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Iowa State Supreme Court Changes Age-Old Law Affecting Injury Suits

Sarah Cool — Fri, 12 Jun 2009 11:18:17 GMT

The Des Moines Register is reporting on a change in the law initiated by the Iowa Supreme Court. Before last week, a centuries-old provision distinguished between different classes or categories of people who were injured on others’ property. Those classes of people – people who are invited onto property (“invitees”), those people who are merely allowed on the property (“licensees”), and those that are not permitted on property (“trespassers”) – used to be treated differently. Invitees could sue over dangers that should have been known to the property owner, but licensees and trespassers could not. Although trespassers still do not have standing to sue a property owner in most circumstances (there are exceptions not discussed here), the difference between invitees and licensees has been eradicated.

In a ruling delivered on Friday, the Iowa Supreme Court reviewed the case of Valerie Koenig, a Des Moines resident. She had injured herself when she tripped over a carpet-cleaner hose in her son’s house, and sued. When the jury was instructed in her case, they were told about the difference between licensees and invitees. Koenig was a licensee, and as a result, she lost in court. But she appealed, arguing that distinguishing between invitees and licensees was outdated and did not fit the needs of a modern society. The highest court in the state agreed. Justice Brent Appel stated that the change in the law reflected “higher valuation of public safety over property rights.” Koenig’s lawyer remarked that he did not believe that the ruling would change how businesses and individuals act. However, the change in the law may serve as a good reminder to all that property owners should care for hazardous conditions on their property and warn those that visit the property of any potential danger.

The full impact of the ruling will likely reach past the jury box, where the discarded distinction between invitee and licensee has confused many. What impact it will have, and whether this kind of ruling might entice the Supreme Court to discard other “out-dated” distinctions remains to be seen.

Originally posted at InjuryBoard by Sarah Cool

Do I Owe ANY TAXES From My Personal Injury Settlement or Lawsuit Verdict?

Craig Kelley — Fri, 25 Apr 2008 01:19:00 GMT

Today is Tax-PAY day, the day that millions of Americans hurry to the post office in the age-old tradition of filing taxes right at or on the April 15th deadline, IF they owe. The rest of the American public has long ago filed their return early, if they are getting refund!

The question almost always arises from our current and prospective clients as to what their tax liability is for a settlement or lawsuit victory.

Although the correct way to deal with any questionable tax situations is to visit a qualified tax professional or accountant, the chart below is an excellent starting guide on what areas, if any, a person can expect to owe taxes as a result of settlement or trial. The Federal law regarding damages obtained in a settlement or trial changed in 1996, and many of the changes have not been tested yet in a Tax Court.

Here is the chart for your reading pleasure:

	Taxable
Type of Recovery or Settlement	Yes	No
Punitive Damages:
Of All Types, Even If Physical injury Is Involved	X
Special Wrongful Death Circumstances		X
Compensatory Damages For:
Emotional Distress (or any other form of mental anguish)	X
Physical Manifestation of Emotional Distress	X
Physical Injuries Accompanied By Emotional Distress		X
Wrongful Death		X
Lost Services of Injured Offspring		X
Serious Emotional Distress Caused By Tortious Physical Contact Where There Is No Substantial Bodily Injury		?
Lost Wages "On Account Of" Physical Injury Or Sickness		X
Lost Consortium Due To Spouse's Physical Injury		X
Bystander Claims of Negligent Infliction Of Emotional Distress		X
Lost Personal, Business, Or Credit Reputation	X
Wrongful Discharge And Other Common Law Employment Tort Theories Without Resulting Physical Injury Or Sickness	X
Medical Expenses Incurred, Including Those Expenses Attributable To Emotional Distress		X
Attorney's Fees Associated With Nontaxable Damages		X
Pre-Judgment and Post-Judgment Interest	X
Interest Component of Otherwise Nontaxable Structured Settlements		X
Interest Earned On Lump Sum Judgments or Settlements	X

STATUTORY RECOVERIES

Most of the principles on which the above table is based also apply to the taxability of compensatory payments under various statutes listed below:

	Taxable
Type of Statutory Recovery	Yes	No
Survival
Worker's Compensation Benefits		X
Retaliatory Discharge Claims/ Filing For Worker's Compensation	X
Supplemental Disability Benefits to Injured Police/Firemen		X
Teachers' Sick Leave Payments		X
Certain Claims For Injury In Federal Government Active Service		X
Age Discrimination In Employment Act (ADEA)	X
Scheme To Reduce Pension Benefits Under ERISA	X
Discrimination Under Civil Rights Act of 1866 (Section 1981)	X
Discrimination Under Title VII of Civil Rights Act of 1964, as amended	X
Americans With Disabilities Act of 1990, as amended	X
Fair Housing, Under Civil Rights Act of 1968	X
Fair Labor Standards Act	X
Deprivation of Constitutional Rights, Privileges Or Immunities	X
Equal Pay Act of 1963 ("EPA")	X
Texas Commission on Human Rights Act of 1983	X

The IRS also has very thorough literature available on its website.

Tax consequences are just another one of MANY reasons why you should hire a Personal Injury Attorney to handle your claims AND draft your settlement release documents.

Originally posted at InjuryBoard by Craig Kelley

Early Model Year Dodge Durango May Have Front Suspension Problems

Craig Kelley — Wed, 09 Aug 2006 01:59:50 GMT

The National Highway Traffic Safety Administration (NHTSA) is investigating 1998-2003 Dodge Durangos after receiving several reports of upper ball joint failures on the vehicles' front suspension area. According to the NHTSA, the upper ball joint failures have caused the wheels to fall off two different Dodge Durangos and the front suspension to collapse on two other Durangos. While the NHTSA has yet to issue a recall, a spokesperson for the safety organization revealed the agency has received over 750 complaints from Durango owners alleging defective front suspension ball joints.
A class-action lawsuit filed in North Carolina in March 2004 is demanding that Dodge immediately repair an unspecified number of Durangos. There are an estimated 450,000 model years 1999-2003 Durangos currently on the road in the United States. Plaintiff attorneys allege DaimlerChrysler knew of the defect years ago but failed to act on it.

If you have suffered such a problem, or an accident, with your Dodge Durango, please contact us at InjuryBoard.com

Originally posted at InjuryBoard by Craig Kelley

Iowa Pork Producers Assure Consumers: Swine Flu Has Nothing to do with Pork

Sarah Cool — Sun, 10 May 2009 23:10:04 GMT

The unfortunately named “swine flu” virus has dominated headlines across the country. But it was only recently that U.S. governments and agencies renamed the virus H1N1-influenza virus amid concerns that the use of the name “swine” was hurting pork sales. Bill Hall, the acting assistant secretary of public affairs for the Department of Health & Human Services, explained: “[t]here is no evidence at this time that swine in the United States are infected with this virus strain and therefore, this is not an animal health or food safety issue." In fact, Hall further explained that H1N1 was likely a combination of swine, bird, and human strains that had genetically mutated. Furthermore, there is no evidence that the H1N1 virus is transmitted by swine. Nevertheless, the media attention and in-apt name of the flu when it first emerged on the global scene has led many to avoid pork products.

Worldwide, there have been less than 1,000 confirmed cases of the virus, with only 286 being in the United States according to the World Health Organization. So far, there have been no reported or confirmed cases in Iowa or in its neighboring or nearby states.

According to the CDC and the U.S. Department of Homeland Security:

People cannot get the hybrid influenza from eating pork or pork products. Most influenza viruses, including the swine flu virus, are not spread by food. Eating properly handled and cooked pork products is safe.
There are no food safety issues related to the hybrid flu that has been identified, according to DHS Secretary Janet Napolitano.
Preliminary investigations have determined that none of the people infected with the hybrid flu had contact with hogs.
“This virus is different, very different from that found in pigs.”
The hybrid virus never has been identified in hogs in the United States or anywhere in the world.

The Iowa Grocery Industry Association has recently reported these facts. Additionally, the Iowa Pork Producers Association and National Pork Board have made efforts to reassure consumers that pork is, in fact, safe for consumption and that the H1N1 virus doesn’t originate from eating pork products.

Originally posted at InjuryBoard by Sarah Cool

Intersection Red-Light Traffic Violation Cameras: A Help, Hindrance (Causing MORE Accidents) and/or Unconstitutional?

Craig Kelley — Tue, 06 May 2008 08:21:54 GMT

Are they FAIR? They ticket the car owner, NOT the driver (they can't), and the violators receive civil fines, NOT criminal citations registered with the "Iowa Department of Transportation. The Iowa Supreme Court will hear all of the constitutional arguments and render a decision.

Do they work? Do people learn where these cameras are located, and avoid the "orange" light intersection throttle-through? Result: government coffers suffer from less ticket revenue. Even with less tickets and government revenue, the safety element (LESS intersection collisions) would seem to be a big remaining positive, but are they more safe?,

It ALSO appears that the result may be MORE REAR-END collisions as people slam on the brakes at yellow lights at camera-ed corners.

Do the cameras fairly raise funds for local and state governments while making intersections safer and cutting the number of dangerous T-Bone collisions at these intersections, OR unfairly target unsuspecting and unknowing drivers while causing more high-speed rear-end collisions as the knowing drivers, that are familiar with these intersections, slam on their brakes to avoid the cameras

Stay tuned

Originally posted at InjuryBoard by Craig Kelley

Kids, Crocs, Rubber Shoes And Flip Flop Sandals AND Escalators a Bad Mix

Craig Kelley — Sat, 26 Apr 2008 01:43:00 GMT

BE CAREFUL with your young ones, rubber shoes, and sandals and escalators!

THere have been many reports of injuries involving these shoe types and escalators, especially with children.

INJURYBOARD has reprinted some great escalator safety tips at this link:

BE SAFE at those malls and airports, or anywhere you see an escalator

Originally posted at InjuryBoard by Craig Kelley

Everything that Anyone Wants or Needs to Know About the Federal Employers Liability Act

Craig Kelley — Sun, 21 May 2006 01:49:57 GMT

My Firm, Inserra and Kelley, is the Union-picked Designated Counsel for Federal Employers Liability Act (FELA) claims in our Region of the USA. My Firm has authored and prepared an excellent primer and educational guide about the FELA for new hires on the Railroad and spouse or significant others of Railroad Employees who wnat to better understand the workplace law that covers their loved one

Full Presentation:

Originally posted at InjuryBoard by Craig Kelley

Nursing Homes are Understaffed - So Neglect, Abuse and Injuries Will Continue!?

Craig Kelley — Tue, 23 May 2006 01:33:24 GMT

Understaffing at nursing homes appears to be the underlying reason for continued problems and abuses according to a just-released national report examining nursing home abuse and neglect. The study, commisioned by the National Citizens Coalition for Nursing Home Reform.

"The Faces of Neglect: Behind the Closed Doors of Nursing Homes," commissioned by the National Citizens Coalition for Nursing Home Reform, gives a look-back at the events and conditions surrounding 36 residents of long-term care facilities in 12 states.

Nursing home neglect

It is obvious that there is no short-term remedy or solution to this growing problem in our society.

Originally posted at InjuryBoard by Craig Kelley

Toyota Recall

John Inserra — Wed, 30 Sep 2009 12:01:17 GMT

Just yesterday, Toyota released a safety advisory on their floor mats. There is potential for an accelerator pedal to get stuck in the full open position because of an incompatible or unsecured driver’s floor mat. A mat can become unsecured from a driver going at a high rate of speed which could make it difficult to stop the car. This can then lead to a crash causing serious injury or even death.

The safety advisory said that Toyota is asking owners of Toyota and Lexus models to take out any removable driver’s floor mat. Toyota also advices these owners to not replace it with any other type of floor mat. The following models are the ones who are affected:

2007-2010 Tundra
2007-2010 Camry
2005-2010 Tacoma
2005-2010 Avalon
2004-2009 Prius

Here are some direct recommendations Toyota is making:

“Should the vehicle continue to accelerate rapidly after releasing the accelerator pedal, this could be an indication of floor mat interference. If this occurs, Toyota recommends the driver take the following actions:

First, if it is possible and safe to do so, pull back the floor mat and dislodge it from the accelerator pedal; then pull over and stop the vehicle.

If the floor mat cannot be dislodged, then firmly and steadily step on the brake pedal with both feet. Do NOT pump the brake pedal repeatedly as this will increase the effort required to slow the vehicle.

Shift the transmission gear selector to the Neutral (N) position and use the brakes to make a controlled stop at the side of the road and turn off the engine.

If unable to put the vehicle in Neutral, turn the engine OFF, or to ACC. This will not cause loss of steering or braking control, but the power assist to these systems will be lost.

-If the vehicle is equipped with an Engine Start/Stop button, firmly and steadily push the button for at least three seconds to turn off the engine. Do NOT tap the Engine Start/Stop button.

-If the vehicle is equipped with a conventional key-ignition, turn the ignition key to the ACC position to turn off the engine. Do NOT remove the key from the ignition as this will lock the steering wheel.”

If you have any questions, please call Toyota Customer Experience Center at 800-331-4331.

Originally posted at InjuryBoard by John Inserra

Child Dies from Innocent Back Yard Game of Tag - Is YOUR Property Safe for Children to Play Care (AND Injury-free?

Craig Kelley — Thu, 17 Apr 2008 00:30:00 GMT

Omaha police said 10-year-old Garrett Schomer was impaled on a metal rod that was protruding from a playhouse in a neighbor's yard. The incident happened just before 4 p.m. Sunday, April 13.

The metal rod struck the child in the temple area. A friend removed the metal piece from the young boy's head and a rescue squad was immediately summoned.

The boy was transported to Nebraska Medical Center where he later died. Police said he had critical head and brain injuries.

Witnesses describe the piece of metal as three-quarters of an inch thick and about 2 feet long.

Schomer was in the fourth grade at Benson West Elementary School.

The boy was playing tag with friends when the incident happened. Police said no foul play was involved. It's not clear where the metal rod came from or whether it was attached to a small wooden playhouse. All of this info was reported thru the MSNBC website.

Why is this story worthy of a BLOG? To warn all of us property owners to inspect our properties thinking like a child, to make sure that there are no open and obvious dangers that could cause serious injuries to kids just being kids.

TAKE 10-20 minutes and take a gander at your yard. I have represented parents of children who were injured on dangerous and neglected playsets, and most recently parents of a child that was badly burned when the 4-year old ran through hot ashes in a improperly=extinguished burn pile (he was also playing tag). Kids playing tag are not paying attention to their surroundings, only avoiding who is "IT."

Think like those crazed young TAG or KICK THE CAN players when you look for things that could injure a child at YOUR place, so that you never have to feel like this boy's neighbor. My 9-year old could be playing at your place.

Originally posted at InjuryBoard by Craig Kelley