Archives for August 2015

Res Ipsa Loquitor, latin for “the thing speaks for itself,” is a tort principle that allows plaintiffs to meet their burden of proof with what is, in effect, circumstantial evidence. The plaintiff can create a rebuttable presumption of negligence on the part of the defendant by proving that the harm would not ordinarily have occurred without negligence, that the object that caused the harm was under the defendant’s control, and that there are no other plausible explanations.  In the vast majority of tort cases, a plaintiff must prove exactly what was negligent about the defendant’s conduct.

In a few increasingly rare situations the doctrine of res ipsa loquitor shifts the requirement to the defendant to demonstrate that she or he acted properly. As indicated above, certain events are said to “speak for themselves.” For example, if a brand new chair collapses when an individual sits upon it, one might argue that the thing speaks for itself. A brand new chair should not collapse absent some negligence on the part of the manufacturer.

The Anglo-American legal doctrine of res ipsa loquitur arose from an 1863 English case in which a pedestrian was hit by a barrel of flour falling from the upper floors of a warehouse that was solely occupied by the defendant. In that case, the plaintiff was not able to present evidence of exactly how the defendant was negligent, as the plaintiff was not present in the upper floors of the warehouse at the time of the accident. Despite being unable to meet the traditional burden of proof, the plaintiff won his lawsuit under a presumption of negligence, because the defendant could not provide an explanation for the event (Byrne v. Boadle).

The present day U.S. courts are reluctant allow a plaintiff to shift his own burden of proof onto the defendant, that is, requiring the defendant to prove he acted properly. Legal scholar Brad Reid, Senior Scholar, Dean Institute for Corporate Governance and Integrity, Lipscomb University, cited the following fifteen examples, randomly selected from over one hundred 2015 U.S. court decisions, in which the plaintiff was unable to successfully assert res ipsa loquitur, meaning that these events did not “speak for themselves.” Here, the plaintiffs were required to prove the defendant’s negligence:

. Livestock on the highway were hit by a car.

. A mis-leveled elevator caused a fall.

. A patient with a fractured pelvis was improperly diagnosed.

. A newly installed HVAC system caught on fire.

. A city sewer system overflowed into a home after a two-day rainstorm.

. Airborne chemicals came from installed spray-foam insulation.

. Four foreign objects were left in a patient’s abdomen during a 1999 surgery.

. Fireworks mortar shells launched at a July 3 celebration injured the audience.

. A jail trustee was injured in an explosion while attempting to relight a gas-fired furnace.

. A house fire was caused when a squirrel was in an electrical transformer on a power pole.

. A conscious patient saw a drainage tube removed; however, part of the tube remained in his body.

. A newspaper delivery man was injured when a step collapsed at an apartment complex.

. A patient asserted improper post-surgery care.

. Air bags failed to deploy in an automobile accident.

. A tree stand collapsed when the ratchet straps failed.

 

Courts appear to be more and more hesitant to allow a case to go to a jury when res ipsa loquitur is the basis for liability. This development may be in part due to current legislation, particularly in the area of medical malpractice, which limits the grounds for recovery. It may also be due to the progress and development made in science and technology which now allow plaintiffs’ to actually prove defendants’ negligence. For example, in the case of a wine glass shattering in the hands of a proprietor, the plaintiff was able to hire an expert who proved through research and testing that the glass was defective. One hundred years ago, an exploding glass would have likely fallen under the doctrine of res ipsa loquitor, as the plaintiff would have been unable to prove exactly how the manufacturer was negligent or why the glass exploded.

Mr. Reid noted that courts frequently make the following type statements before denying res ipsa loquitur:

. The instrumentality producing the injury was not solely and exclusively under the control of the defendant.

. The only reasonable hypothesis for the product’s failure must be a defect due to a breach of duty or omission by the defendant.

. Res ipsa loquitur is a rule of circumstantial evidence grounded in probability and sound procedural policy.

. Res ipsa loquitur is inapplicable if the accident might have occurred without the defendant’s negligence.

. The injury must not have been caused or contributed to by any voluntary act on the part of the plaintiff.

. The connection between negligence and injury may not be based upon speculation or conjecture.

. All parties who could have caused the injury must be joined as defendants.

 

This post provides a short educational explanation about a complex legal topic and is not intended to be legal advice. If you have been injured due to the negligence of another, consult the Law Offices of Stuart L. Plotnick today for a free consultation.

Source: Brad Reid, Senior Scholar, Dean Institute for Corporate Governance and Integrity, Lipscomb University, Huffington Post, May 27, 2015.

Elder abuse tends to take place where the senior lives: most often in the home where abusers are often adult children. Abuse can also occur in institutional settings, such as long-term care facilities. Elder abuse can take many different forms, some involving intimidation or threats against the elderly, some involving neglect, and others involving financial exploitation. The most common are defined below.

Physical abuse is non-accidental use of force against an elderly person that results in physical pain, injury, or impairment. Such abuse includes not only physical assaults, but also the inappropriate use of drugs, restraints, or confinement.

Emotional abuse occurs when people speak to or treat elderly persons in ways that cause emotional pain or distress. Verbal forms of emotional abuse include: intimidation through yelling or threats; humiliation and ridicule, and habitual blaming. Non-verbal forms of emotional abuse include ignoring, isolation, and menacing the elderly individual.

Sexual abuse is physical contact with an elderly person without the elder’s consent. Such contact can involve physical sex acts, but also includes activities such as showing an elderly person pornographic material, forcing the person to watch sex acts, or forcing the elder to undress.

Neglect or failure to fulfill a caretaking obligation, makes up over half of all reported cases of elder abuse. It can be intentional or unintentional.

Financial exploitation involves unauthorized use of an elderly person’s funds or property, either by a caregiver or a third-party, and includes: misuse of an elder’s personal checks, credit cards, or other accounts; theft of cash or household goods; forgery; and identity theft. The elderly are particularly susceptible to scams such as announcements of a “prize” that they have won, but are required to pay money to claim; investment fraud; and fake charities.

Healthcare fraud and abuse can be carried out by unethical doctors, nurses, hospital personnel, and other professional care providers. Examples include:

• Charging for healthcare services not actually provided;
• Overcharging or double-billing for medical care;
• Receipt of kickbacks for referrals or prescriptions;
• Over- or Under medicating; and
• Medicaid fraud

Signs and symptoms of elder abuse

Elder abuse or neglect might not be obvious, and any outward signs might initially appear to be symptoms of dementia or a sign of the elderly person’s frailty, but that doesn’t mean that you shouldn’t dig deeper. Look for general signs of abuse to include frequent arguments or tension between the elderly person and caregiver, and changes in personality. If you suspect abuse or neglect, look for elements of physical and behavioral signs that include:

Physical abuse:

• Bruises, welts, or scars
• Broken bones, sprains, or dislocations
• Report of drug overdose or apparent failure to take medication regularly (a prescription has more remaining than it should)
• Broken eyeglasses or frames
• Signs of being restrained, such as rope marks on wrists
• Caregiver’s refusal to allow you to see the elder alone

Emotional abuse:

• Threatening, belittling, or controlling caregiver behavior that you witness
• Behavior from the elder that mimics dementia, such as rocking, sucking, or mumbling to oneself

Sexual abuse:

• Bruises around breasts or genitals
• Unexplained venereal disease or genital infections
• Unexplained vaginal or anal bleeding
• Torn, stained, or bloody underclothing

Neglect by caregivers or self-neglect:

• Unusual weight loss, malnutrition, dehydration
• Untreated physical problems, such as bed sores
• Unsanitary living conditions: dirt, bugs, soiled bedding and clothes
• Being left dirty or unbathed
• Unsuitable clothing or covering for the weather
• Unsafe living conditions (no heat or running water; faulty electrical wiring, other fire hazards)
• Desertion of the elder at a public place

Financial exploitation:

• Significant withdrawals from the elder’s accounts
• Sudden changes in the elder’s financial condition
• Items or cash missing from the senior’s household
• Changes in wills, power of attorney, titles, and policies
• Addition of names to the senior’s signature card
• Unpaid bills or lack of medical care, although the elder has enough money to pay for them
• Financial activity the senior couldn’t have done, such as an ATM withdrawal when the account holder is bedridden
• Unnecessary services, goods, or subscriptions

Healthcare fraud and abuse:

• Duplicate billings for the same medical service or device
• Evidence of overmedication or undermedication
• Evidence of inadequate care when bills are paid in full
• Problems with the care facility: poorly trained, poorly paid, or insufficient staff; crowding; inadequate responses to questions about care.

If you suspect that a loved one is being abused or neglected, contact the Law Offices of Stuart L. Plotnick at 301.604.9569 for a complimentary consultation today.

Source: http://www.helpguide.org/articles/abuse/elder-abuse-and-neglect.htm

 

 

 

The college rape crisis has been in the news a lot over the past year and has gained national attention. From articles in popular magazines and mainstream newspapers, such as the Washington Post, to the White House, college sexual assault is at the forefront of our national discussion. President Obama and Vice President Obama are backing the Not Alone Project, that strives to break the silence about sexual violence on college campuses and reach out to provide support to victims after an attack. In 2014, the White House Task Force to Protect Students from Sexual Assault released their first report in April 2014, revealing a shocking statistic: one in five college students experience sexual assault during their college career. The ACLU, however, estimates that up to 95% of sexual attacks go unreported.

What is Sexual Assault?

Sexual Assault, as defined by the U.S. Department of Justice (DOJ) is “any type of sexual contact or behavior that occurs without the explicit consent of the recipient.” Sexual activities that are included in this definition are: forced sexual intercourse, forcible sodomy, child molestation, incest, fondling, and attempted rape. Other sources define the term more broadly, to include: unwanted kissing, groping, and exhibitionism. Sexual assault doesn’t always involve physical contact. In fact, acts such as voyeurism can still count as unwanted sexual attention.

One in five college women are targets of attempted or completed sexual assault while college students, while college freshman and sophomores are thought to be at the greatest risk. According to a 2000 report funded by the National Institute of Justice, the vast majority of campus sexual assaults are committed by an acquaintance of the victim. In 90% of reported cases, the victim knew her attacker.

As noted above, only about 5% of sexual assaults are reported to campus authorities or law enforcement. There are many barriers to reporting that victims face, including inadequate university sexual assault policies, which leads to the problem remaining hidden on campuses across the country.

Alcohol can play a big role in sexual assault. The American Association of University Women (AAUW) estimates that 89% of assaults occur when the victim is incapacitated due to alcohol, while researchers at Wayne State University estimate the number to hover around 50%. Whatever the exact figure, alcohol plays a prominent role in campus sexual assault.

Federal Law and Sexual Assault on Campus

The AAUW website informs that Title IX of the Education Amendments of 1972 prohibits the sexual harassment of college students. Sexual assault, a form of sexual harassment, “denies of limits on the basis of sex, a student’s ability to participate in or receive benefits, services or opportunities at the institution.” In April 2011, the U.S. Department of Education issued guidance on the responsibilities of colleges and universities under Title IX and requires them to:

1. Define sex discrimination and sexual violence, and publish a policy stating that the school doesn’t discriminate on the basis of sex;
2. Have and distribute procedures for students to file complaints when sexual harassment, discrimination or violence occurs;
3. Appoint a Title IX coordinator to oversee these tasks, review complaints, and deal with patters or systemic problems.

Additionally, under the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act (Clery Act), colleges and universities must also notify students about crime on campuses, publicize their prevention and response policies, and inform victims of their rights.

Finally, in 2013, Congress authorized the Violence Against Women Act and included provisions to improve campus safety. Colleges will now have to report the number of domestic violence, dating violence, and stalking incidents that occur each year, in addition to the requirement to disclose sexual assault incidents and other crimes. They will also have to update their annual security reports to include their prevention programs.

What Can You Do to Protect Yourself?

While an attack is never the fault of the victim, there are steps college students can take to reduce their chances of becoming a victim and empowering themselves. For instance, the National Institute of Justice revealed that self-protection actions such as weaponless attacking, running, hiding, getting help, or struggling seem to decrease the risk of rape completion by 80%. Additionally, many colleges offer personal development courses in basic self defense. The New England Journal of Medicine published a study comparing the effects of attending a four session course in resisting sexual assault to a more traditional university approach of providing brochures on sexual assault. An intensive program showing female college students how to recognize and resist sexual aggression reduced their chances of being raped over a one year period by nearly half.

There are also basic safety guidelines that you can follow to help stay safe on campus. BestColleges.com put together the following to-do list:

1. Know your alcohol limits. Drinking too much can make you much more vulnerable to assaults by impairing your judgment or hindering your physical ability to fight off an attacker.
2. Watch your drinks. Take your drink with you wherever you go (including the bathroom). Never take a drink given to you by someone else or from a communal alcohol source.
3. Trust your instincts. If you get a bad feeling about a person or situation, leave immediately. If something feels wrong, or you feel pursued, get in the middle of a crowd of people. It seems that many attackers are unwilling to pursue someone who is aggressive or loud, which draws attention to the crime.
4. Stay with your friends. Attend parties and social gatherings with friends that you trust. Look out for each other and don’t leave anyone behind!

 

 

Construction workers face big risks as they work handling, for example, hazardous materials, or as they work at high elevations; use heavy machinery; encounter falling debris; or risk electrocution or being struck by a vehicle on the road. Needless to say, drivers maneuvering through highway construction zones put construction workers at risk for injury. For instance, in July 2014, a New Jersey turnpike construction worker was killed when he was struck by a car that crashed into the back of the truck in which he was riding. Sadly, the driver of that car was driving under the influence of alcohol. In Maryland in December 2014, a construction worker at BWI airport was killed after being injured by a concrete paver vehicle. Similarly, pedestrians walking through a construction zone also risk injury, in the form of falling debris, or being struck by heaving equipment. In March 2015, a 37 year old woman was walking on a pedestrian walkway through a construction zone in New York City when she was hit by a wooden board from a construction barrier after high winds kicked up. The board hit the woman and pinned her up against the wall of a building. The woman fell and hit her head, receiving a fatal injury.

The vast majority of construction accidents, however, occur on roadways. According to the Department of Transportation (DOT) Federal Highway Administration website, in 2010, there were 87,606 reported accidents in construction zones.. Of these crashes, 576 of them were fatal. Interestingly, the DOT states that 31% of construction work zone accidents were caused by speeding and 20% involved alcohol.  Forty percent of accidents occurred at night between the hours of 9:00 p.m. and 6:00 a.m. Moreover, over half of these construction work zone accidents occurred on roads where the speed limit was 55 miles per hour or higher.

If you have been injured in a construction zone, please contact the Law Offices of Stuart L. Plotnick today for a consultation.