I'm a Personal Injury Attorney and my car was just hit in the parking lot!

I walked out from the office today with some of my colleagues to grab some lunch.  I walked passed the rear of my car when I noticed a fairly decent-sized scratch and dent along the back left hand side of my bumper.  It looked relatively fresh.  I thought, "when did that happen? Was it at the gym this morning? At church yesterday?"

Whatever the case, I called my auto insurance company and set up a collision claim.  Sure, I've got a deductible, but I was certain the repair was going to well exceed that amount.  My conversation with the insurance representative was very instructive and gave me some insight into what everyone must go through with their own insurances companies.

The lady I spoke to had a kindness in her voice. Her number one concern sincerely seemed to be that I was taken care of.  At the same time, she spoke with an "as a matter of fact" confidence.  Under most circumstances, I would have little reason to question what I was being told.  But in this case, I knew better.  She spoke about the auto insurance company's "policy." In other words, their way of doing things. But what about my policy?  By "my policy," I mean the one I signed. The contract. That  is really the only one that matters.

After we discussed what had happened to my car, she told me that I was definitely covered.  She congratulated me on the fact that I qualified for their VIP, streamlined repair service. It sounded awesome. I could bring my vehicle to a one stop shop where they would inspect my car, repair my car and get me a rental vehicle. I was being sold on convenience and quality.

Here's the rub. I want my car to be repaired by someone I know and trust.  I want that person to use OEM parts.  My experience with "insurance-approved locations" is that they benefit from repeat business from the auto insurance company.  Satisfying the insurance company is more important than satisfying the customer.

I waited patiently for her to finish her repair location "sales pitch" and told her that I decided to use a different shop. She said, "OK, you are certainly entitled to do that, but you'll have to take your car to one of our property adjusters first to have them inspect it."

No.

I responded, kindly, "I really don't think my policy requires that the vehicle be inspected by an auto insurance employee before work begins, but I don't have a problem with it either way.  If you'd like to have it inspected by one of your people, it will be at the following address by tomorrow at 10:30 AM."

She responded also kindly, "OK, I will go ahead and set up an inspection at that location, but understand that it needs to be inspected before they begin work. The problem is, unfortunately, that we may not be able to get an adjuster out there for a few days. That means you'll be without a car for those days unless you want to pay for the car rental yourself. We only cover rental fees for the time that the car is being repaired."

Wrong again.

I explained to the lady that, per my policy, car rental coverage is afforded me for a reasonable amount of time.  To me, a "reasonable amount of time" begins at the time that I drop off my car until the time that I pick it up again. If the auto insurance company chooses to delay the repair time in order to perform an inspection of the vehicle, I am willing to wait that time...while sitting in my covered car rental. I asked the lady if my policy defined "reasonable" as "only the time used to physically repair the vehicle."  She agreed that it probably didn't.

So I repeated that I would drop the vehicle off at 10:30 AM at the car repair location.  I explained that I would be happy to use their reduced insurance rates on the car rental, or if they would prefer, I would rent it myself and submit it for 100% reimbursement. She put me on hold.  She came back a few minutes later and gave me a car rental number to present at the desk at Enterprise in the morning when I arrived.

None of this was really a big deal.  But what if my engine needed work?  What if the car was totaled and "reasonable" meant also time to find and purchase a new car?  What if I was injured and they offered me a quick settlement before I had a chance to be properly diagnosed?  It can get really sticky sometimes.

Be careful.

Components of a WINNING Slip-and-Fall or Trip-and-Fall Case

If you have been injured at some “big box store,” and you are having a hard time finding an attorney that will run with your case, you are not alone.  Slip and Fall (and Trip and Fall) cases can be very difficult to win and expensive to litigate.  Part of the problem is that to prove your case, you have to show that the store has some “fault” for what happened. Most people feel like “well, I was injured on their property, so that means they have to take care of me.”  That is simply not the case. 

Consider an incident where you slipped on water on the floor at the store.  Remember, since you are the Plaintiff, since you are the one making the claim, you have to prove that someone else was at fault for causing the injury.  Therefore, generally, you need to prove ONE of TWO things:

(1)  The store spilled the water there.

(2)  Some other customer spilled the water there and the store had sufficient time to clean it up, but did not do so. 

So that you can prove one or the other, here are some valuable tips that you want to consider if at possible before you leave the store (remember your health is the first priority ALWAYS):

1.     Where did the water come from?  Is there a leak somewhere in the store?  Is there a customer that spilled a water bottle? 

2.     WITNESSES.  This is huge.  Can you find other customers that not only saw you fall, but perhaps saw that puddle of water sitting there for some period of time?  Get their names and contact numbers. 

3.     PHOTOS.  Use your phone, take pictures of the area or have someone you are with take the photos.  Try to capture the water spill the best that you can.  Try to include a picture from further away that captures the water spill in context with the surrounding area.   

4.     Ask yourself the question, “why didn’t I see this puddle?”  This leads into the “Open and Obvious Defense.”  The most common argument made to defeat or decrease a Slip and Fall or Trip and Fall claim is the Open and Obvious Defense.  The essence of that defense is that a person should be able to take perfectly good care of themselves when faced with a potential hazard that is open and obvious.  You need to be able to put into words the reasons why you did not see the puddle of water. 

Too often, injured parties rely on the store’s video surveillance equipment to records what happened.  You overestimate the quality of the videotape!  If that video provides some added support to your case, then let that serve as dessert rather then the main meal. 

Remember, because of the difficulty of many of these cases, there are a large number of attorneys that will simply “tune out” the moment they hear you mention “I slipped at the store.”  But, you will greatly increase your chances of success if you can accomplish those items listed above.      

When Are Punitive Damages Appropriate?

Generally, an award for punitive damages requires the offending party to have some form of “intent” in their conduct.     

"Punitive damages" are special punishment fees a party may have to pay for egregious acts.  Punitive damages, when applied, are paid in addition to the money a party must pay as compensation for the damages their acts caused.  In 2008, the United States Supreme Court said that punitive damages "are aimed not at compensation but principally at retribution and deterring harmful conduct."  Exxon Shipping Co. v. Baker, 554 U.S. 471, 492, 128 S. Ct. 2605, 2621, 171 L. Ed. 2d 570 (2008).

The various characterizations of conduct allowing recovery of punitive damages include:

(1) Malice—express or implied, Arizona Publishing Co. v. Harris, 20 Ariz. 446, 181 P. 373 (1919); Magma Copper Co. v. Shuster, 118 Ariz. 151, 575 P.2d 350 (App.1977);

(2) Spite or ill will, State Farm Mutual Insurance Co. v. St. Joseph's Hospital, 107 Ariz. 498, 489 P.2d 837 (1971);

(3) Evil intent or bad motive, Smith v. Chapman, 115 Ariz. 211, 564 P.2d 900 (1977); McNelis v. Bruce, 90 Ariz. 261, 367 P.2d 625 (1962);

(4) Gross negligence, Gila Water Co. v. Gila Land and Cattle Co., 30 Ariz. 569, 249 P. 751 (1926); Iaeger v. Metcalf, 11 Ariz. 283, 94 P. 1094 (1908);

(5) Wanton, reckless or willful acts, Lutfy v. R.D. Roper & Sons Motor Co., 57 Ariz. 495, 115 P.2d 161 (1941);

(6) Intentional misconduct, Id.; Wetzel v. Gulf Oil Corp., 455 F.2d 857 (9th Cir.1972);

(7) Fraud, Jenkins v. Skelton, 21 Ariz. 663, 192 P. 249 (1920);

(8) Oppression, Id.; Salt River Water Users' Association v. Giglio, 113 Ariz. 190, 549 P.2d 162 (1976); Jerman v. O'Leary, 145 Ariz. 397, 701 P.2d 1205 (App.1985);

(9) Extreme, aggravated or outrageous conduct, Lerner v. Brettschneider, 123 Ariz. 152, 598 P.2d 515 (App.1979);

(10) Conduct involving an unreasonable risk of causing distress, Wetzel v. Gulf Oil Corp., supra.;

(11) Reckless disregard for or indifference to the rights, interests or safety of others, Smith v. Chapman, supra.; Salt River Water Users' Association v. Giglio, supra; Sellinger v. Freeway Mobile Homes Sales, Inc., 110 Ariz. 573, 521 P.2d 1119 (1976); Neilson v. Flashberg, 101 Ariz. 335, 419 P.2d 514 (1966); McNelis v. Bruce, supra; Schmidt v. American Leasco, 139 Ariz. 509, 679 P.2d 532 (App.1983);

(12) Criminal acts or conduct, Puz v. McDonald, 140 Ariz. 77, 680 P.2d 213 (App.1984);

(13) Acts done in bad faith, Huggins v. Deinhard, 127 Ariz. 358, 621 P.2d 45 (App.1980).

Linthicum v. Nationwide Life Ins. Co., 150 Ariz. 326, 330-31, 723 P.2d 675, 679-80 (1986). 

Each of the above stated characterizations involve some form of legally recognized intent.  This intent may be true, actual intent or it may be imputed, or assigned. In other words, this intent, also known as an "evil mind" "may be 'manifested in either of two ways. It may be found where defendant intended to injure the plaintiff. It may also be found where, although not intending to cause injury, defendant consciously pursued a course of conduct knowing that it created a substantial risk of significant harm to others.'”  Nardelli v. Metro. Grp. Prop. & Cas. Ins. Co., 230 Ariz. 592, 604, 277 P.3d 789, 801 (Ariz. Ct. App. 2012), Citing Rawlings v. Apodaca, 151 Ariz. 149, 162, 726 P.2d 565, 578 (1986).

In summarizing all the required elements for punitive damages, the Supreme Court of Arizona demonstrated the importance of this evil mind, stating:

The key [to punitive damages] is the wrongdoer's intent to injure the plaintiff or his deliberate interference with the rights of others, consciously disregarding the unjustifiably substantial risk of significant harm to them. Rawlings v. Apodaca, 151 Ariz. [at] 161, 726 P.2d at 577. While the necessary “evil mind” may be inferred, it is still this “evil mind” in addition to outwardly aggravated, outrageous, malicious, or fraudulent conduct which is required for punitive damages.

Thompson v. Better-Bilt Aluminum Products Co., Inc., 171 Ariz. 550, 556, 832 P.2d 203, 209 (1992).

Thus, while the level of intent is considered in tortious acts, a person may still subject themselves to punitive damages if the wrongful acts were so outrageous that they “disregarded” a “substantial risk” of “significant harm.”

I Think I Signed a Waiver, But I Got Injured. Now What?

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The state of Arizona is very friendly to you.  While they can be enforceable in certain situations, they are highly disfavored. 

As a participant in some sporting event such as go-cart racing, a mud run event, or other physical activity, there is a risk of getting injured.  Owners or organizers of these activities, in an attempt to avoid lawsuits, will often require a waiver be signed by the participants in an attempt to limit the owner or organizers’ exposure. 

Generally, injuries will occur in one of three ways:

1.     The activity in question has some inherent risks.  For example, when you choose to play tackle football, you understand that there is a risk that you may be tackled.  When you enter a mud run event, you understand there will be mud.

2.     Something the owner or organizer did was negligent, and that negligence created a risk of harm that otherwise would not have existed. 

3.     The owner or organizer, or one of their agents, was grossly negligent, reckless, or intentional in their conduct resulting in injury to a participant.  

As you seek to hold another responsible for injuries you have sustained, it is essential to show that there was something in owners’ or organizers’ conduct that fell below whatever reasonable standard of care that they owed to you.  You need to show that if the person you believe to be responsible had acted reasonably, then you would not have been injured. 

Consequently, most of Arizona disputes with revolve around #2 above.  However, if you can clearly identify the negligent act by the owner or organizer, and you can show that you did not have an opportunity to bargain with the owner or organizer (meaning you did not negotiate the terms of the contract), then Arizona law treats you favorably as a claimant. 

As a general matter, Arizona says that “An attempt to limit one’s liability from one’s own negligence is not uncommon.  The general reaction of courts to this attempt has been unfavorable.  The reason is simple.  To relieve oneself of liability for one’s own negligence may encourage carelessness.”  Sirek v. Fairfield Snowbowl, Inc. 166 Ariz. 183, 800 P.2d 1291 (Ariz. App., 1990). 

In Salt River Project Agric. Improv. & Power Dist. v. Westinghouse Electric Corp. 190 Ariz. 463, 800 P.2d 1291, (app. 1990) (“SRP”) the Arizona Supreme Court answered the question whether “liability in a tort [can] be bargained away.” The answer to that question was yes, BUT generally limited to the following circumstance: “The law disfavors contractual provision by which one party seeks to immunize himself against the consequences of his own torts.” (p. 383).  But the court did indicate it would be appropriate in a commercial setting where “businessmen can bargain over which party is to bear the risk of damage and set the price accordingly, thus achieving a more rational distribution of the risk than the law would otherwise allow.”

Claimants also have the benefit of the fact that validity of waivers, exculpatory clauses and other similar contractual provisions will ultimately be a question for the a jury. Phelps. v. Firebird Raceway, Inc. 210 Ariz. 403, 1111 P.3d 1003 (Ariz. 2009).  Should you claim reach litigation, as many do, the Plaintiff may be successful at overcoming the validity of the waiver through a summary judgment, but even if they are not, they will still have the opportunity to argue the case to a jury. 

No Chase Policy

Many police departments, including Arizona’s own Phoenix Police Department, are instituting policies which limit officers’ ability to give chase to fleeing vehicles, much to the chagrin of the makers of “World’s Most Dangerous Police Chases 8.” Not only does this impact the high speed chase to the Mexican border you were planning in the Spring, but it could affect liability if you are involved in an accident resulting from police pursuit.

In the past, police enforcement policies were often influenced by the concept of governmental immunity. In short form, this basically means that individuals cannot bring suit against the government in certain circumstances. Unfortunately for police stations, immunity from third parties harmed in police chases no longer exists in most states, including Arizona. Ryan v. State, 134 656 P.2d 597 (1982).

According to Arizona statute, officers are authorized to take certain actions in pursuit of a fleeing vehicle, including running red lights or exceeding speed limits. A.R.S.A. § 28-624. However, none of the traffic exceptions are absolute.  For example, a squad car running a red light must display its lights and siren and slow down as necessary. An officer exceeding the speed limit may only do so with light and siren switched on and only if his or her speed does not endanger life or property. On top of all these exceptions, police officers still have a “duty to drive with due regard for the safety of all persons,” and the statute “does not protect the [officer] from the consequences of [his or her] reckless disregard for the safety of others. A.R.S.A. § 28-624(D). Basically, an officer can be found liable for causing an accident during pursuit if he was grossly negligent, or in other words, his conduct was willful and wanton. Estate of Aten v. City of Tuscon, 817 P.2d 951, 960 (App.1991). To be considered willful and wanton, the officer’s actions must “have been committed with actual or deliberate intention to harm or with an utter indifference to or conscious disregard for the safety of others.” Id. at 958.

Not only can police be held liable for accidents between a squad car and a third party, but also accidents between a third party and the suspect who the grossly negligent police officer is chasing. Id. at 955. The basic idea is that an officer is spurring on reckless driving by giving chase. And in that case, he can be grossly negligent by missing opportunities to stop the chase earlier or by choosing to continue pursuit that will endanger third parties.

In order to protect themselves from liability, many police departments institute policies explaining when officers may give chase. For example, Phoenix only authorizes hot pursuit in the event that the person being pursued is suspected of a violent felony. Scottsdale Police Department authorizes giving chase if the fleeing suspect is believed to have committed a dangerous felony or if there is an immediate and articulable threat to human life. And in those cases, officers are still held to the same standard of care outlined by Arizona statute and case law.

Unfortunately, it looks like we might have to wait even longer for “World’s Most Dangerous Police Chases 9.”

Who Has Keys To Your Hotel Room?

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The last time I stayed in a hotel, I was in Florida at the Disney World Swan Resort. That was before I entered law school and my primary source of income became fantasy football. However, some people make more than $100 per year and can afford to stay in a hotel now and then. But if you are one of the lucky few whose livelihoods don’t depend on Ron Gronkowski’s high ankle sprain, you are probably unaware of what your favorite hotel might (or might not) be doing to protect themselves from you.

Arizona follows the Restatement Second, Agency § 213, which in part provides that an employer can be held independently liable for the harm its employee causes if the hotel was negligent in hiring that employee. In order to avoid such liability, a hotel must act as a prudent person would “in selecting the person for the business at hand.”

Acting prudently requires mixing two ingredients: (1) the right employee, with (2) the right job or environment. A hotel will be found independently liable if it hires an employee to do a particular job which creates an undue risk of foreseeable harm to a third party. If that, to you, sounded like “Blah, blah, I want to, blah, watch, blah, cat videos” you aren’t alone. But it is actually simpler than the legal jargon makes it sound.  For example, if our hypothetical hotel hires a recent child sex offender to be a sous chef in the attached nightclub, the risk of foreseeable harm is very low. Thus, the hotel would be in a better position to be protected from liability. The same could not be said if the hotel hired that same person to be a lifeguard in the pool. After all, any prudent hotel should reasonably foresee the undue risk of combining that employee with that environment. The key is that the employer must know, or should know, beforehand, that the employee is unfit for the job and poses an undue risk of harm. The range between finding the right employee and placing him or her in the right job is a sliding scale, balancing risk against foreseeability.

So we’ve established that hotels shouldn’t hire bulls to tend their china shops. But since liability depends on an employer’s knowledge of an employee’s prospective risk, do hotels have an obligation to do background checks? The answer lies in the duties of each particular job; does the job give access to customer’s room? Credit card? Or is the job requirement restricted to kitchen duties. Kassman v. Busfield Enterprises, Inc., 639 P.2d 353 (Ct. App. Div. 2 1981). In Kassman, the Court held that an employer was not negligent in hiring a doorman who assaulted a customer without checking his criminal history because a doorman’s work is relatively simple and requires no special training. In a similar case, the Court held a background check wasn’t necessary to protect an employer from liability because the job—security guard—didn’t require carrying a weapon. Olson v. Staggs-Bilt Homes, Inc., 534 P.2d 1073 (1975). In fact, both cases turned on the fact that neither job description included bearing arms. And in both cases, the employee shot someone. How this affects the hospitality industry, where many jobs might be considered “simple” and most don’t require carrying weapons, is hard to say. Is a maid’s work simple enough?  What if the maid has served jail time on 5 different occasions for theft?  Is it reasonable for a customer to assume that the hotel is going to ensure that their maids do not have a long list of offenses dealing with theft when they decide to leave their laptop on the bed? What about a lifeguard, bellhop, front desk attendant, or valet driver? Are any of these jobs more or less simple than that of a doorman or security guard? 

Oftentimes, customers being placed in a vulnerable position will have an impact on an employers duty.  What happens when a taxi driver assaults a passenger? In one Michigan case, the court found that the taxi company had a duty to perform a background check. Burch v. A&G Ass. Inc., 333 N.W.2d 140 (1983). The Court’s reasoning was that a carrier extends a promise that its drivers are safe and qualified simply by hiring them.

Basically, customers getting in a taxi are placed in a vulnerable position in reliance on the carrier’s implied promise of safety. Therefore, carriers owe them validation of that trust.

What we can take from this mess is that the duty to perform a background check is decided on a case-by-case basis. The more dangerous, demanding, or complicated the job; or the more vulnerable a customer’s position, the more likely a background check is required to immunize a hotel from liability. This is because the foreseeable risk of harm increases when the job description requires, for example carrying a gun. One could form a very persuasive argument that hotel employees, particularly those with key access to guests’ rooms, also pose a high risk of foreseeable harm. 

"https://plus.google.com/109992336026662313497?rel=author">+Craig Blake

 

Facebook and Personal Injury

"I was just in a car accident today, everything seems fine."

“I am doing really great today. I am almost doing everything I used to do.”

“I am back to work and everything is going great.”

“No real complaints today.”

Facebook and other social networking make it as easy as a cell phone click to communicate with "friends" and family. When something significant occurs in our lives, one of the first things we do is share that thought online. Something as traumatic as a car accident or other injury is sure to get you dozens of "likes." Having someone "like" one of your comments or posts is the cyber-equivalent of a warm fuzzy hug.

These posts should come with a caution. Once a lawsuit is filed, discovery begins. Written formal questions are posed back and forth in the form of interrogatories or "requests for admission." Parties are requested to produce certain documents. Recently I received the following request from two different clients:

"Do you currently, or have you ever, had an account with a social networking website and/or blogging website? (i.e. Facebook, Myspace, LinkedIn, Friendster, Tumblr, Wordpress, Blogger, Blogspot, etc.) _______ If so, please list each and every website with which you have an account as well as your username and/or html for each and every website as well as the date you first signed-up for an account with the website."

"For each and every website listed above, please provide the password associated with the username that you utilize to gain access to your profiles and/or accounts."

There are several other related requests that were also included.

So far, I have refused to provide such private information. Clearly, the purpose for the request is for the Defendant to get access to any statements that have been posted online related to the injury or any corresponding photos. The argument is made that once you post comments or pictures online, the information posted is no longer private or protected by attorney/client privilege. To request passwords and usernames clearly calls for information that goes far beyond information that is relevant to the injury and there are less invasive methods of obtaining that information.


What is and isn't obligated to be disclosed continues to be up for debate. Until the dust settles, the best advice I can give is to keep injury related comments between you and your lawyer.

You will note on the back of my business card, I ask that you "Make all of your social media sites 'private.'" Better advice might be to not put anything at all.

Adam W. Barlow, Esq.
Adam Barlow Law, P.C.
www.adambarlowlaw.com
www.facebook.com/adambarlowlaw
602-688-4529
480-835-5553
480-461-0533 (fax)