Missouri Injury Law Blog

Article by Erin Mace - Sansone Law, Staff

Above is a map showing each state’s current ban on text messaging while operating a motor vehicle. As you can see, more states are restricting all phone use while driving. 23 states and the District of Columbia ban all drivers from texting, while only 8 states ban novice drivers to use their phones for any purpose – talking or texting. Novice drivers are defined as younger than 18 or 21 years of age, depending on the individual state.

One of the largest personal injury wrongful death verdicts in a texting-while-driving wrongful death case was handed down in Texas. The defendant made 7 phone calls and sent 15 text messages during a span of 45 minutes before the accident took place. As a Missouri personal injury attorney firm, we are glad to see this ban happen. The family of the auto accident wrongful death victim is hoping to use this incident as a platform to make texting while driving illegal in the state of Texas. As you can see from the map above, they already have some restrictions on this – mainly directed towards novice drivers.

Missouri is currently one of the 8 states to have a ban on texting while driving for drivers 21 years of age or younger. If caught, they will be charged and given a fine not to exceed $200. Missouri is also working on a new bill (HB1202) that was first introduced in December of 2009. This bill will ban all drivers – no matter the age – of texting or talking on cell phones, without a hands free device, while driving on a paved road. As the bill reads, “A violation of this section shall be deemed an infraction and shall be deemed a moving violation for purposes of point assessment under section 302.302, RSMo.” The fine will also be $200. The only exceptions to this law would be if a driver is dialing a number in preparation of making a phone call or setting a GPS feature on the phone. Also, the provisions will not apply to a person operating:

(1) A motor vehicle on a private or public gravel road;
(2) An authorized emergency vehicle; or
[(2)] (3) A moving motor vehicle while using a hand-held electronic wireless communications device to:
(a) Report illegal activity;
(b) Summon medical or other emergency help;
(c) Prevent injury to a person or property; or
(d) Relay information between a transit or for-hire operator and that operator's dispatcher, in which the device is permanently affixed to the vehicle.
The bill has been referred to Public Safety and has yet to be calendared for a hearing. The proposed effective date is August 8, 2010. Rep. Jeff Roorda, D-Barnhart is in favor of the proposed revised law. However, as he stated, "The current law is incredibly subjective. Not only does (did) an officer have to look at a moving vehicle and determine whether the driver is 21 years of age or younger, but they must also determine if the device is being used for a prohibited or allowable use."

While it is clear that texting while driving is extremely dangerous, do we really need to add another law that will be almost impossible to enforce? Here are a few that keep Missouri’s finest quite busy implementing and kinda cover the effects of texting while driving: failure to drive in a single lane, improper passing, impeding the flow of traffic, following too close, failure to stop at stop sign, speeding, and so on ad nauseum – not to mention vehicular manslaughter charges. The Missouri Revised Statue 304.012. states, “Every person operating a motor vehicle on the roads and highways of this state shall drive the vehicle in a careful and prudent manner and at a rate of speed so as not to endanger the property of another or the life or limb of any person and shall exercise the highest degree of care”. Any person who violates this provision is guilty of a class B misdemeanor, unless an auto accident is involved, then is becomes a class A misdemeanor.

It was difficult enough to enforce when the law was directed to young adults under the age of 22 – some lucky souls just have good genes and look young. But now, with the exceptions like: dialing a phone number to make a call; receiving a call; and setting GPS locators, make it nigh impossible to make such a discretionary decision on the road. Why does texting-while driving wrongful death cases deserve more headlines, more punishment, and implementation of a new law than say….application of makeup-while driving being the basis for a wrongful death case? They both, technically, fall under the same definition and should be tried the same.

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Posted In: Injury Law , Automobile Accidents , Staff articles - Erin's Corner

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In a recent St Louis Wrongful Death Verdict, a family will not be able to collect on the $2.4 million dollar St Louis Missouri wrongful death judgment against a local dentist, at least not against any Missouri malpractice insurance coverage. The St Louis wrongful death victim, Henry Johnston, underwent sedation at James Bubenik’s dentist office and died four days later from complications. It should be noted six months prior to Mr. Johnston’s visit, another patient died from the same complications. Apparently, during the trial, the Johnston family somehow decided to or stipulated to go after Mr. Bubenik’s insurance company only. Medical Protective Co., the insurance company, filed a lawsuit against the Johnston family, arguing that it was not liable for any Missouri medical malpractice judgment “because the dentist didn’t cooperate with the insurer in preparing his defense.” Bubenik had repeatedly asserted his Fifth Amendment rights, refusing to testify in court or depositions. U.S. District Judge E. Richard Webber said this refusal nullified the medical malpractice insurance company’s duty to provide coverage to Bubenik. The 8th U.S. Circuit Court of Appeals affirmed this decision – unanimously. Attorneys for the Johnston’s family argued that “the language of the general cooperation clause was ambiguous because it didn’t specifically require an insured to give testimony.” The 8th Circuit rejected the argument.

There is much more to this case than what is divulged in the different articles written about this. However, it is apparent that the defense had a good hand delivered to them and played it well. From the aces literally handed to them from the Plaintiff’s attorney during the trial, to the doctor’s sleight of hand, and finally the Circuit Court of Appeals decisions, the defense bluffed their way to a $2.4 million win that was justly due to the deceased’s family.

I encourage you to read this wrongful death decision and realize just another reason why you need to find an experienced and skilled Missouri personal injury attorney to represent you in a wrongful death case. It distresses me that the case I mentioned above was lost because of “bad lawyering” or inexperience. Sometimes a “friend-of-a-friend” or the guy that helped you out of a speeding ticket isn’t your safest bet.

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Posted In: Injury Law , Medical Malpractice , Staff articles - Erin's Corner

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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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Authored by Sansone Law staff member, Erin Mace.

Wrongful Death lawsuit filed by parents of high school student killed in drunk driving incident.

I was pursuing some news sites relating to personal injury and came across this tragedy. Two young men, 16 and 20 years of age, were walking home from a birthday party and were fatally struck by a drunk driver.

The “adults” overseeing the birthday party chose to allow the teens to drink alcohol. The boys made the choice to break the law and drink. The drunk driver had just stolen a car from a deli around the block. The owner of the stolen car had left the car running to hurry in the deli, get his sandwich and leave. It was a night of bad decisions that culminated in two deaths. The drunk driver, who incidentally has a rap sheet a mile long, was laughing when he was picked up a block from the incident.

The parents of the 16 year old have filed a wrongful death lawsuit against not only the drunk driver who hit the teen and the parents who hosted the birthday party but also the man whose car was stolen.
One of the many lessons I am learning while working at this St Louis personal injury law firm is that just because you are emotionally hurt or angry – even justifiably so – that does not mean the source of that anguish was an illegal action. I am in complete agreement with holding the parents who held the party responsible, assuming the kids intoxication contributed to the incident, they are legally responsible. I am definitely in complete agreement with holding the drunk driver responsible. I think we can all agree on this one. However, I believe it is a stretch to try and hold the owner of the stolen car responsible. I’m not sure how the owner of the vehicle could have had any foreseeable knowledge of the evening’s outcome from leaving his car running outside a deli. This guy was actually the only one who did not commit a crime that night – but he is getting sued. I find it ironic that the parents of the victims place no responsibility on their own son who blatantly broke the law and instead chose to place even a small amount of blame on a guy that just wanted a sandwich. Talk about laughable lawsuits. Out of the four articles I read on this tragedy, not once did the parents even hint that their son’s decision had an impact on that evening. They are angry and sad and want to make everyone pay - and they got some bad legal advice. As far as the drunk driver goes – he was just selfish. He selfishly put the lives of more than just two teenagers at risk by choosing to operate a vehicle drunk. Perhaps if he would not have been let off of the countless other crimes he committed, he would not have even been there to kill those two kids.

Morals of the story: If you choose to break the law, prepare to suffer the consequences and not blame other people. Simon and Garfunkel were dead wrong. No one is a rock or an island to themselves. Everyone’s choices and actions affect those around you - even those of us that have no desire to be affected by your choices or actions. Finally, if your loved one is injured or killed hold the true liable party responsible. Contact a good attorney that specialized in wrongful death and can distinguish who is legally at fault.

St Louis personal injury lawyer Ben Sansone's comments on Erin's article:

I understand that it may be confusing why a personal injury lawyer filing a wrongful death case would add a party like the owner of the stolen car above. However, in tragic incidents like this there is sometimes little or no insurance coverage. I am willing to bet the drunk driver has few assets, hopefully he at least had auto insurance. I believe the personal injury lawyer in this drunk driving wrongful death case is properly representing his client by initially investigating and naming all parties that may be responsible. I am sure that the family and the attorney have no interest in punishing the car owner and would almost certainly never attempt to collect over and above his insurance policy limits. If the facts all come down that the owner was simply was getting a sandwich, any competent insurance defense lawyer will ultimately get the case dismissed or prevail at trial.

Posted by Erin Mace | Permalink | Email This Post

Posted In: Wrongful Death , Staff articles - Erin's Corner

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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. But 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 on the field, preparing to charge the innocent and weak defendant (dollar sign appropriately painted on his back), while hundreds of personal injury attorneys stood salivating, with calculators in hand, eagerly cheering Joe on.

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 are visiting this site, 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 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.

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I’m new to the Missouri and Illinois personal injury law firm known as Sansone Law, LLC and new to personal injury law. I am also the new legal assistant to Mr Sansone and will be 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 boss you 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 guess 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.

Posted by Erin Mace | Permalink | Email This Post

Posted In: Staff articles - Erin's Corner

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