Did Wild West Gunfighter Clay Allison Have a Brain Injury?

Roughly two hundred and forty years ago this month, two of the most famous gunslingers in the West, Clay Allison and Wyatt Earp, supposedly confronted one another in a Dodge City saloon. Earp later claimed that Allison backed down, but that assertion has never been proven.

What is known is that Allison was one of the most violent men in a very violent time. Previously, in 1874, Allison dined with notorious gunman Chunk Coleman before shooting him in the head in a New Mexico hotel. When someone asked Allison why he had supper with the man before murdering him, Allison cooly explained that he “didn’t want to send a man to hell on an empty stomach.” A year later, Allison played a role in a lynching. Afterward, he dragged the corpse through the rough brushes and rocks of the New Mexico wilderness.

Allison married a short time later, and family life seemed to have calmed him. Nevertheless, his erratic behavior continued. On one occasion, a local dentist accidentally worked on the wrong tooth. Allison tracked him down, pinned him to the floor, and pulled out one of the man’s teeth with a pair of pliers.

A wagon accident killed Allison in Texas in 1887. His tombstone includes the very questionable assertion that he was a “gunfighter and a gentleman” that “never killed a man who did not need killing.”

Before all these things happened, the Confederate Army gave Allison a medical discharge because of a “partly epileptic and partly maniacal” condition. Historians speculate that Allison suffered a brain injury in early childhood. That would explain both his discharge and his rather checked Old West activities.

Brain Injury Causes

Traumatic Brain Injuries send millions of people to hospital emergency rooms every year. Unfortunately, doctors send a significant number of these victims home without giving them proper medical treatment. Head injuries do not cause visible bleeding or swelling, and they may not be very painful. Therefore, doctors often misdiagnose head injuries as shock from the incident or even early-onset dementia.

Another reason for this confusion is that brain injuries have a number of different causes. Most f them are not even physical injuries in the traditional sense of the word. The three most common head injury causes are:

  • Trauma: Even though the skull is very thick, it does not take much physical force to cause a brain injury. Brainerd, MN injury lawyers often deal with these wounds in car crashes and serious falls. As outlined below, trauma brain injury treatment requires several different approaches.
  • Motion: A person can scramble an egg just by shaking it. It’s not necessary to crack the shell. A brain injury can occur the same way. Violent motion, like whiplash n a car crash, often scrambles the brain without breaking the skull.
  • Sudden Loud Noise: Explosive blasts and other sudden loud noises trigger shock waves which disrupt brain functions. These shock waves have made TBIs the “signature wound” of the Iraq and Afganistan Wars, according to many doctors. Many witnesses say that the noise of a car crash sounds like an explosion, so it may have the same effect on the brain.

Brain injury symptoms vary almost as much as the causes. Initially, most people suffer a loss of consciousness. That could be complete incapacitation or a dazed feeling. Different people react differently to different causes. Soon afterward, victims begin experiencing tinnitus (ringing in the ears), headaches, and like Allison, personality changes. Eventually, if the injury is not properly treated, victims experience dementia-like symptoms and even death.

Damages in a brain injury case typically include compensation for economic losses, such as medical bills, and noneconomic losses, such as pain and suffering. Additional punitive damages may be available as well, in some cases.

Brainerd, MN Injury Lawyers and Brain Injury Treatments

The financial compensation which Brainerd, MN injury attorneys help deliver does more than bring justice to victims. It also gives them the financial resources they need to obtain the treatment they need.

In trauma brain injury situations, this treatment often includes emergency surgery. Doctors must act quickly to relieve brain bleeding and swelling.

In all situations, brain injuries require extensive physical therapy. The therapist has a big job. Brain injury therapists must train uninjured parts of the brain to take over any lost functions. That’s because brain injuries are always permanent. Once brain cells die, they never regenerate. Additionally, the permanent nature of these injuries make the road to recovery a long and winding one. Progress usually takes place in fits and starts.

Contact a Tenacious Attorney

A serious brain injury has lifelong effects. For a free consultation with an experienced Brainerd, MN injury lawyer, contact Carlson & Jones, P.A. You have a limited amount of time to act.

Who Can a Brainerd Injury Lawyer Hold Responsible for Truck Crash Damages?

In Minnesota, bus drivers, truck drivers, and other commercial operators are common carriers. Since they are professional drivers, these individuals have a very high duty of care. That higher duty is reflected in things like the different highway speed limits for large trucks and passenger vehicles.

Because of this higher duty of care, it is easier for a Brainerd truck accident lawyer to establish negligence, which is a lack of care. Certain technological and legal tools make this process even simpler. It is also easier for Brainerd injury lawyers to establish negligence per se, which is a violation of a traffic or other law.

The higher duty of care affects more than first party liability theories, like negligence and negligence per se. It also concerns some third party liability theories, which are discussed below.

Injuries in Large Vehicle Collision Claims

Third party liability is especially important in catastrophic injury cases. Many times, the injuries which truck accident victims sustain fall into this category. Minnesota has one of the lowest vehicle insurance minimums in the state. So, in many cases, the individual tortfeasor (negligent driver) may not have sufficient insurance coverage to pay fair compensation.

Large commercial trucks weight over 80,000 pounds. Many other large vehicles, such as tour buses, are almost equally massive. So, Brainerd injury lawyers often must obtain compensation for a number of serious injuries, including:

  • Head Injuries: Trauma, motion, and sudden loud noises cause most head injuries. Truck accidents involve all three. Victims usually sustain very serious trauma injuries in these cases. Additionally, upon impact, their necks often move in a sudden, whip cracking-like motion. That motion alone may be sufficient to cause a head injury. Finally, many victims and witnesses say the noise of a truck crash is like an explosion. Noises like these create shock waves which disrupt brain functions.
  • Blood Loss: Because of external and internal trauma injuries, many victims are practically in hypovolemic shock by the time emergency responders arrive on scene. Typically, if people lose more than about a fifth of their blood, it is very difficult to recover.
  • Serious Burns: Diesel fuel burns at a different temperature from gasoline. That’s why many large truck crashes are fireball collisions. That’s also why many truck accident victims sustain third or fourth-degree burns. These injuries always require specialized, and expensive, treatment at designated burn centers. Furthermore, even if the injuries heal, these victims must often deal with permanent disfiguring scars.

Brainerd injury lawyers can obtain significant compensation for these injuries, depending on the facts of the case and the extent of injury.

If the victim survives, damages usually include compensation for economic losses, such as medical bills, and noneconomic losses, such as pain and suffering. Under Minnesota law, if the victim receives treatment at a hospital, the victim normally sustained a “serious” injury.

If the victim does not survive, a Brainerd injury lawyer may file a wrongful death claim. These claimants usually receive compensation for pecuniary losses, such as the decedent’s pain and suffering, lost future financial contributions, and lost future emotional contributions.

Employer Liability in Truck Accident Claims

Respondeat superior (let the master answer) is the most common employer liability theory in large vehicle collision claims. This legal doctrine basically has three elements:

  • Employee: In this context, an “employee” is not just someone who receives a regular paycheck. Independent contractors, owner-operators, and even unpaid volunteers may be employees for negligence purposes. The employer controls them to some extent, and that control is all that’s required.
  • Scope of Employment: In a similar vein, any act that benefits the employer in any way is within the scope of employment. That definition goes well beyond situations like delivery drivers. For example, Crow Wing County courts have held that employee softball games are within the scope of employment. Employers benefit from the free advertising.
  • Foreseeability: The victim/plaintiff’s injuries must be a foreseeable result of the tortfeasor’s conduct. For example, if a doctor makes a medical mistake during treatment, that’s not a foreseeable result of a vehicle collision claim.

Other employer liability theories, which often apply in intentional tort cases, include negligent hiring, negligent entrustment, and negligent supervision.

Brainerd Injury Lawyers and Owner Liability

Negligent entrustment normally applies if vehicle owners allow incompetent drivers to operate their vehicles, and these operators negligently injure other people. Commercial negligent entrustment cases, like people who rent a U-Haul moving truck, work a bit differently because of the Graves Amendment.

This federal law imposes legal obstacles to fair compensation. In commercial negligent entrustment cases, in addition to driver incompetence, the victim/plaintiff must also establish that the vehicle owner was:

  • Not in the trade or business of renting motor vehicles, and
  • Independently negligent.

Typically, tortfeasors rent U-Haul trucks from moving companies and not from vehicle rental companies, like Enterprise. Furthermore, if the owner or agent fails to verify that that driver’s license is valid, the owner or agent may have been negligent.

Rely on Experienced Attorneys

Truck crashes often cause serious injuries. For a free consultation with an experienced Brainerd injury lawyer, contact Carlson & Jones, P.A. We do not charge upfront legal fees in these cases.

 

 

The Three Types of Negligence in a Brainerd Car Accident Claim

Most car accidents are not “accidents” in the sense that they were unavoidable or inevitable. Human error, mostly driver error, accounts for over 90 percent of these incidents. When that driver error is also a lack of care, which is usually the case, the tortfeasor (negligent driver) may be legally responsible for damages.

These damages usually include compensation for economic losses, such as medical bills, and noneconomic losses, such as pain and suffering. Additional punitive damages may be available as well, in some cases. The amount and type of damages largely depends on the facts of the case and the skill of your Brainerd personal injury lawyer.

Many of the cases these attorneys handle involve one of the three types of negligence discussed below. The categories may sound academic, but understanding them helps a Brainerd personal injury lawyer obtain maximum compensation in a car wreck case.

Behavioral Negligence

Many drivers know they should not get behind the wheel, yet they do so anyway. In the process, they knowingly put other people at risk. Therefore, damages in behavioral negligence cases tend to be rather high.

Alcohol is a good example. Most people are not legally intoxicated until after they consume three or four drinks, but impairment begins with the first drink. So, alcohol is a factor in about a third of the fatal crashes in Minnesota. Alcohol impairs both reflexes and judgment ability. People need both these things to safely operate motor vehicles.

As in many other types of cases, Brainerd personal injury lawyers may use either direct or circumstantial evidence to establish alcohol impairment. If the tortfeasor was arrested for DUI, the tortfeasor may be responsible for damages as a matter of law. Circumstantial evidence of impairment includes things like erratic driving, bloodshot eyes, and an odor of alcohol.

Many other drivers make poor choices and therefore put other drivers at risk, thus failing to live up to the standard of care. Some other types of behavioral negligence include:

  • Fatigue: Drowsiness and alcohol have basically the same effect on the body and mind. Both slow reaction times and make it difficult or impossible to focus on a task.
  • Drugs: In some areas, there are more “drugged” drivers than “drunk” drivers. Most drug-impaired motorists ingested legal substances, such as prescription painkillers or some over-the-counter drugs. Even if it is legal to take these drugs, it’s illegal and dangerous to drive under the influence of certain drugs.
  • Medical Condition: Chronic illnesses like heart disease and epilepsy may cause drivers to lose consciousness suddenly and without warning. The resulting loss-of-control collisions often cause extremely serious injuries.

Punitive damages are available in behavioral and other types of negligence cases if there is clear and convincing evidence that the tortfeasor intentionally disregarded a known risk and/or behaved extremely recklessly.

Brainerd Personal Injury Lawyers and Operational Negligence

Some people are physically fit and capable of driving when they get on the road. But, they subsequently make poor choices. If these poor choices constitute a lack of ordinary care, the driver may be legally responsible for damages.

Distracted driving is the most common form of operational negligence. Every year, distracted drivers seriously injure over 390,000 people. Hand-held cellphones may be the main culprit. But studies show that hands-free devices may even be more dangerous. These gadgets still distract drivers by pulling their eyes off the road and taking their minds off driving. Additionally, hands-free devices may give people a false sense of security.

Simple deficiencies, such as failing to look both ways before pulling into traffic, are a serious problem as well. These TBFTL (turned but failed to look) crashes are especially a problem in places like Brainerd. Many people in Crow Wing County drive large SUVs or pickup trucks. These big vehicles inhibit driver vision.

Brainerd personal injury lawyers can suggest several legal options in these cases. People who use cellphones while driving may be liable for damages as a matter of law. In other cases, Brainerd personal injury lawyers can introduce circumstantial evidence and obtain compensation for victims.

Environmental Negligence

Some drivers do not technically break any traffic laws but they may still be liable for damages. They may fail to adjust for adverse conditions like:

  • Wet roads,
  • Darkness,
  • Sunrise/sunset glare, and
  • Fog.

In fact, when conditions are less than ideal, drivers arguably have an enhanced duty of care. They must slow down, use appropriate safety equipment, and have a special degree of driving skill.

The type of driver may also affect the type of environmental or other negligence. Uber drivers, taxi drivers, and other commercial operators are common carriers in Minnesota. These individuals have a special legal responsibility, especially with regard to the safety of passengers in their vehicles.

Connect with Tenacious Attorneys

Negligent drivers often cause serious injuries. For a free consultation with an experienced Brainerd personal injury lawyer, contact Carlson & Jones, P.A. We routinely handle matters in Crow Wing County and nearby jurisdictions.

Three Most Common Head Injury Causes

Every year, almost three million Americans go to hospital emergency rooms following serious head injuries. Traumatic Brain Injuries are a factor in about a third of the unintentional deaths in the United States. Despite the severity of these injuries, many people do not get the medical help they need right away.

TBIs are rather difficult to diagnose. Many people do not lose consciousness, vomit, or have other signature symptoms. Doctors often mistake the other symptoms, such as confusion, with either trauma from the injury or early-onset dementia. Furthermore, the brain is very adept at hiding its own injury. So, many TBI victims “feel fine” and do not press the doctor for treatment.

These facts often make a serious injury even more serious. As a result, a Brainerd personal injury attorney may be able to obtain significant compensation for these victims. This compensation usually includes money for economic damages, such as medical bills, as well as noneconomic damages, such as pain and suffering. Additional punitive damages may also be available, in some cases.

Understanding the common causes of these injuries makes it easier for victims to get the medical care they need. This prompt medical care also increases the financial compensation that’s available later.

Trauma

The aforementioned misdiagnosis issues are especially acute in slip-and-fall and other head trauma injuries. Such trauma injuries account for a large portion of the TBIs in Crow Wing County.

Most emergency responders easily identify trauma injuries, due to bleeding and swelling. But head trauma injuries do not display these symptoms. The skull hides internal bleeding and also compresses the brain. So, there is no visible injury. As a result, brain bleeding and swelling often go undetected.

Ordinarily, trauma injuries heal, given sufficient time and medical attention. But head trauma injuries are permanent. Once brain cells die, they never regenerate. It’s only possible to alleviate the symptoms. Doctors can perform surgery to stop the bleeding and reduce the swelling. Later, a physical therapist can work with a victim so that uninjured parts of the brain take over the lost functions. But these processes are long, difficult, and expensive.

Motion

Most people know that it’s possible to scramble an egg just by shaking it. In many ways, the human head is a lot like an egg. Sudden, violent motion causes the brain to smash against the inside of the skull. So, this motion almost literally scrambles the brain in the same way that it scrambles an egg.

These motion-related head injuries are especially common in car crash cases, mostly because of the whiplash effect. When a fast-moving car hits a solid object, the occupants in the car continue moving forward at the same speed. As a result, their necks usually surge forward then snap back, much like the cracking of a whip.

Whiplash is a soft tissue injury. It normally does not show up on cat scans, X-rays, and other diagnostic tests. Doctors must diagnose whiplash according to the symptoms, and as mentioned above, that’s difficult to do.

Fortunately, a Brainerd personal injury attorney can connect head injury victims with experienced accident physicians. These professionals know how to spot conditions like whiplash. They also know how to treat these injuries. Typically, these individuals charge nothing upfront for their services. So, a Brainerd personal injury attorney ensures that victims get the treatment they need, and not just the treatment they can afford.

Sudden Loud Noise

Many of these head injury practitioners say that a TBI is the “signature injury” of the Iraq and Afghanistan Wars. A disproportionate number of veterans come home with these kinds of injuries. That’s probably because of the prevalence of explosive blasts in these conflicts.

Researchers have recently learned that explosive blasts produce shock waves which are basically biological Electromagnetic Pulses. Normal EMPs shut down electronic devices, and biological EMPs disrupt brain functions.

Here is Minnesota, truck accidents cause many EMP-related brain injuries. Witnesses often describe the noise of these crashes as like explosions. Additionally, many of these crashes involve fireball explosions. These vehicles often carry hundreds of gallons of diesel fuel, a concoction which is much more volatile than gasoline.

Truck accidents are usually legally complex for several reasons. These incidents often involve the respondeat superior rule. According to this legal doctrine, a shipping company or other large truck owner is responsible for the damages a driver negligently causes. Additionally, many truck drivers have licenses in several different states. So, it’s difficult to accurately assess the tortfeasor’s driving record.

Respondeat superior and driving record are directly relevant to the amount of compensation a Brainerd personal injury attorney can obtain in these cases.

Reach Out to Assertive Lawyers

Serious brain injuries come in many shapes and sizes. For a free consultation with an experienced Brainerd personal injury attorney, contact Carlson & Jones, P.A. Home and hospital visits are available.

How Do Brainerd Car Accident Lawyers Win Truck Crash Claims?

Pretty much every product on a Minnesota store shelf spent at least some time on a large truck. So, today’s semi trucks are larger and heavier than ever. As a result, the large truck fatality rate has increased 30 percent since 2009. These large vehicles are basically impossible for even experienced drivers to operate in any sort of emergency.

The stakes are very high. These crashes normally cause catastrophic injuries, such as serious burns, brain injuries, and wrongful death. Damages usually include compensation for economic losses, such as medical bills, as well as noneconomic losses, such as pain and suffering. Additional punitive damages may also be available, in some cases.

However, stingy insurance companies do not simply give away this compensation. Instead, a Brainerd car accident lawyer must fight hard to obtain it. Many times, that fight involves the same basic steps.

Obtaining Medical Care for Victims

Immediate medical attention is one of the keys to a successful outcome. The settlement process cannot begin in earnest until medical treatment is at least substantially complete. Otherwise, your Brainerd car accident lawyer does not know the case’s full financial value, and your settlement may not cover all your losses. So, the sooner the medical treatment ball gets rolling, the sooner the case will be over.

Additionally, if the victim does not seek immediate medical treatment, the insurance company usually later claims that the victim’s injuries must not have been very severe.

The medical treatment needs to be more than quick. It also needs to be the right kind of treatment. Many car crash injuries, like whiplash, are difficult to diagnose and treat. So, victims need injury specialists.

A Brainerd car accident lawyer can typically connect truck crash victims with the medical help they need. As a bonus, these top-rated truck crash physicians usually charge no money upfront. Instead, they defer payment until the case is resolved, and they also often discount their fees.

Understanding the Legal Context

To obtain compensation, the victim/plaintiff must prove that the crash was not just a random incident. Instead, a Brainerd car accident lawyer must establish negligence by a preponderance of the evidence (more likely than not). This showing is easier to make in truck crash cases. In Minnesota, commercial drivers are common carriers. They have a higher duty of care than non-commercial drivers.

Driving in the rain is a good example. Non-commercial drivers have a duty to slow down and drive more carefully when it is raining. Arguably, since the duty of care is higher, commercial drivers must pull over and wait for it to stop raining. That’s especially true if the common carrier is a bus, taxi, or other vehicle which carries passengers for a fare.

Truck crash cases are more complex than car crash cases, because of the respondeat superior doctrine. This rule states that employers, like transportation or shipping companies, are vicariously liable for damages. Respondeat superior applies if:

  • Employee: Independent contractors and owner-operators are employees in this context. The employer controls these individuals in terms of things like hours worked and route traveled. That control is all that’s necessary.
  • Scope of Employment: The law defines this prong very broadly as well. Delivery drivers working their normal routes operate within the scope of employment. But this designation also applies to any activity which benefits the employer in any way. That could include driving an empty truck back to the warehouse.

Third party liability theories like this one are important in truck crash cases. Because of the aforementioned catastrophic injuries, the individual tortfeasor (negligent driver) may not have enough insurance coverage to provide fair compensation. Respondeat superior gives a Brainerd car accident lawyer an additional source of compensation.

Using the SMS Score

Most truck drivers have licenses in several different states. So, it’s difficult to obtain complete driving records. Fortunately, the Federal Motor Carrier Safety Administration maintains the Safety Management System database. The SMS keeps track of:

  • Unsafe driving citations, such as speeding or distracted driving,
  • Alcohol or substance abuse,
  • Vehicle maintenance violations,
  • HOS (Hours of Service) compliance,
  • Driver physical fitness, and
  • Crash history.

To access some of these records, most notably the critical crash history report, a Brainerd car accident lawyer usually needs a court order. Strict privacy laws protect much of the SMS data.

This data comes from law enforcement sources as opposed to judicial records, so it’s usually more accurate. For example, if a truck driver receives a citation for defective brakes and gets the brakes fixed, the citation probably will not show up in judicial records. But it will appear in law enforcement records.

Brainerd Car Accident Lawyers and Electronic Evidence

HOS compliance is especially important in the many drowsy driving-related truck crashes. To stem the tide of fatigue-induced collisions, the FMCSA rolled out the Electronic Logging Device mandate in the spring of 2018. The ELD is attached to the truck’s ignition, so it contains an almost foolproof record. Because of the ELD, a Brainerd car accident lawyer knows exactly when the truck driver was on the road and how much rest s/he had prior to the crash.

Downloading ELD information requires both legal and technical expertise. Because of the aforementioned privacy laws, a Brainerd car accident lawyer usually needs a court order to access the ELD. Furthermore, these devices are extremely sophisticated. It takes a lot more than a screwdriver and a laptop to download ELD information. This process requires special machinery, and a Brainerd car accident lawyer has access to the necessary technology.

Other electronic evidence in truck crash cases includes the vehicle’s Event Data Recorder, which is a little like a commercial jet’s black box, and any nearby surveillance camera footage.

Rely on Experienced Attorneys

Truck crashes usually involve complex legal issues and serious injuries. For a free consultation with an experienced Brainerd car accident lawyer, contact Carlson & Jones, P.A. We routinely handle matters in Crow Wing County and nearby jurisdictions.

The Five Elements of a MN Distracted Driving Claim

Increased distracted driving is almost directly related to increased smartphone use and capability. It’s amazing how much these gadgets have advanced since the first iPhone came out in 2007. To keep up with these changes, Minnesota has one of the broadest device distraction laws in the county. MS 169.475 prohibits sending or viewing any text-based message, or accessing the internet in any way, while the vehicle is part of traffic. The law even applies if the driver is stopped at a red light.

Nevertheless, there are some significant gaps. As broad as it is, Minnesota’s device distraction law does not apply to some common activities, such as:

  • Using an app,
  • Recording audio,
  • Taking a selfie,
  • Recording video, or
  • Playing a game.

Sometimes, these activities may constitute reckless driving. MS 169.13 applies if the driver’s behavior “constitutes a significant deviation from the standard of conduct that a reasonable person would observe in the situation.” But officers usually only write reckless driving citations if the driver violated several traffic laws at about the same time (e.g. changing lanes illegally while speeding).

So, in most device distraction cases, Brainerd car accident lawyers must rely on a traditional five-point negligence case. The victim/plaintiff must establish each element by a preponderance of the evidence (more likely than not).

Duty

Most drivers have a duty of reasonable care. This legal obligation means drivers must obey the rules of the road and, as my grandfather said, watch out for th’ other fella.

A case from the 1930s, Donoghue v. Stevenson, laid the foundation for this concept. In Donoghue, a woman sued a beer bottler after the found a dead snail in her beer bottle. The court held that a person “must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbor.” According to the court, neighbors were “persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.” The so-called neighbor principle evolved into the duty of care.

Uber drivers, taxi drivers, and other commercial drivers have a higher duty of care. Essentially, these drivers must do whatever it takes to avoid accidents. For example, a non-commercial driver must slow down in the rain. But a Brainerd car accident lawyer can argue that a commercial driver has a duty to pull over in a heavy rainstorm.

Breach

A Crow Wing County judge usually determines duty. It is a legal question. But a jury usually determines breach. The violation of that duty is a fact question.

Let’s return to the list of device distractions which the law does not cover. Most people would consider something like snapping a selfie on the highway to be a breach of the duty of reasonable care. But if the driver’s phone went off and the driver swiped the “ignore call” icon, most people would not consider that action to be a breach of duty, even though the act technically constitutes device distraction.

Brainerd Car Accident Lawyers and Cause

To win a distracted driving negligence case in Minnesota, driver inattention must be the underlying cause of the vehicle collision.

Assume Tim was so into PUBG Mobile that he ran a stop sign and collided with Carlos. Running the stop sign was the direct cause, but device distraction was the underlying cause. And, since it’s technically legal to play PUBG Mobile, or any other game, while driving, Carlos’ Brainerd car accident lawyer would also have to establish all the other prongs of a negligence case.

Proximate Cause

Proximate cause is a legal term which basically means foreseeability. Benjamin Frankin was a smart guy, but he was clearly not an attorney. He had an extremely broad view of foreseeability, as evidenced by this poem which he wrote.

As far as Brainerd car accident lawyers are concerned, foreseeability has a rather narrow meaning. Assume that when Carlos went to the hospital after a crash, the doctor made a medical mistake. Even though Carlos would not have gone under the knife if Tim had not hit him, Tim is not legally responsible for that injury. A medical mistake is not a foreseeable consequence of a car crash.

In that situation, Carlos might have a separate negligence claim against the doctor.

Damages

Generally, the victim must suffer a physical injury to have a claim for damages. That physical injury could be either property damage or personal injury. Obviously, the greater the damage, the more compensation a Brainerd car accident lawyer is able to recover.

In some cases, victims may be able to pursue negligent infliction of emotional distress claims if they suffered no physical injury. But these situations are limited.

Rely on Experienced Attorneys

Device distraction crash victims may be entitled to substantial compensation. For a free consultation with an experienced Brainerd car accident lawyer, contact Carlson & Jones, P.A. We routinely handle cases in Crow Wing County and nearby jurisdictions.

Can Brainerd Personal Injury Attorneys Obtain Compensation for Mesothelioma Victims?

Mesothelioma is a very rare and aggressive form of lung cancer. Asbestos exposure is basically the only known cause. Back in the day, builders commonly used this natural mineral in ships, skyscrapers, churches, and even family homes. The tiny fibers are so small that about 20,000 of them can fit in the space between Abraham Lincoln’s nose and lips on a U.S. penny. Victims can easily inhale one of these fibers. These fibers are also small enough to absorb through the skin. In other cases, workers unintentionally carry these fibers home on their clothes, exposing their families to possible mesothelioma.

Rather than face aggressive Brainerd personal injury attorneys, many companies which used asbestos filed bankruptcy. Whether or not the negligent company is still in business, substantial compensation may be available.

Difficulties in Diagnosing Mesothelioma

Mesothelioma tumors form in the soft lining between the heart and lungs. The pressure creates symptoms like shortness of breath and coughing. These symptoms are rather generic. If blood or other tests indicate cancer, many doctors diagnose mesothelioma patients with non-small cell lung cancer. NSCLC is by far the most common type of lung cancer in the United States. It is also not very aggressive, so many times, doctors recommend conservative treatments. These treatments, while effective against NSCLC, are essentially useless against mesothelioma. So, the cancer continues to grow.

There are other difficulties as well. As mentioned, just one tiny asbestos fiber may trigger mesothelioma. So, a victim could walk by a construction or renovation worksite and inhale a fiber without ever knowing it. Symptoms may not appear for twenty to forty years. After so much time passes, it’s very difficult to trace mesothelioma to such a random incident.

So, by the time the victim receives an accurate diagnosis, the disease might already be at an advanced stage. At this point, mesothelioma is very difficult to treat.

Mesothelioma Treatment Options

The cancer mortality rate has dropped precipitously since 1991. Back then, a mesothelioma diagnosis was basically a death sentence. Since tumors form in the meso lining, they are difficult to remove. Additionally, they are so close to vital organs that other treatments are problematic.

But since then, standard cancer treatments have improved significantly. These improvements give hope to mesothelioma victims:

  • Radiation: Before doctors try to remove tumors, they use radiation blasts to shrink them. Today’s radiation therapy treatments are much more targeted than they were thirty years ago. So, doctors know that they are shrinking tumors and not harming nearby organs.
  • Surgery: Tools and technology have advanced so much that it’s easier to remove most or all of these tumors. Successful removal often leads to remission.
  • Chemotherapy: These drugs kill cancer and other fast-dividing cells. Yesterday’s chemotherapy drugs had many side effects, so patients could only tolerate limited doses. That’s not true today, at least in most cases.

There are other emerging treatment options as well, such as gene therapy and phototherapy. Gene therapy, which usually includes stem cells, may actually reprogram cells so they are no longer cancerous. Phototherapy has shown tremendous promise in clinical trials.

Treatment options are available, even in cases like Stage III mesothelioma. But these treatments are quite expensive. That’s where a Brainerd personal injury attorney comes in. Attorneys help families obtain the financial resources they need to fight their illnesses and live their lives.

Brainerd Personal Injury Attorneys and Your Claim for Damages

Asbestos was legal in most parts of the United States until the early 1980s. Many people were exposed back then, but they are only now developing symptoms. Asbestos is a dangerous product. Its carcinogenic properties are very well known. So, the companies which used it in construction projects are strictly liable for damages. Victims typically need only prove cause. And, since asbestos is mesothelioma’s sole major cause, this showing is relatively easy to make.

Other victims can apply to asbestos trust funds. Collectively, there is about $30 billion in these funds. Once again, victims typically need only prove cause. However, trust fund managers are very stingy. The more money they pay, the less money they keep. So, most trust fund claimants need an assertive Brainerd personal injury attorney to ensure full compensation. Otherwise, victims may not have enough money to fight their diseases and live their lives.

Finally, many demolition and renovation companies do not take the proper precautions when they remove asbestos from old buildings. If their lack of care substantially caused injury, these firms are legally responsible for damages. In all three kinds of cases, these damages usually include money for economic losses, such as medical bills, and noneconomic losses, such as pain and suffering. In many defective product cases, additional punitive damages may be available as well.

Reach Out to Tenacious Lawyers

Asbestos-induced mesothelioma is one of the most widespread mass torts in history. For a free consultation with an experienced Brainerd personal injury attorney, contact Carlson & Jones, P.A. We do not charge upfront legal fees in these cases.

 

Buffalo-Area Hockey Coach Succumbs To Brain Injury

A St. Michael pee-wee hockey coach who slipped on the ice in November has died. What lessons does this tragedy have for Brainerd personal injury lawyers?

In November 2018, Coach Harv Graczyk’s skate caught a groove in the ice, and he fell on his head. Coach Graczyk was wearing a helmet, but he may not have fastened the chin strap. He lingered in the hospital for almost a month before he succumbed to his injury.

Coach Graczyk’s son Blake commented on the incident. “It’s just that it happens that quickly,” he said “You don’t think of it happening to you and when it does, it can be catastrophic like it is in this case. It happens in a blink of an eye.”

What Causes Brain Injuries?

Sports-related incidents only cause a few brain injuries in Minnesota. But that may be because doctors are only beginning to understand these injuries.

It’s now clear that the problem goes well beyond unfortunate falls like the one in the above story. In November 2018, over 100 retired National Hockey League players reached a $19 million settlement with the league over head injuries. Doctors believe that the cumulative effects of small hits, as opposed to one big hit, may be the primary cause of sports-related brain injuries.

Youth hockey is obviously not the same as professional hockey, but at all levels, players are extremely aggressive and referees sometimes let the players play. Many parents thought they were raising a generation of athletes. Instead, they may have unintentionally raised a generation of victims.

Overall, almost three million people a year visit American hospital emergency rooms following head injuries. Car crashes cause the most of these incidents, largely because these events include all three causes of brain injuries:

  • Trauma: Airbags and seatbelts offer some protection against some head injuries. But these systems have their limits. For example, a high-speed car crash transforms loose objects, like cell phones, into high-speed missiles.
  • Motion: The sudden, whip cracking-like motion in car crashes causes a number of head injuries. It’s possible to scramble the brain without breaking the skull, just like it’s possible to scramble an egg without breaking the shell. Motion-related head injuries may be common, but they are also difficult to diagnose. This point is explored below.
  • Noise: Many witnesses liken the noise of a car crash to an explosive blast. Researchers now know that these sudden loud noises create shock waves that disrupt brain functions. That’s one reason so many Afghanistan and Iraq War veterans sustain head injuries.

Assaults also cause many head injuries. These incidents are intentional torts as opposed to negligent acts, so Brainerd personal injury lawyers approach these matters differently.

What Are Some Brain Injury Diagnosis and Treatment Issues?

Early diagnosis of brain injuries is critical. Yet in somewhere around 90 percent of the aforementioned ER visits, doctors send head injury patients home instead of treating them.

Many head injuries, especially motion-related head injuries, lack signature symptoms, such as unconsciousness and vomiting. Furthermore, doctors often misdiagnose head injuries. If the victim was in a car crash, doctors sometimes dismiss symptoms like disorientation and headaches as shock from the accident. Many people do not receive treatment until they begin showing advanced symptoms, like personality changes, sleeplessness, and intense headaches. By that time, more brain cells have died, and recovery is much more difficult.

That treatment is difficult enough. Brain injuries are permanent. Once brain cells die, they never regenerate. However, after extensive physical therapy, neighboring parts of the brain learn to assume lost functions.

Physical therapy for a broken arm is almost nothing like physical therapy for an injured brain. In broken arm cases, the therapist just needs to strengthen and retrain existing muscles. But if the patient has a serious brain injury, that patient must often relearn walking, eating, talking, and other everyday functions.

This process is often long and frustrating. Progress is slow and occurs in fits and starts. It’s very important that the patient does not give up, and it’s also very important that a Brainerd personal injury lawyer keep fighting. Otherwise, the insurance company may try to end therapy too soon.

What Compensation Can a Brainerd Personal Injury Lawyer Obtain?

In brain injury cases, medical expenses often top $100,000. Most health insurance companies will not pay these costs, and most families do not have the money to cover them. Additionally, since the victim is out of work, unpaid bills pile up. All the while, the emotional impact of the injury makes it hard to carry on.

Brainerd personal injury lawyers can obtain compensation for both economic and noneconomic damages. So, victims have more than the financial resources they need to get better. As closely as possible, the money puts them back in the position they were before the injury. Money cannot turn back the clock, but it can make the victim’s present circumstances easier to accept.

Count on Experienced Attorneys

Brain injury victims may be entitled to significant compensation. For a free consultation with an experienced Brainerd personal injury lawyer, contact Carlson & Jones, P.A. We routinely handle matters in Wright County and nearby jurisdictions.

Can Brainerd Personal Injury Lawyers Make Car Crash Defenses Fun?

There is nothing “fun” about a serious car crash. Just a few seconds alter the victim’s life forever, causing tremendous pain and suffering in the process. However, constant hand-wringing and depression over your physical and financial condition helps no one. Sometimes, a little distraction is very good medicine.

Normally, words like “Brainerd personal injury lawyers” and “fun” go together about as well as res ipsa loquitur and Six Flags. Hopefully, this post will be an exception. Along the way, this post may also offer some additional insight into some very complex legal issues.

Assumption of the Risk

This insurance company defense is quite common in premises liability cases, such as slip-and-fall injuries, swimming pool drownings, and dog bites. The doctrine also sometimes comes up in drug overdose cases. These incidents are the leading cause of injury-related death in the United States.

Loyal SpongeBob SquarePants viewers might remember that this scene from Patrick SmartPants came about after a friendly game of tag went off the rails. The scene also illustrates both prongs of the assumption of the risk defense, which are:

  • Voluntary Assumption: No one forced or cajoled Patrick into running off a cliff. It was not a very smart thing to do, but it was entirely a voluntary act.
  • Known Risk: Patrick clearly did not understand the “Danger Cliff” sign. He spent several strides deciphering the two-syllable word “danger,” and he still didn’t get it quite right. Since he did not understand the sign, falling off the cliff was not a known risk.

This same issue arises when landowners post signs like “No Lifeguard on Duty” or “Beware of Dog.” Victims with limited English team up, limited reading skills, or (like Patrick) just plain limited intelligence, may be unable to read and understand such signs.

Written waivers are much the same. Assume Tim pays for a skydiving class, but the company insists that he sign a liability waiver. He jumps out of the plane, his chute does not open, and, well, you can probably figure out the rest.

At first blush, the assumption of the risk defense seems clear-cut. But Tim paid for the lesson before the company forced him to sign the waiver. If anybody pays for anything and the other party refuses to provide the good or service, that’s theft. Additionally, waivers are usually not “voluntary.” Instead, they are generally take-it-or-leave-it contracts of adhesion, and these pacts are involuntary.

Brainerd Personal Injury Lawyers and the Sudden Emergency Defense

The Chris Farley/David Spade team-up is the live action equivalent of Patrick and SpongeBob (a fat guy and a skinny guy). Farley and Spade made several movies together, and many think that Tommy Boy was the best of the bunch.

As Tommy and Richard continue their noble quest to sell brake pads, the car hood suddenly flies up. The incident illustrates both prongs of the sudden emergency defense, which are:

  • Unexpected Situation: A hood fly-up is like a lighning strike or a tire tread separation. No driver could possibly anticipate these things. Other hazards, like jaywalking pedestrians or large potholes, are not “sudden emergencies.” Drivers should be ready for these things.
  • Reasonable Reaction: When a sudden emergency strikes, reasonable drivers pull over to the side of the road. But Tommy drove recklessly and even crossed the centerline. So, even though the hood fly-up was an unexpected situation, sudden emergency would not apply in this case.

BRainerd personal injury lawyers see the sudden emergency defense a lot in vehicle-on-pedestrian and vehicle-on-motorcycle crashes. The tortfeasors (negligent drivers) in these cases usually say things like “the guy darted out into traffic” or “that motorcycle rider came out of nowhere.”

Farley and Spade only made three movies together, because Chris Farley passed away in 1998.

Last Clear Chance

Planes, Trains, and Automobiles is another bittersweet comedy. Actor John Candy (Dell Griffith) is dead, as is writer/director John Hughes.

Insurance companies often use the last clear chance defense in head-on and rear-end collision claims. Legally, if a driver has a chance to prevent a crash, perhaps by changing lanes, the driver help do so. Drivers who fail to avoid avoidable crashes are legally responsible for damages.

Wrong-way driver Dell Griffith certainly appears to be at fault. But notice that the road was straight and level. Moreover, the approaching semi-trucks honked, so they clearly saw Dell coming. Therefore, upon further review, the truck drivers may be legally responsible for this crash.

Even though they were not physically injured, Dell and Neal Page (Steve Martin) may have a claim for damages under Minnesota’s watered down negligent infliction of emotional distress doctrine. But that’s the subject of another Brainerd personal injury lawyer blog.

Reach Out to Savvy Attorneys

A good lawyer knows why things work on a starship, and not just how they work. For a free consultation with an experienced Brainerd personal injury lawyer, contact Carlson & Jones, P.A. Attorneys can connect victims with doctors, even if they have no insurance or money.

Should My Brainerd Personal Injury Lawyer Settle My Case?

In the forgettable game show Deal or No Deal, contestants picked numbers at random to win prizes. With a compelling setup like that, the program has to be a winner, right? As their odds for selecting the big prize alternatively rose and fell, the deal, or the financial incentive to make a settlement agreement, got better or worse.

Apropos of nothing, if you are ever a game show contestant, never take the toaster oven and quit. Always go for it all, because you have nothing to lose.

To an extent, Brainerd personal injury lawyers go through a similar process. Obviously, there is nothing random about your injury claim. Furthermore, your illness or injury is certainly not a game. But, the mindset is much the same. An out-of-court settlement is usually in everyone’s best interests. But with so many variables, it’s difficult to determine if the proffered settlement offer is fair or not.

Your Personal Injury Claims Process

The out-of-court settlement can occur at any time. But generally, Brainerd personal injury lawyers do not settle cases until they thoroughly investigate the facts and medical treatment is at least substantially complete. So, although every claim is different, most follow the same general outline.

Most Brainerd personal injury lawyers begin settlement negotiations very early. Sometimes, if liability is fairly clear, these efforts bear fruit. But more often than not, a Brainerd personal injury lawyer must file a legal claim for damages. That filing puts additional pressure on the insurance company to settle the claim on victim-friendly terms.

Rather than resolve the case, most insurance companies file a series of procedural motions. These motions are designed to weed out meritless cases. So, they are hardly ever successful. But that lack of success does not prevent the insurance company from filing them.

Next, the case moves to the discovery process. The parties exchange information about their claims and defenses. Discovery gives Brainerd personal injury lawyers more information about the claim as the legal process enters the home stretch.

How Brainerd Personal Injury Lawyers Determine Settlement Value

Calculating a settlement value may be the most important component of this process. This value serves as s starting point for settlement negotiations as well as a guiding light for victim/plaintiffs.

Part of the settlement value includes money for medical bills, lost wages, property damage, and other economic losses. This calculation is normally, but not always rather simple. For example, the family car often has an emotional value which may exceed its economic value. The same is true for family pets that die in car crashes, although Minnesota law is a bit more limiting in this area.

In most cases, noneconomic losses make up the bulk of a settlement. This money compensates the victim/plaintiff for things like pain and suffering, loss of consortium (companionship), emotional distress, and loss of enjoyment in life.

Typically, Brainerd personal injury lawyers use a multiplier to determine the noneconomic portion of the settlement value. Depending on the factors discussed below, that multiplier is generally three, but it could be higher or lower.

To Settle or Not to Settle?

Most settlement offers include liability waivers. When victims sign the paperwork, they give up all future claims. So, it’s important that the settlement be fair and properly timed. Some factors to consider include:

  • Strength of Evidence: Civil court cases have a rather low burden of proof. But the burden of persuasion is a little different. Generally, there’s a direct connection between the strength of the victim/plaintiff’s evidence and the amount of money a Crow Wing County jury awards.
  • Insurance Company Defenses: Contributory negligence, last clear chance, and other insurance company defenses may not be successful. But they do increase the risk of going to trial, and that risk is something to consider.
  • Legal Environment: Some judges are known for pro-victim legal rulings, and others are known for pro-insurance company rulings. Moreover, some counties are more conservative than other counties. POlitically conservative jurors often sympathize with victims.

Typically, the portion of a personal injury settlement related to physical injuries is not taxable. So, if the jury awards punitive damages, the IRS may claim a piece of that money.

Count on Aggressive Attorneys

Settling a personal injury case is a delicate process. For a free consultation with an experienced Brainerd personal injury lawyer, contact Carlson & Jones, P.A. We do not charge upfront legal fees in negligence cases.

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