Does Arizona Need New ATV Legislation?

Arizona has always been a great place for outdoor activities, including riding ATV’s. Over the years, the popularity of ATV’s has continued to increase followed by the increase of related injuries and deaths to children, yet state legislatures still have not enacted sufficient legislation to ensure their safety.

Children under 16 years old are legally allowed to operate an ATV on a dirt road as long as they wear a helmet. Over 136,000 Americans each year are injured or killed on ATV’s and more than 33% are under 16 years of age. That is over 45,000 children every year. Just this past weekend a 9-year-old died when the ATV she was on with her 11-year-old sister rolled. Her sister, who was thrown from the vehicle before it flipped, received non-life-threatening injuries.

ATV’s continue to get bigger and faster and therefore more dangerous yet parents are still allowing their children to operate the adult versions. I don’t know if that is what happened in this case but it is what happened to children in 90% of the cases in 2005.

Pediatricians, orthopedic surgeons, and other professionals want children under 16 to be banned from riding ATV’s due to how often they are injured or killed while doing so. Dr. T.S. Park, pediatric neurosurgeon-in-chief at St. Louis Children’s Hospital and his colleagues believe the following guidelines would reduce ATV-related injuries and deaths to children:

1. Banning children 16 and under from riding ATV’s.
2. Mandatory helmet laws.
3. Mandatory instruction and certification programs for owners and operators.
4. Prohibiting ATV’s from all public streets and highways.

Do we really need tougher legislation to tell us, as parents, when something isn’t safe for our kids? Children, especially those under 16, might and probably do need someone to tell them something isn’t safe for them. However, when we still have parents allowing their young children to operate these powerful vehicles despite all the warnings it seems maybe we do need the legislation.

Please exercise every caution when allowing your children to enjoy recreational activities and remember that even if your child has exhibited exceptional skills in operating ATV’s, the adult models are often too heavy and too powerful for children.

It is my opinion that we don’t necessarily need more laws, just more common sense. What do you think?

Woman Attacked by Chimpanzee

A woman who was attacked by a chimpanzee in February is still in a coma and her family is seeking $50 million in damages. Charla Nash was trying to help a friend lure her pet chimpanzee “Travis” back into her house when the chimp attacked her. Ms. Nash lost her hands, nose, lips, and eyelids, and may be blind and suffering brain damage. The owner of Travis had reportedly been warned of previous bad behavior, but whether he/she took any precautions is unknown.

In Arizona, the extent to which Ms. Nash or her family could state a claim would depend upon several factors, including known behaviors or propensities of Travis prior to the incident and known propensities of these types of animals in general. Knowing the propensities, should the previous owner (private, a pet store, etc…) have sold the chimp? Knowing past behaviors, should the owners have allowed the chimp to roam free? Should the owner have warned others, including Ms. Nash, of the danger associated with the chimp? These are all important questions in determining legal liability.

If the family for Ms. Nash is able to prove legal liability, often a person’s homeowners insurance will cover for damages in a circumstance like this. Be careful to read your policy to see if you would be protected for a circumstance where an animal you own attacks and harms another. Some policies exclude this type of coverage. If you have an animal, you should know what protections you have, and make every effort to obtain insurance, prior to the worst happening.

How awful for Ms. Nash and her family. Regardless as to whether there is coverage (I doubt $50 million anyway), her life has now been permanently changed. Reason and care is the standard by which we should govern our decisions and actions, in all decisions in life. We keep Ms. Nash in our prayers.

Man Dies after being Struck by Road Debris on I-17 in Arizona

A man suffered severe head trauma and died after being hit in the head by a piece of flying metal on I-17. The man was in the passenger seat of a truck moving south on I-17 earlier this month when he was struck by the ratchet part of a tie-down system that came through the windshield.

The metal came from a truck or trailer traveling northbound on I-17 and bounced over the barrier into traffic traveling the opposite direction, and eventually through the truck windshield. Thus far no one has come forward to claim the piece of metal. It is quite possible that someone may not even know it came from their truck. However, if the person is aware that it came from their truck, we hope they will contact the investigators.

In cases like this, liability can be hard to assess considering, if there is no witness, the vast amount of possibilities. Road debris is something that can be very difficult to control especially on highways and freeways with heavy and fast moving traffic. For instance, how does a driver who loses a piece of metal off the back of his/her truck retrieve it when there is constant, steady, and fast moving traffic? We see this happen frequently, but it is probably far more dangerous to go back and pick it up than merely to leave it to the road crews. Certainly, if the object creates a hazard, a quick call to 9-1-1 to alert the authorities is entirely appropriate.

In Arizona, Arizona Revised Statutes, §28-1098 states:

A. A person shall not drive or move a vehicle on a highway unless the vehicle is constructed or loaded in a manner to prevent any of its load from dropping, sifting, leaking or otherwise escaping from the vehicle.

B. A person shall not operate a vehicle on a highway with a load unless the load and any covering on the load are securely fastened in a manner to prevent the covering or load from becoming loose, detached or in any manners a hazard to other users of the highway.

An injured party will have to first prove the object came from a specific truck (this is often denied by the responsible driver). In some circumstances, it may be necessary to prove also that the responsible party was negligent in securing the load.

Assuming the identity of the vehicle or driver from which the debris came cannot be discovered, an injured party may be able to state a claim with their own insurance company, under their Uninsured Motorist coverage. This will requite that they prove that the falling object or roadway debris actually came from another vehicle. This is not always as easy as it sounds, and insurance companies routinely make up all types of different scenarios to suggest otherwise.

If you or someone you know has been injured in a circumstance involving falling or roadway debris, it is proper to call a Certified Specialist in Personal Injury/Wrongful Death law to see if you might have legal recourse. Almost all such attorneys work on a percentage arrangement, so it costs you nothing to see if you might have a claim.

Glendale Child Falls in Pool

A boy was taken to Phoenix Children’s Hospital last Thursday after he fell into a pool. The two-year-old was awake and crying when the paramedics arrived at the Glendale home but we still have not heard an update on whether or not he is okay. We keep him and his family in our thoughts.

The boy’s family apparently had lost track of him for nearly 5 minutes and he found his way to the unfenced pool.

Please, please remember how important it is to have a fence around your pool. Unfortunately, in this incident two of the most important safety factors regarding swimming pools were missing: 1) a fence, and more importantly, 2) supervision. Nothing can replace supervision when it comes to children’s safety around water. Especially now, as the summer approaches, please have a set plan for keeping your children safe.

Living in the Valley we have seen too many of these incidents. As pool owners, we must take responsibility to secure our property and any areas around water. Many accidents involving swimming pools occur because the owner hasn’t taken the precautions necessary to keep people in the area safe, especially children. Fences, warning signs, and self-latching gates are just a few of the options available. These are especially helpful if the pool isn’t in use or if a child isn’t living in the home. Indeed, many of these are not merely options, but required by law, depending on the city. You should check your City’s requirements for more information.

Having young children myself, I am well aware of the amount of work it takes to watch over these “balls of endless energy”. However, if we are not 100% up to the task, 100% of the time, then we should not allow our children in an environment that is near water. No matter what precautions are taken---children will find a way. Even if good swimmers, accidents can occur which render them unable to save and protect themselves.

At Zachar & Associates, we have represented one too many families who lost a child. Extra care and precaution is always needed to make sure that those close to us are not the next victim. If you have questions, please feel free to call us to discuss your legal issues.

Mesa Infant Killed by Family Dog

It was a horrific, nightmarish day in Mesa yesterday for the family of a two-week-old baby, who laid her to rest. The family dog, a Chow-Golden Retriever mix, apparently bit the baby causing fatal injuries. The mother called 911 and the baby was pronounced dead when the paramedics arrived. Our thoughts are with this family as they try to recover from this unimaginable tragedy.

In an effort to prevent this from ever happening again, dog experts and trainers and the like have been addressing this topic a lot lately. I would like to relay some of their input to those of you who do spend time around dogs.

It seems most people think of their pets as family and that is completely understandable considering they give us unconditional love and companionship. It is also easy to get comfortable in a routine with your pet especially if you have had the animal for a long time. But, according to the experts, we need to remember that dogs are animals, not pseudo-people. As such, they will behave like animals. Yes, statistically there are dogs that show more aggression than others but the fact is that any dog can be dangerous. Experts advice is to never leave a child alone or unsupervised around a dog regardless of how well behaved you believe the animal to be. Children under 5 are even more at risk due to their unpredictable behavior and fearful reactions which can trigger predatory aggression in dogs. Experts also advise education is key for people and animals. Teach your children how to interact with animals and how to read the animal’s body language and make sure your dog receives the appropriate training. A couple more good tips are when buying a dog or any pet, make sure to choose the right animal for you and your family, and, never forget good old common sense.

In Arizona, there are very specific laws when a dog bites or attacks someone. By statute, the owner of the dog will be held strictly liable for the injuries and damages sustained by the victim. The only defenses are trespassing (the victim had no right to be on the premises), or provocation (the victim provoked the animal). Typically, homeowners insurance will pay for these types of claims. (These laws will not help this poor Mesa family, as the dog was their own, and harmed a resident in their same household.)

Dogs are considered “man’s best friend”, and quite often that is true. However, there are a number of breeds that have been proven over time to show harmful tendencies, and thus, people need to make sure that “Fido” is an appropriate pet for the given circumstance. The adverse results, as we have seen here, can be catastrophic and irreversible. Our heartfelt sympathies go out to these people.

Supreme Court Rules in Favor of Consumers

The Supreme Court ruling last week in Wyeth vs. Levine opened the door for all consumers to hold pharmaceutical companies accountable when they sell unsafe products. In fact, the Court decided that these claims can now be brought in State courts.

The drug manufacturer, Wyeth, was arguing that since the FDA had approved their anti-nausea drug Phenergan, they shouldn’t be held liable for damages it caused to patients prescribed the drug. They argued that FDA approval superseded state level “failure to warn” claims. Basically, they were arguing that a drug company cannot be responsible for any damages their drugs may cause after it has been approved by the FDA.

Diane Levine sued Wyeth in Washington State Court after losing her arm to gangrene, brought on by taking Phenergan. The jury awarded Levine $6.7 million in damages. Wyeth appealed to Vermont’s Supreme Court, which upheld the jury’s decision in favor of Levine. Wyeth then appealed to the U.S. Supreme Court which also ruled in favor of Levine.

The big manufacturers favor “preemption”, a doctrine that holds that federal law will override state law if there is a conflict between the two. The big manufacturers also argue that the FDA is best qualified to weigh all risks and benefits associated with a drug, and if the FDA says it is OK, then nobody should be able to challenge that.

This mindset is very similar to the old cigarette company defenses. For years they argued that they complied with the federal government’s requirement to tell people that cigarettes may be hazardous to health, by placing the warning on the packs. They argued that they should not be subject to lawsuits, because they did everything that the government told them to do. (In the meantime, they place dangerous and addicting compounds into the cigarettes to get people hooked on them.)

Big manufacturers are afraid of juries. They believe if juries in state courts are given the freedom to question the FDA’s rulings, then claims against pharmaceutical companies may get out of hand. In truth, they do not want to ever be held accountable, and so they send their lobbyists and millions of lobby dollars to Washington D.C. to get laws enacted that insulate them from consumer lawsuits. Obviously, it doesn’t always work, and sometime, the consumers rightfully win.

In truth, consumer lawsuits are the only thing keeping these giant drug companies in check. The threat of litigation for years has made the products in the United States a bit more expensive perhaps, but at the same time, much safer. Isn’t it a good idea to pay a few pennies more for a product, and know that it is safe, as opposed to not having these protections?


It seems that by this decision, the Supreme Court is alerting manufacturers that they are responsible for providing appropriate information regarding risks and dangers of their products to consumers. Is that a bad thing? Certainly not. It should be a minimum that we expect, especially from these big multi-billion dollar drug manufacturers. Of course, there is always the possibility of human error and we will never be able to prevent all types of mistakes. However, that is best sorted out though the legal, civil process. That is exactly what the court are for, and cases like this are the exact reasons that our forefathers wrote a document we live by, called the US Constitution.

2 Children Struck by Automobiles in Arizona

It is that time of year again when children of all ages want to be outside. They want to be playing sports, swinging, riding bikes, and soon, swimming. We all, as parents and adults, have to be extremely aware of what’s going on around us because children, especially very young children, are only aware of what they are doing If you’re a parent, you know how quick little ones can get away from you, or into something they shouldn’t. That is why as parents, neighbors, friends, we must remember to take every precaution we can to avoid injury causing or life threatening situations.

Last month a child was struck by a van while riding his tricycle. The child was taken to Maricopa Medical Center with non life-threatening injuries. Another child was hit by a truck while playing on the sidewalk in his neighborhood. He was pronounced dead at the hospital. Children tend to go about their business and forget to look for oncoming cars or dash into the road, because they don’t understand the dangers. Is that what happened in these cases? I don’t know. Nonetheless, one child is injured and another is gone. That is 2 too many, in my opinion.

Our legal system will make decisions regarding liability and money may change hands, but grief and pain will remain long after cases are settled. A settlement cannot replace your child, and cannot replace another’s child. Please remember to watch your children, and to drive and act safely to be careful for other children. As adults, we should understand these matters. Children do not. The law imposes the responsibility on all to act reasonably, and carefully, to avoid a result that might harm another. As to children, we must be more cognizant, especially as the weather warms and more people head out to play.

Bus Driver and Good Samaritan Ticketed

Is the best way to improve the world we live in to punish those who do the very things that make it better? Like the bus driver last week in Denver who got off his bus to assist two women safely across a street in a snowstorm. As the bus driver and another man were helping the women, a truck hit the bus driver. Yes, the truck driver was ticketed but unbelievably so was the bus driver, for jaywalking. Are you kidding me?!!!!!! The police officer stated that “jaywalking contributed to the cause of the accident”.

Under Arizona law, any evidence of the jaywalking citation against the bus driver would be inadmissible. However, there could be an argument that the bus driver contributed to the cause of the accident by not keeping a prudent watch for other vehicles on the roadway. “Comparative negligence” is applied in accident cases such as this. The negligence of every person involved can be considered in determining responsibility and damages. In this case, the bus driver’s financial recovery may be reduced or even denied, depending on how significantly his actions contributed to the accident.

I don’t know about you, but I hope the bus driver hires a good attorney, who proves that he was not negligent. Do we really need one more person in this world who isn’t willing to help a lady across the street, for fear of being held “liable” in some way for an accident? I certainly hope not.