4 Thanksgiving Liabilities You Should Know About

Thanksgiving is a time of love and family.  Where we can all express what we’re thankful for.  But we deal with personal injury claims for a living.  So Thanksgiving is also a minefield of civil law dangers where you could be liable for, or the victim of, horrific circumstances.  So without further ado, here is our list of 4 Thanksgiving Liabilities that you should know about.

 

#4 — Turkey Fryers

‘Twas the night before Thanksgiving, when all through the house,

Not a creature was stirring, not even a mouse;

The turkey was placed, frozen, in the sink to thaw

In hopes that this year’s bird would leave the family in awe

 Father was nestled all snug in his bed,

While visions of praise danced in his head.

And Mamma in her kerchief, and the kid in their cap,

Had already settled in for a long fall nap.

When out in the garage there arose such a clatter,

Mom sprang from her bed to see what was the matter.

Away to the window she flew like the flash,

Tore open the shutters and threw up the sash.

And the garage was on fire.

 

Turkey frying can be a dangerous game. According to the National Fire Protection Association, an estimated $15 million in property damage, 60 injuries, and five deaths can be attributed to the use of a turkey fryer. Why does this happen? Sometimes the oil can be too hot or the turkey too frozen. Luckily in most cases, standard Homeowners Insurance policy will cover your house. It could subject you to liability if the fire causes your neighbor’s house to burn or the unthinkable happens and someone loses their life.

This year, if you are frying a turkey make sure the oil is the correct temperature (varies depending on type of oil) and that your bird is thawed before dropping it into the oil.

 

#3 — Dram Shop/Social Host

At many a Thanksgiving dinner there will be alcohol served, but this can open the host of the dinner up to liability. Let’s say a guest shows up to your family function. You have a pretty good amount of alcohol there and the guest decided to help himself.  It soon becomes clear that your guest is inebriated.  But the pumpkin spice Jell-O Shots won’t take themselves, so you pass them around. As the night winds down and people start leaving the guest decides that he will drive himself home. On the way, the guest causes a serious car accident and the person they hit is seriously injured.

The Dram Shop Act made it so that businesses who sell alcohol can be held liable if a patron at their bar or restaurant is overserved, drives home, and injures someone. The same principles can also apply to hosts of social events, such as Thanksgiving dinner. Drinking and driving is NEVER a good idea and every year thousands of people die as a result of drunk driving. If you see something, say something. Do not let an intoxicated person get behind the wheel. It is not only the right thing to do, but you could be held liable for whatever part you played in the drunk driver’s actions (or at least in him getting drunk in the first place). I encourage people to have a plan before drinking and to stick to that plan.  **Editor’s note: as long as the “plan” is NOT to get drunk and drive.  That’s a very bad plan.**

 

#2 — Food Poisoning

 

Last year’s Christmas dinner with the family was a mess. You didn’t get your work bonus, you stapled yourself to the gutter while hanging Christmas lights, and you had to deal with Cousin Eddie emptying his RV sewage out into the storm sewer. You finally sit down to eat and the turkey Cousin Catherine cooked was way overdone. She felt horrible and blamed it on Cousin Eddie. This year for Thanksgiving she wants to redeem herself. She begged and begged you to allow her to bring the Turkey. You gave in.

In an effort to not make the same mistake as she did on Christmas, she purchases a turkey that has already been cooked from a local truck stop. The turkey tastes great, the whole family is relieved and praising Cousin Catherine, but a short while later the bathrooms are taking some serious abuse from the whole family. Catherine admits to the family that she has purchased her turkey already cooked. Is the truck stop liable for the injuries suffered by the family?

When it comes to food preparation the person making a claim for the undercooked food alleges that the cook was negligent in the food preparation. Here, the family must prove that the truck stop failed to prepare and serve its turkey in a manner that was safe for human consumption and that as a result of eating such turkey, the family sustained injuries and damages.

Food poisoning can ruin the Holidays and be dangerous to your health.  Whether you’re buying food from a restaurant, or making it yourself, make sure you’ve got your bird up to a safe temperature and don’t undercook that oyster stuffing.  That’s something your whole family will be thankful for.

 

#1 — Fights


Some things just go together.  Turkey & Stuffing.  Mashed Potatoes & Gravy.  Thanksgiving & family fights.  Sometimes Thanksgiving dinners can get out of hand. Maybe your mother and your father do not like your significant other or do not necessarily agree with your decision to go into the lucrative business of selling premium snapchats. Mix some roast turkey with a little bit of Wild Turkey and you could have a Thanksgiving like the one above.

Obviously, a fist fight could result in some criminal charges.  Battery or disorderly conduct come to mind.  But, depending on the facts, fighters could make claims against each other for physical injuries.  Grandma could even make a claim for the property damage caused when the fracas broke out.

What’s important to know, is you’re not going to have insurance to cover damages caused in a fist fight.  So if your cousin is arguing politics with you and you break his face with a punch.  You could be on the hook for hundreds of thousands of dollars of medical bills if they get badly hurt.

So no matter how tempting it might be to settle differences with a little fisticuffs, you should settle these differences like family…..ya know, but trying to get grandma to write them out of the will.

 

So that’s our list of 4 Thanksgiving Liabilities.  Happy Thanksgiving to all of our friends & family out there.  Be thankful for all of your blessings and be safe out there!

 

Game of Thrones — Personal Injury Review

Disclaimer:  We are not attorneys licensed to practice law
in any of the Seven Kingdoms or Essos.

Spoiler Warning:  This blog post will contain spoilers for the first 7 seasons of Game of Thrones.  The night is dark and full of spoilers.

Game of Thrones is a phenomenon.  It’s a landmark series that has separated itself from other shows and grown its audience throughout its run on HBO.  Normal people may watch the show and ask themselves “Who will sit upon the Iron Throne?” or “Who is Azor Ahai?”  But I am a nerd.  And I ask myself what is the tort law system like in King’s Landing?  Lord knows there are plenty of people suffering injuries & wrongful death in a World of Ice and Fire.  So let’s dive into some specific examples of Game of Thrones injuries and see what would happen in the real world.

Situation #1
 – Jaime Lannister pushing Bran Stark from the window

Photo Credit – HBO

Game of Thrones shrugged off convention in the pilot
episode.  Young Bran Stark climbs a tower
at his castle and catches the Queen in throes of passion with her twin brother
(who is also one of the Kingsguard, the Westerosi equivalent of the Secret
Service).  The twins are rightfully
concerned about the repercussions of their tryst being discovered, so Jaime
Lannister casually shoves Bran out of the tower window.  Bran survives with no memory (at least at the
time, but that’s a long story), but he becomes paraplegic as a result of the
fall.

Does Bran have a
claim against Jaime?
 

Yes and no. 

He definitely suffered a serious injury because of Jaime’s actions and that is legally recoverable.  But It was an intentional act and insurance contracts typically do not cover intentional torts.  And it’s doubtful that there even is some kind of insurance policy for what happened anyway. 

So Bran would be stuck in a situation where he would have to sue Jaime personally to try and get Jaime’s assets.  Now even though a Lannister always pays his debts, how much money does Jaime have?  His family is the richest on the continent, but does he have actual assets in his name or does his dad just send him an allowance?  Because it matters.  Bran could secure a judgment of millions of gold dragons but unless Jaime has the cash, the judgment is only worth the paper its printed on unless there is insurance money or assets that can be readily gotten to.  If Jaime doesn’t have assets, he could just declare bankruptcy and discharge the debt without paying a dime. 

We run into similar situations often where clients are catastrophically injured, but there is limited or no insurance coverage available.  It doesn’t make sense to spend the money it takes to go to trial and get an uncollectable judgment.

Does Bran have a
claim against the government?

Possibly, but you would have to get creative. 

The biggest benefit to Bran of making a claim against the government is that there is potentially another party with a duty to pay for Jaime’s wrongful acts.  If Bran were to make a claim against the kingdom for what Jaime did, it would be subject to the Indiana Tort Claim Act.  The downside there is that the ITCA limits government liability to $700,000 in damages. 

The biggest thing Bran would have to prove in making a claim against the government is that Jaime was acting in the course and scope of his employment as a Kingsguard member, otherwise he’s acting as a private citizen and the claim would fail.  On one hand (no pun intended), he was at that particular castle traveling with the King and his job IS to protect the royal family.  So his choice to push Bran from the window to protect the lives of the queen and her children might fall into the category of acting in the course of his employment.  On the other hand, it’d be hard to imagine that a discreet lovemaking session with the Queen is in his job description.   

Bran may also have a separate theory against the
government.  Instead of framing the issue
as a wrongful act resulting in personal injury, he could also wrap in a federal
civil rights violation for Jaime’s use of excessive force.  He would still have to prove that Jaime was
acting as an agent of the government when he pushed Bran.  The damages calculations are different with
civil rights violations too, because you’re not claiming the value of the
physical injury, you’re claiming the value of the violation of your
constitutionally protected rights.

How long does Bran
have to make a claim?

Generally speaking, the statute of limitations on a civil
case is two years.  It does get extended
if the person is a minor, like Bran, and the two year clock doesn’t start
moving until his 18th name day. 
So Bran will have until he is 20 years old to either settle the claim or
file suit.

Situation #2Where’d you find this doctor?

Photo Credit -HBO

Back again to Season 1.  Dany’s husband, Khal Drogo, gets wounded in the shoulder when he’s killing one of his men who started talking a little too familiar with the boss.  The wound gets infected, so Dany enlists the services of a woman who had just been captured by their army who claimed to be able to heal him.  She used some, let’s call them “unconventional” methods of healing, and I’m pretty sure the Khal turned septic. 

Dany made a last ditch deal with this healer, Mirri Maz Duur, when she again promised that she could save Drogo.  She failed, kinda.  Mirri put him through a blood magic ceremony, slitting a horse’s throat spraying everything inside of their tent.  I said it was unconventional.  Drogo survived but was left in a comatose state.  Writer’s Note:  What Mirri Maz Duur did was intentional, but for the sake of discussion we’re going to act like she actually did mean to save him.

What is medical
malpractice?

It’s a breach of the standard of care, it’s not a bad
outcome.  Medical procedures have some
inherent risks associated with them. 
Even a routine surgery can be fatal if the patient, for example, has a
bad reaction to the anesthesia.  It
doesn’t necessarily mean that it was malpractice.  Another example would be being nicked by a
scalpel and bleeding out during hear surgery. 
It’s a tragedy, but not necessarily malpractice.  If the surgeon on the other hand was using a
dirty hunting knife to do the surgery, you’d be on to something that rises to
malpractice.

Is there a claim for
medical malpractice here?

Um, yeah.  I’m not
sure where Westeros stands on knowledge of infectious diseases, but I’m pretty
sure they understand that horse blood is not an effective antibiotic.

How would a medical
malpractice claim play out?

First, Dany would have to make a claim with the Indiana
Department of Insurance explaining the medical negligence.  If the provider is NOT covered by the
Medical Malpractice Act, then it proceeds into litigation like any other
case.  If the provider is covered, the
claim continues on the process.  After
doing discovery, they’d empanel a medical review panel consisting of three
maesters to review both sides’ submissions and the panel would determine
whether (1) malpractice occurred and (2) if so, did the malpractice cause
injury.  The panel opinion isn’t binding
on the determination of the case, but it can come up and be presented to the
jury.

If there’s no informal settlement, then the case would go
into general litigation.  When it comes
to settlement times, there is a hard cap on medical malpractice cases.  Currently, the cap on damages is $1.65
Million, rising to $1.8 Million in July of 2019.  The provider is responsible for up to the
initial $400k (increasing to $500k in 2019) and the remainder has to be sought
through the Indiana Patient’s Compensation Fund which is funded by annual
surcharges paid by all qualified health care providers.  It’s good for providers by limiting their
liability.  It’s equally bad for those
who suffer serious damages due to medical negligence where even a case where
they receive the full cap on damages is not enough to pay for their past and
future medical care or in cases where a loved one passes away due to medical
negligence.

Situation #3 –
What about Bronn?

Photo Credit – HBO

Bronn has been one of the breakout characters on the
show.  He’s a mercenary, called a
sellsword, who has been hired by a succession of Lannisters from Season 1 to
present.  Basically, he’s a hired
bodyguard/killer.  And he hasn’t died up
to S8 Ep. 3, so he’s at least proficient at what he does.  So what happens if he gets thrown from his
horse on his way to Dorne?  Does he get
work comp?  What if has a few too many
ales on the way and side swipes someone on the Kingsroad?  Does the crown get sued?  Will he ever get his castle?  The streets are talking…..

What’s his employment
status?

The threshold question in a case where someone gets hurt or
hurts someone else when on the job is whether they are an employee or
independent contractor.  An employee gets
work comp if he gets injured while acting in the course and scope of
employment.  Doesn’t matter if it’s his
fault or not.  Similarly, if an employee
is acting in the course and scope of employment, their employee is liable for
injuries caused by their employee’s negligent acts.  For independent contractors, they’re on their
own.  Work comp laws don’t apply to them
if they get hurt, and absent some specific language that could be in their
contract, they’re responsible if they hurt someone else. 

Courts use a 20 factor test to determine whether an
individual is an employee or contractor. 
No particular factor is dispositive, but they all get to the general
question of how much control does the employer have over the employee.  Does the employer withhold taxes?  1099 or W2? Provide benefits?  Do they drive a company vehicle or wear a
company uniform?  Who sets the
hours?  Are they paid by the job or a
regular salary?  Can they subcontract the
job or are they required to do it?  Who
provides the tools of the trade?  How
much expertise is involved?

From everything we’ve seen with Bronn, the evidence points
to classic independent contractor.  He
can walk away any time he wants.  Even
though he’s been a fixture serving the Lannister’s for 8 seasons, he did turn
down Tyrion’s offer to fight for him at his trial by combat against Ser Gregor
Clegane.  He fights with the Lannister
army, but wears his own armor.  Even when
he commanded the City Watch, he didn’t wear the uniform.  His job takes a great deal of expertise and I
can’t imagine he’s getting a W2 at tax time. 
In fact it seems like he just gets paid haphazardly with sacks of gold
(not bad work if you can find it). 
Admittedly, he’s probably not free to subcontract out his killing for
hire, but that’s the big knock against the independent contractor designation.

What happens to Bronn
if there’s a claim?

Assuming that he’s an independent contractor, if Bronn gets
sued, it’s going to be up to him to defend himself.  Luckily, Westeros has trials by combat and so
he’s got fairly effective defense, so to speak.

If Bronn gets hurt because of some other person’s actions,
he wouldn’t qualify for work comp and would have to seek compensation from the
at-fault party on his own.

The crown may get sued for something Bronn does, but they
would most likely move for, basically, a dismissal of the case against them by
seeking a legal determination from the judge that Bronn is an independent
contractor and they’re not liable for any damages he caused.

Summary

These are just three examples of how tort law would play
into the Game of Thrones universe.  There
are plenty of other examples on the show like Did Littlefinger cause Sansa
Negligent Infliction of Emotional Distress by Giving her to the Bolton’s?  What happens if you get bitten by one of Dany’s
dragons?  Could Tyrion make a claim for
defamation for what was said during his trial in King’s Landing?  Could Jaqen H’ghar be properly served notice
of a lawsuit if a Man is No One?

We’ll how Season 8 plays out and maybe revisit these
questions and more in the future.

Be safe out there,

Matt Bigler

Ladendorf Law

BISARD SENTENCING

The news broke over the last week that David Bisard was released from prison to start serving probation. Many in the Central Indiana biker community and the community overall have expressed outrage that Bisard could be released after serving only 3 ½ years of an announced 16 year sentence.  I want to take the chance to try to show how this happened and let you know how you can make sure your voice is heard.

First, in 2014 the Indiana Legislature re-wrote the criminal code for the state. Notably, the old system of felonies graded by letter (4 levels from D to A) was replaced by a number system (6-1).  Bisard was sentenced under the old system for his convictions for:

1: Operating a Vehicle with a BAC greater than 0.15 Causing Death – Class B Felony

2: Operating a Vehicle with a BAC greater than 0.08 Causing Serious Bodily Injury – Class D Felony

3: Operating a Vehicle with a BAC greater than 0.08 Causing Serious Bodily Injury – Class D Felony

For a Class B Felony, the penalty range was 6-20.  A Class D Felony ranged between 1-3 years.  So the maximum possible penalty Bisard, or anyone else facing the same charges, could have received on paper was 26 total years.  He also could have gotten as low as 6 years.  Bisard’s actual sentence was:

Class B Felony: 13 total years.  10 years in prison.  3 years suspended to probation.

Class D Felony: 1 ½ total years.  1 ½ totals years in prison

Class D Felony: 1 ½ total years.  1 ½ totals years in prison

TOTAL Sentence: 16 total years.  13 years in prison.  3 years suspended to probation

So how does someone sentenced to 13 years in prison get out in 3 ½? First is good time credit.  When he was sentenced, an inmate received one day of good time credit for each day served.  So when he was sentenced to 13 total years in prison, it effectively was a 6 ½ year prison term.  Second, Bisard also received jail credit days for the time he was in custody awaiting trial.  Additionally, he received his associates degree while in prison and was given the benefit of another time cut.  Good Time Credit and time cuts happen every day because of the system that was and is in place.  Most of us are just generally unaware of it unless it happens with a defendant that has harmed us or one of our loved ones.

What’s Broken?

There are a number of issues with the sentencing laws for this crime. For example, with the rewrite of the criminal code the maximum actual number of years for what Bisard did is now 8 years instead of 10.  Also, with the rewrite, there is never a mandatory executed sentence for a drunk driving causing death unless there is also a hit & run component.

The definition of “Serious Bodily Injury” also deserves to be looked at by the legislature. As it is written, serious bodily injury covers everything from a broken arm to putting someone in a coma.  In either case, there are no enhancements beyond the 1-3 year penalty range for the degree of injury or level of intoxication.  This is more pronounced now because the equivalent charge has a 1 – 2 ½ year penalty range with the same 50% credit time system.

The civil law system also has disadvantages in a case like this. Because Bisard was working as an IMPD officer at the time of the crash, any claim for compensation by those injured by him is subject to the Indiana Tort Claims Act (click HERE for a video with more information on the ITCA).  So whether someone has passed away or suffered lifelong and debilitating injuries, the most the government can be required to pay to compensate is $700,000 per person.  At first blush this sounds like a great deal of money, unless you’ve seen the medical bills that come along with catastrophic injury.

How to be Heard

The problems with the David Bisard sentencing are not unique to him. Victims, and their families, all over the state have this happen to them every day.  The only people who can make changes to the criminal and civil laws that allowed this situation to happen are the legislators at the Indiana General Assembly.  Click HERE to find your legislator and let your voice be heard.

Matthew S. Bigler, Esq.

LADENDORF LAW SUPREME COURT VICTORY!

While I am happy to report that the Indiana Supreme Court ruled in favor of my injured client in this specific case, I think the Court’s opinion does a very good job of unanimously affirming the importance of our civil justice system and the absolute need for our courts to be open to all. 

The Court’s opinion is 19 pages long so I thought I would provide you with some highlights from Chief Justice Rush’s opinion.  The opening sentence of the opinion reads: 

Indiana’s tort trials should be about making injured parties whole—not about federal immigration policies and laws. 

She then went on to address the constitutional implications this case raised: 

When Indiana law affords a remedy—like recovering decreased earning capacity—the Open Courts Clause does not permit us to close the courthouse door based solely on the plaintiff’s immigration status. We cannot read the Open Courts Clause’s “every person” guarantee to exclude unauthorized immigrants. [Citations omitted.]  And as long as decreased earning capacity remains recoverable in personal injury actions, it is part of administering justice “completely.” See Smith, 883 N.E.2d at 807 (“[The Open Courts Clause means], at a minimum, that to the extent the law provides a remedy for a wrong, the courts are available and accessible to grant relief.”).  Accordingly, Escamilla and similarly situated plaintiffs cannot be barred from pursuing decreased earning capacity claims. 

Chief Justice Rush even quoted from Chapter 40 of Magna Carta, writing “to no one will we sell, to no one deny or delay right or justice.” 

After distinguishing a federal decision that was based upon a conflict between two federal statutes and involved only federal congressional policy, the Court moved on to create an evidentiary framework addressing when evidence of an injured party’s immigration status might be admissible. 

After acknowledging that immigration status is relevant to a claim for decreased earning capacity, the Court went on to find that, in the vast majority of instances, such evidence should be excluded under IRE 403 because it would confuse the issues and be unfairly prejudicial.  After acknowledging the complexities and constantly shifting federal immigration laws and policies – including a recent Executive Order signed by President Trump – the Court wrote: 

The way complex immigration law has invaded this opinion demonstrates the way it would invade Escamilla’s tort case if his immigration status were admitted. Immigration arguments and evidence would “flood the courtroom.” See Thompson v. State, 690 N.E.2d 224, 236 (Ind. 1997) (quoting United States v. Smith, 80 F.3d 1188, 1193 (7th Cir. 1996)). Injecting such a specialized and complex mini-trial into Escamilla’s tort case creates too high a risk of confusing the issues.  

The Court ultimately concluded that it is the Defendant’s burden to show that the injured party more likely than not will be deported before the issue of their immigration status can become admissible.  In reaching this conclusion the Court observed: 

Finally, even though proof that a particular immigrant will more likely than not be deported may be a steep showing, it is still the least cumbersome alternative. Requiring plaintiffs to prove that they will not likely be deported would require them to prove a negative—a burden we rarely impose. [Citations omitted.] 

For these reasons, the admissibility of immigration status under Rule 403 for decreased earning capacity claims turns on the chances of deportation. If a plaintiff is more likely than not to be deported, the relevance is necessarily so high that it will not be substantially outweighed by the evidence’s risks. But if the chances of deportation fall below that level, immigration status should be excluded to avoid the dangers of confusing the issues and unfair prejudice. 

This case will prove helpful to all injured parties who have been an unauthorized immigrant either currently or at some time in the past. 

Most heartening to us as trial lawyers, the Court’s unanimous Opinion shows a deep and abiding respect for the rights of injured persons to have access to our courts and the seek compensation when they have been injured through the fault of others.  

Finally, I want to offer my deepest thanks to all who helped on this case including Alex Limontes and Tom Ruge for their excellent Amicus Briefs.

 

Timothy F. Devereux

Share the Road: Motorcycle Ride Season Begins

Recent temperatures above 70 degrees for the first time in 2015 served as a reminder that it will soon be “Riding Season” for the tens of thousands of motorcycle and bicycle enthusiasts in Indiana. The Big Thaw also revealed the obscure dangers that lurk on our crumbling roadways as the vanishing freeze gives way to pavement failures, with potholes here, there, and everywhere!  It is not too soon, or too early, to once again raise awareness of the importance of safely Sharing the Road, recognizing the increased presence of pedestrians, bicyclists and motorcyclists.

Our practice of vigorously representing motorcyclists who have suffered harm by distracted, negligent, and drunk drivers spans over four decades.  Through our work, the attorneys and staff at Ladendorf Law have experienced along with our clients the human suffering of catastrophic injury and the avoidable loss of a loved one.

Being “Like Family, Because We Are,” our law firm recognizes our social and moral obligation to the community we serve.  Ladendorf Law supports several benefit and charity rides across the State throughout each Riding Season.  Once again, we are humbled to be the primary sponsor of the Second Annual Memorial Ride in honor of former Grant County Sheriff’s Deputy Michael Andry, who was killed at the age of 49 when a distracted driver turned left in front of Lt. Andry’s motorcycle in July 2013.

The Second Lt. Michael Andry Memorial Ride will be held on June 20, 2015 beginning in Greentown, Indiana.  Funds raised through the Second Lt. Michael Andry Memorial Ride will benefit the Grant County Sheriff’s Gifts For Kids, Marion’s Cops & Kids and the Howard County Benevolent Fund, which helps children through the Howard County Sheriff’s Department.  For more information on the Ride, visit Facebook:  https://www.facebook.com/mikeandryride

The first Lt. Michael Andry Memorial Ride took place July 12, 2014 in Marion, Indiana on the one year anniversary of Lt. Andry’s tragic death.  Ladendorf Law was there as the primary sponsor.  Through the organizing efforts of Lt. Andry’s family and the generosity of the many riders and participants, the Ride was a tremendous success, raising $10,000 in donations for two of Lt. Andry’s favorite charities: Grant County Sheriff’s Gifts For Kids and Marion’s Cops & Kids .  Go back in time for a birds-eye-view of the moving tribute to Lt. Andry as kickstands go up and 100 bikes begin the 130-plus mile ride escorted by the State Police:  http://ladendorf.wpengine.com/birds-eye-footage-1st-lt-michael-andry-memorial-ride/.

Harley-Davidson recalls 66,421motorcycles

In the last few weeks, Harley-Davidson, Inc. has announced the recall of an anticipated 66,421 motorcycle units following consumer crashes resulting in personal injuries.  The company’s concerns center around the front wheels locking without warning.

From the Associated Press:

NEW YORK (AP) –

Harley-Davidson is recalling 66,421 Touring and CVO Touring motorcycles from the 2014 model year because their front wheels can lock up without warning.

Motorcycles with anti-lock brakes built between July 1, 2013, and May 7, 2014, are included in the recall.

Harley-Davidson Inc. says the front brake line can get pinched between the fuel tank and the frame. That could cause front brake fluid pressure to increase, increasing the risk that the front wheel could lock up while riding.

The company knows of five crashes and two minor injuries related to the defect, which it discovered last fall through warranty claims.

Harley-Davidson will notify owners later this month. Dealers will replace the brake lines for free and attach straps to hold them in place.

Here’s more information from USA Today:

At the height of riding season, Harley-Davidson has ordered up a big recall of near-new motorcycles.

Harley is recalling 66,421 Touring and CVO Touring motorcycles from the 2014 model year. It warns that the front wheels can lock up without warning. The recall applies to bikes with anti-lock brakes made between July 1, 2013, and May 7.

The flaw has resulted in five crashes, with two minor injuries.

The snafu occurs when a brake line in front is pinched between the fuel tank and the frame, causing the front brake fluid pressure to increase and increasing the risk that the front wheel could lock up while riding. Dealers will replace brake lines and install straps to keep them in place.

The company invites consumers to review safety recall information on its website, where you can enter your VIN securely and see if this recall applies to your motorcycle. 

Mark Ladendorf Interview with WTHR: Tony Stewart Crash

NASCAR Driver Tony Stewart Hires Indianapolis Defense Attorney James Voyles

The motor sports world suffered a great loss on Saturday, August 9, 2014 when Kevin Ward, Jr. died of massive blunt force trauma after he was struck during a sprint car race by Tony Stewart’s vehicle.  As this perplexing and tragic event is being investigated, no criminal charges have been filed to date.  However, WTHR News reported that Stewart has retained seasoned Indianapolis defense attorney James Voyles just days after the fatal wreck.

Regardless of what the New York prosecutors decide to do as far as criminal charges are concerned, it is likely that Tony Stewart will face legal action in the civil arena. That is, even if New York authorities conclude that Ward Jr.’s death was entirely accidental, his family could conceivably pursue a wrongful-death civil case under a theory of negligence.

The differences between proving manslaughter in criminal court and proving negligence in civil court are significant.  For one, the level of intent is much lower for negligence, as a wrongful death plaintiff need only show that the defendant’s actions fell below a standard of reasonable care under the circumstances.  (By contrast, a prosecutor needs to prove the act that caused the death was intentional, or at minimum, severely reckless.)  Moreover, theburden of proof in a civil case requires the plaintiff demonstrate that it is more probable than not that the defendant was negligent and that the defendant’s negligence caused the plaintiff damage.  The time-honored criminal burden of proof is that all elements of a criminal charge be demonstrated “beyond a reasonable doubt,” a much higher bar to meet.

In spite of the ugliness of the scene that resulted in Ward Jr.’s death, there remain challenges for his estate if it seeks to bring a wrongful death claim. Ladendorf Law founding attorney Mark Ladendorf explained some of these challenges in an interview with WTHR (local NBC) on Monday.

From a claimant’s perspective, Mark’s first concern is whether Kevin Ward Jr. executed a waiver or release of liability prior to participating in the sprint race.  Athletic releases–which operate to bar a future civil claim in exchange for the athlete being allowed to participate–are pervasive in motor sports.  In many instances, the language of the release / waiver signed by a deceased individual can be binding upon his heirs in a wrongful death case.

Second, Mark discussed one of the critical differences between the substantive laws of New York, where the incident occurred, and Indiana, which is Tony Stewart’s home state.  Under the Indiana Adult Wrongful Death Statute (codified at I.C. 34-23-1-2), the estate of an emancipated adult who is killed through the fault of another can only collect at most $300,000 in “non-economic damages” — that is, damages that represent the loss of love, care and companionship.  This is only one type of “damage cap” created by the Indiana Legislature to limit a party’s recovery.  The State of New York, by contrast, does not cap wrongful death damages for the statutory survivors of the deceased.

To view portions of Mark Ladendorf’s interview with WTHR, click here.

Ladendorf Law will continue to follow this developing story. Our practice is devoted exclusively to representing victims of personal injury accidents, medical malpractice and wrongful death.  Please do not hesitate to call us if we may assist you, your friends or acquaintances with a case.

Statutory Damage Caps in Personal Injury Cases

I’m sure you have heard of those mystical personal injury law suits where the plaintiff supposedly recovered millions of dollars for a stubbed toe. Well, this example is obviously hypothetical, but you get my point. The majority of the public feels that civil plaintiffs recover millions all the time for the slightest of injuries. In fact, let’s be honest, the public perception is really that when a plaintiff has a personal injury claim, they are looking to “hit it rich.”

In reality though, that couldn’t be further from the truth. Most victims of personal injury really just want their lives to return to normal…or at least as close to normal as possible. In fact, even if an injured party wanted to “hit it rich” from a personal injury claim, in many instances, the law doesn’t allow them to do so.

A personal injury case (motor vehicle collision case, medical malpractice case, products liability case, etc.) is what the legal world refers to as a “tort claim.” A tort lawsuit is a suit where one person (“the plaintiff”) sues another (“the defendant”) for damages that the defendant caused to the plaintiff when the defendant committed an act of harm recognized by our civil laws (e.g. negligence). What do “damages” mean? Damages are compensation for the harms that were caused by the wrongful act.  This compensation is strictly for the damages sustained…no more…and no less. Specifically, tort law intends for the damages a plaintiff recovers to compensate them in a manner so to place them in the same position they would have been had they never suffered the injury in the first place. Obviously, a jury award cannot physically fix their bodies or award the plaintiff a time machine to travel back to a time when they were not injured.  What the jury award does do is provide a plaintiff with an amount of money to hopefully help them live with their injuries in a more “normal fashion.”

To provide guidance to a jury, the law specifies what losses should be included in the damage compensation awarded. Those include:

  • The reasonable value of necessary medical care, treatment, and services (past and future);
  • Loss of wages (past and future);
  • The value of a loss of earning capacity;
  • The value of loss of enjoyment of life the Plaintiff has suffered;
  • The value of the physical and emotional pain and suffering the Plaintiff has suffered; and
  • The value of disfigurement and / or deformity resulting from the injuries the Plaintiff has suffered.

All of the damage considerations can then be affected by the extent of the injuries; whether the injuries are temporary or permanent; the length of life a plaintiff would have to live with the injuries; and the effects of inflation or depreciation of the damages awarded.

In cases of death, dismemberment or permanent debilitating injury, the amount awarded for damages can rise to an extremely high number. But, given the fact that a compensation award is intended to bring the plaintiff back to the same position she would have been had she never suffered an injury in the first place, it’s only fair.

With all of that considered, did you know that Indiana law places a cap on the damages a plaintiff can recover in certain types of cases? If a Plaintiff is injured, she should be allowed to recover all of their damages, no matter how much is at stake, right? Similarly, if a Plaintiff is injured, a Plaintiff should be allowed recover all of their damages, no matter what geographic location she resides in, right? Finally, if a Plaintiff is injured, she should recover all of their damages, no matter how they were injured, right? I mean, isn’t that what I just spent the first few paragraphs explaining? Well, regretfully, I was correct in my theoretical explanation above. But according to Indiana lawmakers, practice should be different than theory. In fact, over the last 40 years the Indiana Legislature has placed numerous monetary caps on the damages a Plaintiff can recover.

For instance, if a Plaintiff suffers an injury due to medical malpractice, a Plaintiff can only recover a maximum of $1.25 million…no matter how much a jury would actually award. I.C. 34-18-14. Or, if an unmarried adult with no dependents is killed via an act of negligence, the maximum amount their estate can recover is $300,000.00 plus attorney fees. I.C. 34-23-1.

These caps may seem like a lot of money and may seem fair to some; however, keep in mind that what these caps really stand for: the state lawmakers placing a maximum value on individual’s lives and state lawmakers categorizing certain individuals based on the type of negligence involved.

Statutory caps on damages remain a hot topic among the attorneys who are confronted with them on a consistent basis. Regretfully, all too often it also affects injured parties.

Ladendorf Law is constantly keeping up to date on the legal ramifications and changes in statutory damage caps and fighting hard for our clients as we navigate through the complicated statutes that continuously “stack the deck” against victims of personal injury. If you or your loved ones have been injured by the negligence of another, contact Ladendorf Law to allow us to answer your questions concerning these statutes and more as well as conduct a free case evaluation.

Bird’s Eye Footage of the 1st Lt. Michael Andry Memorial Ride

When technology and philanthropy come together, beautiful results can happen.  This video, taken by a drone hovering above the American Legion Post #10 in Marion, Indiana, followed the motorcycle riders who participated in the inaugural Lt. Michael Andry Memorial Ride on July 12, 2014.

The initial couple of minutes show the Legion grounds and the bikes departing.  The drone catches up with the riders en route on the 137 mile journey.  It concludes with still photos of former Grant County Sheriff’s Deputy Michael Andry on his bike and the cross at the scene of his untimely crash that led to his death.    Incredible aerial videography, particularly for those who have never seen what a drone can do.

Ladendorf Law Sponsors Inaugural Lt. Michael Andry Memorial Ride

A recap of the July 12, 2014  Lt. Michael Andry Memorial Ride, by Ladendorf Law attorney Dan Ladendorf:

Approximately two hundred people – volunteers and participants alike – stood under partly cloudy skies waiting for the formal invocation to kick-off the Lt. Michael Andry Inaugural Memorial Ride. A young lady was invited to the microphone where she acknowledged Lt. Andry’s selfless actions when he came upon the scene of a crash several years ago and played a role in making her presence at this event in his memory even possible.  In his work, Lt. Andry touched the lives of many people in unforeseen ways and made his community a better place until a senseless crash on July 12, 2013 claimed his own life at the young age of 49.

Despite Saturday’s stormy forecast, the only thunder overheard at American Legion Post #10 in Marion, Indiana was the roar of one hundred motorcyclist departing for a 137 mile ride in memory of Lt. Andry, a twenty-one year veteran of the Grant County Sheriff’s Department.  A law enforcement escort accompanied the procession of bikes over the Salamonie Reservoir with a scheduled stop at Brandt’s Harley Davidson in Wabash.  The ride continued across the Mississinewa Reservoir, through Converse and into the Town of Swayzee, where Lt. Andry began his career in law enforcement as the Town Marshall.   A second stop in Greentown provided a short respite before riders passed byKnox Chapel Cemetery where Lt. Andry is laid to rest.  Upon returning to the Legion, afternoon activities included food and a silent auction.

Ladendorf Law was the primary sponsor of the ride and is grateful the Andry family invited our participation in the event, which promoted driver and motorcycle safety.  Ladendorf Law attorney Dan Ladendorf was on-hand at the Legion in the hours before the 11:00 a.m. ride commenced.  Proceeds from this year’s inaugural ride are earmarked for the benefit of two law enforcement related charities including the Grant County Sheriff Department’s “Sheriff’s Gifts for Kids” program and the Marion Fraternal Order of Police “Cops and Kids” program. Both charities assist less fortunate children during the Christmas season and were supported by Lt. Andry before his untimely death.

The inaugural Lt. Michael Andry Memorial Ride ride was held on the one year anniversary of Lt. Andry’s death, which was caused by the negligence of another driver who executed a left turn directly into and across the path of Lt. Andry’s motorcycle on SR 13 just north of Elwood, Indiana.  Lt. Andry’s family intends to continue the event each year in celebration of his life and in support of his commitment to the community in which he lived and worked.  Ladendorf Law looks forward to being along for the ride.

Like family.  Because we are.

dan + family
Dan Ladendorf hands this young lady a special “Ladendorf Law” kickstand puck.

Dan Ladendorf hands this young lady a special “Ladendorf Law” kickstand puck.

 

Kickstands up! Time to roll out for the 100+ mile ride.

 
Lt. Michael Andry Memorial Ride volunteers… hard at work!

Lt. Michael Andry Memorial Ride volunteers… hard at work!

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