The Lombardi Law Firm Blog

Ski Train Not Running from Denver to Winter Park

The Publics’ Attitude about Lawyers in General, Will Eventually Hurt You

Trains and Pedestrians, A Painful Case

Raising children is difficult enough without trying to do it from a jail cell

Recently we've read disturbing news alerts, here are a few reports that alarm us. We report on stories like this hoping others will read and learn the lessons having to do with child safety. Keep in mind these are the news reports and news is not always the way things turn out nor are news stories always true; meaning the facts may be different than what is reported.

A 21-year old woman from Norfolk, Nebraska faces felony charges of abuse and neglect of her 2 year old son who was left home alone overnight in their apartment on May 1, 2009. Police responded to a call that the child was alone and had the child removed immediately. The apartment manager informed the mother who returned more than 12 hours after leaving that her son had been removed.

On May 4, 2009, another mother from Omaha, Nebraska left her 3 month old baby home alone and was arrested for drunk driving while out to buy more booze! Besides the DUI charge, this woman faces felony child abuse, and driving with a suspended license.

In late April 2009, also in Omaha, a 2 year old and 4 year old were found home alone when a neighbor called the apartment manager about water leaking through his ceiling. The manager found the children home alone with an overflowing toilet. The children told the officers that they were usually home alone when their mother was at work. The father of these children has been cited for neglect……was he supposed to be home watching them?

Nebraska’s safe haven law which was enacted in September 2008, allows parents to abandon their children at a hospital without fear of prosecution, NO QUESTIONS ASKED.

If nothing else consider the consequences ……if you don’t want the responsibility of raising children, or if they are in the way of your good time at least allow them to be adopted by people who would provide good homes, people who wouldn’t think about leaving a baby home alone. Think of the child.

Pierce is entitled to receive both work comp and negligence damages

Even though a fiancé’ is not entitled to death benefits under Iowa law a dependent (unborn) child is entitled as is Pierce's (the driver’s) estate.  This is another example of an accident that results in the death of a driver while working and there are two sets of claims to pursue.  The one set of claims involve the Iowa workers compensation act benefits for dependents and the other set of claims are for negligence related damages from the other driver (in this instance the likely defendants would be the driver that crossed the center line, reported as William Crookshank, 47, of Randolph, Minnesota and his employer) that crossed the center line after rear-ending the semi truck in front of him.  Robert Pierce is the driver that died, likely instantaneously.

While practicing in Waterloo in the early 1980’s I settled a case for a woman who was on her way back home from the hairdressers to put on her wedding dress. She was to be married that day within hours of her face being smashed through the windshield of the car she was driving. The law in Iowa does not allow non-married couples to seek consortium damages, even when all that is left to do is have the ceremony. The dependent unborn child is a different situation and an interesting one. 

There is no full report from the Iowa State Patrol, at the time of this writing.

Recall of AED 10 and MRL JumpStart external defibrillators

If your business owns a defibrillator take a look to see if it’s a “14,054 AED 10 and MRL JumpStart external defibrillators made between Oct. 3, 2002, and Jan. 25, 2007. They may not work correctly when called upon to shock a patient resulting in low-energy shocks. There have been 39 incidents reported resulting in two deaths. The company, Welch Allyn and the U.S. Food and Drug Administration are having a recall of this model.  On the Welch Allyn website they provide a way for you to check the serial numbers on the unit you own to know if it’s affected by the recall.  

This is really a tough business we are in as litigators. Yeah I know no one wants to listen to a personal injury lawyer whine. But really it is. Think about this situation for a moment. You expect a defibrillator to work properly when you suffer a heart event requiring it’s use. And when it doesn’t and it’s predictable due to a defect in the equipment you expect the lawyer to sue the company. But the client may be dead due to what? Was it due to the defibrillator not working right or the heart event?

What came first the chicken or the egg? Well I guess it will all come down to the autopsy and what the medical examiner says was the actual heart event and how easily that condition is normally corrected. Follow the FDA link for further information.

Welch Allyn currently sells at least five different model defibrillators. The AED 10 is described below:

AED 10™ Defibrillator

Designed for easy operation and quick deployment by the infrequent user, the AED 10 is a simple, proven solution for quick and easy response to cardiac emergencies.

·                          Text and voice instructions guide the user through the rescue

·                          Color-coded pads and illustrations ensure proper pad placement

·                          Escalating energy (200 J, 300 J, 360 J); energy protocol can be changed to meet specific needs

·                          High-performance battery delivers up to 90 discharges at 360 joules

·                          Internal memory stores event data including ECG waveforms, time/date stamps, shock delivery and system actions

·                          Lightweight and compact—ideal for small spaces

Railroad Crossing Safety: Pregnant mother with 2-year old killed at crossing

A pregnant mother, Heather Sheree Balven, from the St. Louis area (Hartford) was killed when a train struck the pickup truck she was driving.  Well liked her fellow workers, she was a geotechnical engineer who was working at the time of the collision. She did soil testing at a pipeline construction site. She was 31-years old and had a two-year-old toddler at home. She was noted to be familiar with this railroad crossing.

There have be a few fathers and mothers out there with questions about what would happen to the children. In Iowa, which is probably different than Missouri, the husband and child would be paid workers’ compensation benefits. The husband would receive benefits for life, the children for their minority and if they attended college, for four more years. The husband would also check in with the Social Security Administration, his local SSA office, and apply for death benefits, which may or may not apply.

The husband of course should see a lawyer in the St. Louis area who is familiar with train crossing litigation to evaluate the site-distances and other potential issues.

Why do these collisions occur? Well there are many reasons including poor judgment being exercised by the car or truck drivers. Some people are just impatient and ignore the cross bucks. Here is an example that this reporting team caught on film.

In many of these instances the driver ends up a statistic.

Lawsuit Stemming From Deaths at Greenwood Home For Disabled

Under a court order since November of 2004, the Glenwood Resource Center of Glenwood, Iowa, a state-run home for the disabled, has experienced one death per month for the last thirteen months. Ironically, they quote Aristotle for their "quality quote," which reads, "We are what we repeatedly do. Excellence, then, is not an act but a habit."

For those who are unfamiliar with the recent articles written by the Des Moines Register's Clark Kauffman, the facts of this tragic series of incidents are these:

• Glenwood Resource Center has been operating under a court order, enforced by the United States Justice Department since November of 2004. Glenwood was given three years-until October of 2007-to comply with minimum standards of care. Glenwood was given another year to comply with the court order when deadline was extended to October of 2008. The October 2008 deadline passed with no action against Glenwood.
• Unable to complete many of the duties listen in their job descriptions because they were not licensed within the State of Iowa, the two previous medical directors had either no experience in running a medical center or had a lot of experience in filing lawsuits and providing questionable care.
• Over the past 14 months, Glenwood has employed nine unlicensed psychologists who answered to yet another unlicensed employee, the psychology administrator, for a total of 11 unlicensed staff members. However, none of the nine psychologists can be reprimanded because Iowa law only requires private, for-profit psychologists to comply with state licensing requirements.
• A lawsuit was filed by Georgette Alexander of Oskaloosa after her son, a Glenwood resident, died when he was not properly monitored following a choking incident.
• Iowa Governor, Chet Culver, who refused to make public a multitude of e-mails among his staff relating to the death of the Glenwood resident, now claims to be concerned and expects changes to be made.

This series of unfortunate events raises eyebrows as well as questions. Why are both Governor Culver and the U.S. Department of Justice allowing the extension of deadlines? Within forty-eight hours of the October 2007 deadline another Glenwood resident died due to inadequate nursing care. Additionally, why has there been no adverse action taken against Glenwood for failing to meet the October 2008 deadline? Why would Glenwood follow any deadline, when it is apparent that there are no repercussions when they are failed to be met?

Another issue, which leads to problems at Glenwood Resource Center, is the fact that Section 154B.3(3) of the Code of Iowa requires only private, for-profit psychologists to obtain a license within the state of Iowa in order to practice.

In another recent article by the Des Moines Register, Governor Culver claimed that the Glenwood center is making progress in implementing the 2004 court order. One would certainly hope so; the 315 residents at Glenwood have been waiting four years.

Storm damage and a falling tree limb

Question: There was an ice storm that hit my area of Iowa and a limb from my tree hit my neighbors garage. it only put a small hole in the overhead garage door and dented the rain gutter. to what extent am I liable for that damage? is it my responsibility to pay for repairs or is that her insurances responsibilty? Is this an act of God?

Answer: Can the neighbor show the tree or limb was diseased, rotten or hanging and ready to fall? If not what's the theory of liabilty against you. No strict liability in Iowa for injury or damage to a person or property occuring on someone's property.