Birmingham Injury Blog

The Chicago Personal Injury Lawyer Blog has posted an article about a rather strange, recently settled wrongful death case.

An 85 year old Illinois man confused the gas and brake pedals of his car, accidentally accelerating and crashing his vehicle into the side of a Subway restaurant. A restaurant patron was pinned between the car and the counter, which killed him.

A suit was filed on behalf of the decedent that involved several parties. However, the restaurant owner was found to be the most liable for the accident because he should have taken precautions to...

protect patrons from out-of-control vehicles crashing through their walls. Targeting the owner of the premises, in this case Subway, set the current case apart from many other theories of liability. The estate alleged that Subway's negligence in preventing the Illinois car accident was foreseeable because of the poorly designed parking lot and the lack of protective barriers between the lot and the front of the restaurant.

Subway paid a settlement of $1 million to the decedent's estate. The 85 year old man, Chrysler, the restaurant's owner, and the franchise also paid settlements.

Pet owners are usually very loving of their pets - the pets become a member of the family. Let's say someone recklessly runs a stop sign or is speeding and kills your dog that has been with you for years and grown up with your children. Or an elderly person has a dog for a companion for ten years and someone shoots the dog. What can be done?

The traditional response is that at best you can only recover for the value of the dog and any medical or funeral expenses you have to pay. No emotional distress damages.

Mark McAndrew has an interesting post about a Vermont Supreme Court decision where this issue will be tested and explored - can you recover emotional distress damages for pets. In the Vermont case the plaintiff alleges the defendant shot (and killed) the dog with malice.

When there is an update we'll let you know.

My suspicion is that the court will be moved by the plaintiffs but ultimately will not allow for emotional distress damages for the "wrongful death of a dog" due to fears of this opening up too much litigation where large awards could be handed down.

In Alabama where we only allow punitive damages for wrongful death actions (you knew we had to be unique, right?) I don't see our conservative supreme court saying you can get punitive damages against someone who kills your dog. But you never know - could be conversion of personal property which can support punitive damages.....

The Chicago Personal Injury Lawyer Blog has posted an article about a wrongful death lawsuit against a nursing home in Missouri.

In 2003, the resident, Dorothy Lawrence, began living at Beverly Manor Nursing Home in St. Joseph, Missouri. At the time Lawrence's daughter, Phyllis Skoglund, had power of attorney for her mother and signed the contract with the nursing home on behalf of the resident. This contract included an arbitration clause that stated that "any and all claims, disputes and controversies [regarding the nursing home's care and treatment of Lawrence] shall be resolved exclusively by binding arbitration.

However, Lawrence died shortly after entering the nursing home. Her daughter filed a wrongful death suit, claiming that being dropped by the nursing home staff attributed to her death. The trial court said that the case could proceed even in spite of the arbitration clause in the nursing home contract.

The Missouri Supreme Court found that the wrongful death claim was not derivative from any claims the resident might have had. Further, that the arbitration agreement cannot prevent parties from filing a wrongful death suit. The Supreme Court's reasoning for this was that “the only signature to the agreement is in her capacity as her mother’s agent”.

The defendant nursing home had argued that because the resident and her daughter could only bring one wrongful death suit they were both bound by that contract. However, the Supreme Court disagreed with this line of reasoning because it "require[d] this court to find that by signing on behalf of her mother, Skoglund also is signing on her own behalf and on behalf of the wrongful death plaintiffs.” Yet the court felt that Skoglund was only signing in the capacity of her mother's power of attorney and not on her own behalf, or did she sign it as a representative of the potential wrongful death beneficiaries. Therefore, the wrongful death claim was not barred because of the signed contract.

Jay Reeves, of the Associated Press, has written an article about a tragic shooting in Priceville, Alabama that left 5 people dead.

Authorities believe that late at night on April 6 or early morning April 7, Kevin Garner shot and killed his 16 year old daughter, estranged wife, his sister and his 11 year old nephew. He then set fire to his home, which burned to the ground, before taking his own life. The other 4 bodies were found Tuesday in Green Hill, Tennessee.

Garner and his estranged wife were in the middle of a divorce trial in which she sought custody of their daughter, citing he "has been both physically and emotionally abusive." Garner accused his wife of adultery and withdrawing nearly $40,000 out of their joint bank account last May before they separated. His sister had sided with Garner's ex-wife, and authorities believe she might have been on the list to testify in court against him. Investigators believe that Garner was unhappy with the way the divorce was playing out and this prompted his actions.

This tragedy reminds us of how quickly things can change and to be thankful for all of our blessings.

The Chicago Personal Injury Blog has posted an article that discusses a lawsuit brought against an Illinois-based Walgreen's pharmacy. A 77 year old man was prescribed anti-gout medication, but the pharmacy accidentally gave him a medicine that lowers diabetics' blood sugar. His kidneys failed as a result and the jury awarded him $6.35 million in compensatory damages. The man died during pretrial proceedings. The pharmacist who filled the prescription was called into court.

At trial, the Walgreen's pharmacist testified that he incorrectly filled the decedent's prescription. Evidence was also presented that suggested the pharmacist was abusing narcotics and stealing pharmaceuticals from the Walgreen’s store. The evidence showed that the pharmacist did not remember if he was taking drugs on the date of the misfilled prescription.

According to Robert Kreisman, author of the article, in the trial, the attorneys for the decedent said that Walgreen's failed to keep an accurate inventory when it came to government controlled medications. They said

if Walgreens had been paying attention, then this pharmacist would have been fired much sooner and would have not been the pharmacist on the job when the decedent’s prescription was filled.

The Kentucky Injury Law Blog has posted an article that discusses a wrongful death lawsuit brought against two middle school coaches. Keith Michael Walker, 13, collapsed and died during basketball practice at his Grayson County, Kentucky middle school. The autopsy later showed his death was the result of cardiac arrest.

Walker's parents are suing the two coaches for

“acting with reckless disregard” toward their son’s safety and contends that they did not exercise reasonable or normal care. The complaint contends that the two men’s negligent actions contributed to the younger Walker’s wrongful death.

The Walkers’ Kentucky wrongful death lawsuit seeks unspecified punitive damages, in addition to damages for lost earning capacity, pain and suffering, medical expenses, and funeral costs.

The article says that Grayson County Schools believes the coaches will be acquited of the charges, and the coaches' attorney said that his clients in no way placed Walker at risk during practice.

In the "olden days" if someone committed negligence and the victim died from the negligence, the negligent person walked away and could not be sued. The reason is that the victim's claim "died with him". This, fortunately, was changed so that if someone is killed as a result of another's negligence, a "wrongful death" claim can be brought against the wrongdoer.

In Alabama the estate of the victim must bring the claim and this is done by the personal representative of the estate. Normally this is the executor named by the will or the administrator if there is no will.

Alabama is unique among all other states in that only one type of damages is recoverable - punitive damages. Other states take into consideration the income of the victim, the impact on the victim's family, etc. But not our dear state - we only consider punitive damages. Here is where the oddness comes in:

We have tried cases under the laws of another state that allow the family to testify to their grief, their loss, etc. In our cases tried under Alabama law, none of that comes into evidence. The family can not testify as to the loss they have suffered. Instead, the entire focus is on the wrongful act of the negligent party and then damages are awarded to punish that negligent person and to discourage or deter others from doing the same type of wrongful conduct.

There are other aspects that come about in a wrongful death case such as if the victim files suit and then dies of the injuries. We will be happy to discuss with you any questions you might have about how Alabama wrongful death cases operate and what it means to you in your own unique situation.