The Philadelphia Personal Injury Law Blog tag:philadelphiapersonalinjuryblog.com,2009-03-23://60 2012-05-16T18:30:27Z Philadelphia Personal Injury News and Information Movable Type Enterprise 4.38 Eagles OT Jason Peters Suing Roll-A-Bout, What Are His Damages? tag:philadelphiapersonalinjuryblog.com,2012://60.31716 2012-05-16T19:02:54Z 2012-05-16T18:30:27Z Our sister blog, The Tarnished Twenty, reports that Jason Peters, the left tackle for the Eagles, will be filing a lawsuit after having to undergo a second surgery due to a malfunctioning mobility device. According to the blog, and other... William Peacock, Esq. http://www.linkedin.com/in/williampeacockesq Our sister blog, The Tarnished Twenty, reports that Jason Peters, the left tackle for the Eagles, will be filing a lawsuit after having to undergo a second surgery due to a malfunctioning mobility device. According to the blog, and other news sources, Peters was using the Roll-A-Bout when it collapsed and caused him to retear his Achilles’ tendon. He had surgery on that tendon earlier this offseason.

While Tarnished Twenty covered the possible theories of recovery, the damages issue is also quite complicated. For an NFL player, the obvious source of damages is lost wages. But there other sources of lost income as well as pain and suffering that should be considered as well.

]]> For this year, Peters is still under contract to the Philadelphia Eagles and is still being paid. He is suffering no loss in wages until either his contract expires in 2014 or until the Eagles cut him. At that point, he might recover any non-guaranteed portion of the contract if it is proven that the scooter was in fact defective.

What he could recover now, however, is whatever bonuses he would likely have reached. Although bonuses are always speculative, the burden of proof in a civil case is "the preponderance of evidence" standard, which simply means more likely than not.

Had his rehab stayed on track and he had played at close to his prior level, he likely would have reached at least some performance bonuses for playing time. More speculative bonuses, like Pro Bowl selections, would be less likely to be awarded.

There is also, of course, damages for increased pain and suffering. These are impossible to predict, but could be a significant addition to lost wages and lost bonus money for Jason Peters.

Another interesting point, in regards to damages, is whether the Eagles themselves will sue. If the product was defective, it is really the Eagles who are being harmed here. They lost a team leader and one of the best offensive linemen in the game. They also are going to be paying him for at least this season, which he will likely miss due to the setback.

Related Resources:

]]> What Happens to Leftover Class-Action Funds in Pennsylvania? tag:philadelphiapersonalinjuryblog.com,2012://60.31678 2012-05-15T19:05:55Z 2012-05-15T18:55:59Z We've all gotten those odd notices. Some class-action settlement has occurred based on some product that we may or may not have purchased years ago, and we are now entitled to a $0.37 share of the proceeds. A lot of... William Peacock, Esq. http://www.linkedin.com/in/williampeacockesq We've all gotten those odd notices. Some class-action settlement has occurred based on some product that we may or may not have purchased years ago, and we are now entitled to a $0.37 share of the proceeds. A lot of people, especially when the amount is a pittance, fail to claim their piece of the pie.

So, what happens to the left over class-action money?

Well, thanks to the newest rules promulgated by the Pennsylvania Supreme Court, the residual funds from a class action award or settlement should now go towards providing legal services for low-income residents of the state, reports the Pennsylvania Record.

]]> In the past, the trial judge had the discretion to decide what would happen to the leftovers. Now, with the new rule set to kick in on July 1st, half of the funds would be guaranteed to go to the IOLTA Board (which provides funding for low-income legal services) and the other half would either also go to the IOLTA board, or it would go to an organization that promotes the interest of the class action lawsuit’s objectives.

For example, let’s say there is a class action over medical conditions resulting from coal mining in Pennsylvania. The suit happens, money is paid out, and there is a couple hundred thousand dollars left. Half goes to the IOLTA board, which then distributes it to legal aid societies in Pennsylvania. The other half would go to an organization that deals with Black Lung, such as the greatest law school ever’s Black Lung Clinic. (Yes, that was a shameless plug.)

Even in thriving economies, legal aid societies often struggle to find the funding to provide adequate legal services to low income residents. These societies provide important services, such as custody disputes, and landlord-tenant disputes, to those who otherwise could not afford legal representation. Needless to say, a bad economy has made funding even more uncertain.

This innovative solution, which has also been adopted by a few other states, should ensure a steady stream of funding for these essential services. That way, we all win.

Related Resources:

]]> Philly School's Empty Rooms A Haven for Crime, Premises Liability? tag:philadelphiapersonalinjuryblog.com,2012://60.31603 2012-05-11T19:02:54Z 2012-05-11T18:47:54Z Disturbing news has emerged from the basement of a local Philadelphia High School. On May 4, a 15-year-old male student lured a female student into the basement of Germantown High School and sexually assaulted her, reports the Philadelphia Inquirer. Though... William Peacock, Esq. http://www.linkedin.com/in/williampeacockesq Disturbing news has emerged from the basement of a local Philadelphia High School. On May 4, a 15-year-old male student lured a female student into the basement of Germantown High School and sexually assaulted her, reports the Philadelphia Inquirer.

Though a sexual assault in a high school is disturbing enough, the Inquirer also dug up 45 serious incidents at that same high school over a six-year period. Eleven were sex offenses. And it's not just the basement or stairwells. There were 27 sexual assaults throughout the school and nearly 400 serious incidents in general.

]]> The problem stems from the ever-shrinking Philly school district. The school, which was once meant to hold 1800 students, even with part of the building sealed off, now only holds 800. With so few students comes more and more vacant space and less staff to monitor and patrol the expansive early 1900s structure, writes the Inquirer.

Though the school has security cameras set up throughout the school, one of which caught the incident on tape, would that be enough to shield the school and district from liability in a civil court?

There are two legal grounds that spring to mind that could subject the school to liability. Negligence is the more commonly used tort, which in this case would be actionable from the school’s breach of its duty to keep the school’s passageways and premises safe. Sexual assaults in basements and stairwells are certainly foreseeable, considering the number of incidents over the past few years.

Also, on a theory of premises liability, building owners are required to warn patrons of known dangers. There have been cases where retail stores have been held liable for not warning customers about high-crime areas in parking lots.

Certainly, a school not warning its students about the dangers lurking in the basement and dark hallways could also arguably fall under the same laws.

Related Resources:

]]> Officer Michael Paige: Civil Trial Over Alleged Fellatio Delayed tag:philadelphiapersonalinjuryblog.com,2012://60.31515 2012-05-09T19:15:19Z 2012-05-09T19:16:42Z Officer Michael Paige bought some time on his civil trial. The federal judge in the case granted a delay until June 25 for the civil-rights trial because the officer, a reservist, is away on military leave. Paige, who is still... William Peacock, Esq. http://www.linkedin.com/in/williampeacockesq Officer Michael Paige bought some time on his civil trial. The federal judge in the case granted a delay until June 25 for the civil-rights trial because the officer, a reservist, is away on military leave. Paige, who is still an active Philadelphia police officer, faces civil liability for the alleged sexual assault of James Harris in his police cruiser in Fairmount Park.

Harris' claims that Paige violated his civil rights by forcing the North Philadelphia man to repeatedly perform oral sex on him in 2007 fell upon deaf ears in the criminal court. The decisive issue in that case was consent. The Judge felt that the acts were consensual.

The Police Department had earlier found the opposite, and had fired Paige, but he was later reinstated after a battle with the Fraternal Order of Police.

]]> In our previous post, we discussed the background of the case, up to the Police department’s dismissal, and promised analysis of the various claim. The remaining claims against Paige include violating Harris’ constitutional rights, false imprisonment, assault and battery, and intentional infliction of emotional distress.

The first claim, violating Harris’ constitutional rights , is where someone, under the color of law, violates rights, privileges, or immunities guaranteed under federal law or the Constitution. In order to prevail, the claimant must prove that the conduct occurred under the color of law, which has been broadly construed to include the exercise of power created by the authority of someone’s official capacity.

For Harris, proving that Paige, who was an on-duty cop at the time, used his authority and position to violate his rights may not be a problem in this context. He allegedly used his police power to detain him, force him to meet him back in the location a short time later, and then to get him to ride along with him to the secluded park, where he allegedly assaulted Harris.

What will be interesting, is what rights under Federal or constitutional law he asserts. Section 1983 claims are popular for race and sex discrimination, and other related matters. Sexual assault, while a crime, may not tie into any federal or constitutional rights.

His second claim, false imprisonment, is the confinement of someone against his or her will by another individual in such a manner as to violate the confined individual’s right to be free from restraint of movement.

Courts have long held that security guards, who keep people in custody by falsely implying that they will be arrested if they leave, can be held liable for false imprisonment. Paige’s actions, by keeping Harris in a police cruiser after detaining him, could also probably qualify, if there was some implied threat of legal action if he did not comply.

The third and fourth claims, assault and battery, are actually two separate claims. Battery is harmful or offensive touching. No explanation is really needed there, unless the jury finds that the fellatio was consensual.

Assault is an action or threat that puts someone on fear of harmful or offensive touching. For that, if Paige threatened Harris with violence or a gun, assault could be a possibility. It could be a possibility in regards to the moments leading up to the “offensive touching,” but those details will probably emerge at trial.

Finally, the last claim, intentional infliction of emotional distress, is where extreme or outrageous conduct intentionally or recklessly causes severe emotional distress. This shouldn’t be too hard to tack on, if the jury believes that the fellatio was nonconsensual. Sexual assault is outrageous conduct, which could definitely cause severe emotional distress.

The trial is scheduled for June 25, once Officer Michael Paige returns from his military duties. No doubt for James Harris, the chance for a day in court can’t come soon enough.

Related Resources:

]]> Junior Seau's Death Adds More Smoke to NFL Suit Fire tag:philadelphiapersonalinjuryblog.com,2012://60.31445 2012-05-07T19:01:32Z 2012-05-07T18:58:41Z They say that correlation does not equal causation. However, at a certain point, when there's enough smoke, when do we begin to worry about putting out the fire? This blog has been covering the NFL lawsuits extensively. It seems every... William Peacock, Esq. http://www.linkedin.com/in/williampeacockesq They say that correlation does not equal causation. However, at a certain point, when there's enough smoke, when do we begin to worry about putting out the fire?

This blog has been covering the NFL lawsuits extensively. It seems every few months, another tragedy strikes. A former player is diagnosed with ALS and told he only has a few years to live. Another former player commits suicide by shooting himself in the chest.

And now, Junior Seau has done the same.

]]> It’s getting harder and harder to dismiss any tie between concussions and depression. Shortly after his second retirement from the NFL, Seau accidently drove his car off a cliff in 2010, in what appeared to be a suicide attempt. He claimed that he fell asleep at the wheel.

But police found skid marks near the cliff and ruled out a suicide attempt.

Dave Duerson, the former player that also died recently of a self-inflicted gunshot wound to the chest, had a NFL lawsuit filed on his behalf earlier this year, reports the Chicago Tribune. He suffered multiple documented concussions in his career. However, with football players, it seems that unless they are visibly traumatized, unconscious, or unable to stand on their own two feet, they probably are going back in the game. The true number of Duerson’s concussions was probably much higher writes the Tribune. A posthumous examination of his brain indicted progressive, advanced brain damage.

A former teammate of Seau’s has estimated that Seau suffered 1,500 concussions in his career. Part of that estimate stems from the vague definition of concussion. The definition that he relied upon was “seeing stars after a hit”, which is obviously very subjective. He is quoted as saying, “As a middle linebacker in the NFL, if you don’t have five of these (Grade 1 concussions) each game, you were inactive the next game,” reports CBS Sports. In other words, players are required to hit hard, and when hit hard enough to satisfy their coaches, they see stars.

They say once you’ve had one concussion, it is far easier to get future concussions. More than one concussion in close proximity could result in a much more severe injury, via “second impact syndrome.” Concussions and the part of the brain responsible for causing depression were linked by a study by McGill University in Canada in 2008, reports the New York Daily News.

The link is becoming more and more clear, and the NFL has instituted rule changes in response to the problem. However, none of this matters for those filing lawsuits for their earlier playing careers. They are going to have to prove that the NFL knew about the link in the past and didn’t properly warn players.

As for those who have committed suicide, the biggest burden to their lawsuits, which will likely be based on negligence claims, will be proving causation. Though there are dozens of suicides amongst former players, and clear head trauma in most of their cases, there are also other possible intervening causes with each player.

Junior Seau had recently gone through a divorce and a domestic violence arrest. Duerson had recently gone through a divorce and severe financial trouble. Both players’ depression could be blamed on their life events, or their head trauma. Or their life events could have happened as a result of the head trauma. Causation, in these cases, really seems to be a chicken and the egg sort of dilemma.

So in the upcoming NFL lawsuits, while the players’ attorneys are going to point the finger at head trauma, the NFL attorneys are going to blame life in general. The burden of proof for the players’ attorneys is a preponderance of the evidence, which simply means more likely than not. With every additional suicide, depression case, or neurological disorder, it becomes more likely than not that head trauma is to blame.

Related Resources:

]]> Harris v. Paige: Cop Allegedly Sexually Assaulted Philly Man tag:philadelphiapersonalinjuryblog.com,2012://60.31385 2012-05-04T13:24:11Z 2012-05-04T01:57:21Z On Monday, the civil suit against Officer Michael Paige begins, reports the Philadelphia Inquirer. Officer Paige has been accused and acquitted, in a court of law, of forcing James Harris to perform oral sex three times on a cold... William Peacock, Esq. http://www.linkedin.com/in/williampeacockesq

On Monday, the civil suit against Officer Michael Paige begins, reports the Philadelphia Inquirer. Officer Paige has been accused and acquitted, in a court of law, of forcing James Harris to perform oral sex three times on a cold May morning in 2008.

The story of the alleged incident, pulled from the civil case filings, contains graphic details for those of you who might be squeamish. James Harris and an unidentified male were in a vehicle at 2:00 am. They had been smoking marijuana while waiting out a snowstorm and were allegedly kissing in their vehicle.

]]> Officer Paige was patrolling and stopped at the vehicle. He checked the driver's paperwork, and when he discovered that the driver did not have a license, ordered him to drop his friend off at home and return to the park. Harris did so, and was told to sit in the passenger seat of the police cruiser.

According to Harris, Officer Paige pulled his cruiser into a locked and secluded area of Fairmont Park. He then pulled down his pants and ordered Harris to perform fellatio multiple times.

The following day, Harris reported the incident. An Internal Affairs investigation substantiated the claims and terminated Paige's employment. The District Attorney pressed charges. All evidence, including sperm and saliva left in a cup in Harris' car, seemed to back Harris' story.

Meanwhile, Officer Paige claimed that he was set up by a young man that he was graciously mentoring. He accused Harris of fishing a used condom off of the ground from one of Paige's heterosexual frolics in the forest and pouring it into the cup, along with spit.

The judge backed Officer Paige, to a limited extent. She had no doubt that a sexual liaison actually occurred. She simply questioned whether it had been involuntary. Officer Paige was free, acquitted of all criminal charges. A short time later, with the help of the Fraternal Order of Police, he was reinstated to the Philadelphia Police Force, with back pay. He is still on the force today.

In the meantime, Harris also pursued a civil suit. After a series of motions and legal wrangling, the City of Philadelphia was let off the hook, as they were found to have not enabled the officer's behavior. In order for a municipality to be found liable for an employee's actions, their policies have to have proximately caused the dangerous situation

The civil case filings also laid bare Officer Paige's disciplinary record, which included suspensions for sleeping on duty, continuing a chase out of his district, allegations of police brutality leading to death, and multiple recommendations for termination by his superior officer.

Unfortunately for Harris, the court found that this did not amount to sufficient warning for the Police Department that Officer Paige would sexually assault someone in secluded park. Paige's actions were not foreseeable, and therefore there was no proximate cause. The claims against the city, therefore, were dismissed under a motion for summary judgment.

The claims against Officer Paige, however, survived summary judgment and will be tried on Monday. The claims that remain include violating Harris' Constitutional rights, false imprisonment, assault and battery, and intentional infliction of emotional distress .

More details, as well as an analysis of the legal claims, to follow.

Related Resources:

]]> Stunning Video of 2010 Duckboat Crash; Trial Starts Monday tag:philadelphiapersonalinjuryblog.com,2012://60.31330 2012-05-03T19:06:26Z 2012-05-03T16:53:15Z On the eve of trial, the attorneys for the parents of two plaintiffs who died in the horrific boat Duckboat crash in 2010 have released footage of the accident, reports NBC 10 Philadelphia. The crash happened when a Ride the... William Peacock, Esq. http://www.linkedin.com/in/williampeacockesq On the eve of trial, the attorneys for the parents of two plaintiffs who died in the horrific boat Duckboat crash in 2010 have released footage of the accident, reports NBC 10 Philadelphia. The crash happened when a Ride the Ducks boat, full of passengers, stalled in the Delaware River.

After being stranded for a short time, an immense tugboat, the Caribbean Sea, crushed the diminutive tour boat, with most of the passengers still on board. Amazingly, only two people died as a result of the crash, which the NTSB has labeled a warning of the “dangers of distraction.”

]]> Now, on the eve of trial, there appears to be visual proof of some of the contributing factors to the crash. The video contains a still image of the deckhand for the smaller boat texting, minutes before the boat was slammed by a larger ship. It also shows that same deckhand diving into the water moments before impact, while the boat is still full of passengers. According to the news report, the passengers had less than a minute to put on their life preservers prior to the boat being crushed.

However, the proof is less than conclusive. The deckhand was texting, but it was supposedly six full minutes prior to the accident. He appears, in the video, to put his phone away afterward. It is also possible that he was seeking help for his stranded boat. However, it is odd that they waited to tell the passengers to put on their life vests until moments before impact.

There have also been questions about the design of the duck boat. According to the attorneys for the family, the canopies on the boats trap people if they are wearing life vests. The NTSB recommended that the design be altered years before the accident.

The operator of the larger tugboat is already in prison, as he was found to be texting prior to the accident as well. Reports state that he was using his cell phone to deal with a family emergency and had retreated to the wheelhouse for privacy, which left the small boat in the larger ship's blind spot. Being that he has already pled guilty to involuntary manslaughter and admitted to being at fault, it will be hard for his employer to escape liability, since employers are typically liable for their employees' negligence.

Related Resources:

]]> Target Will Face a Jury for Baby Vomit Slip and Fall tag:philadelphiapersonalinjuryblog.com,2012://60.31266 2012-05-01T19:08:15Z 2012-05-01T16:46:31Z Judge Gene Pratter released a decision on Monday in a local baby vomit slip and fall case, and the news was not positive for Target. According to the released court document, Nadyne Timberlake was entering the Target store at 4000... William Peacock, Esq. http://www.linkedin.com/in/williampeacockesq Judge Gene Pratter released a decision on Monday in a local baby vomit slip and fall case, and the news was not positive for Target.

According to the released court document, Nadyne Timberlake was entering the Target store at 4000 Monument Road when she slipped and fell on a pool of baby puke. Surveillance tape shows Target employees standing near the puke for approximately seven minutes prior to the fall.

]]> Timberlake injured her right wrist, pinky finger, and left knee and eventually filed suit against the store. The store maintained that, as a matter of law, seven minutes is not enough time to impute constructive knowledge upon the store and its employees, and therefore, the case should be dismissed.

Judge Pratter disagreed. In a summary judgment motion such as this one, every contested fact is taken in a light most favorable to the person not bringing forth the motion. Here, that means all assumptions and disputed facts are taken in a way most favorable to Timberlake. In other words, Target is arguing that even if everything Ms. Timberlake says is true, her case still fails and should be dismissed.

For the law regarding slip and falls, owners of property open to the public have a duty to keep the premises safe. If they know of a hazardous condition and fail to remedy it, they can be held liable for any injuries that occur. For temporary hazards, like baby puke, it is assumed that the owner knows about the hazard after a certain amount of time. This is to prevent places, like a store or a restaurant, from leaving slippery substances on their floor and then claiming that they never knew about it.

Target argued here that seven minutes wasn't long enough to assume that they knew about the puke; and they might have had a winning argument, had there not been a surveillance tape of employees standing at or near the puke for seven minutes. After all, there was at least one past case cited by the court in which they stated that five minutes was not enough time to hold a store accountable for a spill in one of the aisles.

However, there was a conflicting Walmart case involving a child playing in bubble solution where the liquid was only on the floor for one minute and forty-eight seconds. That suit went to the jury because the store placed the solution in an area accessible to children and because the child had been playing in the mess in the open area for at least a minute.

In short, the law is mixed and unsettled regarding short time frames affecting slip and falls. Also, despite that short time frame, there is enough of a question as to whether Target should have known, due to the circumstances, that the floor was wet.

Where there is a matter of disputed facts, the case should go to the jury to decide.

A victory at the summary judgment stage does not guarantee a victory for Nadyne Timberlake in her baby vomit slip and fall suit. All that this decision settled was whether the lawsuit could proceed. The jury could still find that Target was not at fault, or the parties could settle the matter before the jury even hears the case.

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]]> Salmonella Sushi: 200 Sick, Tuna Recalled tag:philadelphiapersonalinjuryblog.com,2012://60.31209 2012-04-27T19:06:52Z 2012-04-27T18:54:20Z Epicureans with an eastern preference will have to look elsewhere in the short-term future. At least two-hundred cases have been reported of salmonella poisoning, all along the East Coast, and all originating from a company’s now recalled “tuna scrape,” reports... William Peacock, Esq. http://www.linkedin.com/in/williampeacockesq Epicureans with an eastern preference will have to look elsewhere in the short-term future. At least two-hundred cases have been reported of salmonella poisoning, all along the East Coast, and all originating from a company’s now recalled “tuna scrape,” reports NBC 10 Philadelphia.

Tuna scrape, which is tuna scraped off of the bones and ground up, is at fault in all of the known cases so far. So far, all of the known cases have been in the eastern half of the United States. The company behind the fishy fish, Moon Marine USA Corp., has recalled 300 tons of tuna. As of now, sushi restaurants and consumers should be extra-cautious, as the fish may also have been sold wholesale and may not be labeled with the company’s name, reports the San Francisco Chronicle.

And some question us when we refuse to eat sushi or other raw fish.

]]> The extent of the outbreak is a little scary. According to MSNBC, there are two strains of salmonella on the loose. At least 190 people have been diagnosed with salmonella Bareilly, while at least 10 were diagnosed with salmonella Nchanga. The latter is far more rare. Though there have been no deaths, twenty-eight people have been hospitalized.

Lawyers are already signing up clients and filing lawsuits, one of which was filed by Wisconsin attorneys. They allege that the tainted fish caused symptoms ranging from diarrhea to ulcerated colons.

How appetizing does that sushi sound now?

The lawyers will probably be proceeding on a negligence theory, alleging that due to the negligent handling, storing, or transporting of the fish, they became infected with salmonella, and injuries resulted. Expect a pretty big class action lawsuit if the salmonella injuries continue to spread.

Though it may be difficult to prove the exact negligent activity that lead to the salmonella outbreak, the lawyers for the infected might just still win. When injuries result from obvious negligence, such as an exploding glass coke bottle that came straight from the factory, or a barrel rolled out of a window onto a pedestrian's head, the theory of res ipsa loquitor applies, which means simply, "the thing speaks for itself."

Salmonella doesn't spontaneously occur, especially in such mass quantities and over such a large geographical area. Someone, somehow, must have made a mistake somewhere.

Related Resources:

]]> Who is to Blame for Khalil Wimes' Death? tag:philadelphiapersonalinjuryblog.com,2012://60.31165 2012-04-26T19:03:19Z 2012-04-27T00:28:51Z There is one guaranteed way to get the attention of even the most convoluted and mismanaged public bureaucracies: go after the money. Khalil Wimes was three years old when a family law court ordered his foster parents to return him... William Peacock, Esq. http://www.linkedin.com/in/williampeacockesq There is one guaranteed way to get the attention of even the most convoluted and mismanaged public bureaucracies: go after the money.

Khalil Wimes was three years old when a family law court ordered his foster parents to return him to his birth parents, despite their seven other children being taken away, reports The Inquirer. Khalil was six when he died after years of abuse by his parents. He was still wearing the same tiny red sweater that he was wearing when he left his foster parent's care.

]]> The Department of Human Resources, the agency responsible for protecting children in questionable homes, saw Khalil eight times in the last eight months of his life, four times in the squalid apartment that he resided in. No action or investigation was undertaken.

Alicia Nixon, the child's former foster mother, wants those responsible to take responsibility for their neglect. The parents are already facing criminal charges, but the DHS system failed miserably, and this is not the first time.

Danieal Kelly, 14, suffered a similar fate as Khalil back in 2006. After she passed away due to neglect, the DHS workers and contractors were convicted of criminal charges. The system supposedly underwent massive changes in the wake of that disaster, yet the same exact problem struck again last month.

Danieal Kelly's parents, after neglecting their child and being indicted for criminal charges, sued DHS for wrongful death. That lawsuit was ridiculous. However, perhaps someone else with an interest in the child, such as Nixon, should consider the benefits of a lawsuit.

It is unfathomable how DHS could not have noticed Khalil's abuse, considering the squalid conditions of the apartment. He lived on a soiled mattress, had a lock on the outside of his door, lacked toys or educational materials, and was kept out of school. His parents will meet their fate in a criminal court soon, and perhaps the DHS workers that failed Khalil will too. But the agency as a whole may need another wakeup call.

Attacking their bottom line with a lawsuit might be the only way to get their attention.

Related Resources:

  • Child Endangerment Laws, Fallout from the Death of Danieal Kelly (FindLaw's Philadelphia Criminal Law News)
  • Preliminary Hearing in Khalil Wimes Neglect Murder Trial (FindLaw's Philadelphia Criminal Law News Blog)

    • ]]>     Death Race 2012 Could Have Ended Worse for NJ State Police tag:philadelphiapersonalinjuryblog.com,2012://60.31125 2012-04-25T19:10:33Z 2012-04-25T18:36:00Z Instead of worrying about whether the upper ranks of the police department will have their reputation tarnished over the incident, which was addressed by Superintendant Col. Rick Fuentes with the Star-Ledger, the New Jersey State Police should take solace in... William Peacock, Esq. http://www.linkedin.com/in/williampeacockesq Instead of worrying about whether the upper ranks of the police department will have their reputation tarnished over the incident, which was addressed by Superintendant Col. Rick Fuentes with the Star-Ledger, the New Jersey State Police should take solace in the fact that no one got hurt.

    Besides the harm to innocent drivers that could have occurred, the “Death Race 2012” could have also cost the department a lot of money.

    “Death Race 2012” is a nickname given to at least two incidents where state troopers escorted a fleet of exotic cars at high speed through daytime traffic on New Jersey’s busiest highways. One officer would lead, the guests would follow, and one would cover the tail end of the caravan.

    ]]> The drivers allegedly included noted automobile enthusiast Brandon Jacobs, formerly of the New York Giants.

    Warning: Video narrative may contain inappropriate language.

    The problem that the department really needs to worry about is what would have happened if one of those cars had made an unsafe maneuver or had a mechanical failure, resulting in an accident. If one of the other drivers on the busy freeway were injured as a result, they could likely sue the driver of the exotic car as well as the State Police for their part in the unsafe race.

    Employees of any business or organization are assumed to be acting on that organization's behalf while on duty. For these cops, they were driving police cruisers and were presumably on duty that day. Even if this was not part of their work duties, their employer could be vicariously liable for almost everything that they do during work hours, and while using company cars, under the theory of respondeat superior.

    The department is however, not taking chances. They have already suspended two troopers without pay, reassigned the station commander, and are planning a series of meetings on "professionalism." They are going to have to look at leadership on this one. Troopers probably couldn't pull something like this off multiple times without the knowledge and or at least tacit consent of their bosses.

    Related Resources:

    ]]>     Is Your Herbal Weight Loss Supplement Deadly? tag:philadelphiapersonalinjuryblog.com,2012://60.31071 2012-04-24T19:04:05Z 2012-04-24T18:05:38Z There seems to be a growing trend amongst herbal supplement makers. Perhaps realizing that goat weed isn't exactly good at anything, manufacturers in foreign countries are now lacing the drugs with prescription medication. Or to put it in their more... William Peacock, Esq. http://www.linkedin.com/in/williampeacockesq There seems to be a growing trend amongst herbal supplement makers. Perhaps realizing that goat weed isn't exactly good at anything, manufacturers in foreign countries are now lacing the drugs with prescription medication. Or to put it in their more polite terms, "accidentally mislabeling" their products.

    Since January 2011, the FDA has released the names of twenty-seven herbal weight loss supplements, sold online or sometimes even in stores, that are laced with prescription drugs. The most common drug is Sibutramine, also known as Meridia, which is an appetite suppressant. The drug was banned in the United States and many other countries because of increased amounts of heart complications versus patients using a placebo.

    ]]> Tainted supplements is a hot class-action lawsuit area right now, due to the sheer number of supplements coming out of foreign countries that are not checked before being sold online or in small corner stores. Should the supplement cause cardiac complications, a personal injury claim could easily be maintained, but what about the general public that is simply mad that they were deceived?

    Japanese Yellow Weight LossJapanese Rapid Weight Loss Diet Pills Yellow

    Japan Rapid Weight Loss Diet Pills Yellow - Courtesy of the FDA

    Fraud and breach of contract are two possibilities. The contract claim is simple. Manufacturer promised an herbal product, customer paid and then the manufacturer did not deliver what was promised. The only problem with contract actions is that they usually do not allow for punitive damages. That would most likely mean the customer who just ingested a banned drug only gets their $3.84 back via PayPal.

    Fraud, however, is a beautiful remedy for those who took one of these "mislabeled" supplements, as fraud allows you to potentially receive punitive damages. Punitive damages are where those $30 million verdicts come from. The exact requirements of fraud vary according to state and federal law, but are generally that (1) there was a misrepresentation of a material fact, (2) by a person or entity who knows it to be false, (3) to a person who justifiably relies upon the misrepresentation and (4) is injured as a result.

    Obviously, labeling a product as "all natural" or "herbal" and then lacing it with Sibutramine is a misrepresentation of a material fact. It can also be assumed, for the sake of argument, that it would be difficult to accidently lace an herbal weight loss supplement with a weight loss drug, so they probably knew that they were "mislabeling" their packages. It is also reasonable for a person to rely on the fact that an herbal supplement, sold as such, won't contain a deadly banned drug.

    As for injury, an actual cardiac event is not necessary. The greater the harm suffered, the greater the damages, but merely ingesting a controlled substance without your knowledge should suffice on this requirement.

    The one practical consideration left is, can your lawyer collect? Many of these supplement manufacturers are located abroad, selling online, and are impossible to track down and would be equally hard to collect your damages from. In the meantime, consumers might want to consider avoiding nutritional supplements from countries where the laws are not as strict as those at home. Maybe you should stick to American made products, as they are easier to sue should you get something that was "mislabeled."

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    ]]>     Man Ran Over by SEPTA Bus; City Liable? tag:philadelphiapersonalinjuryblog.com,2012://60.30977 2012-04-20T19:15:56Z 2012-04-20T19:14:11Z A man tried to sneak in the back door of a bus and lost his life today. An unidentified 61-year-old man tried to enter a SEPTA bus via the rear exit door, got his arm stuck in the door, and... William Peacock, Esq. http://www.linkedin.com/in/williampeacockesq A man tried to sneak in the back door of a bus and lost his life today. An unidentified 61-year-old man tried to enter a SEPTA bus via the rear exit door, got his arm stuck in the door, and was dragged under the vehicle, reports Philly.com.

    He was pronounced dead upon arrival at Hahnemann University Hospital. An investigation is currently under way.

    ]]> Was this the bus driver's fault? If so, it could cost SEPTA and the city a lot of money. City busses are usually equipped with mirrors that allow the bus driver to see the rear doors. This allows them to prevent people from sneaking onto the bus without paying. It should also allow them to make sure that the doors are clear before taking off. If the bus driver failed to check the rear doors, the city could be liable.

    Then again, maybe it was the man's fault. Perhaps he was running to catch the bus and tried to sneak into the back door. If the rear door is exit-only, or if he was attempting to evade paying a fare, he could be partially at fault.

    And finally, is this an unsafe bus design? Elevators have alarms for when something is jammed in the door. Many busses have doors that will open back up if something prevents them from closing all the way. Perhaps the bus could have had an alarm equipped to buzz if something was stuck in the rear doors.

    The pending investigation should shed more light on who is at fault and will hopefully allow changes to be made to prevent future deaths of this kind. Even if the accident victim if found to be partially at fault, Pennsylvania's Comparative Negligence rule will still allow his family to recover, as long as he was not more than 50% at fault. With a potentially unsafe bus design and the possibility of a bus driver that didn't notice a man hanging out of the rear door, recovery for his loss seems like a distinct possibility.

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    ]]>     $4.2 Million Settlement for Paralyzed Bullying Victim tag:philadelphiapersonalinjuryblog.com,2012://60.30919 2012-04-19T19:30:23Z 2012-04-19T19:58:41Z The family of Sawyer Rosenstein, a now paralyzed victim of bullying, settled their case against the New Jersey school district for $4.2 million this week, reports The Associated Press. Rosenstein, now 18, was only 12 when he lost the ability... William Peacock, Esq. http://www.linkedin.com/in/williampeacockesq The family of Sawyer Rosenstein, a now paralyzed victim of bullying, settled their case against the New Jersey school district for $4.2 million this week, reports The Associated Press. Rosenstein, now 18, was only 12 when he lost the ability to walk. A bully punched him in the abdomen, causing a blood clot that lodged in his spine and paralyzed him from the waist down. The injury, while incredibly rare, followed from the punch, which was proceeded by months of bullying from the other child.

    The theory behind the lawsuit was likely based on negligence. The school had a duty to provide a safe environment for the children. The bully had a history of violence, including punching another student in the face while riding the school bus a year earlier. The school kept no record of that incident, nor others.

    ]]> In addition to a duty, the family would have had to prove breach of that duty, which was evident from their failure to prevent what was foreseeable bullying.

    Three months before the punch that put Rosenstein in a wheelchair, the school was notified via email by Rosenstein that the bullying had gotten worse and was escalating. According to reports, they did nothing.

    The family also would have had to prove causation, both "but for" causation and proximate causation. The "but for" element is easy to show: but for the school's failure to step in sooner and suspend the bully or send him to counseling, this incident likely would have not happened.

    Proximate cause, on the other hand, is trickier. The family would have to prove that what happened was reasonably foreseeable as a consequence of their actions. Now, the school might argue that there was no way they could foresee that a 12-year-old bully could punch someone in a way to cause a blood clot which would then paralyze the other child.

    The counter argument is that the school should have foreseen that ignoring the bully would result in him hurting someone. The extent of the injury, while resulting from a rare complication, was still a natural consequence of the school's failure.

    Had the boy been punched, stumbled into the street, and a car swerved to avoid hitting him, striking a prized show dog in the process, then the school would not have been liable for the dog. That situation lacks proximate cause.

    The final element for negligence is that an injury resulted, which is obvious here.

    It seems as though the family of Sawyer Rosenstein would have had a pretty strong case. The insurance carrier must have agreed because they reportedly pushed for the $4.2 million settlement over the objections of the school district, which still denies fault.

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    ]]>     Woman Dies Via Airborne Highway Sign tag:philadelphiapersonalinjuryblog.com,2012://60.30845 2012-04-18T13:03:17Z 2012-04-18T00:32:32Z In a scene reminiscent of something from Final Destination 16, a woman died from injuries sustained from a flying road sign, reports NBC 10 Philadelphia. A semi-truck was driving along when its side mirror made contact with the sign. The... William Peacock, Esq. http://www.linkedin.com/in/williampeacockesq In a scene reminiscent of something from Final Destination 16, a woman died from injuries sustained from a flying road sign, reports NBC 10 Philadelphia. A semi-truck was driving along when its side mirror made contact with the sign. The sign took flight, caught a little wind, and smashed through 31-year-old Emily Morris’ windshield. She sustained head injuries and crashed her car into another barrier. She succumbed to her injuries two days later.

    Though this has been described as a “freak accident,” lawyers know better. Most of the time, there is no such thing as a freak accident. Someone is at fault here.

    ]]> Is it the construction company's fault? They placed a sign on a concrete barrier that separated two lanes going in opposite directions. We have all traveled on freeways that are under construction, with narrow lanes bordered by concrete and no escape should something go horribly wrong. Was it necessary to place a sign straddling both lanes, instead of two signs, one on each shoulder?

    Under a negligence theory, the construction company would arguably have a duty to make the under-construction road as safe as possible for drivers. If they failed in that duty by installing an unsafe sign, then they could possibly be held liable.

    Though "freak accident" is not exactly a legal term, it does come into play in negligence law. The rule is, was the accident part of the risk created by placing the sign in its allegedly negligent location? When they put a sign on a barrier straddling two narrow lanes, was it reasonably foreseeable that the sign could be hit and hurt someone?

    Perhaps it was not foreseeable that a sign would be hit by a truck, catch air, and fly directly into the path of Emily Morris' windshield. The exact physics of that are pretty ridiculous. Depending on the installation at the construction site, it may have been foreseeable that the sign could hurt someone in some manner. We'll leave the rest for the lawyers who take the case to argue over.

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