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Driver Liability for Cell Phone Related Car Accident

How an accident happens will largely determine who is ultimately held liable. If the at fault driver was found to have caused the accident while talking or texting, they will likely have more difficulty defending their case, and they may potentially face additional penalties. Nearly every state has laws on distracted driving, and most include some limitations on the use of cell phones by drivers. Regardless of whether you have an ear piece, integrated Bluetooth, or speakerphone system, if you are talking or texting on a cell phone while driving, an officer or other party can claim that you were driving while distracted. According to the most recent report by the NHTSA, one in ten on the road fatalities involved distraction. Accidents While Phoning or Texting If a driver is found to be at fault for an accident, then they can also be found liable for the injuries and property damage they caused. While a majority of auto accident cases settle out of court, the facts concerning how the crash happened are relevant to establishing the injured party's case for damages. When a jury is asked to decide an auto accident injury case, they will usually be tasked with deciding two primary issues:Whether the defendant caused the injuries and damages.How much money should be awarded to the plaintiff for suffering the injuries and damages. In most jurisdictions, if both parties are considered to be partly at fault, or fault is uncertain, the party that is found to be more than 50% at fault, generally is the party held responsible for the damages. If a party was on the phone when the accident occurred, they may be found some percentage (comparatively) at fault. In states like California, if a driver is found to be 25% at fault, any award they receive will be reduced by their percentage of fault. Rear-Ended While Talking on the Phone There are some auto-accident cases where it won't matter if the victim was on the phone or texting. If you are stopped at a red light, and you get rear-ended while texting or talking on the phone, it is highly unlikely that your texting or talking had anything to do with causing the accident. In this sort of a situation, your phone use, while still potentially against the law, generally cannot be used to attack liability. Related Resources: Find Personal Injury Lawyers in Your Area (FindLaw's Lawyer Directory) What's More Dangerous Than Texting and Driving? (FindLaw's Injured) 1 in 4 Car Crashes Involves Cell Phone Use: Report (FindLaw's Injured) Is Apple Liable for Distracted Driving Accidents? (FindLaw's Injured)
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Personal Injury Lawyer Dropped Your Case? Now What?

It happens all too often. A person hires a lawyer right after an accident, then months later when the medical treatment is all done, the lawyer they hired decides they no longer want the case. Don’t read into it too much. Some lawyers only handle cases if they are of a certain value or above. So unless your lawyer has ceased communicating with you, there are a few steps you can take to make sure your case can be smoothly transitioned over to a new attorney. However, if your lawyer has ceased communicating with you, it might be a good idea to get a new lawyer, and have your new lawyer attempt to connect with the old lawyer. On rare occasion, lawyers get sick, die, or just plainly go missing without warning, just like any other human being. The most important thing is to find out your statute of limitations date, because if you don’t file a lawsuit by that date, your claim will expire. 1. Ask Your Old Attorney to Delay Withdrawing Until You Find a New Attorney Attorneys will often recommend that you find a new attorney before they formally withdraw from representation, even when there has been a breakdown in the attorney-client relationship involving anger and animosity. Attorneys are generally agreeable to this arrangement because it will avoid injuring a client’s case. If you are firing your attorney, however, this request will likely not go over well. 2. Figure Out Your Lien Situation Personal injury cases, if handled on a contingency basis (which they typically are), may have lien provisions included in the attorney fee agreement. When an attorney drops your case, if your contract had one of these provisions, you need to get a letter from the attorney clearly stating whether they have a lien, or not, and if so, for how much. A lien is a typical contract term in a contingency fee contract that allows an attorney to place a claim for payment on your case, and requiring that they be paid from any eventual settlement or judgment issued in the case for the work they did on your case. When an attorney drops a case, they usually do not assert a lien, unless they have expended a significant amount of money or time on the case. Even then, some attorneys will release their liens in order to make it easier for a client to retain a new attorney, as a second attorney may be hesitant to take a case that has a lien attached to it. However, any new attorney will likely ask and want to know about liens before formally accepting representation. 3. Find and Hire a New Attorney Don’t delay. The longer you wait to find a new attorney, the less time the new attorney will have to prepare your case. FindLaw has a personal injury lawyer directory that you can browse for free to find an experienced injury attorney in your area. Related Resources: Injured in an accident? Get your claim reviewed by an attorney for free. (Consumer Injury) 5 Controversial Medical Treatments Still Used Today (FindLaw’s Injured) Chemical Spill in Kansas Hospitalizes Over 100 People (FindLaw’s Injured) Is Apple Liable for Distracted Driving Accidents? (FindLaw’s Injured)
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Sandy Hook Victims’ Families’ Lawsuit Dismissed Against Gun Maker

Recently, a Connecticut judge dismissed the lawsuit brought by the families of the victims of the Sandy Hook massacre against the gun manufacturer of the weapon used for the killings. Pursuant to a 2005 act signed into law by George W. Bush, the Protection of Lawful Commerce of Arms Act (PLCAA), the case was dismissed as the judge ruled the gun manufacturer could not be held liable. Under the PLCAA, a gun manufacturer or dealer cannot be held liable for how a gun is used if the gun was sold legally. The families of the victims based their lawsuit on a theory of negligent entrustment, which is one of the few exceptions to the PLCAA. Gun Manufacturers and Dealers Are Immune The PLCAA protects gun manufacturers and dealers from liability for how their guns are used so long as the sale of the weapon was lawful. In the Sandy Hook case, the shooter did not purchase the weapon, but rather obtained it from his mother, whom he killed. As such, making the argument that the dealer was negligent by entrusting the weapon to the killer just does not work as neither dealer, nor manufacturer, had any interaction with the actual killer. The judge in the matter also explained that the 2005 PLCAA intended to give gun dealers and manufacturers broad immunity. A Never-Ending Battle The attorney for the families has pledged to file an appeal and continue fighting. While the fight may seem futile, especially given the PLCAA broad protections for gun dealers and manufacturers, the attorneys and victims’ families believe very strongly that the gun manufacturer should be held liable. As part of their negligent entrustment theory, they claimed that the manufacturer and dealer were negligent by entrusting anyone with the weapon as it is designed to kill people. The manufacturer denies that claim, and convinced a court that the PLCAA prevents them from being liable at all. As a counterpoint, gun groups view this lawsuit very differently. They point out that the AR-15 rifle, which was the one used in Sandy Hook, is one of the most common rifles sold in America, and that it is not an automatic assault rifle, despite the aggressive, militarized look. Additionally, pro-gun groups argue that the PLCAA protections are reasonable, and that the person who pulls the trigger, not the company that makes the trigger, should be liable. Related Resources: Injured by a gun? Get matched with a local attorney. (Consumer Injury) Chemical Spill in Kansas Hospitalizes Over 100 People (FindLaw’s Injured) When to Sue a Chiropractor for Injury (FindLaw’s Injured) Is Apple Liable for Distracted Driving Accidents? (FindLaw’s Injured)
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5 Controversial Medical Treatments Still Used Today

It's easy to look back at medieval medical practices and wonder how they ever thought it would work. Theories about the four bodily humors may seem quaint in retrospect, but given the way medical knowledge and technology evolves, it's almost certain future generations will look back at medicine in our time and similarly wonder what we were thinking. So which controversial medical treatments are still in practice? Here's a look at a few. 1. Removing Part of the Skull to Relieve Pressure in the Brain As WebMD notes, a craniectomy for patients suffering from brain swelling can save a person's life, but also leave them permanently disabled. A recent study found that the procedure "can drastically reduce risk of death, with about 30 percent of patients dying following the procedure compared to 52 percent of those treated with standard medical care," but at the same time, "people treated with a craniectomy were three times more likely to wind up in a vegetative state ... and often were as likely to suffer long-term disabilities as patients receiving standard medical care." 2. Chiropractic Treatments It's a running theme -- among non-chiropractors of course -- that chiropractors aren't medical doctors. And as a recent Pain Science article noted, "The concepts of chiropractic are not based on solid science and its therapeutic value has not been demonstrated beyond reasonable doubt." Which is not to say chiropractic treatments don't work, just that their scientific basis hasn't been established. 3. Electroshock Therapy Ernest Hemingway blamed it for his memory loss and diminishing writing ability late in his life. According to Live Science, "Today, the therapy is safer, because patients receive anesthesia and electricity doses are much more controlled ... Still, the treatment can impair short-term memory and, in rare cases, cause heart problems." 4. Leech Therapy If you thought doctors stopped applying leeches to patients in the dark ages, think again. Heathline notes that leech therapy is making a comeback, treating "nervous system abnormalities, dental problems, skin diseases, and infections." Even Demi Moore thinks so. 5. Maggot Therapy Battlefield surgeons first started to notice that injured soldiers would heal more quickly in the field if flies laid eggs in their wounds. Later studies revealed that fly larvae "secrete digestive enzymes that can dissolve the wound's dead and infected tissue, a process known as debridement." Even though the FDA cleared maggots for medical use in 2004, it doesn't sound all that appealing. If you have been injured by a medical procedure, you may be able to seek compensation through a medical malpractice claim. Contact a personal injury lawyer today to find out if you have a case. Related Resources: Have an injury claim? Get matched with a local attorney. (Consumer Injury) 5 Signs You May Need a Medical Malpractice Attorney (FindLaw's Injured) Should Doctors Have to Tell Patients If They're on Probation? (FindLaw's Injured) Can You Sue a Doctor for Lying? (FindLaw's Injured)
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Chemical Spill in Kansas Hospitalizes Over 100 People

Last week, a Kansas-based manufacturer of food and beverage products accidently released a toxic chemical gas, a mixture of sodium hypocholorite and sulfuric acid, which sent over 100 people to the hospital. Fortunately, of the 125 people who sought medical attention, only two required an overnight stay in the hospital. MGP Ingredients, which was responsible for the spill, explained that the gas spill had dissipated after only a few hours. Additionally, the company has reported the incident to the EPA and plans to fully cooperate with the investigation. The company is also taking additional measures to avoid any future spills by engaging outside experts to investigate and assess the situation. How a Gas Spill Leads to Hospitalization While large gas spills are not everyday news, it is not an uncommon occurrence for people to be hospitalized for exposure to toxic gases. Most commonly it is due to carbon monoxide, which nearly everyone has been warned that it is the silent killer. Unfortunately, when a large gas spill happens near populated areas, individuals in the surrounding areas can have their health impacted. Usually, it is just for a short duration and only effects people within a certain radius from the spill. When the air that people breath has its chemical concentration changed, people can begin to notice problems, such as: Shortness of breath Light-headedness or dizziness Headache Nausea The symptoms can vary from severe to mild, from person to person, and in type or duration. For instance, a person with asthma, or another respiratory condition, will likely be more severely affected than someone without a respiratory condition. Can a Company Be Held Liable for a Chemical Gas Spill? When a toxic gas spill occurs, manufacturers can not only be held liable to the public for violations of anti-pollution laws, but can also be held liable to individuals who were injured, and/or affected, on a negligence theory. Since public gas spills tend to be atmospheric, meaning that a company released gas outside and not inside their buildings or buildings own by others, people generally are not severely affected. Nevertheless, companies can still be held liable for injuries or damages that an accidental release of gas can cause. The numerous people who went to the hospital as a result of the recent Atchison, Kansas gas spill may have potential claims or lawsuits against MGP Ingredients as a result of the spill. While injuries of a very short duration may not be valued very highly, medical bills as well as incidental or special damages can also be assessed, in addition to damages for pain and distress. Related Resources: Injured in an accident? Get matched with a local attorney. (Consumer Injury) Health Hazards (FindLaw’s Injured) Samsung Hit With First U.S. Lawsuit for Exploding Note 7 Smartphone (FindLaw’s Injured) Student Slips in Vomit, Suffers Brain Damage, Sues School for $1.3M (FindLaw’s Injured)
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When to Sue a Chiropractor for Injury

When a chiropractor’s medical treatment causes a patient injury, that patient may be able to sue. While chiropractors are not medical doctors, they can still be liable for malpractice or professional negligence. State laws differ on what the action might be called, but each cause of action generally considers the same elements to prove a claim against a doctor or a chiropractor. Injures alleged against chiropractors can be serious. For example, it was discovered that a famous model, Katy May, died at the age of 34 allegedly as a result of chiropractic treatment. After suffering from an on-set fall during a photoshoot, she hurt her neck. When the pain did not resolve itself, she sought chiropractic treatment. As a result of the treatment, an artery in her neck was pinched which caused her to have a stroke and die following the treatment.Although this situation may sound like a textbook case of medical negligence, that may not necessarily be the case. Establishing Medical Malpractice Against a Chiropractor Proving a medical malpractice involves showing that your treating doctor did not exercise the usual standard of care that a reasonable doctor, in your doctor’s situation, would have exercised during your treatment, and that it was that failure to exercise that standard of care that caused the injury. What this means is that if your doctor was doing the same thing that any other doctor would have done in their shoes, then regardless of the result, there likely would not be a case. In Ms. May’s case, if a lawsuit is ever filed, it will need to be shown that the chiropractor failed to exercise the usual standard of care that chiropractors generally exercise. For instance, if it is discovered that May did not receive x-rays before having her neck adjusted, then the doctor could possibly be considered to have not exercised the usual standard of care. May’s representative or family would still need to prove that the injury was caused by the chiropractor’s actions, and not some other cause. When to Sue a Medical Professional You generally have at least one year to file your case. In some states, medical malpractice or negligence claims have a different statute of limitations than injury claims. Additionally, there is one important requirement that applies to medical malpractice claims in most states, you may be required to provide notice of the claim to the medical professional, and the hospital, before filing a lawsuit. In California, for instance, you must notify the doctor and hospital within 1 year of discovery (but not more than 3 years from the date of injury), and once you notify them, you have to wait 90 days to file a lawsuit. Deadlines to file lawsuits against medical professionals are strictly enforced, which can be very burdensome especially while dealing with an injury. If you think you have a claim for medical malpractice or negligence against a chiropractor, doctor, dentist, or other health care professional, contact an experienced medical malpractice attorney as soon as possible. Most injury attorneys provide free consultations over the phone and may even be willing to look over your medical records free of cost. Related Resources: Injured in an accident? Get matched with a local attorney. (Consumer Injury) Medical Malpractice (FindLaw’s Learn About the Law) 3 Moms Sue Hospital and Doctor for Botched Deliveries (FindLaw’s Injured) Can You Sue a Doctor for Lying? (FindLaw’s Injured)
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Top 5 Reckless Driving Issues

The dangers of driving are many and you must pay close attention when you're on the road. Not only do you risk serious injury or even death when you're distracted, but there is also the possibility of being stopped by the cops and being charged with a traffic infraction or crime. Aggressive driving and road rage are not crimes in and of themselves. But they do lead to reckless driving, which is an offense. Let's look at the top issues surrounding reckless driving. 1. How Road Rage and Reckless Driving Are Related The National Highway Traffic Safety Administration considers aggressive driving a serious danger. Aggressive driving occurs, according to the NHTSA, when "an individual commits a combination of moving traffic offenses so as to endanger other persons or property." Aggressive driving and road rage lead to reckless driving, which leads to accidents and criminal cases. 2. Is Road Rage a Crime? In some states there are added penalties for crimes that arise from road rage. According to the NHTSA two-thirds of all accidents are caused by road rage, which leads to recklessness. So keep your eyes open, signal lane changes, and breathe deep when you feel angry, t could save you time, money, and your life. 3. Distracted Driving: Would You Pass a Textalyzer? Law enforcement officers are concerned about the prevalence of phone use on the road and though there is not yet a way to examine the role of phones in accidents, there may soon be. The textalyzer will allow police to analyze the phone activity of drivers before a crash =, and New York is the first state considering adopting the technology. 4. Can My Car Turn Me In for a Hit and Run? New cars are great for their innovations but would you feel the same way if one of those developments allowed your car to call the cops on you? Leaving the scene of an accident is a crime and, depending on your car's Emergency Assist functions, your car could call the police even if you don't think you need it. 5. Texting and Driving: 5 Potential Consequences You don't want to miss a text as plans can change at any minute. But you also don't want to drive and text or you could end up in an accident or facing a reckless driving charge. In California, fees and fines stemming from a first texting and driving ticket can reach $300. Talk to a Lawyer: If you are charged with a driving offense or a crime, speak to a lawyer today. Many criminal defense atorneys consult for free or a minimal fee and will be happy to assess your case. Related Resources: Find Criminal Defense Lawyers Near You (FindLaw's Lawyer Directory) Reckless Driving (FindLaw's Learn About the Law) Distracted Driving and Texting While Driving (FindLaw's Learn About the Law) State Traffic Laws Directory (FindLaw's Learn About the Law)
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Show of Hands: How Many Americans Support Cellphone Driving Laws?

How many Americans support laws that limit cellphone use while driving? According to a new FindLaw.com survey, it depends on what kinds of limits you're talking about. Half of those surveyed (50 percent) said they support laws that require hands-free cellphone use while driving, while 42 percent said they support a complete ban on drivers' cellphone use. Just 8 percent said they didn't support any limits at all. Regardless of your feelings on the issue, laws restricting cellphone use while driving are in effect from coast to coast. Here are three facts you may not know: In many states, laws on cellphone use while driving allow for "primary enforcement." Laws regarding handheld cellphone use while driving vary by state. (The Governors Highway Safety Association maintains this handy list of state-specific distracted-driving laws.) Many states allow for "primary enforcement" of these laws, which means a driver's cellphone violation can, in and of itself, be the basis for a traffic stop. However, in other states, laws may require a separate traffic violation in order for a driver to be ticketed for cellphone use while driving. With laws in place, police are coming up with clever ways to catch violators. While it's often easy to spot a driver with a cellphone pressed against his face, it's less easy to tell when a driver may be surreptitiously sending text messages in violation of the law. That's why some jurisdictions are coming up with clever ways to catch distracted drivers in the act, like using special SUVs to give state troopers a "boost" in their enforcement efforts. In one court's opinion, a person who texts a driver can potentially be held liable for crash-related injuries. This interesting legal twist arose after a 2009 crash; the driver had received two text messages before the accident occurred. A New Jersey appellate judge chided the teenager who sent the text, explaining that she may have had "a duty not to text someone who is driving" if she'd known the recipient would "view the text while driving." That's potentially significant because establishing a legal "duty," along with a breach of that duty, are key elements in proving negligence. Like it or not, cellphone-use-while-driving restrictions are in effect in most states. To learn more about these and other rules of the road (and what to do if you get a ticket), head over to FindLaw's comprehensive section on Traffic Laws. Related Resources: Browse Traffic Ticket Lawyers by Location (FindLaw) Texting and Driving: 3 Ways to Prove It (FindLaw's Blotter) 3 Texting Crash Videos Every Driver Should Watch (FindLaw's Law and Daily Life) Top 10 Tips for Distracted Driving Awareness Month (FindLaw's Injured)
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Top 10 Tips for Distracted Driving Awareness Month

The National Safety Council has designated April as Distracted Driving Awareness Month. According to the Council, thousands of people die each year in crashes caused by cell phone use while driving. But phone calls and text messages aren't the only distractions drivers should try to avoid while behind the wheel. Here are 10 tips and facts to keep in mind for Distracted Driving Awareness Month: New teen drivers are distracted more easily. Drivers between the ages of 15 to 20 make up only 6.4 percent of drivers on the road, but account for 11.4 percent of traffic fatalities. So parents, please teach your kids responsible driving habits. Every distracted second counts. Keep in mind that if you're looking down at your cell phone for only 4 seconds while driving, you could be driving the entire length of a football field without looking at the road. Eating while driving can be considered distracting. Although Distracted Driving Awareness Month focuses more on cell phone use, eating while driving can get you pulled over if cops think your snack time is taking your attention off the road. Cell phone records can be used in court. Think you can keep your cell phone use while driving a secret? Think again. Text-message and call records from cell-phone companies can be used in court to prove that you were distracted when the accident occurred. Texting and driving can lead to child endangerment charges. A California mom was arrested when she was caught texting and driving while she had her 1-year-old baby in her lap without any child restraints. Distracted driving can lead to public shaming. A local project in San Francisco called "TWIT Spotting" encourages bystanders to snap pictures of distracted drivers and turn them in. The photos are then posted on the "TWIT Spotting" website or placed on billboards in an effort to publicly shame the driver for his dangerous behavior. Texting crash videos will make you think twice. While they may be hard to watch, texting crash videos serve as a somber reminder of what can happen when you take your attention away from the road, even for a split second. Hands-free cell phone use can still be distracting. Although hands-free cell phone use while driving is generally legal in many places, it can still be a distraction for drivers who get wrapped up in their conversations and forget about the road. Use an app to curb your bad habits. There are smartphone apps out there that automatically shut off your messaging apps and temporarily stop incoming calls and text messages when you're driving. You could land in some deep doo-doo. Finally, there's a lesson to be learned from the driver who was texting while driving a rented convertible when he crashed into a truck hauling liquid manure. So don't be a doo-doo head and steer clear of all distractions while you're driving. Although Distracted Driving Awareness Month only lasts until the end of April, you should hang up all bad habits that lead to distracted driving year-round. To learn more about distracted driving laws and potential consequences, check out FindLaw's article on Distracted Driving. Related Resources: Cell Phone Crash Data (National Safety Council) Texting and Driving: 3 Ways to Prove It (FindLaw's Blotter) Texting a Driver May Make You Liable: N.J. Court (FindLaw's Injured) Driver's Google Glass Ticket Dismissed; Judge Sees No Proof (FindLaw's Legally Weird)
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If You’re Injured at the Gym, Can You Sue?

Injuries at the gym are fairly common. Whether it's pulling a muscle from doing too many reps or slipping in the locker because an overflowing shower made the floor wet, you may be wondering if your gym membership allows you to recover damages. So can you sue your gym if you're injured on the premises? Here are a few factors to consider before you file a lawsuit: What Does Your Liability Waiver Say? Most gyms require members to sign some type of liability waiver before joining. It's very possible that heavy lifting or exercise will lead to injuries, so gym owners are rightfully protecting themselves from lawsuits by enforcing liability waivers. However, depending on the type of liability waiver found in your contract, you may still be able to sue if you're injured at the gym. Some common liability waivers found in gym contracts include: A total waiver of liability. This means that the gym is free of all liability for any injury that occurs there. However, these types of agreements can be held unenforceable in court if they're overly broad. A waiver for negligence. This prevents gym members from suing for injuries caused by the gym or its employees' own negligence (i.e., accidents). These waivers are usually enforceable in court. A waiver of liability for intentional acts. In general, it's unconscionable or against public policy for courts to enforce waivers for intentional or reckless conduct that injures someone. So depending on the type of liability waiver that's found in your gym contract, you may be able to sue if you get injured at the gym. For example, if a gym owner knew that a weight machine was broken and could collapse if someone uses it, but doesn't warn members or fix it, then it could be considered reckless behavior that warrants a lawsuit. Potential Premises Liability Claims Like all other businesses, gym owners have a duty to ensure that the facility is reasonably safe for members and anyone conducting business there. Under premises liability laws, gym owners are responsible for inspecting the facility for defects and potential dangers. Even the gym employees or owner didn't know about a dangerous condition, they may be liable if a proper inspection would've revealed it. So if you're injured at the gym, check your membership contract and consult a personal injury attorney in your area about your potential legal claims. Related Resources: Does Your Gym's Liability Waiver Mean Squat? (FindLaw's Law and Daily Life) Can I Sue to Cancel My Gym Membership? (FindLaw's Injured) Top 3 Secrets of Gym Membership Contracts (FindLaw's Law and Daily Life) Is Tough Mudder's Death Waiver Legal? (FindLaw's Injured)
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