Traverse City Personal Injury Lawyer - northern michigan

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

Unpaid Overtime Hours - a rising trend.

Timothy Smith — Wed, 25 Feb 2009 15:58:07 GMT

As the recession continues, it seems that we're seeing more and more employers getting into trouble by failing to pay overtime. As times get tough for area businesses, cutting overhead by limiting overtime is one way to increase your cash flow. But to force your employees to work for straight pay when overtime pay is owed.... well, that's illegal.

One angle we're seeing is employers who classify an employee as being "exempt" from overtime when in fact, they are "non-exempt" employees. Exempt employee classifications would include executives, administrators, professionals, outside sales persons or independent contractors. These employees are exempt from overtime pay. But, just because an employer calls you an "administrator" doesn't mean you are..... The title may sound nice and even impress your friends, but wouldn't you rather have time and 1/2 if you're working overtime.

We're also seeing area employers forcing employees to work "off the clock". Employees are asked to not record the time they actually worked or to work through their break or meal time. Other violations include:

1. failing to pay overtime for travel from shop to work-site and back,

2. not paying OT for time spent working while traveling,

3. failing to pay OT for attendance at lectures, training and meetings, or

4. failing to pay OT when the employee is required to arrive early to make necessary preparations for work.

Often times, the employee just does what is asked because they are just thankful to have a job and they don't want to rock the boat. There is a fear that if the employment boat is rocked, they might get fired. But the law protects you from that type of retaliatory behavior. It is illegal for employers to retaliate against employees who demand to be paid the OT that they are due.

Lastly, keep an eye out for employers who do any of the following:

1. deny OT pay because they say you didn't get permission or approval in advance,

2. incorrectly calculate OT pay by carrying one week's OT hours over into another week, or

3. grant employees time off in lieu of overtime pay.

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

The Lilly Ledbetter Fair Pay Act and the Paycheck Fairness Act: timely help for employees

Timothy Smith — Mon, 12 Jan 2009 11:28:54 GMT

The Lilly Ledbetter Fair Pay Act and the Paycheck Fairness Act have reached critical mass in Congress and looks to become law under our next administration. So, what are they and how does this affect you?

The Lilly Ledbetter Fair Pay Act was named after a female employee at Goodyear Tire named, Lilly Ledbetter. She had worked for Goodyear for nearly 18 years when she found out that men at the company, who did the exact same job, were being paid more money for the same work.

Well that doesn't seem fair?

Lilly didn’t think so either, so after talking with her bosses failed, she filed suit in 1998 alleging discrimination in pay based on gender which was prohibited by the 1964 Civil Rights Act. She alleged that Goodyear, as far back as 1992, was paying her less than men and it was discriminatory.

Goodyear argued that the 1964 Civil Rights Act required a claimant to file their claim within 180 days of the alleged discriminatory act and that if it occurred first in 1992, she was too late. Since she filed in 1998, Goodyear asked the court to throw her case out.

Lilly responded with common sense…… How was it possible to file in 1992 when she didn’t find out that her employer was discriminating against her till 1998?

The case wound it’s way up to the highest court of the nation, the U.S. Supreme Court. The Supreme Court in 2007, interpreted the Civil Rights Act of 1964 to hold that Lilly had 180 days, whether she knew about the discrimination or not. Our congress took immediate action to correct what they felt was a legislative error in the original act.

Congress felt that each and every time an employer discriminates against an employee by paying them less due to gender, that this was discrimination and a violation of the act. Accordingly, the Lilly Ledbetter Fair Pay Act will restore the long standing rule that each and every discriminatory paycheck is a violation. This means that employees won’t be punished when their employer hides the discriminatory activity from them for more than 180 days which, under the old rule, would insulate them from any claim.

The Paycheck Fairness Act is another act that will level the playing field between employees and employers. This act will amend the 1963 Equal Pay Act and strengthen current laws prohibiting wage discrimination. It will also require that the federal government become more pro-active in identifying and prohibiting wage discrimination.

Once enacted, the Paycheck Fairness Act will strengthen the 1963 Equal Pay Act in the following manner:

1. It will strengthen the remedy provisions of the act to provide greater punishments for those employers that discriminate.
2. It will mandate that the EEOC survey available pay data and issue regulations which will increase their ability to discover violations of the law and improve their ability to enforce the laws.
3. It will bar employers from retaliating against employees who share wage information with fellow workers. Some companies actually do this! How else will an employee know if they are being discriminated against if they can’t ask a co-worker, “How much you getting for this job?”
4. The Act will mandate collection of gender-based information in the Current Employment Statistics survey and will standardize an analysis of systematic wage discrimination which will become an important tool for detecting violations in gender based wage discrimination.

As our economy continues to suffer, we are seeing more and more employers cutting costs at the expense of it’s employees. These two important bills, the Lilly Ledbetter Fair Pay Act and the the Paycheck Fairness Act, will give employees the tools they need to identify discrimination when it’s occurring and give them the opportunity to take corrective action against their employers.

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