Posts Tagged ‘Protect Your Rights’

Numerous studies show cell phones are a leading cause of car accidents. One such study estimated that drivers talking on cell phones are four times more likely to be in a car wreck. According to a Harvard University study, cell phones cause over 200 deaths and half a million injuries each year.

Many states have enacted laws limiting or prohibiting cell phone use while driving.  For example, some states require that a hands-free device be used while driving.  However, West Virginia does not have any state-wide cell phone laws.  In fact, it’s perfectly legal in West Virginia to drive while text messaging or even emailing on a Blackberry or iPhone.  That’s  pretty scary considering many of us have problems sending an email from the comfort of our home or office.

Despite the fact that West Virginia has no state-wide cell phone laws, there can still be serious legal consequences for driving in West Virginia while talking on a cell phone.  For example, if you’re involved in a car accident and one of the drivers was talking on a cell phone, you may be able to present evidence of that fact to the jury.  Evidence of that the driver was using a cell phone while driving may help prove the driver’s negligence and win your case.

Cell Phone Records

The issue then becomes how to prove the other driver was talking on a cell phone at the time of your car accident.  One of the best ways is use the other driver’s cell phone records.  Cell phone records show the date, time and duration of all calls made or received from a cell phone.  Of course, the same legal rules apply to you if you decide to use a cell phone while driving.

Thus, to protect your legal rights and most importantly your life, you may want to think twice before driving while talking on a cell phone.  If you decide that you must use a cell phone while driving, you may want to consider a hands-free device.  If you’ve been injured in an accident and would like more information about how to obtain and use cell phone records to win your personal injury claim, CONTACT me.

Note: Although West Virginia has no general state-wide cell phone laws, West Virginia – thankfully – does prohibit drivers with learner’s permit from using a wireless communication device while operating a motor vehicle (except in an emergency).

Part one of this series addressed three issues that are often important to maximizing a truck accident claim.   Below is a discussion of two additional issues that will hopefully help you recover all that you deserve.

4.  Falsified Truck Driver Records

One of the common causes of commercial truck accidents is truck driver drowsiness, often a result of a truck driver staying on the road longer than allowed by law.  For this reason, Federal Motor Carrier Safety Regulations limit how much time a trucker can spend driving without sleep and rest.  These regulations also require truck drivers keep a log of their driving time.  However, greed and profit may motivate a driver and/or trucking company to falsify records so that they can keep the truck on the road as long as possible.

An experienced truck accident lawyer may be able to recognize inconsistencies in the records produced by the truck driver and trucking company during litigation.  An effective personal injury lawyer may also be able to elicit testimony from witnesses to help prove the truck driver or trucking company falsified records.  Proving that the truck driver or trucking company falsified records can significantly help maximize your claim and may justify punitive damages.

5. Trucking Company Policies

Trucking companies usually have written policies that their truck drivers must follow.  These policies address most aspects of a trucker’s job including conducting pre and post-trip inspections of their truck, substance abuse, and what to do in the event that their truck needs repaired.  To maximize your claim, it is important for your lawyer to obtain and review the trucking company policies to determine whether they were followed not only by the truck driver, but also by the trucking company.  Promptly consulting with an attorney after a serious truck accident is important, but that doesn’t mean you should hire the first lawyer you talk to if you’re not fully confident in him or her.

Finding Legal Help

Hiring an experienced truck accident attorney who is aware of these issues can help maximize your claim.  Truck accident victims are often at a disadvantage in regards to resources, truck accident litigation experience, and time spent at the accident scene.  Hiring a qualified attorney is perhaps the most important decision you will make with respect to receiving the compensation you deserve.

West Virginia Personal Injury Lawyer

Successfully litigating a truck accident claim can be difficult, and there are seven important issues that can influence whether or not a truck accident victim recovers all that he or she deserves – recovering something is not the same as he or she recovering all that they deserve. Maximizing a truck accident claim and how these seven issues are resolved usually hinges on one important question – what lawyer the truck accident victim hires?

If you’re injured by a defective product, such as a defective car like the Ford Pinto to the right, you may be able to recover compensation for your injuries from the manufacturer, distributor and/or seller of the product under several different theories of liability including negligence, strict liability, and/or breach of warranty.  These type of claims generally fall under the category of product liability law.  Products subject to such laws include virtually any tangible thing you can purchase including trucks, guns, motorcycles, toys, drywall, tools, appliances, and over-the-counter and prescription drugs.

If you are injured by a product, keep the product and all of its parts in a safe place and in the same condition it was in at the time of your injury. Do not attempt to repair the product as it is likely the most important piece of evidence in your case.  You will likely need it to show that the product was in fact defective.  Of course, if you repair it, it’s no longer defective and you will have effectively destroyed your evidence.

What is Strict Liability?

The general rule for recovering under the theory of strict liability is that an injured person may recover if he or she was injured by a product that it is not reasonably safe for its intended use.  Under West Virginia law, it’s no excuse that other manufacturers are making similar products that are also not reasonably safe.  In contrast to a negligence claim in which you would have to prove that whoever injured you acted negligently in order to recover compensation, a strict liability claim means that you don’t have to prove that the defendant acted negligently or in any culpable way.  To prevail on a defective product strict liability claim in West Virginia, you generally only have to prove that you were injured by a defective product while using the product as it was intended to be used or using it in a reasonably foreseeable way.   If you were injured by a product, you may have a claim and should consult an experienced personal injury lawyer as soon as possible.

West Virginia, like every other state but New Hampshire, requires all passengers (not including cute dogs) to wear a seat belt. The primary rationale behind seat belt laws is to protect drivers and passengers from injury and death.  However, if the increased risk of injury and death associated with not wearing a seatbelt is not enough to motivate you to wear one, perhaps the limited “seat belt defense” is.

The Limited “Seat Belt Defense”

The limited “seat belt defense”  means if you are injured in a car crash while not wearing a seat belt and your injuries were caused or made worse by your failure to wear a seat belt, then the amount of damages you can collect may be reduced.  In other words, the defendant who may be the primary cause of your car accident , may be able to assert the seatbelt defense to limit the amount of compensation you can recover from him.

In West Virginia, the “seat belt defense” is a little more complicated and limited by statute.  It’s also not available in all circumstances.  Thus, it is important to consult an experienced West Virginia personal injury lawyer regarding your particular situation, and please, take care and wear a seatbelt regardless of the laws.

West Virginia Personal Injury Lawyer

Yes, in West Virginia, if you’re injured in an accident that was partly your fault, you may still have a personal injury claim.  However, if you are 50% or more at fault you probably don’t. West Virginia has adopted the modified comparative negligence doctrine. Bradley v. Appalachian Power Co., 163 W. Va. 332, 256 S.E.2d 879 (1979). Under this doctrine, a claimant’s action is barred if his or her negligence equals or exceeds the combined negligence of all the other parties involved in the accident. If the claimant is less than 50% at fault, his or her recovery is reduced in proportion to his or her degree of negligence.

For example, consider the auto accident hypothetical below:

Suppose you are driving down the road five miles over the speed limit and suddenly another car swerves into your lane and hits your car.  You then file suit and and your case goes to trial.  The jury finds that you were 10% at fault and the other driver was 90% percent at fault.  The jury also finds that your damages are $100,000. Under the modified comparative negligence approach, you would recover $90,000 (90% of your damages), which is proportionate to the other drivers fault.

If the jury had decided that you were 50% or greater at fault, you would have recovered nothing, and, in fact, the other driver would have likely had a personal injury claim against you.  On the other hand, if the jury had decided you were 49% at fault and the other driver was 51% at fault you would have recovered $51,000 and the other driver would have recovered nothing.

Is the modified comparative negligence doctrine the best approach?

Although it’s easy to see how West Virginia’s modified comparative negligence approach can be problematic when it’s a close call as to who is at fault, other approaches are even more problematic and can result in harsh, unfair results. For example, the draconian contributory negligence rule states that if you are at fault to any degree (even 1%) then you cannot recover in court. The pure comparative negligence approach can also be problematic because it allows an injured person to recover so long as he or she is less than 100% at fault.  Thus, most parties involved in a car accident could be a plaintiff.  For example, in the above scenario, even though you were only 10% at fault, if West Virginia followed the pure comparative negligence approach, the driver who swerved into your lane could potentially sue you and recover 10% of his damages.

There are a number of other issues that could affect your claim and how a West Virginia court will apply the modified comparative negligence doctrine.  For example, proximate cause is still a requirement to recover damages, and comparative negligence is not an available defense in intentional tort cases.  Thus, it’s advisable to consult with an experienced personal injury lawyer to evaluate your case. Your comments and opinions about the different approaches mentioned above are appreciated.

Many times I have heard the adage “knowledge is power.” Perhaps as many times, i have pondered whether there is any truth to that statement.   Completing law school, passing two bar exams, and practicing law for about five years has confirmed that this old adage is indeed true.  Perhaps what has most convinced me that knowledge can in fact be power is the few times in my past (prior to practicing law) where I basically allowed others to steal from me because I lacked the knowledge to protect my rights.

For example, in college my landlord kept my security deposit without a word of explanation even though I left the apartment in better shape than it was in when I first moved in.  I called and wrote my landlord several times requesting my security deposit.  However, he avoided my calls and never answered my letters. I eventually gave up and he got away with stealing $450 from me – a fortune to a poor college student.

This could have all been avoided if I had the knowledge I have now.  My hope is that the West Virginia Personal Injury Law Blog helps others avoid being taken advantage of by those with more power, more money, more resources such as the greedy landlord discussed above.  Thus, below are some things you may want to consider that could help you collect your security deposit and court costs from your landlord and deter him from stealing from his or her tenants again.

First, in West Virginia, unlike many other states, there are unfortunately no special laws to help tenants recover their security deposits.  However, a tenant may file a civil suit against her landlord to recover her security deposit and court costs.  A lawyer is not usually necessary and likely not practical since security deposits are usually less than $1000.  In West Virginia, court staff are generally helpful in explaining the procedures for filing a suit and can direct you to where you can find the necessary forms.

The Basic Steps involved in filing a lawsuit in West Virginia are as follows:

1. File the Complaint. The person starting the case is called the Petitioner or Plaintiff. He files a written statement telling the court what the case is about. That is called the Complaint. Then he arranges to have the Complaint delivered to the other side.

2. File the Answer. The Person being sued is either called the Defendant or the Respondent. He files a written response telling his side of the story and sends it to the other side. This is called an Answer.

3. Prepare the case. Both sides have time to gather evidence to prove their case. Evidence could include papers, photographs or the testimony of witnesses.

4. The judge holds a hearing. This is when both sides appear before the judge to present their evidence to prove their case.  For a lawsuit over a security deposit like above, the hearing will be held in magistrate court before a magistrate and is relatively informal.

5. The judge makes a decision.

There is an easier option available that you may want to try first.  West Virginia tenants may also file a complaint with the Attorney General’s Consumer Protection Division if their landlord fails to return their security deposit.  Complaint forms and more information can be obtained by calling the West Virginia Consumer Protection Hotline at 1-800-368-8808. Or click here for their website.  Although this is a West Virginia Personal Injury Law Blog and you may be wondering what the above has to do with personal injury law, loss of personal property – money – is technically a personal injury and is referred to as damages in personal injury law.

The above example is intended to be a simple, personal example of how having the right information can make a difference. I invite readers to leave comments about their own experiences.  There are in fact other options a tenant can pursue, and in some cases a lawyer may be necessary.  The important point is that there are many options available for people who have been wronged.  I suggest searching the keywords “tenant rights” plus “whatever state you live in” for more information.