Philadelphia Personal Injury Lawyer Blog

Is Evidence of Intoxication Admissible in Pennsylvania Negligence Claims?

Wed, 02 May 2012 08:47:49 -0500

In civil claims for injuries resulting from negligence, a common defense tactic is to allege fault on the plaintiff by claiming he/she was drunk at the time of the accident. However, in negligence cases, evidence of intoxication is not always admissible. Preclusion of this evidence is often necessary so that a jury is not mislead by unsupported and self-serving evidence that a claimant was drunk at the time of an accident.

Pennsylvania trial judges enjoy broad discretion regarding the admissibility of potentially misleading and confusing evidence. A trial court may properly exclude evidence if its probative value is substantially outweighed by the danger of unfair prejudice. Generally for purposes of this evidentiary rule, "prejudice" means an undue tendency to suggest a decision on an improper basis. The erroneous admission of harmful evidence constitutes reversible error.

Where carelessness or recklessness is at issue, proof of intoxication is relevant, but the mere fact of consuming alcohol is inadmissible as unfairly prejudicial unless it reasonably establishes intoxication. Pennsylvania courts have found that when a disinterested witness failed to detect the same odor of alcohol as alleged by the self-serving testimony of the defendant, evidence of odor of alcohol was not evidence tending to prove a degree of intoxication of carelessness or recklessness on the part of the plaintiff. See Whyte v. Robinson, 421 Pa. Super. 33 (Pa. Super. Ct. 1992). In Whyte, the Court held that evidence intoxication is inadmissible unless it proves unfitness [of the activity at issue].

Accordingly, evidence of intoxication is not always admissible. This evidence may be excluded at trial if its probative value is outweighed by its prejudicial effects.

DRUNKEN DRIVING BILL BEFORE PENNSYLVANIA GOVERNOR, TOM CORBETT

Tue, 10 Apr 2012 07:35:46 -0500

There is legislation before Governor Tom Corbett that would increase the penalties for those convicted of drunken driving who have minors in the vehicle at the time of arrest.

Under Senate Bill 539, the maximum find for a first offense would be $1,000 and 100 hours of community service. A second offense would carry a maximum fine of $2,500 and imprisonment of up to six months. Drivers convicted of subsequent offenses could be jailed for up to two years. The Fines and imprisonment required under Senate Bill 539 would apply on top of current penalties.

In Pennsylvania, a driver is considered intoxicated if he has a BAC of .08 or higher. In addition, Pennsylvania has a series of penalty tiers, depending on the driver's BAC. The tiers are .08, .10 to .159%, and .16 or higher.

Drunk Hit-and-Run Driver in South Philadelphia, Pennsylvania, Kills 22 Year Old Woman

Wed, 21 Mar 2012 05:54:31 -0500

According to police, Deandre Barnes, who had turned 19 the day before, ran a red light and hit Kadiyska at about 4 a.m. Sunday morning, as she crossed the street near her school after she had left a nearby Chinese restaurant.

Barnes allegedly continued driving his 1999 Audi A4 but stopped and fled on foot after he hit three parked cars. Witnesses alerted police, who apprehended Barnes and his passenger when they returned to the Audi to retrieve their belongings.

The victim, Kadiyska, a dancer from Bulgaria died today at Thomas Jefferson University Hospital after being taken off life support.

Barnes, of McKean Street near 7th, was charged with driving under the influence, aggravated assault and related offenses. He remains jailed on $1 million bail awaiting an April 3 arraignment.

His passenger wasn't charged.

Barnes also was scheduled to appear in court April 2 for an assault last August in which he allegedly threatened and attacked a female acquaintance, according to court records.

His attorney Emmett Madden denied Barnes' guilt in both cases. Madden contended that Kadiyska crossed the street mid-block and ran into Barnes' path. He denied that Barnes disregarded the red light. As for him fleeing, Barnes "might have gotten scared initially, but he came back to make sure the girl was OK," Madden said.

The police report indicates Kadiyska had the right-of-way when she crossed at the crosswalk, and that Barnes ran the light.

Source:

Since most drunk driving accidents occur in the late night or early morning hours, pedestrians and drivers should be especially cautious at these times. Even when you have the right of way, you should take care to note the position and speeds of other drivers on the road in case they fail to abide by traffic laws. Here, it appears Kadiyska had the right of way when she was run down by a drunk driver who failed to stop at a signal. As an injury attorney, I am regularly exposed to heartbreaking stories such as this, where the reckless and wanton acts of a drunk driver end or seriously impair the life of another.

Although it is extremely difficult to predict when others will break the law, you can help protect yourself from drunk drivers by taking extra care when entering a crosswalk or intersection. Even if you have the right of way, be sure to check for other drivers approaching the intersection from other directions before entering. Your life may depend on it.

New Pennsylvania Law Allowing Police to Pull Over/Fine Cell Phone Texters Takes Effect Today

Thu, 08 Mar 2012 07:10:08 -0500

Pennsylvania's new mobile device law goes into effect today. Driver's are still allowed to talk on their cell phone, but texting is forbidden.

The law from Harrisburg supersedes Philadelphia's stricter mobile phone driving ban. Under the texting ban, drivers are prohibited from using an interactive wireless communication device - defined by the law as a wireless phone, personal digital assistant, smartphone, portable or mobile computer or similar device - to send, read or write a text-based message when the vehicle is in motion. Such messages include text and instant messages, emails or other written communication, the law says.

The statewide law gives police authority to pull over those texting and issue a $50 fine. It prohibits motorists from sending texts or emails while driving, but still allows them to talk on a mobile device.

In New Jersey, all mobile device use is banned while driving.

Authorities in Pennsylvania blame 14,000 crashes in 2010 on distracted driving in which 68 people died.

Police Locate Vehicle Involved in Fatal Bucks County Hit-and-Run but are still Searching for Driver

Mon, 20 Feb 2012 08:20:37 -0500

Police may have found what they believe is the car used in a fatal hit-and-run in Bucks County but they're still looking for the driver. A 36 year old man from Rose Lane, Levittown, was walking home from a party at a Bristol Township bar, when he has struck by a black Audi at about 12:30 a.m. on New Falls Road near Holly Drive, according to police.

According to police, as the Audi sped off a second car struck Beck, but that driver stopped. A severely damage Audi matching the car's description was impounded by police Sunday night. TV news reports said it was found at a Fairless Hills storage facility.

The victim died after speaking to his mother who arrived on the scene, because he had called her for a ride. He asked her to hold his hand just before he died, she told reporters. She was going to meet him at a Walgreen's parking lot.

Anyone with information about the case is asked to call Bristol Township police at 267-812-3096.

Source:

Pennsylvania does not require uninsured or underinsured motorist insurance even though all Pennsylvania drivers are required by law to have mandatory minimal automobile insurance. I highly recommend that all automobile owners and operators immediately get uninsured and underinsured motorist coverage. In the event you or a family member sustain a catastrophic injury or fatality as a result of a car accident with an uninsured, underinsured or hit and-run-driver, your damages will be covered up to your insurance limits. Uninsured and underinsured motorist coverage will protect you against unforeseen and unpredictable expenses that could be staggering. Proper insurance coverage reduces the unexpected financial impact and can help protect you and your family in the event of an accident.

Raw Milk From Pennsylvania Causes 35 People in Four States to Fall Ill

Fri, 03 Feb 2012 13:03:10 -0500

Pennsylvania health officials say the number of people stricken with illness after consuming raw milk from the same dairy has risen to 35 in four states.

The confirmed cases of Campylobacter bacterial infection include 28 people in Pennsylvania, four in Maryland, two in West Virginia, and one in New Jersey. The DHMH Laboratories Administration has confirmed the presence of Campylobacter jejuni in two unopened raw milk samples purchased from this farm.

Health officials said Thursday that consumers should discard raw milk bought from the Family Cow farm in Chambersburg on or after Jan. 1. The farm has voluntarily suspended raw milk production.

Source

The federal Food and Drug Administration warns that raw, or unpasteurized, milk can contain harmful bacteria. Dairy farmers say demand is growing because of concerns about hormones in traditional dairy products.

Although most individuals will recover within a week of being diagnosed, there are complications resulting from Campylobacteriosis associated with drinking of milk which has led to arthritis or Guillian-Barre Syndrome - a neurological condition that is often quite serious. Though a formal recall has not been announced, the Pennsylvania Department of Health has recommended that individuals discard any milk purchased from the dairy in which the milk was produced following January 1st.

Individuals sickened by such products should contact an attorney experienced in defective product suits. Pennsylvania's product liability laws are specifically designed to protect and compensate those that have been injured by a defective products, such as contaminated milk.

Peyton Manning's Neck Injury is Likely Career-Ending

Wed, 01 Feb 2012 16:35:06 -0500

Thirty-five year old Peyton Manning hasn't practiced since having a spinal fusion on September 8, 2011. This surgery was intended to repair a damaged nerve in his neck that caused weakness in his throwing arm. Manning had a single-level cervical neck fusion in which surgeons made a bridge between adjacent vertebrae to remove or reduce pressure on nerve roots. It was Manning's third neck surgery in 19 months and the most risky and complicated of the three.

Fusion is a surgical technique in which one or more of the vertebrae of the spine are "fused" together so that motion no longer occurs between them. The concept of fusion is similar to that of welding in industry. Spinal fusion surgery, however, does not weld the vertebrae during surgery. Rather, bone grafts are placed around the spine during surgery. The body then heals the grafts over several months - similar to healing a fracture - which joins, or "welds," the vertebrae together.

Recovery following fusion surgery is generally longer than for other types of spinal surgery. It takes longer to return to an active lifestyle after spinal fusion than many other types of surgery because evidence of bone healing is needed. In Manning's case, it has been reported that the nerves in his arm are not healing as quickly as hoped and, worse, don't appear to be progressing at enough of a rate to indicate that he will play again, according to two sources with knowledge of Manning's rehabilitation from neck surgery. Moreover, the velocity on his passes has not improved since he began throwing again in December, a sign that he may have hit a plateau.

Source:

What's more, although fusion is a very good treatment for some spinal conditions, it does not return the spine to its "normal" condition. Due to a heightened risk of a repeat injury, many surgeons recommend that spinal fusion patients avoid repetitive strenuous activities that involve combined lifting and twisting maneuvers to minimize the stress on the areas around the fusion. This type of activity would be encountered on a daily basis if Manning returned to the football field.

On Tuesday, Peyton Manning denied rumors that he was pondering retirement, stating to the media "I have no plans on doing that." Although I love a good comeback story as much as the next (especially when it comes to a class act like Manning,) the sobering reality is that for an aging Manning, a comeback is about as realistic as Sylvester's return in Rocky V. However, unlike Rocky V, what a great story it would be. Whatever happens, Peyton, we wish you the best of luck!

Villanova University Alumna Killed in Philadelphia Car Crash

Mon, 24 Oct 2011 21:15:13 -0500

A Villanova University alumna visiting the area for the school's homecoming weekend was killed Saturday night when she was struck by a car, police said.

Ossola, a former president of Chi Omega sorority, was with her sister when she was struck by a 2008 silver Jeep Liberty about 11:20 p.m. in Bryn Mawr, Lower Merion. She was crossing Lancaster Avenue from the north side near Thomas when the eastbound Jeep hit her. According to police, Ossola was taken to Bryn Mawr Hospital with head injuries and died at 11:52 p.m.

Ossola graduated in 2010 with a degree in economics and a minor in finance and math. She was working at PNC Bank in Pittsburgh as an analyst in the global treasury-management department.

Source:

The sudden, tragic wrongful death of a loved one, resulting from an accident caused by negligence, is the most devastating loss that an individual or family can endure. While no amount of money can replace a loved one, filing a wrongful death lawsuit may be the only way to get the restitution you deserve and help to deliver justice to the guilty party.

Public Hearing to be held Monday, October 24, on House Bill 1552

Fri, 21 Oct 2011 08:58:15 -0500

As a follow up to my previous story, on Monday, October 24, 2011, a public hearing will be held on House Bill 1552. House Bill 1552 is an unconstitutional Act amending Title 42 (Judiciary and Judicial Procedure) of the Pennsylvania Consolidated Statutes. The Bill holds that "Notwithstanding any other law, a civil action or proceeding brought to recover damages for death or injury to a person may only be filed in the county in which the cause of action arose."

The act is unconstitutional as it violates the Constitution of Pennsylvania, which vests this power solely with the Supreme Court. In addition, it is unfavorable to accident victims throughout the state because it provides harsh limitations on the plaintiff's choice of venue.

Jury finds Defendant is not Liable for Pennsylvania Accident Resulting in Serious Injuries

Fri, 21 Oct 2011 08:00:00 -0500

Molsky v. Stang

The Accident occurred on Nov. 29, 2004, when the plaintiff was driving westbound on East Pittsburgh St. in Greensburg, Pa. In court papers, the plaintiff alleged that she came to a stop at the intersection of Davis Center in order to turn left, at which time another driver stopped in the left eastbound lane, waved her through to complete the turn.

Relying on the driver's signal, the Plaintiff made a left hand turn, at which point the passenger's side of her Dodge Neon was broadsided by an the Defendant driving an Acura sedan driven who was eastbound in the left lane of East Pittsburgh St.

As a result of the accident, the plaintiff was rushed by ambulance to a hospital where she underwent open reduction internal fixation on a fractured right tibia which later required implanted surgical hardware.

The jury found no negligence by the defendants.

Source

Any motorist approaching such an intersection is required to utilize a high degree of caution. The law recognizes that a left turn is a hazardous maneuver because the left turning vehicle enters the lane of traffic for other vehicles. In fact, some courts have stated that the left turn is the most dangerous maneuver a motorist may execute. Therefore, great caution should always be undertaken.

The owner's burden placed upon a left-turning motorist is not discharged by the mere signaling of an intention to turn. The giving of a signal is immaterial if at the time the driver of the turning vehicle did not have the opportunity to make the turn in safety.

6 Common Travel Insurance Myths that Every Traveler Should Know

Thu, 20 Oct 2011 18:01:03 -0500

On October 14, 2011, Wise Bread wrote an article for U.S. News entitled 5 Common Travel Insurance Myths. The article listed the following common misperceptions about travel insurance::

1. Emergency medical assistance is included

2. Having trip protection with a credit card is sufficient

3. Travel insurance doesn't cover airline delays

4. Activity-related Injuries aren't covered

5. You don't need rental car damage protection

I agree that consumers should be aware of these common myths prior to purchasing travel insurance. However, I am supplementing this list with what I believe is perhaps the most important tip of all.

6. Don't purchase travel insurance unless you are willing to fight to get your benefits.

Perhaps the most common myth regarding insurance is that the insurance company will honor the insurance agreement and fairly pay your claim. In my personal injury practice, I see valid claims denied and undervalued by insurance companies on a daily basis. Insurance companies know that most insureds do not have the experience or resources to stand up for their rights so they routinely deny valid claims in hopes the insured does not pursue the matter.

A few years ago, my mother purchased travel insurance in case an emergency prevented her from going on a cross country trip. As luck would have it, upon arrival at the airport, my mother realized that she had forgotten her identification. Without an ID, she was not allowed through security and missed her flight to the west coast. Therefore, she filed a claim under her travel insurance policy since this unanticipated emergency was clearly covered.

To her surprise, the claim was denied. I took up the appeal on her behalf, which, by agreement, went back to the insurance company for a second review. The insurance company denied the claim again. As per the policy, the next step was to submit the claim to binding written arbitration. I spent several hours drafting an argument to the arbitrator regarding why my mother had a valid claim. Perhaps my most convincing argument was that the insurance company denied the claim twice - failing to cite any policy exclusion or reason. Finally, a win. The arbitrator found in my mother's favor and she was awarded the price of her airline tickets. The whole process took months to resolve and stole many hours of my time. All for an award totaling approximately $500.

In summary, I believe the most important thing to keep in mind when purchasing travel insurance (and any insurance) is that even if you are covered it is likely your claim will be denied or undervalued and you will have to fight the insurance company. So I pose the question, is travel insurance really worth it?

Luzerne County Court of Common Pleas finds vehicle in a funeral procession not entitled to stop sign defense

Tue, 18 Oct 2011 17:34:06 -0500

On November 22, 2011, the Luzerne County Court of Common Pleas found that the plaintiff in an automobile accident was entitled to partial summary judgment as the defendant's attempt to assert a funeral procession as an affirmative defense was inapplicable to him.

The accident occurred on July 28, 2006, in Hanover Township, Pennsylvania. The plaintiff was injured when his vehicle was struck by the defendant, who admittedly drove through the stop sign. The defendant asserted as a non-lead vehicle in a funeral procession he did not need to stop at the stop sign. However, the defendant also admitted that he was not part of the funeral procession and mistakenly joined the line of cars believing the vehicle had "car trouble" and was forced to proceed.

The Motor Vehicle Code governs the responsibilities of drivers in a funeral procession. The Statute reads as follows:

§ 3107. Drivers in funeral processions.
(a) General rule. --The driver of a vehicle which is being driven in a funeral procession may:
(1) Park or stand irrespective of the provisions of this part.
(2) Proceed past a red signal indication or stop sign if the lead vehicle in the procession started through the intersection while the signal indicator was green or, in the case of a stop sign, the lead vehicle first came to a complete stop before proceeding through the intersection.
(b) Visual signals required. --The privileges granted by this section shall apply only if each vehicle in the funeral procession displays lighted head lamps and emergency flashers and bears a flag or other insignia designating it as part of a funeral procession.
(c) Right-of-way to emergency vehicles. --This section does not relieve the driver of a vehicle which is being driven in a funeral procession from yielding the right-of-way to an emergency vehicle making use of audible and visual signals, nor from the duty to drive with due regard for the safety of all persons.

The Court found that the defendant was not entitled to avail himself to the privileges accorded to drivers of motor vehicles in a funeral procession because he was not part of the funeral nor a bona fide participant in the funeral procession.

Tomorrow, the Pennsylvania House Judiciary Committee will vote on unconstitutional venue law

Mon, 17 Oct 2011 21:06:28 -0500

The Pennsylvania House Judiciary Committee, Chaired by Representative Ron Marisco of Dauphin County, has scheduled a vote for tomorrow October 18, 2011 on House Bill 1552. This is a bill introduced by House Republican, Bryan Cutler, from Lancaster County and provides that:

Notwithstanding any other law, a civil action or proceeding brought to recover damages for death or injury to a person may only be filed in the county in which the cause of action arose.

SOURCE

Without question, this Bill is unconstitutional because venue is a procedural issue and under the Constitution of Pennsylvania, the power to make procedural rules is vested solely with the Pennsylvania Supreme Court and its Rules Committee. See North-Central Pa. Trial Lawyers v. Weaver, 827 A.2d 550 (Pa. Cmwlth. 2003)(Holding that venue in civil cases concerns a matter of pure procedure and in the absence of a countervailing constitutional provision authorizing the legislature to act in regard to venue in a particular area, the matter is committed to the exclusive authority of the Supreme Court under Article V, Section 10(c).)

This Bill is particularly troubling since it has been introduced by Bryan Cutler, who is an attorney, and should know that the Bill violates Pennsylvania's Constitution. Tomorrow, it will be interesting to see which of his constituents will support a bill that is clearly unconstitutional. Please check back and I will publish an update.

SEPTA's Crackdown on Fake Injury Claims is Good News for SEPTA Accident Victims

Fri, 14 Oct 2011 07:00:00 -0500

Prosecutors have launched a campaign to crack down on SEPTA riders and others who fake injuries in bus crashes and other accidents, Philadelphia District Attorney Seth Williams and SEPTA general manager Joseph Casey said Thursday.

SEPTA has installed video surveillance cameras on SEPTA vehicles in an effort to give prosecutors a new weapon in fighting fraudulent claims. SEPTA displayed videos at a press conference Thursday that showed a man running to get on a SEPTA bus that had been involved in an accident, so that he could lie down on a seat and claim a back injury. Another video showed a woman getting out of her bus seat to check an accident scene before returning to her seat to sprawl out and instruct her six-year-old daughter to feign injury, too.

Source

Although video cameras were installed to defend against fraudulent claims, the introduction of cameras on SEPTA busses will benefit both prosecutors and accident victims. Video surveillance footage will help SEPTA weed out and defend against fraudulent claims. Phony passengers and bus riders who fake injuries are likely to face criminal charges such as fraud.

On the other hand, video surveillance will help SEPTA bus accident victims who suffer legitimate injuries to establish the authenticity of their claim. Video surveillance can provide compelling evidence concerning how the passenger was injured, prove the victim's presence on the bus and possibly show which party was at fault in the accident. These aspects of the case are frequently disputed and difficult to prove.

All too often, bus passengers don't know how the accident occurred or offer a description of the accident that contradicts that of the bus driver. Since the bus driver's job is on the line, it is commonplace for the driver to deny all liability and allege that the impact was minor and injury claims are fabricated. Contradicting such testimony is challenging due to the perception that all bus accident injuries are bogus. Video surveillance capturing how the accident occurred can remove the "faker" stigma from your injury case and provide positive support for your injury claim.

Nevada Jury Orders Three Drug Companies to Pay $162 Million to Hepatitis C Victims

Thu, 13 Oct 2011 09:23:07 -0500

A Nevada jury found three drug companies - Teva Parenteral Medicines Incorporated, Baxter Healthcare Corporation and McKesson Corporation - liable for distributing 50 and 100 milliliter vials of an anesthetic used during colonoscopies. The drug companies were found liable in two separate trials because the size of the vials was larger than necessary for a single use.

The Endoscopy Center of Southern Nevada re-used vials of that anesthetic during colonoscopy procedures which caused a hepatitis C outbreak which infected hundreds of people, including Ann Arnold, the plaintiff in this case.

Arnold's attorney says the drug companies were initially offered a settlement of $4.9 million in this case. They turned it down and instead will pay more than $180 million. As expected, the drug companies maintain they were not negligent despite losing all three trials related to the outbreak so far.

Source