Category Archives: Cases in the News

Airplane Turbulence Injuries: Liability is Up in the Air

Five people had to be hospitalized on Monday after their United Airlines flight encountered some rough turbulence on the flight path between Denver and Billings, Montana. (Get the full story from The Denver Post.)

While a particularly bumpy flight can lead to rows full of white knuckles and muttered prayers, the fact is that actual injuries caused by turbulence are pretty rare.  According to the Federal Aviation Administration, every year around 58 people in the U.S. are injured by turbulence on a commercial flight. Over an almost-20 year period (from 1980 through 2008), 298 airline passengers and flight attendants were seriously injured in a turbulence-related incident, and three people died.

But what if you are injured on a turbulent flight? It’s possible that the airline could be held legally responsible for your injuries, especially since airlines are considered “common carriers” and the law imposes a heightened duty of care on them. That means airlines must use the vigilance of a very cautious person in order to protect passengers from potential harm.

That heightened standard of care doesn’t guarantee that you will have an easy time proving your case, however. It’s not enough to show that your flight experienced turbulence and that you were injured as a result. You also need to prove that the airline or one of its employees was somehow negligent in connection with the incident.

So, did the captain and the flight crew take reasonable steps to avoid the turbulence and follow proper protocol for warning passengers — ordering everyone to return to their seats and fasten their seat belts, for example? Was the flight understaffed? You could also have a valid claim against the manufacturer of a seatbelt or other piece of equipment if it was defective or otherwise did not perform properly, and that played a role in your injury.

On the other side of the causation coin, if the plane’s captain warned passengers to stay in their seats with their seatbelts fastened because the aircraft was entering a particularly rough stretch of turbulent air, and you decided to stretch your legs in the aisle anyway, the airline is likely to argue that you share most or all of the blame for your own injuries.

For everything you need to know about these kinds of cases, check out Nolo’s popular article Airplane Turbulence and In-Flight Injuries.

Tesla Model S Gets Federal Safety Probe After Fires

On the heels of three incidents in which Tesla Model S cars have caught fire after striking road debris, the federal government has announced that it is investigating a potential vehicle safety defect involving the popular electric car — specifically, the effect of “undercarriage strikes” on the vehicle’s battery compartment.

Here’s what the NHTSA’s Office of Defects Investigation had to say in announcing the Tesla probe:

    The ODI is aware of two incidents occurring on US public highways in which the subject vehicles caught fire after an undercarriage strike with metallic roadway debris. The resulting impact damage to the propulsion battery tray (baseplate) initiated thermal runaway. In each incident, the vehicle’s battery monitoring system provided escalating visible and audible warnings, allowing the driver to execute a controlled stop and exit the vehicle before the battery emitted smoke and fire.
    Based on these incidents, NHTSA is opening this preliminary evaluation to examine the potential risks associated with undercarriage strikes on model year 2013 Tesla Model S vehicles.

According to the Washington Post, it’s not clear whether Tesla CEO Elon Musk asked the NHTSA to look into the issue — Musk claims he did, but the head of the agency said he was “not aware” of any such request.

In any case, Musk isn’t thrilled with the picture that the media is painting when it comes to the Model S and its propensity to catch fire, and he may have a fair point.

In a blog post on the Tesla website, Musk makes the argument that three incidents of fire involving the Model S does not add up to a safety problem, especially when you put that incident rate side-by-side with the one for gasoline-powered cars. Here is the numbers breakdown from Musk:

    There are now substantially more than the 19,000 Model S vehicles on the road, for an average of one fire per at least 6,333 cars, compared to the rate for gasoline vehicles of one fire per 1,350 cars. By this metric, you are more than four and a half times more likely to experience a fire in a gasoline car than a Model S! Considering the odds in the absolute, you are more likely to be struck by lightning in your lifetime than experience even a non-injurious fire in a Tesla.

J&J Pays $2.2 Billion Fine to Feds Over Risperdal

Drug giant Johnson & Johnson, makers of the anti-psychotic medication Risperdal, have agreed to pay $2.2 billion in fines over allegations that the prescription drug was inappropriately marketed to older dementia patients and to children with behavioral disabilities.

The agreement was announced yesterday by the U.S. Department of Justice, which called it “one of the largest health care fraud settlements in U.S. history, including criminal fines and forfeiture totaling $485 million and civil settlements with the federal government and states totaling $1.72 billion.” In legalese, that is what is known as a “whopping” amount of money.

Risperdal is part of a class of “atypical antipsychotic” medications used to treat mental illnesses like schizophrenia, bipolar disorder, and irritability associated with autistic disorder.

Johnson & Johnson and other makers of atypical antipsychotics have come under regulatory scrutiny for for illegally touting these drugs for unapproved uses, and in spite of clear health risks. The New York Times calls yesterday’s settlement “part of a decade-long effort by the federal government to hold the health care giant — and other pharmaceutical companies — accountable.” Learn more about Lawsuits Over Risperdal and Other Antipsychotic Drugs.

J&J actually lost its patent protection for Risperdal a few years back, but the company is still paying a hefty price for a questionable-slash-illegal marketing strategy over the once-popular drug.

The Sriracha Lawsuit: Is the Popular Hot Sauce Also a Public Nuisance?

Makers of the hot sauce Sriracha have been feeling the regulatory heat recently from the southern California city of Irwindale, ever since processing at the company’s plant led to complaints of burning eyes, sore throats, and headaches from a number of locals.

The city of Irwindale filed a lawsuit against Huy Fong Foods, manufacturers of Sriracha, alleging that odors emanating from the facility amount to a “public nuisance.” The city is seeking an injunction which would force the company to cease all chile processing operations that are causing the olfactory offense, and even asked a Los Angeles County Superior Court judge to issue a temporary restraining order that would halt all such processing immediately. On October 31, the judge refused to issue the TRO and ruled that the factory can stay open for now. A hearing is set for November 22.

So, what is a “public nuisance”? For the most part, it’s just what it sounds like. It occurs when the defendant property owner (here, Huy Fong Foods) engages in some sort of conduct that is offensive or harmful to a large segment of the community. The conduct can produce sound, odor, even vibrations or some other disturbance that is offensive or obnoxious.

If a small number of local homeowners were suing the company directly, that would be a “private nuisance” action. Private nuisance cases are similar to personal injury cases in that you can get money damages when the defendant’s conduct interferes with your use and enjoyment of your property. But usually this kind of lawsuit also asks a court to force the defendant to stop doing the thing that is causing the alleged harm.

Learn more about Private Nuisance vs. Public Nuisance Cases and Remedies Available for Private Nuisance.

Since the judge in the Sriracha case denied Irwindale’s request for immediate closure of the plant, fans of the hot sauce can spice things up at their pleasure for now. But if the nation does face a “Rooster Sauce” crisis, the N.Y. Daily News offers these Sriracha alternatives in case there’s a shortage.

Salmonella Illnesses Linked to Foster Farms Chicken

At least 278 cases of salmonella illness have been linked to Foster Farms chicken products from processing facilities in California, the U.S. Department of Agriculture’s Food Safety Inspection Service has announced.

The specific affected products haven’t been pinpointed, but so far federal safety officials have identified raw Foster Farms chicken products that consumers should be on the lookout for. According to the Public Safety Alert from the FSIS, raw products that came from the three facilities in question will have one of these unique identifying numbers inside of a USDA mark of inspection or somewhere on the packaging:

  • “P6137”
  • “P6137A”
  • “P7632”

FSIS also says that the products were mainly distributed to retail outlets in California, Oregon and Washington State. The majority of the 278 reported illnesses have been in California, but NBC News reports that people in 18 states have been sickened.

The strain linked to this outbreak is known as Salmonella Heidelberg. Salmonella-related illnesses are some of the most common foodborne illnesses, but infections can be serious and even life-threatening especially, for the very young and the elderly. According to the FSIS, “the most common symptoms of salmonellosis are diarrhea, abdominal cramps, and fever within eight to 72 hours. Additional symptoms may be chills, headache, nausea and vomiting that can last up to seven days.”

On the legal side, lawsuits over food poisoning aren’t the easiest to win. If you get sick after consuming a certain product or dining in a certain restaurant, it is one thing to suspect that you ate something that was “bad.” Proving it is another story. It usually requires the preservation of evidence (i.e. a portion of what you ate) and authentication of the source (i.e. that it came from a certain manufacturer or restaurant). But when foodborne illness is tied to a public safety announcement (like this one) or to the recall of a certain product, it may make for easier sledding from a potential plaintiff’s perspective.

Sending a Text to a Driver: R U Liable?

You send a text message to your buddy who is on a cross-country road trip, or to your spouse who is in the middle of a daily freeway commute. While busy reading your message, your buddy hits a pedestrian, or your spouse rear-ends another vehicle. Next thing you know, you’re slapped with a personal injury lawsuit. Sound crazy? Maybe not, if a recent New Jersey court decision has anything to say about it.

Here’s what the New Jersey Superior Court, Appellate Division held in their opinion in Linda Kubert, et al. vs. Kyle Best, et al., (which was filed on August 27):

    “The sender of a text message has a duty under the common law of negligence to refrain from sending a text to a person who the sender knows, or has special reason to know, is then driving and is likely to read the text while driving.”

The court didn’t extend liability to the specific case before it, finding insufficient evidence that the sender of the text breached any such duty under the circumstances. But they made clear that the potential for this kind of liability exists in New Jersey.

Let’s break this down a little bit: When it comes to civil tort liability — which means being on the legal hook for any harm or damages caused by something you did or didn’t do — the first thing the injured person must show is that you owed them some kind of legal duty of care. If you have no such duty, you’re not liable for any resulting injuries. It’s that simple.

So, what the New Jersey appellate court is doing here is opening the door for tort liability to extend to the sender of a text message, saying that if they know or have “special reason” to know that they’re sending a text to someone who is driving, they owe a legal duty — an obligation to anyone who may be injured by the driver’s inattention in the seconds spent reading the message — not to hit “Send.”

Is this a bit of a legal stretch? Aren’t drivers solely responsible for what they do and don’t do behind the wheel? Is “Bloombergian” a word? These are all good questions. Every state has laws prohibiting “distracted driving” in general, and most states have passed laws that specifically forbid using a handheld device to send and read text messages while driving.  If a driver is found to have violated these traffic laws in connection with a car accident, that’s a pretty clear-cut case of liability for any harm caused to other drivers, passengers, pedestrians, and so on. And the driver’s legal duty extends to keeping their hands off a phone while driving, regardless of who may or may not be texting, and devoting their total attention to what’s happening on the road.

Some might say that’s as far as the law should go, and they might wonder where it all ends. What about texting a surgeon while they are on call? Or a professional pilot? How about your rodeo clown buddy who stops to read your knock-knock joke while the cowboy gets a longhorn in his backside? That all may seem farfetched, but before you text your driving pals in the Garden State, know that you may be heading down a costly road.

NFL and Players Reach $765M Concussion Lawsuit Settlement

The National Football League and more than 4,500 of its former players have reached a $765 million agreement to settle lawsuits alleging that the league hid the dangers of brain injuries and didn’t do enough to protect players from concussions.

The lawsuit, which includes former stars like Tony Dorsett and Jim McMahon, plus the family of the late Junior Seau, has been making its way through U.S. District Court in Philadelphia. Last month, the NFL filed a motion asking the court to dismiss the case, but instead of ruling on the motion one way or another, U.S. District Court Judge Anita B. Brody ordered both sides to mediation. Today’s announced settlement agreement is a product of those mediation sessions.

According to the New York Times, “the money would be used for medical exams, concussion-related compensation and a program of medical research for retired players and their families. The N.F.L. also agreed to pay [the plaintiffs'] legal fees.”

The settlement comes at a time when unprecedented attention is being paid to player safety at all levels of the game — from the NFL and college all the way down to Pop Warner leagues — with a particular emphasis on preventing, diagnosing, and treating head injuries like concussions. (Learn more about Legal Liability for Brain Injuries.)

In the not-so-distant past, after a violent helmet-to-helmet collision, an NFL player was said to have had his “bell rung,” and he might spend a play or two on the sidelines in many instances. These days, team medical staff is on strict notice, and players must pass a rigid protocol when a concussion is suspected. It isn’t rare for a concussion to lead to weeks of a player being designated as “Out” on a team’s injury report, and teams are operating with an abundance of medical caution when it comes to players who have histories of concussions and other head injuries.

The Washington Post recently published an article spotlighting the NFL’s complicated dance on the line between player safety and league culpability: Do No Harm: NFL Tries to Improve Player Safety Without Admitting to Any Liability for Past. And PBS’ Frontline has weighed in on the topic in a timely feature focused on Football Head Injuries.

‘Texas Giant’ Roller Coaster Accident: What Does the Law Say?

Over the weekend, a Dallas woman was killed when she fell from a roller coaster car on the 14-story tall Texas Giant ride in Arlington’s “Six Flags Over Texas” amusement park.  (You can get more details on the accident from the Fort Worth Star Telegram article.)

Let’s take a look at a few legal “hotspots” related to this story:

There is Limited Government Regulation of Roller Coasters.  You might be surprised to learn that for fixed-site rides like those at any Six Flags amusement park, there are no federal safety regulations in place. Only about half of U.S. states regulate fixed-site rides and conduct park inspections, and Texas is not one of them (there is no state regulatory agency set up to monitor the safety of amusement parks). Learn more about Amusement Park Accidents and the Law.

Six Flags Could Be Liable for a Park Employee’s Negligence. There has been at least one witness report suggesting that, before the ride departed, the accident victim expressed concern over whether or not the car’s safety bar was working properly. (The Dallas Morning News has detailed some safety and staffing concerns at the park.)

If it is shown that a park employee’s negligence caused or contributed to the accident, then that worker’s carelessness will be imputed to the owners and operators of the park, under a legal theory known as “vicarious liability.” So, let’s say that it is park policy for employees to check that each Texas Giant coaster car’s safety bar is properly engaged prior to the start of the ride, and it’s also shown that a worker failed to do that in this case. Six Flags could be on the financial hook for the victim’s death in that situation, most likely in the form of a wrongful death lawsuit.

The Roller Coaster Car Manufacturer Could Be Liable If the Car’s Safety Features Malfunctioned. If the Texas Giant roller coaster car’s safety mechanisms did not function properly during the ride, and that failure played a role in the accident, then the car’s manufacturer could be held liable under a product liability legal theory. The Los Angeles Times reports that the German company that manufactured cars for the Texas Giant has already sent investigators to the accident scene in Arlington.

Six Flags Could Claim a Number of Legal Defenses. If faced with a personal injury lawsuit over the victim’s death, it’s a safe bet that Six Flags will try to argue a variety of legal defenses that are common in amusement park accident cases, including rider assumption of the risk, and rider non-compliance with park/ride safety rules. Learn more about Legal Defenses in Personal Injury Cases.

The Wrongful Death Case Against George Zimmerman

As you’ve no doubt heard by now, over the weekend a Florida jury acquitted George Zimmerman in the criminal trial over the death of 17 year-old Trayvon Martin. (Learn more about the criminal case here.) But that doesn’t necessarily mean Zimmerman has seen his last courtroom in connection with the incident. The NAACP is calling for a civil rights probe into the case, and Martin’s family could very well file a wrongful death lawsuit against Zimmerman in civil court.

As for the wrongful death angle, probably the most famous parallel here is the O.J. Simpson case. In 1995, Simpson was acquitted of the murders of his ex-wife and her friend, but was later placed on the financial hook for over $33 million in civil liability after the victims’ families brought a successful wrongful death lawsuit against him.

So, what might a wrongful death lawsuit against George Zimmerman look like? Under Florida’s Wrongful Death Act, a “personal representative” could go to court and file the civil suit on behalf of one or both of Trayvon Martin’s parents, as “survivors” of the deceased. Assuming Martin had no will and did not appoint a personal representative, Martin’s parents would likely qualify as “personal representatives” of his estate. So, the parents here could end up both 1) bringing the lawsuit, and 2) also being named as “survivors” who are entitled to compensation.

In wrongful death cases, “survivors” in effect “stand in the shoes” of the deceased when a wrongful act would have entitled the deceased person (Martin) to file a lawsuit and recover damages if death had not resulted from the defendant’s (Zimmerman’s) actions. Keep in mind here that Martin’s parents would not need to prove that Zimmerman committed a crime; it would be enough to show that Zimmerman’s carelessness or negligence resulted in Martin’s death.

There are restrictions on the kinds of personal injury damages that Martin’s parents could recover. They could get compensation for Martin’s pain and suffering in connection with his injuries and death. They could also recover the present value of “future loss of support and services” from the date of Martin’s death through a period of time that considers the life expectancies of Martin and his parents. Finally, reimbursement of funeral expenses is also an option under Florida law. (You can view the complete text of Florida’s Wrongful Death Act starting at Florida Statutes Title XLV section 768.16.)

Besides liability for money damages as a remedy (versus a penalty of incarceration for prosecution), the key difference between the criminal trial and any wrongful death civil proceeding is the “standard of proof.” The prosecutors needed to establish that Zimmerman was guilty of homicide (either second-degree murder or the lesser-included charge of manslaughter) “beyond a reasonable doubt.” Obviously, the jury found that the state’s prosecutors fell short of meeting this burden.

But in civil court, lawyers for Martin’s family would only need to prove that it is more likely than not that a wrongful act by Zimmerman caused Martin’s death. The legalese version of this standard is “by a preponderance of the evidence.” So, it’s a much lower bar that needs to be met in a civil case when it comes to proving liability.

Some Asiana Crash Injuries Linked to Seat Belts

Investigators continue to piece together the cause of the accident involving Asiana Airlines Flight 214, which crashed just short of a bay-adjacent runway at San Francisco International Airport on July 6th. In addition to two fatalities, there were over 150 passenger and crewmember injuries linked to the crash, and a pattern seems to be emerging when it comes to the cause of some of those injuries.

According to the Wall Street Journal, “[w]hen passengers began streaming into emergency rooms, hospital staffers said they saw many injuries associated with using seat belts that fasten around the lap,” the kinds of in-seat restraints that are used by the vast majority of airlines in all seating areas of their passenger aircraft.

WSJ notes that the design of these restraints — notably the absence of any chest or shoulder harness — is a practical one: “Seats where lap belts are used are now designed so that in a crash, passengers are cushioned by the seats in front of them. The seat back is designed to fall forward, absorbing the blow. [Installation of chest harnesses] would add to seats’ weight and require a heavier mounting system and floor frame, experts said.”

Over at CNBC, they’re opining that the absence of a safer seat belt system on planes comes down to questions of cost and comfort.

Learn more about injuries caused by seat belts and legal issues in airplane accident cases.