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Three Shades of Cause

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A previous post discussed the legal duty that one person owes another person. Once it is established that the plaintiff owed you a duty, the next step in your negligence case is to link that duty to your damages. While duty is largely a legal question — for the most part, the law determines who is an “employee” and who is an “independent contractor” and so on — causation is nearly always a fact question.

Breach

Simply stated, defendants breach their duty when they fail to do what they are supposed to do. If a driver runs a stop sign or fails to yield the right of way, that is a breach of the duty of care. If a pharmaceutical company fails to warn patients about a known drug risk, that is a breach of the company’s duty of care.

Cause in fact

Often, a defendant argues that the breach of duty did not cause the plaintiff’s damage. A driver may admit hitting another vehicle, but argue that the victim’s leg injury was a preexisting sports injury that was not caused by the collision.

Proximate cause

Proximate cause is a difficult concept, and perhaps best explained by a 100-year-old court case. “Poor Mrs. Palsgraf” was waiting for a train in Long Island with her two daughters. As the train left, two railroad porters tried to help a man onto the train. As the porters jostled the passenger, the passenger dropped a package of fireworks. The fireworks exploded, and Mrs. Palsgraf suffered a “nervous disorder.” When Mrs. Palsgraf sued the railroad company, the court determined that the porters did not proximately cause Mrs. Palsgraf’s injury. Other intervening causes may include a criminal act or a third driver in a multi-car pile-up.

Anytime you are injured in an accident, whether you are on a railroad platform or anywhere else, speak to an attorney right away. A lawyer can help you get in to see a doctor and help you preserve any legal rights you may have. Contact McPhillips Shinbaum today for your free consultation.

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Damages in a Negligence Case

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The final element in your negligence case is damage. The other elements — duty, breach, cause-in-fact and proximate cause — may all be clearly established, but if there are no damages then there can be no negligence lawsuit. Your damages can fall into one of several categories.

Economic damages

The typical car accident costs a lot of money. Those damages include:

  • Property damage. Even a minor bump or scrape can cause hundreds of dollars in damage to your car. A moderate or severe accident can cause thousands of dollars or even total your car. If you must replace your car, the replacement cost is part of your economic damages. Even if you keep your car, the defendant is responsible for your car’s reduced resale value due to the accident and subsequent repair.
  • Lost wages. Many victims must miss work both due to the immediate injury, and also to visit the doctor for follow-up visits and therapy sessions. In more severe cases, the plaintiff may be disabled or dead and unable to return to work at all.
  • Medical bills. Reimbursable medical expenses include past medical expenses, current medical expenses and also future medical expenses. While past and current medical expenses are easily established, an expert witness is usually needed to accurately predict your future medical expenses.
  • Exemplary damages. Depending on the facts of your case, punitive damages may be available to punish the defendant and deter future wrongful conduct.

Noneconomic damages

In addition to the actual monetary costs, there are emotional costs as well. Your damages include fair compensation for pain and suffering, loss of consortium, loss of enjoyment of life and other injuries which have no fixed price tag.

For total representation in your negligence case, contact the personal injury attorneys at McPhillips Shinbaum to schedule your free consultation.

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Alabama Town Weighs Alternative Sentencing Option

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One Alabama community recently unveiled a very controversial alternative sentencing plan ― nonviolent offenders may choose to go to church instead of jail.

Bay Minette, a town of 8,200 residents about 30 miles northeast of Mobile, offered first-time, non-violent offenders facing municipal court charges an alternative of attending church services once a week for a year to avoid jail time, fines and other traditional criminal penalties ― a program called  Restore Our Community (ROC). The town abandoned the plan after pressure from a number of advocacy groups. The ACLU applauded Bay Minette’s attempts to employ alternative sentencing arrangements, but decried the ROC initiative as “coercive” and a clear violation of the United States Constitution’s Establishment Clause. The ROC is currently not available, according to Bay Minette’s website.

Conventional alternative sentencing

Many jurisdictions often sentence criminals to nontraditional punishments. An Alabama criminal defense attorney can give you more information about the programs available to you in your county. Some common alternative sentencing models include:

  • Community service. An offender may work for charitable non-profits ― such as the Red Cross or a homeless shelter – or perform clean-up duties in area parks and other public places.
  • Weekend jail time. Jail inmates serve their entire sentence on weekends, by checking into jail on Friday night and being released on Sunday night.
  • Work release. Inmates continue to work at their regular jobs on weekdays, and spend weeknights and weekends serving their sentences.
  • House arrest. The convicted offenders wear an electronic monitoring device and, apart from a few special circumstances, are not allowed to leave their homes for the duration of their sentences.

Unconventional alternative sentencing

There are also some unconventional alternative sentencing arrangements, aside from Bay Minette’s so-called “Jesus or Jail” plan. For example, a defendant found guilty of playing a car stereo too loudly may be sentenced to listen to classical music. Such measures often meet opposition from advocacy groups based on the idea that these schemes violate the “unusual” portion of the Eight Amendment’s prohibition of cruel and unusual punishment.

To speak with an attorney who looks for creative ways to help you deal with a criminal conviction, contact the experienced lawyers at McPhillips Shinbaum for your free consultation.

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Pedestrian Killed in Far Northeast Atlanta

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The Hall County Sherriff’s Office reports that a pedestrian was killed in a Hall County personal injury accident in the early morning hours of Tuesday, September 3, 2013.

The victim was crossing State Road 211, near State Road 53, when she was hit and killed by an oncoming car. State Road 211 was closed for some time as authorities gathered evidence and spoke with witnesses.

Serious pedestrian accidents such as this are all too common, especially on roads where the pedestrian must walk on the shoulder or cross traffic without a light. The National Highway Transportation Safety Administration (NHTSA) further points out that most pedestrian deaths occur between 3:00 a.m. and 6:00 a.m., or during the weekend, when motorists are less likely to be looking for pedestrians. NHTSA predicted that the overall number of pedestrian-vehicle accidents may fall, but that the injuries suffered in these incidents may become more severe.

Common Causes of Pedestrian Accidents

Like most other motor vehicle accidents, many pedestrian-vehicle accidents may share one or more common causes:

  • Distracted Driving. Even if motorists are aware that pedestrians may be in the area, drivers may still be too distracted to adequately look out for pedestrians. Most pedestrian victims are either under age 10 or over age 65, perhaps underscoring the fact that drivers are simply not watching carefully enough.
  • Speed. Although the incidents of pedestrian-vehicle accidents increases as the speed limit increases, less than 10% of pedestrian-vehicle accidents involve excessive speed. These statistics suggest that speed is more of an indirect factor. Drivers are watchful for pedestrians on neighborhood streets and side streets, but tend to ignore pedestrians on major roads and highways.

If you or a loved one has been injured in a pedestrian accident, regardless of the cause, speak to the experienced attorneys at McPhillips Shinbaum to preserve any rights to recovery you may have.