Miraldi & Barrett Co., LPA Blog

Mail Service Suspended After Recent Dog Attacks

Wed, 02 May 2012 08:00:00 GMT

Dogs are often called man’s best friend, but occasionally that friend can turn into your worst enemy. Dog bites occur dozens of times a day in every state in America, and they are becoming more common. According to the American Humane Association (AHA), the statistics are mind-boggling:

· 4.7 million dog bites occur in the U.S. every year
· 800,000 of those bites require medical attention
· The U.S. insurance industry pays out $1 billion each year in dog bite claims
· Half of dog attacks occur among children younger than 10

Some local governments have gone as far as banning specific breeds that are thought to be particularly dangerous, such as pit bulls. However, pit bulls aren’t the only dogs that bite. The AHA says at least 25 different breeds have been involved in dog attack deaths. Some of these ordinances have been found to be unconstitutional because not all dogs of a particular breed are vicious or dangerous. Any dog can bite, regardless of its breed.

Besides children, mail carriers seem to be the most vulnerable to dog attacks. The events in one Houston neighborhood are worth mentioning. A neighborhood dog has reportedly attacked three different postal carriers there over the last two years. After the most recent attack last month, the U.S. Postal Service took the rare step of suspending mail service in that neighborhood. Likewise, in Lorain, Ohio, the postal service will require a homeowner to use a post office box if the property owner's dog has attacked a mail carrier on more than one occasion.

Dog bite victims do have rights. In Ohio, dog bite victims can recover from the dog owner a dog as long as the victim was not trespassing on the dog owner's property or was not teasing or tormenting the dog. The victim can also recover against a keeper of a dog -- someone who had possession of the dog at the time. This same rule also applies to a harborer of a dog -- someone who lets a dog stay on the property owner's property.

A dog owner’s homeowner or renter insurance policy typically covers dog bites, but only a small percentage of dog bite victims ever see any payments from insurance companies. Many dog attacks go unreported and uncompensated, so it’s a good idea for victims to contact an attorney. If a dog bite victim does not have an attorney, the insurance company usually tries to settle the claim for just a fraction of what the claim is worth.

Mail Carriers Face Constant Threat From Dogs

Mon, 23 Apr 2012 08:00:00 GMT

Mail carriers face constant risks from dogs as they deliver mail on their routes. Last year 2,613 postal employees were bitten or attacked. Attacks increase during warmer months when owners allow their dogs to roam.

In Lorain nine postal carriers were bitten by dogs in the last year. Mail carriers are trained to use their mail bags to buffer them from dogs. They are also issued pepper spray, but often the spray is used too late to ward off the attack.

From the dog’s perspective, the dog is just protecting its turf. It seems that some dogs never feel comfortable with a mail carrier who returns each day to their home.

The best way that dog owners can prevent attacks is to keep their dogs inside the house behind securely latched doors during the hours that the mail is normally delivered. The National Association of Letter Carriers Joint Safety Task Force is urging that cities pass legislation that would make it illegal for owners to leash their dogs on front porches or in their front yards. In the meantime, dog owners should do this voluntarily.
　

Governor and General Assembly Gut Ohio's Consumer Sales Practice Act

Thu, 05 Apr 2012 08:00:00 GMT

Oh my. When we didn't think things could get worse with Ohio's Republican-dominated General Assembly and its leader, Governor John Kasich, things just did. On Monday, April 2, 2012 (why couldn't this have been a belated April Fool's joke?), the governor signed into law, HB 275. With one swift signature, our governor gutted Ohio's model consumer law and placed our consumer protections at the bottom of all states. Even the usually business-oriented, pro-Republican newspaper -- The Plain Dealer -- in an editorial, begged the governor to veto the bill. It looks as if the governor did not hesitate for even a moment before placing his John Hancock on the proposed law.

So how did the Ohio Consumer Sales Practice Act turn into the Right To Cheat Law? Under prior law, if a business cheated a consumer, the business was held accountable. In most consumer cases, the amount in dispute works against a consumer. If the amount of the dispute is only several thousand dollars, the cost of proceeding against the business after payment of attorney fees and court costs, is just too expensive for the consumer. The consumer would likely spend in fees and costs more than what his or her claim was worth; and would, therefore, not pursue the claim. For that reason, Ohio's prior consumer law allowed the consumer to recover attorney fees against the business if the consumer were successful. It also allowed the consumer to get triple its damages as a way to discourage and punish unscrupulous businesses. Commentators hailed Ohio's former law as a model for the entire country -- a distinction it held for 40 years.

The new bill now allows a cheating company to "cure" its deceit by offering to give the victim his money back and a nominal amount --- capped at $2,500 --- toward attorney fees in exchange for dropping the suit. However, if the consumer rejects the offer and a jury awards a penney less than what he was offered by the business, the consumer loses the right to recover triple damages or his attorney fees. For most consumers, the risk will be too great. Who wants to go to court, win the case, and then end up paying fees and costs that are greater than the verdict?

It is too late to stop the law now. At this point, the people of Ohio have to ask whether its leaders are representing them or a few special interest groups. Please note that not one democrat voted for this bill.

Automobile Insurance Companies Cannot Change Provisions of Policy Within First Two Years

Fri, 30 Mar 2012 08:00:00 GMT

Automobile insurers cannot change the terms of a policy during the first two years of a guaranteed two-year policy period unless both the consumer and the insurance company agree. Ohio has statutes that forbid this.　

In a recent case in Cuyahoga County, the Eighth District Court of Appeals ruled that an auto insurer could not change the policy to exclude a particular driver in the household during the first two years of the policy. The excluded driver was involved in two accidents and the insurance company refused to cover those losses. However, the provision excluding the driver was not in the original policy, but was added during the two year guaranteed period. The court of appeals ruled that this exclusion was not valid and provided coverage to the "excluded" driver.

For complete details, see http://www.sconet.state.oh.us/rod/docs/pdf/8/2012/2012-ohio-1062.pdf

Miraldi & Barrett to offer free book to answer consumer questions about dog bites

Fri, 17 Feb 2012 08:00:00 GMT

WHEN THE DOG BITES: A Consumer's Guide to Handling Dog Bite Claims in Ohio will soon be available from the Miraldi & Barrett web site. This book was written by David Miraldi, who has extensive experience in handling dog bite and dog attack cases. The book outlines nine critical mistakes that consumers make when handling a dog bite claim on their own. The author then tells the reader exactly what steps should be taken after a dog bite incident. The final chapter in the book answers frequently asked questions about dog bite claims, starting with fault and responsibility for injuries caused by dogs and ending with losses that can be recovered because of a dog attack.

The book will be availabe in approximately two weeks.

Woman Sues Honda in Small Claims Court For Defective Advertising and Wins

Tue, 07 Feb 2012 08:00:00 GMT

Heather Peters struck a might blow against Honda Motors last week when she won a landmark decision against the automaker in small claims court. Ms. Peters claimed that Honda made false claims about the gas mileage for her Honda car and that she was damaged by this. Because the small claims court in California does not allow recoveries above $10,000, Ms. Peters tailored her arguments to show that she had suffered losses of just less than that amount, namely $9,687.

Claims brought in small claims court are usually not as vigorously defended and the manufacturer cannot engage in lengthy motion or discovery practices that occur in regular courts. Ms. Peters has written a blog that shows what she did and how others can follow her lead. To go to her blog, click here.

Unclaimed Funds in Class Action Lawsuits Go To Charities

Thu, 22 Dec 2011 08:00:00 GMT

Did you ever wonder what happened to unclaimed funds in class action settlements? Have you ever received a letter that tells you that you are entitled to some funds from a class action, but then you don’t fill out the paperwork because it is either too long or too confusing? People entitled to recover from the settlement often do not bother to fill out the paperwork to be able to receive their share. Sometimes as much as 80 percent of the settlement goes unclaimed. Until recently, the unclaimed funds reverted back to the defendants who had agreed to pay for their alleged wrongdoing.
One law firm in Painesville deserves special recognition for what they were able to do with the unclaimed funds from class actions. As part of a 52 million dollar settlement, the firm worked out an agreement that any unclaimed funds would go to more than 40 charities. As a result of this arrangement, the law firm was able to distribute over 14 million dollars in unclaimed funds to more than 40 charities. This law firm, Dworken & Bernstein Co., LPA, and its partner, Patrick J. Perotti, continue to do this in the class action lawsuits that they handle.
The distributions are made possible because of a legal doctrine known as cy pres. Cy pres comes from the French phrase, "cy pres comme possible" which means "as near as possible". In the class action lawsuits, this doctrine is used to see that unclaimed funds go to groups "as near as possible" to the people wronged in the class. The court has to approve the groups that will receive the funds.
Our hats go off to this law firm for using this doctrine to make our communities better.
　

Consumer Rights Will Be Weakened if HB 275 Passes

Sun, 18 Dec 2011 08:00:00 GMT

Wouldn’t it be great if our Ohio legislators were interested in protecting the rights of everyday people instead of finding ways to cripple their rights? Once again legislation is finding its way through the Ohio legislature designed to hurt the little guy and benefit the business world. This new legislation would take the teeth out of Ohio’s Consumer Protection Laws.

House Bill 275 has passed the House and is being considered by the Senate. This bill adds a controversial “right to cure” provision that would make it easier for companies that cheat consumers to escape from any serious legal consequences for their misconduct.

The law would allow a company that has cheated a consumer to avoid significant damages. Under the current law, if a company is guilty of consumer fraud, it has to pay triple damages. This penalty encourages companies to deal fairly with consumers.

The new law would eliminate this provision. Instead, a company can return the money that it wrongfully took and pay a nominal fee for the consumer’s attorney fees and court costs.

A national Consumer Law Center analysis says that these proposed changes would make Ohio’s consumer laws one of the least effective in the country. Ohio’s current law is a currently a model for the country.

If you are concerned about losing more of your rights as consumers, please contact your Ohio Senator and express your displeasure. Instead of representing the interests of the people of Ohio, the legislature is catering to a special interest group. In this case, that group is thestate’s auto dealers.

Evidence that car is speeding must be proven by observation not speculation

Fri, 09 Dec 2011 08:00:00 GMT

People in auto accidents often claim that the other driver was going over the speed limit. Sometimes one driver is allowed to give an opinion about the speed of the other car and sometimes he or she cannot. When will this testimony on speed be allowed?

A recent Ohio case spells this out. Ordinarily people are not allowed to give opinions unless they are experts in the field and can explain the technical reasons for their opinions. An exception to this rule is that ordinary lay witnesses can give an opinion about the speed of a car if that person had a reasonable time to observe the car and reach an opinion.

In the recent case, the defendant was pulling out of a private parking lot onto the public road. The other driver had the right of way on the public road and struck the defendant’s vehicle. The defendant wanted to testify that the other driver was speeding. However, the defendant did not see the other car until it was just 30 to 50 feet away. The court would not allow the opinion on speed because this was not sufficient time to determine the speed.

The defendant also argued that due to the skid marks and the amount of damage to the cars that the other driver had to be speeding. The court said that the defendant needed to hire an expert in accident reconstruction if the defendant wanted to take into consideration these factors.

Thus, although people in accidents can testify about speed, they have to have observed the other car for a sufficient length of time to be able to gather an opinion. I recently concluded a case where the defendant driver claimed that my client had to be speeding because he never saw him and he was a careful driver. This type of testimony will never see the light of a courtroom.

Pre-existing Conditions and How They Affect Personal Injury Claims

Fri, 04 Nov 2011 08:00:00 GMT

As each of us ages, our joints (including our spine) develop arthritic changes such as bone spurs and loss of cartilage. For most of us, these changes occur gradually and the joint is not painful. When someone is involved in a car crash and a joint is injured, insurance companies are quick to blame the pre-existing arthritic change for the painful joint. They will argue that arthritic change on x-ray equals arthritis or pain in the joint.

These arguments are often persuasive to a jury. However, if the client's prior medical records show that the client did not complain of pain in that joint, the attorney can argue that this condition did not cause any symptoms. Doctors will verify that arthritic changes are often asymptomatic.

When the patient had prior pain in the joint, the inquiry becomes when did the patient last complain of the problem. The more distant in time the treatment, the easier it is to show that the arthritic changes were not a source of pain at the time of the crash. The attorney can explain that the trauma from the crash triggered an inflammatory response in the joint that in turn caused pain. This is a widely-recognized principle in medicine.

If the client had pain in the joint at the time of the car crash, the attorney must be able to demonstrate that the crash caused some demonstrable change. Sometimes a clinical exam will show damage to a ligament that was not present before the crash. If the crash caused a fracture, then this is also a verifiable injury that has exacerbated a pre-existing condition.

When x-rays or a clinical exam show no objective or verifiable changes in the condition, then the claim rises and falls with the credibility of the client. If the client is believable and does not exaggerate the difference in the condition, a jury can still find in favor of the client on an aggravation of the pre-existing condition. These are the most difficult claims upon which to make a recovery.

Things to Consider Before You Get A Dog

Tue, 01 Nov 2011 08:00:00 GMT

In the United States over 4.7 million people are bitten by dogs each year. For that reason the Center for Disease Control and Prevention offers several suggestions for families before they get a dog. These recommendations are worth posting.

1     Consult with a professional (veterinarian or responsible breeder) to learn about an appropriate breed of dog for your family.
2     If a dog or its breed have a history of aggression, that dog or breed is not appropriate for household with children.
3     If it appears that one of your children is fearful or apprehensive around dogs, delay acquiring a dog.
4     Spend time with a dog before buying or adopting it.
5     Use caution when bringing a dog into the home with an infant or toddler and never leave infants or young children alone with any dog.
6    Spay/neuter virtually all dogs because this frequently reduces aggressive tendencies.
7    Do not play aggressive games with your dog, e.g. wrestling.
8    Train dog social behaviors such as rolling over to expose the tummy and relinquishing food without growling.
9    Immediately seek professional advice from veterinarians, animal behavorists, or responsible breeders if the dog develops aggressive or undesirable behaviors.

Following these steps should decrease the chances of your dog biting another family member or a third party.

Steps to Minimize the Likelihood of a Dog Attack

Mon, 31 Oct 2011 08:00:00 GMT

More than 4.7 million people each year are bitten by dogs in the United States. Many of these victims are children. The Center for Disease Control and Prevention has published ten safety guidelines that set forth strategies to lessen the likelihood of a dog bite. Because children are attacked by dogs more than adults, parents should teach their children these safety rules about dealing with dogs and a dog attack.

1     Do not approach an unfamiliar dog.
2     Do not run from a dog and scream.
3     Remain motionless when appraoched by an unfamiliar dog (be still like a tree).
4     If knocked over by a dog, roll into a ball and lie still (be still like a log).
5     Do not play with a dog unless supervised by an adult.
6     Immediately report stray dogs or dogs displaying unusual behavior to an adult.
7     Avoid direct eye contact with a dog.
8     Do not disturb a dog who is sleeping, eating, or caring for puppies.
9     Do not pet a dog without allowing it to see and sniff you first.
10   If bitten, immediately report the bite to an adult.

Small Children Most Likely To Be Bitten By A Dog

Tue, 25 Oct 2011 08:00:00 GMT

Dog bites continue to be a major public health concern. On average, dogs bite over 4.7 million people each year and, of these, 800,000 require medical attention.

A recent study shows that unsupervised children between the ages of 3 and 5 are most likely to be attacked by a dog. Dogs that are not generally viewed as dangerous breeds are more often than not the source of the bite. The study shows that if a dog bites once, it will usually bite again. And the second attack is often more brutal and damaging than the first one.

After a dog bites, the most important thing is for the victim to receive immediate medical attention. If a laceration occurs to the face, a plastic surgeon should be called to render the initial care. The wound must be thoroughly cleaned at the emergency room to reduce the chance of an infected site.

Ohio has laws that protect victims of dog bites. An owner or custodian of a dog is absolutely responsible for any injuries and damages caused by the dog unless the victim was trespassing on the dog owner's property, teasing or tormenting the dog, or committing a criminal act on the dog owner's property. Most homeowner insurance policies provide some liability coverage for the owners of a dog that has injured someone.

Former NFL Players File Class Action Against NFL Over Concussions

Mon, 22 Aug 2011 08:00:00 GMT

Several former NFL players have filed a class action lawsuit claiming that the National Football League withheld important information about the dangers of concussions, instructed playings to hit with their heads, and failed to properly treat them for concussions. A class action is a lawsuit brought be several people on behalf of everyone in a particular class or category. In this case, the class is the individuals who have played in the NFL and have suffered head injuries.

Jim McMahon, a former Bears quarterback, and Joe Thomas, a Cleveland Browns lineman, are two of the seven people who began the lawsuit. They do this on behalf of all of the players who have sustained head injuries while playing in the NFL.

Corporations dislike class actions. One individual may not have the resources to contest the wrongdoing of a big business, but when that person's claim is joined by all others in the class, the corporation's questionable wrongdoing can be stopped.

The NFL vigorously denies the allegations. This will be an interesting case to follow.

Woman Allowed To Proceed Against The City of Lorain For Injury Sustained in Memorial Day Parade

Fri, 12 Aug 2011 08:00:00 GMT

Dorothy McGuire was marching in a Memorial Day parade in Lorain, Ohio when she stepped into an uncapped monument box in the middle of the street and broke her ankle. A monument box is a lidded cast-iron container that houses a property pin. She sued the City of Lorain for failing to properly maintain the parade route. The City attempted to have the case dismissed through summary judgment.

The City of Lorain argued that it was not liable for a number of reasons. First, the city argued that Ms. McGuire was a recreational user on its property and, by statute, owners of recreational property are not liable to those who are injured on the property. The court ruled that a four lane highway does not turn into a recreational piece of property just because someone marches in a parade on Memorial Day.

The City also argued that Ms. McGuire could not prove that the city knew of the uncapped box or reasonably should have known based on the length of time the defect had existed. Although the city did not have actual knowledge of the defect, the court ruled that a jury could determine that it should have been discovered when city officials were inspecting the parade route before the parade.

The court did not address the issue of whether the open box in the middle of the road was an open and obvious condition for which Ms. McGuire should have discovered on her own. That issue will be determined after the case is sent back to the trial court.

A Doctor's Apology for A Bad Outcome Not Admissible in an Ohio Medical Malpractice Case

Wed, 10 Aug 2011 08:00:00 GMT

Whenever there is an unanticipated outcome in medical care, Ohio law forbids the introduction of any evidence that the doctor apologized, offered sympathy, or expressed compassion to the family or the patient. In a recent case tried in Akron, Ohio, the defendant doctor told the family that he nicked an artery and that the action was his fault. He also told the family that he was sorry. At trial, the defendant doctor attempted to keep out all of these statements, even the admissions of fault.

The court did not allow the statements regarding his apology, but did allow testimony from the family that the doctor admitted nicking the artery, that he took full responsibility, and he had never done anything like this in his entire professional career. The court of appeals agreed that the law does allow the statements of responsibility to be considered by the jury.

Ohio is one of thirty five states that has a specific statute that keeps out statements of apologies from medical providers if the incident leads to a lawsuit and trial. Some states have laws that forbid the introduction of both apologies and admissions of fault. The court of appeals in this case ruled that Ohio's law only kept out the apology and not the admission of responsibility.

The case will likely be appealed to the Ohio Supreme Court.

Chicago Lawyer Accused of Harassing Employee, Asking Her to Wear Swimsuit to the Office

Mon, 01 Aug 2011 08:00:00 GMT

Attorney Paul Weiss, a Chicago class-action attorney, is facing new allegations that he sexually harassed employees working at his firm. Several months ago Mr. Weiss faced charges arising out of his alleged sexual harassment of six women employees, including a charge that he pulled down his pants in front of two different female employees. The Illinois Attorney Registration and Disciplinary Commission says in an amended complaint, that after a young female attorney was hired, Mr. Weiss began making comments about her appearance and suggested that she wear a swimsuit to the office.

The complaint alleges that the associate resigned because Weiss made "constant and intolerable" comments to her. Weiss continues to deny the allegations and claims that these allegations were made up because the associate was about to be fired.

In 1980, the Equal Employment Opportunity Commission produced a set of guidelines for defining sexual harassment in the workplace. One definition of sexual harassment involves unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature that has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive work environment.

Lawyers who litigate sexual harassment claims agree that compliance with the law simply boils down to one word: respect. If the culture of the workplace is one where everyone respects the feelings of other people, sexual harassment claims usually do not develop.

Are Frivolous Lawsuits Ruining America? You Be The Judge

Wed, 27 Jul 2011 08:00:00 GMT

The message is loud and clear: "Frivolous" lawsuits are ruining America's legal system. And the infamous McDonald's coffee case is the prime example of what is wrong with America's civil justice system.

If you think you know what the McDonald's coffee case is all about, be prepared to be surprised. Until now, the media has only fed us a small part of the story. A new documentary has hit HBO this summer called Hot Coffee. This thought-provoking film tells us what this case was really about and then shows how corportate America has used this case to disarm America's legal system. Using this case as a springboard, corporate America has been able to get new laws passed that restrict the rights of everyday citizens to get adequate compensation for the wrongdoing of others. These laws are called Tort Reform.

If you would like to see how corporate America and the insurance industry has magically pulled off this disappearing act, click here to watch the trailer for the film Hot Coffee.

Then when you get the chance, please watch the full one hour version. It may change the way you think about what has happened to our legal system

New Orleans Hospital Settles Class Action for $25 Million Dollars.

Tue, 26 Jul 2011 08:00:00 GMT

When Hurrican Katrina struck in New Orleans, Memorial Medical Center was not prepared for the emergency according to a class action lawsuit filed against it. The suit contended that the hospital did not develop a proper evacuation plan or take other emergency-related steps. The hospital lost power during the hurricane and its backup generators also failed to operate, causing temperatures inside the hospital to soar and contributing to the deaths of some patients. The settlement will provide compensation to the majority of the 187 patients that were in the hospital at the time of the hurricane.

Although the hospital denied wrongdoing or liability in the settlement, the hospital agreed to pay $25 million dollars into a fund over the next two years.

Multi-Million Dollar Verdict Awarded to Family of Teen Killed by Taser

Sun, 24 Jul 2011 08:00:00 GMT

A federal court jury in Charlotte, North Carolina returned a multi-million dollar verdict against Taser International for the death of a 17 year old teen after the police had used a Taser on him during a dispute in a store. The boy collapsed in the store and died shortly thereafter.

The family's lawyers presented evidence that the Taser can cause heart problems if administered near the heart. The company's animal studies showed this risk, but Taser did not warn users of this potential danger. Taser claimed that independent studies showed that its product was not dangerous if administered to the chest. Taser also defended the case by claiming that the victim had a pre-existing heart condition. The manufacturer emphasized that the victim was acting disruptively and had drugs on his possession at the time of this incident.

As in any product liability case, the issue focuses on the product and the jury was correct to zero in on whether the company had a duty to warn of this risk. The Taser gun is designed to be used by police when a suspect becomes unruly and may pose a threat to the police. The victim's behavior is not relevant to whether the product was defective due to inadequate warnings. Apparently, Taser believed that if they blamed this incident on the victim's bad behavior, they could avoid responsibility. The jury obviously focused on the product in rendering its verdict.