After their son was killed by a speeding Tempe police officer, Jim Barker and Kelly Wilcott sued the city. They have now decided to settle their case for $1.35 million.
Kyle Barker was crossing Baseline Road near Rural Road at 2:00 on the morning November 26, 2005. At the same time, Officer William Cullins was rushing westbound on Baseline to provide backup to another officer when he struck and killed Barker. (Cullins was charged with criminal speeding and issued a civil citation for which he later paid a fine of $491).
According to the autopsy report, Barker was well over the legal blood alcohol level, at .18. According to an internal police investigation, Cullins was driving 95 mph five seconds before the accident.
Cullins was suspended without pay for one month after the investigation determined that he was driving recklessly, and that he violated no less than three (3) city policies related to obeying traffic laws and the safe operation of vehicles. The suspension was the maximum allowed by the department.
We all know police officers have to make split second decisions, which at times may cause dangerous circumstances. However, the police and fire officials are subject to the same driving laws as are ordinary citizens. Their responsibilities include, at ALL times, to use reasonable care and caution, no matter what the circumstances. The same standards of reasonable care form the basis for tort or injury law in Arizona.
Some may place blame on Kyle Barker for being intoxicated, but, being intoxicated is not a criminal offense. However, if Kyle Barker’s level of intoxication was substantial enough that he could no longer act in a reasonable fashion to provide himself basic levels of protection, then he too might have been partially to blame here. The City would have to prove that Barker’s intoxication would have prohibited him from getting to safety had he been alerted to Cullins--by the cars lights and sirens—had Cullins been using them (which he was not).
This is another sad and preventable accident. We respect the police for what they do for us every day, however, we cannot lose sight of the fact that they are not allowed to perform their duties with disregard to the same laws that we are required to follow.
If you have any questions or comments, please feel free to email Chris Zachar directly at Czachar@zacharlaw.com, or visit our website at www.ZacharAssociates.com.
Showing posts with label Law Suits in the News. Show all posts
Showing posts with label Law Suits in the News. Show all posts
Saturday, June 20, 2009
Thursday, June 11, 2009
City of Phoenix Settles Case for Little Boy Who Was Shot
In 2006, six-year-old Adrian Trevino was struck in the back and paralyzed by a stray bullet from a Phoenix Police Officer’s weapon.
Adrian and his three-year-old sister were asleep in bed when a police pursuit came to a horrible ending directly outside their home. The chase began when officers pulled over a car carrying Michael Hernandez, who grabbed a gun and fled the scene. After breaking into one home and threatening a family, Hernandez evaded police and ended up near Adrian’s home, with police in pursuit. Hernandez raised his weapon, the south team opened fire, and an officer to the east returned the fire thinking it came from Hernandez. Five of this officer’s bullets struck the home Adrian was in, one which pierced a wall and struck young Adrian in the back.
Adrian’s family sued the city for physical and emotional injuries, medical expenses, lost wages, and other damages. Last week the Phoenix City Council agreed to a $6.5 million settlement.
It is so hard to assess blame in a situation such as this. We always want to assess blame. It is a way of helping us make sense for something bad that has occurred. It makes us feel more secure when we can define specific parameters to a situation as tragic as this one. Sometimes that blame is justified, sometimes it is a denial as to something we may have done wrong. Sometimes, it is just a coping mechanism.
In this case, I think we can all agree that young Adrian and his family share no blame for the incident. However, does the police officer deserve the blame? If you asked this question of 100 people, you would probably get a 50/50 split. While we can agree that police officers need some leeway to perform their jobs, we should also concede that blindly firing in the general direction of a criminal, while in a residential neighborhood, is not the best course of action. Indeed, the 4th and final rule of gun safety---which certainly the Phoenix Police officers know---is to always know what is behind your target. If you don’t know, or if you are not sure, then a better course of action might be appropriate.
The headline in the Phoenix newspaper read “Family Wins Settlement from City.” Are you kidding me? Their little boy is paralyzed for the rest of his life. The loss of enjoyment of life will be astronomical, and I’m sure the medical bills significant. The family and Adrian did not “win” anything. No one is a “winner” here. In fact, both parties have already lost. The settlement is the means that our law provides to compensate the innocent victims for the life of pain, suffering and disability that they will suffer because of a split second poor decision by this police officer.
But make no mistake. No one wins in this situation.
If you have any questions or comments, please feel free to email Chris Zachar directly at Czachar@zacharlaw.com, or visit our website at www.ZacharAssociates.com .
Adrian and his three-year-old sister were asleep in bed when a police pursuit came to a horrible ending directly outside their home. The chase began when officers pulled over a car carrying Michael Hernandez, who grabbed a gun and fled the scene. After breaking into one home and threatening a family, Hernandez evaded police and ended up near Adrian’s home, with police in pursuit. Hernandez raised his weapon, the south team opened fire, and an officer to the east returned the fire thinking it came from Hernandez. Five of this officer’s bullets struck the home Adrian was in, one which pierced a wall and struck young Adrian in the back.
Adrian’s family sued the city for physical and emotional injuries, medical expenses, lost wages, and other damages. Last week the Phoenix City Council agreed to a $6.5 million settlement.
It is so hard to assess blame in a situation such as this. We always want to assess blame. It is a way of helping us make sense for something bad that has occurred. It makes us feel more secure when we can define specific parameters to a situation as tragic as this one. Sometimes that blame is justified, sometimes it is a denial as to something we may have done wrong. Sometimes, it is just a coping mechanism.
In this case, I think we can all agree that young Adrian and his family share no blame for the incident. However, does the police officer deserve the blame? If you asked this question of 100 people, you would probably get a 50/50 split. While we can agree that police officers need some leeway to perform their jobs, we should also concede that blindly firing in the general direction of a criminal, while in a residential neighborhood, is not the best course of action. Indeed, the 4th and final rule of gun safety---which certainly the Phoenix Police officers know---is to always know what is behind your target. If you don’t know, or if you are not sure, then a better course of action might be appropriate.
The headline in the Phoenix newspaper read “Family Wins Settlement from City.” Are you kidding me? Their little boy is paralyzed for the rest of his life. The loss of enjoyment of life will be astronomical, and I’m sure the medical bills significant. The family and Adrian did not “win” anything. No one is a “winner” here. In fact, both parties have already lost. The settlement is the means that our law provides to compensate the innocent victims for the life of pain, suffering and disability that they will suffer because of a split second poor decision by this police officer.
But make no mistake. No one wins in this situation.
If you have any questions or comments, please feel free to email Chris Zachar directly at Czachar@zacharlaw.com, or visit our website at www.ZacharAssociates.com .
Tuesday, April 7, 2009
$11 Million Awarded in Assisted Living Case
Lydia Scherrer’s life changed in 1996 when her husband, Earl, was in a car accident and suffered a severe traumatic brain injury. Earl was not expected to recover but after 16 months in a coma he began to show signs of life. His wife gave everything she could to help his recovery. She loyally committed many hours working with him every week. Unfortunately she had to work, as most of us do, and in the end she had to find a facility that could provide care 24/7.Lydia continued to visit her husband regularly and on April 7, 2006 she transferred him to the 24-hour care facility, Liberty Manor Residency, in Phoenix, Arizona. One month later Earl was dead and the medical examiner decided it was due in part to several foreign objects found in his stomach and small intestines. These foreign objects included plastic bags, paper towels, and unopened catsup packets.
Lydia Scherrer sued Liberty Manor Residency for abuse and neglect, wrongful death, and punitive damages. She received the largest verdict ever awarded against an assisted living facility, $11 million.
We do our homework and we investigate and we ask all the important questions and we take tours and so on and so on and then we finally make what we think is an informed decision. We entrust these places with our loved ones and we walk away, hoping and praying that we have made the right decision, one of the most important decisions we will ever make. We walk away believing that the place we have chosen will provide everything they have promised. Yet, we continue to see too many of these tragedies in the news.
When you or a loved one is placed into a medical facility, ANY medical facility (hospital, nursing home, extended care facility, rehab, etc..), it is of paramount importance that you visit as regularly as you can, and that you keep your eyes and ears open. As lay people we understand little about medicine, but we truly don’t need to be health care professionals to often see when our loved ones are receiving less than adequate treatment. Everyone needs a friend, and when a medical inpatient, everyone needs an advocate---an extra set of eyes and ears to watch what is happening. Never be afraid to ask questions to gain a full understanding of policies and procedures. Never be afraid to voice concerns of the treatment of a loved one. If you believe that mistreatment is happening, demand to see the patient advocate or director of the clinic. If you are not satisfied, call the Arizona Attorney General’s office, which has the obligation and authority under Arizona law to investigate patient abuse. Lastly, keep in mind there are attorneys who specialize in personal injury and nursing homes cases, who can help during, and after neglect or abuse has occurred.
We hear and see too many stories of neglect and abuse of the infirm and elderly. As our population grows older, we need to be much more careful, mindful and observant of our loved ones who require these facilities. We never want the neglect or abuse to come to a lawsuit. Hopefully, this verdict will make it clear to these facilities that we will continue to hold them accountable for the care of our family members and loved ones.
Monday, March 23, 2009
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.
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.
Tuesday, March 10, 2009
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.
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.
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