sacagawea, Inc. – Motorcycle Accident Comparative Fault, April 8, 2015, Florida Car Accident Lawyer Blog

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Florida’s “Dram Shop Act” is a way to hold accountable bars and other alcohol retailers for the actions of drunk patrons. Fashion Victim 2: Avant Garde Fashion

The law, codified in F.S. 768.125, allows people to sue an establishment that furnishes or sells alcohol to a person who becomes impaired and then injures or kills themselves or someone else.

Florida law is very specific in that it can only be filed when the impaired person was either a minor or someone who was habitually addicted to alcohol. To prevail, plaintiffs must show not only were these facts true, but the establishment also knew it or should have known it and failed to act accordingly.

While these claims are often brought on behalf of third parties who are injured or killed, they may in some cases be brought by the drunk driver or by the person representing his or her estate.

Our drunk driving injury attorneys know that such cases can be won, but will likely be subject to a finding of comparative fault. That is, the court may find the drunk driver responsible for at least a portion of his or her own injuries. Whatever damages were incurred by that driver and/or his survivors will be offset by the percentage of his own fault.

Still, these claims are often worth bringing, and ultimately, establishments that irresponsibly and illegally serve alcohol must be held accountable.

The case of Evans v. McCabe is one recent Florida dram shop case, reviewed recently by Florida’s Fifth District Court of Appeal. In this case, mother of a man killed while driving drunk after leaving a local bar appealed dismissal of her case by a lower court. She won her appeal, and the chance to take the case to trial.

According to court records, defendant is a dram shop and served alcohol to decedent on the night he died after crashing his car into a tree. His mother, as personal representative of his estate, sued the bar, alleging the employees, staff and agents who served alcoholic beverages to her son knew or should have known he was habitually addicted to alcohol, and yet served him anyway.

It was acknowledged decedent’s blood-alcohol level exceeded the legal limit at the time of his crash.

But defendant bar denied liability and after a significant amount of discovery, moved for summary judgment by asserting plaintiff had not established decedent was a habitual drunkard or that the bar staff had served alcohol to decedent with knowledge of his alleged condition as an alcoholic.

In opposition to the motion for summary judgment, plaintiff presented sworn affidavits from decedent’s girlfriend and family members, who testified decedent regularly patronized the bar and habitually consumed excessive amounts of alcohol while there.

Although plaintiff had sought video evidence of decedent’s presence in the bar that night, defendant had already discarded the evidence. Plaintiff accused defendant of spoliation of evidence.

Trial court, however, did not weigh the spoliation claim, instead granted summary judgment for defendant after finding plaintiff failed to meet her proof burden.

The appeals court, however, reversed. The court found genuine issues of material fact exist as to the two primary elements of dram shop liability – i.e., was decedent a habitual drunkard and did the defendant know about it?

Ultimately, those will be questions left for the jury to decide.

If you have been a victim of a traffic accident, call Chalik & Chalik at (954) 476-1000 or 1 (800) 873-9040.

Additional Resources:

Evans v. McCabe , April 10, 2015, Florida’s 5th DCA

More Blog Entries:

Cline v. Homuth – Accident Settlement Covered All Third-Party Claims, April 10, 2015, Fort Myers DUI Injury Attorney Blog

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A woman injured in a motorcycle accident failed to make timely or proper claims against the myriad of insurance companies from which she might have otherwise been able to collect, resulting in the court’s dismissal of her pending claims.motorcycle1

The case of Barlett v. Commerce Ins. Co. reveals why it is so imperative to consult early on with an experienced auto accident attorney who can carefully review your case and make informed recommendations regarding your legal options.

According to court records, plaintiff was injured in a New York crash in 2004, when the motorcycle on which she was a passenger was struck by a car. The motorcycle was owned and operated by the insured of a policy issued by Foremost Insurance Company. That firm provided up to $250,000 of uninsured/underinsured motorist coverage per person.

The motor vehicle driver was insured under a liability policy issued by Allstate Insurance Company, which offered up to $100,000 in coverage per person.

Meanwhile, plaintiff also had three other insurance policies. The first was provided by Progressive Insurance Company, which provided up to $250,000 in UM/UIM coverage. The second was an auto insurance policy for up to $250,000 per person from Commerce Insurance Company. The third was also from Commerce, an umbrella policy that allowed for up to $1 million for a single UIM claim. Her own policies were issued in her home state of New Hampshire.

While being in a motorcycle accident is never a desirable thing, this plaintiff was fairly well-situated to recover damages for her injuries.

A month after the accident, plaintiff’s attorney requested information from the motorcycle operator’s insurance company, and notified both Progressive and Commerce plaintiff intended to file claims for UIM coverage.

It took years of wrangling with the car driver’s insurance company, but finally, the firm agreed to render its policy limit to the plaintiff – $100,000. Plaintiff’s attorney notified the other insurance companies, and asserted that under New York state law, the companies either had to grant plaintiff permission to collect on that policy or pay her that amount within one month.

However, the law plaintiff attorney cited didn’t apply to any of the other insurance companies. The only company that responded to that request was Commerce, and it did grant plaintiff permission to collect on that $100,000 claim.

Then in 2011 – six years after the crash – plaintiff sued Commerce, Progressive and Foremost. None of the insurance companies disputed that each policy provides UIM coverage, that the accident and plaintiff’s injuries fall within the provisions of each policy, that Foremost was the main insurer while the other two were “excess” insurers and that plaintiff had to exhaust each layer of coverage before the next could be triggered.

Defendants move for summary judgment and plaintiff cross-appealed for a declaratory judgment.

Trial court first ruled the claim against Foremost was untimely, falling outside the state statute of limitations for UIM claims. It then ruled Commerce was required to “drop down” to provide primary coverage to plaintiff (for her first $250,000 in damages). The court further ruled Progressive was next in line, and would have to provide any excess coverage.

Later, the trial court reconsidered the claim against Progressive, and ultimately agreed plaintiff forfeited her right to collect anything from Progressive when she took the settlement with Allstate absent Progressive’s consent.

Finally, the court ruled Commerce had to provide under its umbrella policy any damages in excess of what was already paid.

All-in-all, this wasn’t horrible for plaintiff, and it still seemed she would be able to recover a significant portion of damages.

But then, on review from the New Hampshire Supreme Court, much was undone.

The court affirmed the dismissal of the Foremost claim for untimely filing and the claim against Progressive for failure to obtain consent before settling with Allstate. However, it reversed the finding that Commerce had to drop down to provide primary coverage.

While no one initially disputed Commerce was the provider of excess coverage, there was a clause in the policy that allowed for it to “drop down” to provide primary coverage if primary coverage from the other insurer was neither available nor collectible. The court found those terms ambiguous, but even interpreted in the light most favorable to insured, the reason the policy was not available or collectable was because plaintiff didn’t timely file her claim for coverage, a failure that was deemed unreasonable.

So in essence, failure to act timely and properly in filing one insurance claim had a domino effect on the others.

This is why it is so important to consult with an experienced legal team following a serious traffic accident.

If you have been a victim of a Fort Myers traffic accident, call Chalik & Chalik at (954) 476-1000 or 1 (800) 873-9040.

Additional Resources:

Report: Ignition Interlock Could Slash DUI Fatalities by 80 Percent, April 10, 2015, Fort Myers Motorcycle Accident Lawyer Blog

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The U.S. Supreme Court has agreed to decide whether a man must repay health insurance benefits he received following an auto accident from funds he secured from a personal injury lawsuit – funds he already spent. cashbriefcase1

The man was injured by a drunk driver and later successfully secured $500,000 through a settlement agreement with the at-fault driver’s insurance company. Unfortunately, that amount was insufficient to cover all of his medical bills, lost earnings, pain and suffering and legal fees resulting from the accident.

While he had been fighting that battle, he incurred some $120,000 in medical fees, which were paid by his employment health insurance company, as governed by Employee Retirement Income Security Act (ERISA). After the man paid off his legal fees and used the settlement money to care for himself and his young daughter, his insurance company demanded he personally reimburse the company. The case is Montanile v. Board of Trustees of the National Elevator Industry Health Benefit Plan.

Most federal appeals courts have ruled ERISA requires plaintiffs to reimburse insurers for health benefits, giving insurance companies first dibs on any awarded damages, settlement money or federal benefits.  However, two federal appeals courts – the Ninth and the Eighth – have held if the money is already spent, the insurer can’t put an equitable lien on it because it’s already gone.

The Montanile appeal comes from the U.S. Court of Appeals for the Eleventh Circuit.

Plaintiff in this case did attempt to negotiate with the insurance company after they demanded reimbursement, but those negotiations were ultimately fruitless and the company pursued litigation.

The district court sided with the insurance company, noting ERIS grants health insurance plans the right to equitable relief to recover money from the beneficiary of the plan. Equitable relief is judge-ordered relief intended to spare the insurance company from the expense of a civil lawsuit, the outcome of which would be uncertain, as well as any collection efforts. Instead, some courts have taken the view that this burden should be placed on the insured.

Still, the Eleventh Circuit affirmed the district court, and plaintiff appealed to the U.S. Supreme Court.

In one of the cases in which a federal appeals court decided with an injured person was Bilyeu v. Morgan Stanley Long Term Disability Plan. In that case, an accident victim received $30,000 in Social Security Disability Benefits. This was after she had received disability benefits from her employer health insurance plan. However, when the insurance company sought reimbursement and she’d already spent the money, the Ninth Circuit ruled she would not have to pay it back. In its ruling, the court cited two other U.S. Supreme Court decisions in which the court declined to order collection of money that was no longer in the debtor’s possession.

Where the U.S. Supreme Court lands on the issue could have major implications for those injured in motor vehicle accidents and others who rely on employer-issued health insurance plans.

If you have been a victim of a traffic accident, call Chalik & Chalik at (954) 476-1000 or 1 (800) 873-9040.

Additional Resources:

Montanile v. Board of Trustees of the National Elevator Industry Health Benefit Plan, March 27, 2015, U.S. Supreme Court

More Blog Entries:

Cline v. Homuth – Accident Settlement Covered All Third-Party Claims, April 10, 2015, Fort Myers Vehicle Accident Lawyer Blog

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Every two minutes in the U.S., someone is injured in a crash involving a drunken driver. Every 52 minutes, someone is killed due to the reckless actions of an impaired driver.cellphone2

Spring in Florida brings many visitors, from rowdy spring breakers to family vacationers, and the roads are often more packed than the beaches. Unfortunately, too many of those behind the wheel have chosen to imbibe before driving.

Mothers Against Drunk Driving has long advocated for educating people on smarter alternatives to drunk driving. Historically, that has typically involved calling a friend or a taxi service. But now, it could also mean downloading a ride-sharing app.

Uber, one of a number of popular ride-sharing services utilized in many large cities throughout the country, launched in South Florida six months ago. Specifically, operations are now up-and-running in Miami-Dade and Hillsborough counties. It was recently introduced in Broward, though local leaders are sorting through the regulatory framework to determine what the operational guidelines should be.

MADD is now partnering with Uber to promote use of the service as an alternative to drunk driving, calling the service “safe, affordable and reliable.”

Certainly, our experienced traffic accident lawyers don’t advocate for one ride-sharing service over another. Lyft is another that has gained a great deal of popularity among consumers in South Florida over the last two years.

Whatever service you use, the important thing to note is that there is potential to reduce the amount of drunk driving accidents in Fort Myers and elsewhere. This will be especially true as more people come to trust these services, which provide access to a network of vetted drivers stationed throughout the city who agree to pick up customers wherever they are and get them safely to their destination.

According to reports released by the ride-sharing services, entrance into certain markets has coincided with a 10 percent dip in DUI arrests. In California, MADD notes that since Uber began operating there, the number of drunk driving accidents among motorists under the age of 30 plummeted by about 60 statewide – or about 6.5 percent In the three years since ride-sharing has taken off in that state, that has amounted to a prevention of 1,800 collisions.

As part of the partnership with MADD, Uber runs occasional campaigns that donate $1 for every ride taken to the safe driving advocacy group.

Of course, every city is different, but the idea is fairly straightforward: If people know there is a safe, affordable and relatively easy-to-use alternative to getting behind the wheel drunk, or with a drunk driver, they are likely to take advantage of it. This is particularly true considering the average cost for a first-time DUI can stretch upward of $10,000.

Of course, some note that other factors may be at play too, including increases in sobriety checkpoints and more aggressive anti-DUI campaigns. But drunk driving is a multifaceted problem, and as such, requires an multi-pronged approach.

Florida reports nearly 700 deaths annually attributed to drunk drivers, which accounts for about one-third of the total number of traffic fatalities.

In 2014, the state legislature allowed judges to impose the use of ignition interlocks for first-time offenders and mandated them for those accused of more serious offenses or multiple offenses. A pending law considers whether to impose ignition interlocks for all offenders, regardless of prior history.

If you have been a victim of a traffic accident, call Chalik & Chalik at (954) 476-1000 or 1 (800) 873-9040.

Additional Resources:

Time for South Florida to be Vigilant Against Drinking and Driving, April 8, 2015, By Colleen Sheehey-Church, Sun-Sentinel

More Blog Entries:

Cline v. Homuth – Accident Settlement Covered All Third-Party Claims, April 10, 2015, Fort Myers Accident Lawyer Blog

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A 92-year-old driver in Central Florida could be cited for failing to yield the right-of-way to another vehicle, resulting in the second vehicle careening off the road into a work crew, killing three. crash13

Early analysis indicates the elderly driver in Lake County was trying to make a right turn onto U.S. 27. But in so doing, he did not make his turn into the right-most lane, as required, but instead pulled into the center lane, causing him to collide with a vehicle driven by a 20-year-old woman. The impact sent the young woman’s vehicle into the work site, where utility workers were working in a roadside ditch. The workers killed, three men from Georgia, were 34, 35 and 40.

Authorities say the crash investigation could take months, but preliminary information suggests the elderly driver was at-fault. He will likely not face criminal charges, but the accident has sparked yet another discussion about the safety risks posed by elderly drivers. The Florida Highway Patrol reports there are some 100,000 registered drivers over the age of 90 in this state.

It’s worth noting if this driver is cited for the wreck, it will be his first ticket ever. It’s also important to point out authorities have not said the man’s age (i.e., failing eyesight, loss of hearing or cognitive deficiencies) had anything to do with the crash.

But certainly, many people at his age are struggling with those ailments – and more – and our Fort Myers car accident lawyers know many younger relatives struggle with how to open the discussion of when it might be time for an elder loved one to limit driving, or hang up the keys.

A recent study by AAA indicated 1 in 6 vehicles on the road today is being driven by someone who is 65 or older, and that figure is expected to grow as Baby Boomers reach retirement age. That same study indicated for the most part, seniors get a bum rap with regard to their perception as more collision-prone. When surveyed, 90 percent of older drivers say they haven’t received a ticket or been in an accident within the last 2 years. They also generally don’t talk on their cell phones while driving (about 34 percent over 75 say they have done it, compared to 85 percent of drivers between the ages of 25 and 39). What’s more, 8 in 10 of those older drivers favor health screenings for aging drivers, and the requirement to renew one’s driver’s license in person.

What’s more, fatalities among elderly drivers fell by 31 percent between 1997 and 2012.

Still, there remains concern. The National Highway Traffic Safety Administration offers the following advice on how to discuss driving with an aging loved one:

  • Collect information before opening the conversation. Ride with your loved one while he or she is driving and observe whether they obey all traffic signals, yield appropriately, maintain a proper speed, make safe lane changes and stay in their correct lane.
  • Outside the vehicle, note things like confusion, forgetfulness, disorientation, dizziness, loss of coordination or difficulty following simple instructions.
  • Ask for input from your loved one’s friends, neighbors and medical professionals.
  • Discuss any arising concerns with your loved one. Identify problems that might be correctable, whether he or she recognizes their driving limits (i.e., limiting driving to daytime hours) or whether alternative transportation options should be sought.
  • Once a plan is developed, review it periodically with your loved one.

Of course, we want to see our loved ones happy and independent for as long as possible. That’s why it’s best if the change is gradual. The NHTSA recommends contacting local chapters of AAA, the AARP, area agencies on aging and driver rehabilitation specialists who may be able to help guide the discussion and plan of action.

If you have been a victim of a traffic accident, call Chalik & Chalik at (954) 476-1000 or 1 (800) 873-9040.

Additional Resources:

FHP: Elderly man in crash that killed 3 has clean driving record, April 3, 2015, By Desiree Stennett, Orlando Sentinel

More Blog Entries:

Truck Driver Awarded Workers’ Compensation After Falling Asleep at the Wheel, April 4, 2015, Fort Myers Accident Lawyer Blog

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While it’s true that most auto accident cases end in a settlement agreement before trial, it’s imperative that those agreements be meticulously read before pen touches paper. yellowpen

There are a number of reasons, and as the recent case of Cline v. Homuth shows, one of those is the possibility of releasing more defendants (or potential defendants) than intended.

This case, before a California appellate court, involved a motorcyclist who was struck by a teen driver, whose grandmother was in the passenger seat next to him. The motorcyclist suffered severe injuries, and later sued the driver and his parents.

When he signed off on a settlement agreement with the teen’s parents, plaintiff said he never intended to release the grandmother from liability. In fact, he planned to pursue legal action against her for negligent supervision. However, language within the settlement agreement barred him from such action, according to the court’s ruling.

Court records show motorcyclist was struck by a teen driving with a provisional license, which required adult supervision. The vehicle he was operating was owned by his parents, and his grandmother was the sole passenger and thus considered the driver’s “supervisor.” The motorcyclist struck the back of the vehicle, but based on the underlying facts, investigators determined the teen driver was at-fault for the traffic accident.

The teen’s parents had an insurance policy that allowed for a bodily injury limit of $100,000 per person. Plaintiff’s attorney requested the full policy limit. In a move that is rare for an insurance company, insurer agreed to this request, likely noting medical bills alone for plaintiff’s injuries far exceeded $100,000.

On the release that was signed in conjunction with the agreement, it indicated payment of $100,000 would release the teen and both of his parents from existing and future liabilities. But the release also stated the release discharged of all actions those individuals “and any other person, corporation, association or partnership responsible in any manner or degree for injuries” to the plaintiff.

No where in the document was the grandmother named. (Neither was the city, which had been carrying out construction work near the crash scene, and against whom plaintiff was also exploring litigation.) As the insurance agent would later point out, neither he nor his employer had any right to request a release of liability on behalf of anyone other than their clients.

But when plaintiff filed action against the grandmother for negligent supervision, she responded that the earlier release pertained to her alleged liability, as she fell into the “any other person” category.

Evidence was presented that at no point was there a discussion between any of the parties about releasing the grandmother from liability, and plaintiff insisted he would not have signed the settlement agreement had he known he would forfeit the right to any further third-party action.

Grandmother insisted she was a third-party beneficiary of that release, even if she wasn’t specifically named. Trial court agreed and the appeals court affirmed. The court ruled plaintiff failed to present sufficient evidence countering the grandmother’s claim that she was covered under the terms of the earlier settlement agreement.

This is why it’s so important that the exact language of every settlement agreement be carefully reviewed by an experienced injury attorney.

If you have been a victim of a traffic accident, call Chalik & Chalik at (954) 476-1000 or 1 (800) 873-9040.

Additional Resources:

Cline v. Homuth , March 30, 2015, California Court of Appeal, Third Appellate District

More Blog Entries:

Truck Driver Awarded Workers’ Compensation After Falling Asleep at the Wheel, April 4, 2015, Fort Myers Car Accident Lawyer Blog

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It’s estimated that each day in the U.S., approximately 30 people are killed in drunk driving collisions. According to a new study, published by the American Journal of Public Health, if ignition interlock devices were installed standard in every vehicle – not just in those driven by prior DUI offenders – the number of DUI-related deaths could be reduced by 80 percent.beer

The Centers for Disease Control and Prevention reports more than 10,300 people were killed in 2012 as a result of drunken drivers’ careless actions. That accounts for one-third of all motor vehicle deaths. Of these, more than 1,100 are children under the age of 14.

In most states, including Florida, drunk drivers who are arrested and retain their driving privileges must at least temporarily have ignition interlock devices installed at their own expense if they wish to continue driving. Although some places make it mandatory for all offenders, Florida gives judges the option for first-time offenders. Only after repeat offenses is the device required.

Ignition interlock devices are essentially breathalyzer machines installed on the vehicle dash board. In order for the vehicle to be operational, a driver has to breath into the device and wait for it to calculate the driver’s blood-alcohol content. If the calculation results in a BAC that is above the legal limit, the vehicle ignition will lock.

It’s known that these devices significantly reduce DUI recidivism rates – by some measures up to 70 percent. But it only works for those who have the device and only for as long as they have it.

Researchers with the University of Michigan Injury Center focused on determining how many lives might be saved over the course of the next 15 years if ignition interlocks were issued standard with every new automobile.

Study authors culled information from the National Automotive Sample System’s General Estimates System, as well as the federal Fatality Analysis Reporting System. The team looked at both fatalities and non-fatal injuries attributed to drunk drivers between 2006 and 2010. Researchers took into account that older vehicles wouldn’t be retrofitted with the devices, but theorized on the effect of all new model vehicles having the mechanisms. They also analyzed what it would mean if the devices were set to measure blood-alcohol content at 0.02 grams per deciliter, versus what many devices are currently set to, which is 0.04.

What they concluded was this:

  • 85 percent of all alcohol-related car accidents resulting in death would be prevented.
  • Between 84 and 88 percent of non-fatal injuries would be avoided.

In terms of the human effect, this means more than 59,500 people would be spared a drunk driving fatality during those 15 years. It also means another 1.25 million people would avoid a non-fatal drunk driving injury.

The group that would see the greatest benefit, researchers determined, would be those between the ages of 21 and 29. This cohort is recognized as having the highest percentage of drunk driving deaths.

Another noteworthy point is that while it would cost about $400 to install and maintain each device, study authors say that cost would be outweighed by the savings to society within 36 months of implementation.

Researchers say they expected the results of such a program would be significant. However, they were impressed by the sheer number of deaths that might be prevented. The lead researcher called the results “surprising.”

If you have been a victim of a traffic accident, call Chalik & Chalik at (954) 476-1000 or 1 (800) 873-9040.

Additional Resources:

Modeling the Injury Prevention Impact of Mandatory Ignition Interlock Installation in all new U.S. Vehicles, April 1, 2015, American Journal of Public Health

More Blog Entries:

Towe v. Sacagawea, Inc. – Motorcycle Accident Comparative Fault, April 8, 2015, Fort Myers Drunk Driving Injury Lawyer Blog

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A motorcycle accident victim may proceed with his lawsuit against a property owner – though not a real estate agent – after state high court justices ruled against trial court assertion that the rider was 100 percent responsible for his injuries. motorcyclist

The case, Towe v. Sacagawea Inc., was weighed recently by the Oregon Supreme Court, and it’s somewhat unique from most motorcycle cases in that it occurred on a private road allowed for accesses to several pieces of private property. That means it’s framed as a premises liability case (i.e., failure to keep the property in reasonably safe condition) as opposed to one of auto negligence.

But Florida has its fair share of private access roads too, and we also have motorcycle riders year-round, so this is a case worth examining.

According to court records, one of the private property owner defendants in the case put a cable across the point at which the road diverged onto their property. The idea was to prevent entrance to a quarry that was at the end of that access road.

Plaintiff had been perusing properties for sale in the area. The real estate company posted a sign on the main road indicating one of the properties off the private access road was for sale.

Plaintiff entered the access road for the purposes of driving by the property for sale. There was no sign or barrier blocking vehicles from entry onto private access road where the cable had been placed just 10 to 12 inches off the ground. It was weathered and rusted, and the posts that held it on either side were weathered and rusted too. There was a “No Trespassing” sign that was found on the ground later. Workers at the quarry would later testify the sign was supposed to hang on the cable, but it kept falling off.

The motorcyclist didn’t see the cable before he struck it. Just before impact, he glanced back it his passenger for maybe half a second. When he turned around, they struck the cable. Plaintiff suffered serious injuries.

It was later revealed plaintiff had previously known about the cable because he had worked at the quarry for about two weeks approximately one year earlier. However, he noted there were several days in which the cable was not up. He admitted he forgot about it entirely as he made his way up the access road to view the for-sale property.

Trial court ruled there was no possible way a reasonable jury could reach any other conclusion than that plaintiff was 100 percent responsible.

An appeals court affirmed, but on different grounds: That neither the real estate company nor the property owner owed him a duty of care.

The Oregon Supreme Court reversed as to the property owner, but affirmed as to the realtor.

Oregon recognizes a system of modified comparative fault, wherein a plaintiff who is deemed more than 50 percent negligent cannot collect damages. In Florida, courts follow a pure comparative fault model, meaning plaintiffs can be up to 99 percent liable for their own injuries and still collect 1 percent of damages, theoretically.

In this case, the Oregon Supreme Court disagreed with trial court’s assertion that there was no question plaintiff was 100 percent liable as a matter of law. The trial court had ruled that because plaintiff wasn’t looking ahead, he was essentially blindfolded and no amount of warning signs would have prevented the accident because he wasn’t paying enough attention.

However, the state supreme court ruled this overstated the evidence. Motorcyclist had only turned around for a half second. Viewed in the light most favorable to plaintiff, a quick glance would not absolve property owner of responsibility to keep property safe. At most, that quick, backward glance could be a point from which to argue comparative fault, but it didn’t heap all the fault onto the motorcyclist.

Therefore, the case was remanded for trial.

If you have been a victim of a traffic accident, call Chalik & Chalik at (954) 476-1000 or 1 (800) 873-9040.

Additional Resources:

Towe v. Sacagawea Inc., March 26, 2015, Oregon Supreme Court

More Blog Entries:

Florida Church Van Crash Kills 8, Injures 10, April 1, 2015, Fort Myers Motorcycle Accident Lawyer Blog

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A truck driver who fell asleep at the wheel should be awarded workers’ compensation benefits for the injuries he suffered as a result of the crash.truck1

The decision highlights the fact employees involved in motor vehicle accidents may seek compensation from their employer so long as the crash occurred in the course and scope of employment – even if the worker was actually at-fault.

The whole purpose of workers’ compensation benefits is efficient, fast compensation for people hurt on-the-job. Workers don’t have to prove negligence by the employer, and even if the worker acted in way that contributed to some degree to the injury, they may likely still collect.

Truck driver fatigue is a major issue affecting many professional drivers and interstate carriers. It’s a primary cause of Fort Myers truck accidents, and it’s the main reason federal regulators have enacted mandatory rest periods for those in the industry.

A company who employs a trucker who falls asleep at the wheel is likely to have to pay damages to any third party injured as a result. But what the New Hampshire Supreme Court ruled in Appeal of Brandon Kelly is that the driver could seek compensation as well, without proving his weariness was directly related to his work.

According to court records, plaintiff was traveling from a job site in Massachusetts to the company headquarters in New Hampshire, driving the company truck. However, on the way, he fell asleep at the wheel and struck a utility pole. Although he did not strike anyone else, his own injuries were severe, and required the amputation of a lower leg.

He filed a request for workers’ compensation benefits, and the company’s insurer denied the claim. A hearing was set, and the division of labor awarded benefits. The company appealed to the workers’ compensation appeals board, which denied benefits. The board ruled while it was undisputed the worker was acting in the course of his employment at the time, worker failed to prove his injuries arose out of his employment because he didn’t show he was abnormally tired as a result of his employment.

The board indicated the accident stemmed from a “mixed risk” situation, one in which employment conditions and personal risks combine to result in injury. An example would be a person with heart trouble who dies doing work that put stress on his heart.

In a mixed risk situation, the claimant has a higher burden of proof to show legal and medical causation that the injury was in fact work-related.

The New Hampshire Supreme Court didn’t rule on whether this was or wasn’t mixed risk, but assumed for the sake of argument it was. Even so, the board’s logic was erroneous because the worker’s injuries were the result not of him sleeping but of a truck accident. That is, his injuries would not have resulted but for him being behind the wheel of a truck, which he was doing as part of his work.

Whether he was tired because his employer forced him to work too many hours in a certain time period or whether the worker suffered from unrelated insomnia did not matter, the court ruled. The driver’s injuries clearly arose out of the course of employment and were within the scope of employment. Thus, he deserved to obtain worker’s compensation benefits.

If you have been a victim of a traffic accident, call Chalik & Chalik at (954) 476-1000 or 1 (800) 873-9040.

Additional Resources:

Appeal of Brandon Kelly , March 20, 2015, New Hampshire Supreme Court

More Blog Entries:

Tempel v. Benson – Accepting Payment in Crash Case Could Mean Negating Lawsuit or Appeal, March 30, 2015, Fort Myers Truck Accident Lawyer

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