Personal Injury Updates

Information about Personal Injury in Washington State

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Unintentional Injury is the Leading Cause of Death for Kids in the U.S.

Categories: Other Physical Injuries

By Arthur D. Leritz. Posted on .

The CDC recently came out with a study that found that unintentional injuries are the leading cause of death for kids aged 1-19 years. [1]  The CDC analyzed mortality data from 2000 – 2009 from the National Vital Statistics System by age group, sex, race/ethnicity, injury mechanism and state.  The study contained data that is both alarming and encouraging:

  • From 2000 to 2009, the overall annual unintentional injury death rate decreased 29%
  • The rate decreased among all age groups except newborns and infants aged <1 year; in this age group, rates increased from 23.1 to 27.7 per 100,000 primarily as a result of an increase in reported suffocations
  • The poisoning death rate among teens aged 15–19 years nearly doubled, from 1.7 to 3.3 per 100,000, in part because of an increase in prescription drug overdoses
  • Childhood motor vehicle traffic–related death rates declined 41%; however, these deaths remain the leading cause of unintentional injury death in age groups 5–19 years, accounting for 67% of unintentional injury deaths and 28% of deaths from all causes among those aged 15–19 years in 2009
  • Drowning, other transportation, fire/burn, fall, and all other unintentional injuries also showed significant linear declines, whereas both suffocation and poisoning showed significant linear increases (30% and 80%, respectively)
  • Mississippi had the highest unintentional death rate for kids aged 1-19 in 2009, with 25.1 deaths per 100,000, more than twice the national average
  • Massachusetts  had the lowest unintentional death rate for kids aged 1-19 in 2009, with 4.0 deaths per 100,000
  • Delaware had the biggest decrease – its overall unintentional injury death rate decreased 51% from 2000-2009[2]

According to the CDC, unintentional injuries occurring in 2005 that resulted in death, hospitalization, or an emergency department visit cost nearly $11.5 billion in medical expenses.[3] The study also found that these injuries are preventable and effective interventions for reducing childhood injuries are less costly than the medical expenses and productivity losses associated with those injuries.[4]



[1] http://www.cdc.gov/mmwr/preview/mmwrhtml/mm61e0416a1.htm?s_cid=rss_injury411

[2] Ibid.

[3] Ibid.

[4] Ibid.

I Was Hurt Due to the Negligence of a State Worker – What Do I Do?

Categories: Premise/Slip and Fall

By Arthur D. Leritz. Posted on .

Did you know that a governmental body can only act, and thus be negligent, through its employees?[1]  Like the federal government prior to 1946, the State of Washington was immune from tort liability prior to 1961.  In that year the legislature enacted the Tort Claims Act, permitting claims against the state.[2]  The Washington Supreme Court has stated that the waiver of sovereign immunity “functions as a promise that the State and its agents will use reasonable care while performing its duties at the risk of incurring liability.”[3]  Immunity for the state’s political subdivisions and for municipalities was eliminated in 1967,[4] subject to certain conditions.  As a result, state agencies and municipalities are subject to liability for damages arising out of their tortious conduct in much the same manner as a private person or corporation.

To assert a negligence claim against the state, the injured party must show that the state’s conduct would be actionable if it were done by a private person in a private setting. If the injured party would have no cause of action against a private person for the same conduct, then he or she has no cause of action against the state.[5]

In order to prosecute an action against the state for the negligence of a state employee, an injured party must first file a claim with the state’s risk management office.  Until the claim is presented and filed, the injured party cannot commence a lawsuit against the state.  The applicable statute of limitations is not affected by the claim presentment and filing requirement. Instead, the applicable statute of limitations begins, and continues to run, as if no claim had been presented.

A claim presented to the state should be signed and accurately describe the conduct and circumstances leading to the injury or damage. The claim shall also include:

  1. A description of the injury or damage;
  2. State the time and place the injury or damage occurred;
  3. Sate the names of all known persons involved;
  4. Include a statement of the amount of damages claimed; and
  5. Include a statement of the actual residence of the claimant at the time of presenting the claim and for the six months immediately prior to the time the claim arose.

A similar claim-filing requirement is typically imposed by political subdivisions and municipalities.  Where a claim-filing requirement has been adopted, a properly filed claim is a precondition to filing a lawsuit.  If the injured party waits until shortly before the expiration of the statute of limitations to file an action, but has not observed the sixty-day waiting period, the claim may be barred.



[1] RCW 4.92.090.

[2] Ibid.

[4] RCW 4.96.010.

Traffic Citations and Personal Injury Lawsuits

Categories: Auto Accidents

By Arthur D. Leritz. Posted on .

If I am in an accident and the other driver gets a ticket, can I use that as evidence if I sue?

If you have ever caused a collision or been injured in a collision through the fault of someone else, this question has probably crossed your mind.  In most traffic collisions, the investigating officer typically issues a traffic citation to the at-fault driver at the scene.  Sometimes however, the facts are in dispute so the at-fault driver may not get a ticket at the scene, but may receive a citation in the mail at a later date.

If the at-fault driver is ticketed, the Supreme Court of Washington has held that evidence of the citation cannot be used in a later civil suit for personal injuries to prove fault. [1]  The public policy behind this decision is to prevent traffic courts from being overwhelmed with drivers who fear the broader implications if the citation is deemed committed.  If evidence of the citation was admissible to prove guilt in a later civil suit, there would be incentive for motorists to vigorously contest cases when only small or nominal damages were at stake, which would needlessly clog the traffic court system.

What do I do if I get a subpoena to testify at a contested citation hearing?

If you are injured in a collision and the at-fault driver is requesting a hearing to contest the citation, then you must respond to the subpoena and attend the hearing.  If you do not appear, the at-fault driver may get the citation overturned.  While this has no bearing on any later civil lawsuit for personal injuries, you should appear and provide testimony as to what occurred as it is your duty as a citizen to do so and you are required to comply with the subpoena.

In most instances, when you appear to testify the at-fault party may decide to admit the citation occurred and you will not need to testify.  If you do need to testify, it is a good idea to note the time when the hearing starts and ends –that way, you can order a copy of the transcript of the hearing.  Most municipal courtrooms are wired to record audio, and you can order the CD of the hearing for a small fee.  This is a good idea because while you cannot use the citation as evidence in a later suit for personal injuries, you can use the testimony of the at-fault party at the contested hearing in a later suit if the at-fault party decides to change his story.



[1] The case is Hadley v. Maxwell, 144 Wn.2d 306, 27 P.3d 600 (2001).

Vehicle Recall Notices vs. Technical Service Bulletins – What’s the Difference?

Categories: Personal Injury Resources

By Arthur D. Leritz. Posted on .

Chances are, if you own a car or have watched the news lately, you are familiar with vehicle recall notices issued by the National Highway Traffic Safety Administration (NHTSA) for vehicle defects that can potentially be dangerous.  A safety recall can either be initiated by a NHTSA investigation or by the manufacturer.  Once aware of a potential safety issue, the manufacturer is obligated to notify the owner that the vehicle has a problem that affects its safety.  The owner then can have the car fixed, free of charge.

What I was surprised to learn back when I bought my first car is that this strict notification system only applies to safety issues – not technical service bulletins or other issues not affecting driver or passenger safety.  A “technical service bulletin” is created by the manufacturer and deals with parts or service issues that have cropped up after a vehicle is manufactured, but that typically do not affect the car’s safety.

In my case, a few years ago I took my then new car to the dealer because the MIL (malfunction indicator light) kept coming on.  An annoying problem, but the car seemed to drive fine otherwise.  Once the problem was identified (a defective mass airflow sensor) it was easily fixed – but the dealer wanted to charge me several hundred dollars for the fix.  Fortunately, the nice person at the counter looked up the service bulletin for my year and model and was able to quickly determine that the part was defective and that the dealer was replacing these parts free of charge.

I was fortunate that I had an honest counter representative, but others may not be so lucky.  I can see how a person could be taken advantage of in this situation.  Fortunately, NHTSA maintains a database of all technical service bulletins for all makes and models and there are other web sites that provide a similar service.

So, if your MIL comes on or your car is performing poorly, go online and see if there are any technical service bulletins for your car.  It could mean the difference between and expensive fix and a free one.

Winter Weather and Common Questions

Categories: Practical Tips You Can Use

By Arthur D. Leritz. Posted on .

Now that wintery, snowy weather is clearly upon us, this blog will address some of the common questions that may arise due to the weather.

My neighbor’s tree fell on my house – who is responsible for the damage?

This seems to be an all too common problem recently.  If your neighbor has a large tree (or any size tree) that falls on your property, your insurance policy will cover the damage.  Your homeowner’s policy will cover damage to your property, regardless if it was caused by your neighbor’s tree.  The exception is damage caused by melting snow.  Typically, your homeowner’s policy will only cover damage caused by melting snow if you have flood insurance.  It is important to check your policy and update it as necessary.

I have a sidewalk on my property: do I have to clear it?

Well, the answer is “it depends.”  If you are a business owner then yes, you do.  Washington state does not follow the “natural accumulation rule,” so if your property has a  parking lot or sidewalk on it, it is your responsibility to clear it.  The law does not distinguish between natural and artificial conditions, so if you have snow, remove it. The duty to protect people from harm is the same in both situations.  If you are a private homeowner, then the answer, surprisingly, is no.  Absent any local ordinance, there is no duty to clear the sidewalk in front of your house.  However, just about every city, town and county in Washington has an ordinance requiring homeowners to clear their sidewalks in snowy weather.  In addition, you can be fined if you fail to keep your sidewalk cleared as a homeowner. So, be safe and keep that sidewalk clear.

Car accidents:  is it my fault if I skidded on snow or ice?

If you are involved in a collision in snowy or icy conditions, first call 911.  If you are the unfortunate participant in a collision involving snow or ice, there is no “free pass” for snow and ice conditions.  If you crash into someone because of the weather, you are still liable.  In fact, the law imposes a heightened duty, not a lessened duty of ordinary care  in adverse weather.  So, if you know there are snow and ice conditions, slow down, increase your following distance and drive with your lights on.

If you have any questions concerning adverse weather conditions and potential liability arising from those conditions, the attorneys at Adler Giersch, PS are ready and willing to assist.  So, stay warm, keep dry and be safe out there.

Traffic Fatalities Down Nationally but Distracted Driving An Increasing Problem

Categories: Auto Accidents

By Arthur D. Leritz. Posted on .

US Transportation Secretary Ray LaHood announced recently that the updated traffic fatality data for 2010 indicated that highway deaths are at the lowest levels they have been in six decades.[1]  This is apparently due in part to safer roadways and the vast improvements in vehicle safety that have occurred since 1949 – the last time we recorded a similar number of highway deaths.

This is indeed good news, but while vehicle technology and corresponding vehicle safety has changed for the better, distracted driving injuries and fatalities are becoming an increasing problem.  Because of this problem, NHTSA recently unveiled a new measure of fatalities related to distracted driving, called “distraction-affected crashes.”  This new measure is designed to more closely track those fatalities in which a driver was distracted by dialing a cellphone, texting, or was distracted by an outside person or event.  Under the new refined system, the new data released by NHTSA using its refined methodology showed an estimated 3,092 fatalities in distraction-affected crashes in 2010.[2]

NHTSA also recently completed a national survey that highlights the problem:

  • Three fourths of survey respondents indicated they answer cellphone calls on most trips.
  • Survey respondents acknowledged few situations when they would not use their phone or text – but over one third felt unsafe when riding in vehicles in which the driver is texting and support bans on texting and cellphone use.[3]

So what does all of this mean?  Obviously it is a complicated and complex problem that is not fully understood.  I think part of the problem is that most drivers assume that they can handle all distracted driving situations, even when the data is clear that is not true.  So, be safe and don’t use your cellphone while driving for anything except emergencies.  I am reminded of a sign that I saw at a local headstone company – “Put the cellphone down and stop texting – we can wait.”  Truer words were never written.

 



[2] Ibid.

[3] Ibid.

“Outrageous” conduct and the law

Categories: Personal Injury Resources, WA State Insurance Law

By Arthur D. Leritz. Posted on .

Many of us see things that are outrageous every day – whether it’s on tv, in our community or on our daily commute to work.   Did you know that under Washington law there is an actual claim for outrage caused by a third party?  A claim for outrage is also known as the intentional infliction of emotional distress.  To recover for outrage, you must prove the following elements:

  • Extreme and outrageous conduct;
  • Intentional or reckless infliction of emotional distress; and
  • Actual result to you of severe emotional distress.[1]

To prove extreme and outrageous conduct, it is not enough to show that the defendant acted intentionally or even criminally, or that he or she intended to inflict emotional distress, or even that his or her conduct can be characterized by malice.  Liability for outrage exists only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community.

For example, a claim for outrage has been found to exist in the stalking of a former girlfriend[2] and an employer’s intentional exposure of employees to toxic chemicals[3].  The conduct must result in severe emotional distress to the plaintiff.  While bodily harm would be an indication of severe emotional distress, severe emotional distress short of bodily harm is sufficient.



[1] Corey v. Pierce County, 154 Wn.App. 752, 225 P.3d 367 (2010).

[2] Kloepfel v. Bokor, 149 Wash.2d 192, 66 P.3d 630 (2003).

[3] Birklid v. Boeing Co., 127 Wash. 2d 853, 904 P.2d 278 (1995).

The Recreational Use Statute: It’s Not Always Fun and Games

Categories: Premise/Slip and Fall

By Arthur D. Leritz. Posted on .

Probably the last thing on your mind when launching your boat, going camping  or digging for clams on a beach is “What happens if I get hurt?  What if my injury is due to a dangerous condition?”  If you have had to think about these unfortunate “what ifs” for you or someone in your family, the following is a summary on the law in Washington State when it comes to private or public land being used for recreational purposes.

What the Statute Does:

The Recreational Use Statute, RCW 4.24.210, provides immunity for “unintentional injuries” when the land is open to the public for recreational use free of charge.  The statute encompasses all recreational activities that are commonly conducted outdoors.[1]

What the Statute Does Not Do:

The Statute does not necessarily immunize landowners from intentional injuries, even if they are committed by third parties.  A landowner can be held liable for intentional injuries caused by third parties if: (a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person’s conduct, or (b) a special relation exists between the actor and the other which gives to the other a right to protection.

The Recreational Use Statute also does not limit a landowner’s liability when injuries are sustained by reason of a “known dangerous artificial latent condition for which warnings have not been conspicuously posted.”  A dangerous condition is defined as one that poses an unreasonable risk of harm.  A “latent” condition is one which is not readily apparent to the recreational user.  A condition is not “latent” within the meaning of the statute if the object itself is readily apparent to the user, even if the harm that it presents is not.

As always, when engaging in any recreational activity on land open to the public, check for warning signs, dangerous conditions and be observant.  If you notice something that is a potential danger, notify the landowner.



[1] the cutting, gathering, and removing of firewood by private persons for their personal use without purchasing the firewood from the landowner, hunting, fishing, camping, picnicking, swimming, hiking, bicycling, the riding of horses or other animals, clam digging, pleasure driving of off-road vehicles, snowmobiles, and other vehicles, boating, nature study, winter or water sports, viewing or enjoying historical, archaeological, scenic, or scientific sites.

Dog Ownership and Strict Liability: What You Should Know

Categories: Personal Injury Resources

By Arthur D. Leritz. Posted on .

At some point in your life, you’ve probably either owned a dog or had a dog in your family.   You love them, feed them, pamper them, and buy them whatever they need, but you probably have not thought about what could be the most important aspects of owning a dog – the potential liability a dog bite could bring and the injuries it can cause.

In the State of Washington, if you own a dog and it bites someone, you are strictly liable.  That means that the injured party does not need to establish any negligence on your part – simple ownership is enough.  In Washington State, an injured party needs to establish the following elements to make a claim against the dog owner under the strict liability rule:

  1. That the defendant is the owner of the dog;
  2. That the dog bit you; and
  3. That you were in or on a public place or lawfully in or on a private place including the property of the owner of the dog when bitten.[1]

This strict liability applies regardless of the former viciousness of the dog or the owner’s knowledge of such viciousness.[2]  In other words, there is no “first bite free” under the law.  This strict liability does not apply in all dog bite situations.  For example, proof of provocation of the attack by the injured person is a complete defense to an action for damages.[3]  Also, strict liability does not extend to the landlord of the dog owner while the dog is on a rented or leased property.[4]

Dog bites and kids:

Especially alarming are the statistics for dog bites to young children.  According to the CDC:

  •  50% of dog attacks involved children under 12 years old.
  • 82% of dog bites treated in the emergency room involved children under 15 years old.
  • 70% of dog-bite fatalities occurred among children under 10 years old.
  • Bite rates are dramatically higher among children who are 5 to 9 years old.
  • Unsupervised newborns were 370 times more likely than an adult to be killed by a dog.
  • 65% of bites among children occur to the head and neck.
  • Boys under the age of 15 years old are bitten more often than girls of the same age.[5]

What you can do:

There is no way to guarantee your dog will never bite someone, but there are things you can and should do to decrease the risk.  For example:

  • Spay or neuter your dog to reduce aggressive tendencies.
  • Properly train and socialize your dog, including teaching the dog submissive behaviors.
  • Never leave infants or young children alone with a dog –even one they know, as children who are not properly educated can put themselves in danger unknowingly.
  • Don’t chain up your dog.  Dogs who are chained up are 2.8 times more likely to bite due to increased agitation, stress and a perceived vulnerability.[6]  Have a secure fence with a lockable gate installed instead.

Educate your kids:

Since kids tend to be the biggest risk group and since their immune systems are not as fully developed as an adult’s immune system, proper education is vital to reduce the risk of a child getting bitten.  If you have small children, the following tips may help to reduce the risk of a dog bite:

  • Do not approach an unfamiliar dog.
  • Remain motionless when approached by an unfamiliar dog.
  • Do not run from a dog or scream.  If knocked over by a dog, roll into a ball and lie still.
  • Avoid direct eye contact with an unfamiliar dog.
  • Do not disturb a dog that is sleeping, eating, or caring for puppies.
  • Do not pet a dog without allowing it to see and sniff you first.
  • If bitten, immediately report the bite to an adult regardless of the circumstances leading up to the bite.

If you have been injured by a dog or have any questions concerning the law or your rights and duties under the law, the attorneys at Adler Giersch, PS are ready and willing to assist you.

 

 



[1] RCW 16.08.040.

[2] RCW 16.08.040.

[3] RCW 16.08.060.

[4] Frobig v. Gordon, 124 Wn.2d 732, 881 P.2d 226 (1994).

[5] Centers for Disease Control (2003).  Nonfatal dog bite-related injuries treated in hospital emergency departments – US 2001.  MMWR, 52(26), 605-610.

[6] Centers for Disease Control (2003).  Nonfatal dog bite-related injuries treated in hospital emergency departments – US 2001.  MMWR, 52(26), 605-610.

Recreational Activity and Assumption of the Risk

Categories: Premise/Slip and Fall

By Arthur D. Leritz. Posted on .

By now, most of you have already heard about the tragedy that occurred at the Indiana State Fair on Sunday when a stage collapsed, killing five people.   Apparently the rigging and lighting equipment was brought down by high winds in that tragic incident.  While it may seem like a freakish accident, is someone ultimately responsible for allowing this to happen?  Could this have been prevented?  Is this the type of risk one associates with going to an open air concert at a State Fair?

Hopefully, most of you are aware that when you purchase a ticket for a concert or sporting event, there is usually language on the back of the ticket that absolves the promoter or event organizer from any liability for risks inherent in the activity.  By going to these events, you “assume the risk” for any injuries that may occur for known risks associated with that activity and this acts as a bar to recovery.  For example, getting hit by a baseball at a baseball game is a known risk, as is injury from racing a go-kart around a track – as well as injury sustained while dancing in a “mosh pit” at a concert.  If you are injured in these situations, you likely will not be able to make a claim against the team, stadium owner or event organizer.   However, what if you are injured in a go-kart because there was standing water on the track, or the go-kart was missing a key piece of safety equipment?  What if you were hit by a foul ball because the net that was supposed to protect you was not in place, or was installed incorrectly? Or, what if you were injured because a stage collapsed at a concert?

So what is assumption of risk?  In its simplest form, “assumption of risk” means that the injured party, prior to the incident complained of, gave his or her consent to relieve the potential at-fault party of an obligation of conduct toward him, and agreed to assume a chance of injury from a known risk arising from the obligation for which the at-fault party has been relieved.  In Washington State, there are two main types of assumption of risk:  express and implied.

Express assumption of risk is generally bargained for and found in a contractual relationship.  A person expressly assumes the specific risk of harm if that person:

  1. has full subjective understanding;
  2. of the presence and nature of the specific risk; and
  3. voluntarily chooses to encounter the risk.

Implied assumption of risk operates in the same way as express assumption of risk, but without the additional ceremonial and evidentiary weight of an express agreement.  It has also been held to apply where you impliedly consent to relieve the at-fault party of a duty to yourself about specific, known, and appreciated risks, and you engage in conduct, from which consent is implied.  In that situation, the at-fault party bears the burden of proving that you knowingly and voluntarily chose to encounter the risk.

In either express or implied assumption of risk, the key is subjective knowledge of the presence and nature of the specific risk.  If you are injured while engaging in a recreational activity or while attending an event and are confused about your rights and duties in that situation, the attorneys at Adler Giersch are willing and able to assist you.