If you’ve suffered harm as a result of an accident or injury, you may be entitled to receive economic recovery from those who are at fault. What you can recover will depend upon the kind of damages you experienced because of the accident or injury — both during and after the incident. In some cases, your family members may also be entitled to recover, to the extent that your injury affected their relationship with you.
The Hancock Tower (renamed 200 Clarendon), located in the Back Bay area of Boston, is the tallest building in New England. While under construction in the early 1970s, there were a few minor problems. The windows, each weighing 500 pounds, began falling out of the 790-foot structure.
Considering there were over 10,000 windows, this misadventure gave new life to the view that the sky is falling. Despite unsubstantiated rumors that New York Yankee fans were being encouraged to visit the construction site when they attended Boston Red Sox games, areas adjacent to the structure were cordoned off and cleared of pedestrians.
A restaurant located in an adjacent building (but not located in the tower) sued the contractor and curtain wall subcontractor, alleging property damage in its complaint—the falling glass prevented the public from accessing the restaurant. Even though the restaurant suffered no physical injury to its property, the restaurant alleged that its property was rendered useless and, thus, suffered a loss of use of tangible property.
The court observed that if a large piece of contractor’s equipment broke down on a public street, resulting in the closing of that street, loss of use of the stores suffered by store operators on that street would be covered as property damage. Although the Hancock Tower case involving the restaurant was a determination of the duty to defend, the court found coverage for the restaurant’s claim under loss of use of property that was not injured inContinental Cas. Co v. Gilbane Bldg. Co., 391 Mass. 143 (1984).
The definition of “property damage” has evolved over the last several decades. For example, whether diminished value constituted property damage is still being debated. Does merely installing a defective product onto nondefective property result in property damage? The answer, in part, hinges on what constitutes “physical injury to tangible property.”
One example is the case of Eljer Manufacturing. The plumbing systems made by Eljer and installed in numerous homes had shown signs of defects, with some of the systems leaking and causing water damage. The question was whether the homes with Eljer systems that had not leaked suffered property damage. The Seventh Circuit Court of Appeals, applying Illinois law, focused on the drafting history and the purpose of insurance. It found that property damage had occurred upon installation, in part because the homes with the defective plumbing systems had suffered diminished value. See Eljer Mfg., Inc. v. Liberty Mut. Ins. Co., 972 F.2d 805 (7th Cir. Ill. 1992).
Several years later, the Seventh Circuit Court’s decision was reversed. The Illinois Supreme Court found that the incorporation of a defective component into the homes was not a physical injury and, thus, not property damage; tangible property does not experience physical injury if that property suffers intangible damage, such as diminution in value. See Traveler’s Ins. Co. v. Eljer Mfg., Inc., 757 N.E.2d 481 (Ill. 2001).
In U.S. Metals, Inc. v. Liberty Mut. Group, Inc., 59 Tex. Sup. J. 144, 2015 Tex. LEXIS 1081 (2015), the Texas Supreme Court found that incorporation of a defective product was not physical injury to tangible property and, thus, was not property damage, even if the property suffered diminished value, citing (in part) the Illinois Supreme Court case of Traveler’s v. Eljer as a basis for its decision.
Loss of use means precisely what the words state—no more and no less. Damages payable by a commercial general liability (CGL) policy because of loss of use is a type of damage that are the consequence of not being able to use property. Within the CGL policy and subject to all exclusions and limitations, covered loss of use results from being deprived of the use of tangible property, and the coverage applies to pay such damages whether or not the tangible property has been physically injured.
Loss of use damages are often appropriately couched in terms of consequential damages. By design, loss of use damages compensate a property owner for damages that result from “a reasonable period of lost use” of the personal property. The amount of damages may thus be measured according to the particular loss experienced, such as the amount of lost profits, the cost of renting a substitute chattel, or the rental value of the owner’s own chattel.
Loss of use occurs whenever there is an interruption of normal use of property. This interruption may be caused by a tangible, physical blockage of access to property. The unifying factor … is that the property in question … cannot be used.
In other words, the meaning of loss of use within the CGL policy’s definition of property damage are damages that are similar in nature to time element damages suffered by a business during a period of interruption. This notion is reinforced by the timing of when loss of use damages are payable as property damage. “All such loss of use shall be deemed to occur at the time of the ‘occurrence’ that caused it.”
In Continental v. Gilbane, the CGL policy in effect at the time of the occurrence causing those damages—the falling windows—will pay for all loss of use damages even if the loss of use damages continued for months after the policy expiration.
A contractor performing road repairs ruptures the public water main, resulting in the closing of at least one business that requires the water as part of their processing operations. Due to lack of reasonable maintenance, a billboard collapses, blocking the entrance to a gasoline station and preventing customers from accessing the station until the billboard and its debris can be moved by the billboard’s owner.
Other types of losses involving property may not be a loss of use damages. More specifically, diminished value or the cost of repair are not usually considered a loss of use damages.
However, we previously have stated that “[d]iminution in value—even to the point of worthlessness—is not the same as ‘loss of use’ under the insurance policy, which by its plain language contemplates some sort of loss of use in fact, not a reduction in value.”
In any event, as we have noted above, the diminution in value award in this case was simply an alternate of the cost of repair damages, and did not fundamentally recharacterize the nature of the harm in such a way to trigger coverage under West Bend’s CGL policy.
Diminution in value and cost of repair are not two separate harms—they are two different ways of measuring the same harm.
Also, preventative costs, particularly when there is no physical injury to tangible property, are not usually considered damages because of property damage and, thus, not usually covered by the CGL policy.
Our determination does not strip the word “damages” of all meaning; to the contrary, it refines the definition to include only those costs which are remedial, not preventive.
The following are illustrations of loss of use as property damage using lost master keys as an example and theft of tangible property as property damage.
The Lost Master Key—The Claim. A contractor was hired to perform work at an apartment complex. Provided with the master key, the contractor left the door open and discovered the master key was stolen, necessitating changing all of the locks for the apartments. A claim is made against the contractor for the cost of replacing all of the locks. Does this constitute property damage within the contractor’s CGL policy?
As the locks did not suffer physical injury, this claim does not fit within the first prong of the definition of property damage—physical injury to tangible property. But as the locks are tangible property, does the cost of replacing all of the locks fall within the second prong of property damage definition—loss of use of tangible property that has not been physically injured? The claim does allege that the locks have been rendered useless for their intended purpose.
The Lost Master Key—Preventative Costs. Loss of the master key does not keep the locks from functioning—the locks still secure the doors. The real issue is one of security. The apartment does not know who has the lost master key, and thus, security may be compromised. However, it would be an unusual apartment complex indeed that could name with certainty everyone who has access to a master key, including employees, property managers, etc. Any guest in a hotel knows that numerous persons have access to their room keys—management, housekeeping, maintenance, etc. But no one would claim that fact renders hotel door locks useless.
The cost of replacing the apartment door locks appears to be more preventative than a loss of use damages, and preventative costs, particularly without actual physical injury to tangible property, usually do not constitute damages because of property damage.
The Lost Master Key—Repair Costs. But aside from the issue of whether the locks still function, any payment demanded is preventative and not damages covered under a CGL policy. Payments to replace the locks are not damages because of loss of use of tangible property.
As noted above, repair costs or the diminished value of the locks does not constitute a loss of use damages. Instead, and presuming the locks were rendered useless, loss of use damages would result from the inability to use the apartments. The resulting consequential damages for loss of use may be the loss of renters because of the compromised security—a potential renter was ready to enter a lease but backed out when the issue of the master key was disclosed. Or additional costs could be incurred by the apartment as payments to accommodate the renters in other lodgings because of the questionable security.
The Lost Master Key—Preventative or Repair Cost May Be Less Expensive. While the cost of paying for the replacement of the locks may be less expensive than paying for actual loss of use claims, that does not transform such payments into damages because of property damage. Consider the real life Hancock Tower claim by the restaurant. The restaurant was not alleging the insurer should pay for the 10,000 windows to be replaced, which would have resulted in an end to its loss of use claim, but was claiming loss of use of its restaurant.
Similarly, in the example of the large piece of contractor’s equipment that breaks down and blocks the street, the store owners are not demanding removal of the piece of equipment as their damages. And the gasoline station is not demanding removal of the collapsed billboard. The claim is for the loss of use of their own property.
Theft of Tangible Property as Property Damage—The Claim. In a hotel’s parking garage, a customer’s car is broken into, and items are stolen. The hotel customer makes a claim against the hotel, as he finds out from the local police that the hotel knew of frequent thefts from cars parked in the hotel’s garage but took no precautions. Presuming the car or its stolen contents was not in the care, custody, or control of the hotel, does this claim constitute property damage?
The contents stolen from the auto are tangible property but have those items been physically injured, and thus, do they meet the first prong of the definition of property damage—physical injury to tangible property? And what of the loss of use of the tangible property stolen (golf clubs)—would the theft constitute loss of use of tangible property?
Theft of Tangible Property as Property Damage—A Contrary View. The traditional view is that theft of tangible property for which an insured is liable is not considered physical injury to tangible property but, rather, solely loss of use of tangible property that has not been physically injured.
But the customer is claiming the value of his golf clubs, not damages, because he may have to rent golf clubs until his stolen clubs can be replaced. And as noted above, a claim for the value of the item is not the equivalent of damages because of loss of use.
Whether the golf clubs are actually physically injured is unknown—the thief or someone to whom the thief sold the clubs may be using the clubs more efficiently than the original owner. Or the clubs could have been destroyed because the thief disliked golf and anyone who owned clubs. But I suggest that whether the stolen clubs are damaged is not the measure of physical injury to tangible property.
Theft of Tangible Property Is Physical Injury to Tangible Property. Instead, I suggest the measure should be whether the property is “altered in appearance, shape, color or other material dimension” , as stated in Traveler’s v. Eljer. Because the golf clubs are no longer in the possession of the owner, certainly from the owner’s perspective, the golf clubs are altered in an “other material dimension”—the clubs are gone.
The damages are because of physical injury to tangible property—measured by the value of the clubs—and not damages because of loss of use of tangible property that is not physically injured.
As further support for theft as physical injury to tangible property, consider the following. Two months after reporting the theft, the police find the golf clubs completely destroyed, as they were apparently burned by the thief. Now there is no longer a question as to whether the tangible property is physically injured. Does the hotel’s CGL insurer now owe additional damages (damages in addition to the loss of use damage) because of physical injury to tangible property? In other words, is the type of property damage determined at some future date? It would be quite arbitrary to determine whether there is physical injury to tangible property based solely on whether the stolen items are found at some later date.
For example, where a workman’s tools are converted, he may recover not only the value of his tools at the time of conversion and prejudgment interest on that value, but also “such amount as the jury might believe from the evidence would be more adequate to the loss he sustained in being deprived of their use in the exercise of his trade.”
Loss of Use of Tangible Property That Is Physically Injured. There may not be a sustainable loss of use claim at all by the owner. If the clubs were not likely to be used again for months because of the seasonal nature of golf, the owner of the clubs would not be able to show any loss of use damages at the time of the theft.
On the other hand, if the clubs were stolen on the way to a golf vacation, and now the owner has to rent clubs, the cost of the rental would be loss of use damages and would be in addition to the damages for the value of the clubs.
Not all losses to or impairment of property are considered property damage. While older case law may have held that diminished value of the property was property damage (i.e., physical injury to tangible property), that view does not have a basis in today’s CGL policy definition of property damage. Speculating as to the “purpose” of the CGL policy should not give way to the actual policy wording.
The following view was expressed by the Illinois Supreme Court in its reversal of the Seventh Circuit Court of Appeals decision in Traveler’s v. Eljer.
Had the Eljer court applied its own ordinary meaning interpretation of the phrase “physical injury” to the claims presented, the result would have been the same as our result today: without a “harmful change in appearance, shape, composition, or some other physical dimension” (Eljer, 972 F.2d at 809) to the claimants’ property, the insurance coverage is not triggered. We believe that the Eljer majority erred when it set aside the “central,” plain, and ordinary meaning of the term “physical injury,” and instead employed an admittedly “conjectured” analysis with respect to the function that the phrase was intended to perform in a CGL policy.
While there is plenty of room for debate on the when and how damages because of property damage apply, urging overly broad damages attributed to loss of use is not generally supported by the CGL policy’s definition of property damage. In fact, the CGL policy does not define “loss of use,” and thus, that phrase should be given its plain and ordinary meaning, as noted in Traveler’s v. Eljer above. With this in mind, it appears evident that loss of use damages are distinctly different from damages that result from physical injury to tangible property. The former measures consequential loss because of deprivation of the use of the property; the latter measures the value of the property that has been physically injured.
The distinction between repair costs (or diminished value if not repaired) and loss of use damages is reflected in the American Law Institute’s Restatement.
The Restatement (Second) of Torts fundamentally changed that recovery scheme. Section 927 now provides, in relevant part:
- When one is entitled to a judgment for the conversion of a chattel or the destruction or impairment of any legally protected interest in land or other thing, he may recover …
- the value of the subject matter or of his interest in it at the time and place of the conversion, destruction or impairment; ….
- His damages also include:
- the additional value of a chattel due to additions or improvements made by a converter not in good faith;
- the amount of any further pecuniary loss of which the deprivation has been a legal cause;
- interest from the time at which the value is fixed; and
- compensation for the loss of use not otherwise compensated.
Tort damages include both the value of the subject matter and compensation for loss of use—loss of use is clearly not the equivalent of the value of the property.
Fortunately, thousands of people safely utilize public transportation services on a daily basis. However, the unfortunate reality is that accidents can occur. When those accidents result in injuries, an individual may be faced with a personal injury claim.
Public transportation providers include many forms of transit, such as public or municipal transit authorities, taxis, commercial bus lines, air carriers, and even entertainment-focused services such as cruise ships, ski resorts, and amusement parks. As providers of a publicly-used service, the owners or managing entities of these services are responsible for the safe operation and maintenance of associated equipment, such as cars, buses, boats, ski lifts and rides. While the majority of individuals utilize these services on a daily basis with no threat or actual injury, accidents do occur and occasionally people are injured.
In the event of a transportation-related injury involving a single person, a claim may be required. As with other types of personal injury claims involving liability, it is the responsibility of the claimant to demonstrate some level of negligence leading to the accident and injury. This may involve demonstrating that fleet vehicles were not suitably or accurately repaired or inspected, that training was not sufficient for staff to safely and knowledgeably operate the equipment, or that through willful neglect of a situation, the defendant allowed the accident and injury to occur. This may require a discovery process orchestrated by your personal injury attorney.
In the case of larger-scale accidents, such as mass injuries on a public transit line, a cruise ship or on a specific ride or park attraction, a larger investigation may be conducted by an external entity (such as a safety bureau) in order to determine the exact cause of the accident. One aspect gaining increasing attention, for example, is operator error or misconduct: A public transit operator who causes and accident, for example, may be scrutinized for operating infractions such as the use of a personal device or mobile phone, a practice prohibited by most companies and public organizations that offer transportation services. In cases where a large number of people are injured or killed by the negligent actions of an individual or entity, the settlement process may be conducted in a group format similar to a class action.
Mass transit accidents vary widely in range and scope. Depending on the severity of the injuries sustained by passengers, fatalities caused as a result of the accident, and the number of affected individuals, settlements can be complex and may require significant time investment on the part of the attorney(s). While some passengers may have sustained only minor injuries, others may be more seriously affected. In many large-scale accidents, wrongful death suits also enter the scenario, in cases where a spouse or family member was killed as a result of the accident.
No matter the scope of your personal injury, (whether you are injured in a single instance or as a result of a catastrophic event) an attorney can guide you through the claims process. In the event of a class action, having legal counsel to help you understand your options and accurately represent the severity of your injuries can make a difference in the amount of compensation you receive.
Generally speaking, “assault” occurs when someone threatens bodily harm to another in a convincing way. Assault often is followed by battery, which is defined as unlawful physical conduct (often an act of violence, but also unwelcome sexual contact). Not all threats are considered assault. To rise to the level of an actionable offense (in which the plaintiff may file suit), two main elements must be present:
Therefore, a person who intends to cause apprehension of imminent harm and succeeds in doing so has committed the tort of assault, which also is a crime.
Words, without an act, cannot constitute an assault. For example, no assault has occurred where a person waves his arms at another and shouts, “I’m going to shoot you!” where no gun is visible or apparent. However, if the threatening words are accompanied by some action that indicates the perpetrator has the ability to carry out a threat, an assault has occurred.
It is an assault where a person threatens to shoot another while pointing a gun, even where the victim later learns that the gun was not loaded or even real. Moreover, pointing a gun without an accompanying verbal threat is still an assault, assuming the victim saw the gun.
Assault requires intent, meaning that there has been a deliberate, unjustified interference with the personal right or liberty of another in a way that causes harm. In the tort of assault, intent is established if a reasonable person is substantially certain that certain consequences will result; intent is established whether or not he or she actually intends those consequences to result. Pointing a gun at someone’s head is substantially certain to result in apprehension for the victim.
In criminal law, intent means acting with a criminal or wrongful purpose. Criminal assault statutes often speak of acting “purposely,” “knowingly,” “recklessly,” or “negligently.” Acting negligently means to grossly deviate from the standards of normal conduct. Some criminal assault statutes recognize only “purposely,” “knowingly,” and “recklessly” as the level of intent required to establish that an offense occurred.
The victim must have a reasonable apprehension of imminent injury or offensive contact. This element is established if the act would produce apprehension in the mind of a reasonable person. Apprehension is not the same as fear.
Apprehension means awareness that an injury or offensive contact is imminent.
Whether an act would create apprehension in the mind of a reasonable person varies depending upon the circumstances. For example, it may take less to create apprehension in the mind of a child than an adult. Moreover, if a victim is unaware of the threat of harm, no assault has occurred. An assailant who points a gun at a sleeping person has not committed an assault. Finally, the threat must be imminent, meaning impending or about to occur. Threatening to kill someone at a later date would not constitute an assault.
If you have or are considering filing a claim for assault, it may confusing knowing where to begin — especially if the incident also resulted in criminal assault charges. Have your assault claim reviewed by a personal injury attorney today, at no cost to you.
Few types of vehicle crash cases are as complex as those involving large commercial vehicles. Large truck crashes often result in severe injuries, so the stakes are also much higher than other types of vehicle injury cases.
Large truck crashes are a common occurrence on our roadways. In 2015, large trucks were involved in 87,000 crashes that caused injury. There were also 4,050 large trucks involved in fatal crashes. Most of these injuries and deaths were suffered by the occupants of the smaller vehicle and not the truck’s occupants. Nearly 70 percent of the fatalities in large truck crashes were occupants of the smaller vehicle, as opposed to just 16 percent being truck occupants.
Crashes involving commercial vehicles can be caused by any number of factors, including speeding, distraction, and impairment. Fatigue is also a major problem among truck drivers, who often work long, grueling hours to meet the demands of their jobs. Truckers are also more likely to suffer from certain health problems than workers in other industries. These conditions include heart disease, diabetes and sleep apnea, conditions that can hinder a driver’s performance and increase the likelihood of being involved in an accident.
While all drivers are subject to strict driving laws, commercial vehicle operators must adhere to an even stricter set of laws and regulations. Drivers are not allowed to drive for longer than a set period in a given day. They must also adhere to requirements regarding the size and weight of a truck. Commercial vehicle laws and requirements also vary from state to state, further complicating cases involving trucks that travel between different states.
An inexperienced attorney might assume that a truck crash case is just a bigger version of any other type of vehicle crash case. However, that assumption ignores the nuance and complexity of these cases. An attorney should have a working knowledge of not only the many laws concerning truck drivers, but also be familiar with the policies of the companies that hire their drivers to ship goods to buyers.
Trucking companies are prepared to defend themselves against lawsuits. They typically have much deeper pockets than the person filing an injury claim. They might also have access to large, experienced legal teams that specialize in these types of cases.
If you have suffered an injury in a crash involving a large truck, you should be selective about the attorney you choose to hire. Retain the services of an attorney who has handled cases involving large trucks, one who can tell you about the cases they’ve handled before and the ways in which they’ve found success for their clients.
Just because an attorney has handled vehicle crash injury cases doesn’t necessarily mean they are equipped with the knowledge and experience required to get the maximum amount of compensation for clients injured by a tractor-trailer. Remember this when discussing your case with a potential attorney, and ask for specifics about their experience.
Personal injury law refers to the legal remedies and defenses involved in civil lawsuits brought as a result of wrongful conduct. In fact, the word “tort” comes from a Latin term meaning twist, wrong, or harm. In contrast to criminal law, a tort action does not involve the government prosecuting the wrongdoer. Rather, these cases involve a private plaintiff seeking compensation (usually money) for the harm caused by the defendant’s actions.
Most personal injury cases are based on the doctrine of negligence. In essence, negligence requires every member of society to act responsibly and avoid putting others at risk. That is not to say that negligence will result each time someone gets hurt. The doctrine recognizes that some accidents are unavoidable. To establish liability, the plaintiff must show that a reasonably prudent person in the defendant’s position would have acted differently under the circumstances.
Examples of negligence include car accidents caused by drunk drivers, medical complications resulting from a physician’s carelessness, and dog bites that occur when vicious animals are permitted to roam free. In each instance, the responsible party ignored the risk posed to others, and as a result, the plaintiff was injured.
Once negligence has been established in a personal injury case, the defendant must pay the plaintiff for all injuries caused by the defendant’s actions. Certain types of damages are easy to calculate, such as property damage and medical bills. For other types, such as emotional distress and loss of earning capacity, expert testimony may be required. Punitive damages, meant to punish and deter particularly egregious conduct, may also be available.
When initiating a tort action, identifying the proper defendants can be difficult. This is because the “tortfeasor” who directly harmed the plaintiff – be it a delivery driver, nurse, grocery store clerk, or other individual – may not have the financial resources to pay a large judgment. An experienced injury attorney can identify and sue additional parties who are liable based on their relationship to the tortfeasor, such as a landlord or employer.
Personal injury law encompasses a number of causes of action besides negligence. Many of these fall under the umbrella of intentional torts. As the name suggests, in these situations the defendant acts purposefully to harm the plaintiff. Examples include assault, battery, false imprisonment, trespass, theft, and infliction of emotional distress.
On the opposite end of the tort spectrum, there are scenarios in which defendants will be liable even though they did everything possible to avoid causing the harm. This is referred to as strict liability. The law will hold a defendant strictly liable if someone is hurt while the defendant is engaging in a highly dangerous activity, even if the activity is legal and all precautions are taken. Building demolition and transporting hazardous materials fall into this category.
Another common tort involves injuries caused by defective products. Liability in these cases can be imposed based on a theory that the manufacturer acted negligently by designing and selling an unsafe product. Or, if certain elements are met, plaintiffs hurt by a defective product may be able to sue under a strict liability theory. Either way, product liability cases have the potential to become large class action lawsuits, involving many plaintiffs and enormous money judgments.
To defend against personal injury liability, defendants tend to rely on a few common defense theories. In negligence cases, the defendant may argue that the plaintiff did not use due care, and is partially or wholly responsible for his or her own injury. The defendant may also claim that the plaintiff “assumed the risk” by voluntarily participating in a dangerous sport or activity, or that the plaintiff impliedly gave the defendant permission to take the action that ended up harming the plaintiff.
Plaintiffs who want to avoid losing a tort case based on such arguments should hire legal counsel. Retaining an attorney will also help avoid the unfortunate circumstance of violating a statute of limitations (that is, missing the deadline for filing the lawsuit), which is always a concern in personal injury cases.
There are some tricky legal issues with personal injury claims arising from boating accidents – like establishing negligence and liability when the accident was caused by a wave.
Boating is great fun, but sometimes accidents happen. If you get hurt while on a pleasure boat, and are wondering what your legal rights are, here are some things that you should know.
If you get injured on a motorboat or a sailboat, you must be able to prove that your injury resulted from someone’s negligence in order to be able to recover damages from that person. The fact that you got hurt does not mean that anyone was negligent. Negligence is the failure to act with reasonable care. This means that you and your lawyer must be able to prove that someone failed to act with reasonable care, and that, as a result of that negligence, you got hurt.
To better illustrate how a negligence claim would work, it helps to identify the main types of boating accidents. The majority of pleasure boating accidents are the following:
In a collision between two motorboats, both boats’ operators will usually be at least partly at fault. Thus, injured passengers on either of the boats would have a legal case against the operators of both boats, much like in a car accident case. If one of the operators was injured, he or she would only have a claim against the other operator if the injured operator was less than fifty percent responsible for the collision. In a collision between a sailboat and a motorboat, the motorboat is more likely to be at fault than the sailboat because safe boating practices, often called “The Rules of the Road,” require motorboats to keep out of the way of sailboats.
When a boat hits a big wake or wave, the jolt to the boat can knock the passengers down or throw them out of their seat or overboard. Legal liability for a wake accident is not always clear cut. Federal and state boating laws and regulations, as well as safe boating practices, require the boat’s operator to keep a proper lookout for anything that might be a hazard to his or her boat and passengers. But the operator’s liability in a wake accident will generally depend on the circumstances, such as the following:
The operator of the boat that created the wake may also be negligent, depending on the accident location and the boating traffic in the area. If, for example, the boats were in a no wake zone (usually found in marinas and in inner harbors), then any wake violates the boating safety rules, and the operator would be negligent. If the boat was zipping through a crowded area and leaving behind a large wake, the operator may be found negligent for creating too large of a wake for the area. But if the accident occurred in an isolated area, then the other operator is unlikely to be at fault.
A wave accident is similar to a wake accident except that there is no other boat to hold liable. So whether the boat’s operator was negligent will generally depend on the circumstances described above.
Even in the best of weather and visibility, the boat can hit a submerged object or a rock. In poor weather and poor visibility, boats can run aground or hit a jetty or the coastline. The operator’s liability for a collision with a fixed object will depend on the circumstances. If, for example, the operator has nautical charts for the area, is traveling slowly and cautiously, and hits a rock, he or she is probably not going to be found negligent. But if he or she is zooming along in dense fog, without charts or a GPS, and runs into a jetty, that is negligence.
Federal and state boating safety laws and regulations require even small pleasure boats to have various kinds of safety equipment on board, such as life jackets for each passenger, throwable life rings, navigational lights, flares, loud whistles, and fire extinguishers. While failure to have the proper safety equipment on board will probably not cause an accident, it can hamper the rescue efforts afterward. If the boat becomes disabled, flares and whistles allow the passengers to signal passing boats. If someone falls overboard, life jackets and life rings make it much easier to get that person back on board. The lack of proper safety equipment on board could lead to a claim of negligence against the boat’s owner.
Just like in a car accident lawsuit, if a boater acted negligently and you became injured as a result, you are entitled to damages. Your damages may include the reasonable value of your medical bills, your lost earnings and lost earning capacity, and pain and suffering.
Even if someone else was at fault, that does not mean that you will be able to recover damages from that person. If the person has no boaters’ insurance and no assets, he or she will not be able to pay you damages. Motor vehicle insurance does not cover injuries on boats. Homeowner’s insurance might provide insurance coverage for these injuries, but not everyone has homeowner’s insurance, and not all boat owners have boating insurance coverage through their homeowner’s policy. Nor will you be able to file a claim against your own homeowner’s insurance for this type of injury. Unlike motor vehicle coverage that usually includes uninsured benefits, homeowners’ insurance policies almost never provide coverage for the actions of other people who do not have insurance.
If a loved one has been killed in a deadly car accident, you want to find out the cause of the crash so you can determine if someone can be held accountable. One possible crash cause: drowsy driving.
Drowsy driving crashes have become very common and are a leading reason why fatal motor vehicle accidents happen. Because of the absence of an objective test for drowsiness, it can sometimes be a challenge to show that fatigue was the cause of a crash. This means drowsy driving could actually be an underreported problem that is worse than experts currently believe.
While the difficulty of accurately measuring drowsy driving crashes is a problem that should be solved, let’s focus for now on the risk that we know exists and on the rights of victims who are harmed by drowsy driving.
Drowsy driving causes approximately 328,000 motor vehicle collisions each year. This includes 109,000 motor vehicle accidents where someone is hurt. It also includes 6,400 crashes in which at least one person loses his or her life. The victim killed is not always the fatigued driver. Innocent motorists could be involved in deadly accidents if a driver continues to drive despite feelings of fatigue.
Drowsy driving is dangerous for anyone who gets too little sleep. If a motorist gets five to six hours of sleep, instead of the recommended seven hours minimum, the motorist’s crash risk increases by 1.9 times the danger faced by a non-fatigued motorist. If a motorist got only four to five hours of sleep, his collision risk would be equivalent to the danger posed by a drunk driver.
Around 35 percent of the population sleeps less than the recommended seven hours. Any of these motorists could be susceptible to causing a crash due to the heightened collision risk that results from fatigue.
Drowsy drivers can be held liable for some collisions that cause serious injury or fatalities. They can be held liable for crashes if the collisions happen as a result of the fatigued driver’s negligence. If a motorist continues to drive after dozing off, or drives for so long he can no longer exercise good judgment, that motorist could be held accountable for a crash that results.
A victim of a drowsy driving accident must prove the drowsy driver was unreasonably careless and caused a crash as a result of negligence. Often, it becomes important to work with accident reconstruction specialists who can explain crash circumstances.
Drowsiness cannot be tested for, or objectively measured, like the presence of alcohol in your system or the speed of a car can be me measured. As a result, successfully proving a case against a drowsy driver can be more challenging than when other types of crashes happen, such as a collision caused by a drunk or speeding driver. Making a case and pursuing compensation is possible with the right legal strategy.
If you are on a bicycle and get into an accident with a car or truck, what you do at the accident scene and immediately after is crucial.
When bikes get into accidents with cars, it’s scary. (Fortunately, most bicycle accidents do not involve cars.) If you are the one riding the bike, it’s important to keep your wits about you after the crash. What you do in the immediate aftermath of the accident may have a big impact on how much you recover for your injuries and damage to your bike. It may also affect the outcome of any lawsuits resulting from the accident.
Here’s what to do.
It is vital that you wait for police to arrive at the accident scene so that they can take and file a police report — even if you think you are not injured. Some cyclists don’t realize they’ve been injured until several hours after the accident. And sometimes seemingly minor injuries later develop into serious and permanent problems. If you leave the accident scene, you may never be able to identify the at-fault driver.
Don’t attempt to negotiate with the driver. Many drivers initially apologize and accept blame, only to later deny their negligence or even deny they were present at the accident. Instead, wait for the police to come so they can document everything in the police report. Another advantage of waiting for the police: They may ticket the driver, which may be useful in settling the case with the insurance company.
Sometimes, the police officer will take a statement from the motorist and not bother to talk to the cyclist. Do everything you can to get your side of the story into the police report. And by all means, report all of your injuries, no matter how minor. Remember, those minor injuries may later become more serious.
If, despite your efforts, the police refuse to include your statement in the accident report, you can later have the report amended.
If possible, get the name of the automobile driver, as well as his or her address, phone number, driver’s license number, vehicle license number, and insurance information. In addition, try to get names and contact information for everyone who witnessed the accident. Don’t assume the police report will include all of this information — it might not. If you are injured and cannot get this information yourself, ask a bystander to do it for you.
If you can, make mental notes about the accident: what happened; how it happened; where it occurred; when it occurred; and road, traffic, and weather conditions. Then, as soon as you are able, write all this information down. (To learn more about preserving evidence, see the article Take Notes After an Accident or Injury.)
Seek immediate medical attention for your injuries, even if they are minor. The fact that you sought medical attention will serve as proof that you were injured, and medical records will document the extent of those injuries. Have several photos taken of your injuries as soon as possible after the accident. Start a journal of your physical symptoms and make entries every few days.
Leave your bike and other damaged property in the same state as after the accident — don’t attempt to fix anything or have anything inspected. Don’t wash your clothing. And don’t send your bike, helmet, or any other equipment to anyone other than your attorney. Take photos of your damaged equipment. (To learn more, see the article Personal Injury Accidents: Preserve Evidence.)
Many accidents between bikes and cars involve complex legal issues. You may want to consult a personal injury attorney who understands bicycling or has handled bike accident cases. Such an attorney can:
Don’t communicate with the insurance companies before consulting an attorney. Anything you say to the insurance company could be used against you later. Sometimes a letter from an attorney to the insurance company will resolve issues while avoiding legal pitfalls. In fact, most injury cases are settled without ever going to trial.
If the case warrants it, your attorney can hire a bike accident expert to investigate the accident. That person might obtain skid mark measurements, photograph the scene, speak with additional witnesses, or measure and diagram the accident scene.
Although April is Distracted Driving Awareness month, we, as Florida car accident lawyers know too well that that distracted drivers causing car accidents are an unnecessary problem which is plaguing Florida’s roadways. In fact, according to a recent report, Florida ranks 2nd worst, after only Louisiana, among all states, in the number of admitted distracted drivers, with more than ninety percent of all drivers admitting to using a phone while driving.
While the report, generated by EverQuote, is eye opening for many government regulators; we driver know too well the growing number of inconsiderate motorists who disregard other’s safety and drive while using their phone – any trip down I-95 or I-595 will result in seeing dozens of drivers with a phone in one hand. In fact, Florida’s Department of Highway Safety and Motor Vehicles reported nearly fifty thousand car accidents involving distracted driving upon our roads over the last year which resulted in nearly 4,000 personal injuries and more than 200 wrongful deaths.
According to EverQuote, although most drivers believe they are safe drivers, they don’t even realize how frequently they use their phone, to read a text or tweet, while their car is in motion. The company used an app which monitored vehicle operations to determine how poorly distracted drivers operate their vehicles. Considering that even reading or sending a text message results in a driver’s eyes leaving the road for nearly 5 seconds, a car traveling at 45 m.p.h. will actually travel more than 300 feet before the driver is able to get their eyes properly back on the road upon which they are traveling.
Yet despite the obvious dangers associated with distracted driving, Florida remains one of only four states that does not make texting while driving a primary traffic offense, meaning police officers are not allowed to write a ticket just because they see a motorist texting while driving.
To combat the likelihood that a distracted driver will cause a car accident, many insurance companies suggest their customers place devices in their car, so they can “monitor’ driver behavior and “reward” good drivers. Unfortunately, most drivers don’t realize that the insurance companies really want to punish drivers whom they believe are not driving safely. This is why we, as Florida Car Accident lawyers, believe educating ourselves and, particularly younger drivers, of the dangers of texting while driving, is a better route to take, rather than allowing insurance companies unfettered access to our driving behavior.
We remind everyone that using a smartphone while driving is anything but smart. As the slogan goes “it can wait.”