Monthly Archives:February 2016

Cell Phone Distracts Florida Driver, Resulting in Multi-Car Accident

4 Feb , 2016,
No Comments

DWC or “Driving While Chatting” could be a new acronym next to DUI or DWI. As the debate heats up nationally, an increasing amount of states are considering a ban on cell phone use while operating a motor vehicle, including Florida.

Early this morning, two Florida law enforcement officials and another victim where rushed to an Orlando-area hospital after a distracted driver plowed into their vehicles when he went to reach for his cell phone. The accident occurred shortly after 3:30 a.m. near the intersection of Apopka Vineland and Conroy in Windermere. Florida Highway Patrol trooper Clark Egerton, 47, Windermere officer Jason Sipos, 35, and another driver, Sheri Faynik, 23, were all rushed to Orlando Regional Medical Center following the crash.

According to the officers, Christopher Patterson, 27, of Ocee, was distracted by his cell phone when he sideswiped all three vehicles parked on the side of the highway. Officer Egerton had pulled over Faynik for speeding and officer Sipos arrived on the scene to assist just before the crash occurred. Officers Egerton and Sipos were still inside their vehicles at the time of the crash.

While Florida does not currently have a cell phone ban in place, many safety groups are pushing for future regulations to create safer Florida roadways. Despite the benefits, the “road” to passing these measures is long and winding. Most recently, Maryland became the newest state to pass a state-wide ban on cell phone use while driving; however it took Maryland’s Legislature nearly a decade to pass the ban.

Some experts believe that talking on your cell phone while driving is equivalent to driving drunk in terms of the likelihood of getting into an accident.

Related Resource:
• Driver distracted by cell phone plows into FHP trooper, Windermere officer, other car (Orlando Sentinel, May 24, 2010)

Product Liability: BP May Have Used Cheaper, Less Reliable Design

Feb , 2016,
No Comments

According to a recent investigation by the Orlando Sentinel, BP’s design choices for its deep-water oil well may have been flawed. The Sentinel interviewed several engineering experts and reviewed documents for its late-May report, which concluded that BP chose to use a cheaper but less reliable design as it built the well. Along with a number of other mechanical and maintenance failures, the inadequate design may expose BP to class action product liability claims by those injured by the oil spill.

“The deepwater Gulf of Mexico is an especially challenging place to drill,” explained Louisiana State University petroleum engineering professor John Rogers Smith in the Sentinel report.

Texas A&M petroleum engineering professor F.E. Beck, testifying recently before one of the U.S. Senate committees investigating the spill, said, “There are clear alternatives to the methods BP used that most engineers in the drilling business would consider much more reliable and safer.”

After reviewing the log of activities on the Deepwater Horizon, drilling engineers interviewed by the Sentinel explained that BP’s well design called for a single permanent pipe, or “casing,” which would be 13,293 feet long. The casing would be finished with an injection of drilling cement. The cementing process can often be problematic because of the geology in the region.
More commonly used in Gulf drilling operations is a system with an additional layer of pipe called a liner. The liner and casing are locked together with two cement jobs, which makes them less prone to failure. A liner also provides more options for testing and repair.

The BP well “is not a design we would use,” said another veteran deep-water engineer interviewed by the Sentinel. He estimated that the well design virtually always used by his own company, which uses both a liner and casing, was approximately ten times more safe and reliable than the design BP used. However, the safer design might have cost BP an additional $7 million to implement.

Regulation by the Minerals Management Service does not require that wells use the liner system.

It is not clear whether BP’s choice to use the casing-only design caused the accident. Many of the experts the Sentinel interviewed were unwilling to hazard a guess because some important site-specific factors are not known publically.
However, it is clear that BP experienced a large number of problems when drilling the well. Drilling in challenging areas like the Gulf requires a great deal of judgment, and it remains to be seen whether BP’s well design caused the spill. However, if equipment or design failures are responsible, BP and the other companies involved could face product liability lawsuits for the injuries and wrongful deaths of the workers and any other injuries caused by the disaster.

Related Resource:
“Documents show BP chose a less-expensive, less-reliable method for completing well in Gulf oil spill” (Orlando Sentinel, May 23, 2010)

McDonald’s Recalls 12 Million Tainted “Shrek” Collectors’ Glasses

Feb , 2016,
No Comments

The Consumer Product Safety Commission is warning consumers not to use any “Shrek Forever After”-themed collectible drinking glasses from McDonald’s because they are tainted with the cancer-causing metal cadmium. McDonald’s has recalled all 12 million of the glasses distributed through their restaurants for consumer protection and product liability concerns.

No illnesses or injuries to children have been reported from McDonald’s Shrek glasses, but high long-term cadmium exposure is known to cause cancer, bone softening and severe kidney problems.

The product liability concerns arose after high-tech tipsters wielding Thermo Electron Niton XRF testing guns found readings of up to 1,000 parts per million of cadmium in the paint that creates the design on the glasses, and reported to the CPSC. The cadmium level considered safe and legal in children’s toys is 75 parts per million.

Even the level of 1,000 parts per million, however, is much lower than the reported level of cadmium contained in the Miley Cyrus jewelry recalled earlier this year by Walmart. Some pieces of Walmart Miley Cyrus jewelry were shown to contain as much as 10 percent cadmium by weight.

The XRF testing gun-toting tipsters also reported their findings to California’s Representative Jackie Speier, who is pushing legislation to apply the children’s toy standards to all products likely to be used by kids, such as the McDonald’s Shrek Glasses.
McDonald’s did have a third-party lab test the glasses before distributing them, but that lab did not find elevated levels of cadmium. After the reports to the CPSC and Representative Speier, McDonald’s decided on the product recall out of an “abundance of caution.”

“We believe the Shrek glassware is safe for consumer use,” said Bill Whitman, McDonald’s USA spokesman, to the BBC. But “to ensure that our customers receive safe products from us, we made the decision to stop selling them and voluntarily recall these products, effective immediately.”

Related Resources:
1. “McDonald’s recalls 12 mln Shrek drinking glasses-media” (Reuters, June 4, 2010)
2. “McDonald’s Recall Of Shrek Glasses Started With Tipster” (National Public Radio, June 4, 2010)
3. “Walmart’s Miley Cyrus Jewelry Contains Cadmium” (Los Angeles Times, May 19, 2010)

Driver in Beach Truck Accident Has History of Careless Driving

Feb , 2016,
No Comments

According to a recent report in the Daytona Beach News-Journal, the Volusia County Beach Patrol ranger involved in Wednesday’s beach truck accident has a history of careless driving while on the job. Beach ranger John Scott Dowling is accused of running over sunbather Carole Dalton as he drove across the beach to help a lifeguard.

Despite initial reports that her injuries were not serious, Ms. Dalton required emergency surgery due to compound fractures in her lower leg. Her shinbone was fractured up to the knee, requiring the installation of a plate and seven screws. She also sustained cuts to the face and a large bruise on her chest where the beach truck’s tire ran over her.

“She started rehabilitation this morning. They’re saying no weight (on it) for 90 days,” her husband told the News-Journal on Thursday. “It was much worse than we thought.”
Dalton feels lucky: “God and a guardian angel were watching over me,” she said. “If he (Dowling) hadn’t turned to miss the woman with the baby, he would have run over my center and I’d be dead.”

A Personnel File Filled With Commendations — And Several Accidents
The Florida Highway Patrol’s investigation of the beach truck accident was not complete by the time the Daytona Beach News-Journal story was published on Thursday afternoon, but charges are pending.

John Dowling has worked as a beach ranger since 1987, According to the News-Journal, his personnel file is mostly filled with commendations. He has several marks on his record, however, when it comes to his driving:

• In 1993, he was suspended without pay for one day because the county’s Accident Review Board determined he had “been negligent” while driving his work vehicle.
• In 1998, his supervisor sent him a “letter of caution,” reminding Dowling that he had been involved in “several preventable motor vehicle accidents” since he began working for Volusia County, and that he had taken Risk Management’s driver safety training course “twice previously.” That course is required when employees are involved in on-the-job car or truck accidents, although Volusia County spokesman Dave Byron points out that the accidents could be minor.
• In 2008, Dowling was involved in a slow-speed, rear-end collision on State Road A1A that the Accident Review Board determined was preventable.

Also in 2008, Dowling and some colleagues were created a beach driving training class, which earned him a commendation from Beach Patrol Captain Scott Petersohn. “Your dedication and commitment to the Volusia County Beach Patrol and the beach-going public will have a positive effect on safety and public perception for many years to come,” wrote Petersohn.

“As soon as the FHP report comes out, we’ll review it to see what went wrong,” Petersohn told the News-Journal of Wednesday’s beach truck accident. “We’ll see what we can do to change.”

Carole Dalton holds no grudge against beach patrol drivers, but does think some safety procedures could be incorporated to prevent accidents.

“I closed my eyes for a couple of seconds and the next thing I knew, the truck was on top of me,” she said. “I was on my chair stuck under it. I was screaming and crying. It hurt.”
“If he had a blind spot, he should have gotten out to look,” she added.

Related Resources:
• “Records: Beach officer warned before about driving” (Daytona Beach News-Journal, June 11, 2010)
• “Sunbather run over by Beach Patrol vehicle” (Daytona Beach News-Journal, June 9, 2010)

New Cooling Blanket Limits Brain Injury in Oxygen-Deprived Babies

Feb , 2016,
No Comments

Neonatologist Dr. Michael Weiss of the University of Florida in Gainesville has been pioneering a new technique that can greatly reduce complications in newborns with brain injuries from lack of oxygen at birth. He and his colleagues have just completed an 18-month study of the technique, part of coordinated research at academic hospitals nationwide.
Used for newborns who have sustained a mild to moderate brain injury due to oxygen deprivation or low blood supply, the technique involves wrapping the baby in a special blanket constructed with cold water tubes inside. The blanket cools the baby’s body temperature to about 91 degrees, slowing the body systems, reducing energy requirements and reducing swelling in the brain.

The technique has been shown to reduce the risk of cerebral palsy, seizures and death in newborns with moderate brain injuries, as well as to result in improved vision and cognitive and motor skills.

“What it does is it decreases the amount of cerebral edema, or swelling, around the brain. It can also decrease cell death and decrease the release of excitatory factors, which can cause brain injury. It also decreases the inflammation that’s typically seen after brain injury,” Dr. Weiss told Ivanhoe Broadcast News recently.

Four Out of Every 1,000 Babies Born in the U.S. Suffer Brain Injuries
Brain injuries caused by oxygen deprivation can occur because of a number of different complications at birth. For example, the placenta may separate prematurely, the umbilical cord may become wrapped around the child’s neck, or the cord can come out before the baby is actually born. These types of birth injuries may be unavoidable or due to medical malpractice.
Infant asphyxia can cause cerebral palsy, cognitive and motor problems, blindness and developmental problems.

“Before the cooling blanket, we really didn’t have any therapies that were brain-specific, so before, we would just provide supportive care for these babies. By cooling the babies, it actually decreases the amount of brain injury these babies have,” said Dr. Weiss.

“I really thought it was going to be some high-end, high-tech procedure,” one mother whose child was helped by the procedure told Ivanhoe. “It amazes me that something like that could save or help you know a little baby’s life.”

The therapy is currently available at major medical centers. Dr. Weiss is working to develop a statewide therapy protocol in Florida, and to promote the technique nationwide.
“One of the biggest things that I think we offer the parents in this case is hope,” said Dr. Weiss.

Related Resource:
“Cooling blanket helping to save babies from brain damage” (Ivanhoe Broadcast News/WNDU-TV, Jun 8, 2010)

Pit Bull Bites 10-Year-Old Orange County Boy; Deputy Shoots Dog

Feb , 2016,
No Comments

An Orange County homeowner could face fines or a premises liability claim and has lost his dog after a dog bite incident this weekend. 10-year-old Daniel Oliff was bitten by the dog as he was playing in the yard of the home where the dog lived, according to police. The boy’s injuries were serious enough that there was blood visible from the bite and he had to be hospitalized. He is expected to be OK.

Daniel was playing at a house on Stonefield Drive in east Orange County around 7 p.m. on Sunday when he was bitten by the dog, a pit bull named Buddha. Kevin Whittington, who helped Daniel, said he found the boy after the incident had taken place.

“I walked down and saw he had blood coming from his leg, so I asked him what happened. He said he had been bitten by a dog,” Whittington told WKMG-TV Local 6. “He seemed to be more scared (than hurt), but you could tell he was in pain.”
Shortly afterward, Orange County sheriff’s deputies arrived. While they were waiting for animal control officers, the dog became aggressive, lunging at a deputy. One of the deputies then fired two shots at the dog, killing it.

Owners Could Face Premises Liability and Fines; Claim Dog Had No History of Aggression
Fabio Pagani, one of the dog’s owners, claimed that Buddha had never been aggressive in the six months he had owned him. He doesn’t know how the dog got into the yard to bite Daniel.
“We don’t know how he got out. Every door was closed, and I figure someone came here and let him out and forgot about him,” he said.

As we previously reported in our blog, it is difficult to assess how dangerous a dog may be based on a single bite. It is unclear whether Daniel was bitten once or multiple times, or if there was any tearing or slash wounds that indicate a more serious biter. However, a dog bite that draws blood is more serious and demonstrates more aggression than one without an actual puncture.

Injuries to children Link to /Practice-Areas/Children-s-Injuries.shtml from dog bites are more common than injuries to adults, because kids don’t always recognize signs of fear or aggression exhibited by dogs.

While this pit bull may in fact have shown no obvious signs of aggression while Mr. Pagani owned him, the owner may not have been told of a prior history of biting. In any case, under Florida premises liability law, it does not matter whether a dog is “vicious” or if the dog’s owners knew that. Owners of dogs that bite are responsible for the damage they cause to anyone legally on their property.

Related Resources:
• “Pit Bull Attacks Boy; Deputy Kills Dog” (WKMG-TV Orlando, June 28, 2010)
• Florida Statutes Annotated §767.04, Dog owner’s liability for damages to persons bitten


Evaluating FMCSA’s Truck Accident Prevention Proposals: Part II

Feb , 2016,
No Comments

In our earlier post “Evaluating FMCSA’s Truck Accident Prevention Proposals: Part I,” we reported on reaction within the trucking industry to new federal trucking regulations being proposed by the Federal Motor Carrier Safety Administration (FMCSA).

The FMCSA’s new initiative, which is called “CSA 2010” (for “comprehensive safety analysis”), is intended to prevent truck accidents by fairly identifying the most unsafe industry actors, implementing strategies to change those actors’ behavior, and getting the most egregious actors off the road.

In hearings before the U.S. House’s Transportation and Infrastructure Subcommittee on Highways and Transit, industry group the American Trucking Associations (ATA) testified that it supported CSA 2010 overall but had concerns about how it would be implemented.

ATA spokesperson Keith Klein identified several very positive aspects of the proposal (discussed in the previous post). At the same time, he said there were two important reasons why ATA felt it had to bring its concerns to the attention of Congress.
“The first is a matter of safety, to ensure that unsafe carriers are selected for interventions, and the second is a matter of equity, to ensure that relatively safe carriers are not selected for interventions.”

American Trucking Associations: Changes to Promote Fairness Are Necessary or the Program Will Not Be Effective
Because ATA argues that the program as currently proposed does not ensure that all carriers will be treated equitably, it recommended these changes to the program:

• A final determination of fault should be made before a truck accident is entered into the company’s record, so drivers and carriers are only held responsible for the crashes they cause.
• To fairly compare the number of truck accidents attributed to each company — called the company’s “exposure measure” — the agency should use accidents per vehicle miles traveled, rather than the number of trucks or power units the company owns.
• The agency should only include final, adjudicated traffic tickets in the driver’s and company’s record — not unadjudicated “warnings” issued by law enforcement officers or tickets that are dismissed by the court.

Choosing the Proper Comparison Group, Inclusion of Only Concrete Evidence Are Most Important for Fairness
Generally, ATA would like to make sure that whatever is included in driver’s or company’s record is objective, reasonable and fairly reflective of the true situation.
For example, ATA argues, if a carrier terminates a driver, violations committed by that driver should be removed from the company’s safety record. Enforcement needs to be uniform from state to state. Long-term sore points, such as what ATA describes as “inequitable measurement” of open deck or flatbed trucks, need to be corrected.

Finally, ATA argued that the new initiative should not be made an official part of federal trucking regulations until the University of Michigan Transportation Research Institute pilot program is complete. An evaluation study of the pilot is currently underway, and ATA recommends waiting until that study is complete before passing the proposed new regulations into law.

Most important to fairness is making sure the right comparison group is chosen, so drivers and companies have a fair shake at measuring up.

“A system that is based on inconsistent data and a flawed scoring methodology will not achieve its objectives. Instead, it will create inequities for some safe carriers and inappropriately allow some unsafe carriers to avoid scrutiny and consequences,” concluded Klein.

Related Resource:
“CSA 2010 Needs Additional Improvements, ATA Tells Congress” (Truckline, Jun 23, 2010)

6 Safety Tips to Prevent Pool Accidents and Premises Liability

Feb , 2016,
No Comments

No one wants to see anyone injured in their swimming pool — especially a child. With the tragedy of an 11-month-old boy’s fatal swimming pool accident fresh in our minds, now is the time for pool owners to take active steps to reduce the possibility of drowning or injuries to children in their pools.
If you own a pool, you know how popular they are with kids. In the law of premises liability, swimming pools are considered an “attractive nuisance,” which means that the law recognizes that kids love pools and often use them uninvited. If you own a pool, you could be held liable for negligence if a guest is injured in your pool — or for injuries to childrenyou didn’t even know were there.

To prevent tragedy and premises liability claims, follow these six good pool safety tips from the U.S. Consumer Product Safety Commission:

1. Install a fence between the water and the living area of your home. It’s not enough to put a fence around your back yard — you need to keep unsupervised kids from entering the pool from inside your home. Climb-resistant fences are available that are and have self-closing, self-latching gates with the latch out of a child’s reach.
2. Keep kids and pets from falling into the swimming pool:
• When it’s not in use, keep your pool covered with a pool safety net or a permanent pool cover. Choose your pool cover carefully — kids are often tempted to walk on them and can be trapped beneath if the cover should collapse.
• Install an audible splash alarm as a backup, but not primary, safety feature.
• Don’t leave toys in a swimming pool. Kids often fall into pools when trying to reach for toys.
• Remove the ladder to an above-ground pool during winter.
3. Make sure you have good safety equipment close at hand. At the very least, you need a rescue-grade floatation device and a fully stocked first aid kit. Post the address of the pool near the pool for reference if someone needs to call 911. If you don’t have an outdoor phone, always bring your cell phone with you to the pool.
4. Bring your pool drains up to date on safety. Kids can be trapped by drain suction, so be sure to install anti-entrapment drain covers. Even safer are safety vacuum release systems, which shut off the pump if blockage is detected.
5. Remember that swallowing pool water can make you and your kids sick.According to the Centers for Disease Control, gastrointestinal illness from swallowing pool water has been rising dramatically in recent years. Some types of parasites can live in chlorinated water for days.
6. Keep a sharp eye out, and learn CPR. 77 percent of submersion injuries to children occur in five minutes or less. Unfortunately, drowning also takes mere minutes and can be completely silent. Even if your kids know how to swim or are using floatation devices, don’t just assume they’re safe — a swimming pool is not a good place for unsupervised kids.

Related Resources:
• “Summer Vacation: 6 Keys to Pool Safety” (, June 18, 2009)
• “Toddler drowns in home pool in Orange County” (Orlando Sentinel, July 11, 2010)

New Smyrna Beach Truck Accident, Child’s Death May Spur Changes

Feb , 2016,
No Comments

The July 18 truck accident on New Smyrna Beach that ended in the death of a four year-old may bring about changes to Volusia County’s beach driving rules. Aiden Patrick was hit by a pickup truck while running across the beach traffic lanes.
His is the second fatal accident involving a child that was caused by beach driving this year in Volusia County. In March, four-year-old Ellie Bland was struck by a car and killed on Daytona Beach.

Including these tragic, wrongful deaths of two children, there have been more than 40 car and truck accidents involving beach driving in the past five years, according to county records. At least 20 of those accidents involved serious injuries.
Some county officials are now calling for changes in the rules for beach driving in Volusia County.

“How many children have to be killed before we do something?” said Volusia County councilman Carl Persis in a recent story in the Orlando Sentinel. “We’re embarking on a reputation of having the world’s most dangerous beach.”

Should These Beach Driving Accidents Change a 100-Year Tradition?

In defending the practice of allowing cars and trucks to drive on beaches, Volusia County Chairman Frank Bruno points out that Volusia County’s charter requires it to provide beach access for the public. The county doesn’t have enough off-beach parking, so it has allowed beach driving for more than 100 years.
Councilman Persis has called for changes in the past but says his proposals have been soundly rejected by other county officials. His proposals have included making the beach driving lanes one way, limiting driving to certain areas and providing more off-beach parking.

One reason such proposals haven’t passed may be that the county believes that it is immune from lawsuits caused by beach driving accidents. According to deputy county attorney Jamie Seaman, the policy is covered under the sovereign immunity doctrine, which immunizes governments from lawsuits for certain policy judgments.

However, that immunity isn’t absolute. In the 1980s, the Florida Supreme Court ruled that Daytona Beach was liable for a beach driving accident. The Court said that beach driving creates a “lethal mixture” of cars and people, and that risk was known by the City of Daytona Beach. Therefore, the city had a duty to warn beachgoers of the danger.

Volusia County’s policy was created after that decision, however, and county officials believe their policy will successfully protect them from any liability for accidents resulting in injuries to children and adults.

One attorney interviewed by the Sentinel disagrees that Volusia County is completely immune from lawsuits.

“It’s an inherent danger allowing cars on the beach, and what it would take is a case with the right set of facts,” said the attorney. “For example, a child under the age of 6 cannot be negligent for his or her actions. You cannot blame a child for the accident, and that could be an important distinction.”
The Florida Highway Patrol is still investigating the truck accident leading to Aiden’s death. According to its preliminary findings, however, the driver who struck Aiden was not speeding and was not under the influence of alcohol.

Related Resources:
• “Second child killed in beach driving accident raises liability questions” (Orlando Sentinel, July 20, 2010)
• “4-year-old hit, killed on beach in New Smyrna” (Orlando Sentinel, July 18 2010)