Texting Drivers Held Liable for Millions Creating Carnage on the Road

Reading or sending a text takes a drivers eyes off the road for almost five seconds, enough time to drive a football field length of road.

Reading or sending a text takes a drivers eyes off the road for almost five seconds, enough time to drive a football field length of road.

Americans send 153.3 billion text messages every month. Text messaging has become an increasingly common form of phone use for many Americans.

Approximately 660,000 drivers are using their cell phones or manipulating electronic devices while on the road.

“For years, there has been widespread opposition to texting behind the wheel,” said National Safety Council (NSC) president and CEO Deborah Hersman.

The NSC reports that 73 percent of respondents think there should be increased enforcement of texting laws. Currently, 44 states and the District of Columbia have a legal ban on texting while driving and 13 states have laws that ban all handheld cell phone use by drivers, according to the NSC.

Criminal liability

In 38 of the States and District of Columbia that have anti-texting laws, police officers can issue tickets for drivers who are texting, even if police do not cite the drivers for any other offenses. Typically a fine around $250 is assessed for the ticket, and repeat offenders can be subject to more consequences such as the suspension of their license.

In a 2011, more than two-thirds of American drivers aged 18 to 64 admitted to talking on their cell phones at least once while driving within the past 30 days when asked, and more than one-third had read or sent text or email messages, according to a Centers for Disease Control (CDC) study.  A total of 3,154 people were killed in 2013 and 424,000 were injured in vehicle accidents involving distracted drivers.

Many states are now bringing criminal charges of motor vehicle homicide and negligent operation of a vehicle against drivers who caused fatal car accidents while texting.  In landmark case in Massachusetts, 18-year-old driver Aaron Deveau was texting and swerved across the center line of a street, crashing head on into 55-year-old Donald Bowley’s truck, killing the father of three. At trial Deveau was convicted of motor vehicle homicide by texting and sentenced to two years in prison and license suspension for 15 years.

In Wisconsin, 19-year-old Stephanie Kanoff was found guilty of homicide by negligent operation of vehicle and sentenced to three years of prison for hitting and killing 21-year-old Dylan Elefson while he was pulled over on the side of the road.

Civil Liability

Not only do drivers face criminal charges for accidents caused while texting, but victims can also bring civil claims against distracted drivers.

  • A Fulton County, GA, jury awarded Chasity Anderson, now 15, $1.5 million for injuries she suffered when she was thrown from her car seat when a pickup truck, driven by a driver who was texting, struck her mother’s car.  Anderson was seven years old at the time of the accident, and suffered two temporal skull fractures, a fractured left eye orbital, and soft tissue damage, according to reports.  
  • Cacilia Carter of Bunnell, Florida, was awarded $4.3 million for the traumatic brain injury leaving her permanently and totally disabled because of the collision caused by Edward O’Guin, who was texting while driving.  O’Guin ran a stop sign and drove into the path of a tractor-trailer, causing the accident that left Carter in a coma for three weeks.
  • A Miami-Dade County, FL, jury awarded the decedents of a woman killed in an accident caused by a texting driver an $8.8 million verdict.  Torres, a 40-year-old mother of two, was pronounced dead at the scene of the accident, was killed in the accident caused by 17-year-old Cruz-Govin, who was driving 20 to 30 miles above the speed limit while weaving in and out of traffic, all while texting his girlfriend.

Can person texting the driver be held liable?

New Jersey courts have opened up the possibility, but ultimately dismissed the option of holding the sender of text messages to a driver involved in a vehicle accident liable.

Kyle Best struck Linda and David Kubert who were riding a motorcycle, when he crossed the centerline of the road.  Best was responding to text messages sent by his girlfriend, Shannon Colonna, seconds before the accident.

Although the New Jersey appellate court upheld the lower court’s decision to exclude Colonna as a defendant in the Kubert’s lawsuit, the majority of the panel judges concluded that “person sending text messages has a duty not to text someone who is driving if the texter knows, or has special reason to know, the recipient will view the text while driving.”


Insurance Company Liable for Teen’s Cesspool Drowning Death

Amiri Zeqiri, 17, of Central Islip, was working at a Smithtown Dunkin' Donuts when he fell into this open cesspool.  Image from Newsday (Credit: Rob Garofalo)

Amiri Zeqiri, 17, of Central Islip, was working at a Smithtown Dunkin’ Donuts when he fell into this open cesspool. Image from Newsday (Credit: Rob Garofalo)

A New York Appellate court ruled that a shopping plaza owner’s general liability insurance policy is responsible for an injury arising on its premises when a 17-year-old fell to his death in a septic tank cesspool.

Amiri Zeqiri stepped onto a manhole cover that broke and gave way while he was taking out the garbage from the donut shop where he worked in Smithtown, New York. After being pulled out of the cesspool, while unconscious, Zeqiri was rushed to the hospital, where he later died.

Insurance policy excluded injuries in parking lot

The owners of the shopping plaza, JKH Realty Group, LLC (JKH), had a general liability insurance policy providing coverage for “bodily injury ‘arising out of…use of the premises…and operations necessary or incidental to the premises.”  The policy contained a parking lot exclusion clause that denies claims arising from use of the plaza’s parking lot, according to court documents.

Lancer Indemnity Company (Lancer), the company insuring the JKH Realty shopping plaza, argued that the parking lot exclusion applied to Zeqiri’s fall and subsequent death because the injury occurred in the manhole within the parking lot.

Septic system not part of parking lot exception

The court explained that any exclusions and ambiguity in an insurance policy must be “construed against the insurer.”  The court determined that the defective manhole cover and the cesspool it covered were a part of the building’s septic system, which are a part of the “operations necessary or incidental to the building “and not part of the parking lot.  Therefore, the exclusion did not apply to this claim.

The ruling in this case will be remitted to the Nassau County Supreme Court where the wrongful death action is pending in the case Zeqiri v. JKH Realty Group, LLC, Case number No. 18243/10.  Lancer will be obligated to defend and indemnify JKH Realty in that action.

The case is Lancer Indem. Co. v JKH Realty Group, LLC, Case number 2013-05136, (Index No. 13056/10) in the Supreme Court, Appellate Division, Second Department, New York

$16.7M Awarded for Father of Two Killed by Drunk Driver

The plaintiff was fatally injured in front of his wife, seven-year old daughter and ten-year old son.


A Texas district court jury in Tarrant County awarded $16.7 million to the family of a man killed by a drunk driver who was sent home from a senior living facility while visibly intoxicated.

Samuel Dale Graham, 37, of Hamilton, TX, was driving north on Texas 36 with his wife and two children on August 24, 2013. At the same time, Alisa Prueitt, a certified nurse aide employed by Senior Living Properties, was sent home from work and allowed to drive herself because her supervisors observed she looked to have “been drinking, smelled of alcohol and was staggering around the nursing home,” according to court documents.

Driver crossed highway

While driving south on Texas 36, Prueitt crossed the center line of the highway, crashing head-on into the Graham’s SUV. Samuel Graham, a physical therapist who also was a youth pastor, was fatally injured in front of his wife, seven-year old daughter and ten-year old son, who were also severely injured in the crash.

Samuel Graham’s widow, Sharla, and his family, represented by a National Trial Lawyer – Top 100 attorney Laura Brown of Williams & Brown, LLP, were awarded $16.7 Million in wrongful death and personal injury damages. The defendant, Senior Living Properties, was held liable for it gross negligence:

  • In allowing an employee it knew to be intoxicated to drive
  • For not following their own procedures for substance abuse testing and employee termination policies


Prueitt also was held liable for her negligence.

Included in the award was a punitive damage amount of $5 million against Senior Living Properties. The jury found it to be 65 percent at fault and Prueitt 35 percent at fault, according to court documents.

Prior intoxication never addressed

Three months earlier in May 2013, Prueitt was impaired while on duty at Senior Living Properties, to the point that she could not walk or perform job functions, causing her to drop an elderly resident, according to court documents. During that incident, Senior Living Properties had another employee drive Prueitt home, but did not follow its own policy to test Prueitt for substances to determine whether she should be disciplined or terminated.

“It would have been a very simple thing to prevent this employee from driving” Attorney Laura Brown said to the Star-Telegram News. “Instead, Senior Living Properties … chose to disregard its policies and its basic obligations to protect the public because they didn’t pay their nurse aides well, they were understaffed and they wanted to have this employee return to work another day.”

Drunk driving on American roads

Prueitt had a BAC of .42 percent at the time of the accident.

Prueitt had a BAC of .42 percent at the time of the accident.

Each day, almost 30 people die in motor vehicle crashes at the hands of an alcohol-impaired driver. In 2013, 10,076 people were killed and 290,000 were injured in drunk driving crashes, according to the National Highway Traffic Safety Administration (NHTSA).

Unfortunately, only one percent of the 112 million self-reported episodes of alcohol impaired driving of U.S. adults have resulted in arrests — only 1.4 million drivers in 2010 were arrested for driving under the influence, according to a Centers for Disease Control and Prevention (CDC) fact sheet.

Drunk driver sentenced for manslaughter and assault

On the day of the fatal car accident, Prueitt blood alcohol concentration level (BAC) was at .42 percent, more than five times the legal limit of .08 percent. Even at .15 percent BAC a driver is substantially impaired in her vehicle control and in visual and auditory information processing, according to the CDC.

“It is very simple. An employee who is too drunk to work is too drunk to drive,” said Brown to the Star-Telegram news.  Prueitt is serving an 18 year sentence for intoxication manslaughter and intoxication assault in the Texas Department of Corrections.

Unfortunately, neither Prueitt’s incarceration nor the $16.7 Million award can remedy the loss of a loved one, as Sharla Graham said to the Star-Telegram news, “no one really wins in something like this. Our family has to live my husband’s death every day.”

The case is Graham v. Senior Living Properties, LLC Case No. 067-269110-13 in the Tarrant County District Court of Texas.

The Latest Noteworthy Verdicts and Settlements

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Jury awards man $6.5 million for loss of foot


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Chapel Hill man’s family wins $18M judgment after fatal charter bus crash


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Teen who lost leg due to delays with health plan awarded $28.2M


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Woman Allowed to Sue Herself for Causing Husband’s Death

Woman acting as late husband's estate representative and heir sues herself as defendant for his wrongful death.

Because of an insurance claim denial, a wife acting as late husband’s estate representative and heir is forced to sue herself as the defendant for his wrongful death.

A Utah court of appeals granted a woman permission to bring a wrongful death and survival action against the driver whose negligence contributed to her husband’s death. Because she was the driver in the accident that killed her husband, Barbara Bagley is suing herself, acting in different capacities contemporaneously as the plaintiff and defendant.

She was forced to use the unusual legal approach because the insurance company refused to pay her claim.

Expectation of Insurance Coverage

Barbara Bagley was driving in Nevada in November 2011 with her husband, Bradley Vom Baur, who was the passenger. She lost control of the vehicle, causing a rollover accident. Her husband died due to injuries sustained during the accident, according to the opinion.

Bagley the plaintiff, acting as the personal representative of her husband’s estate and only heir, sued herself as the defendant, whose interests were represented by her insurance carrier. By bringing a successful action against herself as the defendant, Bagley’s insurance carrier would have to cover the cost for her negligence while driving, resulting in her late husband’s death.  The insurance company would then pay plaintiff Bagley as the personal representative and heir of her husband’s estate, according to a CBS money watch article.

Punctuation placement and legislative intent

The district court dismissed the lawsuit, reading the statutory language to exclude a tortfeasor from seeking recovery for herself.  The court of appeals however, ruled that the language did not restrict Bagley from suing herself, and reversed the district court’s ruling.

The wrongful death statute reads:

When the death of a person is caused by the wrongful act or neglect of another, his heirs…may maintain an action for damages against the person causing the death.

The court of appeals determined that the “absence of punctuation marks separating” the words “death of a person” from “of another” in the language is read to mean that the two are connected, and “another” only refers to a person other than the decedent, according to the opinion.

The same separating punctuation is also missing from the survival action statute, which is interpreted by the court as meaning that the “another” is anyone other than the decedent, even if the “another” is both the defendant tortfeasor and the heir and personal representative of the estate.

The court gave further deference to the Utah legislature’s language and their intent in referencing another section in the same statute chapter, which explicitly restricts spouses that are “alleged to have contributed to the death of the decedent” from becoming presumptive personal representatives, according to the court.

The court interpreted the absence of this type of language in the other statutes as a clear indication that the legislature intended the wrongful death and survival action Bagley implicated to allow for a tortfeasor to also recover against herself.

Insurance company argued against their own client

Defendant Bagley’s attorneys, provided by the insurance company, argued that the reading of the statute to allow for her to file an action against herself, was “’contrary to…basic notions of fairness and decency’ and contrary to public policy.” The court of appeals flatly rejecgted the argument because the defendant did not define the public policy nor cite to any Utah policy regarding the notions of fairness and decency, but instead only cited to cases outside of the state.

The court said that its proper role was to interpret the “meaning and application” of a statute’s text and avoid “judicial mischief” which they would do by allowing the Legislature to correct any statutory language that may be contrary to public policy.

The case is Bagley and the Estate of Vom Baur v. Bagley, Case No. 20131077-CA in the Utah Court of Appeals, Third District.

Do Parents Owe a Duty to Vaccinate Their Children?


With the recent news stories revolving around the outbreak of measles due to unvaccinated children, a new and important question has arisen: Do parents owe a duty to others to vaccinate their children?

A new line of case law could be emerging due to a Texas statute that recognizes a cause of action for the negligent transmission of infectious diseases. This Texas law exists aims to combat the spread of sexually transmitted diseases between partners, and recognizes a duty between these partners not to spread infection. However, with the recent occurrences of unvaccinated children infecting others, the United States could very well see a development in this area of new law.

Getting Infected

One child became extremely ill and suffered from meningitis.

Penny McCrathy is a prime example of a parent who could be liable for failing to vaccinate her children. McCrathy, a Dallas resident, took her unvaccinated children to Disneyland in Anaheim, California, not knowing they had been exposed to measles by a foreign tourist. Upon their return, McCrathy’s children went back to the Texas public school they attend using a vaccination exemption based on their “personal beliefs.”

Within approximately one week, McCrathy’s children came down with the measles due to their lack of immunization. Fortunately, most students of the school had been immunized and were protected from being infected. However, one child, Ima Munenot, had never been vaccinated because of a severe immunodeficiency disorder. While the the McCrathy recovered, Munenot became extremely ill and suffered from meningitis. Meanwhile, her parents incurred emotional distress and tens of thousands of dollars in medical bills to help their child fight the life-threatening disease.

This anti-vaccination movement, which continues to convince small but significant numbers of people not to vaccinate their children, has been a frequent topic in the news due to the recent outbreak of measles at Disneyland. But tragedies like what happened to Ima Munenot have been recurring over the past 15 years. A similar incident to the McCrathy’s children happened in Germany in 2000.

A mother in Germany took her unvaccinated child, who had a fever, to a pediatrician for treatment. The child’s fever was due to the measles, and during this doctor visit the child infected multiple patients in the office. Three of those patients affected by the exposure were infants too young to be vaccinated, two whom later contracted subacute sclerosing panencephalitis (SSPE). SSPE is a slow, complicated disease that eventually leads to a slow, painful complication of the measles resulting in death.

Getting Protected

The United States declared in 2000 that measles was eliminated from the country. This is defined as the absence of continuous disease transmission for 12 months or more in a specific geographic area. The United States was able to eliminate measles because it has:

  • A highly effective measles vaccine.
  • A strong vaccination program that achieves high vaccine coverage in children
  • A strong public health system for detecting and responding to measles cases and outbreaks.


Even so,  measles continues to be contracted by people in the US, because the disease is brought into the country by unvaccinated travelers (Americans or foreign visitors) who get measles while they are in other countries. They can spread measles to other people who are not protected against measles, which sometimes leads to outbreaks. This spreading of this disease can occur in communities with unvaccinated people.

The annual number of people reported to have measles:

  • Since the 2000s ranged from a low of 37 people in 2004
  • Outbreaks hit a high of 644 people in 2014.
  • In 2008, 2011, 2013 and 2014, there were more reported measles cases compared with previous years.
  • This January alone, there were approximately 85 cases of measles in the United States. CDC experts attribute this to more measles cases than usual in some countries to which Americans often travel (such as England, France, Germany, India, the Philippines and Vietnam).


While many of these parents refusing to vaccinate their children may just be ill-informed, or nervous about rumors they’ve heard from friends, some have become downright antagonistic. “Anti-vax parents,” as they are commonly called, dismiss the idea that they owe a duty to the public good.

One anti-vax parent recently stated, “I’m not going to sacrifice the well-being of my child [for the well-being of other children]. My child is pure. It’s not my responsibility to be protecting [someone else’s] child.” Given this new parental attitude, parents who wish to keep their children disease-free need to consider their options in order to help their little ones who may be exposed to this dangerous, and sometimes deadly, disease.

Getting Creative

Alex Fuller of Gray Reed & McGraw in Dallas.

Alex Fuller of Gray Reed & McGraw in Dallas.

As Alex Fuller points out, “Although there are no cases to date involving the negligent transmission of measles where the negligent act is a failure to vaccinate a child, it is certainly possible that a plaintiff might prevail on such a case if they can prove the essential elements of a negligence cause of action.”

The four elements that must be demonstrated to successfully claim negligence areL

  1. The existence of a duty owed by the defendant to the plaintiff.
  2. A breach of that duty by the defendant.
  3. The breach of the defendant’s duty was the cause of the plaintiff’s harm.
  4. Damages incurred due defendant’s conduct.


The two greatest hurdles in proving negligence for plaintiff’s attorneys are proving the elements of duty and causation.

It is highly likely that Ima’s parents could prove that Penny’s children were the source of Ima’s measles, menengitis and overall suffering. A jury would probably find that McCrathy should have foreseen that McCrathy’s failure to vaccinate her children might spread the disease to others.

Ima’s parents must prove both that Penny’s actions in failing to vaccinate her children was both the cause-in-fact of Ima’s disease and that the injury was foreseeable. The Munenots could present medical evidence regarding the traceability of measles and ask an expert witness to testify to the high degree of probability both through laboratory and epidemiological statistics and studies.

Range of apprehension

There are multiple ways courts can determine whether or not plaintiffs were owed a duty by the defendants. To be owed a duty, plaintiffs must fall within the range of apprehension of the defendants, which can be determined through assessing the evidence and determining the plaintiff was probable, not merely possible. Courts can also determine a foreseeable plaintiff by assessing the utility, or usefulness, of the defendant’s conduct versus the risk to the public due to the nature of the harm involved in the conduct. This balancing test of the utility versus the risk is a common method used by courts under the circumstances similar to McCrathy and Munenot.

Refusing to vaccinate children has absolutely no social utility or benefit to the public good.

An attorney for Munenot could argue that McCrathy’s conduct in refusing to vaccinate her children has absolutely no social utility or benefit to the public good. Rather, the risk to the public good through McCrathy’s conduct is quite high, and frankly dangerous because measles is one of the leading causes of death among young children. The measles vaccine is relatively inexpensive and is both safe and readily available to the public. The existence of a Texas statute would aid Munenot’s family in their argument, which requires that all children state-wide be vaccinated.

However, an attorney for McCrathy could argue the existence of the current Texas statute in the McCrathy family’s favor as well. Although the statute requires all children to be vaccinated, the same statute explicitly states a cause of action may not be created by those who do not wish to vaccinate their children for “reasons of conscience,” as long as those persons have signed an affidavit stating as much. An attorney for the McCrathy “anti-vax” camp could additionally argue protection under the Texas and United States Constitutions.

It seems both sides have seemingly applicable arguments in their favor, and persuasive advocacy could very well pave the way for new common law regarding this newly popular topic in our country.

Getting a Solution

As Fuller points out, “The best protection against measles is vaccination, not litigation. However, infants and persons with suppressed immune systems cannot get vaccinated. Parents of children who cannot be vaccinated should demand that schools protect vulnerable students by banning unvaccinated children from attending school during outbreaks of measles and other diseases. In the worst case scenario, however, the threat of litigation may convince parents who are on the fence to have their children vaccinated.”

Jail Healthcare Co. Settles $8.3 Million in Inmate’s Wrongful Death


Delirium tremens is considered a medical emergency, and the goals of treatment are to save the person’s life.


Corizon Health, Inc., a national for-profit jail healthcare corporation, recently agreed to pay $8.3 million for the wrongful death of an inmate who was tasered and beaten to death while suffering from delirium tremens. The settlement with the deceased’s four adult children was reached one week after a trial began.

Unqualified nurses

Corizon staffed the jail with unqualified Licensed Vocational Nurses (LVNs), who are trained to offer only basic medical care and must work directly under the supervision of Registered Nurses (RNs) or physicians, to provide assessments and patient plans. The title of LVN is a job title used only in Texas and California. Licensed vocational nurses are known as licensed practical nurses (LPNs) in all other states.

In addition to the settlement of almost $9 million, both Corizon Health, Inc., and Alameda County also agreed to injunctive relief. Corizon has agreed to change the way it practices correctional medicine, which carries with it the implication of an overall reform in the way correctional medicine is practiced across the United States.

Martin Harrison, the deceased, was a 50-year-old alcoholic jail inmate in Alameda County, California. He was subjected to a number of civil rights violations prior to his death, which occurred at the hands of Corizon Health, Inc. Corizon provided medical care to Harrison that was deliberately indifferent to his well-being and overall health.

LVNS are typically responsible for monitoring patients’ vital signs, including their blood pressure, pulse, respiration, temperature, height and weight. LVNs handle typical bedside care and have a lot of direct contact with patients. However, California requires that the kinds of assessments and patient plans Corizon LVNs were performing must be performed by nurses who have achieved an RN level of education or higher.

Due to lack of competent medical care the LVNs gave Harrison, he went into severe alcohol withdrawal, which caused him to experience life-threatening hallucinations resulting from delirium tremens.

Delirium tremens

While delirium tremens can occur after the cessation of drinking alcohol after a period of heavy drinking (especially if inadequate amounts of food are consumed), delirium tremens may also be caused by head injury, infection or illness in people with a history of heavy alcohol use. It  is most common in people who have a history of alcohol withdrawal. It is especially common in those who drink 4-5 pints of wine or 7-eight pints of beer (or one pint of “hard” alcohol) every day for several months. Delirium tremens also commonly affects people who have had an alcohol habit or have experienced alcoholism for more than 10 years.

Symptoms most often occur within 48-96 hours after the last drink, but may even occur up to 7-10 days after the last drink of alcohol. They include rapid emotional changes, hallucinations, generalized tonic-clonic seizures, changes in mental function, confusion, and sensitivity to touch. While Harrison was experiencing the side effects of delirium tremens, including hallucinations, he was tasered and subsequently beaten to death by Alameda County jail deputies.

Delirium tremens is considered a medical emergency, and the goals of treatment are to save the person’s life and relieve the symptoms experienced. Although a healthcare provider typically performs a physical exam, as well as toxicology and comprehensive blood work, a hospital stay is needed at minimum so that a team of healthcare providers can regularly check vitals and blood chemistry. Delirium tremens is a serious and possibly life-threatening medical condition. Some symptoms related to alcohol withdrawal can last for over a year after the last drink of alcohol.

Stop assigning unqualified LVNs

The injunctive relief requires that Corizon stop its practice of assigning unqualified LVNs to do the work of RNs throughout all facilities in California where Corizon has contracts. Corizon, which plans to grow its presence in California, holds more than 107 contracts around the country, covering 531 jails and prisons, and more than 345,000 inmates in 27 states. The Corizon counties currently affected by the injunction are Alameda, Santa Barbara, Tulare and Fresno counties. Approximately 80 percent of inmates in Alameda County jails alone are dependent on alcohol or other drugs

The injunction expressly requires that RNs, rather than LVNs, will conduct all intake medical assessments on patients in California. The settlement further requires Alameda County to provide health training to deputies who work with jail inmates, pursuant to national accrediting standards set forth by the National Commission on Correctional Healthcare. The NCCHC’s standards are national recommendations for managing the delivery of medical and mental health care in correctional systems. Per the injunction, these deputy health training programs must be implemented at least every two years.

Judge Jon S. Tigar will continue to oversee the injunctive relief and settlement for the next four years to ensure compliance. The case is M.H. v. Alameda County, et al., case number C11-2868 JST in the U.S. Northern District of California. The case was settled on February 9, 2015.

Appeals Court Reinstates Portland Crosswalk Suit by At-Fault Plaintiff


The family argued that the worn street markings and the non-working streetlight created a “dark zone” at night, limiting the driver’s ability to see Lindsay and her roommate as they crossed the street.

The Oregon Court of Appeals revived a $3.7 million wrongful death suit, stating a jury should decide whether the city of Portland will be liable for failing to maintain a crosswalk where Lindsay Leonard was struck and killed by a grocery chain delivery driver.

Lindsay and her roommate were walking home from a nearby grocery store when they were struck by Tito Feliciano’s truck in a poorly marked crosswalk. Leonard and her friend died from their injuries.

Lindsay’s father filed a wrongful death negligence action suit against Moran Foods, Inc., owner of Save-A-Lot food stores, Supervalu, Inc., delivery driver Tito Feliciano, the City of Portland, and Portland General Electric Company (PGE).

At trial, Leonard was found 51 percent liable for the accident responsible for her death. Additionally, the court granted summary judgment on the claims against Supervalu, for the plaintiff’s failure to provide enough evidence to find the company liable for negligent training of Feliciano.

The appeals court ordered a new trial against defendants Feliciano, Moran Foods and the city.

Distracted Driver

On appeal, the court addressed several issues including whether the lower court erred in dismissing the plaintiff’s claims against Moran Foods and the City of Portland.

Leonard contended that Feliciano, a Moran Foods employee, was distracted by talking or answering his company cell phone prior to the incident and violated his employer’s policies. Moreover, Leonard argued if Moran Foods and Supervalu had adequately trained Feliciano on driver safety and company cell phone use, the accident would not have occurred.

Feliciano had traveled the route numerous times and testified he recalled two signs warning him to look for pedestrians.

The court concluded the evidence was insufficient to show that Feliciano was distracted by his cell phone at the moment the collision took place. Previously, Feliciano made four calls to food stores on his route but the calls were made well in advance of the incident.

The phone records showed no calls received at or just before the accident was reported to emergency dispatchers, the court said.

Allowing some deference to the plaintiffs, the court believed Feliciano was distracted by something but it was not his cellphone.

The court could not find Moran and Supervalu negligent in providing adequate training and thus could not attribute this conduct to the accident. However the employers’ could still be held vicariously liable for the negligent acts of Feliciano.

On remand, the employers will defend against Feliciano’s failure to maintain a reasonable lookout while approaching the intersection and the jury’s instructions of the use of mobile devices (the original jury instruction quoted an inapplicable law).

The Dark Zone

Additionally, the family took the position that the faded markings and a streetlight outage in the crosswalk were a “substantial factor” in the collision.

Specifically, the family argued that the worn markings and the streetlight created a “dark zone” at night, limiting Feliciano’s ability to see Lindsay and her roommate as they passed through the area.

If the ladder bars had not been faded to the asphalt, the driver’s attention would have been drawn to the area and prevented or eliminated the collision, the family argued.

PGE operates and maintains the street lights at the crosswalk. On the night of the accident, the streetlight was out. PGE settled with the plaintiff and will not be a party to the case on remand.

The City requested the appeals court to affirm its summary judgment because a finding of negligence would be inconsistent with the evidence presented at trial and no reasonabla jury could find the crosswalk was inadequately maintained.

Rejecting this argument the court said, “a reasonable jury could find a faded crosswalk impaired Feliciano’s ability to see Lindsay and her roommate.”

Although Feliciano testified he was looking in the direction of the crosswalk at the time of the incident, there was in fact a dark zone.

Photos of the scene

The plaintiff presented line-of-sight photos from a driver’s perspective and overhead photos taken by PortlandMaps.com. The overhead photo was “even more striking” because there was no trace of white paint visible.  The driver’s photos show the area worn to asphalt or covered with dirt.

A city transportation manager stated “a pretty darkly dressed person . . . and her surroundings would likely be better” in the presence of a white ladder bar.

Lindsay was wearing a black coat, gray pants, and black boots. Her roommate was also wearing a black coat. The court said a rational inference could be made Lindsay and friend were in the dark zone.

Finally, the court specifically stated:

“A reasonable factfinder could infer had the crosswalk markings been properly maintained, thereby eliminating the dark zone, Feliciano more likely than not would have been able to see Leonard and roommate as they crossed the road, allowing him to take the steps necessary to avoid the collision or minimize harm.”

The case is Lane Leonard v. Moran Foods, Inc. et al., Case No. A150101, Court of Appeals of Oregon, Multnomah County.

Arguing for the plaintiff was Richard J. Vangelisti, Vangelisti Law Firm, LLC

Arguing for the defense was Jan K. Kitchel, Cable Huston

$23 Billion Tobacco Verdict Reduced to $16.9 Million

Tobacco company granted remittitur of $23B punitive damages to now match $16.9M in compensatory damages.

Tobacco company granted remittitur of $23B punitive damages to match $16.9M in compensatory damages.

A $23 billion punitive damage award against Tobacco giant R.J. Reynolds has been drastically reduced to $16.9 million by an Escambia County, FL, circuit court judge.  However, the judge denied Reynolds motion for a new trial and for remittitur of the compensatory damages.

The case is part of the Engle class, a group of Florida smokers who filed a class action lawsuit against the tobacco industry in 1994.  After decertifying the class, The Florida Supreme Court ruled that each of the class members, known as the “Engle Progeny,” could file individual lawsuits against the tobacco industry.

Judge Terry Terrell said the punitive damage award, which was the largest given so far in the Engle cases tried, was “admittedly and clearly constitutionally excessive,” and that “remittitur must be granted.”

Reynolds requests a new trial

Cynthia Robinson of Pensacola, FL, brought the wrongful death lawsuit in 2008 for the death of her former husband, Michael Johnson Sr., who died of lung cancer at the age of 36.  At the end of a four-week jury trial in July 2014, Robinson and Michael Johnson Sr.’s son, Michael Johnson Jr., were awarded $16.9 million in compensatory damages and a hefty $23 billion in punitive damages.

Less than one week after the trial, Reynolds filed a motion to set aside the verdict and asked for a new trial or remittitur of the damages.

Reynolds raised several issues in addition to what it called a “wildly and absurdly excessive” “1390-to-1” punitive to compensatory damage ratio, according to its motion.

Reynolds asserted that the damages were not justified because Robinson was only married to Johnson for six years and that they were separated at the time of his death.  Reynolds also claimed that Johnson’s son, who was 14 at the time of his father’s death, was not entitled to the damages because he never lived primarily with his father and “has not suffered lingering effects from his death.”

Reynolds argued that there was no evidence in the case that supported the damages awarded, and that the amounts resulted from the jurors “passion and prejudice” incited by the plaintiff attorney’s “improper arguments” including “comparisons of Reynolds to murderers and dealers of illegal drugs,” according to court documents.

Jury decisions on issues upheld

In his opinion, Judge Terrell agreed that Reynolds developed evidence providing a “legitimate basis to question the closeness of the relationships” while they “rather forcefully questioned [plaintiffs] on their closeness to” Johnson, but the issue was “clearly resolved by the jury” favoring Johnson Jr. and Robinson.

Furthermore, Judge Terrell ruled that although the compensatory damages were large compared to other Engle progeny cases, the unique issues the jurors resolved, including how relatively young Johnson was when he died, were supported by the evidence presented and were not “the product of passion and prejudice.”

No guidance given for punitive damages

Judge Terrell suggested that the massive punitive damage amount was due in part to neither party presenting any evidence on the issue of the amount of punitive damages to be awarded.  The only guidance given to the jury was that the punitive damages could “not be so large as to bankrupt” Reynolds, according to the order.

Lacking any information on Reynolds’ net income or net worth, the jury may have determined the punitive damage amount relying only on inferences of the “millions, if not billions of dollars spent by the tobacco industry on advertising” provided by the evidence and testimony introduced by the plaintiff, according to court documents.

$299 million in verdicts

As of December 2014, Reynolds has been served in 3,885 Engle Progeny cases stemming from the class action brought by smokers and their survivors who were injured due to their nicotine addictions.  A jury awarded a $145 billion verdict in favor of the Engle class, but the class action was later decertified and the verdict vacated on an appeal made by the Tobacco companies involved.  The original class members were allowed to file individual lawsuits and to use the jury findings made in the class action trial, maintaining a res judicata effect for class member’s individual cases.

According to Reynolds 2014 Security and Exchanges Commission (SEC) regulatory filing, outstanding jury verdicts against them total $299,365,200, which are all in “various stages in the appellate process.”

A new trial on damages is granted if a party is adversely affected by the court ordered amount.  Because the plaintiffs were handed a reduction of more than $22 Billion dollars, and Reynolds is asking for punitive damages to be capped at $2.4 Million, the disparity between the parties requested damage awards will likely lead to both parties requesting a new trial.

The case is Robinson v. R.J. Reynolds Tobacco Company, et al., case number No. 2008-CA-0098 in the Escambia County Circuit Court of Florida.

Groundbreaking New Ruling Allows MedMal Claims Against Cruise Ships

carnival-triumph-passenger-IMG_8270[1].ss_fullThe Eleventh Circuit has recently overturned the long-standing precedent preventing passengers of cruise ships from suing the owners of cruise ships. Rejecting the Fifth Circuit’s 1988, case of Barbetta v. S/S Bermuda Star, which ruled that shipowners can only be liable to seamen and not passengers for negligence on the part of the ship’s doctor, the Eleventh Circuit decided legal norms have evolved.

“Whatever utility the Barbetta rule once may have had” has been erased, the court found, primarily due to the advances in modern technology and the general explosion of the cruise ship industry since 1988.

“We have repeatedly emphasized that vicarious liability raises fact-bound questions, and we can discern no sound reason in law to carve out a special exemption for all acts of onboard medical negligence,” the Eleventh Circuit reasoned.

The reversal of such a long-standing precedent will undoubtedly open up cruise lines to an onslaught of personal injury litigation, such as the claim brought by Patricia Franza. It was Franza’s suit against Royal Caribbean, filed on behalf of her father, Pasquale Vaglio, that resulted in the Eleventh Circuit’s new ruling.

Wrongful death on cruise

Because of the new ability of passengers to bring medical malpractice claims against Royal Caribbean Cruises Ltd., Franza’s father, who died in 2011, after suffering a head injury on one of Royal Caribbean’s cruise ships, will be able to have his day in court through his daughter.

Vaglio, while a passenger on the Royal Caribbean ship Explorer of the Seas, fell while boarding a trolley when the ship was docked in Bermuda on July 23, 2011. He was sent to the ship’s infirmary, where a nurse failed to assess the extent of his head injury and sent him to his cabin, according to the court opinion. When Vaglio’s condition deteriorated not long afterward, the onboard medical staff refused to examine him without first getting his credit card information.

According to the plaintiff, Vaglio finally saw the ship’s physician four hours after the accident. It was at this time the doctor sent him to a hospital in Bermuda, but this was too little too late, according to the opinion. Vaglio’s life could not be saved, and he was airlifted the next day to a hospital in Mineola, New York, where he died one week later.

Essentially, when passengers get sick on cruise ships, they have no alternative choice to using the ship’s doctor. The only other option available for cruise ship passengers is to take a chance with the doctors at ports who haven’t been vetted by the cruise line.

Carol Finkelhoff of Leesfield Scolaro PA, who has previously represented cruise lines and now currently works on the plaintiffs’ side in the field of maritime law says:

“Before this, the only way to state a claim was to claim negligent hiring and retention or go after the doctor directly, and that’s basically impossible because you couldn’t get personal jurisdiction.”

With this new ruling, plaintiffs will be able to sue cruise lines and make it past the pre-trial dismissal stage.

Carnival Triumph disaster

Cruise ship disasters are a recurring commonality in recent years’ world news. It is estimated more than nine million passengers board pleasure cruises each year, and this sum belongs to those vessels departing from North American ports alone. The Carnival Triumph experienced an engine malfunction resulting in a fire that left the ship without electricity, air conditioning and the use of its sewage system for over a week.

Passengers on the Triumph were left with a shortage of food, without critical medicine and, most importantly, stranded in the middle of the Gulf of Mexico for over eight days. Without the use of showers and with the added health nightmare of a burst sewage pipe, passengers aboard the liner were instructed to use bags instead of the bathrooms within the their cabins. Additionally, fights broke out over food while passengers waited in never-ending lines to receive food for over four hours at a time.

And for what? Carnival Cruise Lines “gifted” the passengers with a full refund for the failed cruise, a voucher for travel and a subsequent cruise (because they probably could not wait to utilize their “sea legs” again), and an extra $500. Due to the general difficulty of obtaining personal jurisdiction in cruise ship litigation, the complex choice of law contract provisions, and the multiple disclaimers contained within the fine print, cruise line companies have had all the litigation power prior to the Eleventh Circuit’s decision.

Leesfield Scolaro, of Miami, Florida, describes in great detail the general difficulty of cruise ship litigation on their website:

“Cruise ships are not merely common carriers, they are virtual floating cities. These floating cities, however, lack fundamental safety policies, protocols, and procedures to protect passengers from harm. In addition, antiquated laws and contractual language limiting rights and remedies, puts travelers in a precarious position. As one judge stated, the lesson to be learned from over a hundred years of non-evolving case law and confusion regarding limitations on rights and remedies, is essentially the following: ‘Don’t have an accident, don’t get sick, and hope for an uneventful cruise vacation, otherwise you will discover that your rights and remedies as an aggrieved consumer are governed by antiquated legal principles which favor cruise lines to the detriment of cruise passengers.’”

Direct effect on cruise ship litigation

Philip Parrish, Franza’s attorney in her case, explains, “The Barbetta decision decided the case should be dealt with at the pleading stage, and the Eleventh Circuit decided consistent with maritime law that the issue of agency is always a factual question.” Not only will the decision have a direct effect on cruise ship litigation precedent, it will be binding on virtually all cruise ship litigation. This is the cruise lines’ own doing, through the stipulations included in fine print on the back of passengers’ tickets which state that any lawsuits deriving from the voyage must be brought in the Southern District of Florida.

The impact of the Eleventh Circuit decision does not necessarily end with the opening up of medical malpractice claims. Franza’s attorney thinks, “It’s going to open the doors up where now passengers can more successfully bring claims against cruise lines for things that happen on shore excursions . . . Shore excursions are huge sources of claims against cruise lines.” Prior the Eleventh Circuit’s decision, the difficulty in pinpointing liability boiled down to the employment status of the ship’s doctors, excursion tour operators, and spa staff: independent contractors.

It is frankly unimaginable the possibilities for litigation and the evolvement of the common law likely to stem from this ground-breaking new maritime precedent. The hundreds of claimants who joined suit against the Oceanic Steam Navigation Company, the parent company and named party of The Titanic litigation, received a total settlement of $644,000 to be divided among them. Using a standard inflation calculator, that value now sits at $15,719,270, roughly 16 million dollars. You can find information on Titanic litigation and an photocopy of an original survivor complaint here.

The case is Franza v. Royal Caribbean Cruises Ltd., case number 13-13067, in the US Court of Appeals for the Eleventh Circuit.