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Articles Posted in Accidents & Personal Injury

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1308588_motorway_at_twilight.jpgThe Victim, age 56, of Louisville, Kentucky died Monday night due to injuries he sustained after his car broke down on the expressway, and he was attempting to flag down help. The Victim was stuck by another vehicle on the ramp from Phillips Lane and Louisville Airport. While no charges have been pressed against the other driver, fault in this case is still undetermined. The Victim leaves behind a wife and children. Vandeveer’s family has suffered a huge lose, for which the Kentucky Courts will allow an avenue for recovery.

The Victim’s family will need to setup an Estate through Probate, which will empower them to handle wrapping up his affairs and transferring his assets to his wife and children. Additionally, the Estate will be in a position to seek recovery of medical bills, funeral bills, loss of consortium claims, and a claim for a lifetime of lost wages/earning potential from both the other driver & the other driver’s insurance company and from the Victim’s own insurance company. This type of action is known as a wrongful death claim. While the legal system cannot bring the Victim back or lessen the pain his family is experiencing, it can provide a recovery financially for the family so they can be assisted in moving their lives forward and provide the money that they have lost as a result of this tragedy and the money that the Victim would have earned for the family over his lifetime.

Fault isn’t an issue at this time, and unless a person is 100% at fault, Kentucky law allows for a recovery of damages on a percentage basis. This is known as comparative fault under Kentucky Law. For example, under comparative fault and Kentucky law, a person injured or killed could bear 80% fault for an accident and the other party only bear 20%, and the party injured or killed who bore 80% fault could seek recovery of the 20% from the other party and their insurance company. Under such a theory, if the damages were calculated at $500,000.00 from an accident where a person was injured or killed, the recovery allowed under such an 80/20 split of fault would allow the injured or killed party to recovery $100,000.00.
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1038828_u_s__supreme_court_2.jpgAt 5:00 a.m. in January 2010 in Louisville, Kentucky, police were called to the scene of a parking lot where a man was passed out asleep in his truck. The keys were in the ignition, the truck was running, the man’s foot was on the accelerator, one hand was on the steering wheel, the other hand was on the gear shift, and the man was unconscious. The police officers reported hearing the engine running loudly from more than a block away, due to the truck being in park but having the gas pedal stepped on by the unconscious man. At the scene, the police had to break out the window because the man would not wake up and respond to the officers, and officers were afraid the vehicle would either caught on fire or jump into gear and propel itself through the parking lot.

The man admitted to police that he had been drinking at 4th Street Live and the breathalyzer given at the scene showed the man was nearly 3 times the legal limit of impairment. He was dangerous and could have injured or killed someone in the state he was in and driving a car.

However, in October 2010, the Jefferson District Court Judge ruled that the man should not have been charged with DUI, because he was asleep and did not have physical control of the vehicle.

Judges in Kentucky have relied upon a 1986 Kentucky Court of Appeals Case when dealing with DUIs and facts similar to this case. In that Court ruling, the Appeals Court stated that there are four factors to consider when the intoxicated person is asleep in the vehicle, as to where a DUI has been committed. The factors to consider if the person should be charged with DUI are:
(1) Whether the suspect in the vehicle was awake or asleep;
(2) Whether the engine of the suspects vehicle was running;
(3) The vehicle’s location and all circumstances explaining how the vehicle got there; and (4) The intent of the person behind the wheel.
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Kentucky has passed a law and now is enforcing it that prohibits cell phone texting while driving. The law is designed to make it illegal for drivers to text while driving, which takes drivers’ hands off the steering wheel of the car and takes drivers’ attentions off of the road. Cell phone usage, including texting, causes many accidents in Kentucky. The use of these devises while driving distracts drivers and seriously diminishes the driver’s control over their vehicle. It may seem like a small thing to use a cell phone or text while driving, but the reality is it causes major accidents which injury and kill people. Drivers who text or take their attentions off of the road can injure or kill pedestrians, including people at crosswalks, motorcyclists, bike riders, and drivers of other vehicles.

Kentucky’s law 1307593_mobile_phone_in_hand.jpgprohibiting texting while driving is limited in its effects due to the problems in enforcing it, which include only a small fine for getting caught. Because the consequences of having an accident and seriously injuring or killing others are so substantial, the law and its enforcement needs to be strengthened.

The State of Tennessee, which also has laws outlawing texting while driving, has begun to have special patrols designed as “text patrols” which use unmarked vehicles to specifically watch for and issue tickets to those drivers texting while driving.
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In Kentucky swimming pool accidents can be the responsibility of the owners of the property. The area of Kentucky law that deals with these types of injuries related to swimming pools are premise liability laws. Whether the pool is part of an individual homeowner’s property or at a setting such as a school, park, neighborhood pool area, hotel, or resort, the property owner has a legal duty to maintain safety and health standards at the pool. Premises liability laws, including those pertaining to injuries involving swimming pools, considers who is at fault and why.

Liability examinations boil down to looking at what caused the accident, what did the owner do or should have done related to preventing the accident, and what was the status the person injured. The status of the person injured will affect what duty the owner has towards that injured party. In Kentucky a person’s status upon a property is broken down into three categories:
• Invitee: Someone who the property owner allowed onto the premises for social reasons, such as a guest invited to a pool party at a private residence, or the guests of a hotel using the pool there;
• Licensee: A person who was allowed on the property for reasons of business; for example, a swimming pool serviceman or a utility company technician;
• Trespasser: A person who was not given permission to enter the property where the swimming pool is located. For instance, if the injured person jumped over two high fences and broke a gate’s lock to get into the pool and was then injured, he or she will be found to have some or all of the liability for the accident.

The degree of the duty owed by the property owner to the person injured upon the property varies based upon the status. A trespasser status, for adults, will require the lowest form of duty owed by the property owner.

In Kentucky, young children, even if determined to be a trespasser, will likely not be liable for their own injuries in a swimming pool. This is because Kentucky law will consider the swimming pool an attractive nuisance to the young child, and thus considered to have lured the child to it, even if wrongfully entering the property to get to the pool.
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Kentucky Landlord Tenants laws limit personal injury lawsuits1328867_for_rent_sign_2.jpg against landlords. In Kentucky, a landlord is “not a guarantor of the tenants’ safety.” See Davis v. Coleman Management Co., Ky.App., 765 S.W.2d 37 (1989). However, a landlord owes a duty to his tenants to exercise reasonable diligence to keep common areas retained under the landlords control in a safe condition for the tenants. See Davis v. Coleman Management Co., Ky. App., 765 S.W.2d 37, 38 (1989).

“A possessor of land who leases a part thereof and retains in his control any other part which the lessee is entitled to use as appurtenant to the part leased to him, is subject to liability to his lessee and others lawfully upon the land with the consent of the lessee or a sublease for physical harm caused by a dangerous condition upon that part of the land retained in the lessor’s control, if the lessor by the exercise of reasonable care could have discovered the condition and the unreasonable risk involved therein and could have made the condition safe.” See Restatement (Second) of Torts, Section 360 (1965).

Only when the tenant is put in complete and unrestricted possession and control of the premises, will the landlord not be liable for known defects which existed at the time the tenant leased the premises. See May v. Moore, 2008 WL 2152274 (Ky. App.), citing Carver v. Howard, Ky., 280 S.W.2d 708, 711 (1955).
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A tragic Kentucky car crash has killed a woman in Louisville. Martha Diaz, age 40, of the 5000 block of Quail Court in Louisville, Kentucky has died from injuries she sustained in an automobile accident on Sunday. The fatal crash was caused by Francisco Balderez, age 26, after the BMW he was driving went off the road and hit a sign and a utility pole early Sunday morning on the Greenbelt Highway near Lower River Road. At the time of the crash, Balderez’s blood alcohol level was reported to have been .211, which is nearly 3 times the legal limit. Balderez has been charged with one count of murder, one count of first degree criminal mischief, one count of possession of a controlled substance, and DUI. Balderez was taken to UL hospital with non-life-threatening injures.

Further details of the accident are pending.

This is clearly a case where Balderez should not have been driving and is responsible for the death of Diaz. Diaz’s Estate will have a wrongful death claim against Balderez for the role he played in Diaz’s death. Kentucky wrongful death laws will allow Diaz’s Estate to seek damages from Balderez, including his automobile insurance carriers. Additional investigation into where Balderez was coming from may shed light on other persons who may share some fault in this tragic accident. In cases where alcohol was supplied to the drunken driver when it should not have been, due to their already known intoxicated state, either at a party or a bar, those persons or businesses can become liable to the Estate of the decedent for the drunken condition which caused the accident.
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Fairfax County, Maryland has agreed to a $2 million dollar settlement from an unarmed man being shot and killed by police. In 2006, a Fairfax County police officer shot an unarmed man in front of his townhouse. The man was being arrested by a SWAT team for betting on football games when the officer claimed his gun accidently discharged and killed the man. The police officer was never charged with a crime, and the prosecutor’s office deemed it an accidental shooting.

This type of case here in Kentucky would be a civil right violation and negligence action. Such a case in Kentucky where a person was wrongfully shot and killed by a police officer would be a wrongful death lawsuit brought by the Estate of the deceased, where the Estate would be able to claim damages from the medical bills related to the shooting and the lost lifetime earning capacity of the deceased. Additionally, if the decedent had a wife or children, then there would be a claim for loss of consortium by such family members.

In Kentucky, in wrongful death suits, the damages that can be sought will likely reach over a million dollars due to the claim for a lifetime of lost wages.

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841339_dog_pitbull.jpgIn Kentucky, owners are responsible for injuries caused when their dog injuries a person. Kentucky Revised Statute (“KRS”) 258.235(4), states: “Any owner whose dog is found to have caused damage to a person, livestock or other property shall be responsible for that damage.” This means that Kentucky is a “strict liability” state when it comes to dog bites and dog attacks.

Who better should take responsibility for a Kentucky dog attack injury than the owner who could have prevented it by taking proper precautions in controlling their animal? However, people and children who are bitten by dogs or attacked by animals may face legal hurdles to seeking to be compensated for their injures.

Even though KRS 258.235 created a strict liability action, negligence principles are still applicable, as the dog owner’s liability may be subject to the doctrine of comparative negligence. This means that dog owners may seek to have a certain amount or percentage of the fault from a dog attack assigned to the victim of the dog bite or dog attack. That percentage of fault sought to be assigned by the dog owner to the victim may be attributed to the victim’s status as a trespasser upon the property and/or the victim’s behavior causing the bite or attack. Under a strict liability theory, the owners of an animal may still try to exculpate themselves from liability by showing that the harm was caused by the victim’s fault, or by the fault of a third person for whom the owner was not responsible, or by a fortuitous circumstance.
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It has been reported that Trista Shoemaker was killed in an car crash in Franklin County, Kentucky on Saturday January 8, 2011 at an intersection on U.S. 127. Witnesses report that 31 year old Kevin Butler, of Harrodsburg, Kentucky, ran a red light and struck the passenger side of Shoemaker’s 1999 Toyota. Trista was 17, and was pronounced dead at the scene. Her 15 year old passenger in her car was taken to Franklin County Regional Medical Center.

Butler, who was driving a 2002 Chevy truck, was airlifted to UK Hospital.

The accident is under investigation, and anyone with information about it should call the Frankfort State Police Post at (502) 227-2221.

If the initial reports are correct, there should be a personal injury lawsuit brought on behalf of the injured 15 year old and a wrongful death suit brought by the Estate of Ms. Shoemaker. In both suits, recovery of medical bills, pain & suffering, and lost wages should be sought. In the case of the death of Ms. Shoemaker, the Estate’s claim will be substantial because of the claim for a lifetime of lost wages and loss of consortium claim of her parents. An accident re-constructionist may be immediately needed to start gathering proof of what happened here.

Kentucky personal injury attorney Brent T. Ackerson stated: “This is a tragedy when one young life is taken and another is forever changed. We have two families that will never be the same. Our hearts and prayers go out to their families.”
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1006453_caution_wet_floor-sign_1.jpgIn Kentucky, people have slip & fall and trip & fall accidents in store everyday due to the negligence of store owners and store employees. These type of accidents and injuries are often avoidable if only the stores took proper precautions. These types of cases fall under Kentucky premises liability laws.

In Kentucky, store owners owe as duty to protect the public from dangers or hazards the store knows about or should know about. The main Kentucky court case on this issue of people slipping or falling in a business and injuring themselves is Lanier v. Wal-Mart Stores, Inc. In this case, the Court said that to maintain a lawsuit against a business for an injury involving a customer or person slipping or falling, while at the business, the injured party must prove:
(i) he or she slipped or fell on a substance or object while at the store, which was dangerous,
(ii) the substance or object was a substantial factor in causing the person to slip or fall, and
(iii) because of the substance or object, the business was not in a reasonably safe condition for the person or customer who slipped or fell.

Kentucky businesses have a duty to check the store premises for hazardous conditions, including spilled liquids and other slipper substances and clean such up or correct such before it causes a person to be injured.

A substance that could create an unsafe condition could be food, water, or some other fluid on the floor, including substances that have leaked out of products on the shelves. An object that could create an unsafe condition could be a product or part thereof on the floor, a problem or defect with the floor itself, a loose or broken step, a hole, or a loose or broken handrail. These examples are not all encompassing, as many other substances or hazardous conditions may qualify. When a person slips and/or falls due to an unsafe condition in a store, they have a right to be compensated for the injuries, the pain & suffering, lost wages, and medical bills, that result from such.
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