Missouri Injury Law Blog

Each year in the United States there are well over 1 million people who suffer from some sort of Traumatic Brain Injury (TBI). Of that, between 50,000 and 100,000 people die from a TBI incident and approximately 80,000 to 90,000 are left with some sort of long lasting TBI impairment. Often times those injured must report to a hospital and/or specialty care facility and undergo some kind of rehabilitative treatment, like that offered at CareMeridian. While TBI can be caused by any number of incidents, falls, assaults, etc. many (as much as 20%) are caused by automobile accidents. Many of these automotive accidents are due to drunk or impaired driving. Young adults have a high incidence of TBI due to automotive accidents, and a large number of these involve alcohol or other mentally impairing drugs.

While drunk driving related Traumatic Brain Injuries are high there are measures that can be taken to prevent such incidents, the most important being don’t drive when impaired by alcohol or any other mind altering substance. Drunk driving is illegal in all 50 states and due to the recent increased enforcement of these laws TBI incidences have been on the decline. Nonetheless precautions should always be taken to reduce the likelihood of a drunk driving accident.

Posted by Benjamin J. Sansone | Permalink | Email This Post

Posted In: Automobile Accidents , Drunk Driving Law

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Staff Article by Erin Mace.

July 2008, a California ER doctor was driving to work and apparently caused two cyclists to wreck their bikes, seriously injuring them. One biker had to have 90 stitches to put his face back together and the other one also had to undergo surgery for his injuries. Bicycle accident attorneys and cyclists all over the globe have been chiming in on this case since it began. I have read countless articles and blogs on this case and it seems to come down to two questions....did he have road rage and did he “slam on his brakes”? Intention. The good doctor says he did not – on both accounts – though his 911 call kinda says otherwise.

As usual, a couple of points bother me about this case. One: because of either the idiot doctor or the idiot cyclists – or a combination of the two - we are all now going to have even more laws crammed down our throats. Superior Court Judge Scott T. Millington described this as “a wake-up call” and suggested that the “Government must be made aware of the dangerous conditions existing in our city streets and the threat of injury to cyclists”. Government is aware – that is why we have the laws we do such as mayhem, assault with a deadly weapon, etc. By the way, these are the same charges Dr. Thompson was convicted of. If the doctor did in fact “slam on his breaks” to “teach them a lesson” (a quote he later denies saying) then he should have been convicted of assault with a deadly weapon etc. – as California law states. If he was simply aggravated because, once again, cyclist were not following the laws - ultimately putting drivers and their passengers lives at stake - and decided to stop to obtain names/photographs, by which causing a horrible accident – with no malice - does that merit 5 years in prison? I’m not going to bring in drug dealers and OJ at this point. The prosecutor in this case dramatically ended her examination of Thompson by stating, “you could have drove on, but you didn’t”. Even I can think of a thousand counterarguments as to why that really has nothing to do with the situation – other than for a dramatic feel good effect – but she does have a point on the “be a responsible grown up” argument.

Two: “share the road” does not only apply to drivers of motor vehicles. It is supposed to include all transportation devices. The fact that “pedestrians have the right away” does not give me greater freedom to walk whenever and wherever I please. I still have to be cautious and abide by the rules, a.k.a. laws. Unfortunately, some cyclists’ sense of entitlement, which enrages most vehiclists’ sense of driving, has tainted the injured parties claim. They admittedly were not obeying the laws. They ticked off a guy who, at least in the beginning, was obeying the laws, and a horrible accident was the outcome. Are the cyclists not just a bit responsible simply because they were injured?

I drove a motorcycle for years. It was a love/hate thing. I loved the bike but hated the motorist that thought since they were bigger, they could push me around. Most drivers just do not pay attention. In fact, they believe that it is mainly the responsibility of the two-wheelers to watch out for everyone else. Most drivers think that because it is on two wheels, as opposed to four, it can move out of the way faster. Not necessarily true – nor necessarily the point. Most drivers are more likely to exhibit road rage against bikers rather than vice versa. This is ironic, considering bikers are more likely to die when they get hit by drivers rather than vice versa. Ultimately, vehicles do not “share the road” either. Every day, driving to and from work, we see evidence of this. Again, the childish entitlement and arrogance that says you have more of a right to get home faster, be in that lane first and are more important than someone on two wheels yields devastating results.

As a two-wheelin member of society, you have rights. You have access to an experienced bike accident personal injury attorney when those rights are violated. You also have to obey the laws. Vehicles – mind your P’s and Q’s. When you bump a biker, it hurts them and ultimately you a lot more than having to patiently wait an extra minute or two, to pass.

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Posted In: Bicycle Accidents , Staff articles - Erin's Corner

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In a previous St Louis injury lawyer article I discussed the Missouri medical malpractice caps and that the Supreme Court was scheduled to hear oral arguments on a case challenging the caps. See Missouri Medical Malpractice Caps Article.

Today, the Supreme Court heard the arguments from both sides regarding the constitutionality of the medical malpractice damage caps in Missouri. I was unable to be there to observe, but the initial reports are that the judges focused on whether or not the damage caps violate the principle of open access to the courts. This is a very complicated issue best explained by constitutional law scholars, however, in short, the tort reform law takes away the jury's ability to fully decide a case which in turn denies access to justice for injured victims.

Link to the Missouri Supreme Court Site allowing Access to an Audio File of the Oral Arguments and Summarizing the Case in Detail

Above link will also take you to an audio file of the oral arguments.

Brief Submitted by Plaintiffs arguing against the Damage Caps on Missouri Medical Malpractice Actions.

The legal arguments made by Plaintiffs include:

1. The Revised Cap on Non-Economic Damages Differs Significantly From the Prior Cap

2. The Legislature Lacked a Rational Basis for Enacting the Revised cap

3. There was no malpractice liability crisis in Missouri.

4. Increases in malpractice liability insurance premiums were not caused by increases in tort liability; moreover, malpractice premiums were not high by historic standards and constituted a small percentage of the costs of operating a
medical practice

5. There was no evidence that doctors were fleeing Missouri, whether due to liability concerns or for any other reason

6. The supply of licensed physicians throughout Missouri has increased steadily over the last 45 years, both in net numbers and in relation to the Missouri population

7. The number of high-risk medical specialists was rising—not falling—in Missouri in 2005

8. The Legislature knew—or at least had been told—that lowering the cap on non-economic damages would not be an effective response to the perceived “crisis” and that such a cap would be quite harmful to malpractice victims.

9. The Revised Cap Violates the Missouri Constitution as follows:

i. Amended § 538.210 Violates the Equal Protection Clause of the Missouri Constitution, Article I, Section 2

ii. Amended § 538.210 Violates the Prohibition Against Special Legislation, Article III, Section 40

iii. Amended § 538.210 Violates the Due Process Clause of the Missouri Constitution, Article I, Section 10

iv. Amended § 538.210 Violates the Right to Trial By Jury, Article I, Section 22(a)

v. The Right to Trial By Jury, Properly Understood, Includes the Right to Have a Jury Determine the Amount of Damages, And that Determination Cannot Be Overridden By Legislative Decree

vi. Amended § 538.210 Violates the Separation of Powers, Article II, Section 1

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Posted In: Injury Law

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Missouri personal injury premise liability for criminal acts arises when there is (1) a "special relationship or circumstances" between the landowner and the personal injury victim, (2) personal injury resulting from a criminal act of a 3rd party, and (3) causation, i.e. the criminal act would have likely been prevented with proper security. At the end of this article are several examples of St Louis personal injury 3rd party criminal act cases. Also, see St Louis premise liability injury lawyer - Faulty security - woman raped in own apartment.

(1) Special Relationship or Circumstances:

As stated above, for a Missouri personal injury claim based on landowner liability for the criminal act of another, there must be a special relationship or circumstances between the landowner and the victim. The special circumstances or relationship are decided by the court, not the jury, and are based on the facts and circumstances of each case.

Examples of how a special relationship established between apartment owner and tenant or guest for a Missouri personal injury claim for injuries arising from third party criminal act:

(A) Landlord made contractual or other representations or assurances to the tenant concerning security;
(B) Landlord had notice of potential danger because there have been previous instances of crimes of similar character on the premises;
(C) Landlord exposed the tenant to an enhanced risk of crime, and the landlord had notice of the risk due to the past instances of crime;
(D) Landlord retained the right to exclusive control of the security mechanism (i.e. outer security doors, window locks, other reasonable and ordinary security measures.)
(E) Landlord was negligent in maintaining the door and lock through which Plaintiff’s assailants gained access to her residence.

Missouri injury cases discussing special relationship or circumstances:

Stubbs v. Panek, 829 S.W.2d 544 (Mo Ct App. W.D. 1992)
Missouri personal injury case for third party criminal act involving a landlord/tenant relationship. A duty existed as the landlord retained the right to control the security door and was notified of its need for repair.

Brown v National Supermarkets Inc., 679 S.W.2d 307 (Mo. Ct App. E.D. 1984)
St Louis personal injury lawsuit for third party criminal act and injury occurring in business parking lot.

Vittengal v. Fox, 967 S.W.2d 269 (Mo App W.D. 1998)
Missouri personal injury claim from third party criminal act, in this case the court of appeals decided no special relationship was established based on the facts of the case and landowner was not liable for assault. I agree with this case finding, the landowner simply could not be expected to prevent this criminal act, under the facts of the case the Missouri personal injury lawyer simply could not plead facts proving there was faulty security or other negligence by the landlord.

Aaron v Havens, 758 S.W.2d 446 (Mo 1998)
St Louis personal injury case wherein the court found a special relationship because the fire escape allowed a criminal to climb up to a window and balcony doors, both which had faulty latches and locks. There was evidence that the landlord had knowledge of these conditions and failed to act.

Posted by Benjamin J. Sansone | Permalink | Email This Post

Posted In: Injury Law , Premises Liability

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