Missouri Injury Law Blog

Recently, a cyclist that was injured due to a dangerous condition on the roadway almost had her case dismissed based on assumption of risk claim by the Defendant. The court of appeals ruled that cycling on the roadway is not assumption of the risk. In their case their was a dangerous "lip" in the roadway due to new asphalt and old asphalt coming together, however, the dangerous part about it was that there was not warning and the lip is not seen until the last second by cyclists. See - Bike Accident Lawyer Article - Refusal to Dismiss based on Assumption of the Risk Arguments.

the primary reasons I discuss this are that I am a bike accident personal injury lawyer and am currently representing an injured cyclist in St Louis Missouri that was injured under similar circumstances. As posted in a previous blog, my client was injured as the result of a a large fire hose laid across the road in spot that is not seen till the last second, at the bottom of a steep hill, and without any warning signs. See - St Louis Missouri Bike Accident Injury Lawyer Case.

This is disclaimer that should be taken very seriously. Think of how many personal injury lawyer advertisements there are where they claim they will get the best result for you, and some even go so far as to diminish the professionalism of our business by making juvenile advertisements and claims. Ask yourself, do they ever is back up their claims with proven experience and results with successful personal injury cases?

I was browsing the Internet recently,and a reputable lawyer in Maryland was discussing his disgust with outrageous and frankly embarrassing advertisements by injury lawyers. See Maryland Injury Lawyer Blog

This attorney cited several injury lawyer ads listed in an Esquire magazine blog showing some of the most outrageous lawyer commercials around. While they are funny, it is also very serious topic, as many people hire lawyers based on these ridiculous and exaggerated ads. If you are form the St Louis are, you should recognize the third commercial down titled "the good guys". See Outrageous Lawyer Ads Article

As stated above and at the end of many injury lawyer advertisements, the choice of a lawyer is an important one and should not be based on advertisements alone. Many of these commercials do not back their claims up with results or discuss cases that were not handled by their own firm.

All cases discussed in my blog are cases I personally handled, each and every case discussed and illustrated on my website were handled by me. Except for only a very few cases discussed on my blog, but then I specifically state it was not a case I handled.

Be careful, many websites will publish outstanding results but do not specify that the case was theirs or not, thus implying to many people that the case was theirs.

So do not decide on a lawyer based on advertising, decide on a lawyer for other reasons, including, personal injury lawyers with experience backed up by past results, not silly claims crafted by marketing managers.

The recent enactment of legislation in Missouri requires an ignition interlock on drivers who have been convicted of two or more DWI charges, thus making the roadways safer for all drivers. RSMo. 577.600 upheld that this is required on all vehicles that are operated by such repeat convicted offenders and is a required condition of the limited driving privilege for a short period. Only three states in the nation do not have any laws that require ignition interlock devices: Alabama, South Dakota, and Vermont. However, the rest of the nation believe that mandatory ignition interlocks are a necessary need for repeat DWI offenders; 85% of the general public agree with this law and offenders themselves believe it is essential towards helping to curb their addiction with drinking and driving.

Missouri was one of the first states to implement this law for repeat offenders; ten other states have issued the law as prudent for first time DWI offenders, while many other states offer discretionary status of the law. The ignition interlock has been hailed as one of the most effective tools in the fight against drunk driving. Statistics in Missouri alone have revealed that almost 20 percent of highway deaths are a result of drunk driving, many of which were double the legal limit. This new device helps in ending the decades long debate against drunk driving while not infringing on public liberties. It is more useful in noting that offenders themselves believe this sanction to be fair and effective in forcing them to remain sober when operating their vehicle.

The ignition interlock device works by requiring the driver to blow into a type of breathalyzer which does not turn on the engine if the BAC is higher than a predetermined amount, usually around .025 in Missouri. Additionally, many interlock devices now require that the driver blow into them a second time while the car is in motion to guarantee that the driver themselves was the person blowing into the device (many times, a friend initially blows into the device). This second testing is not mandatory on all of the devices, but is an important aspect to guaranteeing the safety of roads from repeat offenders. If the driver fails this test, however, the car does not shut itself off as this is dangerous on a busy street, but rather sets of the alarm and causes the car to honk and flash unless the vehicle stops. This is important to alerting law enforcement to the driver’s condition; the device itself cannot stop the car once it is running, but this method is effective in causing the driver to stop the car.

Thus far, the device has been very effective in curbing the persistence of drunk drivers who continue their repeat behavior after multiple convictions. While many states have passed this law after first-time offenders, Missouri remains in the range of multiple convictions. It therefore becomes important to decide whether or not it should be made a mandatory device of first-time offenders. Organizations such as MADD list the fact that most first-time offenders have driven drunk around 87 times before they are pulled over for a first offense. This consequently determines that the device should be mandatory for many first-time offenders because of their previous actions, although Missouri has yet to include this in the law thus far. The addition of this law in general has proven to be a milestone in preventing repeat drunk drivers and has helped to ensure the general public’s safety on roadways.

This post was contributed by Kimberly Peterson, who writes about the criminal justice degree online. She welcomes your feedback at KimPeterson2006 at gmail.com

This was a contribution by a visiting author not associated with Sansone Law, LLC and does not necessarily reflect the opinions or positions of Sansone Law, LLC or Missouri InjuryLaw Blog or any of its personal injury lawyers or staff.

Continuing on my journey to personal injury law discovery - some would describe as my own “trail of tears” - I have come across many different points of view from different sides. This is in-part a response to some emailed comments and questions I received, and in-part a declaration of my recent discoveries. Here is what I know so far:

I don’t like the blemish that personal injury attorneys are seemingly required to wear. It’s the proverbial pimple in the middle of the forehead that detracts from the supermodel’s otherwise flawless face. We have all made our own little snarky attorney comments. We are all well aware of the “sharks” out there. Ad nauseam! I had a great mental picture of how this all worked. Mighty Joe client, down in the colosseum, circling the innocent and weak Dr. Defendant (dollar sign appropriately painted on his back) preparing to charge, while hundreds of personal injury attorneys stood cheering and salivating with calculators in hand.

Really, not all attorneys are the hostile piranha, ready to devour every doctor, small business owner or large corporation’s bank account, they are made out to be. You simply cannot lump them all together. We don’t hear about every car accident on the evening news because they are unfortunately so common. However, if there is a train wreck, it is covered by every station. They are decidedly less common. We always hear about those greedy personal injury attorneys that have wiped out companies because they are not the norm. They are train wrecks. They are, without a doubt, the infection causing the big fat zit!

Most of you visiting this site are obviously seeking an attorney. Some of you may be feeling a bit guilty for considering a possible lawsuit. You don’t necessarily want to crush the culpable party, but you do need restitution and accountability for their mistake. You do not want to appear greedy, but the medical bills are piling up. Ockham’s razor: don’t hire a train wreck! Hire an attorney with a reputation of one that uses the law for the goal of righting wrongs, not for financing dream beach houses. Don’t, not hold someone accountable because of a few trains that fell off the tracks.

I find it interesting that personal injury attorneys appear more forgiving than most of their critics. Attorneys meet with some potential clients that literally reek with laziness and greed, yet they do not assume each client that walks through their door is out to retire off someone else. They assume that this person or person’s family has been wronged.

When I wrote in Blog#1, …..”he does not take cases without merit”, I unwittingly assumed readers knew that no attorney in their right mind would take a case destined for failure. Attorneys take cases where they can assume a probability of a positive outcome. By “merit” I was referring to the type of case described in the previous paragraph. Merit - meaning the quality of being deserving. Not “a case I can make a ton of dough off of.” Quite the opposite of that actually.

This firm represents injured parties. Not greedy parties.

Currently, I am handling a St Louis personal injury premise liability and negligent maintenance/security case arising from an apartment complex owner or manager's complete failure to maintain and repair outer security doors of the apartment buildings in the complex. The failure to keep these doors operable allowed several assailants to walk right into the apartment building, kick in the inner door to my client's apartment (which is a flimsy wood door) and proceed to rob and brutally rape her at gun point.

Apartment complexes are places that are often open to the public, thus, the apartment property owner has an obligation to provide a safe environment. Especially when the area is a known high crime area. We pulled the St Louis County police records that indicated over 200 calls to 911 from the apartment complex reporting crimes occurring there. Of those, there were about a dozen violent crimes that occurred in the year prior to our client becoming a victim to sexual assault, including two reported rapes. This is direct evidence that the apartment owner or managers knew or should have known about the potential danger, thus putting them on legal notice to substantiate a Missouri personal injury claim based on premise liability and negligent maintenance or security.

Apartment complex owners have a legal obligation to maintain the property in a safe condition, to protect their renters from personal injury. Common injuries include burglary, robbery, parking lot rape, sexual assaults, and murder that result from inadequate or negligent security.

Most shocking was that almost all of the building in the complex had defective, unmaintained, and just plain inoperative security doors. I walked through the entire complex and several residents showed me how easily their young children could just pull on the security doors and they would open or the doors were in such disrepair that the locking mechanism was missing entirely or would not latch to the door frame.

Premise Liability - Negligent Security at Apartment - $9 Million Verdict
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Negligent security at apartment complex, rape in parking lot - $2.5 Million settlement.
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Currently, I am representing an Illinois personal injury victim that suffered severe injury to his nose after being struck in the face when using a defective log splitter. See - Illinois Products Liability Personal Injury - Nose Injury & Loss of Smell.

My client lost his sense of smell as a direct result of the defective product. The case is currently in settlement negotiations, however, if we are not able to resolve the case we will be proceeding with a lawsuit. This is not a common injury, so a little research revealed some substantial verdicts and settlements wherein loss of smell was a primary injury.

$500,000 awarded to man who loses sense of smell as result of a fall down an Elevator shaft (http://www.siaccident.com/CM/Custom/Results.asp)

$1.2 MILLION. Recovery for emotional difficulties and loss of sense of smell and taste
Plaintiff carpenter fell six-feet from a scaffold, striking his head on the floor. Although diagnostic tests, including an MRI, did not show a brain injury, the plaintiff's family noticed a change in his behavior, and he complained of emotional difficulties and a loss of sense of smell and taste. (http://www.accidentslawyernewyork.com/verdicts-settlements)

$850,000 obtained for plaintiff
Woman strikes head in a car accident causing frontal subdural hematoma resulting in loss of sense of smell.
(http://www.gellerandsiegel.com/CM/Custom/Verdicts-Settlements.asp )

$12,000,000.00 ZICAM maker settles lawsuit over User’s Loss of Smell

Class action lawsuit alleging varying loss of smell for about 300 users.
(http://www.thedenverchannel.com/7newsinvestigates/6279576/detail.html)

$600,000 products liability settlement for loss of smell
Truck driver whose primary injury was the loss of his sense of smell. The truck driver claimed a design defect in a milk truck because it failed to provide a grab handle on the rear driver's side of the truck.
(http://www.marylandinjurylawyerblog.com/2006/06/600000_settlement_in_products.html )

If you are not a personal injury lawyer the first question you may have is what does Res Ipsa Loquitur mean and what does it have to do with personal injury law or Missouri medical malpractice?

Res Ipsa Loquitur is Latin for "the thing speaks for itself." It is a legal doctrine which dictates that when a personal injury occurs and there is no way the personal injury could have happened in the absence of negligence, then the injured victim does not have to prove a specific act of negligence.

Res Ipsa, under Missouri law, is an evidentiary rule allowing the jury to infer that a loss or injury was caused by a negligent act of the defendant, without requiring the victim to prove a specific act or acts of negligence.

Generally, res ipsa was not allowed for Missouri medical malpractice cases (except for very limited exceptions) until just recently after the Missouri Supreme Court's 2008 ruling in Sides v St Anthony's Medical Center, 258 S.W. 3d 811 (Mo. 2008). The Sides court ruled res ipsa is possible for all med mal cases as long as the following res ipsa elements are present and a medical expert testifies to such:

(a) the occurrence resulting in injury was such as does not ordinarily happen if those in charge use due care;
(b) the instrumentality involved was under the management and control of the defendant; and
(c) the defendant possesses superior knowledge or means of information as to the cause of the occurrence.

Now tort deform advocates try to argue that res ipsa allows a "presumption" of negligence and allows personal injury lawyers to unfairly target doctors. This is absolutely not true. It allows only an "inference" which still must be proven by the Plaintiff as more likely than not to have been below the standard of care and the proximate cause of the injury or loss.

An obvious example of why this is necessary: if you undergo an operation and wake up with a surgical device left in your body, you may not be able to prove the specific act (i.e. negligent doctor used the device, put it in the body, and forgot to take it out) because you were unconscious and maybe you see nothing about the device being left in you noted in the records as you have no control over them. Clearly, someone was negligent. The personal injury medical malpractice victim should not be forced to prove a specific act of negligence if there is no evidence of it. A surgical tool is not left in your body without someone being negligent. There are many cases that are not as clear and obvious as the example above; however, if a medical expert testifies that a particular result does not occur in the absence of negligence, then there is a submissible cause of action in Missouri for medical negligence.

Clearly, in the medical malpractice field this was a greatly needed victims' right issue, as health care providers possess much superior knowledge to what is going on in the operating room and the defendant is often the only witness to the negligence, which can easily be distorted or simply left out of the defendant's report. Trust me, this DOES happen more often than you may think. I have personally had doctors and nurses admit this to me off the record on several occasions.

Current Missouri medical malpractice case we are pursuing on a res ipsa theory as all the evidence of negligence was within the control of the defendant.

Example of Missouri Medical Malpractice Petition alleging Res Ipsa

I’m new to the Missouri and Illinois personal injury law firm known as Sansone Law, LLC and new to personal injury law. As the new legal assistant to Mr Sansone, part of my duties will include writing a blog entry once a week.

My background is as a legal assistant to domestic/family law attorneys. I found myself in need of a job and was referred to this firm by a friend. When I heard this was a St Louis Missouri personal injury firm, I admit, I snarled a bit. Like most of you, my image of personal injury attorneys was of slick, omnivorous ambulance chasers, who dramatized every spilled coffee and grocery store fall. Being a research fanatic, I decided to find out more about this firm and what exactly personal injury attorneys do. So between the introductory phone call and the offer of employment, I did my homework. I have to say, my eyes were opened. I admit….I was wrong. So for all of you kindred cynics out there, let me break it down. This is what this particular personal injury law firm does. And this is why personal injury attorneys are so very needed.

The joke is that waitresses and beauticians are the only people not allowed to make mistakes. But the reality is, food can be remade and hair will eventually grow back. But what about errors made by professionals, corporations and manufacturers that are more difficult, if not impossible, to fix. They should be held to a strict standard of culpability for wrongdoing.

Most people immediately associate personal injury law with medical professionals. I know I did. Doctors do have an especially great obligation to serve their patients. My friend is dying of cancer and it is my belief that the erroneous methods used by her physician took away any chance for her recovery. There was no malicious intent behind his actions, but he was negligent and he should be held accountable.

I hear people question time and time again what good would filing a lawsuit do - the damage has been done. Through carelessness, their mother, father, or child has been injured or has even died. Why exacerbate the sorrow by filing a lawsuit? Two major reasons come to mind: personal injury cases are about accountability and compensation. We must get out of the mindset that lawsuits are for retribution. Lawsuits are not motivated by greed. Filing a lawsuit against a medical professional is supposed to stimulate a greater sense of responsibility in them. Also, families of victims of negligent acts need this option for a small amount of restitution for their loss. While no monetary sum can replace the loss, victims should not be responsible for the financial burdens that have accumulated through other’s carelessness.

Look through some of the firm’s cases listed on this site. You will find that loss is not only defined by the death of a loved one. There is loss of time at work or with family, loss of physical mobility, in addition to financial loss. See how this firm has been relentless in making sure negligent drivers, corporations, medical professions, and other institutions and individuals are held accountable for their actions.

How many of you were told as a child, “You are known by the company you keep.” It does not matter if it is the choice of a friend you associate with or the boss you choose to work for. I needed a job, but I could afford to be a little picky. I was not going to knowingly choose to work for a person with a bad reputation. As I’m sure you deduced from the first paragraph, I tend to be a little too judgmental sometimes. I’m a tough critic. But, I’m still waiting for the shoe to drop.

Mr. Sansone has a reputation for conquering tough cases where other firms could not. But make no mistake; he does not take cases without merit. Quite frankly, you do not want an attorney who is not passionate about your situation nor confident about your case. I encourage you to look at his qualifications. Look at his track record. Many of these cases you see were hand-offs from other firms that just could not get the job done. Contact him with any questions you may have. You should never be intimidated or apprehensive in speaking with your attorney because they work for you.

I hope you continue to read the blogs posted weekly. I hope you email me with your own experiences, topics you would like to discuss, or questions you may have.