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It is virtually universal these days, that any substantial personal injury settlement, whether it be medical malpractice, products liability, or other major settlement, that the amount of the settlement, the name of the product or medical procedure, the venue, and the defense counsel’s name, be prohibited from any public disclosure. This aspect of settlement should be eliminated as a negotiated item at the injured party’s instance and option.
If the defense desires “confidentiality”, it must pay an addition negotiated substantial amount for this silence.
Products liability – personal injury litigation remains an active aspect of our judicial system. Virtually universally the defense seeks to escape responsibility by alleging that the injured party’s injury was due to an abnormal use of their product. While an abnormal use might occur (not the precise anticipated use), this does not allow the seller to escape liability when the injury occurs from a “foreseeable misuse” of the product. This means that if the seller reasonably anticipated that because of the nature of the product, it was to be anticipated that the product would be misused in certain ways, the seller can be liable if the injury occurred from what was anticipated by the seller to be a potential misuse. It is important to keep in mind that a misuse that is foreseeable can also be utilized as a strict liability theory of recovery.
Here we go again— but wait, it is even worse! Since our Missouri Supreme Court eliminated caps in injury malpractice cases, the insurance industry and its powerful allies in the Missouri legislature are presenting a bill to pass into law, a bill to eliminate entirely medical malpractice claims from the common law, but to instead, create a new legislative cause of action so that the legislature can then, on behalf of the medical profession, mandate whatever limitations on an injured person’s claim that they deem appropriate. This proposed legislation is in direct conflict and a deviation from our historical system of jurisprudence, wherein this category of case always has been a part of the common law of our legal system, and the legislature has never been constitutionally permitted to interfere, because it is a basic violation of the separation of powers. Even if there were judicial and constitutional precedent for this type of legislative action, it would be further unconstitutional for being “special legislation”, a denial of equal protection, a denial of our constitution’s “open courts” provision and most importantly a denial of the inviolate constitutional right to a trial by jury.
Whatever one’s stance might be with regard to the pursuit of legitimate medical negligence malpractice cases, such a law would be a profound deviation and exception to constitutional authority. it is suggested that this legislation threat is undoubtedly a ploy to reenter a negotiation for reinstating caps on damages in a “trade off” for the legislature’s pursuit of complete obliteration of medical negligence-malpractice injury litigation. Stay tuned!
We all often face releases or waivers of liability in our daily lives, whether as patrons of professional sporting events, participants in extreme sports, such as bungee jumping and skydiving, or any number of other activities. Frequently, we are required to sign a document before we are able to attend or participate in an event. Be sure to READ THE FINE PRINT before signing a waiver or release to verify that you are not excusing another party’s own negligence (carelessness) in the event you are injured. The law in Missouri refers to these phrases or clauses in contracts which release another party from future negligence as exculpatory clauses. If written correctly, and signed by you, this clause will exonerate the other party from their future negligence that causes you injury.
In Missouri, such clauses are disfavored. Therefore, the clause must be clearly and explicitly stated such that “there is no doubt that a reasonable person agreeing to an exculpatory clause actually understands what future claims he or she is waiving.” See Abbot v. Epic Landscape Productions a case from the Western District of Missouri Court of Appeals handed down in 2011. As a tip, if the word “negligence” is used in a waiver or release, that is a red flag to you that you likely should not be signing the document. In a recent decision from the Eastern District of Missouri Court of Appeals, a young snowboarder who was injured on the premises was denied his claim against the owner of the premises due to his signing of a waiver and release containing an exculpatory clause. See Guthrie v. Hidden Valley Golf and Ski, Inc., et al.
Although difficult to avoid the consequences of signing an exculpatory clause, you should seek legal representation to review your case given the strong public policy in Missouri in your favor.
Are you celebrating Memorial Day weekend by boating on a lake? While boating accidents do not claim as many lives or cause as much damage as car accidents, they have the potential to be devastating. While a boating accident can happen in any type of vessel, boating accidents statistics indicate that certain types of boats are more likely to be involved in accidents. About 58% of fatal boating accidents occurred in open motorboats, while canoes and kayaks were involved in 19%. Cabin motorboats were much safer, with only 10% of fatal accidents occurring in this type of vessel. Personal watercrafts, like Jet skis, were involved in 7% of fatal accidents and in 30% of all accidents that cause injuries.
Boating accident statistics indicate that the top five primary factors in boating accidents are operator inexperience, operator inattention, alcohol, excessive speed, and improper lookout. This means that most boating accidents are avoidable, many of them simply by paying attention and being a responsible, attentive driver. As in driving a car, having a driver who is distracted, impaired, or inexperienced makes it much more likely that an accident will occur and, if one does, that it will be a serious accident. According to boating accidents statistics, a boat operator who has been drinking is the number one contributing factor to fatal boating accidents. It was reported as the primary factor in 16% of all boating accidents and as a contributing factor in up to a third. Boating under the influence (BUI) is a criminal offense in every state in the U.S. and is punishable by fines and jail time.
While boating can be a fun and relaxing hobby, it is important to note that boating is not 100% safe. As the boating accident statistics presented here show, taking safety precautions for you and your passengers is a vital part of being a responsible boat operator.
Generally, a parent will not be held liable for the torts committed by their child. However, there are exceptions to the general rule. First, where the relationship of master and servant exists and the child is acting within the scope of his authority accorded by the parent. Second, where the parent is negligent in entrusting to the child an instrument which, because of its nature, use and purpose, is so dangerous as to constitute, in the hands of the child, an unreasonable risk to others. Third, where the parent is negligent in entrusting to the child an instrumentality which, though not necessarily a dangerous thing of itself, is likely to put to a dangerous use because of the known propensities of the child. Fourth, where the parent’s negligence consists entirely of his failure to reasonably restrain the child from vicious conduct imperiling others when the parent has knowledge of the child’s propensity toward such conduct. Lastly, where the parent participates in the child’s tortious act by consenting to it or by ratifying it later and accepting the consequences. Should any exception apply, the long held concept of vicarious liability will kick in and the parent can be held responsible for the acts of his/her child. For a recent discussion on the concept of vicarious liability in the parent-child relationship see the Eastern District Court of Appeals decision in Meier, et al. v. Schrock, et al. handed down on May 7, 2013.
In 2011, a group of Honda and Toyota automobile owners filed a class-action lawsuit against eight auto-part suppliers after the federal government released information detailing an international price-fixing scheme that may have cost American purchasers and lessees millions of dollars in the form of inflated car prices over a 10-year period. The defendants supply automotive wire harnesses and related products in a wide range of Japanese and American built cars. Collectively, the defendants dominate the global automotive wire harness systems market. Wire harnesses are used to direct and control electronic components, wiring and circuit boards in automobiles.
Among the defendants is Furukawa Electric, who was cited in an agreement in which three of its employees agreed to plead guilty and pay a $200 million dollar fine for the company’s participation in the scheme, and three of its executives are currently serving prison time in U.S. prisons for their roles. The vehicles purchased by plaintiffs during this class period include a 2009 Honda CRV, a 2005 Toyota Prius and a 2008 Toyota Camry.
If you know anyone who may have purchased or leased one of the above stated vehicles, please contact our firm by phone at 314-241-0763.
LISTEN TO CRAIG SCHLAPPRIZZI TODAY ON KFNS 590 THE FAN SPORTS RADIO 12:45-1:00 PM
click here to stream live – http://www.kfns.com/590.html
Craig will discuss with Jay Randolph a case he is handling involving a minor who was badly injured during an after school program. This ties into the topic Schlapprizzi Law Office discussed a couple weeks back regarding the importance of buffer/safety zones in sports and fitness activities to prevent injuries.
Space is a treasured commodity in both athletics and recreation but it cannot come at the expense of safety. The empty space between actual playing surfaces and out-of-play areas is a safety zone. Inadequate safety zones or buffer zones in sports and recreation can expose athletes and patrons to needless and avoidable dangers that cause serious injuries.
A 2006 analysis of lawsuits claiming provider negligence in the conduct of programs of sport and physical activity (Dougherty, 2006) revealed a lack of a sufficient buffer zone was alleged to have been the primary cause of the injuries suffered in 21% of all surveyed cases. Inadequate buffer zones were the primary cause of injuries in:
• 83% of Tennis cases
• 67% of Basketball cases
• 50% of low organized games cases
• 40% of fitness activities cases
• 17% of softball and baseball cases
The point is, by providing adequate buffer zones one can drastically reduce the likelihood of participant injuries and lawsuits in many sports and activities.