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.

How Do Brainerd Personal Injury Lawyers Win Slip-and-Fall Claims?

Slip-and-fall incidents account for more than eight million ER visits a year. That’s more visits than car crashes, drug overdoses, or any other kind of unintentional injury.

Occasionally, slip-and-fall injuries are not terribly serious. But much more often than not, these incidents cause broken bones and other serious injuries. Moreover, many slip-and-fall victims hit their heads. Brain injuries are generally serious and always permanent.

So, a Brainerd personal injury lawyer can obtain substantial compensation for these victims. This compensation includes money for economic losses, such as medical bills, and noneconomic losses, such as pain and suffering. Every case is different, but most follow the same outline in terms of establishing liability for damages.

Legal Duty in Premises Liability Matters

All negligence cases, including slip-and-fall claims, begin with the legal responsibility that people have toward one another. This idea comes from an English case called Donoghue v. Stevenson. In that landmark case, the court concluded that legal duty is basically akin to the Golden Rule (“do unto others as you would have them do unto you”) that schoolchildren once memorized.

But legal responsibility is more complex than a schoolyard rhyme. In premises liability claims, the duty varies based on the nature of the victim:

  • Reasonable Care: Most slip-and-fall victims are invitees. Their mere presence confers an economic or noneconomic benefit on the owner, and they have express or implied permission to be on the land. In addition to keeping the premises safe (e.g. cleaning up floor spills), owners must also inspect the premises to ensure safety.
  • Latent Defects: People like guests of hotel guests are licensees. These individuals have permission to be on the land but there is no benefit to the owner. Because there is no benefit, the duty is lower. If the victim was a licensee, owners only have a duty to warn about latent (hidden) defects.
  • No Duty: Some people are trespassers. There is no permission and no benefit. So, there is no duty. There are a few exceptions, such as the attractive nuisance rule and the frequent trespasser rule.

Generally, it’s quite difficult for Crow Wing County jurors to understand terms like “licensee” and “invitee.” Fortunately, duty is a legal question for the judge. So, when the trial begins, Brainerd personal injury lawyers can focus on the two remaining elements of a slip-and-fall case.

How Brainerd Personal Injury Lawyers Prove Cause

Legal duty is a beginning, but it is not enough. Brainerd personal injury lawyers must also establish a link between the owner’s duty and the victim’s injuries.

Sometimes, there is direct evidence on this point. For example, a witness might see the victim slip and fall. Or, the victim may recall slipping on a wet spot or tripping over an uneven surface.

In many instances, there is no direct evidence. If that’s the case, Brainerd personal injury lawyers may use the res ipsa loquitur (“the thing speaks for itself”) rule. According to one court, “the doctrine of res ipsa loquitur permits an inference of negligence from the circumstances of an accident.” Assume no one sees a victim fall down the stairs, the victim does not know how the event occurred, and an investigation reveals a loose handrail at the top of the steps. Res ipsa may apply in this situation.

Establishing Knowledge in Slip-and-Fall Cases

Knowledge of the hazardous condition is the final element in a Minnesota slip-and-fall case. It’s not fair to hold landowners responsible for conditions they did not know about and therefore could not control.

The aforementioned direct or circumstantial analysis applies here as well. Typically, direct evidence of knowledge includes smoking guns like “cleanup on aisle four” announcements or restroom cleaning reports.

In the absence of direct evidence, Brainerd personal injury lawyers may use circumstantial evidence to establish constructive knowledge (should have known). Most Crow Wing County judges use the time/notice rule to evaluate circumstantial evidence. If the floor hazard or other dangerous situation had existed for a long time, constructive knowledge usually attaches.

Think about a person who slips on a banana peel. If the peel is black and gritty, it has probably been on the floor for a while. If the peel is yellow, it is probably fresh.

Constructive knowledge has the same effect as actual knowledge. The owner is still fully liable for all damages regardless of the kind of knowledge.

Connect with Aggressive Attorneys

Slip-and-fall incidents involve intricate legal issues. 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.

How Do Brainerd Personal Injury Lawyers Help Brain Injury Victims?

Brain injuries lead to more than 2.8 million emergency room visits a year. Even seemingly minor head injuries usually cause hematomas. After a bump on the head, the injured area swells. The skull is to thick that the swollen matter cannot expand, so it remains in place and creates pressure on other parts of the brain. The combination of direct and indirect damage is a factor in about a third of all the injury-related deaths in the United States.

Since so much is at stake, compensation in brain injury cases is usually substantial. Brainerd personal injury lawyers can obtain compensatory damages for both 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.

What Causes Brain Injuries?

Head trauma is not the only cause of brain injuries. Research also clearly shows that sudden loud noises may cause these injuries as well. These noises produce shock waves that disrupt brain functions.

Car crashes often involve both trauma and loud noises, so vehicle collisions are the leading cause of brain injuries. Seatbelts and airbags usually absorb much of the impact during car crashes. But these devices can only handle so much force. Furthermore, these gadgets are not really designed to prevent head injuries. Especially in partial front or rear-end collisions, the head and neck are subject to tremendous force. For example, the victim’s head normally slams into the head restraint immediately after a collision.

Most high-speed car crashes also involve sudden loud noises. Many times, witnesses say the sound was like an explosive blast. When scientists studied IED blast victims in Iraq and Afghanistan, they identified the aforementioned shock waves.

Falls often cause head injuries as well. Once the brain begins swelling, a serious brain injury is practically inevitable. It’s like placing a balloon inside a football helmet and then blowing up the balloon. The plastic can only stretch so far before it rips apart.

Diagnosing Head Injuries

The nature of the injury and the nature of most victims makes these injuries difficult to diagnose. Between 2007 and 2013, head injury incidents increased 47 percent but hospitalization rates decreased by 2.5 percent. In other words, more people are sustaining head injuries and many doctors simply send them home.

Many people sustain head injuries and do not even know it. The brain hides its own injuries very well. THat’s the reason concussed athletes tell coaches they “feel fine.” Adrenaline plays a role here as well. Immediately after a trauma injury, adrenaline basically acts as a natural painkiller. Once this effect wears off, the pain sets in. That pain usually includes headaches, tinnitus (ringing in the ears), and other similar symptoms. On a related note, not all brain injury victims experience the same symptoms. For example, these victims may or may not completely lose consciousness.

However, even at that point, many head injury victims do not get the treatment they need. Many doctors dismiss these symptoms as shock from the incident. Later, when other symptoms develop, doctors may correctly diagnose these injuries. Subsequent symptoms include trouble sleeping and personality changes. Unfortunately, by this time, the damage is often extensive. Recovery is therefore more difficult, as outlined below.

Given these difficulties, it’s important to partner with a Brainerd personal injury lawyer early in the process. Attorneys can connect victims with injury doctors who immediately recognize the symptoms of a brain injury. Prompt diagnosis means better treatment and a faster recovery.

Head Injury Treatment and Brainerd Personal Injury Lawyers

Brain injuries are permanent. When brain cells die, they never regenerate. However, surgery and extensive physical therapy can address the symptoms.

That surgery usually involves relieving the exploding pressure on the brain. This type of procedure is obviously quite delicate and only highly trained and experienced doctors should attempt it. Otherwise, the surgery may just make the problem worse.

Most brain injury recovery takes place during physical therapy. Studies consistently show that the longer this therapy lasts, the more progress victims make. Brain injury physical therapy is really about training uninjured areas of the brain to take over the lost functions. The more practice the victim gets, the better the results. But progress is not always a straight, upward line. There are good weeks and bad weeks. After a brief string of bad weeks, insurance companies often try to pull the financial plug. An aggressive Brainerd personal injury lawyer can fight for the victim and make sure the money keeps flowing. That’s the best way, and maybe only way, for victims to get the help they need.

As an added bonus, most injury doctors and physical therapists delay their fees until the negligence case is resolved. In court, victims usually have multiple legal options in terms of establishing liability for damages.

Contact Tenacious Attorneys

Brain injuries are bad news. For a free consultation with an experienced Brainerd personal injury lawyer, contact Carlson & Jones, P.A. Home and hospital visits are available.

A Hit-and-Run Driver Injured Me. . .Should I Call a Brainerd Car Accident Lawyer?

More people are asking this question because the number of these incidents is on the rise. Statistics vary by jurisdiction, but somewhere around 50 percent of hit-and-run drivers are caught and successfully prosecuted. But in a way, as far as Brainerd car accident lawyers are concerned, these statistics matter little. Whether the tortfeasor (negligent driver) is caught or not, substantial compensation may be available.

No one is sure why the number of hit-and-runs is increasing. Some drivers are so distracted that they may not know they hit someone. That’s especially true of nighttime pedestrian crashes that involve child victims. Other drivers have no insurance or no drivers’ licenses and they fear the consequences. They figure it is better to flee the scene and take their chances.

Victims have basically two legal options in these vehicle collision claims. Which pathway is best usually depends on the facts of the case.

The Burden of Proof: The Decisive Factor?

Assume an unknown tortfeasor (negligent driver) hits a pedestrian. A witness at the scene said the vehicle was a dark color, late model SUV. However, the witness did not see the driver’s face and did not see any part of the license plate number. A few minutes later and a few miles away, a dark color, late model SUV ran a stoplight, and the red-light camera recorded the vehicle’s driver and license plate number.

In criminal court, where the burden of proof is beyond a reasonable doubt, it would be impossible to convict any defendant with this evidence. If you want to play a fun game with your kids, drive by a shopping mall parking lot and count the number of late model, dark color SUVs that you see. Furthermore, identifying the car is probably not good enough. Unless the witness got a good look at the driver, the jury may not be convinced that the defendant was driving the vehicle at the time.

The subsequent video evidence is probably no help. Even if a criminal judge admits it, which is a big “if,” it’s not very compelling evidence.

But in civil court, things are a lot different. The burden of proof is only a preponderance of the evidence, a legal term which means more likely than not. Since the witness’ description matches the vehicle in the video footage, it is more likely than not that the two vehicles were one and the same.

Let’s make things more difficult. Assume that the second witness was not a video surveillance camera but an eyewitness that got a partial plate number and no look at the driver. A Brainerd car accident lawyer can patiently go through motor vehicle records and find a matching vehicle based on description, location, and partial plate. Unless the owner has a good alibi for the time of the accident, it’s more likely than not that this owner was also the tortfeasor.

Locating the Tortfeasor

To find the evidence necessary to locate the tortfeasor, Brainerd car accident lawyers have several options. Some of them include:

  • Reviewing Nearby Surveillance Video: In the previous example, Brainerd law enforcement officers probably would not have looked at the camera evidence. Such an inquiry is too much of a long shot. But diligent Brainerd car accident lawyers look under every rock, including cameras that may be several blocks or miles away from the accident scene.
  • Finding Additional Witnesses: There are many reasons why witnesses do not voluntarily come forward and speak to first responders. Perhaps they do not like police officers, or perhaps they do not want to avoid the attention of law enforcement. But these people are often willing to speak with a Brainerd car accident lawyer and share what they know about the crash.

Sometimes, attorneys partner with private investigators in these situations.

Damages in a Brainerd hit-and-run case usually include compensation for economic losses, such as medical bills, as well as noneconomic losses, such as pain and suffering. Additionally, many Crow Wing County jurors despise hit-and-run drivers. So, they are often willing to award additional punitive damages.

Brainerd Car Accident Lawyers and No-Defendant Claims

Some people believe that if there is no tortfeasor, there is no point in filing a claim for damages. But that’s simply not true.

In these situations, victims may normally file claims against their own insurance companies. Friendly insurance claims have a much different dynamic than adversarial insurance claims. The victim’s own insurance company understandably wants to keep its customer happy. So, friendly insurance claims often settle quickly and on victim-friendly terms. Conversely, many adversarial insurance claims are more difficult to successfully resolve. Many insurance companies fight adversarial claims tooth and nail.

Procedurally, the two types of claims are quite similar. However, if a Brainerd car accident lawyer cannot settle the case on favorable terms, it will probably go to arbitration instead of trial.

Reach Out to Dedicated Attorneys

Hit-and-run victims have several legal options. For a free consultation with an experienced Brainerd car accident lawyer, contact Carlson & Jones, P.A. After-hours visits are available.

How Do Brainerd Accident Lawyers Leverage Vicarious Liability Rules?

In terms of auto insurance, Minnesota has one of the lowest minimum coverage requirements in the country. The $10,000 property protection requirement is not nearly enough to cover the cost of a new vehicle. Moreover, the $30,000 personal injury requirement may only pay a fraction of medical costs in a brain injury or other serious injury incident.

Insurance companies have a legal duty to pay damages that their insured parties cause. But that duty only extends to the policy maximum. Since most people only carry the state-required minimum, there could be a substantial gap. Some people, but not very many, have umbrella insurance policies which provide additional coverage. In some cases, it’s also possible to sue the tortfeasor individually and recover the balance. But many people are basically judgment-proof.

Fortunately, Minnesota also has extremely broad vicarious liability rules, especially with regard to alcohol-related crashes. Once Brainerd accident lawyers identify the proper responsible parties, it’s much easier for victims to obtain fair compensation.

Employer Liability

All states recognize some form of the respondeat superior rule. But Minnesota’s version of this rule is incredibly broad. This legal doctrine holds employers responsible for the negligent acts of their employees. There are three basic prongs:

  • Employee: In Minnesota, owner-operators, independent contractors, and even many unpaid volunteers are “employees.” This status is not a matter of legal classification or amount of compensation but of control. If the employer sets work hours, establishes workplace rules, makes assignments, or asserts similar control over a worker, that worker is an employee for negligence purposes.
  • Scope of Employment: A few states limit the scope of employment to situations like a regular delivery driver making regular deliveries. But Brainerd accident lawyers can use an expanded version of the scope of employment prong. Any act that benefits the employer in any way is within the scope of employment. That includes something like driving a company car which bears the company logo (the employer benefits from the free advertising).
  • Foreseeability: In Minnesota, a car crash is almost always a foreseeable consequence of operating a motor vehicle. “Foreseeable” is not synonymous with “inevitable” or even “likely.” About the only unforeseeable scenario is something like a worker stealing a car from the parking lot.

Respondeat superior generally only applies in unintentional tort cases, like car wrecks. Other theories, such as negligent supervision and negligent hiring, may apply in nursing home abuse and other intentional tort cases.

Alcohol Provider Liability

These kinds of collisions often cause the most serious injuries. Alcohol is a factor in about a third of the fatal car crashes in Minnesota. The figure is even higher in semi-rural areas, like Crow Wing County.

Generally, commercial alcohol providers, like bars and restaurants, are vicariously liable for damages if a sale is illegal and the customer later causes a car crash. There are basically two types of illegal sales in Minnesota:

  • Under 21: These sales are rather straightforward. The customer was either under or over 21. In some cases, a fake ID might be a valid defense. That’s especially true if the person presented a fake ID purporting to be from another state. But the old “s/he looked like s/he was older” defense never works.
  • Obviously Intoxicated: There is usually no direct evidence of intoxication. So, victim/plaintiffs may use circumstantial evidence to establish this point. Such evidence includes erratic behavior, unsteady balance, and slurred speech.

Noncommercial providers, such as New Years Eve party hosts, may also be liable under the dram shop law if they serve minors. If the person was over 21, another theory of recovery, such as negligent entrustment, may be an option.

Brainerd Accident Lawyers and Owner Liability

The negligent entrustment rule applies in many of these situations. That could include a child borrowing a parent’s car or a roommate borrowing a roommate’s car. Private owners are vicariously liable for damages if they knowingly allow incompetent operators to drive their vehicles. Evidence of incompetency includes:

  • No drivers’ license,
  • Several prior at-fault accidents,
  • Safety-suspended drivers’ license, or
  • Violation of license restriction (e.g. no night driving or no freeway driving).

Commercial negligent entrustment cases, such as a person who rents a car from Enterprise and causes a car crash, work differently because of the Graves Amendment. In these cases, Brainerd accident lawyers must introduce additional evidence to obtain compensation.

That compensation usually includes money for economic losses, such as medical bills, and noneconomic losses, such as pain and suffering.

Reach Out to an Aggressive Attorney

The tortfeasor may not be the only party that is legally responsible for car crash damages. For a free consultation with an experienced Brainerd accident lawyer, contact Carlson & Jones, P.A. We routinely handle matters in Crow Wing County and nearby jurisdictions.

 

What Can Brainerd Injury Lawyers Do About Dog Bite Injuries?

In many cases, dog bite injuries are much more than just embarrassing or annoying. Since 2003, the average injury award has increased 70 percent to over $30,000. That trend will probably continue. Between 2016 and 2017, the average award increased over 18 percent. That was one of the largest such jumps in history.

These are only nationwide average figures. The Minnesota statistics may be even more favorable toward victims. As outlined below, Brainerd injury lawyers can use Minnesota’s relatively broad dog bite law, and relatively weak defenses, to leverage large settlements in many cases.

However, a personal injury attorney is much more than a legal advocate. Beginning from the moment after the animal attack, Brainerd injury lawyers can help your family heal physically, emotionally, and financially.

Help with Hospital Expenses

The injuries in these cases are particularly severe. That’s one reason the hospital bills are so high and the average awards are so substantial. Typically, the aggressor animal is a large breed dog, like a pit bull or a Doberman pinscher. Sometimes, the knockdown alone causes a serious injury, like broken bones or even a head injury. Then, at the risk of sounding gruesome, the bites are incredibly violent. These animals usually cause both puncture wounds and tearing wounds. Making matters even worse, many victims are older adults or younger children. These individuals are incredibly susceptible to serious injury.

Physical wounds are only part of the story. Dog bite victims often experience Post Traumatic Stress Disorder. This stress is common after car crashes. For example, even years after a collision, many victims avoid certain roadways or certain parts of town. But the stress after a dog bite is much, much worse. Common PTSD symptoms include:

  • Nightmares,
  • Flashbacks, and
  • Heightened awareness.

These symptoms, and others like them, make it difficult or impossible for victims to function at home, work, and/or school.

PTSD is not a processing disorder but a physical brain injury. As such, there is no cure. However, extensive therapy can alleviate the symptoms. Studies consistently indicate that the more therapy a victim receives, the better the results. It’s important not to get discouraged if progress comes in fits and starts.

Brainerd injury lawyers can help with both hospital and therapy bills. Attorneys regularly send letters of protection to hospitals and other medical providers. So, these providers do not charge any upfront fees. Instead, the victim settles the bill once the case is resolved. The provider agrees not to pursue any unpaid charges.

Furthermore, Brainerd injury lawyers can refer victims to qualified dog bite physicians. These doctors understand both the physical and mental implications of these injuries. Such an arrangement does more than set the victim on the road to a full recovery. It also helps build evidence in the claim.

Develop a Winning Case

Victim/plaintiffs have the burden of proof in dog bite cases. So, they must present evidence to support their claims. Typically, this evidence includes both oral evidence, like witness testimony, and written evidence, like medical records.

This evidence is a lot like the scattered pieces of a jigsaw puzzle. It means little until Brainerd injury lawyers put the pieces together with a compelling legal theory.

As mentioned, Minnesota’s dog bite law is one of the broadest ones in the nation. Minn. Statutes Annotated, Section 347.22 states that “If a dog, without provocation, attacks or injures any person who is acting peaceably in any place where the person may lawfully be, the owner of the dog is liable in damages to the person so attacked or injured to the full amount of the injury sustained.”

Strict liability means that the dog owners are legally responsible for damages regardless of how careful, or how careless, they were. This law also does away with the old “one bite rule” which immunized owners unless they knew the animal was dangerous.

Furthermore, the owners are liable even if they had nothing to do with the underlying attack. Some common third party liability rules in Minnesota dog bite cases include:

  • Guest Attacks: Assume Glenda Guest visits Harry Homeowner. During her brief stay, her dog bites Vonda Victim. Under Minnesota law, Harry is a harborer of the dangerous animal. So, he (or rather his insurance company) is partially responsible for Vonda’s injuries.
  • Scienter (Knowledge): The same result applies if Glenda leaves her dog with Harry and the dog bites Vonda. In that case, Vonda must prove that Harry knew the dog was dangerous. Evidence of knowledge includes growling, biting, or barking.
  • Negligence: Under Minnesota law, most people have a duty of reasonable care. If Harry allowed Vonda to play with Glenda’s dog, and the dog injured Vonda, Harry may be liable for damages.

Third party liability theories like these are quite important in dog bite cases. Individual owners often lack the insurance coverage to fully compensate the victim/plaintiff. So, in these cases, the victim/plaintiff usually needs an alternative source of compensation.

Brainerd Injury Lawyers and Dog Bite Defenses

Statutorily, provocation is the only dog bite defense in Minnesota. In this context, provocation means more than aggressive verbal teasing. Instead, provocation usually means a physical act that inflicts intense pain on the animal and justifies a violent response. Even then, once such physical act is usually not enough. There must be sustained provocation. Moreover, young children cannot provoke an animal, as a matter of law.

Sometimes, the judge allows the assumption of the risk defense. Many owners have “Beware of Dog” or similar signs in their yards. Such signage may support the assumption of the risk defense. This doctrine excuses liability if the victim:

  • Voluntarily assumed
  • A known risk.

Since assumption of the risk is a common law defense as opposed to a statutory defense, most Crow Wing County judges do not allow it in dog bite cases.

Contact a Tenacious Attorney

When an aggressive dog attacks you, you need an equally aggressive lawyer. For a free consultation with an experienced Brainerd injury lawyer, contact Carlson & Jones, P.A. Home and hospital visits are available.

Brainerd Accident Lawyers and Motorcycle Crashes

Vehicle collisions kill or seriously injure millions of people each year. Yet for the most part, today’s cars are much safer than they were at the turn of the 21st century. In fact, car crashes are no longer far and away the leading cause of injury-related death in the United States. Many years, that dubious distinction belongs to unintentional poisonings (mostly drug overdoses).

But the technological advances that have made cars safer have not extended to motorcycles. As a result, motorcycle riders are thirty times more likely to die in car crashes. These victims simply have little or no protection from an oncoming car. That exposure usually means serious injury and even wrongful death.

Due to the serious nature of their injuries, motorcycle crash victims, and their families, are usually entitled to substantial compensation.

What Causes Motorcycle Crashes?

Illegal turns cause about a third of the motorcycle crashes in Brainerd. When most people make left turns against traffic, they wait for a brief traffic gap and then shoot through that gap. Many times, they simply do not look for motorcycles before turning.

In certain parts of the world, people call these incidents SMIDSY crashes, for “sorry, mate, I didn’t see you.” Another common acronym, TBFTL for turned but failed to look, does not have the same panache. Additionally, it does not capture the cavalier attitude that many tortfeasors (negligent drivers) exhibit in these situations. Many tortfeasors blame riders for these crashes. The other driver often says something like “you came out of nowhere.”

Brainerd accident lawyers also handle a significant number of alcohol impairment motorcycle crashes. Alcohol impairs judgment. So, impaired tortfeasors often miscalculate the amount of space between their vehicles and oncoming motorcycles. This misjudgment often has tragic consequences.

Distracted driving is often an issue as well. Small motorcycles are almost invisible to many motorists. Making matters worse, many people drive large pickup trucks and SUVs. These vehicles are difficult to see around, especially if the tortfeasor was not really maintaining a proper lookout in the first place. When the driver says the motorcycle rider “came out of nowhere,” Brainers accident lawyers know that it’s because the tortfeasor was not really looking.

Excessive speed also causes many motorcycle crashes. Velocity increases the risk of a collision and also the force in a collision. Since motorcycle riders have no steel cages or restraint systems to protect them, a slight increase in force usually has devastating consequences.

The Damages that Brainerd Accident Lawyers can Obtain

Compensation is available if the victim/plaintiff can connect the inattention, impairment, or other negligence to the injuries sustained in the crash. These injuries often include:

  • Head Injuries: Crash helmets reduce, but do not eliminate, trauma head injuries. Given the massive forces in these crashes, such injuries are still quite likely. Moreover, much like whiplash in an auto accident, the motion alone can cause a serious head or neck injury.
  • Internal Injuries: These same forces cause internal organs to rub against each other. This friction usually causes significant blood loss. Sometimes, this blood loss continues unabated for quite some time. Emergency responders are understandably more concerned with head injuries and other external trauma injuries.
  • Exsanguination: Blood loss is the technical cause of death in many Brainerd motorcycle crash cases, largely because of the aforementioned internal injuries. In fact, many motorcycle crash victims lose so much blood that they are already on the edge of hypovolemic shock by the time help arrives.

The victim/plaintiff has the burden of proof in these cases. So, Brainerd accident lawyers must have evidence of negligence. Sometimes, that evidence involves the police accident report. But in most motorcycle crash cases, such reports only contain one side of the story. The victim is usually unavailable to make a statement due to serious injury or death.

Therefore, Brainerd accident lawyers must look for other evidence as well. Nearby surveillance video is often compelling. The Crow Wing County jury sees the crash unfold. Furthermore, most cars have Event Data Recorders. EDR data usually clearly shows that the tortfeasor made no effort to avoid the crash. These gadgets are also useful in speeding cases. They offer definitive proof of vehicle velocity.

Possible Insurance Company Defenses

If the victim was not wearing a helmet, the insurance company often jumps on this fact. In fact, many victims think helmetless victims are ineligible for compensation. But that’s not true.

Minnesota law specifically outlaws the so-called seat belt defense. Lack of a seat belt is inadmissible in a negligence case. A seat belt has nothing to do with the cause of the crash. Arguably, the same is true of a helmet. Helmetlessness has nothing to do with crash causation.

At worst, lack of a helmet usually only reduces the amount of compensation that the victim/plaintiff receives. Even then, insurance company lawyers have a hard time proving that such a reduction is warranted.

Another common insurance company defense is not rooted in the law. Instead, the motorcycle prejudice is an attitude that many jurors exhibit. During jury selection, it’s usually easy to see which jurors, if any, believe that motorcycle riders are reckless thugs. It’s important for Brainerd accident lawyers to keep these individuals off the jury, if at all possible. These individuals are more likely to embrace other insurance company defenses, like contributory negligence.

The contributory negligence defense basically shifts blame onto the victim. For example, the insurance company might admit that the tortfeasor was speeding, but insist that the victim’s alcohol intoxication really caused the crash.

Contact a Relentless Attorney

Motorcycle crashes usually involve intricate legal and factual issues. For a free consultation with an experienced Brainerd accident lawyer, contact Carlson & Jones, P.A. We do not charge upfront legal fees in negligence cases.

The 5 Elements of a Negligence Case in Brainerd, MN

In many car crash cases, the negligence per se rule establishes liability as a matter of law. If the tortfeasor (negligent driver) violates a safety law, perhaps by driving while intoxicated or making an illegal lane change, this shortcut may apply.

However, in many other cases, victim/plaintiffs must establish the five elements of a traditional negligence claim.

Drowsy driving is a good example. A substantial number of motorists admit that they have been so tired they actually fell asleep while driving. Even if these people stay awake, fatigue affects the brain in the same way as alcohol. But there is no Breathalyzer or other such test for drowsiness.

Distracted driving falls into this category as well. Minnesota does have one of the broader cell phone/distracted driving laws in the country. However, it omits several kinds of distracted driving, including:

  • Non-Device Distraction: Grooming while driving, eating while driving, and other such behaviors are just as distracting as talking on a cell phone.
  • Hands-Free: There is evidence that hands-free devices are even more dangerous than hand-held devices. Hands-free gadgets are also distracting and they give the driver a false sense of security.
  • Non-Prohibited Use: Using GPS navigation apps, web surfing, video watching, and other activities are arguably more distracting than phone calls and texts.

To establish liability in these and other situations, Brainerd Car Accident Lawyers use the five elements of a negligence case.

Duty

Most non-commercial drivers have a duty of reasonable care. This duty comes from Donoghue v. Stevenson, which is a 1932 case. In this case, which many people consider to be the first negligence case, the court concluded that “The rule that you are to love your neighbor becomes in law, you must not injure your neighbor.”

Today, drivers must be physically and mentally capable of safely operating a motor vehicle. They must be sober, well-rested, physically fit (e.g. no heart disease or epilepsy), and so on. Once behind the wheel, they must “look out for t’ other fella,” as my grandfather used to say.

Taxi drivers, bus drivers, Uber drivers, and other commercial operators have a higher duty of care. They are not quite insurers of safe conduct, but the standard is pretty close to that level.

Breach

Duty is a legal question for the judge, and breach is a fact question for the jury. Cases like U.S. v. Carroll Towing Company offer some guidance in this area. Not all conduct that violates the duty of reasonable care constitutes a breach of duty.

Assume the tortfeasor (negligent driver) takes her eyes off the road to adjust the air conditioner, misses a stop sign, and t-bones another car. Most Crow Wing County jurors would not consider adjusting the air conditioner to be a breach of duty, even though this act is technically distracted driving.

Instead, a breach is normally either a pattern of behavior or an egregious one-off. If the tortfeasor in the above example obsessively adjusted the air conditioner for several blocks, that would probably be a breach of duty. Or, if she turned her back to yell at her kids, that’s probably a breach of duty as well.

Cause in Fact

There must be a connection between the breach and the damages. In two-car collisions, Brainerd Car Accident Lawyers usually do not worry about cause too much, because it is straightforward in these cases.

In other situations, cause is a little more complex. For example, if the collision involved three or more cars, there may be a question as to which impact actually caused the damages. Cause is also an issue in environmental and mass tort cases, like the ongoing Roundup/glyphosate dispute or a dangerous drug claim.

Proximate Cause/Foreseeability

A connection alone is not enough. If I am late for work, I cannot blame my neighbor’s dog for barking at 2 a.m., waking me up, and causing me to oversleep.

This rule is in Palsgraf v. Long Island Railroad. In this colorful case which is right out of a Three Stooges short film, a man dropped a package while two railroad workers tried to push and pull him into a departing train. That package contained fireworks. When the fireworks exploded, the blast triggered a shock wave which knocked some large scales onto the plaintiff. The court later determined that the connection between the negligent railroad employees and the plaintiff’s injuries was too remote.

In some cases, the foreseeability rule expands. For example, if parents are in a car crash that injures their children, Brainerd car accident lawyers may obtain compensation for the parents even if they suffered no physical injury.

Damages

Tangible injury is the hallmark of a legal damage claim. Near misses do not satisfy this element, even though they may cause tremendous emotional distress.

Minnesota is a no-fault insurance state. So, to obtain compensation for pain and suffering, loss of enjoyment in life, and other noneconomic damages, the car crash victim must sustain a serious injury. The law defines a “serious injury” as one that results in a hospital bill greater than $4,000. If you stay in the hospital overnight or receive treatment at an emergency room, your bill will almost certainly be more than $4,000.

If the crash did not cause a serious injury, victims may file claims with their own insurance companies for lost wages, property damage, and other economic losses.

Connect with Tenacious Car Accident Attorneys in Brainerd, Minnesota

Accident victims may be entitled to significant financial compensation. For a free consultation with an experienced Brainerd car accident lawyer, contact Carlson & Jones, P.A. We do not charge upfront legal fees in negligence cases.

17025 Commercial Park Road
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Brainerd, MN 56401
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Buffalo Lawyers

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Buffalo, MN 55313

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Brainerd Lawyers

17025 Commercial Park Rd, Suite 2
Brainerd, MN 56401

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114 Main Street North
Hutchinson, MN 55350

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Minnetonka Lawyers

3911 Ridgedale Dr, Suite 404E
Minnetonka, MN 55305

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