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Modified Comparative Negligence and Car Accidents in Delaware

Wilmington Delaware Car Accident Attorney

After a car accident, it’s not uncommon for an insurance agent to contact an injury victim in order to ask a few questions. In most cases, agents present themselves in a way that suggests they are simply doing their “due diligence” – checking up on you to make sure you’re receiving the care you need and are feeling better. At the same time, however, an insurance agent may ask what you remember about the car accident, what caused it, or what you remember right before the collision itself.

After establishing a measure of trust and concern, it’s not uncommon for injury victims to answer these kinds of questions under the assumption they are helping an agent gather important facts necessary for finalizing a claims payout.

Be Careful What you Tell an Insurance Agent

Unfortunately, most insurance agents aren’t personally interested in whether or not you’re actually feeling better or on the mend. In reality, they’re interested in getting you to talk about the accident in the hope you’ll say something they can later use against you to reduce the amount they have to pay out for your accident. Here, if you say something that suggests you were partially at fault for causing the accident you were injured in, your claims payout can be reduced or withheld altogether.

The Doctrine of Modified Comparative Negligence – 51% Rule

The state of Delaware follows the principle of modified comparative negligence – 51% rule. According to this rule, if you are 51% or more at fault in a car accident, you aren’t eligible to receive compensation for your losses. If the court determines that you are 50% or less responsible, you can recover damages reduced by the percentage of fault assigned to you. For example, if you suffered $100,000 in damages but are found to be 40% at fault, you can only recover $60,000 in damages.

Insurance companies are aware of the doctrine of modified comparative negligence – 51% rule. As a result, anything they can use to convince the court you are partially or totally at fault will result in a reduction in the amount they have to pay in claims.

Contact Michael Hood Before Talking to an Insurance Claims Agent

Insurance companies are in business to make money, pure and simple.  As a result, they have an incentive to reduce costs and minimize claim payouts. Most car accident victims are not familiar with the tactics used by claims agents when contacted by them. Once you retain an attorney, however, the insurer has to talk to your legal representative and avoid contacting you.

If you’ve been injured in a car accident, contact Wilmington Delaware personal injury lawyer online Michael Hood today. We will handle all communications with insurers and take steps to ensure your rights and interests are protected.

Pedestrian Accident Injuries

Injuries Suffered by Pedestrians in Wilmington, Delaware

There were 26 pedestrian fatalities in Delaware in 2013. If a driver going 25mph is paying attention, it will take 20 feet to stop the vehicle. At 35 mph, the distance in order to stop doubles to 40 feet, thereby increasing the odds of pedestrian fatality. The proportion of pedestrian fatalities to overall traffic fatalities was 26 percent in 2013, compared to the national average of 14% – that is quite a bit higher.

In order to create awareness for the public, the Delaware Department of Transportation, along with local and state pd, aided the Delaware Office of Highway Safety in kicking off the Walk Smart campaign. A live safety demonstration took place in Wilmington on April 29th, where the importance of slowing driver speeds down was discussed, along with keeping drivers alert and pedestrian safe habit education. Additional campaign initiatives include:

  • safety checkpoints for pedestrians, which will focus on educating the public about safety
  • providing reflective materials and flashlights to increase nighttime safety
  • providing funding in high-risk areas for law enforcement overtime pay

To help minimize pedestrian accidents in certain areas of DE, the Department of Transportation will be installing new crosswalks, sidewalks and lighting in the fall of this year. A reduction in traffic signs will also aid in presenting fewer distractions to drivers.

Attorney Michael J. Hood’s Pedestrian Accident Injury Practice

We provide comprehensive counsel to people who have been injured as pedestrians, handling all types of accident claims. We represent people who have suffered any type of serious or catastrophic injury, from brain or spinal cord trauma to broken bones, paralysis, and amputation or loss of limb. We also represent individuals and families in wrongful death claims arising out of pedestrian accidents.

Contact Our Office

For a private meeting with an experienced personal injury attorney, contact us online or call our office at (302) 777-1000. There is no charge for your first visit. Michael J. Hood represents accident & injury victims in the cities of Wilmington, Newark, Brookside, Claymont, Pike Creek, Wilmington Manor, Elsmere, Edgemoor, New Castle, Chester, Springfield, West Chester, Broomall, Woodlyn, Elkton and Pennsville. Also serving New Castle County, Kent County and Sussex County in Delaware as well as Delaware county, Chester county and Philadelphia county in PA.

Job Related Hearing Loss

We help clients who have suffered hearing loss due to noise exposure at work.  That loss may be due to one or a few very loud sounds at work, or can be the result of many years of exposure to literally deafening noise.  The gradual loss may not be noticed until it’s serious. If you fear you’ve lost hearing, or the work environment is so noisy you fear that may happen in the future, contact our office to discuss your options.

The federal Occupational Health and Safety Administration (OSHA) has a hearing conservation program designed to protect workers with significant occupational noise exposures from hearing impairment. Generally, employers with ten or more employees fall under OSHA’s jurisdiction.

Employers Need to Monitor and Protect Their Employees’ Hearing

The hearing conservation program requires employers to monitor noise levels to identify employees exposed to noise at or above 85 decibels (dB) averaged over 8 working hours, or an 8-hour time-weighted average (TWA). Employers must monitor all employees whose noise exposure is equivalent to, or greater than, a noise exposure received in 8 hours where the noise level is constantly 85 dB.

To put this in perspective, 85 dB’s is about what you would hear inside a car on a city street. A normal conversation is about 60 dB’s and a twelve gauge shotgun blast is about 165 dB’s.

According to OSHA, the employer must establish and maintain an audiometric testing program, including baseline audiograms, annual audiograms, training and follow up. The testing program follow up should indicate whether the hearing conservation program is working.

Employers must compare annual audiograms to baseline audiograms to determine whether the employee has lost hearing ability or experienced a standard threshold shift (STS, an average shift in either ear of 10 dB or more at 2,000, 3,000, and 4,000 hertz).

Hearing Protection Must be Offered to Those who eed it

The employer must fit or refit any employee showing an STS with adequate hearing protectors, show the employee how to use them and require the employee to wear them. Employers must also notify employees within 21 days after the determination that their audiometric test results show an STS.

Employers must provide hearing protectors to all workers exposed to 8-hour TWA noise levels of 85 dB or above. This requirement ensures that employees have access to protectors before they experience any hearing loss.

Contact Our Office

Your ability to hear may not be something you appreciate until you lose it.  If you feel that you have lost, partially or completely, your ability to hear because of conditions at work, set up a private meeting with an experienced Delaware workers compensation attorney. Contact us online or call our office at (302) 777-1000. Our office is open Monday through Friday, between 8 a.m. and 5 p.m., but we will meet with you evenings or weekends upon request. We will travel to your home or the hospital if necessary.

Dog Bite Laws – Who Pays if Someone Gets Hurt

Dogs are a fact of every day life. Chances are good you own at least one.

According to the American Pet Products Association, there were 83.3 million owned dogs in the U.S. in 2012, with 47% of all households having at least one dog. Not all dogs are good dogs, and not all dog owners are good dog owners. About 4.7 million dog bites occur each year with nearly 800,000 of them requiring medical attention, according to the American Human Society. If you or a loved one have been injured due to a dog bite, you may be able to obtain compensation from the dog’s owner or his or her insurance carrier.

Delaware Dog Bite Law

Delaware law concerning liability for harm done by dogs is fairly progressive, as far as the victim’s rights are concerned. They should also put dog owners on notice that they need to keep their dogs under control at all times. Delaware Code Section 1711 states,

The owner of a dog is liable in damages for any injury, death or loss to person or property that is caused by such dog, unless the injury, death or loss was caused to the body or property of a person who, at the time, was committing or attempting to commit a trespass or other criminal offense on the property of the owner, or was committing or attempting to commit a criminal offense against any person, or was teasing, tormenting or abusing the dog.

Unless your are committing a crime, or trying to, on the dog owner’s property, or are “teasing, tormenting or abusing the dog,” and are injured, killed or had property damaged or destroyed by the dog, the dog owner is liable for damages. This is a “strict liability” statute, which means if a certain bad thing happens (a dog bite for example), then a certain party (the owner) has a legal obligation to pay for damages.

Pennsylvania Dog Bite Law

It’s a little more complicated in Pennsylvania. The Pennsylvania dog bite law sets apart different groups of victims and treats them differently. The source of the state’s dog bite law are court decisions, the statutory “Dog Law” (3 P.S. § 459-101 through § 459-1205) and the cases interpreting that. Within the Dog Law is the Dangerous Dog Statute (3 P.S. § 459-501-A through § 459-507-A).

The common law (court created) legal cause of action for “scienter” (prior knowledge) allows a victim to recover full compensation if the dog previously bit another person without justification or showed a tendency to do so.

If the dog hasn’t bitten before, Pennsylvania’s dog bite law offers two remedies depending on the degree of injury. A “severe injury” is “any physical injury that results in broken bones or disfiguring lacerations requiring multiple sutures or cosmetic surgery.” (The Dog Law, sec. 102.)

  • A severely injured victim can make a Dog Law claim against the dog owner for medical expenses and all other losses and legal damages. That victim must show the dog inflicted severe injury without provocation.
  • If not severely injured, the victim can make a Dog Law claim against the dog owner for medical expenses only. (Sec. 502, subdivision (b) of the Dangerous Dog Statute) The victim would have to prove the dog caused the injury, there were medical expenses as a result and the defendant owned the dog.

Contact Our Office

If you or a loved one have been injured by a dog and want to learn more about your rights and legal options, to arrange a free initial consultation, contact us online or call our office at (302) 777-1000. Evening and weekend meetings can be arranged upon request. We will come to your home or the hospital, if necessary.

Delaware Improves Traffic Safety

There was a 13.6% drop in fatal traffic crashes, and an even greater 14.6% drop in Delaware’s traffic deaths for 2013 compared to 2012, according to an Office of Highway Safety (OHS) press release. For the first time in 50 years, there were less than 100 traffic fatalities in a calendar year in Delaware. There were 95 fatal motor vehicle crashes causing 99 fatalities in 2013 compared to 110 fatal crashes resulting in 116 fatalities in 2012.

It was 1963 when Delaware saw fewer than 100 fatalities when there were 96 traffic deaths.  Since records started being kept in 1929, the worst year was 1988 when 165 people were killed. The fewest number of traffic fatalities occurred in 1961 when 65 people were killed.

Where progress was made

OHS officials state the greatest safety improvement was in seat belt use, which increased to an all-time high of 92%, one of the highest percentages in the country.  There were 52 vehicle occupant fatalities (drivers and passengers) in 2013 and of those killed, 48% were not wearing seat belts, the same percentage for 2012.

Fewer fatalities are linked to drunk driving. Preliminary reports also show that 36% of the 99 (or 36%) traffic deaths in 2013 were alcohol-related, which is significantly down from 2012 when 60 (or 52%) of the 116 motorist fatalities were alcohol-related.  Delaware law enforcement officers arrested a total of 4,249 individuals in 2013 for driving under the influence of alcohol and/or drugs statewide compared to 4,198 in 2012.

Where improvement is still needed

Aggressive driving is being blamed for many traffic fatalities.

  • 31% of Delaware’s 95 fatal crashes are attributed to aggressive driving.
  • 37% involve speeding as a factor, higher than the national average of roughly 30% of all fatal crashes.
  • Other issues contributing to fatal crashes include failure to grant right of way, improper lane change and running stop signs.

Delaware Officials State There are Other Traffic Safety Areas That Need Improvement:

  • Pedestrian fatalities continue to be an issue for Delaware.  There was a slight decrease with 2013 ending with 26 pedestrian fatalities compared to 30 in 2012 and OHS states it’s planning more education and enforcement efforts statewide.  The highest contributing factors in pedestrian fatalities, according to the press release, include intoxicated pedestrians darting in front of cars and pedestrians not being visible to motorists.
  • The number of motorcycle fatalities increased, with twenty in 2013 compared to 17 in 2012.  High speed is blamed as the biggest factor to these crashes. Helmet use continues to be high with 65% wearing helmets in 2012 and 2013.

Contact Attorney Michael J. Hood

Despite these positive numbers, far too many of us are injured and killed on Delaware’s roads and highways. If you or a loved one has been injured in a vehicle accident, for a free initial consultation, contact us online or call our office at (302) 777-1000.

Vehicle Fire and Explosions Still Pose Significant Danger

Even though automakers faced multiple lawsuits in the 1970s and 1980s tied to the location of gas tanks on the Ford Pinto and certain GMC trucks, there are still many vehicles with gas tanks set behind the rear axle, which can lead to fire or explosion after a rear-end collision. Some models of the popular Ford Mustang and Crown Victoria, as well as certain Jeep offerings, still pose a substantial risk of fire or explosion in a crash.

The dangers posed by fuel tanks are not limited, however, by the choice of location. Many people have suffered horrendous injury, and even death, because of fuel tanks that caught fire or exploded as a result of:

  • The use of substandard materials to construct the fuel tank
  • The failure to properly shield a fuel tank so that it is not easily crushed in a motor vehicle accident
  • Improper welding in the construction or attachment of the tank to the car

Lack of attention to other design components has also led to automobile fires or explosions. For example, in some models, metal rods or brackets close to the fuel tank have pierced the tank during an accident. In vehicles that have fuel injection, the high pressure in the fuel lines can force a large amount of fuel into the environment after a collision. Unfortunately, in many vehicles, the fuel injection lines are not designed to seal off in the event of an accident. Furthermore, most fuel injection systems rely on electric fuel pumps, which will continue to circulate gasoline unless turned off.

The injuries sustained in a vehicle fire or explosion can be horrific, and establishing damages can be challenging. It is essential that your attorney have considerable experience handling burn and scarring injuries, so that you can get full and fair compensation for all your losses.

Contact Our Office

To arrange a free initial consultation, contact us online or call our office at (302) 777-1000. Evening and weekend meetings can be arranged upon request. We will come to your home or the hospital, if necessary.

The Statute of Limitations Draws a Fuzzy Line

The Statute of Limitations is a time limit for which a lawsuit can be filed. That time limit can vary depending on the type of lawsuit, for personal injury cases it’s two years. It’s meant to encourage plaintiffs to take action on their legal claims, and not sit on them while the years pass. This is meant to help defendants, so they won’t be faced with legal claims many years after an alleged event or injury took place, when evidence and witnesses may be hard to find.

We are very wary of statute of limitations issues when we take a personal injury case and do all we can to make sure it’s not a problem for the client. But what might appear as a “bright line” rule of a statute of limitations can get fuzzy around the edges. It’s not a black and white rule. This Delaware personal injury case is a good example.

Plaintiff with two Diagnoses Files Lawsuit Concerning one of Them

Paul DaBaldo Jr. was diagnosed with two diseases due to asbestos exposure. The Delaware Supreme Court ruled his personal injury lawsuit against 19 defendants (including a former employer) can proceed because the statute of limitations had not run out with regard to the second disease. The court held the state is a “multi-disease jurisdiction” where each separate diagnosis is a unique claim, with each claim subject to its own, individual limitations. It reversed a Superior Court decision that the plaintiff’s claims were not timely.

DaBaldo states he was diagnosed with a mild form of asbestos-related pleural disease, but was found to have normal lung function, in 1992. He saw several physicians from 1999 to 2005 who found no significant change in the pleural calcification. DaBaldo contacted attorneys in 2007 after a co-worker was diagnosed with asbestosis (which happens when asbestos fibers and scarring from them in his lungs impact breathing). Those attorneys sent him to another physician who diagnosed him with asbestosis in July 2007.

In 2009 the personal injury complaint was filed in the Delaware Superior Court, alleging the defendants were responsible for his  asbestosis. There were no claims related to DaBaldo’s asbestos-related pleural disease.

A Superior Court judge held that Delaware’s two-year statute of limitations in asbestos cases barred DaBaldo from pursuing his claims because he was on notice of his asbestosis in 1992, when he was first diagnosed with pleural disease. DaBaldo appealed the trial court’s decision, arguing his claim did not toll until the 2007 asbestosis diagnosis. Defendants stated in addition to the asbestos related pleural disease going back to 1992, a 1999 x-ray report states there was a “known history of asbestosis.”

How Statute of Limitations Time Limits are Determined

A three-justice panel of the state Supreme Court ruled for DaBaldo, ruling that each individual diagnosis should be viewed as a separate claim. The court concluded the asbestosis claim tolled in 2007 when DaBaldo first learned, and was put on notice, that he had the illness. The court applied a four-factor test established in prior asbestos litigation to decide when the statute of limitations should start.

  1. The plaintiff’s level of knowledge and education,
  2. The extent of his recourse to a medical evaluation,
  3. The consistency of the medical diagnosis, and
  4. The plaintiff’s follow-up efforts during the period of latency following initial medical evaluation.

The court stated the word “asbestosis” first appeared in DaBaldo’s medical files in 1999, but that was as part of the X-ray report and there was no evidence it was reported to DaBaldo, nor was there an actual diagnosis that DaBaldo had asbestosis. The initial diagnosis of pleural disease made in 1992 was reconfirmed in 1999. Two more x-rays in 2001 and 2005 found no significant change in plaintiff’s condition.

The court found that after looking at the four factors, the statute of limitations started running with the July 2007 diagnosis of asbestosis, so the lawsuit was timely filed in May 2009.

If you have been injured due to the negligence of another and have questions about your legal options, for a free initial consultation, contact us online or call our office at (302) 777-1000.

Common Causes of Swimming Pool Accidents

The Most Frequent Causes of Swimming Pool Accidents

Everybody likes to go for a swim on a hot day. Unfortunately, a casual swim can too often lead to serious or catastrophic injury. Statistics show that, every day, an average of 9 people drown in swimming pool accidents in the United States. In fact, accidental drowning is the leading cause of death among children under the age of four. This blog looks at the most common causes of swimming pool accidents.

Failure to Provide Proper Supervision

Without a doubt, the single most frequent cause of swimming pool accidents is lack of supervision, particularly in private homes. Too often, parents will allow young children access to a backyard pool without monitoring their activity. But the risk also applies to teens and adults. Many serious injuries and deaths among teens and adults in pools involve people swimming alone. Studies show that it can take less than five minutes for a person to drown in a swimming pool.

Failure to Erect or Maintain Appropriate Fencing or Other Barriers

A swimming pool is typically referred to as an “attractive nuisance” under the law, something that draws the attention of young children, but can be deadly. Most states have laws requiring barriers to access to a swimming pool, but many property owners either fail to erect barriers, or let them fall into disrepair.

Dangerous or Defective Equipment at a Pool

Broken diving boards or ladders have been the cause of many pool accidents. In addition, there can be problems with drains or other water filtration devices that can trap swimmers under water. Broken tiles around a pool can lead to injury as well.

Electricity in Proximity to the Pool

A frequent cause of injury (including death) around a pool, one that is not often considered, is exposure to electrical current. Swimmers may bring stereos or other electrical devices too close to a pool. Unfortunately, water is a great conductor of electricity.

Contact Our Office

To arrange a free initial consultation, contact us online or call our office at (302) 777-1000. Evening and weekend meetings can be arranged upon request. We will come to your home or the hospital, if necessary.

Medical Malpractice and Birth Injuries

Injuries to a newborn during birth can have devastating, life long effects. The improper use of forceps or suction errors, the failure to monitor for fetal distress, or hypoxia (lack of oxygen) or oxygen-related injuries can lead to brain damage that will never recover.  This can lead to permanent cognitive and physical impairments.

Parents not only suffer the emotional impact of knowing their child was injured by a medical professional they trusted, but they also may need to spend far more time, energy, effort and money (possibly for the rest of the child’s life) to care for the child than if the child was born healthy. We help parents in these difficult situations seek compensation.

Medical Malpractice During Childbirth

Birth-related medical malpractice occurs when a doctor, hospital, or other medical staff acts negligently (by an act or omission by a health care provider, which falls below the accepted standard of care in the medical community) and causes an injury to the child.

Some examples of medical malpractice that can cause birth-related injuries include:

  • Failing to anticipate birth complications with a larger baby, or in cases involving maternal health complications,
  • Failure to respond appropriately to bleeding,
  • Failing to observe or respond to umbilical cord entrapment, which can cut off oxygen to the newborn,
  • Failure to respond to fetal distress (including irregularities in the fetal heartbeat) which can be a sign of injuries,
  • Delay in ordering cesarean section (c-section) when medically necessary,
  • Misuse of forceps or a vacuum extractor during delivery, which can cause head injuries and brain damage, and
  • Inappropriate administration of Pitocin, a synthesized hormone used to induce or augment (speed up) labor.

Early Indications Trouble may Occur During Childbirth

Injuries to a baby are more likely to happen during a difficult delivery. Warning signs of a difficult delivery include:

  • The baby’s size. Injuries are more likely if a baby is large (more than eight pounds, thirteen ounces) or born prematurely (before 37 weeks),
  • Cephalopelvic disproportion (the size and shape of the mother’s pelvis is not adequate for the child to be born by vaginal delivery),
  • Prolonged labor, and
  • The baby’s position (a “breech birth”) where the child’s buttocks or legs present first.

If the newborn is injured, the parents can bring legal action acting as guardians for the infant. They can ask for general and special damages (such as mental and physical pain and suffering, loss of enjoyment of life, expected future medical expenses) and may name the hospital and health care professionals they believe are responsible as defendants.

Contact Our Office

If you believe your child suffered from a birth injury, contact us for a free initial consultation. To schedule a meeting to discuss your potential medical malpractice claim, contact us online or call our office at (302) 777-1000. Our office is open Monday through Friday, between 8 a.m. and 5 p.m., but we will meet with you evenings or weekends upon request. We will travel to your home or the hospital if necessary.

Injuries Caused by Inadequate Lighting or Warnings

In Delaware and Pennsylvania, the owner of commercial or residential property has certain duties with respect to persons who are invited onto the property. These duties include adequately lighting a property and providing reasonable warnings to visitors of any known risks of injury.  This is an issue that falls under premises liability, an area where we help clients obtain compensation for their injuries.

Common Sense Rule for Owners

The owner or occupier of property has a legal duty to anyone who enters the property  (a tenant, a shopper, a personal or business visitor) not to subject that person to an unreasonable risk of injury because of the design, construction or condition of the property. The owner has this duty because the owner controls the premises, not the visitor.

For instance, if it’s a commercial property where shoppers come at night and an outdoor surface is slippery and unlit, if that person slips and is injured as a result, that property owner should be held responsible.  It’s the owner, not the visitor, in control of the placement and maintenance of the lighting.

Sufficient Lighting and Warning of Dangers

Another issue with proper lighting is that without it, there may be a foreseeable increased risk of crime to visitors.  If someone visiting the property under poorly lit conditions the owner is aware of becomes a crime victim, the property owner may face liability.

If there is construction or repairs going on at a property and visitors are not warned or (even better) physically prevented from entering an area that’s potentially hazardous, and a visitor is injured, the owner of the premises might also be held responsible.

For commercial property, whether the owner or the business leasing space in the property is legally responsible for an accident depends on a number of things, including the location of the accident (common area or within the business’ space) and the language of the lease or contract between the owner and business. If you are injured at a place of business, you should notify it of the accident and any injuries you’re aware of.

Common Sense Rule for Visitors

It’s not all about the owner and occupier.  If the person is injured while acting in an unexpected, unauthorized, or dangerously careless way, the property owner or occupier may not be responsible for the injury.  If at a commercial property there are stairs where it’s posted “Skateboarding not allowed” and while skateboarding down the staircase handrail, the person is injured, the property owner may not be liable.

Contact Our Office

At the office of Michael J. Hood, LLC, we have provided comprehensive counsel to personal injury victims in Delaware and Pennsylvania for more than three decades. We know the impact a personal injury can have on your life, and we understand how important it can be to get straight answers to all your questions. We will take all the time necessary to learn about your accident, as well as what you need to move forward, so that we can set realistic expectations about your likelihood of success. We will carefully assess the strengths and weaknesses of your case so that you can make practical decisions about how you want to proceed.

We offer the knowledge, skill, experience and resources to help you pursue full and fair compensation for all your losses, including lost wages and income, medical expenses, loss of companionship, and physical pain and suffering. For a free initial consultation, contact us online or call our office at (302) 777-1000.