Missouri Injury Lawyer Blog

A federal judge denied Bedford County, Tennessee's request for a summary judgment in a wrongful death case filed against the county, suggesting that the credibility of one of the county's witnesses may be compromised. The county had requested a dismissal of claims remaining in regard to the death of inmate Larry Dale Byford in 2009. Byford died of an apparent heart attack.

Byford's sister, Doris Rollins, filed the wrongful death suit against the county as well as against Donna Delrio, a nurse at the jail, over her brother's death. Rollins claims in her suit that Byford was denied necessary medical care, and that this lead directly to his later death at Vanderbilt Medical Center.

Federal Judge Harry S. Mattice denied the county's motion to dismiss the remainder of the case, and further denied the county's request to strike the testimony of numerous witnesses. Mattice cited repeated errors and inconsistencies in the testimony and documentation provided by the county and the jail regarding their roles in the case. The judge was quoted as saying he would overlook the first errors he saw as one-time mistakes "if not for the fact that the Court subsequently discovered that both parties' Statements of Undisputed and Material Facts are riddled with errors — typographical, factual, and otherwise."

The judge had attempted to construct a timeline of events regarding the case so he could rule on the summary judgment, but due to the quantity of errors and the sheer volume of material to examine, he decided that a summary judgment was not an appropriate decision.

Further, according to the judge, the county was relying heavily on nurse Delrio's testimony and written records as rebuttals to Rollins' arguments, but "discrepancies appear repeatedly throughout the disputes over nurse Delrio's accounts of her understanding of Byford's condition and her responses to the same."

The case is set to go forward, and the first trial date has been scheduled for November 1st.

As a Missouri ATV accident attorney, I write here a lot about the dangers of ATVs. These are off-road vehicles used for entertainment or getting around large farms and ranches, and despite being motor vehicles, they are not subject to nearly the same regulations as roadworthy cars and trucks. However, one area where both classes of vehicle may be treated the same, at least in Montana, is liability of those who build and maintain roads for hazardous conditions that cause a crash. That was the issue in Fasch v. M.K. Weeden Construction et al., a Montana Supreme Court decision stemming from a single-vehicle ATV accident on U.S. Highway 59. The court ultimately ruled that the case should be decided by trial, not summary judgment.

Walter Fasch was using a three-wheeled ATV to bring some fresh produce to a friend, which obligated him to use Highway 59. The highway was under construction at the time, with traffic routed onto pavement while another part of the road was dirt. On his way home, Fasch’s ATV rolled over several times and ended up right-side up in the dirt part of the road. He testified that he was on the edge of the paved part of the road and encountered a small hole in the pavement that tipped over the ATV. The defendants testified that evidence showed Fasch was on the dirt part of the road, which was closed to traffic, when he hit the hole. Fasch ultimately drove the ATV back to Hirsch’s house and sought help for a punctured lung, broken rib and other injuries. Fasch sued the state Department of Transportation and two private contractors working on the construction. The trial court ultimately granted summary judgment to defendants, finding that Fasch was driving on the dirt when the accident took place.

On appeal, the Montana Supreme Court reversed that ruling, finding that the case poses genuine issues of material fact. It found that the trial court improperly relied on the fact that ATV tracks were found on the dirt portion of the road to conclude that Fasch was lying about having started out on pavement. This would make him ineligible for compensation because he would have been breaking the law by using the dirt portion of the road. However, the court said, that evidence was not documented with anything other than a diagram and witness testimony. Fasch had the same evidence to back up his version of events, which was that the one set of tracks was created when he drove back to Hirsch’s house, and that if he’d been on the dirt to start with, there would be two sets. A reasonable jury could accept that version, the high court found. Thus, the dispute here should be resolved by a full trial, not on summary judgment, it ruled, sending the case back down to trial court.

As a southern Illinois auto accident lawyer, I strongly agree that the evidence, as presented in this opinion, should get a fuller airing. Dangerous roadways don’t just affect ATVs, though ATVs may roll over more easily than most cars and trucks. People in ordinary cars and trucks can also get into serious accidents when dangerous conditions go unfixed. These include construction-related problems, like those in this case, as well as intersections that lack a needed traffic signal, debris in the roadway, vegetation blocking road signs, roads that create dangerous “blind curves” and more. These problems are generally the responsibility of the government entity responsible for building or maintaining the roadway, and sometimes also of construction contractors. This kind of lawsuit can be more time-sensitive and intricate than a case against a private party, so I recommend that potential plaintiffs contact our St. Louis defective roadway attorneys as early as possible.

Continue reading "Montana Supreme Court Finds Injured ATV Rider May Sue State DOT Over Roadway – Fasch v. M.K. Weeden" »

As a Missouri motor vehicle accident lawyer, I believe pedestrian accidents are among the most destructive crashes. Unlike crashes between two vehicles, pedestrian crashes involve at least one person who is totally unprotected by a steel cage or any safety device — and almost always involve a driver who had a legal obligation to yield to pedestrians. In Lifson v. City of Syracuse and Derek Klink, the New York Court of Appeals, the state’s highest court, rejected a defense raised by a driver who hit a pedestrian as she crossed a pedestrian-heavy street. Driver Derek Klink hit Irene Lifson as she crossed the street, killing her. Lifson’s family sued, and Klink benefited at trial from jury instructions to consider the emergency doctrine — whether Klink behaved prudently in an emergency not of his own making. He was found not liable, but the New York high court found that the emergency doctrine instruction was in error.

Lifson and Klink both worked in the same Syracuse office tower, which lies across the street from a parking garage. Klink said he was unfamiliar with the area, however, when he pulled out of the garage on the day of the crash. He testified that he waited until he thought pedestrians had cleared the road before turning left, and when he glanced to the left again, he was blinded by the sun. When his vision cleared, he said, he saw Lifson too late to stop his car. Lifson’s family sued. At Klink’s request and over the objections of the Lifsons, the court instructed the jury to consider the emergency doctrine, which asked the jury to decide whether Klink faced an emergency not of his making and, if so, whether he responded in a reasonably prudent way. If it found both to be true, it would find no liability for Klink. This is ultimately what happened; the jury found Lifson 85% at fault and the city of Syracuse 15% at fault. The appellate division of New York’s courts affirmed the ruling, finding that the sun blinding could reasonably be found a sudden and unforeseen occurrence. A dissenter to that case argued that the sun glare was not an emergency because it could reasonably have been anticipated. The Lifsons appealed.

The New York Court of Appeals reversed, agreeing that Klink’s situation did not rise to the level of an emergency. It likened the case to Caristo v. Sanzone, a 2001 case in which a car slid downhill during icy weather and hit another vehicle. In that case, the high court reversed an emergency doctrine finding, saying the bad weather conditions had existed for at least two hours, and thus could not be considered “sudden and unexpected.” Similarly, the court found that it cannot be considered sudden and unexpected to be blinded by the sun while driving west at sunset. Klink was moderately familiar with the area, the court noted. Furthermore, the court found the error not harmless, because it permitted the jury to consider the evidence under a standard very favorable to Klink. Thus, it remanded the case to trial court. Judge Smith dissented, arguing that while the sun reliably sets in the west, drivers should not be required to always keep sunset, weather and obstructions in mind.

As a St. Louis auto accident attorney, I do not agree. In fact, I believe most people would agree that it’s completely reasonable to require drivers to keep road conditions in mind, including bad weather, road construction, obstructions on the side of the road and other factors as well as sun glare. All of these factors are easy to anticipate — though the sun is perhaps the easiest, being the main source of natural light for our planet — and common concerns for drivers. Indeed, failing to consider these factors is a failure in the common-law duty to take reasonable care behind the wheel that we all owe to one another. And that common-law duty is the source of lawsuits such as that of the Lifson’s family. A jury might still reduce blame for a driver if a pedestrian runs into traffic unexpectedly, but as a southern Illinois car accident lawyer, I encourage drivers who genuinely cannot see during sunset to find alternative routes.

Continue reading "New York Court Rejects Use of Emergency Doctrine in Fatal Pedestrian Accident Case – Lifson v. City of Syracuse" »

The wrongful death suit filed by the parents of a special-needs student shot to death by a school resources officer soon will be heard in federal court.

On September 2nd, the parents of Trevor Varinecz filed a wrongful death suit on his behalf. The lawsuit names Horry County Schools, the Horry County Police Department, Carolina Forest High School, the South Carolina Department of Education, former CFHS resource officer Marcus Rhodes and Mary P. Fay as defendants in the case. According to court documents, the case will be open for jury selection by September of next year.

According to the official report of the shooting, Varinecz allegedly attacked officer Rhodes with a knife. The State Law Enforcement Division ruled that the student was 'trying to force Rhodes to shoot him.' The SLED report went on to say, "The use of deadly force in this case was not only justified, it was essential to protect the students and staff at Carolina Forest as well as the officer."

The lawsuit makes a counter argument against this, saying that there were significant deviations made in Varinecz' education plan that were made without consulting with Trevor, his parents, or the boy's therapist. In particular, the time he was shadowed and observed was reduced from 900 minutes per week to 45, leaving large chunks of his time unaccounted for.

According to the family, this lack of observation led to a greater amount of time where he was sought out and harassed by bullies, leading him to believe he had to bring the knife, which they describe as a civil war relic rather than a large and dangerous weapon, in order to protect himself from what he perceived as a threatening and dangerous environment in the school.

The family says that the unexplained and unwarranted changes to his schedule caused Trevor to become fearful and depressed, leading to the breakdown in his mental state that lead to the shooting.

As a St. Louis auto accident attorney, I was interested to read a recent Ohio case about when accident victims may invoke their underinsured motorist coverage. In Barbee v. Nationwide Mutual Insurance Company, four members of the Barbee family were in a serious accident while visiting Wisconsin. They first sued the at-fault drivers, who were named only as “the tortfeasors,” but eventually found that the judgment was insufficient to cover all of their damages. They then sued Nationwide for coverage under their underinsured motorist policy, only to have the case dismissed because it was filed after a three-year deadline in the policy. The trial court and court of appeals found that the policy was ambiguous, but the Ohio Supreme Court reversed, finding no ambiguity serious enough to toll the deadline.

The Barbees’ policy with Nationwide contained three relevant provisions. One requires any lawsuit to be filed within three years of the crash. Another says no payment will be made until the limits of all other applicable insurance are exhausted. A third clause says no lawsuit may be filed unless the plaintiff has fully complied with the policy, including pursuing Nationwide’s subrogation rights. Nationwide itself sued the tortfeasor to obtain payment of medical costs, but the Barbees did not sue Nationwide within the three-year deadline. Rather, they sued the tortfeasors in Wisconsin federal court and eventually won — but the limits of one tortfeasor’s insurance policy were insufficient to cover their damages. Thus, the Barbees sued in Ohio state court, more than four years after the crash, to recover additional money from their underinsured motorist policy. Nationwide moved for summary judgment because of the deadline provision, but the trial court denied this, finding that the exhaustion provision tolled the deadline provision. Ohio’s Ninth District Court of Appeals agreed, reading the three provisions together as creating ambiguity. Ambiguities in insurance contracts are always construed in favor of the insured, so the appeals court found for the Barbees. Nationwide appealed.

It had better luck at the Ohio Supreme Court, which found the contract unambiguous. The court started by noting that the dispute is about when the three-year deadline began to run, not the existence of the deadline. The Barbees argued that they could not have known they needed the underinsured motorist coverage until after the federal lawsuit was concluded. Nationwide argued that there was no ambiguity because the exhaustion clause limits payment, not the right to sue. The high court agreed, citing 1998’s Ross v. Farmers Insurance Group, which found the right to payment was separate from the accrual of the claim. An insured can still file suit even if the right to payment is not yet settled, the court said. In fact, this is what happened with another victims of the same accident, Faith Donley, whose suit against Nationwide was stayed pending the outcome of litigation with the tortfeasors. Ohio state law supports this by allowing a three-year deadline to sue. The court dismissed the Barbees’ argument that this would create a flood of unnecessary litigation, saying there would be little extra burden because cases could be stayed when necessary. Thus, it reversed the lower courts. In a strongly worded dissent, Judges Pfeifer and McGee Brown disagreed that this was little burden, saying the situation could be resolved much more efficiently by tolling the deadline.

As a southern Illinois motor vehicle accident lawyer, I have to agree. The Ohio courts probably do not lack cases or attention. By requiring plaintiffs to file lawsuits before they know they need to do so, the court’s decision ensures more clogging of the courts and more work for attorneys on both sides, at the expense of the litigants. This is a financial burden that insurance companies can likely bear, but the same is not true of injured people. Sustaining a serious personal injury typically makes the victim’s financial situation worse, and in fact, many of my clients file suit as a way to defray the heavy medical costs of injuries that were not their fault. And of course, this case sticks the Barbees with the bills for injuries that everyone agrees were caused by someone else’s negligence, simply because they had the bad luck to interpret their insurance contract differently. As a Missouri car wreck attorney, I don’t believe this decision is in most Ohioans’ best interests.

Continue reading "Ohio Supreme Court Rules Accident Victims Must Sue Insurers Before Ensuring Coverage Is Needed – Barbee v. Nationwide" »

Javon Rakestrau's mother has filed a wrongful death claim in the tasering death of her son, which occurred last October in Lafayette, Louisiana.

Deborah Rakestrau is asking for a jury-decided civil trial against Lafayette Parish Sheriff Michael Neustrom and Sheriff Deputy Chris Guidry. The suit alleges excessive force, pain and suffering, mental anguish, medical bills and expenses, loss of enjoyment of life, emotional pain and suffering, loss of future companionship, loss of love and affection and grief, and asks for funeral expenses, attorney fees and punitive damages.

Javon was pronounced dead at the scene after a struggle with officer Guidry resulted in the deputy using a taser on the young man. The next day, Lafayette residents turned out en masse to protest the police's presence in their town, and to declare the killing both excessive and unprovoked.

According to the suit, Javon was walking when the deputy pulled over and ordered him to stop and put his hands on the vehicle. Javon disputed the stop and continued walking, at which point the officer and Javon began an altercation. It was at this point the deputy tased Javon, who did not respond. The officer continued tasing Javon at least one further time, apparently before realizing the man was unresponsive.

According to the report, this tasing caused a severe asthma attack that filled Javon's lungs with blood and foam, killing him before the ambulance could arrive.

The Sherriff's office said that Deputy Guidry followed protocol and only tased Javon when he resisted and refused to put his hands behind his back. Witnesses nearby dispute this claim, saying the man had his hands raised and was complying, even asking repeatedly not to be tased when Deputy Guidry went for his 'electronic control device.'

Deputies counter that he was also observed by an undercover drugs officer who was nearby, and drugs were apparently found on Javon after the tasing. No date is yet scheduled for the case.

As a Missouri auto accident attorney, I frequently write here about cases involving alleged defects with an automobile itself or one of its parts. These can cause a crash even when the driver is doing nothing unsafe, putting the people in the car and everyone around them at serious risk because of an auto company’s mistakes. That was the allegation in Bender v. Mazda Motor Corp., an Eleventh U.S. Circuit Court of Appeals ruling from Alabama. Peggy Bender lost a family member in a crash involving a Mazda Miata; she alleged that the airbags in the Miata were defective. Mazda sought to remove the case to federal court, but the federal court sent it back despite a pending ruling on the same issue in the Eleventh Circuit. Despite a ruling keeping that other case in federal court, the Eleventh in this case ruled that it did not have the authority to bring the case back into federal court.

Bender originally filed her lawsuit in Alabama state court against Mazda and the dealership where the Miata was purchased. Mazda removed the case, arguing that the amount in controversy was more than $75,000 and the auto dealership was not a proper defendant. Bender argued that there was insufficient evidence on the amount in controversy. Mazda cited a contemporary Alabama case, Roe v. Michelin North America Inc., which was awaiting a decision in the Eleventh Circuit at the time. Roe had similar facts, but the district court in that case found the amount in controversy, while not expressly stated, was “readily deducible” and “clear” from the complaint. The district court should follow this earlier ruling, Mazda said, or at least stay the case until the Eleventh made its ruling in Roe. The district court denied this motion and sent the case back to state court. Six months later, the Eleventh affirmed in Roe, keeping the case in federal court. Mazda moved in federal court for reconsideration of the previous ruling, but the federal court said it no longer had jurisdiction over the case because it had already been remanded. Mazda appealed.

On appeal, the Eleventh found that the district court was right — it was powerless to make new rulings in the case. This was true even though Mazda’s argument would otherwise have succeeded in moving the case back to federal court. The Eleventh found Harris v. Blue Cross/Blue Shield of Alabama was controlling. In that case, a claim moved back and forth from state to federal court, including a remand to state court from federal court. The defendants filed a successful motion to reconsider, and the plaintiffs appealed, arguing that the federal courts no longer had any authority to reconsider once the case was remanded. The Eleventh Circuit agreed, and in the current case, applied the same logic. Once a case is remanded, it said, the federal district court and even its federal appeals court have no jurisdiction to reconsider that remand order. It doesn’t matter that the remand order was legally erroneous under Roe, the Eleventh said; federal courts still have no jurisdiction. “The case has been removed to state court and that is where it will stay.”

As a St. Louis product liability lawyer, I’m interested in this case in part because it underscores an often-used tactic in injury cases. Injury cases, especially auto product liability cases like this, usually pit a single individual or family against a large, wealthy corporation. These corporations have a substantial advantage in terms of resources and legal expertise, so they don’t suffer much harm when they drag out the case with novel legal tactics or unlikely appeals. By contrast, this delay can hurt the plaintiff, who may not have the money to continue chasing the case through the court system (or systems). Indeed, plaintiffs often sue because the injury left them with serious financial problems. As a southern Illinois car crash attorney, I work hard to keep my cases where they belong and as short and easy on the plaintiffs as I can.

Continue reading "Appeals Court Refuses to Send Auto Product Liability Case Back to Federal Court – Bender v. Mazda Motor Co." »

Members of James Craig Anderson's family have asked both the State of Mississippi and federal prosecutors to remove the death penalty from consideration as regards the seven white teenagers charged with the brutal beating and hit-and-run death of Mr. Anderson on June 26. The Anderson family is pursuing a wrongful death claim in connection with the case.

CNN.com reported that Anderson's sister wrote the following letter to officials:

“We ask that you not seek the death penalty for anyone involved in James’ murder. Our opposition to the death penalty is deeply rooted in our religious faith, a faith that was central in James’ life as well. We also oppose the death penalty because it historically has been used in Mississippi and the South primarily against people of color for killing whites. Executing James’ killers will not help to balance the scales. But sparing them may help to spark a dialogue that one day will lead to the elimination of capital punishment.”

The letter was signed by Barbara Anderson Young, who speaks for Anderson's estate in legal matters.

The death penalty is currently only in discussion for Deryl Dedmon, a 19-year-old resident of Brandon. The only other teen facing criminal charges at this moment is John Aaron Rice. Dedmon is charged with capital murder, which Rice was originally charged with as well. A judge later lowered Rice's charge to assault because it was apparent that Rice was not driving the car that struck and killed Anderson.

According to reporting and surveillance cameras, the seven teens ambushed Anderson in the early hours of the morning, beating and kicking him severely before leaving the scene. As Anderson attempted to walk away from the scene while injured, Dedmon and Rice followed him, drove partly up onto the curb of the motel and struck Anderson, running him over.

Dedmon remains in jail, his bond request having been denied twice now. Rice and the others remain free, and none of the other five face criminal charges, though the wrongful death suit names all seven teens.