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Two College Students Killed in Sewanee Tractor Trailer Wreck

George Fusner — Mon, 12 Oct 2009 10:17:47 GMT

19-year-old Kathryn "Katy" Christianson of Chattanooga and 18-year-old Kathleen Beech of Clarksville were killed in the Thursday morning crash while they are two other University of the South rowing team members were en route to practice. The accident occurred at approximately 7 AM local time. This hits close to home as I have a son in college.

According to police reports, Beech (the driver of the vehicle) went to cross U.S. 41-A at Airport Road when her vehicle was struck by an oncoming tractor-trailer, driven by John H. Tucker. Tucker was treated at a hospital and released.

It is a difficult time for all those involved to pick up the pieces. Ms. Christianson and Ms. Bleech leave behind friends, family, and teammates. They all have my condolences.

Many facts of the accident remain untold. What was the cause of the accident? Did Ms. Bleech not see the truck? It was early enough, he should have had his lights on. How fast was the truck going? These are questions that hopefully will find answers. Also, the passengers of Ms. Bleech’s vehicle (as well as Ms. Christianson’s family) can recover from the insurance policies of both Ms. Bleech and the truck driver, even if Ms. Bleech was the more negligent driver.

If you or someone you know is injured as a passenger of a vehicle, talk to an experienced car wreck or tractor trailer wreck attorney about recovering what is due. Just because the driver of your vehicle was negligent does not bar you from recovering from the other driver’s insurance policy or from their insurance policy if you are a passenger. IN some cases if there is not enough insurance your own underinusred motorist policy may allow for a recovery as well.

Originally posted at InjuryBoard by George Fusner

NY Wrong Way DUI – Who Should We Believe?

George Fusner — Mon, 10 Aug 2009 15:43:02 GMT

The story of Diane Schuler’s death continues to unfold. After a toxicology report stated Ms. Schuler was under the influence of marijuana and had blood alcohol level of 0.19 at the time of the crash, her husband Daniel claimed the report must be inaccurate. He went on to even say he’s never seen her drunk during their marriage. I hope for his sake he is telling the truth about his wife’s alcoholism, but it seems like reports are starting to surface which say otherwise.

Mr. Schuler has had issues with drinking in the past. In 1995, Mr. Schuler was arrested for DWI. While this was 15 years ago, it certainly hurts his credibility. The five year old survivor may be the only one who will be able to tell investigators what was really going on, but even then, the story will be incomplete. Suffolk County Child Services is now investigating Mr. Schuler, to see if he had any role in the events leading up to the crash. Mr. Schuler’s own independent investigator stated that the vodka bottle found near the crash may have been packed by Mr. Schuler earlier that day. If she doesn’t drink, why was a bottle of vodka packed?

It’s truly a tragic story. While some believe placing blame in this story is inappropriate considering the insurmountable loss experienced by both everyone involved, it doesn’t change the fact that seven people died because of Mrs. Schuler’s actions.

The question that must be asked as the investigation continues: will the victims’ families be rightfully compensated? The answer is not quite clear yet. One way is to investigate the signage in the area. It’s been reported that there were one way and “do not enter” signs at the intersection to warn motorists it was the wrong way, but nothing on the ramp once entered. Even so, it may be difficult to prove that this was a cause-in-fact of the crash, considering Ms. Schuler’s state of mind. You can be sure that every stone will be turned.

Then there’s the Schuler’s insurance policy, as well as the policies of the other drivers. Without knowing specifics, it’s difficult to tell what the victims will receive from the policies, but it will surely be grossly inadequate.

The dram shop act in NY may apply if new facts are revealed, but at this time it doesn’t seem likely it will be brought up (I talk about TN’s dram shop act in an earlier post here). Most likely, the civil litigation is going to revolve around the investigations ongoing: What role did Mr. Schuler really have in his wife’s addiction?

It’s too early to assume Mr. Schuler’s contribution to the accident in this story, but as more information is received, I will discuss the effect it will have on the upcoming litigation. Right now this story is the perfect example of why you engage an attorney as soon as possible after a wreck.

Originally posted at InjuryBoard by George Fusner

Forklift Safety Is Serious Business

George Fusner — Mon, 17 Aug 2009 17:31:12 GMT

Last week I wrote about Brandon Walker from Chapmansboro who was killed while operating a fork lift in Nashville. Did you know that every three days someone is killed in a forklift related accident? Each year over 95,000 injuries related to forklift accidents are reported. According to the United States Department of Labor Occupational Safety & Health Administration (OSHA) violations of the OSHA forklift standard resulted in over $1 Million in fines in 2008 alone.

OSHA has standards for the operation of forklifts around electrical lines since the early 1990's. Training is mandatory for operators of forklifts. In Brandon's case did he receive the proper training required by OSHA? Was he trained specifically to work around overhead wires? Many unanswered questions. Perhaps this tragedy could have been avoided.

Originally posted at InjuryBoard by George Fusner

Two Injured in Erin Single Car Accident

George Fusner — Wed, 26 Aug 2009 10:02:38 GMT

Two Houston County high school students in Erin were injured while passengers of a 1995 Honda Accord when the driver, who has not been identified, crashed into a ditch. Brittney Smith, 17, was transported to Patients’ Choice Medical Center by ambulance. Lindsey Batt, 16, was flown to Vanderbilt University Medical Center where she is reported in stable condition.

The accident occurred after school got out on Monday, Aug. 24. The driver ran off the road, over corrected the vehicle twice, then finally striking a ditch and overturning the vehicle. She was reportedly wearing her seat belt improperly and had to be extracted by emergency workers. No word on her injuries.

Trooper Billy Smith reported that speed was a factor in the crash. It’s safe to assume the driver was also distracted in some way. The dangers of distracted driving are only amplified when the driver is inexperienced and speeding. Especially troubling are teenagers these days have a propensity to multitask while driving, namely text while driving. Texting while driving is now illegal in Tennessee, but that won’t stop all offenders.

This may be a classic case of a negligent teenage driver distracted by this or that. Or, it could be an issue of teenagers being distracted by talking on a cell phone or texting. Perhaps the passengers will speak up if this is the case. Either way, it’s always unfortunate to see teenagers learn the hard way that safe driving is a serious matter.

Originally posted at InjuryBoard by George Fusner

Defective Yamaha Rhino's In Tennessee

George Fusner — Thu, 02 Apr 2009 10:17:18 GMT

Many of you may have heard of the recent recall of Yamaha Rhino's by the CPSC. Why did it take over 40 deaths and hundred's of serious injuries for this to take place? I do not know, but I can guess that it was intense lobbying by Yamaha to prevent this action. The manufacturer of products want to keep selling their goods. A recall costs them sales and profits, even when the product is unreasonably dangerous or defective. Often it the Plaintiffs' lawyers that spend their money and time on behalf of the injured parties and their families that bring these situations to light forcing a recall and saving lives.

This type of case is called a product liability case. The cause of action or claim is based on strict liability rather than negligence. Tennessee Code Section 29-28-105 states that one who manufactures or sells a defective or unreasonably dangerous product is responsible to the ultimate consumer of the product for physical harm to the consumer caused by the product. Tennessee is different than most states laws in this regard. For most states a product must be BOTH defective and unreasonably dangerous. In Tennessee only one standard must be present. Either "defective" or "unreasonably dangerous." The law of Tennessee is also different than a lot of other states in that in many cases the injured party, or their heirs in the case of death, have only ONE year from the date of injury to bring the claim. Other states are much longer. However, if a year has passed still contact a qualified attorney, the one year limitation sometimes can be gotten around by filing in another jurisdiction. (I have been successful in this regard in the past.)

I have handled products liability cases in the past. From those experiences I have learned a number of lessons. First and foremost PRESERVE the product in its unaltered form. DO NOT under any circumstances allow the manufacturer or dealer access to the product. Do not attempt to repair or fix it. Second hire a qualified attorney as soon as possible. He can assist you in preserving the product. Remember the rolled over Rhino is "evidence." Rest assured Yamaha has attorneys on staff and on retainer that will respond immediately. You need that protection as well. Third be patient once you hire your attorney. He has to retain an expert familiar with the product to preserve and examine it so that he can testify in the future about the defect. This takes time. The attorneys who handle products liability cases know the experts who can help you.

As always call with any questions. I am here to assist in any way. The call is free.

Originally posted at InjuryBoard by George Fusner

Defective Infant Bassinets Recalled

George Fusner — Thu, 20 Aug 2009 14:02:49 GMT

The U.S. Consumer Product Safety Commission ("CPSC") renewed a recall on defective Infant Bassinets today. The announcement outlined in great detail the defects and recall. If you think you might have one of these bassinets check out the announcement and descriptions very carefully.

I hope and pray that you do not have a loved one who may have been injured by one of these cribs. Although clearly liable for producing a dangerous or defective product the responsible party may escape. My preliminary research has indicated that the manufacturer is out of business. Its assets were purchased by an alphabet soup company formed by one of the private venture capital firms. That entity also appears to be out of business. Hopefully there is some products liability insurance still available for these injuries and deaths.

In Tennessee the retail seller of the bassinets can also be held liable for the injuries and death. In the announcement by the CPSC a list of stores including Wal-Mart is identified. Hopefully the remaining units have been taken off the market. Check your bassinet and return it if in ANY doubt.

Lastly, read the description in the article as to the actual defect.

Originally posted at InjuryBoard by George Fusner

Gunfights In Nashville Bars

George Fusner — Tue, 16 Jun 2009 11:19:00 GMT

The front page of todays Tennessean headlines a story that Nashville bar owners plan to ban holders of a Tennessee Handgun Carry Permit from entering their establishment with their weapons. Much talk about a fictional problem. Before continuing, and to be transparent as our President likes to say, I am a long time holder of a Tennessee Handgun Carry Permit, a life time member of the NRA, a lifetime member of Safari Club International, an avid hunter, member of the Tennessee Association for Justice (formerly the Tennessee Trial Lawyers Association) and a member of the American Association for Justice. I consider myself a personal injury lawyer who only represents plaintiffs.

As such I would be approached by an individual wishing to sue someone or some bar if they were shot in a bar by a person carrying a gun with a Tennessee Handgun Carry Permit. Would I take the case. Probably not. Are these cases winnable? Probably not in Tennessee. The bar owners are quoted as being fearful of the liability. A little hypocritical would you say from someone who sells alcohol and then watches their patrons drive away under the influence.

Some background on the issue is necessary. Tennessee is known as a "shall issue" state. That is if the applicant meets the requirements of the Handgun Carry Permit statute, the Department of Safety MUST issue the permit. That statute is TCA 39-17-1351. It requires among other things that the applicant must have taken a course that includes both classroom study and range time to establish that the applicant can safely use a handgun. Tennessee's requirements are some of the strictess in the nation. Its permit is widely accepted in many states as a result of the training requirements. As a matter of fact only 15 states do not honor Tennessee's permit. Look at this list compiled by the Tennessee Department of Safety. Another good source is this website.

That training is what will cause the courts to throw out these cases. The basic defense is that the carrying of the pistol or allowing the carry in the bar is NOT the proximate cause of the injury. Several years ago a tragic event occurred in Memphis. An underage youth was an avid hunter. He had a number of guns and had received training in shooting and safe gun handling. He had taken a Hunter safety course when he was in the sixth grade. Although under age he purchased ammo illegally for his 44 magnum hunting revolver. One night he heard a noise outside the patio door. He shot through the door an killed one of his friends. A lawsuit was brought against the owners of the gun store that had sold the minor the ammo. The Tennessee Court of Appeals held that as a matter of law the store was not responsible. It stated:

Under the uncontroverted facts in the instant case, defendant's sale of the ammunition to Cannon, at most, created a condition by which the unfortunate incident was made possible. The direct and proximate cause of the incident was the action of Cannon in firing a gun at a supposed intruder.

I believe this is exactly what would happen in the bar case. It is not the action or inaction of the bar owner letting a patron carry. The injury by shooting would be the firing of the handgun by the permit holder.

Now for a little practical advice. As a permit holder what am I doing in the bar? If I am carrying I am not drinking. Why? Its illegal and a Class A Misdemeanor. Check out TCA 39-17-1321. It says:

Notwithstanding whether a person has a permit issued pursuant to § 39-17-1315 or § 39-17-1351, it is an offense for a person to possess a handgun while under the influence of alcohol or any controlled substance.

(b) A violation of this section is a Class A misdemeanor.

If I am drinking I am not carrying. No not even one drink.

Originally posted at InjuryBoard by George Fusner

What To Do If You Hit A Deer?

George Fusner — Fri, 20 Nov 2009 14:41:22 GMT

The Deer gun season opens tomorrow November 21, 2009. Hopefuly I will be in the woods. However, this time of year the deer are very active and often cross the road. I have actually hit a deer twice. They can really tear up a truck. Fortunately I was not injured but could have been.

Channel Five News in Nashville recently reported on the problem. Watch the video here.

Now what do you do? Hopefully you were not injuried. As with any accident document your damages. Take photos of the damage and dead deer at the scene. The insurance company will want proof that you hit a deer. In one of my cases the adjuster found deer hair in the crushed grill. That saved my claim. Report the claim to your insurance company as soon as possible. Call the TWRA to inform them of the incident. They probably will not investigate, however, you have made a record.

If you eat venision like I do, prerserve the good part instead of letting it go to waste. In Tennessee we have a "road Kill" law found at TCA 70-4-115. It states



		(c) Motorists are not required to report game accidentally killed by the operation of a motor vehicle. Notwithstanding any other provision of the law to the contrary, wild animals accidentally killed by a motor vehicle may be possessed by any person for personal use and consumption; except that, first, personal possession of a deer accidentally killed by a motor vehicle is permitted only if the person notifies the wildlife resources agency or any law enforcement officer within a reasonable time not to exceed forty-eight (48) hours and supplies that person's name and address; and second, personal possession of a bear accidentally killed by a motor vehicle is permitted only when authorized by an enforcement officer of the wildlife resources agency and the person is issued a kill tag. In deer-kill notification situations where a law enforcement officer rather than someone with the wildlife resources agency is notified, the law enforcement officer or the officer's designee shall be responsible for notifying someone with the wildlife resources agency and supplying the information relevant to the deer-kill.

Keep a sharp lookout. Scan to the sides of the road. If you see a deer cross in front of you there will likely be another one so slow down.

Originally posted at InjuryBoard by George Fusner

Vehicle Safety: Today and the Future (Audi takes the lead.)

George Fusner — Tue, 20 Oct 2009 10:34:25 GMT

It was 50 years ago the three point safety harness (also known as the seat belt) was invented, and pioneers in the industry have been working to make a safer vehicle ever since. I’ve already talked about radar cruise control, so I thought instead I’d go through a recent Audi press release concerning their high-tech new safety features found in some of their vehicles. Features include:

Ø Adaptive restraint system – Front end crashes were once extremely deadly. Thanks to the safety advances over the last 50 years, that’s no longer the case. However, while airbags and seat belt locking mechanisms are effective in mitigating the impact of a high speed collision, they can sometimes do more harm than good in slower accidents. The force of the airbag can sometimes be so strong that it injures the person unnecessarily. The adaptive restraint system is a broad term where the seat belts and airbags act responsively to the impact of the crash, so that in a lighter crash, air bag deployment is only as powerful as it needs to be – preventing injury from the crash itself along with the airbag deployment.
Ø Airbag Valves – when the airbags are deployed in a low to moderate speed accident, small valves on the backside of an airbag will allow the airbag to “deflate,” only as much as necessary, to prevent too much force striking the passengers.
Ø Belt force limiter – in a moderate crash, a lighter person in a traditional vehicle may be subject to a thorax injury because the passenger’s body does not reach the airbag. Audi’s system will intelligently disengage if necessary to allow the passenger’s body to reach the airbag, which will reduce the chance for injury. In an extreme accident, though, the system will not disengage – which is a good thing.
Ø Seat position memory – to go along with the adaptive restraint system, the Audi’s computer knows the location of the seat on its rails, whether close up or far away from the steering wheel. Accordingly, it uses this data to help the adaptive restraint system work more effectively.

These are amazing features – but this isn’t an advertisement for Audi. (I watched the Audi race cars at Road Atlanta at the Petit Le Mans several weeks ago and have to admit some prejudice.) Other competitors in the Audi’s price range offer similar features. The real question is how long will this take until it reaches more masses – that is, when will moderately priced vehicles such as the Toyota Camry, or the Honda Accord, get these technologies? Even further than that, how long until the Hyundai Accent and Chevrolet Aveo have these features? The technology is here. Manufactureres have no excusses, use it.

Originally posted at InjuryBoard by George Fusner

New Safety Technologies Become Mainstream

George Fusner — Tue, 15 Sep 2009 15:14:33 GMT

Only a few years ago Mercedes unveiled to the world “radar cruise control.” It allows driver to set a speed, much like normal cruise control found in nearly all vehicles today. However, if the vehicle ahead is traveling slower – the car will automatically slow down, or even brake to a stop. The technology improved further since – Lexus’ version now offers collision-prediction technology, where the seat belts tighten and brakes are applied when an unavoidable collision is imminent.

Other technologies over the last years seek to prevent accidents by alerting drivers of impending danger. Nearly all luxury manufacturers now offer safety alert systems, and most mainstream luxury vehicles now offer blind-spot alert systems.

These technologies appear to be working, too. According to ABC News and the Federal Highway Association, traffic fatalities in 2008 were the lowest in 48 years, and preliminary reports show further decline in 2009. Just as importantly, as these technologies age, they become less cost prohibitive to put into less expensive vehicles. The Ford Taurus now offers three different technologies similar to what I talked about earlier. As time goes on, more and more affordable vehicles will offer these new technologies which could help prevent accidents, or mitigate the damage.

What does this mean from an attorney’s perspective? This means that the argument that a safety feature was cost prohibitive to include in a vehicle is more difficult to make. It means auto manufacturers must take it upon themselves to adopt these technologies if they can prevent an auto accident. And finally, it means that as these effective tools become more affordable, auto manufacturers have no excuse not to protect their customers.

Originally posted at InjuryBoard by George Fusner

Notwithstanding whether a person has a permit issued pursuant to § 39-17-1315 or § 39-17-1351, it is an offense for a person to possess a handgun while under the influence of alcohol or any controlled substance.



		(b) A violation of this section is a Class A misdemeanor.