December 15, 2014

Rear End Car Accident Victims Need to Be Aware of Sudden Incapacity Defense

If you are involved in a car accident in Maryland in which you are rear ended, it may seem like it's a clear cut case. Someone who rear ends you and causes you injuries should be liable to you for damages. And normally, that's true. But there's one special circumstance where that may not be so true, and where you, as an injured victim, may have a special burden to prove.

The Sudden Incapacity Defense

In Maryland, if someone loses control of their vehicle by what is known as "sudden incapacity," they may not be liable to you for your injuries, even though the accident was their fault. Sudden incapacity has been described by Maryland courts as "suddenly and unforeseeably" being incapacitated.

The logic is obvious--that a driver shouldn't be responsible for an accident when he wasn't conscious and couldn't control his own actions. A negligent party must be able to comprehend his own actions.

The key is the second word--"unforeseeably." The defense does not apply and cannot be used to avoid liability by a driver when the driver has reason to know that he could black out or lose consciousness. Some examples may be:

● Drivers who are prone to seizures and are unmedicated;
● Drivers who are on medication that may make them woozy or unaware of their surroundings; or
● Drivers who may have suffered a blackout or similar condition in the recent past.

The question of whether a blackout or loss of consciousness was foreseeable is one for a jury. For example, someone who had a heart attack 3 years ago may not be on notice that they could have another one at any time. But someone who recently had a doctor tell them they could have a heart attack at any time could be held responsible for an accident caused due to lack of capacity.

Maryland is not alone; other states have similar laws that will excuse a driver from negligence due to sudden incapacity.

Using and Defeating the Defense

If the defense is used, it is the defendant's burden to prove that they were incapacitated and that the incapacity was unforeseeable.

As you may imagine, proving the defense may often rely on expert medical testimony. Some conditions may make a driver more opt to blackout than others, and that takes a doctor to testify to.

A driver who uses this defense obviously puts his or her medical history into question, and a good accident attorney should take every step to acquire these records. Because of the sensitive nature of medical records, many defendants may opt not to use the defense. But if it's used, discovering medical records that show that a driver has blacked out in the past is a "smoking gun," which will often defeat the defense very quickly.

Sudden incapacity is one of the rare instances where the presumption of negligence that lies against people who rear end other drivers may not apply. A good personal injury attorney needs to look out for defendants who may want to use it.

If you've suffered an injury of any severity in Maryland, and you think it may be due to the negligence of another, you need an attorney that's ready for any defense. Contact the attorneys of Brassel, Alexander & Rice, LLC today for a free consultation to discuss your rights.

December 3, 2014

New Case Uses Negligent Entrustment to Find Liability in Catastrophic Trucking Accident

The Negligent Entrustment Theory

When there is a trucking accident, our natural first impression is to sue the trucker or the trucking company under standard negligence grounds. And of course, this is a major avenue for liability.

But many of these cases also involve an issue known as negligent entrustment.

Negligent entrustment is a cause of action where a party is sued for entrusting someone with a car or truck when it should have been apparent that person should not have been trusted. Most commonly, this is used when a parent trusts a teenager to drive a vehicle, or someone allows an impaired person to use their car, and an accident results.

It's somewhat different than vicarious liability. With vicarious liability, one is automatically liable for the actions of another (such as an employer for an employee). But negligent entrustment isn't "automatic." It requires separate proof that it was negligent to allow someone to use a vehicle.

In the trucking context, employers don't have to have a crystal ball to see if their employee drivers will have an accident or not. But they do have an obligation to ensure that their employees are safe and qualified drivers to the best they can before hiring. This may include using background and criminal checks.

Recent Case Uses Negligent Entrustment Theory

A recent case has used the entrustment theory to find liability against a trucking company. An innocent bicyclist was struck by a commercial truck. The bicyclist died from his injuries. The victim's estate was awarded over $2 million in compensation.

Using the entrustment theory here had a benefit for the plaintiff: it allowed the plaintiff to use as evidence the driver's driving record. Ordinarily those records are inadmissible. But with the negligent entrustment theory, driving records may be probative as to whether the employer knew or should have known the driver should not have been hired. In other words, the theory allows very persuasive evidence--a bad driving record--to be considered by a jury when it ordinarily would not have been.

The court also allowed the plaintiff to cite from state safety manuals to the jury. Normally, such manuals can't be used to impeach an expert witness, but the court found there was nothing preventing such standards and manuals from being used generally, such as when questioning a lay witness, or in an opening or closing statement.

The manuals were used to demonstrate a standard of care that must be followed, and that the defendant violated it. A jury may not know what kind of standard of care must be used for a trucker, or for a trucking company in hiring an employee. Allowing the usage of government and safety manuals is a huge asset to a plaintiff trying to provide the standard to a jury.

If you've suffered an injury of any severity in Maryland, you want attorneys that understand every possible theory of liability. Contact the attorneys of Brassel, Alexander & Rice, LLC today for a free consultation to discuss your rights.

November 24, 2014

Large Maryland Verdict Highlights Needs of the Catastrophically Injured

A Maryland construction worker injured on the job has been awarded $21.7 million for injuries suffered on the job. The horrific accident left the worker paralyzed from the neck down.

The Accident

The victim was a worker at Pepco, working in a power house in Maryland. He was electrocuted by a transformer, giving him third degree burns to 10 percent of his body. The accident left him paralyzed when the force of the electrocution sent him flying into the air, and then onto the ground, severing his spine.

The workers had apparently been told the transformer had been turned off, when it fact it had not.

At trial, Pepco did not contest liability, admitting fault for the accident. Pepco only contested the amount of damages that should be awarded.

The jury awarded $35.9 million, but because of Maryland's cap on non-economic damages (which include pain, suffering, emotional distress, and loss of enjoyment of life), the award was reduced to $21.7 million.

Large Verdicts Help the Catastrophically Injured

The amount seems huge. And many laypeople envision victims driving off in expensive cars paid for by their verdict or settlement.

But in practicality, considering the nature of the injuries in this kind of case, the money is hardly excessive, and in some case, may barely cover the costs and expense of the victim.

In such catastrophic damage cases, jury awards compensate victims for the necessary care that they need for the remainder of their lives.

We all know how much a medical bill can be for a disease or day-to-day incident. With a life-altering injury that will require a lifetime of intensive, around-the-clock care and routine hospitalizations and usage of medications and medical devices, that cost can be astronomical.

As you may imagine, the amount can be more for a younger victim, who will need care for more years than someone who may be older.

In court, to demonstrate damages, plaintiff attorneys will often use an expert to testify as to the life care needs of such victims, and to provide estimates of the costs of inflation as applied to these expenses of the victim.

In addition to medical care, damages in these kinds of cases also can include retrofitting homes and vehicles to make them accessible to victims of catastrophic injury.

The victim in this case was 28. It's reasonable to imagine 50-60 more years of life. Multiplied by the cost (and loss of income) of all of this, it becomes clear that a verdict such as this may not be any kind of windfall at all.

Rather, it may be just compensation, not as money in someone's pocket, but rather, money to ensure that the victim lives as full and complete a life as they can, and to try to provide him an equal playing field in life as compared to those of us who are not catastrophically injured.

If you've suffered an injury of any severity in Maryland, and you think it may be due to the negligence of another, don't risk your case with attorneys you can't trust. Contact the attorneys of Brassel, Alexander & Rice, LLC today for a free consultation to discuss your rights.

November 12, 2014

Can a Hospital be Liable for the Death of an Ebola Patient?

As the Ebola scare continues throughout the U.S., one leading case is raising important issues about medical malpractice. The case of a man who died in a hospital from Ebola can give us an important lesson about the standard of care that our health care providers must demonstrate, and what an injured victim must prove in a medical malpractice action.

The Death of a Texas Ebola Patient

The case involves a Texas hospital that waited many hours before treating Thomas Duncan, who eventually died from the disease. After treating him, the nurses then reportedly continued contact with other patients, unaware of the dangers of spreading the disease to themselves and others.

A nursing group is now calling the Dallas hospital "sloppy," and alleging that nurses were not properly trained in Ebola protocols. The nurses say they were given no protective gear, and that blood was tested using a system that could infect the entire hospital's blood supply.

In a rare move, the hospital has apologized, and admitted mistakes in treating Mr. Duncan.

So did the hospital and its staff commit medical malpractice? Despite the apology and the clear inadequate training alleged by the nurses, that question may be more difficult than it appears.

Medical Malpractice and Ebola

Not every bad outcome is a result of malpractice. Health care providers don't have to always make the right decisions. They just have to make the decisions that other, similar health care providers in the same situation would do.

For example, it's well known that certain pains and shortness of breath may signal a heart attack. A doctor who sees these symptoms and does nothing is likely liable for malpractice.

But ebola is new to this country. There are no protocols. Hospitals have had little time to learn about the disease and establish standards, much less train employees. Even some experts disagree on how it's transmitted. Given this, the question becomes whether other doctors or hospitals in the same situation, would do the same thing the Dallas hospital did--even if it was ultimately incorrect. The answer may well be yes.

This is likely why the hospital apologized. It may be well aware that while it made a mistake, it made a mistake that many hospitals would make. Hospitals are not so willing to apologize when they know they have violated longstanding standards of care.

Causation will be an issue as well. A victim must demonstrate that the malpractice caused the injury.

Using the heart attack example, thousands of people are saved from heart attacks every day. A hospital may have caused a death if it fails to recognize and react to a heart attack.

But many have died from ebola, even with timely and appropriate treatment (at least, overseas). If Mr. Duncan would have died anyway, the hospital can argue that whatever errors it made did not cause the death. The disease did.

These problems are not unique to ebola. As new diseases and conditions are discovered, and new medicines that may sometimes be dangerous are introduced, the standard of care is always measured against the body of expertise and knowledge that exist in a given medical field. What is not malpractice today because of uncertainties, may be malpractice tomorrow, when more knowledge about a disease's treatment is learned by healthcare providers.

Malpractice cases can be complex and involve proper analysis of facts, the standard of care, and review of medical information even before a case is filed. If you're injured in Maryland, contact the attorneys of Brassel, Alexander & Rice, LLC today for a free consultation to discuss your rights.

October 28, 2014

Large Medical Malpractice Verdict Demonstrates Importance of Medical Experts

If you are injured as a result of medical malpractice, you must prove what your doctor did or did not do deviated from the ordinary and prudent standard of care. Medicine is uncertain, and not every bad result is malpractice. So, the law generally compares your doctor's actions to those of other doctors in the same field. If other reasonable doctors would have done the same thing in the same situation, there is no liability for malpractice, even if the decision made by your doctor ultimately turns out to be wrong.

To show your medical providers acted negligently, extensive expert testimony is needed. A malpractice case may have medical testimony from your doctor, an expert your attorney hires to support your doctor's actions, and doctors for the other side, who will say that the medical provider you're suing acted reasonably and prudently.

Recent Case Involves Permanent Injury at Birth

A recent case decided by a Maryland appeals court has upheld a $20 million jury verdict because the court felt that although there was conflicting testimony between experts on both sides, ultimately, a jury can and did choose to believe one expert over another.

The case arose from the failure to conduct a cesarean section by the Plaintiff's doctors. Labor was induced because of high blood pressure in the mother and the baby. While in labor, a monitor showed that the baby was low on oxygen.

The Plaintiff's experts testified that this was a sure sign that a C-Section should be performed immediately. Yet, the Plaintiff's doctors allowed labor to continue for three more hours. The child was born oxygen deprived, with his umbilical cord around his neck, and with a kind of cerebral palsy that will leave him wheelchair bound for the remainder of his life.

Battle of the Experts

The hospital and doctor's experts testified that tests after delivery showed the child was not oxygen deprived after delivery, and thus, that his impairments were not a result of choosing not to do a C-Section. They also testified that it was near impossible for a soft umbilical cord to compress a child's jugular veins.

Of course, the Plaintiff's experts testified differently, saying a C-section should have immediately been performed. The jury ultimately believed the Plaintiff's experts, and awarded the $20 million verdict. On appeal, the appellate court upheld the decision.

The appellate court did not find either side's experts unbelievable. Both were found to be credible. It is not an appellate court's job to re-weigh evidence that the jury has already considered. So long as there is enough evidence for a jury to make its finding, that finding won't be overturned on appeal.

Because of the credibility of both sides' experts, the jury's findings were based on solid evidence, and thus, could not be overturned on appeal.

Why Experts Matter

Sometimes, more so than lawyers, in medical malpractice cases, it's the expert doctors that may persuade a jury one way or the other. And once that happens, there is almost no ability to appeal the decision of a jury to believe one expert over another.

This is exactly why so much money is put into finding qualified, credible, and experienced witnesses in medical malpractice cases. In many cases, juries may simply believe the expert that presents the often complex medical information the clearest. Presentation is often just as important as substance when it comes to experts.

Malpractice cases can be complex and involve proper analysis of medicine and proper selection of experts. If you're injured in Maryland, contact the attorneys of Brassel, Alexander & Rice, LLC today for a free consultation to discuss your rights.

October 13, 2014

Drivers Who Do Not Know Their Licenses are Suspended Can Still be Charged with a Crime

Ignorance is no defense to breaking the law. We hear that maxim often in movies and TV. And to some extent, it is true. But there are many crimes that require the accused to maintain subjective knowledge of facts, or a specific intent to break the law. In those cases, "I didn't know," may constitute a valid defense. A recent case involving driving with a suspended license tested how far ignorance of facts goes.

Driving with a Suspended License Requires Knowledge

It is a crime in Maryland to drive on a suspended license. However, to prove the offense, the state must demonstrate that the driver knew or should have known that the license was suspended.

Knowledge is easy--did the Defendant actually know that their license was suspended? Even if the answer to that question is "no," the state can still demonstrate that a driver "should have known" that their license was suspended.

This means that a driver cannot hide his or her head in the sand, or exhibit deliberate indifference to facts or circumstances that would put a reasonable person on notice that their license was suspended. What kinds of facts are needed to demonstrate a driver "should have known" a license was suspended is up to a jury to decide.

Recent Case Determines Driver Should Have Known of Suspension

In Steward v. State, a driver was arrested for driving with a suspended license. There was no doubt she did not actually know her license was suspended. However, the driver's license was previously suspended and reinstated, and she had attended a point system conference. Her license was suspended again in 2010, and was again lifted after she paid a fine. Her license was suspended again when she did not attend a mandatory driver improvement program. Later, she was pulled over and arrested once more for driving with a suspended license. As to the latter instance, she testified that she was homeless at the time and did not receive notice of the suspension.

The appellate court found that, based on her driving history, she should have known that her license was suspended. Each infraction in her past caused her license to accumulate points, and the court felt that it was fair to presume someone who continually accumulated such points and failed to attend mandatory driving courses can be charged with knowledge of the fact.

A person may innocently and honestly not know his or her license is suspended. In many cases, someone may believe they paid a fine or never got notice of a trial date, resulting in their failing to appear in court and their licensed being suspended. It is always best to stay on top of your driving record, make sure you maintain a current address with the MVA and make sure your license is valid if you committed even minor infractions.

Do you have questions about your rights? Did you recently receive a traffic infraction? The criminal defense attorneys of Brassel, Alexander & Rice, LLC have extensive experience protecting the rights of criminal defendants. If you or someone you know was charged with a crime in Maryland, contact the attorneys of Brassel, Alexander & Rice, LLC today.

October 6, 2014

Is it Constitutional for the Police to Seize and Test DNA Evidence?

An important constitutional right concerns the prohibition against the search and seizure of your property by law enforcement without due process of law. When we think of items police may search and seize, we often think of tangible items--phones, drugs, computer files, etc. But we do not often think of the most telling piece of evidence, that which we carry around with us every day, wherever we go--DNA.

Case Calls into Question Legality of Testing DNA Evidence

Our DNA is everywhere. It is in our hair, our saliva, and our sweat. It is not unusual for police to seize DNA for an investigation--blood samples or saliva swabs are often compelled by courts. But it is the DNA that we leave behind unknowingly that is causing a significant legal issue in one case.

A Maryland case is challenging just this issue. The defendant in the case was taken into police custody for questioning. After being questioned, the police asked if they could swab his DNA for testing. He refused. Despite this refusal, after leaving the interrogation, police swabbed his perspiration from a chair in which he was sitting. His DNA was tested, and he was later found guilty of rape based on that evidence.

The defense argued this was an illegal search and seizure of his DNA. The court disagreed, finding the defendant "abandoned" his DNA material by sweating on the chair, thus making it fair game for seizure and testing. The Defendant is now trying to get the Maryland Court of Appeals to overturn the decision.

The Defendant is relying upon a Supreme Court decision requiring police officers to obtain warrants before searching the cell phones of those they arrest. This argument makes sense. Certainly, something as private and personal as DNA should have a higher expectation of privacy than the contents of a cellphone, which are often broadcast for all to see anyway.

Probable Cause

The case may also hinge on probable cause issues. A search and seizure is permissible in situations where police have probable cause. Even if the random seizing of DNA is a violation of due process, such a seizure may be allowed if probable cause exists. Yet the line between reasonable suspicion and probable cause is often a gray one.

What makes the issue even more difficult is that police do not need probable cause to legally seize and test fingerprints that are left behind unintentionally. The professor argues there is a big difference between testing fingerprints, which society tends to accept as routine, and DNA, which it does not.

The case holds significant implications for the constitutional rights of those accused of crimes. It is presumed that consent to search and seizure must be knowing and voluntary--yet DNA is not always left behind knowingly and voluntarily. Allowing law enforcement to test any and all DNA would create significant privacy implications for everyone, and would severely weaken the Fourteenth Amendment's protections.

Do you have questions about your rights, or whether the police obtained evidence in violation of the law? The criminal defense attorneys of Brassel, Alexander & Rice, LLC have extensive experience with the rights of criminal defendants. If you or someone you know was charged with a crime in Maryland, contact the attorneys of Brassel, Alexander & Rice, LLC today.

September 30, 2014

What Happens if the Business Responsible for Your Injuries Files for Bankruptcy?

We tend to think of bankruptcy as something affecting individual consumers, something people do to get a fresh start. We also hear a lot on the news about companies filing for bankruptcy. Those cases do not seem to affect us directly. All that changes when you are the one injured, and the business responsible for your injury declares bankruptcy.

What is the Effect of Chapter 11 Bankruptcy?

Most large companies file Chapter 11 bankruptcy. A company that files Chapter 11 does not always dissolve, but is often "reorganized" long after the bankruptcy filing. Companies do this by agreeing to pay certain creditors pennies on the dollar, or else by getting a court to waive their obligations to creditors entirely. Sometimes, separate companies will purchase the assets of a Chapter 11 company, in which case the new company is not required to pay off the previous company's creditors.

This is the nature of the dispute in the current GM cases, where GM's bankruptcy wiped out their obligations to pay some claims. The "new GM" is claiming protection under the discharge of liability of the "old GM." Injured victims are currently seeking to remove all of GM's bankruptcy protection against the prior injury claims, many of which occurred before GM filed for bankruptcy.

When you win a suit against a business that files for bankruptcy, you are considered a creditor of that business. However, if that business declares bankruptcy, your right to collect on that judgment may be eliminated.

Even if your claim survives the Chapter 11 bankruptcy, an automatic stay is placed on all business cases. In other words, your injury lawsuit will immediately halt, and will not proceed until all bankruptcy matters are sorted out, something that could take many years.

Dealing with Corporate Bankruptcies

If a business responsible for your injuries files for bankruptcy, you will need to file a proof of claim to protect your interests. Once that is done, there are some strategies you can employ to protect a personal injury claim and allow you to continue pursuing litigation.

One strategy is to ask the bankruptcy court to proceed in the injury case to the extent of available insurance payments. Alternatively, your claim may be exempt from discharge. Such might be the case if the business acted recklessly, if the injury was the result of fraud or DUI, or if there is some other specified liability not discharged by bankruptcy.

Make sure your injury claims are always protected, no matter the situation and no matter the defendant. If you're injured in Maryland, contact the attorneys of Brassel, Alexander & Rice, LLC today for a free consultation to discuss your rights.

September 15, 2014

Businesses' Initial Reactions to Personal Injuries Can Mean a Lot

When someone is injured on a premise, there can often be two components to an injury claim. The first is, of course, the event that caused the injury. The second is the property owner's reaction to the injury, which can often exacerbate or make an injury worse.

Hot Coffee at a Fast Food Restaurant

Such was the case at a San Francisco fast food establishment, In-N-Out Burger, where a woman was scalded by searing hot coffee. Much like the infamous McDonald's "hot coffee" case, the victim spilled coffee on her lap, which was so hot that she couldn't hold the cup. That was the injury.

But the injury was compounded by the fact that the restaurant employees allegedly refused to call 911, despite the victim's screams, saying that doing so was somehow "against policy," a claim the company now denies. The employees did kindly hand her ice (ignoring the fact that ice on a burn can make it worse) and politely asked that she drive forward so other customers could continue to be served.

The Aftermath Matters

It's unknown whether that the failure to call 911 contributed to, or made the burn injury worse. The victim's injuries were likely caused entirely by the scalding hot coffee. But just because the insensitive reaction to her injuries may not have a legal significance, they may have a factual one.

Personal injury claims are tried by juries. Juries are people, with emotions and feelings and opinions on what proper conduct should and should not be. A jury hearing about a liable or negligent party refusing to aid a victim, or acting rude, callous, or insensitive, can mean a lot, and can often lead to a jury entering an award when it otherwise may not have.

Certainly, victims who are injured are occupied with more than remembering what is being said by witnesses around them. As a result, many times insensitive reactions to injury go unnoticed by victims. But sometimes victims can recall the unwillingness of a property owner to provide assistance, or remember hostile comments. That information can be powerful testimony.

The Decision to Sue

Many businesses underestimate how important an initial reaction is to an accident victim in deciding whether or not to sue. Often, accident victims will say that if a business had helped them at the scene, if the manager of the store had been nicer, if the company had paid for her medical treatment, or taken any other common sense and humanitarian action, the victim may have refrained from suing.

Many businesses fear that being kind and providing aid may somehow be used against them. They may fear that calling 911, or providing ice, or paying for a doctor visit, is somehow admitting liability. That's a choice those businesses make, in their discretion. That decision can make a good claim into a very good one, and in some cases, may be so emotionally persuasive, that liable defendants may opt to make generous settlement offers to avoid a jury hearing about how they acted towards someone injured on their property.

Facts matter when you're injured, and you want attorneys that can gather them and know how to use them. If you're injured in Maryland, contact the attorneys of Brassel, Alexander & Rice, LLC today for a free consultation to discuss your rights.

September 2, 2014

Crime Victims May Potentially Bring Claims Against Property Owners

When someone is robbed, assaulted, or otherwise attacked in public, one's first reaction is to blame the attacker. We do not often take time to think whether anyone else may be responsible for injuries resulting from an attack. A property owner may be liable for failing to provide proper security for those who enter the premises.

A legal doctrine known as negligent security states, a property owner who knows or should know of possible criminal activity on his property has a duty to take reasonable measures to prevent or minimize the chance that criminals will victimize customers or guests.

Negligent Security Situations

Negligent security can take different forms. Some examples are:

-A shopping area that fails to provide security guards in dark or isolated parking lots;

-A concert venue that fails to employ adequate security to control drunk, surging, or rowdy crowds;

-A storeowner who requires customers to park far from the store, in dark or isolated areas;

-An apartment complex landlord who fails to provide adequate security proportional to the size of the complex;

-A store that fails to provide security in its parking lot, even though it caters to elderly patrons, who criminals are more likely to target.

Not every criminal attack makes a property owner liable for personal injuries occurring on the premises. To determine whether a property owner provides sufficient security, we look primarily at an element known as "foreseeability," which asks whether one ought to foresee a crime could occur in a certain setting. For example, a shopping plaza with a history of thefts or muggings is effectively on notice that a crime could occur there in the future, and therefore has a heightened duty to provide adequate security.

In many cases, a security expert can be hired to analyze whether sufficient security measures exist, or whether security guards are properly trained.

The need for security can also vary depending on the circumstances. For example, a shopping plaza without many patrons may require more security when it holds an event that draws thousands of people. In addition, a store may not need as much security in the daytime, but may require more at night, when crime rates rise.

Problems in Negligent Security Cases

Difficult questions arise in negligent security cases, including who is primarily responsible the injury--the store without adequate security, or the individual who committed the crime? Property owners will claim that, even with the best security, the crimes would occur nonetheless.

Many states refuse to allow property owners to escape liability by shifting blame onto the criminals. To do so would mean allowing property owners to avoid providing any sorts of security measures. Many states even prevent negligent property owners from sharing liability with an intentional actor, such as a criminal.

If you are injured in Maryland, you want an attorney who understands the potential liabilities of all parties. Contact the attorneys of Brassel, Alexander & Rice, LLC today for a free consultation.

August 18, 2014

The Eye In The Sky Can Make or Break Your Case

Many years ago, when someone was injured, it was often difficult to piece together the evidence to see what really happened, and to determine who was liable for the injuries. Eye witnesses, sometimes with different opinions of how the injury occurred, or sometimes photographs, were often the best way to determine the facts of a case. When the difference between winning and losing a case can depend on what happened within inches or seconds, relying upon this kind of evidence to piece together the events of an injury could often be difficult.

Today, however, we have the always-present "eye in the sky": the video camera. As you see on the evening news, cameras are almost everywhere. And, of course, everybody with a cell phone is potentially a walking videocamera. Just as video captures the events of the evening news, they also can capture what happened to you during your accident.

The Case Thrown Out Because of Video

A Federal Court in Maryland recently threw a victim's case out of court, based solely on video cameras, in a case that illustrates how powerful--and legally persuasive--video recordings can be.

Tonya Hall was stepping out of a Washington Metro city bus, when she alleged that she fell when the driver started closing the doors on her. During the case, her deposition testimony was that she definitely was pushed by the bus doors, causing her to fall.

But of all places that there could be videotape, there was indeed a tape on the bus. At a hearing to throw out the case, the Court reviewed the tape. The Court felt, after reviewing the tape, that the victim had already started to fall on her own, independent of the doors, and that the doors, although they were closing, had nothing to do with her fall. Because of the tape, the victim's case was thrown out of court.

The New Importance of Videotape

There are certainly many instances when videotape contradicts a victim's testimony. That doesn't mean that the victims in these cases are lying--injuries are traumatic, and often our brains perceive events as being differently than they actually occurred. Most victims simply try to remember the events as best they can, from what happened to them in an instant, while a court can sit and review a videotape frame by frame in slow motion for as long as it wants.

Still, the case illustrates how important video evidence has become. A court can review video on its own, and based on a court's own interpretations of what it sees, throw out a case. All the victim testimony in the world may not overcome what's on a simple tape.

Of course, a victim isn't helpless where there's videotape that shows something different than what the victim says happened. A good accident attorney would obtain the videotape long before trial, and be prepared to refute any evidence on it which contradicts the client's claims. Often, the victim, in reviewing the video, can explain contradictions or problems that appear in it. Many videos are unclear, or are open to interpretation, so long as there's time for the attorney to review them before trial.

And of course, just as video can hurt a victim, it can also help--many times a video supports what a victim says happened, which can lead to very significant settlements from liable parties.

If you're injured in Maryland, you want attorneys that obtain and review the important pieces of evidence from the start. Contact the attorneys of Brassel, Alexander & Rice, LLC today for a free consultation to discuss your rights.

July 28, 2014

Service Error Nullifies $37 Million Judgment

Personal injury lawsuits, like many other kinds of lawsuits, generally begin the same way - with the filing of the Complaint and any supporting documentation and information needed to state a claim for injury or damages. The Complaint has to be served on the party being sued, often by using a process server. Usually, that is a routine process. But when service is not conducted properly, it can become a huge problem down the road.

The idea of serving someone with a lawsuit comes from our constitutional rights to notice and opportunity to be heard. Simply put, you aren't allowed to be sued and have a judgment entered against you without your being aware that you're being sued. To make you aware, the lawsuit is usually hand-delivered by a sheriff or a process server, ensuring that you have notice of the lawsuit. The person serving you has to make very specific notations about how and when you were served. There are ways to serve people or businesses that can't be located, or that try to hide from service, but those laws must be strictly complied with to avoid trampling on someone's constitutional rights.

Mistakes in Service

One mistake in service can have catastrophic results. Such was the case in Alabama, where an appellate court overturned a $37 million judgment in favor of a bar sued for over-intoxicating a patron who eventually killed an innocent victim while driving under the influence. The victim's family sued the bar by serving the bar owner, but only served the owner "by publication," a service method that allows a party to publish notice in a newspaper or periodical to satisfy the service requirement. The bar owner, unaware that he had been sued, never responded to the complaint, and a judgment was entered against the bar.

As it turns out, the strict procedures for service by publication were not followed. As a result, the verdict was overturned. Unlike other problems or mistakes that may arise during a lawsuit, the failure to provide someone his constitutional rights to notice of a suit cannot be corrected later on, and the entire judgment is at risk for being overturned.

Don't Risk Making a Mistake

Luckily, serving most large corporations accused of injuring people is not difficult, and rarely will a business establishment evade service. Service can be a bit more difficult when suing individuals in auto accidents--even though their insurance company may defend them, and even pay a settlement, the individual who is being sued must still be personally served. This can sometimes be difficult for those who move often, or are purposely hiding from a process server.

Don't guess about the most important parts of your injury suit. If you or someone you know has been injured in Maryland, contact the attorneys of Brassel, Alexander & Rice, LLC today for a free consultation to discuss your rights.

July 10, 2014

Popular Exculpatory Clauses Can Take Away an Injured Person's RIght to Sue

You may not know what an exculpatory clause is, but there's a good chance you've signed one recently. An exculpatory clause is a clause or an agreement that prohibits you from suing someone else, most often for personal injury claims. They usually contain language telling you that no matter what happens, you can't sue a premises or business owner even if they're responsible for your injuries. These clauses are becoming more and more popular as extreme sports, alternative forms of exercise, and even children's play activities are becoming more and more popular.

Popular for Risky Activities

To some extent, exculpatory clauses are necessary for certain businesses to operate. Companies that may offer, for example, skydiving, hiking, boot camp fitness, or children's activities, can all be fun and even necessary recreational activities which couldn't survive if there was always a threat of lawsuits. Many companies, such as one which puts athletes through fire pits and electrified water, would not be viable without exculpatory clauses. And surely, to some extent, people who engage in risky activities are accepting the risk of their own activities.

Does Negligence Make a Difference?

But what happens when someone is injured not by the activity itself, but by the business' own negligence? For example, if a plane crashes on a skydiving trip because the owner didn't maintain it? Or if a child is injured in an indoor playground because of a sharp object carelessly left exposed? The problem is that exculpatory clauses can protect businesses not just from the foreseen, anticipated risks of activities, but even from their own negligence. And they don't just protect businesses from being sued for injury, but also for accidental death. One business that caters to children was recently exposed for making parents acknowledge in waivers that their kids may be killed on their premises.

Exculpatory clauses can be legally enforceable, but the difference between sustaining injuries and being able to avoid one and file suit, or being forever barred from suing, often rests in the precise language of the agreement. These clauses must be clear and conspicuous to be effective, and the wording generally must specifically include waivers of all forms of negligence--including the negligence of the business owner. In some cases, waivers may only apply to risks inherent in the activity itself, not to unanticipated negligence of the business or its employees. Even when waivers are perfectly worded, many very successful suits have been brought. In some states, a parent can never sign such a waiver on behalf of a child. So there are some strict requirements in order to make these clauses legally binding.

The next time you participate in an activity that requires a waiver, be sure to read it completely. You may want to think carefully about frequenting businesses that require such waivers to be signed (or at least which try to eliminate your right to sue the business for its own negligence). If you are injured, even if you've signed such an agreement, always see an attorney to see what can be done, as you may still have a very good injury claim.

The qualified attorneys of Brassel, Alexander & Rice, LLC, have extensive experience representing individuals who have been injured. Contact the attorneys of Brassel, Alexander & Rice, LLC today.

June 24, 2014

Man Critically Injured By Tractor Trailer Accident In Ellicott City

According to a recent WBALTV news report, Howard County Police are investigating a crash involving a tractor-trailer that critically injured a man. The accident, which happened last week at the intersection of Interstate 70 and Marriottsville Road near Ellicott City, occurred when a Toyota Tundra struck a tractor-trailer as it turned into the southbound lane from westbound I-70. The driver of the Tundra was taken to Shock Trauma in Baltimore, and is listed in critical condition. The tractor-trailer driver did not suffer any injury in the crash. Officials have stated that the investigation into which party was at fault is ongoing.

This accident is yet another in a recent string of Maryland motor vehicle accidents involving semi-trucks or tractor-trailers. In April, a police officer was injured when a semi-truck driver lost control of his vehicle on the University of Maryland Medical Center campus and struck several parked vehicles, one of which contained the officer. In January of last year, five motorist were taken to a local hospital with injuries following another Ellicott City accident when a vehicle containing four passengers collided with a Mack truck.

According to the National Highway Traffic Safety Administration ("NHTSA"), 8.2 percent of all traffic fatalities occurring in 2011 involved large trucks. In Maryland, there were 692 motor vehicle accident fatalities, 38 of which were caused by crashes involving large trucks. The USDOT study concluded that with the new HOS regulations approximately 1,400 crashes, 560 injuries, and 19 accident deaths will be avoided each year.

As demonstrated by these incidents, because of the immense weight and considerable size of semi-trucks, proper operation of these vehicles is of particular importance. Negligence behind the wheel of such a vehicle can easily result in catastrophe and severe injuries or death. The victims of such accidents have a right to be able to obtain recovery for their injuries from the negligent driver. When the negligence of a driver results in the death of another, under Maryland law, the decedent's family may be entitled to bring a wrongful death action.

A wrongful death claim can be brought against anyone who, through recklessness, carelessness, negligence or lack of skill, causes the fatality of another. Damages in a wrongful death action are measured in terms of the injury to loved ones caused by the death of the victim, and can include loss of future earnings, loss of companionship, and pain and suffering. Sadly, wrongful death actions can arise from myriad unfortunate circumstances, including drunk driving or reckless driving, medical malpractice (such as through surgical error or misdiagnosis of an illness), defective machinery or products, premises liability, or improper supervision.

The qualified attorneys of Brassel, Alexander & Rice, LLC have extensive experience representing individuals who have been injured or killed by the negligent acts of another. If you or someone you know has been injured or killed as a result of the negligence of another person, contact the attorneys of Brassel, Alexander & Rice, LLC today.

June 9, 2014

Smart Growth America Publishes Report Regarding Pedestrian Safety

Recently, this blog discussed the unfortunate death of twenty-two year-old University of Maryland student Cory Hubbard, who was struck by a car while walking across Baltimore Avenue in downtown College Park. According to the Maryland State Highway Administration, 116 pedestrians were killed by motor vehicles in 2007, a significant increase over the 94 that, according to the National Highway Traffic Safety Administration, were killed in 2006. In the same year, nationally, 4,654 pedestrians were killed and over 70,000 more injured in pedestrian accidents involving motor vehicles. According to the NHTSA, two years later in 2009, 59,000 pedestrians were injured and 4,902 killed in accidents involving motor vehicles.

In response to this increasing occurrence of traffic accidents involving pedestrians, Smart Growth America, a national organization dedicated to researching ways in which to improve America's neighborhoods, has prepared a report, entitled "Dangerous by Design," which studied where pedestrian fatalities are happening and which U.S. counties, metro areas, and states pose the highest risk for pedestrians. According to the report, in the decade from 2003 through 2012, 47,025 people died while walking on our streets, representing 12.3 percent of total traffic deaths. During that same period, 676,000 pedestrians were injured in traffic accidents, or one approximately every eight minutes.

Maryland Has High Rate of Fatalities

In Maryland, 1,067 people were killed while walking between 2003 and 2012, representing 18.3% of the 5,799 traffic-related fatalities in the state during this period. To compare the relative safety of walking in various locations, the report developed a measurement called the Pedestrian Danger Index ("PDI") to give an indication of the likelihood of a person on foot being hit by a vehicle and killed. The PDI was based on the share of local commuters who walk to work and the most recent five years of data on pedestrian fatalities.

Maryland's overall PDI was calculated at 78.6, placing it fifteenth nationally. Baltimore ranked 28th on the list of most dangerous areas to walk in 2014, with a PDI for 2003-2012 of 66.42, which is approximately 20% higher than the national PDI of 52.2.

With ever-increasing traffic congestion and the tendency of many Maryland residents to walk where they need to go, pedestrians are at greater risk than ever for being injured or killed in a traffic accident. If you, your family or friends have been involved an accident in which you sustained injuries, you may need legal representation to protect your right to compensation.


If you, your family or friends have been involved an accident in which you sustained injuries at the hands of a negligent driver, you need legal representation to protect your right to compensation. The qualified attorneys of Brassel, Alexander & Rice, LLC have extensive experience representing individuals who have been injured by the negligent driving of another. If you or someone you know has been injured in a car or motorcycle accident, contact the attorneys of Brassel, Alexander & Rice, LLC today