Monthly Archives: February 2012

A Federal Act that Protects Railroad Workers

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For more than a century railroad workers have been protected by the Federal Employers Liability Act (FELA), an act brought in after a terrible catalogue of deaths and injuries on America’s railroads.

The legislation followed a massive upsurge in railway building at the end of the 19th Century. While this boom fuelled America’s economy, it was bought at a high price in terms of the number of railroad workers being injured or killed. Railroad use had increased six fold from 1889 to 1920 alone, but safety practices failed to catch up.

In 1889 President Benjamin Harrison addressed the dangers in a speech to the U.S. Congress when he compared the plight of the railroad worker to those of a soldier at war:

It is a reproach to our civilization that any class of American workmen, should in the pursuit of a necessary and useful vocation, be subjected to a peril of life and limb as great as that of a soldier in time of war,” he said.

FELA is a U.S. federal law that was enacted in 1908 to protect and compensate railroad workers injured on the job, if a worker can prove the railroad was at least partly legally negligent in causing the injury.

The legislation was based upon the federal government’s power over interstate commerce, as granted  in the Constitution. Before it was enacted there was no remedy for injured railroad workers.

Although the FELA has been compared to worker’s compensation insurance provided in other industries, unlike workers’ compensation, FELA is a fault based system dependant on the negligence of a railroad employee, its agent or contractor, or linked to a faulty piece of equipment.

It’s worth taking the time to find an experienced Virginia (VA) FELA attorney because FELA awards are usually much higher than those of workers’ compensation claims. FELA uses the legal doctrine of “comparative negligence”. In other words a jury determines the percentage of negligence for which each party is liable, thereby establishing the percentage of the award to be allocated to the worker.

FELA covers a wide number of injuries. The highest profile cases involve serious injuries or fatalities to workers. In Ohio, for example in 2011,

But FELA is not just about bodily injuries. It also  covers injuries due to asbestos exposure or exposure to diesel fumes, as well as cumulative trauma injuries and repetitive strain injury.

Railroad workers may have additional rights and benefits as outlined by the Federal Employers Liability Act (FELA), a series of federal laws passed by Congress in 1908 to improve railroad safety and provide substantial compensation for injured railroad workers and their families. FELA allows recovery for injury or death caused by:

FELA claims can be brought for a variety of reasons including wrongful death, cases of mesothelioma, asbestosis, silicosis, lung cancer or Parkinson’s injury, and catastrophic injury.

Under FELA railroad employees who can no longer work because of their injuries or conditions contracted while on the railway are entitled to recover for damages for loss of wages, pain and suffering, emotional distress and anxiety or past and future medical expenses related to the injury stated in the claim. FELA also comes into play in wrongful death cases. In a recent case CSX conductor Dennis A. Hemme, 59, died when he was crushed to death in a mainline shove.

In a wrongful death case, damages can be sought by the legal spouse, children, parents or other dependant beneficiaries


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Google, the Infidelity App and the Right to Privacy

Veritas Legal Media –

Every day citizens willingly share their personal information with internet companies such as Google and Facebook.

But what happens if those companies turn around and use the information against them?

It’s a question that’s being asked by thousands of concerned Google users, not to mention privacy lawyers, as the internet giant gears up for unified privacy settings.

On Thursday Google will begin creating “more comprehensive profiles” of its users by tracking their activities across the company’s websites, the Washington Post reported.

“From videos watched on YouTube to the terms typed in a Google search, tracking such behaviors will enable the firm to sell ads better suited to its customers’ tastes,” the Post said.

There’s no opt out. Users can switch do another service but Google is so deeply embedded in our internet existence, changing accounts and users presents a major challenge to many users. And there are a lot of them; about 350 million users worldwide with a Gmail account.

A lawsuit has been launched by the Electronic Privacy Information Center against the federal regulators over the issue.

In February,  2010, when Google tried to launch Buzz, a social networking service linked to Gmail, the, EPIC filed a complaint with the Federal Trade Commission, highlighting “several aspects of the Google Buzz service that threatened Gmail users’ privacy,” it said on its website.

 The complaint claimed Google “engaged in unfair and deceptive trade practices by transforming its email service into a social networking service without offering users meaningful control over their information or opt-in consent.”

The complaint was upheld. On October 13, 2011, the FTC issued a consent order setting out new privacy safeguards for users of Google products and services and making the internet giant subject to regular privacy audits.

In its lawsuit against the FTC the EPIC is arguing the unified privacy settings as a “clear violation of the consent order that Google entered into on October 13, 2011.”

The Google issue is only the latest privacy wrangle associated with the Internet. In September, 2011, a court in San Jose, California, heard claims that Apple’s iPhone as well as other mobile devices leaked users’ personal information to ad networks and to applications.

District Court Judge Lucy Koh dismissed multiple class actions against Apple and other mobile ad networks, saying the plaintiffs did not show that any one of them suffered identifiable harm.

And another privacy concern linked to the fast moving pace of technology, was highlighted in April 2011, when two researchers discovered that the Apple iPhone saves the user’s latitude and longitude, along with a time and date stamp, the Daily Mail reported. 

“It then copies the data to the owner’s computer whenever the two are synchronized,” the Daily Mail reported. This data store was soon dubbed the “infidelity app by the researchers because it could allow a spouse to track their partner’s movement.

A right of publicity is protected by state common or statutory law, while a broader right of privacy has been inferred in the Constitution.

In 1890 then to be Justice Louis Brandeis articulated a “right to be left alone.” This developed into a liberty of personal autonomy protected by the 14th amendment.

The Federal Trade Commission enforces this statutory right of privacy. Google’s new profiles promise to test this issue in a new and very complex field.




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Ex-Railroad Worker is Awarded $4.5 Million over Painful Slip

Veritas Legal Media – 757-582-1836

BODY – Tripping on the railroad may not seem like obvious grounds for a lawsuit against your employer.

But when the employer is a railroad company that has allowed weeds to grow so high that the dangers are not readily apparent, it’s the grounds for a multi-million dollar verdict, a jury in Roanoke, Virginia decided.

See this video of a Norfolk Southern derailment.

The jury awarded $4.5 million to former Norfolk Southern Corp. conductor and brakeman Welsh Davis after he tripped on a cross tie along tracks, the Associated Press reported.

The result of the 2008 trip was a torn tendon that left the railway worker in constant pain and unable to work. His lawyer successfully argued the weeds had grown so high around the cross tie that Davis was unable to see the  trip danger and his workplace was an unsafe one.

Railroad workers are not covered by workers’ compensation. That’s where the Federal Employers Liability Act (FELA) comes in, although an employer’s negligence needs to be proved for a claim to be successful.

In other cases involving Norfolk Southern

* A conductor who suffered a traumatic brain injury at a Chicago rail yard in April 2005, when a faulty step collapsed was awarded $17 million against Norfolk Southern by a jury.

* Norfolk Southern worker David Rogers whose knee was badly injured when he slipped and fell as he tried to mount runaway railcars in a bid to prevent a crash in a Tennessee rail yard in 2002, was awarded $2.3 million.

*A brakeman whose foot was severed when he fell under a train in a Norfolk Southern yard in Delaware in 2005 after cars were incorrectly coupled was awarded $5.5 million

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Filed under FELA, Railroad, Serious personal injury, Slip and fall

Claiming for a Slip and Fall Injury

Veritas Legal Media – 757-582-1836 –

A case that was settled last year against PetSmart in Newport News, Virginia was a high profile example of a slip and fall lawsuit.

In Feb. 2011, PetSmart settled a federal lawsuit over allegations that employees at its Newport News store failed to clean up dog feces, leading a customer to slip and injure himself. The pet supply store and Robert W. Holloway of Poquoson, VA reached an agreement to avoid trial. It’s not known how much this case was settled for.

 Mr. Holloway and his daughter were at the Jefferson Avenue store on Jan. 18, 2009, the Virginian-Pilot newspaper reported. As he headed for the pet treats aisle, “my left foot slipped in a pile of dog feces that was not visible,” Mr. Holloway stated in court documents.

Mr. Holloway said after slipping on the feces he grabbed hold of his daughter and wrenched his back. “The dog feces in question was not open and obvious,” he said in legal documents.

 The fall had painfu and long-lasting consequencesl, leading to Mr. Holloway to have to undergo a back operation.

 The PetSmart case was unusual; more typically victims fall on wet floors. In a recent case in Georgia (GA) a man who slipped on a floor of a Kroger store and damaged his spine was awarded $2.3 million.

 As an experienced personal injury lawyer one of my first considerations in slip and fall cases is who owns the property on which the accident occurred.

 Commercial, private and public property owners may be held responsible for slip and fall accidents that occur on their property, although not every fall can be the subject of a lawsuit. If you are unlucky enough to fall on the floor of a Wal-Mart store, for example, and there is no contributory factor, you are unlikely to have a case.

If the floor has been washed and there are inadequate warning signs, or if dishwashing liquid has spilled on the floor and nobody has bothered to clean it up, that’s a different matter.

In slip and fall cases, a “reasonable person” standard derived from common law is used to establish whether the landowner has lived up to a duty in maintaining and keeping the property safe and also whether the injured party was acting reasonably.

Although there are different specifics depending on what state you live  in, generally a victim must prove the property owner to be held responsible for injuries on the property, the owner must have caused the condition or known about the dangerous condition and done nothing about it. So, in the example of a store, the owner could hardly be held responsible if a customer knocked a jar off a shelf and spilled a fluid and another customer slipped on it a few minutes later.

But if a customer was responsible for a spillage and members of staff simply walked on past it, nobody bothered to clean it up and another customer slipped on it later on, the store could be held responsible.

 Reasonableness is a subjective standard. As with any negligence action, the victim in a slip and fall case needs to demonstrate that his or her injuries were “proximately caused” by the property owner’s actions or inaction.

 Sadly many victims in these kinds of actions fail to seek legal advice. The recent verdict in Georgia, shows this can be a mistake because large awards are often available to slip and fall victims.

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Ford Recalls 129,000 Vehicles over Faulty Wheel Studs

December, 2011 – Veritas Legal Media 757-582-1836,

There can be few more alarming scenarios than a wheel falling off your car when you are driving at 60 mph on the Interstate.

But that’s the life threatening concern raised by the recall of 129,000 Ford Fusions and Mercury Milans, according to the New York Times.

Ford has recalled almost 129,000 of its 2010-11 Ford Fusions and Mercury Milans. The automotive giant says the wheel studs on vehicles equipped with 17-inch steel wheels could break, with the alarming potential of a wheel coming loose and falling off.

The recall is detailed on the website of the National Highway Traffic Safety Administration. According to the New York Times, Ford informed the safety agency about a problem in August 2010, when some wheel studs fractured at a lug-nut tightening at the plant in Hermosillo, Mexico, where the sedans were built.

The automobile industry has an unenviable record of recalls and faults. Some of these have led to serious injuries and deaths. In July 2011, a leaking fuel line from a new Chevrolet Traverse claimed the life of a sailor from Moyock, NC on the I-64 in Norfolk.

Toyota has made a number of major recalls and wrongful death lawsuits are pending claiming victims were killed by sudden and unexpected acceleration in Toyotas.

In 2009 a flaw in the design of a gas pedal may have been linked to the death of a family of four in a Lexus

If a manufacturer is to blame because of a defect, there are grounds for a wrongful death lawsuit or a personal injury lawsuit.

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Filed under Automobile recalls, Car accidents, Defective products

Distracted Driving Report calls for Ban on All Cellphone Use Behind the Wheel

January, 2011 – Veritas Legal Media – 757-582-1836 –

a report that pulled few punches, federal safety inspectors looking into the dangers of distracted driving have concluded all cellphone use behind the wheel is unacceptably dangerous and have urged all states to impose total bans.

The report by the five-member National Transportation Safety Board follows a recent series of fatal crashes — including one in which a teenager sent or received 11 text messages in the same number of minutes before an accident . The recommendation would even apply to hands free devices, the Wall Street Journal reported.

See this video of the dangers of distracted driving using a simulator.

“States aren’t ready to support a total ban yet, but this may start the discussion,” Jonathan Adkins, a spokesman for the Governors Highway Safety Association, told the Wall Street Journal.

There have been numerous deaths across the US linked to distracted driving but one accident in particular weighed on the minds of the board.

“The immediate impetus for the recommendation of state bans was a deadly highway pileup near Gray Summit, Mo., last year in which a 19-year-old pickup driver sent and received 11 texts in 11 minutes just before the accident,” the Wall Street Journal reported.

Distracted driving is also an escalating problem in Virginia (VA). A recent five year study released in 2011 by the Virginia Department of Motor Vehicles found distracted driving deaths increased by 22 percent at a time when overall road deaths fell by a similar magnitude.

A recent study by AAA and Seventeen magazine found teens are particularly at risk of distracted driving with 86 percent admitting to taking their eye off the wheel to text, use a cellphone or another device.

Teens are about four times more likely to be involved in a fatal crash than adults. Just a few weeks ago a 17-year-old passenger died in a crash in Charles City County, VA. The driver was also 17 and alcohol was a factor, police said.

Distracted driving is a significant factor in teen deaths. Texting is banned in Virginia and it is unlawful for drivers under the age of 18 to use a cell phone.

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A Guide to Domestic Torts

Veritas Legal Media – 757-582-1836,

In May 2011 a lurid story broke on the entertainment website TMZ about an “A-list” celebrity who is being sued for more than $20 million for intentionally transmitting the venereal disease herpes.

“An unnamed plaintiff has sued “an A-list celebrity of substantial fame internationally,” claiming the celeb came on to the plaintiff in Las Vegas and swore he was STD free, the TMZ report stated.

Few details were available of the case and neither party was named. But it sheds light on the little known family law area of domestic torts.

Contracting herpes is a serious matter. Aside from the embarrassment and the physical discomfort, there is no cure for herpes. Even when the symptoms are in remission, it’s likely to affect the ability of the person who contracted the disease, to engage in future sexual relations. Contracting a sexually transmitted disease (STV) from a partner is just one of a raft of domestic torts.

 In some states such as California, the victim may be able to obtain compensation for additional costs as well as the emotional distress caused. In severe cases he or she might be entitled to punitive damages for physical, emotional or psychological and physical injuries suffered over the length of a relationship.

There’s also the question of whether a spouse could receive a spousal support award in the courts if he or she contracted an STD. The problem of proof and the extensive recovery program means few cases of this nature are brought.

“No, it is not likely or commonplace to see a divorce court increase the spousal support award under these circumstances even though the court would have the legal authority to do so,” concluded Robert L. Mues, an attorney and author of Divorce in Ohio.

States including North Carolina recognize tort liability between spouses. A civil action may be brought against a spouse for battery, assault or infliction of emotional distress, the latter known as “heart balm” cases.

Infliction of emotional distress in the absence of physical abuse is limited to few jurisdictions because it can be a difficult and subjective area that calls for the involvement of psychological experts.

States including North Carolina also recognize claims for alienation of affection and criminal conversation.

Notwithstanding its name, criminal conversion is a civil matter. A person who has engaged in sexual intercourse with a married individual, can be liable in an action, even in cases where the married person was separated at the time of the affair.

In practice it’s rare for so called “marriage wreckers” to be sued. The innocent spouse who wants to pursue a lawsuit against a third party, alleging alienation of affections, needs to prove the marriage was viable and based on genuine love and affection, that the love was destroyed and the third party was responsible for the deterioration of the marriage, although the third party does not have to be proved as the only factor responsible for breakdown of the relationship.

Liability under this law could also extend to an in-law who encourages one spouse to leave the other. The innocent spouse could recover damages for a number of factors including emotional distress, anxiety and a loss of financial support.

Although there are wide variations from state to state, the concept of domestic tort is deeply rooted in common law and the principle that when someone harms you be it physically, emotionally or financially, you are entitled to compensation. It could be a stranger or a spouse.

Invasion of privacy is another domestic tort recognized in some states. Actions could include the publication of intimate photos, hacking into an e-mail account, wiretapping, or stalking. Recently in Chicago a woman sued her ex-boyfriend for allegedly posting nude photographs of her on an X-rated website.

As well as the obvious cases such as assault and battery, a spouse may seek damages against an estranged partner for a financial malfeasance if there has been a fraud or a breach of a financial duty.  This could include theft or goods or the transferal of an insurance policy.

Not only may a spouse’s rights be addressed through the tort law, but so are the rights of children.  A child may have a cause of action for assault and battery if he or she was hurt by a parent for any abuse or neglect.

One of the most interesting and evolving areas of domestic torts, which is a corollary of domestic violence, concerns Battered Women’s Syndrome. Can a woman recover damages for the feelings of guilt and fear caused by an abuse relationship?

“The most publicized and envelope-pushing type of domestic torts comes out of domestic violence and involves the Battered Women’s Syndrome,” writes New Jersey family lawyer Elliot H. Gourvitz.

New Jersey courts first recognized the Battered Women’s Syndrome as a defense in a 1984 criminal case.

“The Syndrome itself is such that battered women exhibit common personality traits: low self esteem; traditional beliefs about a woman’s role, family and home; female sexuality, tremendous feelings of guilt that their marriages are failing; and the tendency to accept responsibility for the

batterer’s action. These battered women are paralyzed by the fear of their spouse’s response should they attempt to leave the relationship,” Gourvitz wrote.

 Domestic torts are a rapidly moving area but some commentators point to the difficulties faced by those who want to bring cases. Barriers to compensation were explored in this 2001 article.

David Macaulay

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Filed under Domestic torts, Family law