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Personal Injury Primer

Updated 18 days ago

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Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss topics related to personal injury law. Brought to you by the Law Offices Of David W Holub, an Indiana personal injury law firm concentrating on medical malpractice, auto accident, product liability and wrongful death litigation.

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Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss topics related to personal injury law. Brought to you by the Law Offices Of David W Holub, an Indiana personal injury law firm concentrating on medical malpractice, auto accident, product liability and wrongful death litigation.

iTunes Ratings

4 Ratings
Average Ratings
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Good podcast

By hairbeardown - Jul 10 2019
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I practice law as captive counsel for a large insurance carrier. This pod has been informative and interesting but most of all educational. I really like that it focuses on issues that are pretty universal to both plaintiff and defense.

iTunes Ratings

4 Ratings
Average Ratings
4
0
0
0
0

Good podcast

By hairbeardown - Jul 10 2019
Read more
I practice law as captive counsel for a large insurance carrier. This pod has been informative and interesting but most of all educational. I really like that it focuses on issues that are pretty universal to both plaintiff and defense.
Cover image of Personal Injury Primer

Personal Injury Primer

Latest release on Nov 25, 2020

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Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss topics related to personal injury law. Brought to you by the Law Offices Of David W Holub, an Indiana personal injury law firm concentrating on medical malpractice, auto accident, product liability and wrongful death litigation.

Ep 79 – Tolling Statute of Limitations Due to Emergency

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Tolling Statute of Limitations

https://personalinjuryprimer.com/wp-content/uploads/2020/09/Podcast-079-Tolling-Statute-of-Limitations.mp3

I’m David Holub, an attorney focusing on personal injury law in northwest Indiana.

Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss topics related to personal injury law.

Today’s question comes from a caller who said “I hear that all of the courts are shutting down for weeks, if not for months, due to an emergency, what does this mean for me, I have a case that needs to be filed because I think the statute of limitations is running next week?”

This is a common question and the answer is not simple.

When a hurricane or other weather or emergency event disrupts normal court operations, it can result in courts closing.

Courts can close on their own by an order of court.

Or a governor might issue an edict or emergency declaration that closed government offices including the courts.

Does a governor have the ability to issue an emergency declaration that says that a statute of limitations will not be enforced? Maybe yes, maybe no.

A statute of limitations is something that is a creature of a legislative body. A defendant who is sued after the statute of limitations expires, might argue to a court that the governor has no authority whatsoever to extend a deadline for filing a lawsuit, only a legislature can do that.

Could a governor order a legislature to pass a law, or extend a deadline? No.

The safest bet is to look to ordinary court rules.

For example, in Indiana, ordinary court rules called the trial rules say that if your statute deadline ends on a weekend or a holiday when the court is closed, that the statute deadline is suspended or tolled, until the next day that the court is open.

So, if the time to sue expires on Memorial Day, and the Courts are closed, then you have until the next day to file.

But, what happens if some courts are open and other courts are closed, and you could file suit in an open court? Confusing right?

The rule focuses on a court closure due to a recognized non business day or a holiday, and not the whims of any given judge.

If there is an extended closure of government offices, it’s quite possible that if that statutory deadline passes and the case isn’t filed in a timely fashion a court could entertain a motion to dismiss a lawsuit based on the fact that the case wasn’t filed in a timely manner arguing that the closure wasn’t due to a normal weekend or an official holiday.

Most attorneys will say that the best response, if a client comes in with a statute expiring during an emergency closure, would be to file the case promptly via a court’s electronic filing system if the e-filing system is open.

Since cases can be filed electronically nowadays, and since the courts themselves can be closed while the electronic system that allows you to file pleadings and other papers with the court, remains open, this might work.

So to answer the caller’s question, the best practice would be to get in to see an attorney as quickly as possible before the statutory deadline expires and work with that attorney to see if your case can be filed electronically before the deadline expires, and fall back on immediately filing once the courts are again open if there is no electronic means of filing. Such an approach would eliminate most potential problems.

If you’re in a situation where the courts are closed for months, whether for emergencies such as hurricanes or the like, or for quarantines and pandemics, you need to contact an attorney and find out what can be done to assist you to get your case on file in a timely manner.

I hope you found this information helpful. If you have questions about your legal rights if you get hurt due to the carelessness of another person, or as a result of substandard medical care, or due to a product defect, construction injury, or any other type of personal injury, please give us a call at (219) 736-9700. You can also learn more about us by visiting our website at DavidHolubLaw.com – while there make sure you request a copy of our book “Fighting for Truth”.

The post Ep 79 - Tolling Statute of Limitations Due to Emergency first appeared on Personal Injury Primer.

Nov 25 2020

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Ep 78 – Failure to Protect Persons Who Cannot Protect Themselves

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Failure to Protect Persons Who Cannot Protect Themselves

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I’m David Holub, an attorney focusing on personal injury law in northwest Indiana.

Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss topics related to personal injury law.

Today’s question comes from a caller who said “Mom has struggled with mental illness but is fine with meds, but she became extremely paranoid when she missed her medication doses, so we took her to a care facility, they were supposed to immobilize her per doctor’s orders, but they didn’t and she was disoriented and fell and broke her hip, what are our legal options?”

Our first reaction is: what a tragic situation. Obviously, the family wanted and needed medical help, and they sought help, and probably went home after they got Mom admitted and felt relieved, only to get a call and learn that proper care was not given.

In general, under the law a duty of care may arise from a special relation between the actor and the other which gives to the other a right of protection. For example, when a mental health professional takes charge of a person known to be incapacitated and in need of protection, the professional has a duty to protect.

Indeed, if a person is known to be at risk of self-harm, or unsteady and prone to fall and not able to think clearly, the duty to protect them is breached when the mental health professional fails to protect.

This kind of scenario plays itself out quite frequently. In Indiana a 72-hour hold is nearly always automatic if a patient has been found to be at risk to themselves. But mental health professionals, including psychiatrists and psychologists make mistakes. When they do, they can be held accountable and made to answer in a civil court for harm they let happen on their watch.

Many times, we have represented family members who worked to get a relative into a 72 hour hold only to have the health care system make mistakes putting their loved ones at risk. One case that comes to mind involved a person who was held expressly due to suicide threats and was to be on 24-hour watch, but the facility failed to watch the person as required, and the person whose family did everything to protect them, was permitted to end their own life. A second case involved a case much like the caller where the family brought an elderly patient in due to paranoid adverse reaction to medications, and person was to be restrained because they would wander off, but the facility failed to restrain the patient and they were severely injured trying to escape the care facility.

I hope you found this information helpful. If you have questions about your legal rights if you get hurt due to the carelessness of another person, or as a result of substandard medical care, or due to a product defect, construction injury, or any other type of personal injury, please give us a call at (219) 736-9700. You can also learn more about us by visiting our website at DavidHolubLaw.com – while there make sure you request a copy of our book “Fighting for Truth

The post Ep 78 - Failure to Protect Persons Who Cannot Protect Themselves first appeared on Personal Injury Primer.

Nov 18 2020

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Ep 77 – New Insurance Company Scam

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New Insurance Company Scam

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I’m David Holub, an attorney focusing on personal injury law in northwest Indiana.

Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss topics related to personal injury law.

Today’s question comes from a person who called to say her brother was in an auto accident few days ago, and a day after he left the ER the other driver’s insurance company called and offered him $4,000, plus agreed to pay double that in medical bills, if the bills were submitted within 60 days, and all he had to do was sign a release, this all made the caller suspicious and she decided to call an attorney to get some answers.

This caller is very perceptive and quite right to be suspicious.

Whenever an insurance company wants to give you something in exchange for a release, you can bet your last dollar that it is doing it solely for its own financial gain and benefit, not yours.

Think about what the insurance companies accomplishes if it gets an injury victim to sign a release based on the type of offer made to this caller’s brother.

First, it is closing out any potential for a lawsuit within 60 days. The law provides that a party can sue for up to two years in most cases for injuries they have received in a crash or similar circumstance. Why does the law allow for two years? Well, very often it’s difficult to determine the extent of a medical injury within a short period of time like 60 days.

For example, in many auto crashes, it takes a couple of weeks to get an appointment with a family physician. Then once you see that physician, a few more weeks passes before you can get into have an x-ray or MRI image taken. Then you have to go back to the doctor again to have the doctor consult with you and review the screening images to determine treatment protocols.

Before you know it, within a very short time you could be beyond that 60-day time window, and not have a good handle at all on how seriously injured you might be.

Second, by entering such an agreement you cap the amount of money you can ever recover from the insurance company and defendant driver. That again is to the insurance company’s benefit.

For example, in the typical case the amount of money that you can recover for an injury is limited only by what a jury might decide after hearing all of the evidence about your medical condition.

Why would an insurance company want to put a cap or limit on its liability?

Easy answer, because it’s job is to make the most money for the shareholders of the company and to preserve company assets.

Any number of things can go wrong during what may seem like routine medical treatment. A person can develop a life-threatening blood clot for example, that leads to potential serious injury or death.

Sometimes a surgical procedure might at first appear to be a success, but later we find that something about the surgery did not go right.

The other day, for example, a woman called after having back surgery soon after an injury that seemed to be a success, but a short two months later, the hardware implanted near her spine broke and screws came loose, and a new surgery, well beyond 60 days after the crash, had to be performed.

Bottomline, you can bet that the insurance company is not doing you any favors when it tries to get you to sign a release and severely limit the damages that it might be required to pay out on a claim.

If they make such a proposal to you it is always smart to consult an attorney. Most lawyers will be happy to speak with you for free.

I hope you found this information helpful. If you have questions about your legal rights if you get hurt due to the carelessness of another person, or as a result of substandard medical care, or due to a product defect, construction injury, or any other type of personal injury, please give us a call at (219) 736-9700. You can also learn more about us by visiting our website at DavidHolubLaw.com – while there make sure you request a copy of our book “Fighting for Truth”.

The post Ep 77 - New Insurance Company Scam first appeared on Personal Injury Primer.

Nov 11 2020

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Ep 76 – The Dangers Lurking in Big Box Warehouse Stores

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The Dangers Lurking in Big Box Warehouse Stores

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I’m Katelyn Holub, an attorney focusing on personal injury law in northwest Indiana.

Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss topics related to personal injury law.

Someone reached out to us recently, trying to help a friend, and said “My friend was shopping at a big box store when one of the items shelved above her head fell off the shelf and knocked her to the floor, she asked me to call to see what her legal options might be.”

This is a great question since warehouse stores are very common ways of selling merchandise these days.

There was a time not that many years ago, when retail stores were very customer oriented and organized in such a way as to emphasize customer safety.

But today, stores that are basically warehouse facilities have been opened to the public, and they do a high percentage of the consumer retail business in the USA.

The stores that look like warehouses opened to the public pose an unusual risk of danger to customers invited onto the premises to buy whatever the warehouse stores are selling.

Items are usually shelved far above the heads of those walking down the aisle. It’s not unusual to see things shelved 20 to 30 feet in the air in some stores.

Items can range from 20-foot-long rolls of carpet stacked up against the side of a wall, to barbecue grills and lawn furniture displayed above the head of the shopper. You name it and there is probably a store selling it.

These shelving arrangements actually can be safe if the store operator properly monitors the situation.

But what frequently happens is a customer moves an object, say on the opposite side of an aisle, and it bumps something which poses a danger to a person walking down a nearby aisle, causing that item to fall and strike someone.

In a typical warehouse, with just warehouse employees, safety is maintained because warehouse workers wear hardhats and workers watch the backs of co-workers.

But when unsupervised customers get involved, safety goes out the window. Maybe employees safely stacked carpet rolls, but a shopper moves the rolls looking for a particular color. Or, a customer puts a long piece of lumber on a shopping cart, and as they turn a corner, the lumber bumps an endcap display and leads to a chain reaction of falling items.

These warehouse stores have the same duty to make things safe for customers as a standard retail facility. Just because a business chooses to design its store like a warehouse, does not mean that it can shortchange customer safety. Selling items at a discount doesn’t give a business a license to discount safety. In other words, the law doesn’t give a retail store a special pass because its offering something at a discount.  The safety of customers remains paramount.

I hope you found this information helpful. If you have questions about your legal rights if you get hurt due to the carelessness of another person, or as a result of substandard medical care, or due to a product defect, construction injury, or any other type of personal injury, please give us a call at (219) 736-9700. You can also learn more about us by visiting our website at DavidHolubLaw.com – while there make sure you request a copy of our book “Fighting for Truth”.

The post Ep 76 – The Dangers Lurking in Big Box Warehouse Stores first appeared on Personal Injury Primer.

Nov 04 2020

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Ep 75 – The Speed Bumps of Life

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The Speed Bumps of Life

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I’m Katelyn Holub, an attorney focusing on personal injury law in northwest Indiana.

Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss topics related to personal injury law.

Today’s question comes from a listener who says “My wife and I were bicycling in a forested residential neighborhood, when we rounded a curve and she hit an unmarked speedbump and went down hard and was knocked unconscious and now has amnesia, is there anything we can do legally?”

Many residential neighborhoods install speed bumps. They have legitimate reasons to do so. But often we find they go about it in a careless way that can endanger motor vehicles as well as bicyclists and motorcyclists.

One frequent mistake is to fail to mark the speed bump with paint or otherwise warn of the bumps. A nice blacktop roadway upon which a black asphalt speedbump has been created can present a serious roadway hazard, especially when there are trees overhanging the roadway blocking out the sun and shading the roadway pavement.

This is what happened to the caller’s wife as he explained the situation in more detail. The two of them were in an area that has been newly blacktopped and maybe the residential community planned to apply yellow paint to the speed bumps, but as of the date when his wife fell, they had not yet painted the raised area of pavement.

So, it was black on black and when the wife’s bike hit the raised pavement that she encountered at approximately 15 mph, she had no warning of any danger, and she flew head first over the handlebars and slammed into the pavement.

Even though she was wearing a helmet the impact knocked her unconscious. And yes, she suffered an amnesia of events that happened in about a six months’ timeframe before the incident although her memory was otherwise intact.

In questioning the company that had placed the blacktop bumps, it became clear that it intended to follow the proper roadway marking conventions and put up signs warning of the speed bumps as well as paint them. They simply hadn’t gotten around to it. A construction company at the very least should have put yellow cones out and warned that they were still intending to do further work on the roadway.

Why do we share this information? Because these types of situations keep coming up. We all  think we are safe and we can be if all of the proper warnings are given. But, when for whatever reason someone fails to comply with the standards requiring them to give notice of such dangers people can and will be injured.

I hope you found this information helpful. If you have questions about your legal rights if you get hurt due to the carelessness of another person, or as a result of substandard medical care, or due to a product defect, construction injury, or any other type of personal injury, please give us a call at (219) 736-9700. You can also learn more about us by visiting our website at DavidHolubLaw.com – while there make sure you request a copy of our book “Fighting for Truth”.

The post Ep 75 – The Speed Bumps of Life first appeared on Personal Injury Primer.

Oct 28 2020

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Ep 74 – Electrical Contact Injuries

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Electrical Contact Injuries

https://personalinjuryprimer.com/wp-content/uploads/2020/07/Podcast-074-Electrical-Contact-Injuries.mp3

I’m Katelyn Holub, an attorney focusing on personal injury law in northwest Indiana.

Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss topics related to personal injury law.

Today’s question comes from a listener who says: “My husband was hired to help put up Christmas lights on the trees in the city park and he came in contact with high-powered lines and got severely injured, what are his legal options?”

Electrical injuries can be difficult to treat medically. They also pose challenges legally.

There are two ways to protect people from electricity. The first way is to insulate wires. For example, home electrical wiring is insulated. Insulated wires are wrapped with plastic or another substance that will NOT conduct electricity so that you can safely touch the insulated wires and not get hurt.

The second way to protect people from electricity is to isolate the wires. This means put them high up on a pole where nobody can reach them under ordinary circumstances. The wires that are isolated are usually bare wires. These bare wires have no insulating wrap around them.

You might think that power companies would want to wrap every wire with insulation. However, it’s too costly to do that. It is more cost-effective to isolate wires by keeping them out of the reach of most people.

Problems arise when someone grabs a ladder and gets up close to the bare wires, or is in a lift truck that puts them up near the wires. All of a sudden, wires which were safely isolated, are now accessible and can pose a danger to any person that gets near those wires.

What makes matters worse, is that the voltage in the lines that are high up on utility poles is usually very high-voltage.

The voltage has to be high in order to transmit electricity from the power plant to the local user.

If you look at a powerline pole you’ll sometimes notice that there is usually a large round object near the top which is a transformer. A transformer steps-down the voltage coming from the power lines so that it is at a lower level and can be used in homes and office buildings.

An important question whenever someone contacts a power line, for example if they are in a lift truck trying to decorating a Christmas tree outside, is whether the electrical utility company should have contemplated that people would be in and about the lines, and that in common situations the lines would pose a danger to people.

In such situations the power company can be found to owe a duty to the person who is injured by coming in contact with the lines to make the lines safe.

So, let’s consider several different factors.

What if power company employees know that every Christmas the trees near the power lines are decorated in the city park?

What if power company employees know that pine and evergreen trees (which people frequently decorate for the holidays) routinely grow taller year after year and get closer and closer to the power lines?

What if that same power company’s employees actually in the past would trim the park trees that were near the power lines, but failed to do any trimming the year that someone was injured?

All these facts might be very important to establish liability against the power company.

Now suppose power lines are at the required clearance of 18 feet above a roadway, but because there is a flood in a nearby river the city employees are asked to raise the level of the roadway to create a makeshift Dam or Levy to prevent the overflow of water?

What if as they do so they get closer and closer to the overhead power line?

What if there are employees of the power company in the neighborhood seeing the construction work take place because they are working to  repair downed-power lines caused by the storm and subsequent flooding?

And suppose the power company workers see that the City workers are getting dangerously close to the powerline?

Does the power company have an obligation toward the workers? Or an obligation to de-energize the power lines and route the electricity in a different manner so as to protect the workers from those powerlines?

What if somebody from the City called the power company and told them to turn off the power to those lines because of the emergency need to build under the lines and the power company said it would be done but they failed to send someone out to actually do the necessary work to bypass the power lines or de-energize them?

So, to answer the caller’s question, a very detailed investigation has to be conducted.

While it may initially seem like the caller’s husband was at fault because he got too close to the power lines, if the power company can be proven to have knowledge of workers, and yet failed to take steps to protect workers, it may be very possible to hold a power company liable.

I hope you found this information helpful. If you have questions about your legal rights if you get hurt due to the carelessness of another person, or as a result of substandard medical care, or due to a product defect, construction injury, or any other type of personal injury, please give us a call at (219) 736-9700. You can also learn more about us by visiting our website at DavidHolubLaw.com – while there make sure you request a copy of our book “Fighting for Truth”.

The post Ep 74 - Electrical Contact Injuries first appeared on Personal Injury Primer.

Oct 21 2020

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Ep 73 – Civil Rico Damage Claims

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Civil Rico Damage Claims

https://personalinjuryprimer.com/wp-content/uploads/2020/07/Podcast-073-Civil-Rico-Damage-Claims.mp3

I’m David Holub, an attorney focusing on personal injury law in northwest Indiana.

Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss topics related to personal injury law.

Today’s question comes from a listener who says “My auto insurance carrier got a letter from the company that insures the other driver that crashed into me saying that they didn’t think I was hurt in the crash, and now all of a sudden MY insurance company is refusing to pay under my policy the medical expenses I’ve incurred for treatment for the injuries I suffered in the crash, how can these insurance companies get away with teaming up against me?”

This is a great question. We find this kind of thing happening frequently. Not surprisingly, insurance companies talk to each other. They talk to each other a lot. Behind the scenes in most cases, insurance companies arbitrate property damage claims, and though your own company may pay for your car being totaled, it might make a claim to get reimbursed from the other driver’s insurance company if there is strong proof that the other driver is at fault. So, the two companies talk to each other. Not surprisingly, if they find that they both can save money by claiming that you are not hurt, they have an incentive to work together to do so.

That may leave you high and dry in an unfair situation.

If insurance companies work together and are honest and above board in doing so, no laws are broken. But what if they lie about a situation or conspire to commit fraud to cheat you? Well, such conduct can land them in trouble. There are many cases reported where insurance companies have cheated and lied and got hit with high jury verdicts and punitive damage awards.

Such fraudulent conduct may amount to what is under the law called racketeering. In 1970 Congress passed an act referred to as RICO, designed to deal with racketeering influenced corrupt organizations. There is both a criminal component and a civil remedy component to RICO.

The idea behind RICO was to combat organized crime. But it also applies to businesses routinely committing fraudulent conduct or an extended period of time. A RICO claim may be brought in a civil action and if you win, you get triple actual damages. The whole idea is to punish wrongdoing.

RICO requires the defendants be proven to have participated in an enterprise to carry out the directions of the enterprise. An ‘enterprise’ is defined in 18 U.S.C section 1961 (4) to include “any individual, partnership, corporation, association, or other legal entity”. It gets complicated, but in simple terms the enterprise must exist.

Then you have to prove a ‘pattern of racketeering activity’ which requires at least two acts of racketeering activity.

The element of ‘racketeering activity’ is extremely broad. The statute includes kidnapping, gambling, arson, robbery, bribery, extortion, or a list of many other criminal statutes. The more common statutes include fraud, obstruction of law enforcement, forgery, and trafficking statutes.

A defendant found guilty under a civil RICO action will be subject to recovery of damages at three times the amount of actual damages, including reasonable attorney fees. 18 U.S.C. § 1964.

I hope you found this information helpful. If you have questions about your legal rights if you get hurt due to the carelessness of another person, or as a result of substandard medical care, or due to a product defect, construction injury, or any other type of personal injury, please give us a call at (219) 736-9700. You can also learn more about us by visiting our website at DavidHolubLaw.com – while there make sure you request a copy of our book “Fighting for Truth”.

The post Ep 73 - Civil Rico Damage Claims first appeared on Personal Injury Primer.

Oct 14 2020

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Ep 72 – Crashes Caused by Highway Defects

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Crashes Caused by Highway Defects

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I’m David Holub, an attorney focusing on personal injury law in northwest Indiana.

Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss topics related to personal injury law.

Today’s question comes from a caller who explained how she ended up getting seriously hurt along with her car getting totaled in a one car crash that she insisted was due to the design of the highway, and she wanted to know if the people who designed and constructed the highway could be sued?

The answer is maybe yes. There certainly have been situations where the highway designer and construction contractors responsible for designing and building a roadway have been held legally responsible for their mistakes. An example that comes to mind is a pedestrian bridge in Sweetwater, Florida that collapsed during construction killing several motorists who were stopped in traffic under the bridge when it collapsed. Right now engineering investigators are trying to sort out what happened, but it looks like the structure was under-designed for the load that would be applied once the bridge concrete was poured.

So, what do attorneys look for when trying to determine if negligent design or construction of a roadway caused a collision?

Here are some of the factors, that include things like problems with the pavement, poor signs, insufficient lane markings:

  1. Inadequate signage;
  2. Inadequate traffic control markings;
  3. Failure to warn of unsafe pavement (buckling or potholing);
  4. Creation and/or maintenance of unsafe pavement and/or shouldering;
  5. Defects due to lack of care in designing, constructing and maintenance:
  6. Negligent inspection of roadway;
  7. Negligent design;
  8. Negligent maintenance;
  9.   Failure to correct roadway defects;
  10. Failure to warn of condition endangering movement of traffic; and
  11. Ignoring dangerous condition of which designer/contractor had notice.

I hope you found this information helpful. If you have questions about your legal rights if you get hurt due to the carelessness of another person, or as a result of substandard medical care, or due to a product defect, construction injury, or any other type of personal injury, please give us a call at (219) 736-9700. You can also learn more about us by visiting our website at DavidHolubLaw.com – while there make sure you request a copy of our book “Fig

The post Ep 72 - Crashes Caused by Highway Defects first appeared on Personal Injury Primer.

Oct 07 2020

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Ep 71 – How to Use the Common Law Remedies of Trespass and Conversion

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Using the Common Law Remedies of Trespass and Conversion to Win

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I’m David Holub, an attorney focusing on personal injury law in northwest Indiana.

Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss topics related to personal injury law.

Not long ago we had someone call with a question about what to do about a neighbor who was spraying chemicals and caused some of those chemicals to kill plants on the caller’s property. The caller wanted to know their legal options.

To answer that question, it is helpful to start by thinking about the term “trespass”. Most likely everyone’s heard the term “trespass” or has encountered a sign that reads “trespassers will be prosecuted”. Trespass is defined as knowingly entering another person’s property without permission. A trespass can be both a civil wrong, something you sue someone about, and a criminal wrong, something a person might go to jail over.

But how does trespass fit with regard to chemicals coming onto someone’s property and doing damage?

Well consider this scenario. Suppose you own real estate with a woods on the property containing large oak and walnut trees. Now suppose your neighbor has trees on his property too, and his trees are close to your trees. Suppose you neighbor cuts down his own trees and sells them for a profit. Then when you leave town for a vacation, the neighbor comes onto your property and cuts down several trees on your property and sells the lumber he harvested from your property.

In doing all these things your neighbor trespassed. Trespass in simple terms is an interference with the right to possess, use and enjoy real estate. The damages flowing from a trespass could be significant.

In the scenario we just outlined another legal wrong was committed in addition to trespass. That legal wrong is called conversion. The neighbor converted the trees that you owned and took them for his own. That is both a civil wrong, and a criminal wrong.

In a civil case the damages would be the value of the trees that were removed, as well as the value of the diminishment of the real estate that can no longer be sold for a high price because the trees are missing.

So, if you are thinking that trespass and conversion are important parts of the law, you’d be right.

There are many fact situations under the law where trespass and conversion theories of recovery can be useful.

For example, what if your neighboring property owner stores canisters filled with toxic chemicals on their property and those toxic chemicals leak out and come onto your property? That’s trespass if the neighbor knows of the leak. Even if the chemicals leak underground that can be a trespass.

If the chemicals give off toxic fumes and those fumes come onto your property that can be a trespass.

So, the cause of action for trespass can be useful if you’re suing someone for hazardous chemical leaks, or your suing a hazardous waste landfill because products from that landfill leaked out into the groundwater and contaminated your property.

You’ll find people making allegations of trespass sometimes where an underground storage tank at a gas station is leaking.

So back to the caller and the question about chemicals sprayed by his neighbor killing his plants. Knowingly spraying chemicals that can be expected to drift onto a neighbor’s property can be a trespass, or it might amount to ordinary negligence caused by a lack of reasonable care.

Why are we sharing this information? Just to give you a look behind the scenes and provide information that might prove useful in considering your legal options if somehow someone intentionally or negligently takes your property, or interferes with the use of your property, or damages your property.

I hope you found this information helpful. If you have questions about your legal rights if you get hurt due to the carelessness of another person, or as a result of substandard medical care, or due to a product defect, construction injury, or any other type of personal injury, please give us a call at (219) 736-9700. You can also learn more about us by visiting our website at DavidHolubLaw.com – while there make sure you request a copy of our book “Fighting for Truth”.

The post Ep 71 - How to Use the Common Law Remedies of Trespass and Conversion first appeared on Personal Injury Primer.

Sep 30 2020

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Ep 70 – Trucking Industry Frequently Plays Hide the Ball

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A Truck Driver’s True Employer is Often Hidden Behind Layers of Paperwork

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I’m Katelyn Holub, an attorney focusing on personal injury law in northwest Indiana.

Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss topics related to personal injury law.

Today’s question comes from a listener who says,

“we got rear ended exiting the freeway by a semi, when we contacted the company named on the door of the tractor, we were told the driver was not with that company, how can this be?”

Well, the answer is, “it’s complicated”.

The trucking industry is heavily regulated, but there are loopholes and those involved in trucking take advantage of them. In short, the companies use the Federal Motor Carrier Safety Regulations to do two things: (1) Limit Liability and (2) Reduce Taxes.

Here are some terms that matter when you try to sort out who is legally responsible for the negligent operation of a semi-tractor trailer: motor carrier, driver, leasee, broker, operating authority, forwarding authority, and independent contractor.

It rarely is easy to sort through the arrangements between the potential responsible parties.

But we need to begin somewhere, and a good starting point is the Bill of Lading and purchase order paperwork on a load. These documents will give us clues about who is legally responsible for a load.

Then we need to look at any agreements with the driver. These are usually called lease agreements. They may label a driver as an independent contractor, but if a company is controlling the driver, that company can be often held legally responsible. The goal is to figure out who is directing the route of the driver, and under whose operating permits the driver is driving (this is where the term operating authority comes into play). You cannot just buy a semi-tractor and operate it to hall loads without a permit. Think of the permit as kinda like a license plate. To operate on the highways a truck needs a license plate of course, but it also needs an operating permit. If a motor carrier has an operating permit, the permit number has to be on the door of the tractor.

Another thing to look at is who owns the truck. This is often complicated. Many times a trucking company will claim to sell a truck to a driver and then claim that the driver owns it, but in reality there is just an arrangement whereby payments are made out of the driver’s pay to go towards purchasing the truck and if the driver quits it goes back to the employer, and there are tax advantages to doing this. Are you confused yet?

Other issues are important to consider as well. Who is doing the background checks on the drivers? Who’s responsible for making sure that a driver passes required drug tests? Who’s checking to make sure their driver’s license doesn’t show a prohibited number of moving violations? If you find out who is doing all these things, which is called “FMCSR compliance” then you’re getting closer to who is actually operating the vehicle and putting it on the road.

So why are we sharing this information? Well, to give you a little bit of a heads up as to how complicated it is when trucking companies and motor carriers and drivers are putting semi-trucks on the road. The attorney’s job is to sort through the legal entanglements and make sure the right parties are sued. And, it is not an easy job.

If you’re ever in a crash with a semi-you we would strongly suggest that you consult an attorney very soon in the process.

I hope you found this information helpful. If you have questions about your legal rights if you get hurt due to the carelessness of another person, or as a result of substandard medical care, or due to a product defect, construction injury, or any other type of personal injury, please give us a call at (219) 736-9700. You can also learn more about us by visiting our website at DavidHolubLaw.com – while there make sure you request a copy of our book “Fighting for Truth”.

The post Ep 70 - Trucking Industry Frequently Plays Hide the Ball first appeared on Personal Injury Primer.

Sep 23 2020

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Good podcast

By hairbeardown - Jul 10 2019
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I practice law as captive counsel for a large insurance carrier. This pod has been informative and interesting but most of all educational. I really like that it focuses on issues that are pretty universal to both plaintiff and defense.