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Every year, nearly 30 million school age children participate in youth sports throughout the United States, and according to the U.S. Centers for Disease Control this number is only increasing. Whether it is your elementary school child participating in youth soccer or t-ball for the first time or your high school athlete playing tacking football or being a member of the cheerleading team, every parent wants to ensure their child is safe from sports related injuries. While, it’s nearly impossible to keep your child from sustaining an injury during the many years spent playing youth sports, it is possible to keep your children from suffering from the almost 50% of youth sports related injuries that the CDC considers preventable.

One of the most common injuries suffered in youth sports is simply through overuse. This is particularly true among middle school and high school age children, who are attending multiple practices throughout the week and often several games on the weekend, doing the same repetitive motions over and over. Because overuse injuries can be more difficult to spot than acute ones, such as a broken arm, torn acl, etc., it is important to watch for signs of pain in your child that can signify an overuse injury. These signs may include pain when walking, favoring certain body parts, weakness, and inability to bear weight. If you notice something is off with your child, the best thing you can do to help avoid a serious injury is to have your child take a break to rest and heal. While most kids will not want to do this, continuing to play will only worsen the injury and lengthen the amount of time missed. As the parent, you must take charge and make decisions that may leave your child and even the coach upset, but remember that your child’s health and safety takes precedence over a missed practice or game.

While overuse may be one of the more common causes of injury, the majority of parents tend to be most concerned with their child suffering a concussion injury. Of course, when we think of concussions and the types of sports most likely to result in your child getting one, football is the first sport to come to mind. With more and more information coming out regarding the relatedness between playing football and suffering from long term brain diseases, many parents are voicing their legitimate concerns about whether youth football is safe for their children to play anymore. Similarly, these same parents may allow their children to play flag football, but not tackle until they are older, if even at all. In an effort to address these concerns, the Heads Up football program has been introduced to help teach player safety when playing and reduce the number of concussion injuries.

While the decision to allow your child to play youth football is solely a parental one, it is important to note that football is not the only youth sport that results in head injuries. Both soccer and basketball rank as the number 1 and number 2 highest risk sport for concussions for girls, with gymnastics on the rise. Youth sports is an excellent way for your children to exercise, stay healthy, be part of a team, and learn about competing and being a good sport and thus, the point is not to scare parents away from allowing their children to participate in youth sports, but to be aware of the risks involved and make an effort to learn the best ways to combat and reduce those risks.

Back to School Safety Tips

With the summer coming to a close and school quickly approaching, it’s important to start thinking about how to keep your kids safe as they head back to school. If you are lucky enough to live within walking distance of your child’s school then you likely spend a lot of time with your child walking, biking, or using a scooter going to and from school multiple times a week. While this is a great opportunity to spend time with your child and also get exercise, it’s also a good time to review safety rules with your child. If you walk to school, let your child know the importance of always walking on the sidewalk and using the crosswalk when crossing the street. If a sidewalk is not available to walk on, teach your kids to walk facing traffic so they are visible to oncoming vehicles. For younger children, it is helpful to review looking both ways when crossing the street to see if cars are coming and to make sure all cars have come to a complete stop before crossing in front of them. For older kids who are attached to their cell phones, make sure they know to pay attention to traffic and not be looking down, using their phone when crossing the street.

If your child bikes to school, be sure a helmet is always being worn and that it is properly fitted. A secured helmet is imperative in the event of an accident. Teach your children the rules of the road and ensure they know to ride on the right side of the road, with traffic, and to get off their bike and walk it in the crosswalk. For those kids who ride the bus to school, make sure you have made certain that they know how to get to and from the bus stop on their own or that you have dropped them at the stop and know they are safely there.

Safety extends to school hours as well, particularly for younger children who are constantly climbing on and jumping from playground equipment. Make sure they know to stay on their age assigned playground and only play on equipment they have proven to be competent playing on. For older kids, talk with them about safety when leaving school grounds during off periods and for lunch. This is especially important for teenagers who may have recently started driving and are giving friends rides. They need to understand the responsibility that comes with driving and be 100% committed to driving safely and text-free. In this regard, parents are the best examples of safe driving, so be sure to be an attentive driver and keep your phone put away!

The importance of having uninsured and underinsured (UM/UIM) coverage on your auto policy cannot be stressed enough. Having this type of coverage is the best way to protect yourself in the event you are injured in an accident caused by a driver who either does not have insurance or does not have enough insurance to cover your damages. For example, if an insured driver caused damages to you of $125,000 and he had limits of only $25,000, then you could recover the other $100,000 from your own company so long as your own underinsured coverage limit was at least $100,000. If your underinsured limit was less than $100,000, say $50,000, then you would only be able to recover an additional $50,000 above what the other driver’s insurer paid you. Similarly, if the at fault driver had no insurance at all, then you could recover $125,000 from your own company so long your own uninsured coverage limit was at least $125,000.

A lot of people resist adding UM/UIM coverage to their policy, or only add the minimum $25,000, because they think it will cost too much. However, the majority of the cost of UM/UIM insurance is built into the first $25,000 of coverage and it costs very little to increase your UM/UIM coverage to $100,000 or more. In fact, many insurers will include UM/UIM coverage in umbrella policies providing a $1,000,000 in coverage for a small additional premium.

The concept of stacking is another factor to keep in mind when making a UM or UIM claim. Stacking allows you to stack the UM/UIM limits of various policies covering you so as to provide you with more compensation for the damages an uninsured or underinsured driver caused you. For instance, suppose you are a passenger in a friend’s car and are hit by an uninsured or underinsured driver and suppose you have $50,000 UM coverage and your friend has $50,000, you are able to stack those policies so that you have $100,000 in UM/UIM coverage. Then if you lived with someone who had $100,000 in UM/UIM coverage on their own car, you might be able to stack that on as well, so that you would then have $200,000 in UM/UIM coverage. You can even stack where you have insurance covering multiple vehicles you, your spouse, and resident child own so long as they are each insured under a separate policy. Many times you can even stack where you are not listed as an insured under the policy. Also, remember that if you have an umbrella policy with UM/UIM coverage, you can stack that onto your auto policy’s UM/UIM coverage.

You can add this type of coverage to your policy at any time, so don’t wait until your next policy renewal, protect yourself today!

Causes of action for injuries resulting from motor vehicle collisions include claims based on: a tortfeasor’s (the responsible party) individual liability for the tortfeasor’s own acts and omissions; vicarious liability; contract; an injury to another (i.e. derivative claims); based on wanton and wanton conduct; and the right of subrogation. Negligence is the most often pled cause of action based on a tortfeasor’s own acts or omissions that give rise to a personal injury claim arising out of a motor vehicle collision.

What is important to recognize, however, is that not only the other driver that collided with your car or the driver of the car you were a passenger in might have been at-fault, but the negligence of others who were nowhere near the accident when it occurred may give rise to a cause of action against them. Other persons or entities may also be vicariously liable for the negligence of the at fault driver, meaning they are liable simply because of the type of relationship they had with the at fault driver or because of a contract insuring you. Derivative claims are claims made by persons not based on injuries they suffered in the collision, but are based on their relationship to someone who was injured or killed in the accident and the damages sustained as a result of the effect of the accident on that relationship. A cause of action based upon the willful and wanton conduct of a tortfeasor is one for punitive damages, intended to deter and punish.

Claims made by or against a minor may be brought by or against the minor through a next friend, usually a parent or guardian. In cases where it appears that your damages may exceed the insurance policy limits of the at fault driver, it is suggested that you bring a claim against as many parties as can be named consistent with the facts, rules of ethics and the economic practicalities of the case.

You may ask why do this in cases where an insurance policy will cover both the at-fault driver and, for example, another party brought in under a theory of vicarious liability, but yet will provide the same amount of coverage regardless of whether just the at-fault driver was sued, or both the at-fault driver and the vicariously liable party were both sued. One reason is that the vicariously liable party,such as an employer or parent, may have assets to satisfy all or part of an excess judgment that the at-fault driver does not have. A second reason is that any party at risk of losing personal assets will have an incentive – that a judgment proof at-fault driver would not have – to put pressure individually or through excess counsel on the insurer to settle within policy limits by making telephone calls, writing letters and showing up at a settlement conference. This increases the chances of the case settling, with the insurer paying a higher amount. Also, in cases that do not settle under such circumstances, the insurer may be willing to provide its insureds with a protection letter providing coverage without limit in order to avoid a bad faith claim being asserted against it for not settling within policy limits.

While this is a lot of information, the main takeaway is that if you’ve been injured, there may be parties that are responsible for your injuries that you were not aware of and should be held accountable. The personal injury lawyers at Kidneigh & Kaufman know this and are here to help you receive the compensation you deserve.

Over six million car accidents occur in the United States each year and, fortunately, most are relatively minor.  As personal injury attorneys, we deal with car accidents every single day.  Inevitably, a client or friend will ask me, “what should I do if I get into an accident?”  Obviously, there are many different things that you can and should do depending on the circumstances, but here are 5 things that everyone should do if they are involved in an accident:

  1.  Call the police:  Surprisingly, many of our clients fail to call the police after an accident occurs.  They often do not want to wait for the police to arrive or do not want to inconvenience the other driver.  However, it is critical that the police are called to document what happened and determine who was at fault for the accident.  Sometimes stories can change: the friendly driver who rear-ended you and said it was all his fault and that he would take care of everything later calls his insurance company and says that the accident was actually your fault because you stopped suddenly on a green light.  Without a police report, it becomes a he said, she said situation.  Police reports not only show how the accident occurred, but can also document the damage to the vehicles, the injuries to the parties, and the contact information for any witnesses.
  2. Record the details of the accident: Remember to document everything you can about the accident.  The names of any witnesses, the insurance information for any vehicles involved in the accident, the contact information for the police officer are all important pieces of information.  A camera phone is an extremely valuable tool in a car accident.  Use it to take photos of the vehicles, the insurance cards, and any other relevant documents.
  3. Report the accident to your insurance company: Notify your insurance company as soon as possible if you were involved in an accident.  Most insurance policies have a provision that requires policyholders to notify immediately and cooperate fully in the event of an accident.  You also want to find out what types of coverage you have and what the limits are for each type of coverage you have.  For example, you may have medical payments coverage, which will actually pay for your medical bills following an accident, so you don’t have to pay out of pocket!
  4. Seek medical attention if you are injured: If you feel you’ve been injured after a car accident, it’s important that you seek medical treatment right away.  Even though you may feel fine immediately after the accident, pain can develop over the next few hours and days after the adrenaline wears off.  It is also important to document the pain you are feeling following as it can be difficult to remember days, weeks, or months later.  The longer you wait to seek medical attention, the more difficult it can be to prove that your injuries were related to the accident.
  5. Protect your rights:  Within days or sometimes even hours of an accident, the other driver’s insurance company may contact you to ask for a statement or to request your medical records.  Before you speak to an insurance company, talk to a personal injury attorney about your case.  Most attorneys will provide a free initial consultation so that you can better understand how to protect your rights and your potential claim.

Remember to drive safely and be careful so, hopefully, you never have to use these tips.

 

 

Injured by a Drunk Driver?

If you were injured by a drunk driver, you may be entitled to punitive or exemplary damages.  These damages are in addition to your compensatory damages for things such as medical bills, wage losses, and pain and suffering.  A claim for punitive or exemplary damages may arise where there is evidence such as excessive speed, alcohol or drug abuse, or other evidence of gross negligence, willful and wanton, or reckless conduct.

Keep in mind that a claim for punitive damages is not necessarily limited to the at-fault driver.  For example, a claim for punitive damages would be proper if the owner of a car handed the keys to someone who was obviously intoxicated.  Where the accident was caused by a defect in a vehicle, a punitive damage claim against the manufacturer may be appropriate in cases where the manufacturer did not perform standard testing, manufactured the vehicle as it did despite test results showing that would result in a dangerous product, or made optional certain items on the car necessary for safety in order to increase profits.

If you were injured by a drunk or intoxicated driver, please call the attorneys at Kidneigh & Kaufman today so they can discuss your case with you.

 

Shifting the Burden of Proof

When a Plaintiff files a personal injury lawsuit against a Defendant, the law states the Plaintiff has the burden of proving his case.  This means the Plaintiff has to prove that the Defendant was negligent and said negligence was a cause of his injuries.  However, in certain circumstances, the burden of proof shifts to the Defendant and he is then forced to disprove his negligence.  This is known as res ipsa loquitur, and occurs whenever a court can reasonably find that the event is of the kind which ordinarily would not occur in the absence of someone’s negligence and the  Defendant’s inferred negligence was, more probably than not, a cause of the injury, the doctrine of res ipsa loquitur applies even if a Plaintiff’s negligent acts or omissions may also have contributed to the injury.  An example of this type of situation is when a doctor leaves a sponge inside a patient upon completion of surgery or he operates on the wrong body part. 

 

In breaking these situations down, Colorado courts have noted that a Plaintiff does not need to positively eliminate all explanations other than the Defendant’s negligence, but instead a Plaintiff has done enough where “the facts proved reasonably permit the conclusion that negligence is the more probable explanation.”  It’s important to note that a Plaintiff does not need to exclude all others beyond doubt to show that the Defendant, rather than someone else, was more probably than not, responsible for the negligence.  Equally important is that in determining whether to give a res ipsa loquitur instruction, the court must look at the evidence in the case and all legitimate inferences to be drawn therefrom in the light most favorable to the Plaintiff. 

 

The doctrine of res ipsa loquitur has been long standing in Colorado and can be very helpful to Plaintiffs who have been injured by a Defendant’s obvious negligence.  In fact, the Colorado Court of Appeals affirmed the res ipsa loquitur doctrine on December 27, 2012 when they reversed a trial court’s decision to not shift the burden of proof to the Defendant once the presumption of negligence arose.  The Court stated that under the doctrine, “once the presumption of negligence arises, the burden shifts to the Defendant to overcome the presumption, and to establish affirmatively that no negligence existed on his part.”  For more information of this recent case, see Harner v. Chapman, 2012 COA 218 (Colo. App. 2012).

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Failure to Mitigate Damages

In a December 27, 2012 decision, the Colorado Court of Appeals held that it was error for a trial court to give an instruction allowing the jury to find that the Plaintiff failed to mitigate her damages if she “continued to undergo expensive treatment when it was not resolving her pain.”  Under the law, an injured party must take reasonable steps to mitigate his or her damages and as such, may not recover damages for injuries that could reasonably have been avoided.  However, the Court noted that in the context of personal injury matters, “a failure to mitigate usually concerns a Plaintiff’s unreasonable failure to seek medical advice or unreasonable failure to follow that medical advice once received.”

 

In this case, the Court of Appeals found error in the trial court’s instruction because there is no Colorado case law, statute, or treatise holding that an injured party has a duty to stop medical treatment because it is costly or isn’t helping to resolve the pain. In fact, the general rule concerning failure to mitigate in the personal injury context is “any suffering or disability incurred by one who has sustained personal injury, when the same could have been avoided by submitting to treatment by a physician selected with reasonable care, must be excluded as a ground of recovery.”

 

Here, the Court found that the instruction was improper because the failure to mitigate assertion didn’t focus on the Plaintiff’s inaction.  In fact, the Plaintiff testified that her medical treatment was helping alleviate her pain but was forced to stop treating because it was too costly.  Accordingly, the Court remanded this case back to the trial court holding that “the court should not instruct the jury that [the Plaintiff] continuing to receive expensive treatment that was not resolving her pain constitutes a failure to mitigate.”

 

For more information regarding this case, see: Banning v. Prester, 11CA1093 (Colo. App. 2012)

Colorado Courts

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