What really is compression asphyxia?

What really is compression asphyxia? Steve Lombardi, attorney discusses the condition in a legal context.

Gangsters, Banksters and RICeO’s abound with new and old fraudulent schemes

And in other news having a questionable financial angle… it’s been a very busy week for new and old financial rip-off schemes by blue, black, grey, pink and white collared criminals. Our old friend Scott Rothstein, who pleads guilty to operating a $1.3 billion Ponzi scheme from his law office in south Florida, was sentenced to 50 years in a federal prison. Is $1.3 billion enough to create a cloud of suspicion for other criminal activity? Meanwhile his former office manager awaits her fate after being charged in the matter and the investors await further criminal charges and the recoupment of their investments.

Pedestrian is killed and driver of Hummer is not charged.Why?

Just because criminal charges are not filed won’t preclude a civil action because the legal standard for finding culpability are very different. The criminal case focuses on whether there is evidence of a crime and the standard is beyond a reasonable doubt. The civil law focuses on whether or not there is a preponderance of the evidence to show the driver was negligent. Of course comparative fault is of the pedestrian is also at issue. Essentially were one or both at fault, negligent, in causing the accident.

When police rule an accident is an “accident” does that preclude a civil suit?

Civil versus Criminal Actions - The accidental shooting.

Several newspapers reported on an accidental shooting in Southeast Iowa in the town of Donnellson. Here is the situation. Two men were shooting targets with high-powered rifles. One was a 29 year old man, Levi Martinson. The other is James Easter, 31. These two men were shooting out from a second story window at Easter’s home. They were shooting with high-powered rifles at targets set by a pond. Martinson was holding his rifle by the barrel. The gun accidentally discharged shooting and killing him. The police investigated and concluded it was “an accident”. An autopsy was conducted and there is no mention of any ballistics tests being performed.

In this case the shooter is the person who later died. You can’t sue yourself, but if the gun were defective then the manufacturer might be legally liable. And of course if an autopsy, ballistics tests, blood splatter evidence and other tests showed the decedent was not holding the gun then we would have a very different case.

Let’s assume for the sake of this post that two men are out shooting targets and the gun one holds does accidentally discharge killing the other. The police, like they did in this case conclude it was accidental, is there a possible civil action.

Will the police conclusion of an accidental shooting preclude a civil action?

The quick answer is, no, it doesn’t preclude a civil suit and a finding of negligence. The police are looking at whether or not the actions by Martinson were a violation of the criminal law; not civil law. Criminal law and civil law are like apples and oranges. Every crime has elements to be proven. Elements are like ingredients in a recipe. If when baking chocolate cupcakes you leave out an ingredient the cupcakes won’t bake or taste right. Proving a violation of the criminal law is similar to following a recipe in food preparation.

Elements of Crimes and Civil Actions

The elements of crimes (the criminal statutes) are different, very different, than the elements of civil rules of conduct. One element that is very different for crimes and negligence (torts) would be intent. A person must intend to do the act and for most crimes the act intended is one that will or is likely to result in death, injury, fright or the deprivation of another’s property.

In this case of the shooting that resulted in death the likely criminal considerations could be murder or manslaughter. To commit the crime of murder you have to have intention to do an act that is likely to cause death of another person. Manslaughter is doing something really dumb, like actually pointing a loaded gun at someone. Criminal intent is vital to a successful prosecution. Intent isn’t involved as an element in negligence actions. In this case the man was simply holding the gun by the barrel and it discharged. There was no intent to do harm.

Now let’s look at civil laws. A jury’s evaluation of what the shooter did might consider other facts, like what a reasonable man might have done in this instance. Inquiry into exactly how the gun was being held, were they fooling around, was there another way to hold the gun and had it every accidentally discharged previous to the day of the fateful events. Experts would evaluate what actually caused the gun to fire without a finger on the trigger. If it has to do with gun maintenance then who owned the gun and if it were properly cleaned and maintained would it not have discharged? Everyone has a duty to not act unreasonably in a way that causes injury or death to another person.

Burdens of Proof

The burdens of proof, the standard by which a case must be proven, have to do with the amount of evidence needed to be produced, is different in criminal and civil cases. Due to the presumption of innocence the burden of proof in criminal cases is much higher.

Think of the burden of proof as a level of proof required to demonstrate to Judge and jury that your side of the argument on any given point is more persuasive than the your opponents. Don’t confuse the burden of persuasion for any given element with burden of proof. The burden of persuasion remains on the party whose duty it is to prove any one element.

The burden of proof placed on a prosecutor to prove the defendant has violated the criminal law is beyond a reasonable doubt. On the other hand civil law violations are about negligence or fault and the burden of proof is a preponderance of evidence. A preponderance of the evidence is the greater weight of evidence. Think of preponderance of evidence as the scales of justice; just tip the scales and you win. But with the burden being beyond a reasonable doubt and you have a much tougher job in putting on enough evidence to make the elements of the crime true beyond any reasonable doubt.

And that’s the difference. Yes there can still be a civil case by the estate of the dead man or his wife and children.

 

 

Motoring Safety: Van rollover was caused by tire separation

This past week I discussed legal accident investigations and that referring attorneys need to consider acting sooner rather than later, to refer cases to more experienced counsel. The subject came to mind when a local TV station reported on a van rollover incident showing a separated tread from what was assumed to be from one of the tires. Lawyer to Lawyer Toolbox – Accident Investigation – What do I do with this case?  Joe Saunders commented and even added a post discussing his experience, a post that should also be read. Steve Lombardi’s Piece on Accident Investigation Spot On.

There are good reasons for this one of which is pointed out by the ISP accident investigation report filed. This is a case of tread separation which caused the tire to fail and may have lead to the rollover and crash. Below is the NARRATIVE from the Iowa State Patrol officer, Larson.

VEHICLE 1 WAS TRAVELING NB ON HWY 65. VEHICLE 1 SUFFERED A RIGHT REAR TIRE SEPARATION, WHICH CAUSED VEHICLE 1 TO GO OUT OF CONTROL. VEHICLE 1 SLID SIDEWAYS IN COUNTER-CLOCKISE DIRECTION AND ROLLED INTO THE MEDIAN. VEHICLE 1 CAME TO REST ON IT'S LEFT SIDE FACING A SOUTHEASTERLY DIRECTION. ONE PERSON WAS EJECTED FROM THE VEHICLE 1 DURING THE ROLLING OF VEHICLE AND CAME TO REST ON THE WEST SIDE OF THE HIGHWAY 65 SOUTHBOUND LANES.

The reason for this post is to warn those involved to get that failed tire and to immediately conduct their investigation to secure the separated tire. If not there will be no way to prove this case and that’s the point to attorneys. Don’t take cases where you get in over your head, then delay calling in others with more experience. There are plenty of experienced attorneys in the Des Moines area that can assist.  With eight people injured there may not be enough insurance coverage on the vehicle.

So act quickly and decisively.