Birmingham Personal Injury Lawyer - drunk

Its no "accident" when you run over bicyclists after drinking all night

Danny Feldman — Tue, 25 Aug 2009 12:08:38 GMT

Three cyclists recently were hit and injured in Baldwin County by a 28 year old driver who apparently had been out drinking all night and had yet to go to bed. See article at http://blog.al.com/live/2009/08/two_baldwin_county_cyclists_hi.html. Interestingly, this 28 year old "child" still lived at home with his parents. After the incident, the father of the 28 year old driver issued a statement advising that thoughts and prayers went out to the bicyclists and their families for this terrible "accident." According to the article, the 28 year old driver had been out drinking all night and refused a breath test. A blood test was taken and although results have not yet been released, I believe that there is a very good chance that these tests will show that this young man was drunk when the wreck occurred at 8:30 in the morning.

Staying out all night drinking, then driving around drunk, losing control of your vehicle and then running over cyclists is no "accident." Rather, had one of the cyclists died, which easily could have happened, the case is one of vehicular homicide. Calling something an "accident" when it really is a deliberate action taken without regard for the health and well-being of the general public, cyclists included, really is an attempt to minimize the seriousness of the wrongdoing involved. While it may be true that this motorist did not mean to run over these cyclists, the fact of the matter is he did mean to get drunk; he did chose to stay up all night; after drinking and staying up all night, he did decide to drive his car - consequences be damned.

This case hits close to home in Baldwin County where another young man on two separate occassions separated by only a couple of years, got drunk and killed cyclists. Tragic, but hardly an "accident," especially the second time.

Here in Birmingham, I handled a case 5 years ago where a man, only a few years younger than the one here at issue, and like the one here, still living at home with his parents, went out, got drunk and ran over 3 cyclists on Lakeshore Drive. He fled the scene, dragging one of the cyclist's bikes under his car for more than a mile. His mother made him turn himself in and when he took a blood test a couple of hours later, we were able to determine through expert testimony from a toxicologist, that his blood alcohol level at 7:30 am on a Sunday morning was about twice the legal limit. Discovery revealed that this young man had had a serious of incidents, including arrests and convictions for public drunk, disturbing the peace, DUI's etc. However, each time, his penalty was quite minor, maybe attendance at an alcohol abuse class. Even in the incident described above, he spent only one night in jail because, fortunately, the cyclists involved did not die and they decided not to press assault charges.

I wonder about Mr. Maple, the 28 year old in Mobile. I would be very surprised, indeed, stunned, if he did not have a number of arrests and/or convictions, for DUI and the like. The article states that he was able to leave by posting a $1,000 bail. Has he learned a lesson? Will he quit going out and getting drunk and threatening not only himself, but every other motorist, cyclist or pedestrian that gets in his way? I bet not - and that's too bad for all of us.

Originally posted at InjuryBoard by Danny Feldman

Accidents Caused by Drunk Drivers - Part 5

Jon Lewis — Sun, 14 Jun 2009 21:50:36 GMT

In this last part of this series, I will discuss one last method for people to protect themselves and their families from accidents caused by drunk drivers. What happens if the drunk driver is uninsured? What happens if he was drinking at home before he got in his car on the road? What happens if you or a family member is injured or killed by this type of drunk driver? How will you or your family be compensated?

Well, if there is no bar or package store involved, if there is no insurance coverage, or if the drunk individual has no personal assets to recover, there is only one way to be compensated for the damages caused by the drunk driver: YOUR UNINSURED MOTORIST COVERAGE ON YOUR OWN POLICY. How will this help? It won't if you don't have such coverage or if you don't have enough coverage.

In Alabama, you are required to have uninsured motorist coverage unless you tell your insurance agent, IN WRITING, that you don't want such coverage. However, even if you don't reject it in writing, you will only have the minimum of such coverage in the amount of $25,000 unless you request otherwise. Many companies will allow you to carry $250,000 or $500,000 worth of uninsured motorist coverage. In addition, you may stack the uninsured motorist coverage on three of your vehicles (unless the insurance coverage is on separate policies, but that is another matter). Therefore, if you have $250,000 on each vehicle, you will have $750,000 worth of coverage if the drunk driver is uninsured or underinsured.

This does not mean that you can collect the full amount of the coverage if a drunk driver injures or kills you or a family member, but you or your family will be able to recover compensation based upon the injuries and damages up to the amount of $750,000. Isn't this where you want to be? Uninsured motorist coverage is not very expensive, but in a state where 15-25% of the drivers are uninsured, you need to protect yourself, and uninsured motorist coverage is the best way to do that in Alabama.

Originally posted at InjuryBoard by Jon Lewis

Accidents Caused by Drunk Drivers - Part 3

Jon Lewis — Thu, 30 Apr 2009 09:00:00 GMT

We have discussed various claims regarding drunk drivers. One claim we haven't discussed is called a "Dram Shop" claim. This is a claim against a bar or package store which sold alcohol contrary to the provisions of law. This claim is created by statute and was not allowed at common law. The actual wording of the Alabama statute is as follows:

Section 6-5-71

Right of action of wife, child, parent, or other person for injury in consequence of illegal sale or disposition of liquor or beverages.

(a) Every wife, child, parent, or other person who shall be injured in person, property, or means of support by any intoxicated person or in consequence of the intoxication of any person shall have a right of action against any person who shall, by selling, giving, or otherwise disposing of to another, contrary to the provisions of law, any liquors or beverages, cause the intoxication of such person for all damages actually sustained, as well as exemplary damages.

(b) Upon the death of any party, the action or right of action will survive to or against his executor or administrator.

(c) The party injured, or his legal representative, may commence a joint or separate action against the person intoxicated or the person who furnished the liquor, and all such claims shall be by civil action in any court having jurisdiction thereof.

The statutory language begs the question, "What is disposing alcohol contrary to the provisions of law?" Typically, that means selling alcohol to a customer who is "obviously" intoxicated. This will typically require a witness to testify that he/she witnessed the drunk individual falling over his feet, stumbling, slurring, and/or smelling of alcohol. This is usually the most difficult part of these cases - finding the witness.

These cases can also be proven via the toxicology reports. If the blood alcohol content of the individual was such that he/she would have been falling over drunk in the bar, you might be able to prove the case as well. Although, there is some authority that you would still need a witness.

These cases arise when someone is allowed to get drunk as a skunk at a bar, leave, get in his car, and goes out and kills or injures someone. Additiionally, a claim could arise on behalf of the individual's family members who are dependent upon the person. For example, if Joe Smith gets sloppy drunk at Acme Bar, leaves, and gets killed because his car runs off the road, Joe Smith's children would have a claim against Acme Bar because they relied on Joe Smith for support.

Another method of showing that alcohol was sold "contrary to the provisions of law" is to show that the alcohol was sold to a minor. This is also covered in the Statute:

Section 6-5-70

Furnishing liquor to minors.

Either parent of a minor, guardian, or a person standing in loco parentis to the minor having neither father nor mother shall have a right of action against any person who unlawfully sells or furnishes spirituous liquors to such minor and may recover such damages as the jury may assess, provided the person selling or furnishing liquor to the minor had knowledge of or was chargeable with notice or knowledge of such minority. Only one action may be commenced for each offense under this section.

Many times, minors, the age of 19 in Alabama contrary to most states and 21 for purposes of alcohol sales, are sold alcohol by a package store or bar. These entities have a duty to check the age of the individual and make sure that their employees are properly trained so that they do not sell alcohol to minors. If they do sell alcohol to a minor and the minor is injured or killed, the parents of the minor would have a dram shop claim against the package store or bar.

These statutes were created to encourage the proper sale of alchohol and prevent injury and death. The statutes are penal in nature such that punitive damages are allowed against the seller as a result of their wrongful actions.

In part 4 of this series, I will discuss some issues and flaws with this law. You will be surprised at some of the unbelievable things the State of Alabama allows/encourages.

Do you have any opinions on drunk drivers and dram shop claims? We want to know. Let us have your opinions.

Originally posted at InjuryBoard by Jon Lewis

Accidents Caused by Drunk Drivers - Part 2

Jon Lewis — Mon, 20 Apr 2009 16:18:16 GMT

From a civil standpoint, there are several courses of action you can take in the event you or a loved one are injured as a result of a drunk driver's actions. The first, and obvious, choice is to file a lawsuit against the drunk driver for negligence and wantonness. Negligence involves proving that the drunk driver breached a duty to others sharing the road. Clearly, when one drives under the influence of alcohol, they are breaching a duty to others on the roadways and putting lives in danger.

The second cause of action is called wantonness. Wantonness is

the conscious doing of some act or omission of some duty under knowledge of existing conditions and conscious that from the doing of such act or omission of such duty an injury will likely or probably result. Before a party can be said to be guilty of wanton conduct it must be shown that with reckless indifference to the consequences he either consciously and intentionally did some wrongful act or consciously omitted some known duty which produced the injury. Alabama Pattern Jury Instructions 29.00.

In plain English, wantonness is acting in a reckless manner without caring for the health and safety of others. Drinking alcohol and driving clearly meet that definition.

What is the difference between wantonness and negligence? Negligence only allows for compensatory damages - those damages which compensates the injured victim, i.e.: medical bills, pain and suffering, lost wages, etc. Wantonness allows for punitive damages as well - damages to punish the drunk driver for his wanton action.

Another potential cause of action is a claim for negligent entrustment. Negligent entrustment would be a claim against the owner of the vehicle if the drunk driver did not own the vehicle. In that type of claim, you would have to be able to prove that the owner knew or should have known that the driver was an incompetent driver. In such a case, you need to obtain the driving record and the criminal record of the drunk driver. If the drunk driver had had a DUI in the past, the owner should never have let him drive his car.

Finally, if the drunk driver is on the job at the time of the wreck (believe it or not, this happens), the employer will be responsible for the injuries he inflicts. The employer could also have some issues of their own if they knew or should have known that the employee was likely to drive under the influence of alcohol, i.e.: previous DUI's, problems with previous employer, prior warnings, etc.

Another cause of action, which I will addres in Part 3 of this series, is called a Dram Shop action. This type of civil claim is set forth in the Alabama Code. Stay tuned and let us know if you find this information helpful.

Originally posted at InjuryBoard by Jon Lewis

Driving Impaired

Danny Lehane — Wed, 15 Apr 2009 10:54:26 GMT

We all are aware of the 22 year old pitcher for the California Angels who was killed last week by a driver that was intoxicated over three times the legal limit. Sadly, injuries and death caused by drunk or impaired drivers is an all too common occurrence. Inexplicably, people continue to drive despite being intoxicated or impaired. One would be hard pressed to find a more careless and irresponsible action than being in such a condition and (attempting) to operate a vehicle.

I have handled a great deal of injury cases caused by drunk or impaired drivers. While a lot occur later in the night, a great deal of these wrecks occur between 7:00 a.m. and 5:00 p.m. (Frankly, if you are getting high or hammered in the middle of the day, you have bigger issues than being a self absorbed irresponsible driver…but I digress.) The point is there are individuals driving impaired at all hours of the day, every day of the week. We all drive as defensive as we can but when a drunk, impaired, high, etc., driver blows through a red light at 60 m.p.h. and is coming straight at your door, there is not a whole lot you can do.

The solution to this problem falls at the feet of each person. We toughen laws, and people still drive while impaired. The only real solution is to hope that those who operate their vehicles while they are impaired stop doing so before they kill themselves or others.

Originally posted at InjuryBoard by Danny Lehane

Accidents Caused by Drunk Drivers - Part 1

Jon Lewis — Thu, 09 Apr 2009 14:46:47 GMT

Tragedy knows no economic status. It has been reported today that a Major League pitcher, Nick Adenhart, has been killed by a drunk driver. See CNN's report. Adenhart pitched for the Los Angeles Angels just prior to the accident which was his fourth Major League start.

Unfortunately, while such a death is tragic, it is an event which occurs regularly in every State. When it happens to a professional athlete, it brings attention to the subject. However, the occurrence is much more prevalent with everyday individuals.

We have handled numerous drunk driving accidents over the years, and they are always very difficult. One involved a twenty-year old individual who lost a leg. One, which we are handling right now, involves the death a man who had three minor children.

All of these accidents and tragedies are preventable. Clearly, these activities are illegal and subject to criminal penalty, but there are also civil remedies available. I will discuss these remedies in Part 2 of this series.

Originally posted at InjuryBoard by Jon Lewis

Overcoming the Contributory Negligence Defence in a Bicycle Accident case

Danny Feldman — Mon, 26 Jan 2009 16:47:22 GMT

This article follows up on the recent post regarding the use of rear reflectors in Alabama and the risks of not using same.

Given that Alabama is a “pure contributory negligence” state where 1% of negligence on behalf of plaintiff may bar a recovery even if defendant is 99% at fault, you can bet it’s a defense often raised by defense lawyers. How can you beat it?

First, it is defendant’s burden to prove to a jury that you were negligent. A violation of a statute is prima facie evidence of negligence – it is not necessarily dispositive. For example, in the case of not having a rear reflector (a per se violation of the Alabama Code) are you really negligent if you had a blinking red light and/or reflective material on your shoes, back and helmet? Remember, negligence generally is defined as failing to do something a reasonably prudent person would do or doing something that a reasonably prudent person would not do – the “reasonable person standard.” If you have lights, reflective gear etc. that actually allowed for more visibility than the red reflector required by statute, using the items that allow for more visibility certainly is what a reasonable person would do, isn’t it? Of course, this may require expert testimony regarding the comparative visibility of a cyclist using the rear reflector versus using something else, but seemingly, you could make a pretty strong case that you were not negligent.

Another factor to consider is this – just because you violate a statute (which is, of course, prima facie evidence of negligence) does not necessarily make you negligent. Who among us hasn’t driven over the speed limit on occasion, and felt that in so doing we nonetheless were driving in a safe, prudent and reasonable manner? Take a case where someone was driving through a green light at 32 mph on a road with a speed limit of 30 mph when someone else ran a red-light and broadsided this person. How many jurors do you think will conclude that the person driving 32 in a 30 was negligent (unreasonable) such that a verdict ought to be rendered in favor of the person that ran a red-light? The same argument can be made if a cyclist was going through a green light at 27mph in a 25 mph zone and was hit by a motorist running a red-light.

Another way to overcome the contrib. defense is that defendant must also prove that plaintiff’s negligence was a proximate cause of the incident. Take for example a driver who is driving with a revoked or suspended license. Assume this driver lawfully was stopped at a red light and was rear-ended. Plaintiff’s driving a vehicle without a valid license may well be considered negligent, but did this negligence cause the wreck? I think most people would conclude that it did not. As regards cycling and the failure to have a rear reflector, assume that the cyclist is hit head-on by a motorist who lost control of her vehicle, crossed the double yellow line and struck the cyclist. How can anyone persuasively argue that the failure of the cyclist to have a rear reflector caused the wreck?

Finally, plaintiff’s contributory negligence is no defense to a wantonness cause of action. Wantonness is doing something in “reckless disregard” of others. For example, it is one thing to run the red light – negligence – it is entirely another to run the red light and have a .20 blood alcohol content. Driving drunk or high, driving when you haven’t slept for 48 hours, driving 80 mph in a 25 mph zone, all are behaviors that rise past the point of negligence and which give rise to wantonness claims. As regards these types of behaviors a cyclist’s (or motorist’s) contributory negligence will not defeat their claim.

As you can see, even if you have violated a statute and the contributory negligence defense is raised, it does not necessarily mean that you will be barred from recovery. In addition, sometimes, as a practical matter, a defense attorney may elect not to raise the defense given the very technical nature of the violation and the fact that arguing contrib. may simply make the jury mad at defendant who, instead of accepting responsibility for his bad conduct instead may be viewed as unfairly trying to eschew personal responsibility by focusing on plaintiff’s innocuous violation of an antiquidated statute.

In the next posting, I will address some other Alabama statutes (like the so-called mandatory side-path law etc.) that might lead to defendants’ raising the contrib. defense

Originally posted at InjuryBoard by Danny Feldman

What Causes Car Accidents?

Jon Lewis — Wed, 10 Dec 2008 11:58:29 GMT

A Birmingham News article in today's paper referenced a talk given by John Staddon, Ph.D., a psychology professor at Duke University. The talk was given at an advisory board meeting of the UAB transportation center. Dr. Staddon argued that some of the reasons traffic fatalities are greater in the United States than in the United Kingdom are traffic signs, speed limits, and cruise control.

According to Dr. Staddon, traffic signs distract drivers from the roadway. Instead of paying attention to the roadway, drivers look to the sides of the road in order to view the signs. Whereas, in the United Kingdom, many traffic signs are painted on the roadway, and they use roundabouts instead of stop signs in many instances.

Dr. Staddon stated that neighborhoods use stop signs too much. Additionally, stop signs are used for speed control in some instances, and as a result, "they require a stop even when stopping is not necessary for safety's sake." With respect to speed limits, the United Kingdom has three limits depending on the roadway: 30, 60, and 70. In the U.S., speed limits can vary from 45-80 on the same section of roadway. This causes drivers to focus on the signs and not road conditions.

Couple Dr. Staddon's arguments with the use of cell phones and drunk driving, you can imagine why so many catastrophic injuries and death occur on U.S. roads. Drivers take driving and health for granted and don't think about the damage even low speed impacts can cause (would you put your hand between two cars traveling at 5 mph?). This holiday season, think about these things while you are driving. Maybe you will save yourself, your family members, or someone else from an unwanted memory.

Originally posted at InjuryBoard by Jon Lewis

Trucking Regulations - Part III - Controlled Substances and Alcohol Use and Testing

Jon Lewis — Fri, 13 Jun 2008 17:16:07 GMT

Obviously, the Federal Motor Carrier Safety Act prevents drivers from driving 18 wheel rigs while under the influence of controlled substances or alcohol. Section 382 of title 49 of the Code of Federal Regulations governs the requirements trucking companies must follow with regard to testing for controlled substances and alcohol abuse. The Department of Transportation has specific rules regarding the testing processes.

Trucking companies must test at various times during a driver's employment. The various tests include: pre-employment testing, post-accident testing, random testing, reasonable suspicion testing, return-to-duty testing, and follow-up testing. These tests insure that drivers meet the qualifications for performing safety-sensitive duties without being under the influence of alcohol or controlled substances.

In addition, drivers have certain requirements for when alcohol use is permitted. For instance, drivers may not perform safety-sensitve functions within four hours of the use of alcohol. Drivers may also not use alcohol within eight hours after an accident or after a post accident alcohol and controlled substance test, whichever occurs first. These rules attempt to make sure that drivers are not engaging in safety-sensitive measures while under the influence of alcohol or controlled substances.

Unfortunately, not all trucking companies abide by these rules. Consequently, there are rules regarding the retention of testing records. Records reflecting a positive test for a driver with an alcohol concentration greater than .02 must be kept for five years. Records reflecting any negative test must be kept for one year.

These rules assist us as attorneys in helping those whose loved one has beenkilled or those who have themselves been injured by a tractor trailer. We ask for this information in discovery, and if the trucking company cannot produce the proper documents, it helps us in pushing the case to a successful conclusion.

Originally posted at InjuryBoard by Jon Lewis

Asleep at the Wheel

Jon Lewis — Wed, 04 Jun 2008 14:20:20 GMT

On Monday, June 2, 2008, a horrible collision occurred on U.S. 280 in Mountain Brook. According to the Birmingham News, a 20-year old Auburn University student, Heather Eagan, may have fallen asleep, crossed the median, and killed Mary Anne Blake, the wife of former Birmingham City Councilman, Dr. Jimmy Blake. Miss Eagan was apparently driving back to Auburn from Illinois.

This type of collision shows how dangerous driving can be and what can happen if you lose focus on the road. Falling asleep, using a cell phone, drinking and driving, and violating the rules of the road in general can lead to accidents, injuries, and death. As a result, our system of laws allows for compensation to the victims of these accidents. This type of system not only compensates those who were injured, but it also punishes those who kill others on our roadways (Alabama only allows punitive damages for wrongful death, and look for more information on that in future articles on our site).

We want this system to work so that people will obey the laws and driver carefully. If they don't, there will be financial consequences and, possibly, criminal consequences. When you are on the roadways of Alabama, pay attention and be considerate of other drivers. Driving while drowsy risks other people's lives. Driving while on a cell phone risks other people's lives. Driving while intoxicated risks other people's lives. Is it worth it? Obviously not. All of these things can wait until you are no longer in a moving vehicle.

Originally posted at InjuryBoard by Jon Lewis