Zachar Law Blog

You Be The Judge: Wrongful "Dog Death"

WRONGFUL "DOG DEATH"

Steve, while backing his car out of the driveway, accidentally ran over his roommate’s dog, Buster, who was sleeping in the car’s path.

Buster the dog was so badly injured that he had to be put to sleep.

Steve’s roommate Tom sued Steve for $1,000 in damages, to pay for the veterinarian’s bill and for the loss of his beloved pet.

Tom argued that it was negligence because Steve knew that the dog had a habit of sleeping on the driveway and could not hear the car because Buster was deaf.

Tom sought pain and suffering type damages, for the loss of his companion.  

Did the court rule FOR or AGAINST Steve?

The court ruled AGAINST Steve on the veterinarian’s bills, and found that he was negligent in the situation because he could have prevented the accident.

The judge awarded Tom compensation for the veterinarian’s costs, but not for the loss of Buster, as there is no clearly established law in Arizona that allows pain and suffering-type compensation for the loss of a pet.

 

Swimming Safety in Arizona: Remember to Protect Your Pool

"It only takes a few seconds for a child to slip out and get into the water," a Phoenix Fire Department captain recently explained to the press.  Tragically, he wasn't speaking in a hypothetical: he was responding to the death of a 2 year old Phoenix boy who was discovered by his siblings floating in the family pool.  It was one of the first child pool deaths of the Arizona pool season, it is a heart-wrenching reason that I'd like to remind you and your family about the need for rigorous pool safety.

Child drownings are called the “silent death”.  You don’t hear a scream.  You don’t hear a cry.  You don’t hear a plea for help.  Once they are in the pool and take that first mouthful of water, you hear nothing. 

Swimming pool accidents are possibly the toughest cases for us to hear about, because they disproportionately affect children who are unaware or unable to protect themselves. Furthermore, we all know how exciting--if not irresistible--swimming pools are to children.  They don't see pools through the lens of safety or danger; they just want to have fun.

The circumstances leading up to pool accidents are almost always (otherwise) negligible: a gate wasn't completely latched, a toddler took one step too close to the ledge of a pool, the doggy door is left unlatched, a door isn’t locked, a toy falls in that a child wants to retrieve.  In the case of this particular incident, sadly, the toddler needed only to open back door. The pool had no separate fence.  

At 7:30 in the morning, a family member left for work and saw the child still asleep.  By 9:00am, the mother woke up when the child was found in the pool.  There was nothing otherwise abnormal about that day.

By the time the paramedics arrived to perform CPR, it was too late.  A child was lost.  A family suffered the trauma of a missing loved one.  And there will be the inescapable pain of knowing that THIS WAS COMPLETELY AVOIDABLE.

I am an attorney who handles child injury cases and supports families through these difficult times.  I am also a dad to three young children.  

As an attorney, I implore you to take some extra time, look at the ways a child could access your pool, and correct them so that does not happen. 

As a dad, I implore you even more to do these things. 

According to AZCentral.com, last year alone Valley officers responded to 119 water incidents involving children.  Of those cases, 17 of the children died and 12 suffered a life-altering neurological injury.  This year, there have already been 7 accidents, and the pool season has just begun. 

Please take any and all precautions this season when securing your pool.  Adding an extra gate or installing a new latch is a small price to pay for ensuring your pool and premises are safe for your family, visitors, and neighbors.  I wish you a safe swimming season ahead. 

You Be The Judge: No Horsing Around

"NO HORSING AROUND"

On a beautiful summer day, Bart decided to go horseback riding.  He attended a local stable for an afternoon ride. Prior to the ride, he was asked to sign a waiver to limit the liability of the stable for any injuries he might sustain.

As he was galloping through the open countryside, all of a sudden, for no apparent reason, the horse jumped.  Bart was thrown off the horse and, as a result, both of his legs were broken.  He later discovered that the horse was a retired circus show jumper.  John filed suit against the stable that owned the horse for negligence.

Did the court rule FOR or AGAINST Bart?

The court ruled AGAINST Bart.  The court found that the type of conduct by the horse was indeed included within the scope of risks contemplated in riding horses.  Accordingly, the waiver signed by Bart was upheld, and the lawsuit dismissed.  Bart received no compensation.  

How to Stop a Car That Accelerates Out of Control (advice and video)

A colleague recently sent me this important and informative video from Consumer Reports, which discusses what to do and what not to do if your car suddenly accelerates beyond control.

This is a timely topic given the recent news about Toyota's mechanical problems, but this video is meant for drivers of ALL CARS, regardless of make or model.  

This is something that I have shared with my family and friends, and I encourage you all do do the same.  The video is short, and hopefully this is information you'll never have to use.  But in the unlikely chance that it does, you'll know the simple steps to regain control of your automobile.

I have worked on many cases in Arizona in which a vehicle defect caused a serious accident.  I can tell you from firsthand experience that many of those victims--and yes, their attorneys--wished that they had the ability to prevent or mitigate their accident.  

After all, the best type of accident is the one that never occurs.

I wish you all safe travels and cautious driving, and, if this helps someone, just one person, then it has served its purpose. As other important safety tips evolve, I will be sure to share them with you.

Update: Responsible Party of Motorcycle Accident Was Under the Influence

Meth.  Meth?! 

 

In an unbelievable update regarding the dump truck that plowed into a group of motorcyclists--killing four innocent people--it was reported yesterday that the truck operator was under the influence of methamphetamine.  In fact, police believe the driver to be an addict, meaning this reckless and abhorrent driving may not have been an isolated incident.

 

If this is true, as police suspect, this case has gone from tragic to unforgivably criminal.  

 

Police reported that the driver had dilated pupils, a high pulse rate, and he couldn't maintain his balance.  There was no evidence that he even attempted to break before slamming into the unknowing victims.  It probably wouldn't have mattered, however, since three of his six brakes were out of adjustment.  Did this guy do ANYTHING to be remotely safe?  What about his employer? 

 

Two weeks ago, a local attorney, beginning a trial in Maricopa County, had a very difficult time picking a jury because in addition to suing the responsible driver, the injured victim (plaintiff) was also suing the responsible driver’s employer.  In Arizona, an employer is deemed legally responsible (called vicarious liability) for the conduct of its employee.  The potential jurors indicated in this most recent trial that they did not think an employer should be held responsible for the actions of its employee, and, indicated that they would likely not follow the law on this issue in deciding the case.  All were excused, and the trial postponed.

 

Do you agree with them?  Given the facts of this horrific truck-motorcycle collision, how do you feel now about this issue?

 

No doubt, there will be a slew of criminal charges against the driver:  Murder or manslaughter, aggravated assault, endangerment, etc.  But what about the victims and their families?  What recourse do they have?  How will they be compensated for something that can never be replaced?  And how does this news about the dump truck driver's drug influence impact the victims' case against the man and his company?

 

In our first blog about this issue, I explained what happens when a responsible party doesn't have enough insurance.  In this posting, however, I'd like to discuss what happens when the responsible party is found to be extremely--and criminally--negligent in a case of wrongful death and personal injury in Arizona.

 

Under Arizona law, there are two (2) types of damages that can be awarded in a civil case:  1) compensatory and 2) punitive.

 

Compensatory damages are intended to “compensate” the victims, or families of the victims for their losses.  Medical bills, funeral and burial costs, pain and suffering, disfigurement, lost income, lost relationships, etc… are all types of ‘compensatory damages”.  In most losses—particularly as horrendous as this, there is no true measure of compensatory damages that can be awarded.  Money is not enough, and, no matter how much, it is always too little.  We would never trade our loved ones for money.  However, under the law in Arizona, money is the only means to compensate the victims and their loved ones.

 

Punitive damages, on the other hand, are intended to “punish” the wrongdoer(s).  The primary focus of punitive damages is to punish the “evil hand guided by an evil mind”.  However, it is not necessary for the existence of “evil”, and, that meaning is more broadly defined by the law.  Punitive damages may well apply to reckless disregard of life and the well being of others, such as the intentional ingestion o drugs or alcohol, and then choosing to get behind the wheel of a vehicle and recklessly endangering the lives of others.   

 

I'll be watching closely as this case develops, and I'll be sure to keep you posted on the legal implications of the story as it develops in the news.  I have extensive experience in the areas of personal injury and wrongful death in the state of Arizona, and I'm sorry to say that cases like this aren't rare.  

 

Our hearts go out to the families of the victims.

Do You Have Rights When an Earthquake Strikes?

Easter Sunday brought a very unexpected surprise to many parts of Arizona, including the Valley.  At first it felt like a large truck was driving by, but when the window blinds began to sway and the water in the pool began to make waves, everyone in my house started to look at each other in amazement: I think we're having an earthquake!

According to the local news, we were right.  A 7.2 magnitude quake struck in Baja California, less than an hour's drive from Yuma.  Despite being over 200 miles away, Phoenix felt the tremors.  

Earthquakes aren't exactly unheard of in Phoenix, but we've felt only 2 in the last 10 years.  Despite seeming rare, earthquakes pose a significant risk considering how widespread they can reach (yesterday's quake, for example, could be felt by over 10 million people).  This led me to think about how the law accounts for natural disasters and how your rights are affected by rare phenomena such as earthquakes.

Here is what I mean.  Let's say you are at a gas station.  In an otherwise normal situation, your safety is protected by the law at that gas station.  The reason is that an individual in Arizona is protected from known or discoverable dangers when they enter the premises of a business.  (For more on that, see our recent blog post titled "A Hazardous To Your Health Center?").  But what would happen if, while you were at the gas station, an earthquake occurred and you suffered injury as a result of something breaking or falling? 

Would you have any rights?  Would the gas station still be liable?

The gas station and its attorneys would assert a defense called “act of God”.  That means, that natural disasters are unforeseeable and unpreventable, and therefore, given that the gas station and its owners didn’t do anything “wrong”, that it is not liable for your injuries or damages.

However, the question must be asked---was it truly unforeseeable and unpreventable?

We know earthquakes can and will happen.  Although rare, we know they will at times rock the Valley of the Sun.  Don’t the owners, architects, planners, designers, and engineers have a responsibility to take these potential “acts of God’ into account--before and when they build? 

The simple answer is, “YES”.  The bigger questions are 1) to what extent and 2) would such have been sufficient to prevent the injury or damage?  

Believe it or not, accidents like this do in fact happen.  And they don't need to occur at the epicenter of a quake; they can be hundreds of miles away.  Actually, it need not be a quake at all--just think about the powerful winds during Arizona's monsoon season.    

This is a very interesting and complex scenario, and it illustrates why an experienced lawyer is essential in navigating all the circumstances that come into play.  Most of the time, you and the business you are visiting will not be expecting a natural disturbance to ruin your day.  For most of us, fortunately, the rattle of a distant earthquake like yesterday's will mean nothing more than a good story--and a reminder of how nice it is to live in a relatively quake-free area like the Valley.