May 2011 Archives

The Hot Seat: Never Leave Your Child in the Car Alone--Period!

May 31, 2011,

Southern California is known for its amazing climate. Everyone who lives in Orange County knows that it gets hot here. Temperatures over 100 degrees are common place during the summer months. Just last year, parts of Southern California had over 100 days of 90 degree weather. As the weather warms and we get ready for the "lazy days of summer," its time to remind drivers to never leave your children unattended in vehicles. Unfortunately, over 49 kids died of heat stroke last year as a result of being left in a car.648681_parking_lot.jpg

Many people may not be aware but in 2001, California passed Kaitlyn's Law. This was designed in part to prevent people from leaving their kids in the car only to deal with the catastrophic consequences of doing so. The law makes it illegal to leave kids 6 and under unattended in any vehicle. With the widespread news of these awful tragedies, its surprising that the instances of heatstroke deaths is still on the rise. Many experts believe this is due in part to the increasing number of very hot days. Another is the harried lifestyle parents and others have which cause them to become distracted, making phone calls, changing CDs or texting, especially as the leave the vehicle. Because we try to cram so many tasks into the day, we often are absent minded about the most important things in our lives: kids.

We need to be more vigilant. No child should die as a result of distractions. Children can die within minutes of being left in a hot vehicle. This is especially true when they are three or under because of their sensitivity to temperature variations. Of the deaths in 2010, most were kids 3 and under.

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Are you Safer Driving an SUV or a Car? Insurance Institute Finds Small Cars can Be Safe Too.

May 27, 2011,

The streets of Orange County are filled with cars of all makes and models. Which is safest? The debate has endured for years: am I safer driving a large SUV or a car? No clear cut winner has been picked. In the past, however, small cars have not been picked by the Insurance Institute for Highway Safety (IIHS), as a Top Safety Pick Award. Small cars are smaller than SUVs and therefore may leave passengers more unprotected. SUV's, however, though larger and seemingly better able to protect passengers in an accident, have a tendency to roll-over during an a collision, greatly increasing the risk of death. Thumbnail image for toyota_prius.jpg

So which is safer? I have personally driven both and in my years of practice I have seen serious injuries and deaths arise from accidents in both SUVs and cars. In 2007, the IIHS, which focused on crash statistics from 2002 to 2005, and car model years ranging from 2001 to 2004, found that SUVs were generally safer than cars. In reviewing the statistics of driver deaths by vehicle type, 12 of the 16 top spots were held by cars.

Of the 15 best rated vehicles in 2007, SUVs held seven of the top spots. The term SUV can be deceiving, however, as SUVs vary in size like milk shakes: small, medium and large. In 2005, the National Highway Traffic Safety Administration (NHTSA) corroborated the IIHS's finding . According to NHTSA, driver fatalities from any type of crash were lower than those in cars.

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Car Seat Guidelines Make an About-Face

May 26, 2011,

As a legal assistant at Cohn & Swartzon, I am always rushing to get to work in the morning and get my kids to school. I am sure many of you, like me, are moms on the go, always in a hurry and playing beat the clock every morning. With Orange County traffic, sometimes this can become a nightmare. Too often I am so concerned about getting the kids to school on time I tell my kids to "Hurry up and get buckled up!" If this sounds familiar, we could all be endangering our kids. Child in Car Sear.jpg

When I say, "Just get buckled", I am not checking to make sure that the seat belt is in proper working order. Nor am I really checking to see if it is too stretched out, or behind my kids shoulders or even around their necks. I say "Buckle Up" as if that will be the only thing that could save their lives in the event of an auto collision. And to make sure I won't get a ticket. I even used to let my kids buckle their own car seats as they got older.

Recently, the American Academy of Pediatrics (AAP), made drastic changes to protect our little ones when it comes to "Buckling Up". Research has shown that if a child is placed in a rear-facing car seat, they are less likely to suffer major injuries, or even death, if involved in a car crash. In fact, car accidents are the leading cause of death among children in the United States. A 2007 study in the journal "Injury Prevention" shows that children under age 2 are 75% less likely to die or be severely injured in a crash if they are riding in a rear-facing car seat.

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What Information do I need when I get Injured?

May 25, 2011,

Whenever someone comes into my office to discuss a potential personal injury case, the first thing I ask them is what information and documents did they bring with them. Invariably, they always pull out scraps of paper, post-it notes, notes written on the back of open envelopes and wads of paper napkins. Understandably, being injured in car accident or dealing with a slip and fall injury can create chaos in your life. One thing to remember is that you want to be able to gather and keep notes and information about the incident as quickly and cleanly as possible. Not only do you want to record important information about the scene (location of incident, weather, time of day, people involved, witnesses, etc) but you want to document as much of this information with pictures. Also, there are some very important pieces of information that you need to take down.

postits.jpg The best way to deal with a chaotic situation is to take the guess work out of it. Once someone is victim of a slip and fall, car accident or dog bite, the body's adrenaline starts to work over time. Sometimes you may be in shock or hurt and can barely concentrate, let along remember what information you need to gather. What do you do? Be prepared. Just like in any emergency situation, being prepared takes the guess work out of the frantic situation. There are several ways to do this.

One is to have a piece of paper in your glove compartment, purse or wallet that lists some invaluable pieces of information you may need for the future. You essentially need to answer the 5 "W" questions: who, what, where, when and why. What happened? Where did it happen? Who was involved (i.e. name, address, license info, etc)? When? Why did it happen (i.e. someone ran a red light, water on the floor, someone's dog was not on a leash, etc.)? I have included a sample below.

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The Basics of Orange County Personal Injury Cases: Part 5 - Product Liability

May 24, 2011,

As part of my practice as a personal injury attorney, I am hired by clients to take cases based upon injuries from defective products. We all buy things. Whether its toys for our kids or lawnmowers to keep our grass looking clean here in Orange County, we all buy things that we need. As consumers, we rely on a manufacturer's ability to make these products safe for everyday use. Despite these expectations, people are hurt or killed by products that are not manufactured properly or adhere to safety standards and guidelines promulgated by various governmental and state agencies. These lawsuits may be some of the most important because without holding these companies responsible for products they sell to consumers, they may never make them safe for the intended uses and people would continue to suffer personal injuries. Lawn Mower.jpg

Products can be deemed defective in three separate ways in California:

1. Manufacturing Defect;
2. Manufacturer's Failure to Warn; and
3. Defective Design

Manufacturing Defect: What is a manufacturing defect? Basically, a manufacturing defect can be found if the product "differs from the manufacturer's design or specifications or from the typical units of the same product line." See, CACI 1202. This means that it is designed one way but is manufactured a different way which causes injury.

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The Basics of Orange County Personal Injury Cases: Part 4 - Medical Malpractice

May 23, 2011,

Nearly every day I receive a phone call or email inquiry about a potential medical malpractice case. Nearly 100,000 people per year are killed and 250,000 are injured due to the medical negligence of doctors, hospitals and care givers. These numbers highlight the epidemic of medical errors that cause serious personal injuries or death. Although mistakes happen, when mistakes happen because the care giver's action or inaction fell below the accepted standards of care and treatment, that is medical malpractice. Occurrences of malpractice can seriously affect not just patients, but their families as well. The aid services and agencies needed to help malpractice victims to gain back normal life can be costly and place undue financial burdens on the victims and their families. Thumbnail image for Hospital.jpg

Orange County, California, has approximately 20 hospitals. Each day dozens of people are treated in these hospitals. Many individuals feel that a doctor or nurse may have made a mistake in their treatment which caused some discomfort or pain. For the most part, these mistakes do not rise to the level of medical malpractice. In California, to prove a medical malpractice case, you must generally establish the following elements:

  1. A duty was owed. Generally a legal duty exists whenever a hospital or health care provider undertakes care or treatment of a patient:
  2. There was a breach of the duty owed. This means the provider failed to conform to the relevant standard of care, which is the reasonable degree of skill, knowledge and care ordinarily posses by someone in the medical profession in the same circumstances;
  3. The breach caused an injury; and
  4. Damages. These can include additional medical costs, pain and suffering loss of earnings, etc.

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The Basics of Orange County Personal Injury Cases: Part 3 - Dog Bites

May 20, 2011,

Another very common personal injury case that I handle are dog bite cases. People love dogs and Orange County's wonderful climate means that many people are able to walk their dogs outside or take them to the park. Most dogs are gentle and kind. Many are playful and wonderful pets. Unfortunately, some dogs are aggressive and can cause very severe personal injuries to anyone that encounters them. Dog bites can be very dangerous and can lead to additional hospitalizations due to infections. Some dog maulings can even cause death. Additionally, the scars, both visible and emotional, may last forever. Thumbnail image for pitbull-thumb-336x403.jpg

The dog bite law in Orange County is clear, owners of dogs are liable for the damages suffered by any person who is bitten by the dog regardless of the former viciousness of the dog. There is no "one free bite" rule in California. California Civil Code ยง3342 states "(a) The owner of any dog is liable for the damages suffered by any person who is bitten by the dog while in a public place or lawfully in a private place, including the property of the owner of the dog, regardless of the former viciousness of the dog or the owner' s knowledge of such viciousness." This statute is "designed . . . to prevent dogs from being a hazard to the community." Davis v. Glaschler (1992) 11 Cal.App.4th, 1392, 1399. The owner of a dog has the burden of being responsible for their dogs behavior. Since they choose to have a dog, the owner is "virtually an insurer of the dog's conduct." Massey v. Colaric (1986) 151 Ariz. 65; Hillman v. Garcia-Ruby (1955) 44 Cal.2d 625, 626, an "owner is insurer against acts of [that] animal. . ."

Again, these laws make perfect sense. They are aimed at protecting people and require owners to take responsibility for their dogs. In fact, the law in California makes an owner strictly liable for any dog that causes injury. This liability extends to other dogs that are attacked as well. The case of Portillo v. Aiassa (1994) 27 Cal.App.4th 1128 held that in certain circumstances, even Landlords can be held responsible for the dogs of their tenants provided they have knowledge of the dogs dangerous propensities and viciousness.

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The Basics of Orange County Personal Injury Cases: Part 2 - Slip and Fall

May 19, 2011,

Another very common type of personal injury case occurs when someone falls on someone's property, whether it's a public or private. Property owners or occupiers are responsible to make sure that their property is free from obstructions and hazards so that people on their property are not injured. This is an affirmative duty on the part of a property owner.Slip and Fall.jpg

Orange County residents walk through parking lots, in shopping malls and on the sidewalks everyday. We visit people's homes and businesses. When someone slips or trips as a result of a property owner's failure to fix or remove a hazard or obstruction and they are injured, they are entitled to pursue a personal injury claim. Many people call these slip and fall or trip and fall cases. In reality, these are premises liability cases.

Premises liability is simply the liability a property owner has for certain injuries that occur on their property. "Premises liability law is the body of law which makes the person who is in possession of land or premises responsible for certain injuries suffered by persons who are present on the premises."

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The Basics of Orange County Personal Injury Cases: Part 1 - Car Accidents

May 18, 2011,

When I tell people I am a personal injury attorney, I am often asked by friends and other people I meet, what exactly does "personal injury" really mean. I explain to them that the term personal injury encompasses any injury a person suffers to the body or mind, as opposed to a person's property, resulting from someone else's negligence. In plain English, a personal injury happens if a person is injured because someone did or did not do something that caused bodily harm to someone else. Its easier to understand this concept when you look at the most common types of personal injury cases that occur to people in Orange County every day. Thumbnail image for 570770_metal.jpg

People can hardly get around Orange County without the use of a car. Because so many people drive cars, the congestion in Orange County has become infamous, topping the charts as one of America's worst freeway bottlenecks. Its easy to understand that with so many drivers on the streets of Orange County, car accidents are bound to happen. Whether you drive a car, truck or motorcycle, your chances of being involved in a collision had drastically increased in the last twenty years.

There are many factors that cause collisions on the freeways and roads in Orange County and Los Angeles. Inattentiveness, drowsiness, drunk driving, texting are all causes of car accidents around the country and especially here in California. These auto collisions can range from "fender benders" to fatalities, simply because someone failed to follow the rules of the road. This is especially true for teen drivers. According to the National Transportation and Safety Administration (NHTSA), "motor vehicle crashes are the leading cause of death for American teenagers."

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