A Criminal Defense Lawyer in Brainerd, MN Talks About the Different Burdens of Proof

Some people might remember the O.J. Simpson murder saga in the early and mid-1990s. In 1995, after a long and sensational criminal trial, a jury acquitted the former football star of double murder charges. About a year later, another jury heard basically the same evidence and concluded that Simpson was responsible for the deaths. That’s perhaps the best example of the different burdens of proof in court cases, as outlined below.

Apropos of nothing, in 2016, NFL “concussion doctor” Bennet Omalu said he would “bet my medical license” that Simpson had a serious brain injury. Chronic Traumatic Encephalopathy, a degenerative brain injury commonly associated with football players, would explain Simpson’s erratic behavior and fits of rage, according to Dr. Omalu. But that’s the subject of another blog.

The different burdens of proof affect the way a criminal defense lawyer in Brainerd, MN approaches different cases. Since the defendant is presumed innocent in the United States, the burden of proof is on the state. So, if an attorney casts doubt on the state’s case, the defendant often goes free. Alternatively, weak evidence gives a criminal defense lawyer in Brainerd, MN an edge during settlement negotiations.

Beyond a Reasonable Doubt

Minnesota law usually defines a reasonable doubt as a doubt based on reason and common sense. Many courts have criticized this definition, arguing that it is akin to saying “a white horse is a horse that is white.” Nevertheless, that’s the generally accepted definition in The Gopher State. Some variations, such as reasonable doubt “does not mean a fanciful or capricious doubt, nor does it mean beyond all possibility of doubt,” are acceptable.

DWI-collision cases are a good illustration of the way this standard works in practice. Assume Ben and Jerry hit another car in an intersection. Ben and Jerry are both intoxicated. By the time emergency responders arrive, they have exited the vehicle. Officers arrest Ben for DWI.

Wright County prosecutors could probably prove Ben was in the car, but it would be difficult for them to prove Ben behind the wheel. Another witness, such as the other driver in the collision, would have to testify that Ben emerged from the driver’s side. That testimony would not prove he was driving beyond a shadow of a doubt, but it would establish that fact beyond a reasonable doubt.

Criminal Defense Lawyers in Brainerd, MN and Clear and Convincing Evidence

Child custody, financial fraud, and certain juvenile cases commonly employ this standard of evidence. C&C basically means “the evidence is highly and substantially more likely to be true than untrue.”

Let’s return to the previous example and change the facts a bit. Now assume that Jerry told officers Ben was driving the car. There are a number of reasons to question Jerry’s statement. He was drunk, so his memory and perception are questionable. Additionally, he might have been tattling so officers would arrest Ben instead of Jerry.

So, if the standard was beyond a reasonable doubt, Jerry’s statement might not be enough to convict Ben. But if the standard was clear and convincing evidence, which is a step lower, Jerry’s statement might hold up in court.

Preponderance of the Evidence

Typically, this final standard determines what an individual must prove, as opposed to what the state must prove. A preponderance of the proof (more likely than not) is the standard in most personal injury cases. It’s the standard the Simpson civil jury used.

Picture two stacks of typing paper sitting side by side. Both stacks have the same number of sheets. If a criminal defense lawyer in Brainerd, MN adds one sheet of paper to the stack on the left, it has more paper than the stack on the right. That’s a picture of a preponderance of the evidence.

Once more, let’s look at our DWI-collision example. Now assume the car is abandoned by the time emergency responders arrive. An investigation reveals that Ben owned the car. It’s more likely than not that a car’s owner was driving the vehicle at any given time, unless the owner had an airtight alibi. So, by a preponderance of the evidence, Ben was probably driving the car. Proving intoxication, however, would be a much more difficult matter.

Reach Out to Savvy Lawyers

The burden of proof affects the way attorneys approach different cases. For a free consultation with an experienced criminal defense attorney in Brainerd, MN, contact Carlson & Jones, P.A. Convenient payment plans are available.

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 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.

What Happens at Buffalo DUI Roadblocks?

New Year’s Eve is just around the corner, which means that local law enforcement departments are already planning their DUI roadblocks. These checkpoints usually appear at that time of year along with other drinking-and-driving holidays, like Memorial Day and Labor Day weekends.

Normally, police officers need reasonable suspicion to pull over suspected drunk drivers. The United States Supreme Court has diluted the reasonable suspicion standard in a few recent cases. But officers must still have some specific, articulable facts which indicate criminal activity. This requirement is embedded in the Fourth Amendment.

But roadblock stops are more difficult for Buffalo criminal defense lawyers to handle. At checkpoint stops, police officers do not need reasonable suspicion. Rather, officers may pull over vehicles according to a pre-set pattern.

DUI Roadblock Requirements

Since DUI checkpoints are exempt from the reasonable suspicion requirement, they must meet very specific standards, as set out by 1990’s Michigan Department of State Police v. Sitz and some other cases. Some of these requirements include:

  • Supervisor-Level Planning: A few street cops cannot get together and establish checkpoints where they feel they are needed. Arguably, sergeants and lieutenants do not have this power either. Instead, these directives must come from high-level supervisors, like captains, or from lawmakers. These individuals are accountable to the voters either directly or indirectly.
  • Neutral Formula: Some checkpoint officers are tempted to combine a watered-down reasonable suspicion requirement with roadblock procedures. But officers cannot pull over cars because they “look wrong.” Instead, the checkpoint guidelines must establish a schedule (e.g. every third vehicle is detained) and stick with it for the entire time.
  • Visibility: Checkpoints are not poorly-concealed speed traps. Instead, checkpoints must include traffic cones, warning lights, adequate signage, and other items. This requirement blends in with your right to turn around and avoid the checkpoint, which is examined below.
  • Publicity: Once supervisors set out detailed checkpoint guidelines, the department must publicize the checkpoint. The rules here are a little uncertain. But the publicity must be of a sufficient nature that it gives people the opportunity to stay away from the area altogether if they choose.
  • Detention Length: The rules are a bit vague here as well. Generally, however, any period longer than about three minutes is too long. That includes the time drivers spend waiting in line to reach the checkpoint itself, interaction with officers, and leaving the area.

Buffalo criminal defense lawyers can use any breakdown to invalidate the checkpoint, and intermittent breakdowns are common. For example, officers might start detaining every fourth vehicle to speed the line up. There’s nothing wrong with that sentiment. But unless the established checkpoint guidelines authorize such action, that initiative is illegal non-supervisor planning.

Your Rights at a DUI Checkpoint

At most traffic stops, Buffalo criminal defense lawyers can attack officers’ reasonable suspicion for the stop. For example, many officers claim that drivers made “furtive movements” while driving. Furtive gestures, like looking around quickly or appearing to hide something, do not constitute reasonable suspicion in most Wright County courtrooms.

Similarly, drivers have rights at DUI roadblocks. Motorists do not have the right to be free from unreasonable searches and seizures. But they do have the right to:

  • Avoid the Checkpoint: Generally, the aforementioned warning signs must begin before the line forms. Drivers must have the opportunity to make U-turns and avoid the checkpoint. If that happens, officers will probably shadow them for at least a few blocks.
  • Remain Silent in Line: When drivers reach checkpoint officers, they must produce drivers’ licenses and proof of insurance upon request. However, they do not need to answer any other questions. IN fact, they do not even have to roll down their windows. It’s enough to flash the documents, stop briefly, and then move on.
  • Remain Silent After Detention: To move motorists to the detention area, officers must have reasonable suspicion of intoxication. That could be physical symptoms, like bloodshot eyes or odor of alcohol. That could also be the driver’s statements. If officers ask you to answer more questions or perform field sobriety tests, your Fifth Amendment rights remain in place. If you remain silent, officers will almost surely arrest you. But that probably would have happened anyway.

Recording smartphone or other video is in a grey area. The United States Supreme Court has yet to rule that people have a fundamental right to film police officers as they exercise their official duties.

DUI checkpoints give police officers an enormous amount of power. If not for budget constraints, most departments would have checkpoints on every major intersection on every weekend. But this power is not absolute. Checkpoints erode some, but not all of, your constitutional rights.

Work with a Dedicated Lawyer

Every minute they are operations, DUI checkpoints must conform with the law. For a free consultation with an experienced Buffalo criminal defense lawyer, contact Carlson & Jones, P.A. Convenient payment plans are available.

 

Can a Buffalo Criminal Lawyer Erase My Criminal Past?

In the vast panoply of fatalistic country music songs, Willie Nelson’s Nothin’ I Can Do About It Now may be one of the best ones. However, the red-headed stranger’s assessment of the ability to change the past is a bit off. True, no one can go back in time and relive their lives. But thanks to a 2015 law, a Buffalo criminal lawyer may be able to completely, or at least partially, erase your criminal past.

Both expungement and sealing have a number of advantages. A criminal past can make it difficult to pursue certain occupations. Additionally, Minnseota’s ban the box law only applies to public employees. Private employers may refuse to grant interviews based solely on criminal records. Finally, most offenses are crimes of moral turpitude. CMTs can have significant consequences in many areas of life.

Qualifying for Expungement

Many times, the collateral consequences of a criminal offense are much worse than the direct consequences. Shoplifting is a good example. A good Buffalo criminal lawyer can probably arrange for a sentence that features no jail time and limited court supervision. But most people consider shoplifting to be a crime of moral turpitude. Long after the court supervision is over and the defendant’s slate is clean, as far as Wright County courts are concerned, the conviction could cause serious problems.

Minnesota lawmakers recognized this reality, which is one reason they revised Section 609A.02 in 2015. Now, the following situations qualify for full record expungement:

  • Some Drug Possession Cases: Just like alcoholism is no defense to DUI, drug addiction is no defense to drug possession. But there is a difference between these two things. Alcoholics can choose to drive or not, but drug addicts must have drugs. So, the legislature made an accommodation. Addiction is still not a defense to possession, but it can be a basis for expungement.
  • Juvenile Crimes in Adult Court: Minnesota law already expunges most juvenile records once the offenders turn eighteen. This expansion is just the next step. Bear in mind that not all juvenile crimes are expungeable. A Buffalo criminal defense lawyer must still convince the judge that expungement is appropriate.
  • Dismissals or Not Guilty Findings: Significantly, the defendant need not be morally innocent. There’s a difference between “not guilty” and “innocent.” Not guilty really means not proved. On a similar note, there are many different types of pretrial dismissals. Sometimes the prosecutor runs out of time to file charges, sometimes the prosecutor dismisses charges because s/he has more important things to do, and sometimes there was no probable cause.
  • Property Crime Convictions: The statute specifies some convictions that are eligible for expungement. These offenses include theft, bribery, mortgage fraud, cattle rustlin’ and a number of other crimes. Almost all of them are crimes of moral turpitude.

If your disposition does not qualify for expungement, you may qualify for record sealing. Sealed records are no longer publically available, but they do remain in the law enforcement and judicial database. A few other government agencies, such as licensing agencies, may also be able to access sealed records.

How a Buffalo Criminal Lawyer Expunges Records

The qualifications outlined above are only minimum qualifications. There are some other matters to consider as well.

In some areas, individual defendants hold almost all the cards. For example, the trial judge is much more likely to grant expungement if the defendant has not been arrested or charged with another crime during the statutory waiting period. Depending on the type of offense, that waiting period could be between one and five years.

The judge determines other factors. Defendants can obviously control their behavior and they can improve their chances by partnering with a good Buffalo criminal lawyer. But the final decision is up to the judge. SOme factors they can consider include:

  • Nature of the offense,
  • Risk to the public, if any,
  • Amount of time that’s passed since the arrest,
  • Purpose for expungement,
  • Facts and circumstances of the crime,
  • Defendant’s ties to the community,
  • Feedback from prosecutors and/or victims, and
  • Any other factor the judge considers relevant.

As a practical matter, this order usually has little or no effect. Typically, a Buffalo criminal lawyer must forward the order to all affected agencies and instruct them to act accordingly.

A quick note about convictions and deportations. Even if you plead no contest and receive deferred adjudication, ICE may still deport you. The same thing applies if you have a conviction expunged or sealed at a later date. Typically, the Immigration and Naturalization Act authorizes deportation for serious felonies and crimes of moral turpitude.

Connect with Experienced Attorneys

A one-time mistake may not haunt you forever. For a free consultation with an experienced Buffalo criminal lawyer, contact Carlson & Jones, P.A. After-hours visits are available.

Three Defenses Buffalo Injury Attorneys Should Expect in Slip-and-Fall Cases

Slip-and-falls account for over eight million ER visits a year. That total easily eclipses the number of car crashes, dog bites, swimming pool drownings, drug overdoses, and other kinds of unintentional injuries. Slip-and-fall consequences are quite severe, especially for older Americans. Many of these victims never fully recover. In fact, a majority can no longer live independently after their falls.

Buffalo injury attorneys can usually obtain substantial compensation for these families. But insurance company lawyers are equally determined to reduce or deny compensation to victims. Their efforts have nothing to do with what’s right or what’s fair. These attorneys only care about the insurance company’s bottom line. So, they will use any legal loophole at their disposal.

No Legal Duty

In slip-and-fall cases, almost all victims have either express permission (“come to a meeting next Thursday”) or implied permission (“Open for Business” sign) to be on the premises. There is a significant difference between these two categories.

  • Invitees confer and actual or potential benefit on the landowner. That benefit could be economic or noneconomic. The benefit need not be substantial. A window-shopper at a car dealership has the same rights as someone who buys the most expensive Italian sports car on the lot. If the victim was an invitee, the landowner has a duty to ensure that the premises are reasonably safe.
  • Licensees confer no benefit on the owner. Examples include people who cut across parking lots on their way home from school or guests of hotel guests. If the victim was a licensee, the owner has a duty to warn about latent (hidden) defects, but no duty to repair them.

A few victims are trespassers (no permission and no benefit). These individuals have basically no rights in these cases.

Many insurance companies argue that invitees must confer an economic benefit on the owner. Indeed, most Minnesota courts hold that social guests are generally licensees. But that is just a presumption.

To overcome this presumption, Buffalo injury attorneys can introduce evidence about the close connection between the victim and the landowner. Perhaps the victim had been a guest on many prior occasions or the landowner testified that s/he enjoyed the victim’s company prior to the fall.

The victim/plaintiff need only establish invitee status by a preponderance of the evidence. Imagine two equally-sized stacks of paper side by side. If someone adds one sheet of paper to the stack on the right, it has more paper than the stack on the left. That’s the picture of a preponderance of the evidence.

Buffalo Injury Attorneys and Lack of Knowledge

Aside from the “no duty” argument, the “I didn’t know that” argument is probably the most common insurance company defense in these cases. Occasionally, there is a smoking gun. That could be a restroom cleaning report or surveillance video that shows an employee negligently creating the hazard. But such direct evidence is rare.

Fortunately, Brainerd injury attorneys may also introduce circumstantial evidence of constructive knowledge (should have known). Legally, constructive knowledge has the same effect as actual knowledge. To evaluate the evidence, most Minnesota courts use a variation of the time-notice rule which first appeared in 1911’s Anjou v. Boston Elevated Railway Company.

In this colorful case (no pun intended), the victim slipped on a banana peel. Significantly, numerous witnesses said that the peel was black and gritty as if it had been “trampled over a good deal.” The railway company admitted that Ms. Anjou was an invitee but denied that it knew about the hazard. To resolve the dispute, the court focused on the banana peel’s color.

  • Yellow Peel: If the hazard was a recent occurrence, the owner usually had no constructive knowledge. So, if the peel was yellow and had just fallen on the floor, the owner had no duty to clean it up. The same thing applies to a non-wilted piece of lettuce on a supermarket floor or an undisturbed liquid spill.
  • Black Peel: Conversely, if the hazard had been there for quite some time, the opposite is true. Constructive knowledge attaches. A diligent owner would have discovered the hazard and remedied it before someone got hurt. The duty of reasonable care requires no less.
  • Brown Peel: Some peels are neither yellow nor black. So, in some cases, the victim/plaintiff must introduce additional evidence to establish constructive knowledge. For example, if the produce was freshly stocked, the worker should have seen the wayward lettuce leaf.

To establish knowledge, the same burden of proof (preponderance of the evidence) applies.

Open and Obvious Hazard

Under Minnesota law, the owner has no liability if the hazard was open and obvious. That could be a palette in the middle of a store aisle or a stairway rail that is separated from the wall.

The Minnesota Court of Appeals may have dealt this once-reliable defense a death blow in 2014’s Stock v. Garrison Y Club. The court held that an open and obvious hazard does not provide immunity as a matter of law. Instead, the insurance company must present additional evidence on this point.

That ruling makes sense. Let’s return to the loose stairway rail example. An obvious defect in daylight is essentially invisible at night or in a poorly-lit room. AGe may be a factor as well. OLder people cannot see as well as younger people. Moreover, older people cannot suddenly alter their gaits to avoid hazards that some consider open and obvious.

Rely on Experienced Buffalo MN Lawyers

Insurance company attorneys do whatever it takes to reduce compensation in slip-and-fall cases. For a free consultation with aggressive Buffalo injury attorneys, contact Carlson & Jones, P.A. Home and hospital visits are available.

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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.

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
Suite 2
Brainerd, MN 56401
Toll Free: (855) 663-7423
Phone: (218) 736-9429
Fax: 763-682-3330
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Would a New Distracted Driving Law Help Brainerd Personal Injury Lawyers Help You?

State Attorney General Lori Swanson vowed to take tough action against the “epidemic” of distracted drivers on Minnesota roads.

The Gopher State already has a rather broad cell phone law. But Ms. Swanson wants to mandate hands-free devices, toughen the penalties for distracted driving, and include a license suspension provision for repeat offenders. In other words, the distracted driving law should more closely resemble the DUI law, she said. The issue is not just limited to young drivers, she added. According to a 2017 report, drivers aged 30 to 49 represented almost half of all texting-while-driving citations.

Between 2013 and 2017, distracted drivers caused about a fifth of the fatal car crashes in Minnesota.

What is Distracted Driving?

The distracted driving laws in most states, including Minnesota, are device-based. They focus exclusively on handheld cell phones. Indeed, these devices combine all three forms of distraction, which are:

  • Manual (taking a hand off the wheel),
  • Visual (taking your eyes off the road), and
  • Cognitive (taking your eyes off the road).

A few states have broader, behavior-based laws. Until very recently, Georgia had one of the broadest distracted driving laws in the country. In 2015, officers cited a Marietta man for eating a cheeseburger while driving. Cobb County prosecutors subsequently dismissed that case, and the Georgia legislature subsequently amended the state’s distracted driving law.

Safety advocates routinely push for behavior-based laws, but many people consider them intrusive. So, most states focus on device-based laws. One of the major problems with these kinds of laws, according to top Brainerd personal injury lawyers, is that there are too many gaps.

For example, there is considerable evidence that hands-free devices are not risk-free. In fact, they may be more hazardous than hand-held cell phones. When people use hands-free gadgets, they are still visually and cognitively distracted. Moreover, researchers have identified a hands-free latency effect. It takes most drivers at least twenty seconds to re-engage after they hang up a hands-free device.

Nevertheless, even an incomplete distracted driving law is certainly better than no law at all. Furthermore, the Minnesota Attorney General’s proposed distracted driving law could make it easier to obtain compensation in court.

Negligence Per Se in Distracted Driving Cases

Under current Minnesota law, it’s illegal to text and drive. “Texting” includes any text-based communication. That includes not only person-to-person text messages but also emailing and instant messaging. Minnesota’s prohibition even extends to posting on social media and some other Internet use.

If a tortfeasor (negligent driver) violates the distracted driving law, or any other safety law, the negligence per se shortcut usually applies. Brainerd personal injury lawyers may use this doctrine if:

  • The tortfeasor violated a safety law, and
  • That violation substantially caused the crash.

Typically, the negligence per se rule establishes liability as a matter of law. Limited defenses are available, such as urgent justification. But lots of luck with that.

If the victim sustained a serious injury, damages in a negligence per se case include compensation for both economic losses, such as medical bills, and noneconomic losses, such as pain and suffering. Minnesota law defines a “serious injury” as one which involves more than $4,000 in medical bills.

Brainerd Personal Injury Lawyers and Distracted Driver Negligence

It’s still possible to obtain such compensation in non-device cases. Compensation may even be available in situations like the aforementioned burger-eater. In non-device cases, victim/plaintiffs must establish the five elements of a negligence case, which are:

  • Duty: In Minnesota, most drivers have a duty of reasonable care. This legal responsibility is basically a lawyerly version of the Golden Rule which many Brainerd schoolchildren once had to memorize.
  • Breach: Tortfeasors (negligent drivers) breach their duties when their conduct drops below the standard of care. The jury decides where to draw that line. For example, talking to a passenger is technically distracted driving (visual and cognitive distraction). But most Crow Wing County jurors would not consider such behavior to be a violation of the standard of care.
  • Cause-in-Fact: There must be a direct connection between the tortfeasor’s conduct or misconduct and the victim/plaintiff’s damages.
  • Proximate Cause: This is a legal term which basically means “foreseeability.” If a distracted driver veers off the road, hits a light pole, and that pole hits a pedestrian, that’s a foreseeable consequence. If a doctor makes a medical mistake during surgery on that pedestrian, that’s not a foreseeable consequence.
  • Damages: The damages must be physical, because near misses and close calls usually do not count. However, as outlined above, compensation is available for intangible losses, such as emotional distress. Sometimes, the zone of danger doctrine does expand. Parents who see their children hurt in car crashes are usually eligible for compensation.

In both negligence and negligence per se cases, Brainerd personal injury lawyers must establish liability by a preponderance of the evidence (more likely than not). That’s the lowest standard of proof in Minnesota law. Sometimes, the victim/plaintiff’s testimony, when coupled with the accident report and medical evidence, is more than enough. Witness statements and electronic evidence, perhaps from the car’s black box data recorder, are also usually available if needed.

Work with an Experienced Attorney

Distracted drivers often cause serious injuries. For a free consultation with an experienced Brainerd personal injury lawyer, contact Carlson & Jones, P.A. Home and hospital visits are available.

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Buffalo Lawyers

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Minnetonka, MN 55305

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