Missouri Personal Injury Lawyer Blog

Two men were walking on the tracks of a railroad bridge at 3 a.m., when they were struck and killed by a train in Defiance, Ohio. The train accident occurred on a double-track bridge with a curve, which allegedly is what prevented the train's crew from seeing anyone on the tracks until it was too late. The role of alcohol was initially suspected, as the men were walking the tracks at 3 a.m., but the issue is still pending investigation.

Knowingly entering or remaining on railroad property without the railroad's permission violates trespass laws; trespass laws generally make it unlawful to enter on another's property without permission. According to trespass laws dealing with railroads, under Corpus Juris Secundum (CJS), not all courts view liability the same way. A railroad is sometimes held to the requirement of reasonable care toward trespassers, where other courts say a railroad owes no duty to a trespasser.

Some courts will further say a railroad has no duty to a trespasser except to refrain from wantonly, willfully, recklessly, or grossly negligently injuring him/her and that the railroad must use reasonable care once a trespasser is discovered; this basically means once a trespasser is discovered, or should have been discovered, a railroad has a duty to exercise reasonable care in ensuring the person is not further injured.

In Missouri train accident cases, no reported case has found a landowner liable to an injured adult trespasser. Missouri courts also limit liability in those cases involving trespassers under the influence of alcohol or other controlled substances, finding a landowner is not liable under such circumstances. Further, under Missouri law (V.A.M.S. § 537.349) in relation to trespassers who are under the influence of alcohol while trespassing on railroad property, the same was held as stated below:

Continue reading " 2 Men Struck And Killed by Train In Ohio " »

A barge accident suit settled for $4.5 million in Chicago after an employer failed to provide a safe workplace environment. The employee bringing suit had his leg crushed in between two barges. His leg had to be amputated above the knee to save his life.

When the accident occurred, the employee was still greatly inexperienced. His supervisor was giving him guidance and information about how to couple together two barges. As he waited for the two barges to come together before securing them, the employee attempted to step from one barge to the other when his foot slid out from under him. The barges came together with the employee's right leg crushed in between them.

The jury found the employee had not been properly trained in transferring between barges, and that the lighting conditions were inadequate. The jury also found hazardous work conditions, as the barges were covered in gravel. Further, the employer was a member of the American Waterways Operators (AWO) and was therefore required to follow general maritime laws and practices regarding marine operations, maintenance, and safety.

The AWO's program requires that companies, who belong to their organization, comply with certain safety regulations and obtain a third party audit to verify compliance with those AWO guidelines. In this case, such regulations would have included adequately training the workers, providing adequate lighting, and keeping the barges free of debris or gravel. The employer's failure to do such proved failure to provide a safe working environment, which led to the jury finding them as "unseaworthy" or negligent.

Continue reading " Barge Accident Suit Settled for $4.5 Million " »

A 22-year-old woman died after she was thrown from a motorcycle in Arlington, Texas. The woman was riding on the motorcycle with her friend late at night when they struck a car. The motorcycle was allegedly racing with another motorcycle, and each were estimated to be speeding above 100 mph. The motorcycle accident occurred when the bike struck the rear of a sedan, which fled the scene.

The charges for the motorcyclists are pending the outcome of investigation. Police suspect the driver of the sedan fled in fear of liability; however, the sedan driver was generally not at fault before fleeing the scene.

Although the sedan driver's liability has not been determined, as the circumstances of the event are still under investigation, generally leaving the scene of a Missouri motorcycle accident is a crime. The following is Missouri state law in regards to "hit and run" incidents, detailing what qualifies as leaving the scene of a motor vehicle accident.

"A person commits the crime of leaving the scene of a motor vehicle accident when being the operator or driver of a vehicle on the highway or on any publicly or privately owned parking lot or parking facility generally open for use by the public and knowing that an injury has been caused to a person or damage has been caused to property, due to his culpability or to accident, he leaves the place of the injury, damage or accident without stopping or giving his information."

Further, leaving the scene of a motor vehicle accident is a class A misdemeanor, except it is a class D felony if the accident resulted in:

1. Physical injury to another party; or
2. Property damage in excess of one thousand dollars; or
3. If the defendant has previously pled guilty to or been found guilty of a violation of this section.

When an accident occurs, the driver should always provide the following to either a police officer or the injured party:

1. name;
2. residence;
3. insurance provider;
4. motor vehicle number;
5. drivers license number.

Continue reading " Guidelines to Follow After a Motorcycle Accident " »

W.R. Grace & Co. was forced into bankruptcy after more than 135, 0000 asbestos injury claims were filed against the chemical maker. Grace agreed to settle the personal injury suits by paying as much as $1.8 billion. This settlement will eliminate Grace's liability for its asbestos products, leaving future lawsuits to be settled through a trust fund. Insurance providers and other companies facing related asbestos claims will share the cost of financing the trust.

Grace still faces federal criminal charges in connection with its ore mine near Libby, Montana, where 1,200 workers and residents were allegedly injured or killed as a result of asbestos- related diseases.

The U.S. Department of Labor's Occupational Safety and Health Administration (OSHA) protects workers from asbestos exposure in the workplace, or in connection with their jobs. OSHA also requires employers to provide a workplace that is free of serious recognized hazards.

OSHA lists several workers' rights to suggest ways for workers to learn of possible dangers in the work place before it's too late. The following can be found in further detail at:

1. TRAINING FROM YOUR EMPLOYER

-Get training from your employer on chemicals you are exposed to during your work and information on how to protect yourself from harmful workplace injuries. Employers must establish a comprehensive, written hazard communication program (Chemical Hazard Communication)

-Your employer must label chemical containers, make material safety data sheets with detailed hazard information available to employees, and train you about the health effects of the chemicals you work with and what the employer is doing and what you can do to protect yourself from these hazards.

-Get training from your employer on a variety of other health and safety hazards and standards that your employer must follow. These include lockout-tagout, bloodborne pathogens, confined spaces, construction hazards and a variety of other subjects.

Continue reading " OSHA's 'Workers Rights' " »

A state employee was killed in a DUI accident in Frankfort, Kentucky, after her car was struck by a tractor-trailer loaded with concrete. Her family filed a wrongful death claim against the trucking company that owned the tractor-trailer involved in the fatal wreck.

The driver of the tractor-trailer was allegedly under the influence of marijuana and methamphetamines when his truck crossed the centerline.

The decedent's husband filed a lawsuit, accusing the trucking company of carelessness, negligence, and reckless disregard of duty. The family estate claims $17,300 in damages for funeral and burial expenses, in addition to an undisclosed amount for emotional pain and suffering, loss of companionship and loss of future earnings.

The truck driver pleaded not guilty when he was arraigned on charges of murder, promoting contraband, possession of a controlled substance, possession of marijuana, operating a motor vehicle while under the influence and possession of drug paraphernalia.

In wrongful death claims, generally the death must have been caused by the defendant's conduct, even if it was only partially caused by the defendant and even if there was no direct intention to kill the victim. The defendant must have been found negligent for the victim's death. The deceased usually must have dependents to file the suit, such as family members who have suffered from emotional and monetary damages as a result of the death.

Wrongful death claims may arise out of a number of circumstances, including but not limited to:

* Medical malpractice that results in decedent's death;
* Airplane or automobile accidents;
* Occupational exposure to hazardous conditions or substances;
* Criminal behavior; and
* Death during a supervised activity.

Continue reading " Man Dies After Crashing Into Tractor-Trailer " »

A 5-year-old girl had to get plastic surgery and 26 stitches after a black-and-white pit bull bit her left cheek in Wichita, Kansas. The dog owner, also the young girl's uncle, claims the dog was not dangerous and that girl provoked the dog. Animal control officials decided the dog should be euthanized; the owner appealed this decision but later dropped his appeal and relinquished the dog to officials. The appeal would have tested the city's new dangerous dog attack law, which determines if a dog has a vicious propensity based on the following factors:

1. The dog's history;
2. Its potential for biting;
3. Its living conditions, including the presence of children; and
4. The nature of a wound inflicted.

Further, a bite under this law could be justified if the dog were provoked or tormented.

The Corpus Juris Secundum (3B C.J.S. Animals § 323), a secondary source on the body of dog bite law compiling rulings from relevant court cases, a vicious propensity is generally defined as a propensity or tendency of an animal to do any act that might endanger the safety of the persons and property of others in a given situation.

Any propensity on the part of a domestic animal, which is likely to cause injury to human beings in situations where the party controlling the animal places him, is a dangerous or vicious propensity. It is not enough that there be potential danger, but there must be propensity, or a natural inclination to be dangerous.

Continue reading " Dog Attacks And 'Vicious Propensity' Laws " »

A man was killed and two others injured when a semi-truck hit a pickup truck parked on the shoulder of I-196 in Van Buren County, Indiana. Two men were in the pickup and one standing alongside it when the truck accident occurred. The driver of the pickup was killed after the semi driver lost control of the rig and collided with the pickup, which burst into flames.

The semi driver was arraigned for negligent homicide. Although authorities originally believed alcohol played a role, they now believe the driver may have fallen asleep while driving.

In those instances where alcohol or drugs are involved, the FMCSA has regulations in place to monitor such use or abuse. The FMCSA regulates alcohol and drug use by commercial drivers, such as the semi-truck driver above.

The alcohol rules solely prohibit use during performance. Thus, drivers of a commercial vehicle should not drive while using alcohol, while having a breath alcohol concentration of 0.04 percent or higher, or within four hours after using alcohol.

The following alcohol tests are required under the FMCSA for commercial drivers:

* Post-accident - conducted after accidents on drivers whose performance could have contributed to the auto accident (as determined by a citation for a moving traffic violation) and for all fatal auto accidents even if the driver is not cited for a moving traffic violation.

* Reasonable suspicion - conducted when a trained supervisor or company official observes behavior or appearance that is characteristic of alcohol misuse.

* Random - conducted on a random unannounced basis just before, during, or just after performance of safety-sensitive functions.

* Return-to-duty and follow-up - conducted when an individual who has violated the prohibited alcohol conduct standards returns to performing safety-sensitive duties. Follow-up tests are unannounced. At least 6 tests must be conducted in the first 12 months after a driver returns to duty. Follow-up testing may be extended for up to 60 months following return to duty.

Continue reading " Man Killed, 2 Injured in Indiana Truck Accident " »

A 299-foot barge carrying 31,000 barrels, or 1.26 million gallons, of kerosene from New Jersey to New York struck a reef in the Hudson River. The reef was only five feet below the river's surface and ruptured three of the barge's eight holding tanks during the barge accident.

The Coast Guard has classified this as a major spill, as it spans over 2 miles. Kerosene evaporates quickly, so although the fuel used in lamps and heaters can have harmful effects, in this instance 80 percent of the kerosene evaporated within 48 hours. The Coast Guard commented, however, that most hazardous materials are not as simple to contain.

Further, the Coast Guard stated carriers of hazardous materials should be more observant, as this barge accident could have been avoided. The specific channel here was a third of a mile wide, and the reef was clearly marked by a buoy and was also indicated on navigational charts. The Hudson River accident was allegedly the result of inexperienced captains unfamiliar with the river because, in addition to the size of the channel, weather conditions were perfect.

Although experience and familiarity are learned through time and trial, the Department of Homeland security has implemented certain regulations for barge personnel, specifically those dealing with hazardous materials using Vapor Control Systems (VCS).
Basically, because barges often carry hazardous materials, the vapor space in the cargo tanks of barges must be handled in a certain manner, as many may contain high levels of Volatile Organic Compounds (VOCs) and/or Hazardous Air Pollutants (HAPs).

Continue reading " Barge Accident Results in Major Kerosene Spill " »

The pharmaceutical company Baxter Healthcare, Inc. is facing suit in a personal injury claim over the drug Heparin in Illinois. A patient allegedly suffered a "near-fatal adverse reaction" to the drug and is seeking compensation for pain and medical bills. The plaintiff further seeks punitive damages, typically a larger award the court may grant when trying to punish the company and deter similar circumstances from arising in the future.

Baxter recalled doses of Heparin earlier this year after finding some of the multi-dose products caused harmful reactions. The Food and Drug Administration (FDA) decided to further investigate the drug and found an ingredient in the drug was contaminated. The FDA found chemical alterations due to the contamination could cause adverse effects.

The FDA regularly updates important drug information and primarily makes sure to communicate information about all drugs that have the potential to alter the risk/benefit analysis, meaning that the drug could potentially be more harmful than helpful.

The drug safety issues the FDA makes a priority to publicly address include:

1. serious adverse drug experiences identified after a drug has been approved;
2. additional serious or frequent adverse drug experiences in a subgroup of patients; and
3. medication errors.

The factors the FDA uses to evaluate drug safety and public communication are:

1. reliability of the data;
2. magnitude of the risk;
3. seriousness of the event relative to the disease being treated;
4. plausibility of a causal relationship between the use of a drug and the adverse event;
5. extent of patient exposure;
6. potential to prevent or mitigate the risk in the patient population;
7. effect on clinical practice; and
8. disproportionate impact on particular populations.

As an experienced Missouri personal injury attorney, I am happy to discuss your case with you and answer any questions you may have. If requested, I will immediately and aggressively take action in your defense.

The call and consultation are free. I can be reached 24 hours a day at 314.322.8515 or toll free at 1.800.500.INJURY (4658). Call me personally and I will answer all the questions and concerns you may have. There is no fee unless we recover for you.

If you don't want to call or you can't call, you can email me at john@pagecagle.com. I look forward to speaking with you and helping you through these trying times. You can also visit www.injuredclient.com for more information.

A 21-year-old MoDOT, Missouri Department of Transportation, worker was killed in Springfield, Missouri when his dump truck collided with a tractor-trailer. The decedent was on duty when a rainstorm moved into the area; he was driving traveling through several locations to check on flooded roads and set up signs to close the roads. In the course of driving between locations, his dump truck struck the tractor-trailer nearly head-on. The cause of the tractor trailer crash has not been determined, but the rainstorm undoubtedly caused compromising driving conditions.

MoDOT statistics note that motor vehicle crashes are the leading cause of death in the United States for those ages two through 33. It is suggested that most adults spend about two months behind the wheel each year, and it is suspected that as driving becomes a habit, basic driving rules are often neglected. Of all the traffic accidents that take place, only 13% of these accidents are caused by environmental factors, meaning that the majority of accidents are simply caused by human error and various other human factors.

MoDOT has produced a comprehensive guide in hopes of reducing fatal and serious Missouri Truck Crash roadway injuries; the following items have been suggested:

•Follow the speed limit. Chapter 304 of the Missouri Revised Statutes makes it a crime to travel faster than the posted speed limit. Get caught and you're looking at a fine, points off your license and higher insurance rates. Get caught enough times and you could lose your license.
•Buckle up. Safety belts are the single most effective safety device available for occupants in motor vehicles. The Graduated Driver's License Law requires all drivers holding a permit or an intermediate license – and all passengers – to wear a safety belt at all times when operating a motor vehicle.
*Chapter 307 of the Missouri Revised Statutes requires all adults riding in the front seat of a car, truck, SUV or van to wear safety belts.
*Children ages four through 15 must always wear their safety belts whether they're in the front or the back seat.
*Children under four must be properly secured in an approved child safety seat.
•Don't drink and drive. Chapters 302 and 577 of the Missouri Revised Statutes make it a criminal offense to operate a motor vehicle at or above .08 percent BAC. But you can also be convicted of DWI with BAC levels of less than .08 if an officer determines your driving was impaired by illegal drugs, alcohol or medication.

In relation to the unfavorable driving conditions in the accident above, FMCSA requires extreme caution while driving tractor-trailers in such conditions under §392.14. It states:

Continue reading " Guidelines Hope To Reduce Missouri Motor Vehicle Accidents " »

In Muskogee, Oklahoma seven barges broke free allegedly due to equipment failure. The barges drifted into the US. 62 bridge over the Arkansas River after the rope holding the barges unraveled, and the lines between the barges gave way. Each barge was connected to another, which started a chain reaction in that the wire cables in between each barge that were supposed to hold them all together, allowed all seven barges to break lose.

Officials say the cables were new and should have held the weight of the barges, which led some to suspect that there may have been human error in connecting and securing the barges together with the cables. A Coast Guard spokesman said the cause of the Barge Accident is unknown and is still pending investigation. There was no significant damage to the bridge.

The United States Coast Guard has implemented a program in order to prevent or at least reduce human error in the course of employment. The Prevention Through People (PTP) program addresses operating safely in the maritime, focusing on human and organizational influences on maritime safety and system performances.

PTP requires constant and balanced interaction between the management, the work environment, the behavior of people, and the appropriate technology. PTP specifically addresses the human errors of inattention, failure to follow procedure, improper maintenance, inadequate training, and fatigue.

Such programs addressing risk management and awareness, along with the implementation of new training policies are frequently in response to deadly barge accidents that not only cause injury and monetary damages, but also create liability issues. Often, accidents occurring in the course of employment require legal assistance because the question of liability is difficult to discern.

Continue reading " 7 Barges Break Free in Arkansas River " »

As the weather is getting warmer, there are some important things to keep in mind before riding your motorcycle. After the winter months, it's always a good idea to check your motorcycle and make sure everything is running properly. In the event that something is wrong, it is extremely important to find out before you get on the road and get in a potentially fatal motorcycle accident. The Motorcycle Safety Federation (MSF) suggests you check the following before you ride:

• Tires — Check the air pressure, general wear and tread. You should also keep a low-pressure tire gauge, 0psi-80psi, in your bike tool bag at all times. Also, if tread depth is 1-2mm, it is probably time to replace your tires.
•Fluids — Check both oil and fluid levels. You should also check hydraulic fluids and coolants weekly. Further, look for leaks. With the battery, check the fluid levels on each chamber; if any chamber is low, top it but only use distilled or deionized water. Tap water has minerals that are not good for your battery. Also, in regard to fuel, you should check the fuel filter on a regular basis and aim to replace it every 2 years.
•Headlights and Taillight — Check both and make sure both high and low beams are working.
•Turn Signals — Turn on both right and left turn signals, checking to see that the lights are working correctly.
•Brake Light — Try both brake controls, checking that both turn on the brake light.

Once you are on the motorcycle, you should check the following:

•Clutch and Throttle — Make sure they work smoothly. The throttle should snap back when you let go. The clutch should feel tight and smooth.
•Mirrors— Clean and adjust both mirrors before starting. Make sure you can see the road behind and to the side.
•Brakes — Try the front and rear brakes, checking that each one feels firm and actually holds the motorcycle when the brake is fully applied. You should also replace your brake fluid every one or two years so your brakes perform the best because brake fluid absorbs moisture, which makes brakes less effective over time and could result in a dangerous motorcycle wreck.
•Horn — Just make sure it works.

Continue reading " Motorcycle Maintenance Checklist " »

A 24-year-old man sustained major injuries after he drove a motorcycle into a parked pickup truck in San Francisco. The major injury motorcycle collision occurred after 4 a.m. when the man allegedly took his friend's motorcycle for a test drive after leaving a party.

The man was not wearing a helmet, and broke his arm and leg in the motorcycle accident. He was arrested on suspicion of driving under the influence.

In Missouri, when an individual is stopped by the police while driving and the influence of drugs or alcohol is suspected, the officer will generally ask that the person take field sobriety tests. Such tests as walking in line and standing on one leg, help an officer decide if the individual should be arrested or take a Blood Alcohol Concentration (BAC) test.

If an individual's BAC level is .08% or more, the officer will likely arrest the person, take their license and give them a Notice of Suspension/Revocation if not a citation for Driving While Intoxicated (DWI). The notice tells the individual that they will not be able to legally drive after 15 days.

The notice also includes a form that allows one to request a hearing. The following details the process of a hearing:

1. The individual must indicate on the hearing request whether they want to have the hearing in-person or by telephone. If a request is not made, a telephone hearing will be scheduled.

2. If a hearing is granted, a permit to drive will be mailed to him/her if they have surrendered their driver license and are eligible to drive in Missouri. The permit will allow one to drive until 15 days after the decision from the hearing.

3. If a hearing isn't requested within 15 days from the date the Notice of Suspension/Revocation was issued, a hearing will be denied and no further appeal is possible.

4. The hearing date and time are mailed to the individual.

Continue reading " Motorcyclist Crashes Into Parked Car - Accused Of Drunk Driving " »

A fatal railroad collision between a car and a train near the U.S. 71-B in Arkansas has investigators wondering why active warning signs were not at the railroad crossing. The crossing, lacking flashing lights and hinged road-blocking arms, is a dangerous intersection that is, according to the department of transportation, unlikely to have warning signals installed in the near future.

According to the department of transportation, of the 2, 700 railroad crossings in Arkansas, 70 percent do not have active warnings. At such railroad crossings, the only warning may be the sound of the conductor blowing the train's whistle about 15-20 seconds before an intersection, which is a state law requirement.

Several aspects of an intersection are examined before a decision is made to install active warnings; the following are often considered:

1. Train Accident history
2. Site distance in relation to vegetation or new construction blocking visibility of the track.
3. Number of railroad crossings on the road
4. Number of trains that use the track daily
5. Speed of those trains
6. Amount of traffic that crosses those tracks
7. Type of vehicles that cross the tracks regularly
8. If the intersections is often crossed by school buses
9. If hazardous materials are usually transported
10. If it is a more frequently used ambulance route

Continue reading " Fatal Train Accident at Railroad Crossing Raises Questions " »

A truck driver was injured after his semi hit a tire and wheel in the roadway near Hiawatha, Missouri. The truck driver was eastbound on US-36 highway when his truck hit the object in the road. Allegedly the driver tried to brake, but the truck did not slow down enough in time to avoid the Missouri truck accident, which blew out a front tire and broke an oil line. The driver was wearing his seatbelt.

According to the FMCSA, there are certain guidelines implemented for semi truck brakes to ensure that such situations are prevented. The following items are necessary:

1. Antilock brake system. Each single-unit vehicle should be equipped with an antilock brake system that directly controls the wheels of at least one front axle and the wheels of at least one rear axle of the vehicle. Wheels on other axles of the vehicle may be indirectly controlled by the antilock brake system.

2. Antilock malfunction signal and circuit.

(a) Each truck should be equipped with an indicator lamp, mounted in front of and in clear view of the driver, which is activated whenever there is a malfunction that affects the generation or transmission of response or control signals in the vehicle's antilock brake system.

(b) Each truck tractor that is equipped to tow another air-braked vehicle, should be equipped with an electrical circuit that is capable of transmitting a malfunction signal from the antilock brake systems on one or more towed vehicles. Each such truck tractor and single unit vehicle shall also be equipped with an indicator lamp, which is activated whenever the malfunction signal circuit described above receives a signal indicating an ABS malfunction on one or more towed vehicles.

(c) Antilock power circuit for towed vehicles. Each truck tractor that is equipped to tow another air-braked vehicle shall be equipped with one or more electrical circuits that provide continuous power to the antilock system on the towed vehicle. Such circuit should be adequate to enable the antilock system on each towed vehicle to be fully operable.

3. Service brake stop lamp switch; this is a switch that lights the stop lamps when the service brake control is statically depressed to a point that produces a pressure of 6 psi or less in the service brake chambers.

Continue reading " Brake Guidelines In Place To Prevent Missouri Truck Accidents " »

Four people were bitten by dogs after two separate dog attacks on the same day in South Bend, Indiana. Three people were sent to the hospital, including a young boy. Both of the dogs were killed after the attack: police were forced to shoot one dog at the scene, and the other was euthanized after the city Animal Control Center took it in.

The incident with the young boy occurred while the boy was playing in his front yard with a friend. The family's German shepherd mix escaped through the back fence and bit the boy. The dog bit the boy in the face and bit the owner on the arm.

Not long after, the same police who were called to the previous dog bite attack were called to another home after a dog attacked two adults. The dog was inside a fence but busted through as well. The pit-bull mix attacked two men. Police first tried to taze the dog, but when that didn't work, police were forced to shoot it to death.

In both situations, no one knows why the dogs turned violent, and nobody provoked either dog. The injured parties have not filed any legal claims thus far; however, police arrested the owner of the dog for disorderly conduct after the police killed his dog.

In terms of the arrested owner and his dog, state law generally governs whether or not a lawsuit can be filed for shooting a pet, which usually depends on the state's view of an animal as personal property. However, when dealing with liability for shooting a harmful or dangerous dog, gravity and imminence of the harm resulting from the pet are considered, as well as the circumstances for shooting, such as self-defense.

Continue reading " Three Injured in Pair of Dog Attacks " »

The engine of a slow moving, 10-car freight train derailed in East Hartford, Connecticut. Allegedly a piece of track snapped causing the train accident when the engine derailed.

There were no reports of injuries in the Railroad Accident that happened at the rear of an auto glass repair business. However, the state Department of Environmental Protection was called because the engine contained diesel fuel that had to be siphoned out of the engine as a precaution against a possible spill.

Under the Corpus Juris Secundum, in certain circumstances, a railroad car or other equipment, such as the broken piece of track above, constitutes a "product" for strict liability purposes and can be the basis for a manufacturing defect claim; however such claims are strictly monitored or may be preempted by federal law.

A defect in the design of railroad equipment may give rise to liability for injuries or damage resulting from that defect, especially where safer alternatives to the design used are readily available. While alterations of a piece of equipment by the user do not relieve the manufacturer of liability, if the alterations are foreseeable the plaintiff bears the burden of showing that the equipment was defective and was not altered after leaving the control of the defendant.

So, in the situation above, it would have to be proven by a plaintiff against the railroad manufacturer that the piece of track was defective and that the defect, which could have been foreseen to cause problems and could easily have been altered, was directly responsible for the railway accident.

However, the manufacturer of railroad equipment is not an insurer responsible in damages whenever one of its products fails. In addition, defects in specially ordered equipment, not launched into the stream of commerce by the manufacturer, do not give rise to strict liability.

Continue reading " Rail Defect May Have Caused Train Derailment " »

A recent Supreme Court ruling could limit patient safety when it comes to medical devices and pharmaceuticals. The Supreme Court ruled in late February that patients injured by certain defective medical devices, which have been approved by the Food and Drug Administration, cannot sue the product's manufacturer.

This is because federal regulations preempt state-based product liability claims when challenging the design or labeling of medical devices that clear the FDA's approval process. Preemption basically refers to the way that courts deal with conflicting regulations between federal and state governments on the same issue; meaning, when both court systems rule on the same subject matter in a different way, federal law will displace the state regulation.

In this case, the plaintiff alleged that her husband was injured by a faulty balloon catheter that burst during heart surgery. The man died. Medtronic, the manufacturer, said the FDA-approved product had been used improperly.

Although the FDA has thorough processes for approving medical devices and medication warnings, the FDA's recent issues, concerning lack of funding and resources, have some wondering about their ability to monitor the industry adequately.

The main issue in controversy is in relation to whether all similarly situated product liability claims will eventually follow this precedent in being regulated by federal law. The problem with such is that states generally have retained the power to regulate these matters. The longstanding difference between state and federal government roles relate to "police powers," which are matters dealing with health, safety, and general welfare. These powers have fundamentally been retained by states under the 10th Amendment.

Continue reading " Supreme Court Rules To Limit Liability Claims Regarding FDA Approved Products " »

Senator Bill Stoufer of Napton has asked the Missouri state legislature to pass a bill adding comprehensive day rehabilitation services to the Medicaid program now called Missouri Healthnet. Stoufer, the husband of a brain injury victim, hopes his story will help influence the legislature to look favorably on the proposed bill.

Four years ago his wife suffered a traumatic brain injury. While she was being treated, the Stouffers got to know a high school girl who was left in a near-vegetative state for several months. With the help of early intervention and extensive rehabilitative services, she was able to get back to the point where she could function as a teenager.

Depending on the injury, a person often has to be retrained to do even the most routine things such as tying shoestrings or putting groceries into cabinets. Injured people currently get limited outpatient therapy from Missouri hospitals, but that service doesn’t last long and without the extra Medicaid funding, many families can’t afford continued rehab services that could help victims lead full, normal lives.

People like Senator Bill Stoufer are doing their best to make a difference for those who have suffered through a serious personal injury like brain trauma. However, the costs associated with the care that results from accidents that cause these injuries can be exorbitant. While it is important that our government’s social services have contingencies in place to help those without the means to pay for extended medical care, it isn’t something that a victim of an accident that results in a brain injury should count on.

Continue reading " Senator Seeks Funding to Help Brain Injury Victims " »

On the early morning of April 29th, 2007, Jacob Hargrove’s life changed forever. A tow truck driver for Eddie’s Towing Co., Hargrove had pulled his tow truck over to help a car stalled in the gap between the inside lane and the concrete rail on Highway 40. With no warning, an SUV driven by St. Louis Cardinal relief pitcher Josh Hancock plowed into the back of Hargrove’s parked tow truck, instantly killing Hancock. An autopsy later revealed that Hancock’s blood alcohol-level was twice the legal limit at the time of the Missouri Truck Accident.

Hargrove’s attorney confirmed on Thursday May 1st that his client had settled with the ballplayer’s insurance company, State Farm Insurance. The terms of the settlement were not disclosed.

“Everyone is pleased that this is done, that it did not have to go to court,” Robert Pedroli, Hargove’s attorney said Thursday morning. “Jacob still remembers the events of that evening and he is still recognized in public because of the coverage of it… A year after the accident this helps bring a certain amount of closure.”

Truck accidents on Missouri roadways are a serious threat to the traveling public. Truck Accidents are the leading cause of death for those under the age of thirty-four (34) and over 40,000 people are killed annually in approximately five million motor vehicle accidents. In 2002 alone, nearly 43,000 people died in highway accidents nationwide. That is over 115 fatalities per day from accidents. The economic cost of these accidents is staggering and exceeds $150 billion per year. During your lifetime you are likely to be involved in at least one accident. You should know what to do in order to protect yourself and your legal rights.

Continue reading " Truck Driver Settles with Insurance Company " »

A lane closed for construction on Interstate 70 caused traffic congestion and, allegedly, a three-vehicle truck crash in Columbia, Missouri that killed one woman. The accident occurred when a tractor-trailer stopped due to congested traffic because construction crews were paving the road and closed a lane on the interstate. A woman, hauling a flat-bed trailer, swerved and rear-ended the trailer on the interstate; she died at the scene.

Another pickup truck swerved to avoid the Missourit Truck wreck and struck the rear of the decedent's trailer, becoming wedged between the median divider and the semi. Debris was left across all three lanes of the highway.

The Missouri Department of Transportation suggests following the three "S's" to manage work zones and road construction safely. Speed, Space and Stress.

MANAGE YOUR SPEED

-Slow Down when approaching all work zones. You will be in the work zone quicker than you think.
-Follow Posted Speed Limits, especially within construction zones, and try to maintain a consistent speed with the traffic flow. And adjust your speed for weather conditions.
-Don't Resume Normal Speed until you see roadway signs indicating it's safe to do so.

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