Thursday, 17 April 2014 14:14

What is the Attractive Nuisance Doctrine?

Written by Law Offices Of Gary Green

Whether you’re a property owner or the parent of a small child, the “Attractive Nuisance” doctrine is legal news you can use.

The doctrine of attractive nuisance states that the owner of potentially hazardous property can be held liable for injuries to trespassing children if the injury is caused by a hazardous object or condition that is likely to attract children.

An “attractive nuisance,” simply put, is a structure or condition of property that is both dangerous and irresistible to children. These structures or conditions must be artificial (meaning man-made bodies of water as opposed to rivers or natural lakes, for example), and include abandoned property, such as vehicles or appliances. Common examples of attractive nuisances include swimming pools, railroads, and constructions sites or equipment.

The doctrine holds that putting up a warning sign or otherwise adequately warning of potential dangers on the property is occasionally sufficient, but liability is determined on a case-by-case basis, and usually more proactive steps are required. There is no specific age cutoff at which the attractive nuisance doctrine no longer applies; it is up to the court to decide whether the child was able to understand and appreciate the hazard, and therefore whether the doctrine will apply.

The Restatement of Torts standard states that there are five conditions that must be met in order for a property owner to be liable for a trespassing child’s injuries:

  1. The landowner knows or should know that children are likely to trespass on the property
  2. The artificial condition on the property poses a risk of death or serious bodily harm to children
  3. The children cannot understand or comprehend the risk presented by the condition
  4. The benefit of maintaining the condition or the cost required to eliminate the condition is slight compared with the risk to the children
  5. The landowner fails to exercise reasonable care to eliminate the danger or otherwise protect the children

In order to exercise reasonable care, the landowner should assess all of the property’s artificial conditions that may pose a threat to children, determine if children are likely to trespass, and then take steps to either eliminate the dangerous condition or ensure that trespassing children will not come into contact with the condition, most often by restricting access.

States that currently use the Restatement of Torts test for attractive nuisance include: Alabama, North Carolina, Ohio, Pennsylvania, Utah, Wyoming, and Texas.

Friday, 11 April 2014 17:26

Auto Recalls on the Rise in 2014

Written by Law Offices Of Gary Green

This year has already seen the recall of about 11 million vehicles so far, compared with 22 million in all of 2013. General Motors is responsible for the largest number of those recalls – 6 million so far.

Other considerable 2014 recalls include 650,000 Jeep Grand Cherokees and Dodge Durangos, 1 million cars from Nissan, nearly 900,000 Honda Odyssey minivans, and around 700,000 Toyota Prius hybrid cars.

Jerry Hirsch of the Los Angeles Times reports that analysts urge consumers not to be alarmed by the high recall rate:

“This is the new normal for recall numbers,” said Karl Brauer, an analyst at auto information company Kelley Blue Book. Automakers are more willing to do recalls today than they were five years ago because they fear incurring the wrath of federal regulators after seeing how delayed recalls caused big problems for Toyota Motor Corp., Brauer said.

Earlier this year, Toyota was ordered to pay a $1.2 billion dollar fine following a criminal investigation into whether it adequately informed regulators about safety complaints regarding sudden acceleration of certain vehicle models. The burdensome fine has alerted other manufacturers to the high cost of recalls: “Toyota changed the thinking on recalls,” Brauer said. “The cost of a recall is a drop in the bucket compared to the cost of what happens if you don’t do it.”

So what’s the takeaway for consumers? Stay informed about recalls, and if there’s one that affects you, get your vehicle fixed.

Click here for a comprehensive list of Recalls & Defects from the National Highway Traffic Safety Administration.

 

 

Source: “Automobile recalls are on pace to break recent highs,” from Los Angeles Times

When it comes to making the safest decisions on behalf of your family, choosing the right car seat ranks high on the list of priorities. Between errands, carpools, family outings, and everyday activities, we spend too much of our time in the car to not take safety very seriously, especially on behalf of our littlest passengers! When you’re carrying precious cargo, it pays to be in the know. That’s why we’ve gathered the best, non-biased research out there on car seat safety.

According to Parents Central (at SaferCar.gov), these are the top 3 tips on finding the right car seat:

  1. Find a car seat that fits your child. As children grow, how they sit in your car will change. Make sure the car seat you purchase is designed to fit your child’s current size and age.
  2. Make sure that the car seat is the right fit for your vehicle. Not all car seats fit in all vehicles. Test the car seat you plan to buy to make sure it fits well in your vehicle.
  3. Buy a car seat that can be installed and used correctly every time. 

Keep in mind that the importance in going the extra mile in choosing the right car seat for your child’s size and age, as well as for your vehicle, cannot be overstated. The CDC reports that car seats reduce the risk of death in car crashes by 71% for infants and 54% for toddlers ages 1 to 4.

Check out the following helpful links for more info:

Sources: SaferCar.gov; NHTSA.gov; CDC.gov

Wednesday, 26 March 2014 18:11

The Safest SUVs on the Road

Written by Law Offices Of Gary Green

brady holt SUV image

At Law Offices of Gary Green, we make it a priority to let you know when consumer products aren’t up to safety standards. Whether a vehicle or a household item has been recalled, we think it’s important to hold corporations accountable and let the public know when avoidable dangers arise. But we also want you to know about products that are safe, so you can make informed decisions for your family.

The Insurance Institute for Highway Safety has conducted exhaustive research and rounded up a list of some of the safest sport utility vehicles (SUVs) currently on the road. The IIHS’s highest safety award, TOP SAFETY PICK+, has been awarded to seven SUVs, based on high levels of protection during crashes, as well as front crash prevention technology to avoid collisions altogether.

New criteria for the award this year include:

Good performance in the Institute’s moderate overlap front, side, roof strength and head restraint tests and, for the first time, good or acceptable performance in the small overlap front test introduced in 2012. 

IIHS began rating front-crash prevention systems in early 2014 after research showed that collision warning and automatic braking systems are reducing crashes. Therefore, IIHS is rewarding manufacturers that incorporate increased safety features into their designs by awarding the TOP SAFETY PICK+ designation to deserving models.

“Consumers who want both crash prevention technology and the latest in occupant protection have a fair number of vehicles to choose from,” says IHHS President Adrian Lund. “We hope manufacturers will continue to incorporate front-crash prevention, developing more robust systems and adding them to more trim levels or, better yet, making them standard equipment.”

From the Insurance Institute for Highway Safety, here are 2014′s TOP SAFETY PICK+ models for SUVs:

  • Mazda CX-5 (built after October 2013)
  • Mitsubishi Outlander
  • Subaru Forester
  • Toyota Highlander
  • Acura MDX
  • Mercedez-Benz M-Class (built after August 2013)
  • Volvo Xc60

Source: Insurance Institute for Highway Safety

Image Credit: Brady Holt via Wikimedia Commons

General Motors is in hot water following a recent study that reported 303 deaths when airbags failed to deploy in 1.6 million compact cars. The cars were recalled by GM in February of this year, despite reports that the automaker learned of the problem as early as 2001. The new study also calls into question GM’s previous reports of only 12 deaths in 34 crashes involving the recalled cars.

Since the recalls, GM has faced increasing pressure to create a $1 billion fund and compensate victims. It is also facing a criminal probe, and both the House and Senate committees intend to hold hearings regarding both GM and the National Highway Traffic Safety Administration (NHTSA) for failing to investigate why airbags were not deploying in GM Cobalts and Ions.

The NHTSA has been harshly critcized for not effective pressuring GM to recall those cars with defective parts, despite receiving hundreds of complaints from consumers over the past ten years.

This most recent example of compromising consumer safety for corporate benefit is yet another reason it pays to stay informed. At Law Offices of Gary Green we strive to stay on top of consumer recalls, because we know how important it is to keep yourself and your loved ones safe. Stay up-to-date on all federal recalls by visiting Recalls.gov.

Source: Reuters

In our line of work, we’re accustomed to discovering that so-called “safe” medications and treatments commonly turn out to pose serious health risks to patients. Too often, the possibility of these risks aren’t realized until it’s too late.

A recent study published in the Journal of the American Medical Association confirms that testosterone treatments given to older men with low hormone levels may increase the risks of heart attacks, strokes, and death.

Testosterone treatments in the form of gels, patches, and injections are widely popular and used to combat low sex drive and other age-related ailments. Rates of testosterone prescriptions tripled between 2000 and 2011 in the U.S. alone, and in 2011 sales reached $1.6 billion.

According to the study, men who used testosterone were 30 percent more likely to suffer a heart attack or stroke or to die than other men with low testosterone levels who did not take supplements. Those studied were men in their early 60s and had other health problems, including high blood pressure, high cholesterol, and diabetes.

Possible side effects of many popular testosterone treatments include high blood pressure, blood clots in legs, body swelling, stroke, and heart failure.

If you or someone you know has suffered as a result of testosterone treatments, contact Law Offices of Gary Green to discuss your legal options without obligation. Call us toll-free at 1-888-4GARYGREEN, or email us at gGreen@gGreen.com.

Wednesday, 12 February 2014 15:59

Millions of Car Seats Recalled

Written by Law Offices Of Gary Green

Graco is recalling 11 different models of car seats sold from 2009 to 2013, nearly 3.8 million car seats in all.

The recall is due to concerns that children may be trapped by buckles that may not unlatch.

The National Highway Traffic Safety Administration has received at least 80 complaints regarding the car seats. There have been reports of excessive force needed to unbuckle the seats; in some cases, parents reported having to cut straps to free their children.

Affected models: Cozy Cline, Comfort Sport, Classic Ride 50, My Ride 65, My Ride with Safety Surround, My Ride 70, Size 4 Me 70, Smartseat, Nautilus, Nautilus Elite, and Argos 70.

Source: KATV

Ford and Acura are the latest vehicles to be recalled, following reports of loose bolts in certain Acura models and faulty fuel lines affecting some Fords.

The National Highway Traffic Safety Administration has recalled 27,933 Ford Edge Crossovers from 2012-2013. Only those vehicles with the smaller, 2.0-liter turbocharged EcoBoost engines are affected. These vehicles contain a damper in the fuel line housing due to faulty manufacturing, which could leak and cause the vehicle to catch on fire.

Acura is also recalling vehicles due to faulty manufacturing; so far, the brand has recalled 7,387 of its flagship RLX sedans from 2014. The recall concerns a loose bolt that connects a piece of the rear suspension to the car’s frame. This bolt could become loose during transportation to dealerships.

Keep yourself up-to-date on all vehicular recalls by visiting the National Highway Traffic Safety Administration’s website.

Tuesday, 14 January 2014 16:52

Arkansans Urged to Get Flu Shot

Written by Law Offices Of Gary Green

Arkansas Department of Health officials are urging Arkansans between the ages of 25 and to get the flu shot, following a total of 15 flu deaths in Arkansas.

Half of those deaths have occurred in adults between 25 and 50 – an alarmingly high number and an uncommon demographic for flu deaths. The ADH reports that younger, healthier Arkansans are falling susceptible to the flu this year, specifically the H1N1 strain.

The ADH says that only about 30% of the 25-50 age group get vaccinated, which leaves more than 650,000 Arkansans unprotected.

Please use the Flu Vaccine Finder to locate the nearest place to get a flu shot.

Monday, 30 December 2013 20:07

Legal News You Can Use: All About Daubert

Written by Law Offices Of Gary Green
By Debora Inman of Law Offices of Gary Green 

BACKGROUND

Daubert v. Merrell Dow Pharmaceuticals, Inc. 509 U.S. 579 (1973) is a landmark case in which the Supreme Court ruled on the proper standard for the admission of expert testimony. Up until this case, it was widely known that the test to be used when making this determination was called “the general acceptance test” and it had been derived from Frye v. United States, 54 App. D. C. 46, 293 F. 1013 (1923). This test, by definition, required the scientific evidence sought to be introduced to be regarded as generally accepted in the field from which it came. Judges utilizing Frye were required to determine where within the spectrum of scientific discovery the evidence sought to be introduced fell. The marker that must have been past was general acceptance within the community, the spectrum being book-ended by recent discovery and hypothesis on one end and uncontroverted known science on the other. So how does a Judge pinpoint an exact moment in time when a crazy idea turns into generally accepted scientific knowledge? The answer to that question lies within 50 years of jurisprudence between Frye and Daubert.

The authors of the Frye decision were debating whether evidence derived from a machine designed to perform as a lie detector was admissible. The science was new and the machine was an early attempt at polygraph. Ultimately, the Frye court determined the evidence to be inadmissible because the deception test had not received enough acceptance and recognition among the experts in the field. The opinion was stated candidly: “(j)ust when a scientific principle crosses the line between the experimental and demonstrable stages is difficult to define.” Frye at 1014. In fact, this difficulty was the reason Frye would ultimately receive the most criticism. The narrow window through which evidence would be admitted under the general acceptance test kept out expert testimony on cutting edge achievements in science.

The seeds for Frye‘s ultimate upheaval were planted in 1975 when the Federal Rules of Evidence were first adopted. Looking through cases in which expert testimony’s admissibility is at issue between 1975 and 1993 (when Daubert was published) provides an interesting view of the evolution of scientific evidence introduction. In 1976 the California Supreme Court decided a case in which the proffered scientific evidence was spectographic analysis, or voice printing. People v. Kelly, 549 P. 2d 1240, 17 Cal. 3d 24 (1976). In this case the State used expert testimony to establish the defendant’s voice identity on the recorded phone calls. The defendant successfully challenged his conviction on the basis of the expert testimony regarding voice printing not meeting general acceptance requirements under a Frye analysis. This case was decided a year after the adoption of the Federal Rules of Evidence but the decision makes no mention of them. In fact, the decision reaffirms California’s express acceptance of Frye and touts its benefits. Kelly points out that Frye intentionally created a roadblock to keep out evidence based on new scientific principles. Id. At 32.

The tide seems to shift with the arrival of DNA technology. The science of DNA and how it could be used to identify criminal suspects was evolving. Law enforcement agencies began taking advantage of this new technology as soon as it became available. This put many judges in the position of presiding over Frye hearings and deciding whether DNA science was generally accepted. The outcome of these Frye hearings determined whether murderers, kidnappers, and rapists would walk free in some cases. DNA evidence and expert testimony regarding it did not pass the traditional Frye test because it was new; however, the science behind DNA seemed reliable. Within this same time frame, individual states began adopting and implementing the Federal Rules of Evidence. Texas promulgated Rules of Evidence in 1986 based on the Federal Rules already in place. Then in 1992, the Texas Court of Criminal Appeals issued an opinion in which they acknowledged their own Rules of Evidence and stated they “never explicitly adopted the Frye test.” Kelly v. State, 824 S.W.2d 568 (Tex. Crim. App. 1992). The Kelly case was a situation in which the State sought to introduce DNA evidence to prove the guilt of the defendant who faced murder charges. The defendant objected on the grounds that the expert testimony regarding DNA evidence was not generally accepted and therefore did not pass the Frye test. The Texas Court of Criminal Appeals applied the Texas Rules of Evidence and disavowed the Frye test a full year before the Daubert decision. The tide was turning towards application of the Rules of Evidence in many other jurisdictions. The Second Circuit Court of Appeals decided a case in 1992 with facts similar to Kelly. Randolph Jakobetz sought to restrict the Federal Government from using DNA to convict him of kidnapping. U.S. v. Jakobetz, 955 F.2d 786 (2d Cir. 1992). This court also allowed the government to introduce DNA, applying the Federal Rules of Evidence and stating that the general acceptance requirement of Frye was just a factor to consider when determining reliability. Id. At 796.

But Daubert did not overturn Frye because of DNA, or because of the complaints of attorneys wishing to proffer novel scientific evidence. Daubert simply recognized that the introduction of Federal Rules of Evidence eliminated the need for the Frye test. Daubert is a landmark case for its simple instruction to use the Rules of Evidence to guide whether scientific evidence is admissible. The new test that emerges from Daubert is whether the expert is proposing to testify to scientific knowledge that will assist the trier of fact to understand or determine a fact in issue. This requires a preliminary assessment of whether the testimony is scientifically valid and applicable to the facts at issue. The general acceptance test from Frye is converted into a way to analyze how reliable the proffered evidence is. Reliability is a consideration under Daubert, but the strict requirement of general acceptance is dissipated.

ARKANSAS IMPLEMENTS DAUBERT 

The Arkansas Supreme Court officially adopted Daubert in Farm Bureau Mutual Insurance Company v. Foote, 341 Ark. 105 (2000). This is a case about a house fire and the homeowners who collect on their insurance policy. Farm Bureau had many reasons for their belief that they should not have had to pay on the policy, but this discussion focuses on only one: whether the fire was intentionally set.

During the trial phase of Foote, expert testimony was introduced to the jury regarding suspicious origins of the house fire as well as the presence of chemical accelerants being detected by the crime lab. In addition to this testimony, Farm Bureau sought to introduce expert testimony from an investigator from the Arkansas State Police who had utilized a canine during his investigation to sniff out accelerants. The trial court applied the admissibility test from Daubert and denied this proffered testimony.

On appeal, the Supreme Court of Arkansas agreed that the test from Daubert is the applicable standard in Arkansas, thereby officially adopting the U.S. Supreme Court’s ruling. The court in Foote clarified the factors to be considered when applying the Daubert test. One key consideration is whether the scientific theory or technique has been tested, or even can be tested. Another element of note is whether the technique has been subject to peer review through publication. In all practicality, these questions essentially ask, Is the science generally accepted? 

The Court applied this test to the accelerant-sniffing dog and found that it did not pass the muster. Farm Bureau, as the proffering party, had the burden of showing the court that this expert had relevant information capable of helping the jury to understand a fact in question. The Court took note that Farm Bureau did not produce or introduce the study upon which the dog trainer’s techniques and training were based. Perhaps introduction of the study would have changed the ruling on this proffered expert. If the Court and opposing counsel had access to the study on which the proffered science was based, an examination could be made into the techniques used and the potential for error. Without the study, how can the Court determine whether the method or theory has been subject to peer review, or tested in any way?

CONCLUSION

When proffering scientific expert testimony in Arkansas, the practitioner must first ask the question, Is it relevant? The propounding party must analyze their proffered evidence under Arkansas Rules of Evidence 401, 402, and 403. Does the proffered evidence have a tendency to make the existence of any fact that is of consequence more or less probable? Everybody knows that all evidence that helps your case is by nature prejudicial to the other side. But the Judge must determine if the probative value outweighs the prejudicial effects. Additionally, when scientific evidence is proffered, the Court must consider the connection between the testimony proposed and the fact intended to be proven. The Court will try to determine if the proffered evidence is likely to confuse or mislead the jury when making this decision. And probably the most important thing the Court will consider is the reliability of the proffered evidence. The propounding party must convince the Court of reliability with evidence of peer review, sound methodology, and low likelihood of error. Reliability was the focus of the old test from Frye. But under Frye the proponent had only one way to show reliability, which of course was to show general acceptance in the scientific community. So while the ultimate goal of reliability remains consistent, Daubert opened up the channels of how the parties can demonstrate said reliability, thereby opening up the narrow window through which scientific evidence may be introduced.