The Verdict - The Lombardi Law Firm Blog
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In Alta Vista a two-year-old was thrown from a horse drawn buggy and was killed. The horse bolted and it appears as the father was unhitching the buggy, the horse was spooked, took off running and the buggy ended up entangled in a tractor with steel wheels. The young girl was thrown and pinned between the buggy and the steel wheels.
In other news the Iowa AG has a Wisconsin telemarketer settling a consumer action by getting them to agree to stop fundraising calls in Iowa.
A school bus from Lynville-Sully School District rolled in a ditch near Searsboro without causing serious injury to the students or driver.
The remains found in a farm field in Mahaska County, Iowa are those of a 24-year-old Fremont man missing since October 2008. The man was reported by his dad to have suffered from schizophrenia and took his own life.
Several children were pulled from a Waterloo home as it burned. The children were rescued by firefighters using a ladder to enter the second story of the home. The children suffered from smoke inhalation and were treated at the University of Iowa Hospitals and Clinics. There is no mention of the fire's cause and origin or if smoke detectors were in working order. This is probably a good reminder to all of us to check batteries in our smoke detectors.
Could a four year old really move a 14 lb. lid by himself? That is just one of the questions surrounding the death of Wyatt Smitsky who was last seen playing with his two young sisters before his disappearance sparked an 18 hour search. His body was eventually found September 5th after searchers drained a septic tank on a property near his home in Greene Township. The district attorney is saying that it is possible that somehow 4 year old Wyatt moved the tanks lid by himself, what do you think?
The law has always fascinated me; trial work especially. One fact can change your entire perception of why or how something happened. In this case we don't know what happened but as a trial lawyer with 30 years of interviews and investigations my mind can't help but play with the possible scenarios. In this case what if the lid were eschewed, the child fell in and then the owner seeing the lid, simply pushed it back into place? If that is the case then we have a whole different outcome.
Here is a second explanation that is from the bottom video tape. What if the lid wasn't secured, the boy stepped onto it, the lid flipped, the boy falls in and the lid then flips back into place? Possible? Absolutely, watch the video below.
If you have such a tank, test the lid and then secure it.
So the question remains, how did the young lad get into the bottom of the septic tank?
Here a 70+ year-old fell into a septic tank.
Here is another 4-year-old who was pulled from a septic tank.
Septic Tank Hazards are well known - Here the lid flipped open as the boy stepped onto it.
Check the lid; secure it and save a life.
Yesterday we reported on a man dying from being thrown from his truck as it rounded a curve. The way the story was written it left me with the impression he was the driver.
Today we have a report of a 61-year-old woman dying from being struck by a wind-swept door. Seems the woman in rural Alton was struck by the door of a machine shed that was blown open by a gust of wind. According to the news reports she was found unconscious in her own yard. She later died at a Sioux City hospital. Very strange indeed.
Fifty-mile per hour winds broke the door free, from what is unknown, but it then struck her in the head causing what proved to be a fatal injury.
Years ago the Consumer Product Safety Commission issued a release targeting garage door deaths. It seems like this is a separate issue from the issue with the machine shed. See Release No. 91-082.
It is certainly a tragedy for the Schuetz family. We wish them well in getting over this tragic accident.
This story was covered by the Chicago Tribune, KLEM 1410, Omaha World Herald, the Quad City Times online, KCRG, the Des Moines Register and KCCI-Des Moines. KCRG did something I’ve not seen before; they put the story on Twitter using a tinyurl.
Practicing personal injury law in the Midwest provides the opportunity for many potential clients who have been injured on someone else’s property. The winter ice storms, snow storms along with melting and refreezing creates hazardous conditions for pedestrians. Most people won’t call a lawyer for minor bumps and bruises but those with broken ankles, wrists, arms or ruptured discs will call the lawyer’s office. The problems I see with these cases are varied although there are a few main categories that deserve discussion.
Broken Wrist Injury
A broken wrist is common following a fall on an outstretched hand. A Colles fracture is a fracture of the Radius bone of the forearm, just above the wrist (a Scaphoid fracture is the other common type of wrist fracture). Symptoms include a great deal of wrist pain, a "dinner fork" deformity, wrist swelling and an inability to use the wrist and hand. If a wrist fracture is suspected the patient should be taken to an accident and emergency department without delay.
First understand that you have to prove there was an unreasonably dangerous condition (UDC) that existed on the property. Depending on the use of the property that UDC can take several forms. For instance, if it’s a store where customers are invited to visit, expected to visit and is purposefully distracted with advertisements, then the proprietor is required to anticipate customers will not necessarily recognize and protect themselves from icy conditions. Because the store owner can anticipate this it requires some action on the store owner’s part; sand and salt along with keeping sidewalks clear of ice and snow. If the icy condition is especially difficult to clear then a warning sign, such as the yellow bi-fold sign you see janitor’s use, may be required. The way the law works is the person with the duty must first attempt to make the condition less dangerous and if that’s not possible then to warn those expected to come into contact with it.
While we are discussing conditions let’s talk about artificial conditions. Have you ever seen a downspout that empties right onto a sidewalk? Yeah, me too. The problem occurs with roof ice melting then draining down the spout and refreezing on the sidewalk. That’s known as an artificial condition or man-made condition, which creates a risk. But for the man-made condition the risk would not exist. But for the condition being obvious this is one of the easier ways in which to establish landowner liability.
So what do I normally hear from clients concerning the accident location? About ninety-percent say the same thing. Most everyone says it was slippery or slick. Well folks most of the Midwest is slippery after a storm. Just saying it was slick or icy isn’t enough to prove liability. Slippery conditions existing outside, in the Midwest states during the winter months, isn’t in and of itself, a property defect. And yes, you still have to prove there was a legal defect in the property; or some condition that is unreasonably dangerous. Just testifying you fell and were hurt won’t be enough.
So how do you prove a property defect? More specifically, how do you months later prove a defect long after the snow and ice have melted? To understand the problem let’s go back to the instance after you’ve fallen. Most people are embarrassed, quickly get up, dust themselves off and try to escape the situation. Okay, after falling you’re embarrassed. First you need to get over it and see how you feel. If there is a broken bone or it feels like there is broken bone you need medical attention. But realize that the minute after you leave to get medical attention the attendant employee will run outside and alter the situation with ice melt or sand. So if you’re with someone, a potential witness, ask them to survey the situation along with you. What do you see? Note specifically the size of the icy spot where you fell, the source of the ice, whether it’s from an artificial condition, whether anyone has put sand or ice melt down and the extent of the conditions. By that I mean how large is the icy patch and did the proprietor take any precautions to protect the store patrons from slipping on ice? Is there a warning sign drawing the customers’ attention to the fact that icy conditions may exist and be hidden?
At the accident scene in general people are not likely to be thinking about suing anyone. It’s human nature to be first forgiving. I understand human nature; after 28 years I also appreciate the nature of the insurance business. Deny, deny and deny some more. You see it’s up to the injured person to be able to prove liability. That means if you have a cell phone camera or any camera for that matter, take it out and take some pictures. Don’t be embarrassed or ashamed. Just do it. If anyone says anything to you ask for their name and contact information because sooner or later you’ll need independent witnesses and this is as good a time as any to preserve who those witnesses might be.
Remember, it’s YOUR responsibility to prove liability. Just falling and getting hurt on someone’s property won’t be enough to trigger coverage under the liability portion of the policy. Contacting a lawyer in June about something that occurred in February makes proving your case next to impossible.
Teenagers Slip and Fall on Ice – Shows generally how icy conditions may not be clearly visible.
Worker Slips and Falls While Closing Doors – Security Camera
Parking Lot Slip and Fall – Security Camera (start at 50 sec.)
Sometime in the future I’ll discuss interior conditions that may be considered to be unreasonbly dangerous. Until then here is a video clip that might help you.
Can Polished Concrete Be Slippery? #40C ConcreteNetwork.com
Megan wrote yesterday about science laboratory accidents that injure students. Her post Experiments in Education, discussed the danger for serious injury while conducting lab experiments. I was surprised how many students were injured in school labs. I went to high school from 1968 to 1972 at Bristol in High SchoolRhode Island. Back in the day, our labs were pretty basic. We horsed around and made it through without anyone getting seriously injured. I did like to experiment. I’d better leave it at that lest some parent take me to task for suggesting one more way a young student can get hurt.
Today I’d like to talk about student responsibilities and tomorrow the teachers. Remember these “responsibilities” are the foundation that creates a duty. And duty is one of our elements to be proven in any tort action. And a tort is that civil wrong or negligent act, where money damages can be sought.
NIOSH publishes a publication that teachers and students should all read at the beginning of the year. Every student and teacher should be familiar with it and what each other’s responsibilities are. It’s titled “What are the Safety Do’s and Don’ts for Students?” This publication recognizes life threatening injuries can happen in the laboratory. That means serious burns, explosions, cuts from flying glass, lacerations from broken beakers, poisonings from ingesting or inhaling poisonous gas and a whole assortment of brain injuring events if things aren’t done right. So listen up, because your future may be at stake.
There is certain conduct you should not do.
There are certain procedures you should follow about the way you work together in the lab.
Housekeeping is important, meaning cleaning up after yourself and others. Keeping your work area neat and tidy is important.
The way you dress and what you wear is important.
You should maintain a clean environment by washing your hands and maintaining an organized and clean work area. Don’t touch your face or eyes and heavens don’t be applying makeup while in the lab.
How you handle chemicals is important.
And, how you react when an accident does happen. You should know emergency procedures.
Below are the laboratory safety rules that if followed will help students remain safe, healthy and injury free. Read them and follow them for your own good.
- Do not engage in practical jokes or boisterous conduct in the laboratory.
- Never run in the laboratory.
- The use of personal audio or video equipment is prohibited in the laboratory.
- The performance of unauthorized experiments is strictly forbidden.
- Do not sit on laboratory benches.
General Work Procedure
- Know emergency procedures.
- Never work in the laboratory without the supervision of a teacher.
- Always perform the experiments or work precisely as directed by the teacher.
- Immediately report any spills, accidents, or injuries to a teacher.
- Never leave experiments while in progress.
- Never attempt to catch a falling object.
- Be careful when handling hot glassware and apparatus in the laboratory. Hot glassware looks just like cold glassware.
- Never point the open end of a test tube containing a substance at yourself or others.
- Never fill a pipette using mouth suction. Always use a pipetting device.
- Make sure no flammable solvents are in the surrounding area when lighting a flame.
- Do not leave lit Bunsen burners unattended.
- Turn off all heating apparatus, gas valves, and water faucets when not in use.
- Do not remove any equipment or chemicals from the laboratory.
- Coats, bags, and other personal items must be stored in designated areas, not on the bench tops or in the aisle ways.
- Notify your teacher of any sensitivities that you may have to particular chemicals if known.
- Keep the floor clear of all objects (e.g., ice, small objects, spilled liquids).
- Keep work area neat and free of any unnecessary objects.
- Thoroughly clean your laboratory work space at the end of the laboratory session.
- Do not block the sink drains with debris.
- Never block access to exits or emergency equipment.
- Inspect all equipment for damage (cracks, defects, etc.) prior to use; do not use damaged equipment.
- Never pour chemical waste into the sink drains or wastebaskets.
- Place chemical waste in appropriately labeled waste containers.
- Properly dispose of broken glassware and other sharp objects (e.g., syringe needles) immediately in designated containers.
- Properly dispose of weigh boats, gloves, filter paper, and paper towels in the laboratory.
Apparel in the Laboratory
- Always wear appropriate eye protection (i.e., chemical splash goggles) in the laboratory.
- Wear disposable gloves, as provided in the laboratory, when handling hazardous materials. Remove the gloves before exiting the laboratory.
- Wear a full-length, long-sleeved laboratory coat or chemical-resistant apron.
- Wear shoes that adequately cover the whole foot; low-heeled shoes with non-slip soles are preferable. Do not wear sandals, open-toed shoes, open-backed shoes, or high-heeled shoes in the laboratory.
- Avoid wearing shirts exposing the torso, shorts, or short skirts; long pants that completely cover the legs are preferable.
- Secure long hair and loose clothing (especially loose long sleeves, neck ties, or scarves).
- Remove jewelry (especially dangling jewelry).
- Synthetic finger nails are not recommended in the laboratory; they are made of extremely flammable polymers which can burn to completion and are not easily extinguished.
- Keep your hands away from your face, eyes, mouth, and body while using chemicals.
- Food and drink, open or closed, should never be brought into the laboratory or chemical storage area.
- Never use laboratory glassware for eating or drinking purposes.
- Do not apply cosmetics while in the laboratory or storage area.
- Wash hands after removing gloves, and before leaving the laboratory.
- Remove any protective equipment (i.e., gloves, lab coat or apron, chemical splash goggles) before leaving the laboratory.
- Know the location of all the exits in the laboratory and building.
- Know the location of the emergency phone.
- Know the location of and know how to operate the following:
- Fire extinguishers
- Alarm systems with pull stations
- Fire blankets
- Eye washes
- First-aid kits
- Deluge safety showers
- In case of an emergency or accident, follow the established emergency plan as explained by the teacher and evacuate the building via the nearest exit.
- Check the label to verify it is the correct substance before using it.
- Wear appropriate chemical resistant gloves before handling chemicals. Gloves are not universally protective against all chemicals.
- If you transfer chemicals from their original containers, label chemical containers as to the contents, concentration, hazard, date, and your initials.
- Always use a spatula or scoopula to remove a solid reagent from a container.
- Do not directly touch any chemical with your hands.
- Never use a metal spatula when working with peroxides. Metals will decompose explosively with peroxides.
- Hold containers away from the body when transferring a chemical or solution from one container to another.
- Use a hot water bath to heat flammable liquids. Never heat directly with a flame.
- Add concentrated acid to water slowly. Never add water to a concentrated acid.
- Weigh out or remove only the amount of chemical you will need. Do not return the excess to its original container, but properly dispose of it in the appropriate waste container.
- Never touch, taste, or smell any reagents.
- Never place the container directly under your nose and inhale the vapors.
- Never mix or use chemicals not called for in the laboratory exercise.
- Use the laboratory chemical hood, if available, when there is a possibility of release of toxic chemical vapors, dust, or gases. When using a hood, the sash opening should be kept at a minimum to protect the user and to ensure efficient operation of the hood. Keep your head and body outside of the hood face. Chemicals and equipment should be placed at least six inches within the hood to ensure proper air flow.
- Clean up all spills properly and promptly as instructed by the teacher.
- Dispose of chemicals as instructed by the teacher.
- When transporting chemicals (especially 250 mL or more), place the immediate container in a secondary container or bucket (rubber, metal or plastic) designed to be carried and large enough to hold the entire contents of the chemical.
- Never handle bottles that are wet or too heavy for you.
- Use equipment (glassware, Bunsen burner, etc.) in the correct way, as indicated by the teacher.
NIOSH Publication No. 2007-107