Atkinson Law Firm, LTD

The 3 Defenses That Determine a Slip-and-Fall Case

Scott Atkinson — Thu, 16 May 2013 05:38:06 +0000

As a personal injury attorney, I talk to quite a few people about slip-and- fall cases. Unfortunately, I have to turn down a number of them because the expense of pursuing them (i.e., paying credible experts) far outweighs what could ever be recovered for the injured.

Sadly, in recent times, the judicial system has not taken so kindly to many of these cases. There’s been far too many appeals court decisions that have taken the award away from the injured, in my legal opinion.

It’s beyond my comprehension how a store customer can have a greater duty of responsibility for slipping and falling on a hazard–whether inside or outside a business–than employees who spend considerable time working around or near the hazard.

The Seventh Amendment was created to allow people who have been damaged to be compensated for their losses. When it’s clearly proven that someone is hurt through no fault of their own, yet they’re not permitted to be restored, then the system is simply unfair.

How are these slip-and-fall cases determined? There are typically three common defenses:

Notice – Whether or not the business or premises had a notice of what the danger was that caused the slip and fall.
Open and obvious – The danger was something that could have or should have been seen and therefore should have been avoided.
Assumption of the risk – The danger is a known hazard and as a result, the individual(s) engaged in an activity made the choice to do what they did.

Today, these defenses are seemingly ironclad for slip-and-fall cases brought to court. In most cases, individuals who have not befallen broken bones, surgery, or been hindered by insurance liens, are generally unlikely to recover in court for their accident. Often, when defense lawyers bring these summary judgment motions out, many judges will throw the case out.

I’ve heard it said that some judges will infer that throwing these cases out saves the time of the injured plaintiff, the jury which will rule against them, and the defendant. This is particularly bothersome to me because the judge is displacing the legal process to let it work as it should. These outcomes circumvent the injured from understanding the risks of what it means to go in front of a jury.

Thankfully, however, many slip-and-fall cases do prevail. Of course, many are complex and there’s never a “one-size-fits-all” logic in personal injury law. What I always strive to do after thoroughly listening to and asking questions of my injured party, is to honestly tell them their potential for any type of recovery.

Don’t ever second-guess your own circumstances! If you’ve been injured by another party through no fault of your own, be sure to contact the Atkinson Law Firm for your free consultation!

Image courtesy of Wikimedia Commons.

May is National Bike Month!

Scott Atkinson — Thu, 09 May 2013 06:00:59 +0000

In my post, Bicycle Accidents & Personal Injury, we explored the perils and precautions of bicycling. Fortunately, May is National Bike Month, an opportunity to celebrate cycling and observe safety practices of bike riding. Sponsored by the League, National Bike Month reminds us all of the many reasons we ride and how to keep bicyclists safe on the roadways.

If we all commit to following a few simple safety tips, we can make a difference in keeping our two-wheeled companions accident-free:

Be Patient: I know it can feel frustrating to be slowed below the speed limit behind a bicyclist on a narrow two-lane road where passing is questionable, but isn’t it essential, in fact, imperative, that you can clearly see far enough down the road to safely pass the cyclist? Similarly, what kind of road shoulder conditions does the cyclist have to keep a safe distance from you? Your few seconds is just not worth putting someone else’s life in danger.

Be Alert: Intersections are always a high-danger zone. Always look ahead in all directions of an intersection for any cars and bicycles approaching. When turning, make sure you leave ample space between you and the cyclist so as not to cut them off.

Be Considerate:We needn’t revisit the difference in mass between a car and a bike. If you see a potential hazard for the cyclist, allow them to ride closer to the center of the lane. When passing a cyclist, be sure to give them ample room. Remember, drag from a passing car can pull a cyclist off course and possibly cause them to lose control.

Be Cautious: When you are backing out of a space, checking for slim-bodied bicycles can often be more difficult than a broad vehicle. Also, when you’re exiting a car parked parallel to the road, make sure you check your mirrors for any approaching cyclists. All it takes is a suddenly-opened door to spell disaster for a fast- moving cyclist.

This summer, more and more bicyclists will be on the roads. Make sure you’re aware of your surroundings, and the many ways you can keep cyclists safe!

If you or a loved one has been injured in a bike accident by a negligent driver, be sure to contact the Atkinson Law Firm today for your free consultation!

How Long Will My Case Take?

Scott Atkinson — Thu, 02 May 2013 06:00:02 +0000

I’m sure you can imagine how often I’m asked the question, “How long will my case take?” And it’s certainly a reasonable question to ask, given that, in personal injury cases, the defendant is usually someone who is hurting-physically, emotionally, and financially as the result of someone else’s negligence. The other variant I’m asked is “Will I ever get paid for what I’ve lost?” Again, a very pertinent and important question to ask your attorney during a time of crisis; however, these questions are ones that do not bear exact and immediately-calculable answers.

This is because, understandably, every case is different. Each case or claim has a unique set of circumstances and parties involved–the facts, injuries, insurance companies, and other issues can and do vary. This is why it is absolutely essential to get a personal injury attorney immediately after being harmed by another party in an accident–even if you’re not sure you’ve been harmed immediately afterwards! Your personal injury attorney will handle this process efficiently and professionally while catering to the harm that has befallen you.

One of the biggest considerations of any personal injury case is that insurance companies will try to get you, the injured party, to agree to a quick settlement once your accident is reported. Insurance companies know too well that the amount they offer initially seems appealing at first. After all, most injured parties aren’t fully cognitive of the far-reaching and tragic circumstances that an accident can have on them. Typically, when an injured party goes to an emergency room for care after an accident, the hospital doesn’t release a full bill for services rendered by the time of discharge. Rather, you receive these bills in the mail some time later. Quite often, there can be several bills resulting from one emergency room visit. These may consist of:

a hospital bill
a radiology bill (for x-rays)
an ER physician bill

In addition, many injured parties don’t consider that they may be in need of future care as a result of their injuries.

And medical expenses aren’t the only consideration for your compensation of accident damages. Other factors may well apply, such as:

pain and suffering
loss of enjoyment of life
lost wages
mental anguish
disfigurement and disability
loss of earning capacity
property damage

Of course, many of these damages are not easily discernable or quantifiable within hours or days of an accident. All the more reason why it’s imperative when you or your loved ones are involved in an accident, to seek out a personal injury lawyer right away!

With so many factors involved, you can see now why there’s no quick answer to give when asked how long a case will take. One thing you can be assured of at Atkinson Law Firm, however; we will keep you well-informed over the duration of your case! If you or a loved one has been injured in an accident through another party’s negligence, be sure you contact the Atkinson Law Firm today for your free consultation!

8 Auto Maintenance Tips to Help Keep You Accident-free on the Road

Scott Atkinson — Thu, 25 Apr 2013 20:33:04 +0000

In my post, 10 Driving Tips to Keep You Safe on the Roads, we briefly addressed (in tip #10) how maintaining your car is important to safe driving. According to AA1car.com, Mechanical failures are a factor in 12% to 13% of all auto accidents. And according to the National Highway Traffic Safety Administration, an estimated 25,580 Americans were killed in motor vehicle crashes during the first nine months of 2012. That means an average of 3,198 Americans were killed because of maintenance-related accidents.

With Spring here and weather improving, we can normally expect to see an increase in traffic flow across the country. So, it’s more than a good idea to take the time now to scrap off the tolls of winter and prepare your vehicle for the warmer traveling months ahead. Here are 8 auto maintenance tips to help keep you accident-free on the road:

Check tires. Cold weather can cause tires to be under-inflated; warm weather can over-inflate them. Over-inflation can lead to premature or irregular tire wear. Tires should be inspected for tread wear. The lower the tread depth, the less traction; a driver would need greater distance to stop.
Check brakes. Check pads, shoes, drums, and rotors for wear.
Check fluids. Check windshield wiper fluid, engine oil, power steering fluid, and transmission fluid, making sure all are at proper levels.
Check Headlamps, Tail Lamps, Turn Signals, and Hazard Lights. Ensure lights are aligned and in proper working order.
Check air filter. In a dusty climate like New Mexico, air filters should be checked often. A dirty air filter can take a toll on the engine. Replacing it increases fuel efficiency.
Wash the vehicle including the underbody. Salt, sand, and other grime can cause corrosion and lead to rust problems. Clean your car thoroughly by powerwashing the underbody.
Clean the vehicle inside and out. Scrub the bottom of all doors and window channels to remove grit and grime. Open the hood and wipe down the engine with a soft cloth and soapy water. Remove any crusty white residue (corrosion) from the battery with a toothbrush, baking soda, and water.
Replace wiper blades. Despite New Mexico’s desert climate, wiper blades should be changed every spring and fall.

Remember, a few minutes of labor on your car now can save you a few seconds of tragedy later!

If you or a loved one has been injured in an auto accident through no fault of your own, contact the Atkinson Law Firm today for your free consultation!

Proving a Driver Was Distracted

Scott Atkinson — Thu, 18 Apr 2013 21:01:23 +0000

Distracted driving claims continue to rise all the time; it seems that technology and carelessness know no bounds. In my last post, April is Distracted Driving Awareness Month, we saw the tragic statistics caused by distracted drivers and the less-than-acceptable legislation to combat this growing epidemic.

In recent times, it seems lawmakers have been stymied over creating legislation that effectively proves that drivers have been distracted with their electronic gadgets. Indeed, proving that a cell phone was a factor in an accident can be tricky, but fortunately, following the trail of electronic evidence can often yield results.

Depending on the state and case, a court may not agree that the mere possession of an electronic gadget warrants a search of the driver’s records. Often, a court will first require evidence that the driver was using the gadget. For example, in Morano v Slattery Skanska, Inc., the court held that…

“…the mere fact that a defendant was in possession of a cell phone at the time of the accident, without any witness testimony as to it being used at that time, would not entitle the plaintiff to said defendant’s phone records, since such a discovery request would amount to nothing more than a fishing expedition. “

Evidence can come from many sources. Witnesses may testify that they saw the driver using the cell phone. Police officers who respond to the accident may note that the device was engaged and near the driver. Tow truck drivers can make the same claim. Photos of the accident may reveal clues, as might careful written discovery of the defendant.

There are still other methods of discovery used to obtain evidence of negligent cell phone usage:

Subpoenas, in which the plaintiff’s attorney gains permission from the court to review the driver’s cell phone records.
Interrogatories, where the plaintiff’s attorney asks the driver for information concerning his cell phone carrier and social networking accounts.
Requests for Production, in which the attorney asks the driver for documents which may indicate inappropriate use of technology.
Depositions, during which the attorney may ask the driver about his or her cell phone use.

Ultimately, as new technology becomes ever more infused into society, laws regarding the use of that technology while driving will evolve. Likewise, we will no doubt see new technology emerge to help us to better determine when a driver was behaving in a negligent manner. Meanwhile, the more adept attorneys become at obtaining key evidence in these electronic gadget cases, the more victims will receive the justice they deserve.

If you or a loved one has been the victim of a negligent driver, contact the Atkinson Law Firm today for your free consultation!

April is Distracted Driving Awareness Month!

Scott Atkinson — Fri, 12 Apr 2013 04:28:10 +0000

The National Safety Council estimates that more than 25% of all car crashes involve cell phone use. Recent numbers show that over 330 people die every month in the US from distracted driving–over 4,000 per year.

In the average time it takes to text, 4.6 seconds, a car traveling at 55mph traverses more than the length of a football field. Would you voluntarily drive that distance with your eyes closed?

In my post, 6 Smartphone Apps to Help Safeguard Your Teen on the Road, we saw some dangerous statistics for teens texting. But adults are far from immune. Recently, AT&T conducted a survey which revealed almost 49% of adults admitted to sending a text while driving. And a study by the Virginia Tech Transportation Institute showed that drivers who are texting are 23 times more likely to get into an accident than other drivers.

In 2010, Congress established April as Distracted Driving Awareness Month. Currently, over 40 states have some sort of limitations involving texting while driving. Many have legislation specifically about using cell phones.

In New Mexico, however, despite numerous attempts to pass distracted driver legislation, there is currently no statewide ban on cell phone use. The only exception is for student drivers or those driving state vehicles. All other drivers, including bus drivers and train operators, are unrestricted in their use of cell phones while driving.

There are local ordinances prohibiting cell phone use and/or texting while driving in the cities of Albuquerque, Santa Fe, Las Cruces, Gallup, Taos, and Espanola.

Here are New Mexico’s Distracted Driving Laws:

Handheld ban for all drivers with in-state vehicles.
Ban on all handheld and hands-free cell phone use for novice drivers (Primary Law).
Ban on texting for novice drivers (Primary Law).

Not exactly proactive. So, what can you do to help improve the safety of your driving? Here’s some great resources:

Take the distracted drivers’ pledge.
Talk to your teens about cell phone use while behind the wheel and ask them to sign the Parent-Teen Driving Contract.
Educate yourself to become a safer driver at the National Safety Council website.

Remember, we all have the power to change our behavior about keeping ourselves safe when driving a motor vehicle. Let’s make a commitment to drive safely in recognition of Distracted Driving Awareness Month!

If you or a loved one has been the victim of an auto accident, contact the Atkinson Law Firm today for your free consultation!

What Does Comparative Negligence Mean For Your New Mexico Claim?

Scott Atkinson — Fri, 05 Apr 2013 06:13:32 +0000

Personal injury law allows victims to file a civil lawsuit against those responsible for their injuries or wrongful death. Further, a product liability case can hold a manufacturer, wholesaler, or distributor of a product liable if a consumer is injured or killed as the result of a dangerous or defective product.

Let’s start by examining the concept of strict liability. Strict liability is a legal responsibility in which the plaintiff can obtain damages for their injuries, even if the individual found strictly liable was not at fault. The plaintiff must be able to prove that the defendant could or should have prevented the accident from occurring. If they knew about a defective product and failed to take action, they are strictly liable for damages resulting from an accident.

For example, in cases involving dog bite injuries, the injured victim may have a claim against the owner simply because the owner of wild animals was aware of the potential danger. Strict liability usually applies to cases in which a victim is harmed due to dangerous activities, such as construction, mining, certain types of manufacturing, etc.

Not to mention, thousands of people are injured or killed every year due to dangerous or defective household products, such as cleaners, toys, appliances, etc. Often, the root cause is a manufacturing or design defect, or perhaps a failure to properly warn consumers about how to use the product. In these types of cases, the liability may well fall on the product designer or even the store that sells the product.

When establishing liability, many states have laws regarding negligence. Product manufacturers may claim that the injured party is partially to blame because of their carelessness. If the plaintiff contributed to the accident in any way, they may be prevented from recovering damages. This is known as contributory negligence, which often seems harsh since, arguably, many cases conceivably involve some minimal amount of fault.

Some states, such as New Mexico, have comparative negligence laws. This means that the plaintiff may only recover a certain percentage for their injuries. The court must apportion the fault with a percentage such as 50/50, 60/40, etc. Once this is done, any award of damages will be reduced by the amount of fault attributed to the plaintiff. For example, if a victim is suing for $100,000 and is found to be 20% at fault, the damages would only amount to $80,000 if the defendant is found guilty.

This same calculation is made prior to trial between the respective attorneys as the parties attempt to negotiate a settlement. As you can imagine, this is often a hotly contested issue. The defense will often argue a high degree of comparative negligence. On many occasions, the defense will refuse to acknowledge any liability at all, arguing that the accident was purely the fault of the plaintiff. Cases like these, of course, quite often end up in court.

If you’ve been injured through no fault of your own, be sure to contact the Atkinson Law Firm today for your free consultation!

What’s a Frivolous Lawsuit?

Scott Atkinson — Fri, 29 Mar 2013 01:29:25 +0000

More than a few people have asked me over the years whether I think there are more “frivolous” accident lawsuits filed in recent times than ever before. Of course, a general question like that doesn’t warrant a specific answer without more information.

What are the statistics at the time?
Where did the stats come from?
What are the circumstances of the lawsuit?

Some people think a lawsuit is frivolous because the “other driver” wouldn’t settle out of court.

But there are, of course, many factors to consider, some of which are:

Was the “other driver” badly hurt?
How badly damaged was their vehicle?
How much did they demand to settle the case?
How much did the insurance carrier offer in reply?

If the insurance carrier did not offer the other driver enough to make them whole, the case will likely escalate.

A frivolous lawsuit is one that has no supporting legal argument or factual basis. In short, it is a lawsuit that is designed to get money without any justification, place the party being sued in a bad light, or to harass the other party. It also might be a situation where an attorney doesn’t properly assess the claim before filing the lawsuit. Where it is clear that one party’s lack of care caused another party’s injury, if the two sides can’t agree on the value of the claim, it is not a frivolous lawsuit.

Unfortunately, the insurance industry has done much to put people in the frame of mind that a claim which is not worth a lot of money is a frivolous one. Don’t ever think that a case is frivolous because one side of a court case loses or that a plaintiff receives less than their insurance carrier had offered to settle the lawsuit.

If you’ve been injured by another because you believe they were negligent, be sure to contact the Atkinson Law Firm today for your free consultation!

10 School Zone Safety Tips for Drivers

Scott Atkinson — Fri, 22 Mar 2013 06:00:20 +0000

Unfortunately, it seems that school crossing accidents involving children are more prevalent than ever. According to a recent study by the U.S. Centers for Disease Control and Prevention (CDC), nearly one-fifth of traffic fatalities among children ages five to nine years old were pedestrians. Further, it’s estimated that about 100 children in the U.S. are killed every year while walking to or from school, and another 25,000 sustain child injuries as a result of school zone accidents.

Those injured children could face very serious injuries, including brain damage, internal injuries, broken bones, learning disabilities and loss of motor skills. It’s very rare that a child hit by a vehicle emerges unscathed.

The streets outside a school can be an extremely dangerous area for children. Many young children don’t fully understand the dangers associated with street crossings because they haven’t fully developed their perceptual skills. Children may be distracted while talking with friends so they don’t realize they’re in the way of oncoming traffic. Likewise, drivers of motor vehicles may be distracted and not realize they’re approaching a school crossing.

Because of all the inherent dangers around a school, it’s imperative that schools have properly marked crosswalks, crossing guards, and provide safe places for children to cross streets. And it’s also imperative that drivers operate their vehicles with the utmost care and concern. Drivers who do not obey the law around a school area put children’s lives at risk. Drivers should always put these 10 school zone safety tips to serious use:

Obey the speed limit. Drive no faster than 15 miles per hour in or near a school zone. Fines may be double when flashing lights or signs are present.
Remember, school zones are non-passing zones. Passing in a 15 mph school zone is against the law!
Drop children off on school property, not on neighborhood streets.
Look between parked cars and other objects for children who could dart into the road.
Walk around your vehicle before moving it, especially during morning and afternoon hours.
Always stop for school buses that are loading or unloading students.
Do not pass a school bus with flashing red lights or an engaged red stop arm.
Teach children that parked vehicles might move and that even though they can see a vehicle, the driver might not be able to see them.
Obey the crossing guard at all school crossings. Do not proceed through the crosswalk until the children and the crossing guard have cleared the roadway.
Make sure your children who bike to school know and follow safe riding practices and that they always wear a proper-fitting bike helmet.

If a child is harmed while crossing the street outside a school and the accident was caused by someone’s negligence, that person or organization can be held liable for all injuries to the child. No matter where the injury occurred or who was at fault, it is in your best interest to pursue your child’s school crossing injury claim as soon as possible following the injury!

If your child has been involved in a school crossing accident, be sure to contact the Atkinson Law Firm today for your free consultation!

New Mothers Face High Accident Risks

Scott Atkinson — Fri, 15 Mar 2013 06:00:07 +0000

Being distracted, drowsy, and overwhelmed – these are the top risks that, unfortunately, play a key role in the number of accidents involving drivers who are new mothers. 2,300 mothers partook in a recent survey done by American Baby and Safe Kids Worldwide, asking them about their driving practices. 10 percent of new mothers stated they have had an accident with a baby on board — a rate about three times the average for all drivers! Let’s examine these startling facts.

Distracted driving was all too prevalent among new moms. The study found that about 70% of new mothers talk on their cell phones while driving with the baby, while approximately 26% text while driving! The study also found that mothers felt overwhelmed with many distractions that led to a lack of attention on the road. Specifically, about 90% of new parents driving with a child reported that they felt overwhelmed for at least one third of the time they were driving.
Fatigue and drowsiness also played a major hand with new parents, setting up potentially dangerous scenarios for the families. The study actually found that new mothers get even less sleep than truck drivers do!
Mothers also seem uncertain about the kinds of car seats to use for their children. Half of the mothers admitted finding the car seats difficult to install, but as many as 60% of the mothers admitted that they had not had their child safety seat checked by a safety technician. I’ve addressed this very important topic before on my posts about Car Seat Safety and Car Seat Laws for Children.

Several experts from the National Highway Traffic Safety Administration (NHTSA), Parents Magazine, and the AAA Foundation for Traffic Safety, suggested these 7 safety tips for new moms:

Keep your eyes on the road at all times.
Never text, check e-mail or take calls while driving.
Pick the right time to run errands with baby, such as after a nap or when the child is not prone to be cranky and crying.
Don’t eat or drink behind the wheel.
Don’t turn around to tend to the baby; pull off the road, if necessary.
Let someone watch the baby while you run errands.
Get more sleep at night.

If you’ve been involved in an auto accident, be sure to contact the Atkinson Law Firm today for your free consultation!