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Confidentiality of Settlement

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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 – Use/Misuse

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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.

Read the Fine Print

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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.

 

Parental liability for torts committed by child

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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.

Automotive Wire Harness Class Action Price-Fixing Lawsuit

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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.

Injuries in the Safety Zone and Craig Schlapprizzi on the Radio

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Craig discussed with Sportscaster, Jay Randolph, a case he handled involving a minor who was badly injured during an after school program. This ties into the topic Schlapprizzi Law Office discussed a couple weeks prior 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.

Our Law Firm Involved In Mock Trial Demonstration

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Our law firm is again involved in providing a presenter for a Missouri Bar program.  This time it is a mock trial program on April 26, 2013 at the Airport Renaissance Hotel.  The presenters on the program are all members of the American College of Trial Lawyers, which organization actually co-sponsors the event.  This particular program is presented essentially for younger lawyers, or more seasoned lawyers wanting to improve their individual trial skills.  The presenters, like Don Schlapprizzi from our office, are all fellows in the American College of Trial Lawyers.  A fellow is a trial lawyer whose trial skills and trial record have been reviewed, and who is then invited to membership only after a very exhausting and rigorous screening.  The Academy provides these programs from time to time as a service to the public and to members of the Bar.
This particular program is based on a fact pattern case involving an automobile-truck crash causing a fatal injury that resulted in a wrongful death action being brought by the survivors of the deceased individual.  The trial demonstration is abbreviated, involving only opening statements, witness examination and cross-examination, and closing arguments provided by the Academy lawyers.  There is time then set aside for audience question participation.

Auto Crash Injuries and DWD

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DWD is “driving while distracted”.  We have heard and read so much about DWI and DUI (driving while intoxicated or under the influence) associated with vehicle crashes, but not nearly as much as DWD.  Yet, today we are finding ever so many auto collisions and resulting injuries caused by DWD.  It is true that texting gets most of the press, as does cell phone use, which activities seem almost universal.  But, there exist other multi-tasking that can be just as dire, ie, eating, drinking coffee or soft drinks, changing the radio station, talking to other occupants, or one of my favorites, “grooming”.  How often do we see lipstick or cosmetic applications while watching oneself in the rear view mirror?
The point is, let’s not stop with the repetitive criticism of texting and cell phone use.  These other “distractions” can be just as lethal.

 

Landmark Missouri Supreme Court Decision

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On Tuesday, July 31st the Missouri Supreme Court handed down a singularly significant decision holding that the legislature’s limitation or cap on medical malpractice jury decisions was unconstitutional because such law deprived an injured person of their “inviolate” constitutional right to a trial by jury.  The right to a trial by jury in civil cases has been enshrined in our Missouri Constitution from its inception.  This decision removes the strident $350,000 limitation or cap on non-economic damages that had been imposed by the legislature that had only applied in medical malpractice cases.  Medical malpractice cases involve the negligence in the care and treatment rendered to patients by doctors, hospitals, and other heath care providers.  Decisions heretofore permitting the limitation or cap are no longer to be followed.  Included in the category of non-economic damages are pain, disability, disfigurement, and loss of enjoyment of life.
The Supreme Court decision was extremely well reasoned and once and for all put to an end the senseless limitations on recovery for grievously injured individuals who have lost their sight, or limbs, or suffered brain damage permanently by negligent or careless conduct.

SJR51: The independence of our judiciary is in the hands of Missouri voters

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The Missouri Legislature has voted to “reform” the Missouri Nonpartisan Court Plan, a system designed for the selection of judges based on merit rather than on politics.  The Plan’s inception in 1940 was roused by the corruption and widespread abuses of the judicial system…namely, the increasing role of politics in judicial selection and decision making.  The plan was integrated into the Missouri Constitution in 1976.  Today, the independence of our judiciary, which has been secured and safeguarded by the Missouri Nonpartisan Court Plan for over 70 years, is threatened by proposed resolution SJR51.
SJR51, passed in both the House and Senate, will appear on the November ballot as a referendum to amend the Missouri Constitution’s Nonpartisan Court Plan.  Proponents of the “reform” claim the change will take power away from special interests and return it to the citizens of our state.  Are they correct?  To whom is this “power” returning?
Under the current Missouri Nonpartisan Court Plan, the judicial panel for the Supreme Court and Court of Appeals is selected by the Appellate Judicial Commission.  The Appellate Judicial Commission is composed of:  three lawyers elected by the lawyers of the Missouri Bar for six year staggered terms, three citizens appointed by the Governor for six year staggered terms, and the Chief Judge of the Supreme Court.  Those seven members choose three people after reviewing their applications, letters of recommendation, and the public interviews; the Governor then chooses a judge from those final three.  The appointed judge, after being on the bench at least one year, then stands for a retention election in the next general election.  At that time, voters have a chance to say whether or not a judge will stay in his or her position.
Lawyers                                Governor                             Judiciary
                                LLL                                       GGG                                      J              →            1, 2, 3
                                                                                                                                                                ↓
                                                                                                                                                Governor’s choice wins
Under the proposed resolution, SJR51, the composition of the Appellate Judicial Commission will change.  First, the Chief Judge of the Supreme Court will no longer be a member; rather, a retired judge will be a non-voting member.  Second, four citizens will be appointed by the Governor; two when the governor is sworn in, and two after two years of being in office.  The three lawyers elected by lawyers will remain the same.  The resolution will allow the Governor to have control of the Appellate Judicial Commission (4 to 3) within two years of being in office.
Lawyers                                Governor                            
                                LLL                                       GGGG                                                   →            1, 2, 3
                                                                                                                                                                ↓
                                                                                                                                                Governor’s choice wins
The proponents of SJR51 are incorrect; the resolution will not return power to the citizens.  SJR51 will return power to the Governor.   It removes the single judicial vote from the commission and gives that vote (along with majority) to the Governor.  The “reform” will tip the scales (4 to 3) in favor of politics.
SJR51 threatens the independence of our judiciary.  We oppose it.

 

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