Traverse City Personal Injury Lawyer - death

Survive Black Friday?

Timothy Smith — Sat, 28 Nov 2009 14:19:54 GMT

A number of years ago, I represented a young woman who was injured by a crowd that had gathered outside a Wal-Mart in Cadillac Michigan after reading about a new home video gaming system that was being released. My client was 7 months pregnant and had hoped to surprise her husband with a new video gaming system for his birthday.

By 5am, the crowd was nearly 100 and the Walmart had advertised that quantities were limited to 25 gaming units. As the store approached the opening hour, the crowd was getting restless. Bullies in the back of the line began pushing forward and tempers began to flare. You'd think that Wal-Mart would have recognized this and set up a system to ensure that the sale of the systems occurred in a safe manner to the 25 first individuals in line. Simple measures such as handing out wristbands to the first 25 or any number of approaches would have spared the crowd from what came next.

At the time of the opening, a Wal-Mart employee came forward and simply unlocked the front door. The crowd surged forward as it became every man and woman for themselves. My client, who was 8th person in line, was pushed to the ground and trampled by the folks behind her.

By the time the dust settled on the stampede, my client lay on the floor of the entry to Wal-Mart - bruised, battered and going into labor from the trauma. Emergency medical technicians from Cadillac were called to the scene and transported her to Cadillac Mercy Hospital where the doctors were able to stop the labor. She wasn't able to have any x-rays of her injured pelvis, hips and back because of the risk to the fetus. She spent the next 2 months on her back wondering if her unborn child was going to be okay.

When I sent my first notice of claim letter to Walmart, they responded by denying that their store or it's employees had done anything wrong. Suit was filed against Walmart in Wexford County Circuit Court. I was able to secure a copy of the security tapes from the front door. The tapes showed the Walmart employees laughing at the crowd gathered outside and then laughing at the stampede that ensued once the front doors were unlocked. The video was very similar to this YouTube clip from a Black Friday Stampede in Grand Rapids Michigan.

http://www.youtube.com/watch?v=aeSgBL7gpAk

It's shocking to me that this happens every year at the Big Box stores like Wal-Mart, Sam's Club, Best Buy and others. Even more shocking are the security regulations that each store has drafted and implemented which are rarely followed when the store is releasing a new limited quantity gaming system or on the morning of Black Friday. Through extensive discovery [which Walmart fought every step of the way], my office obtained internal safety rules and regulations that, if followed, could have prevented my client's injury.

What's even more shocking is that Wal-Mart and other big box stores not only endanger the lives of their customers, but evn their employees aren't safe during these Black Friday Riots. In fact, one Wal-Mart employee was killed during one of the Black Friday riots like you just watched above.

http://www.youtube.com/watch?v=5S6UKRaM5fA

Wal-Mart called this death of it's employee "an unfortunate event". That's an understatement. Every big box store knows that Black Friday brings big crowds and that big crowds can cause big problems. So why is it that every year we have people getting injured and even killed while trying to shop? Why aren't stores following the rules and regulations they themselves have implemented to provide a safe shopping experience for it's customers? I suppose we can answer that question in a single word - Profits. Proper security measures are expensive to implement....

My client was one of the lucky ones. The money that Wal-Mart paid to her at the conclusion of the litigation more than covered her medical bills and her pain and suffering. More importantly, after laying in bed under doctors orders for 2 months, her child was born healthy. She still has days where she has aches and pains in her pelvis and low back from where she was trampled, but she knows that it could have been worse. Much worse.

Originally posted at InjuryBoard by Timothy Smith

Dog Bite Basics in Michigan

Timothy Smith — Tue, 24 Nov 2009 15:13:50 GMT

DOG BITE

In Michigan, when a dog bites a person, the person must sue the owner of the dog within three years from the date of the dog bite under MCL 600.5805(10). Proper plaintiffs would include:

· Person the dog bit and injured, as well as their spouse, child, or parent;

· Personal representative of the person killed in a dog attack, who would be a stand-in for the deceased and could recover on behalf of the dead person’s estate.

The proper defendant in a dog bite case includes:

1) the “registered owner” of the dog, or person who has represented him or herself to be the “owner”;

2) the “keeper,” or the “temporary caretaker” of the dog.

The jury will determine the fact question of whether the defendant having possession of the dog rises to “keeper” status and is usually defined as exercising the type of control over the dog that the owner would exert.

Three common potential causes of action for dog bite cases include:

1) The dog bite statutory action, applying to an owner of a dog

The good news in these cases is that generally if a dog bites a plaintiff, the plaintiff must only prove these facts:

· The dog bit the plaintiff and the plaintiff was injured as a result;

· The plaintiff did not provoke the bite, typically a fact question for your jury;

· The defendant owned the dog; and

· The plaintiff was lawfully at the location where the dog bite occurred.

2) Common law strict liability action against the dog owner and “keeper”

When the dog bite occurs while the dog is under the control of an owner or a “keeper,” who knew or should have known of the dog’s dangerous propensities, the plaintiff must prove in addition to the facts listed above.

3) Common law negligence

The same facts as listed under number 1 above plus that the owner or “possessor,” or temporary caretaker of the dog had the dog long enough to know of the dog’s dangerous propensities, breached a duty to the plaintiff of controlling the dog, and therefore was negligent.

More good news for Michigan victims related to defense of dog bite cases:

· Provoking the dog, an issue the jury will decide, is the only defense under a statutory claim

· Reacting to a dog’s viciousness does not constitute provocation under the statute.

If you or someone you know has been attcked by a dog, click here for a prior article I authored on how to treat bite injuries.

Originally posted at InjuryBoard by Timothy Smith

Disbursing Funds under Michigan's Wrongful Death Statute

Timothy Smith — Sun, 22 Nov 2009 15:01:22 GMT

Recently, we've resolved a number of wrongful death cases here in Northern Michigan. In Michigan, these types of cases are governed by a statute that controls every aspect of the case, including how the recovered funds are distributed to the family members that survive the deceased. One of the families that I represent asked me to explain to them how the distribution of the monies we recovered would take place.

In order to fully answer their question, I turned to Andrew Shotwell, a probate specialist with my office here in Traverse City, Michigan. I asked Andrew to draft an informative letter to the family to answer the question and thought I'd share the substance of it with my readers in case they were facing a similar issue.

The procedure and applicable law depends on various facts. First, if a complaint has been filed in circuit court, the distribution is governed by MCL 600.2922. Essentially under that statute, if no conscience pain and suffering was present or to the extent an award is for other than conscience pain and suffering, the circuit can distribute under 600.2922. The Court approves distributions “to those…who suffered damages and to the estate of the deceased for compensation for conscious pain and suffering, if any, in the amount as the court or jury considers fair and equitable considering the relative damages sustained by each of the persons and the estate of the deceased.”

If there is conscience pain and suffering awarded, the award passes to the estate and is distributed in accordance either with the decedent’s last will and testament, or by intestate succession [this is the law that governs how an individual's estate passes when they have no will]. There is no precise formula for determining the damages for the loss of a loved one’s society and companionship. In re Claim of Carr, 189 Mich App 234, 471 NW2d 637 (1991). The measure of damages is gauged by the relationship the decedent had with the claimant, including the amount of time the decedent and the claimant spent together. McTaggart v Lindsey, 202 Mich App 612, 509 NW2d 881 (1993).

If a complaint has not been filed and settlement has been reached, the distributions occur pursuant to MCL 700.3924, which is similar to 600.2922, requiring the distributions to be fair and equitable. The persons entitled to notice and an opportunity be heard in a wrongful death case under both 700.3924 and 600.2922 are as follows:

1) The deceased's spouse, children, descendants, parents, grandparents, brothers and sisters, and, if none of these persons survive the deceased, then those persons to whom the estate of the deceased would pass under the laws of intestate succession determined as of the date of death of the deceased.

2) The children of the deceased's spouse; and

3) Those persons who are devisees under the will of the deceased, including beneficiaries of a trust under the will, those persons who are designated in the will as persons who may be entitled to damages under this section, and the beneficiaries of a living trust of the deceased if there is a devise to that trust in the will of the deceased.

In any case, an estate would need to be opened with the probate court in the county of residence for the decedent. If a will exists, it is submitted to probate and a Personal Representative appointed, as nominated in the will. If no will exists, or the will fails to nominate a Personal Representative, the Court will appoint one according to the priority schedule, starting with the surviving spouse. Notice is required to be sent to all the people indentified above as having an interest in the distribution.

Once a settlement or an award has been granted, if all of the potential distributees are competent, nondisappeared adults, they may stipulate to a specific distribution scheme. If all of the interested persons stipulate to a proposed allocation, the court must order that distribution. However, if a disagreement exists, a hearing would be required.

If a minor is involved a guardian ad litem may be required to advocate on the minor’s behalf.

If after reading this summary of the approaches to distribution under the wrongful death statute, you still have questions, feel free to shoot me an email or call with further questions.

In my next article, I'll address and give some examples of what happens when the family can't agree on the distribution and an evidentiary hearing is required.

Originally posted at InjuryBoard by Timothy Smith

Outrage in Bay City over Marvin Schur's death.

Timothy Smith — Tue, 27 Jan 2009 13:37:08 GMT

I just found out that Marvin Schur was a World War II vet. Is this how we treat our veterans?

The citizens of Bay City are up in arms over the callousness shown by their City Managers.

Click here to read the outrage.

Click here for my first article on this tragedy.

Click here for updates on the story.

To call Governor Granholm to express your outrage: (517) 373-3400

To write to Bay City and express your outrage:

City of Bay City
Treasurers Office
301 Washington Ave.
Bay City MI 48708-5866

Originally posted at InjuryBoard by Timothy Smith

Update on Marvin Schur's tragic death

Timothy Smith — Tue, 27 Jan 2009 13:21:57 GMT

If you read my prior post on this tragedy in Bay City, I found some updated information about how and why this happened.

1. The "limiter" device had been in use through DTE in Metro Detroit, but they stopped after the Michigan Public Service Commission recommended against their use.

2. This is the first time in 18 years that the deputy chief medical examiner in Oakland County performed an autopsy on someone who died from hypothermia inside a building.

3. The limiter shut power to the residence off shortly after installation and was never reset.

4. Neighbors of Marvin Schur believe that the workers from Bay City who in stalled the "limiter" failed to advise him on resetting it if it did shut off.

5. Neighbors of Marvin Schur believe the 93 year old gentleman may have had difficulty understanding directions regarding the limiter if the Bay City workers tried to explain the device due to possible early stage dementia.

6. When Marvin Schur's body was discovered by the neighbors, the overdue electrical bill was sitting on his kitchen table......... with some cash clipped to it so that he could pay his bill.

I light of the gross negligence by Bay City officials, who many say are directly responsible for Marvin Schur's death, the officials are probably glad that Mr. Schur was an elderly widower who had no children. They probably are quietly hoping that if there are no surviving family members, that there will be no-one to hold them accountable in a court of law for killing Marvin Schur.

In Michigan, Marvin Schur's estate would have the right to bring an action against Bay City and those that were responsible. The personal representative would be named in his will. If Marvin died intestate [without a will], then any descendent's of his parents - such as nieces and nephews of Marvin Schur- would have legal standing to bring the claim and hold the City accountable.

Originally posted at InjuryBoard by Timothy Smith

Bay City Man - Marvin Schur- Freezes to Death

Timothy Smith — Tue, 27 Jan 2009 11:18:13 GMT

This was the headline the greeted me this morning in the Traverse City Record Eagle. I assumed from the title that it was going to be a tragic story of an Alzheimer's patient who wandered off or even an ice fisherman that fell through the ice, but it was worse.

This happened in the man's own home....... after his electrical company shut off all power to his home. Unbelievable that a company would do this as we move through the coldest winter that any of us can remember.

The man was 93 years old. His name was Marvin Schur. His neighbors discovered his frozen body on the 17th of January.

A representative of the Bay City Municipal electric company, Robert Belleman, told the associated press that the Marvin Schur had an over due electrical bill of over $1,000.00.

Evidently, when Marvin Schur got behind in his electrical payments, the city sent a worker out to install a "limiter" which restricted the amount of electricity to the home. The device not only limits power to the home, but it will blow out like a fuse if consumption levels rise past a set level. Then, power cannot be restored to the home until the device is reset.

Bay City Manager Robert Belleman said that city workers will install the limiter on the house and keep it there for 10 days. If the homeowner hasn't brought the account current within that time frame, power is shut off completely. In this case, the limiter was installed on January 13th and Mr. Schur was found dead on the 17th., well before the 10 day period had run.

Even worse, Mr. Belleman and Bay City couldn't confirm whether or not any Bay City worker made personal contact with Marvin Schur to explain to the elderly gentleman what was happening and to warn him that the limiter could suddenly, and without warning, shut off all power to the house. Another conern is whether at 93 years of age, Marvin Schur had the mental capacity to understand what he was being told.

This should never happen. Period. We're lucky in the Grand Traverse region to have an organization like the Father Fred Foundation who can help individuals who are stuck in a similar situation to Marvin Schur.

If you read this and want to make sure what happened in Bay City doesn't happen here, make a donation to the Father Fred Foundation by clicking here. Your small donation can make sure that families without food can eat; that families without money have heat, and families whose children are cold, have winter coats, hats and boots.

If you are reading this and need help, click here and get immediately in touch with someone at the Foundation.

Lastly, everyone needs to keep an eye out for our neighbors, especially, our elderly neighbors like Marvin Schur. This is a brutally cold winter coupled with a brutal economic situation, but if we look out for each other, we can make sure that what happened to Marvin Schur never happens again.

Originally posted at InjuryBoard by Timothy Smith

Slip and Falls on Black Ice in Michigan

Timothy Smith — Mon, 19 Jan 2009 10:27:57 GMT

Businesses bombard us with promises of a shopping experience loaded with deals, specials and savings. Whether it's Wal-Mart, Best Buy, or the local Five and Dime, you would think, as consumers, that the same businesses that have invited us to their premise for deals galore would also make sure that they were providing us with a safe shopping experience.

Here at Smith & Johnson, we have represented individuals who have been trampled at Sam's Club in the early morning when the doors opened for a big sale. We have represented shoppers who have had merchandise fall on them from over-stacked shelves many feet above their head. We have also represented folks who have slipped and fell on floors that weren't properly maintained by the store owners.

But, over the last 15 years or so, your rights as a shopper to a safe shopping experience have slowly been eroded by Michigan's Court of Appeals and Supreme Court. Supreme Court Justices Young, Corrigan and Markman have gone out of their way to make sure that store owners in this day and age are required to do very little to provide a safe shopping experience for the people they invited to their store. You'd think things like shoveling snow out of the entry way, salting an icy sidewalk in front of the store, or repairing cracks in the tile of their aisle ways that might trip up a shopper - you'd think these would been maintained as a matter of courtesy, if not common sense.

But, our Supreme and Appeals courts have found that nearly every condition created by a store owner is "open and obvious" and it's the shopper's own damn fault for getting injured. These courts have even held that a blind man who slipped and fell in the bathroom of a fast food restaurant should have seen the puddle of water even though the restaurant failed to properly maintain and keep clean it's bathroom!

This sets the stage for slip and fall cases that involve black ice. If you live in Michigan, you know that black ice is that thin sheet of ice that forms over the top of a floor or roadway and is basically invisible to the naked eye. In fact, according to Benzie County Circuit Court Judge James M. Batzer,

"It seems to me that what sets so-called black ice apart in it's capacity to be treacherous is that it's not visible".

Accordingly, how can it be "open and obvious" if you can't see it?

This question was answered for us by the Michigan Court of Appeals on November 6, 2008. The opinion was authored by Judge Jane M. Beckering, a recent appointee to the Appellate bench, who has been an amazing breath of fresh air and common sense to the Michigan court of Appeals. The case is entitled Slaughter v. Blarney Castle and it involves a patron of that gas station who slipped and was injured when she fell on black ice in their parking lot.

Prior opinions from the Supreme Court and Court of Appeals have held that snow is open and obvious, slush is open and obvious, and snow covered ice is open and obvious. What these prior courts have said is that Michigan residents should understand that when it's winter, everyone should know to watch their step or they're going to get hurt. The problem with this is that store owners now have no duty to shovel their walks, salt their steps or take any action to ensure that their shoppers have a safe experience.

In the Slaughter case, Judges Beckering, Borello and Davis addressed the issue of whether black ice, that isn't covered by snow is open and obvious. They held it wasn't.

Finally, a decision that is based on good old common sense. Judge Beckering held that every case that involves a store owners failure to salt or maintain which leads to a fall on black ice should be analyzed on it's own facts. She held that the "open and obvious" doctrine shouldn't bar black ice claims unless it can be shown that "an average person of reasonable intelligence would have been able to discover the danger and risk upon casual inspection".

That makes sense because black ice, by it's own definition, can't be seen. Judge Beckering wrote:

The overriding principle behind the many definitions of black ice is that it is either invisible or nearly invisible, transparent, or nearly transparent. Such definition is inherently inconsistent with the open and obvious doctrine. Consequently, we decline to extend the doctrine to black ice without evidence that the black ice in question would have been visible on casual inspection prior to the fall or other indicia of a potentially hazardous condition.

Now, thanks to the common sense of Judges Beckering, Borello and Davis, store owners will at least be required to salt and maintain their premises to protect invitees from black ice, even if the law allows them to let snow and slush pile up around their store.

The moral of this legal story is to keep your eyes peeled when you are out shopping. The store owners need to do little to protect you from the dangerous conditions that may be surrounding or within their premise. According to Michigan courts, unless it's black ice, you are on your own......

Originally posted at InjuryBoard by Timothy Smith

Teen Driving Tips

Timothy Smith — Fri, 16 Jan 2009 17:04:35 GMT

I've got one and two more on the way. Teens that is.......

Next summer my oldest will take driver's education. It's a little scary. I saw an interesting statistic recently that really opened my eyes to what I'm getting myself into. Evidently, your average 16 year old soccer player has 1,500 hours of instruction in soccer by the time they reach that age. But, we're handing these same kids drivers licenses and unleashing them on the road with only 50-100 hours of instruction.

This is disconcerting for a number of reasons:

1. In 2006, drivers age 15-17 were involved in approximately 974,000 accidents that injured 406,427 people and killed 2,541.

2. Auto accidents are the leading cause of death among U.S. teenagers as it accounts for 36% of all deaths in that age group according to the Center for Disease Control and Prevention.

3. The Insurance Institute for Highway Safety has claimed that the 16-19 year old age bracket has a greater risk of an accident than any other age group.

4. The risk of an auto accident for a 16 year old is double that of a 18 or 19 year old.

5. This rate of injury for 16 years old increases every time another passenger is placed in the vehicle.

6. Lastly, 33% of teenage drivers are involved in a car crash in their first year of driving and somewhere in the United States, a teenage driver is killed every 6.5 minutes and injured every 55 seconds according to teensafety.com.

So what's a parent to do?

More instruction is one thing. Some options would include:

1. The Mid-Ohio School in Lexington KY which offers a Honda Ten Defensive Driving Program and teaches the dynamics of driving including wet braking techniques, emergency lane change maneuvers, and a skid drill that simulates driving on ice, snow and rain.

2. Tire Rack's Street Survival Program will be held in 50 cities across the country through November 15th. It costs $60 and is open to permitted and licensed drivers between the ages of 16-21.

3. Driver's Edge - another touring school which is free and blends classroom and on course driving experience with a focus on real life emergency situation. It was founded by former race driver Jeff Payne.

Another helpful tool to reduce the risk to your teenager is a Graduated Drivers License program. All states have it to some degree, but perhaps your own family implementing one might help even more.

There should be a period where they can only drive under the direct supervision [in the car] of an adult. Then, once you're comfortable [and the State you live in allows it] allow the teen an intermediate period where they can drive alone under limited circumstances such as during daylight hours and with no passengers. Lastly, when you as the parent are comfortable with your teens skills and maturity behind the wheel, full privileges.

I think the bottom line for parents is you have to be involved. You can't rely on some course by the State and a few hours behind the wheel to properly prepare your teens for the dangers of driving a vehicle. Know where and when your teens are driving. Get involved. It may be the difference in whether or not your teen sees their 20th birthday.

If any readers have other good ideas for parents, I'd love to hear them.

Originally posted at InjuryBoard by Timothy Smith

Stork Craft Baby Cribs Recalled

Timothy Smith — Thu, 15 Jan 2009 16:33:49 GMT

Stork Craft Manufacturing of British Columbia, Canada has recalled 1,000,000 cribs that had been sold between May 2000 and last month here in the U.S. and Canada. The Consumer Public Safety commission has reported 10 incidents were mattress support brackets have detached which created a danger of trapping and or suffocation for the infant.

If you are using a Stork Craft crib in your home, please stop immediately as they can be very dangerous.

Contact Stork Craft toll-free at (866) 361-3321 anytime to order the free replacement kit .

Originally posted at InjuryBoard by Timothy Smith

Safe Driving Tips When Sharing the Road with Semi's

Timothy Smith — Thu, 08 Jan 2009 10:49:17 GMT

A young Traverse City resident recently lost her life when the car she was riding in was involved in an auto accident with a semi truck on Garfield Ave. In any accident between a car and semi truck, the car is typically going to lose. With roads as icy as they are this time of year, drivers need to take extra caution when traveling on area roads and highways, especially when there are large trucks sharing the roads with you.

The Federal Motor Carrier Safety Administration [FMCSA], a division of th U.S. Department of Transportation, has a website dedicated to safety tips for drivers that share the road with semi trucks. Click here for the site.

Here's a quick recap of some of the tips offered by the U.S. Department of Transportation.

1. Cutting in front of a semi truck or a bus can cut your life short

Because busses and trucks take longer to stop than a car, you may create an emergency braking situation for vehicles around you if you suddenly cut in front of them. If, by quickly cutting in front of a semi, you force it to attempt to stop quickly, this might cause a serious or even fatal accident. FMCSA cautions drivers that are passing semi trucks and urges them to wait until you can see the front of the truck in the rear-view mirror before pulling back into that lane of travel. This will avoid emergency braking conditions.

2. Always wear your seat belt

The FMCSA advises that your seat belt is your best protection in case of a crash, especially when that crash involves a a semi truck. If you are struck from behind by a semi, or any other vehicle for that matter, only your belt can prevent you from being injured while you are rocketed about the vehicle. I had a case a few years ago where a client who was belted was struck from behind by a dump truck that was traveling just 40 mph. But, because of the mass of the truck, as her car was propelled forward, her seat back collapsed and she shot out from under the lap belt and into the back seat. The EMT's found her unconscious in the back seat [she struck her head on the rear roof area] and they couldn't figure out who had been driving the vehicle. This is one of the dangers of a car crash with a semi truck. With their mass, they don't have to be going that fast to cause alot of damage. In the case described above, a 40 mph dump truck literally shot the car right out from under my client. Even though the seat belt didn't protect my client in that case, FMCSA says that wearing the belt is the single most important thing you can do to protect yourself in a crash with a semi.

3. Watch out for blind spots

Every semi truck has a blind spot. Cars do as well, but the blind spot on a large truck is quite a bit bigger. FMCSA refers to these blind spots as 'No-Zones" meaning don't linger in these spots. If you can't see the semi driver's side mirrors, he can't see you. Many drivers are injured because a trucker simply couldn't see them. Click here for an example of where these zones are.

4. Look out for the "Squeeze Play"

Because of their length, semi trucks need to make wide right turns. Often times, a semi driver will swing wide left before initiating a right hand turn. If you have driven up into the curbside lane between a truck and the curb and that semi driver is going to turn right, you're going to get "squeezed" between the truck and the curb and could suffer a serious injury as a result. Pay attention to a semi's turn signals and give them plenty of room.

For other tips - many of which are obvious: don't drink and drive, don't drive aggressively, stay attentive and off your cell phone - visit the site link above. Or this one.

I know that these tips couldn't have saved the life of Kara Kirchler, the young woman I mentioned at the beginning of this piece. The Traverse City Record Eagle reported that the driver of the car she was in crossed the centerline and hit the semi head-on. But this horrible story should serve as a reminder to the rest of us to be careful when driving area roads, especially when there are semi's or other large trucks about.

Originally posted at InjuryBoard by Timothy Smith