Archive for April 2010
Fort Worth Police Office Charged with Intoxication Assault | Dallas, Texas Personal Injury Attorney Blog
An off-duty Fort Worth police officer has been charged with intoxication assault after crashing his truck into a Fort Worth home on Friday, April 23, 2010. According to the Fort Worth police department, officer Michael L. Buchanan’s blood alcohol level was twice the legal limit.
Investigators said the officer drove his Dodge truck through the side of a home in the 11300 block of Brownfield Road, knocking the two people out of bed. The officer is claiming he fell asleep at the wheel, but he has not offered an explanation for the alcohol levels in his blood. Not surprisingly, the homeowner Maria Garcia is not persuaded by the “I fell asleep defense” that is often raised in these situations. Mrs. Garcia commented that, “We have a big front yard. And for him to have gone across the street and into my bedroom, I just had to know, was he drunk, what happened.”
Officer Buchanan is on restricted duty pending the outcome of an administrative and criminal investigation.
Drunk driving is clearly a problem, and the problem reaches out across all walks of life. Each year, several members of various police agencies are charged with drunk driving. Despite the fact that we count on these police officers to be in control and to enforce the laws against drunk driving, we continue to see stories such as this where it is the officer who is charged with an alcohol related offense. These first responders are often the first ones to arrive at the scene of drunk driving wrecks, and they see first hand the injuries, the deaths and the tragedies associated with drunk driving, yet the story repeats itself. We need better laws to punish drunk drivers and to discourage drunk driving because drunk driving is a danger that affects all of us.
Montes Law Group, L.L.P.
Attorneys: Rachel Montes and Tom Herald
1121 Kinwest Parkway, Suite 100
Irving, Texas 75063
Telephone: (214) 522-9401
Facebook at Montes Law Group, LLP
Jury Holds Boy Scouts of America Accountable for Sexual Abuse | Dallas, Texas Personal Injury Attorney Blog
An Oregon jury ordered the Boy Scouts of America to pay $18.5 million to a man sexually abused by a former assistant scoutmaster Timur Dykes after Dykes admitted to a Scouts official in 1983 that he had molested 17 boys.
Under Oregon law, most of the money the jury awarded as punitive damages will go to the state and not to the victim. Specifically, Oregan law requires that 60 percent of the punitive damages awarded by the jury go to the state crime victims compensation fund. The verdict is believed to be the largest such award against the organization.
The jury found that the conduct of the Boy Scouts of America was not only negligent, but that its conduct was also reckless and outrageous. During a news conference, some of the jurors noted the Boy Scouts had never apologized to Lewis.
Representatives for the Irving-based Boy Scouts of America declined to comment on details of the case because other cases are pending, but issued a statement saying it maintains a “rigorous” system to screen Scout leaders. The case was the first of six filed against the Boy Scouts in the same court in Oregon, with at least one other separate case pending.
Lawyers for the victim pointed to the fact that the Boy Scouts are nearly a $1 billion corporation that could well afford punitive damages and that such damages would serve as an incentive to deter them from similar conduct in the future. Boyle said from 1984 through 1992, the Scouts were sued at least 60 times for alleged sex abuse with settlements and judgments totaling more than $16 million
During the first phase of the trial, Clark and Mones introduced more than 1,000 files the Scouts kept on suspected child molesters from 1965-85 as evidence the organization should have put a sex abuse prevention program into place decades ago. The Scouts executive now in charge of those files admitted they had never been evaluated or analyzed to help design or determine the effectiveness of a prevention program that is now in place. A number of witnesses testified for the Scouts during the second phase of the trial that they participated in a training and prevention program since at least the late 1980s, but none of those witnesses could explain why the Scouts had not yet made the “youth protection training” program mandatory for its organization.
Sadly, this case points out that it often times takes a lawsuit and a punch to the pocketbook of a corporation before the organization will actually start do the right thing. These organizations, regardless of whether it is the Boy Scouts, a church, a day car, a massage clinic, or some other business, must be held accountable for the people they hire, supervise and retain. They have a duty to conduct thorough background checks. They have a duty to supervise their representatives, and they have a duty not to continue to retain people they know or should know are engaging in inappropriate contact. Hopefully, this case sends a clear message to the Boy Scouts that the protection of all of its scouts is their first responsibility.
Whether it is a case against the Boy Scouts of America, or some of the recent pedophile allegations against the Catholic Church or a local day care center, all of these organizations have a duty to safeguard our children. For years, the Boy Scouts of America has been defending case after case of alleged sexual abuse of its scouts. As the lawyers for the victim in this case pointed out, often there is an air of silence surrounding these incidents and an effort to try to sweep them under the rug. While these organizations are no doubt filled with numbers of great people and great success stories, in the end, these organizations still need to be held accountable for their failures.
TOYOTA EXPECTED TO PAY RECORD FINE OF $16.4 MILLION | Dallas, Texas Personal Injury Attorney Blog
Toyota faces a deadline today to file a contest to the nearly $16.4 million fine issued by the Department of Transportation over evidence it knew about sticking gas pedals in September but did not issue a recall until January. Under federal law, automakers are required to notify the government within five business days when they find a potential safety defect.
The fine, announced by the Transportation Department April 5 is the largest civil penalty ever against an automaker. Toyota Motor Corp. is expected to agree to pay the fine, the largest government penalty ever levied against an automaker, for Toyota’s four-month delay in telling federal authorities about defective gas pedals on its vehicles. If Toyota does not file a contest, then it must pay the fine within the next 30 days. However, even if Toyota pays the fine, it is not agreeing that the payment of the fine constitutes and admission of liability over these problems.
Transportation Secretary Ray LaHood said early this month that documents obtained from the Japanese automaker showed that Toyota knew of the problem with the sticking gas pedals in late September 2009, but that Toyota did not issue a recall until late January, 2010. The sticking gas pedal recall involved approximately 2.3 million vehicles. “We now have proof that Toyota failed to live up to its legal obligations,” Secretary LaHood said in a statement. “Worse yet, they knowingly hid a dangerous defect for months from U.S. officials and did not take action to protect millions of drivers and their families.” The National Highway Traffic Safety Administration (NHTSA) said documents provided by Toyota showed the automaker had known about the sticky pedal defect at least since September 29, 2009, when it issued repair procedures to distributors in 31 European countries to address complaints of sticking pedals, sudden increases in engine RPM and sudden vehicle acceleration. The documents also showed that Toyota knew that owners in the United States had experienced the same problems. For those reasons, LaHood said, the government is a seeking fine of $16.375 million, the maximum penalty possible.
The government has linked 52 deaths to crashes allegedly caused by accelerator problems in Toyotas. The recalls have led to congressional hearings, a criminal investigation by federal prosecutors, 100 personal injury and wrongful death cases in federal courts lawsuits as well as 138 potential class action lawsuits, and an intense review by the Transportation Department. The company has been named in 138 potential class-action lawsuits over falling vehicle values and about 100 personal injury and wrongful death cases in federal courts. Federal prosecutors and the Securities and Exchange Commission are conducting investigations related to the recalls.
Transportation officials have not ruled out additional fines. The department is reviewing whether Toyota also failed to comply with notice requirements by delaying for about six weeks before issuing the January, 2010 recall of the 2009-2010 Venza in the United States to address floor mats that could entrap the accelerator pedal after making a similar recall in Canada. Toyota recalled the Venza in Canada in December and reported to the U.S. government on December 16, 2009 that the floor mats could move forward while the vehicle is in use and “may interfere with the accelerator pedal.” Toyota told U.S. authorities at the time that the floor mats in question were not imported into the U.S. but the Venza was added to the floor mat recall in late January.
Obviously, this chapter in Toyota’s history is far from over as it continues to face mounting scrutiny of its products and its disclosures to consumers and to federal officials. There is no dispute that historically, private lawsuits have been a major positive influence in forcing manufacturers to make safer products. Even when the government is conducting its own investigation, as it is in this case, private lawsuits often uncover even more evidence and facts that the manufacturer was aware of the defects and the dangers of its products. As a result, the individual lawsuits against Toyota pose a real threat to Toyota if it has not fully and truthfully disclosed all of the information it has. We will continue to monitor the developments and periodically update you on some of the significant events.
Montes Law Group, P.C.
Attorneys: Rachel Montes
1121 Kinwest Parkway, Suite 100
Irving, Texas 75063
Telephone (214) 522-9401
Facebook at Montes Law Group, P.C.
Warning About Amputation Hazards With Dog Leashes | Dallas, Texas Personal Injury Attorney Blog
In 2007 there were 16,564 hospital-treated injuries associated with leashes, according to Consumer Union’s analysis of statistics collected by the Consumer Product Safety Commission. Of those, about 10.5 percent involved children 10 and younger; 23.5 percent involved injuries to the finger. The CPSC’s data does not parse the leashes into types but it’s likely that the amputations were caused by retractable leashes.
The most common injuries reported were burns and cuts, usually sustained when the cord came in contact with skin as it rapidly paid out from the handle of a leash. Others occurred when the cord got wrapped around part of the owner or the dog.
The Consumer Product Safety Council (CPSC) has announced only one recall of retractable leashes in recent years. Last September 223,000�@”Slydog” brand retractable leashes were recalled after several complaints were received by the agency about the metal clip breaking and flying off.
The following story is a reminder of how dangerous some of these dog leashes are.
Heather Todd didn’t bring a leash with her the day she took her pooch Penny to a pond near Boston in 2005. So she borrowed a retractable dog leash to help keep her Labrador retriever in check.�@But it didn’t. The 90-pound dog suddenly took off running and dragged Todd across the sand.
When she came to a stop and recovered her wits, she spotted something lying on the sand. With horror, she realized it was a human index finger; with greater horror, she realized it was her own. The cord of the retractable leash had looped around her finger and pulled taut when Penny bolted.
“It just cut it off like a sharp knife,” Todd says.
She wrapped her hand in a towel, grabbed the finger, and headed to the hospital, but doctors were unable to reattach it. Todd, who’s now in nursing school, says there are times when her missing finger causes problems. “I get by. You just adjust,” she says.
Todd’s story may sound like a freak accident, but retractable leashes are responsible for a surprising number of injuries each year, including amputations. Todd sued the maker of the leash as well as the distributor, as have others who have been injured by retractable leashes. Todd told us that the company settled her case for an undisclosed amount.
Cheerleaders Punished for Serving Cokes With Urine | Dallas, Texas Personal Injury Attorney Blog
Eagle Mountain-Saginaw Independent School District spokeswoman Kristin Courtney indicates that cheerleaders involved in the incident in which other cheerleaders were served cokes spiked with urine have been disciplined. Supposedly, two of the cheerleaders involved received in-school suspensions while others received lesser penalties. Due to privacy laws, the names of the cheerleaders involved have not been released.
According to school officials, “What we found was that there were a group of girls that had urinated in a cup and enticed others to drink it. In addition, the girls will not be allowed to take part in cheerleading events through the end of the school year.
Because of federal privacy laws, the school district is not releasing more details about the incident. Thus, it is not clear if this incident was hazing or very poor judgment or some form of retaliation. Hazing is certainly not limited to college fraternities. Each year, hazing incidents across the nation. Those incidents involve both boys and girls and those incidents occur at universities, military institutions, high schools and occasionally even at a junior high school or middle school level. In addition, hazing incidents often extend beyond the fraternity or sorority organizations and frequently involve students involved in high school athletics such as football, basketball, baseball and other sports teams, and even cheerleaders and other groups.
Hazing is illegal in Texas as well as most other states. As a result, if this incident does involve hazing those involved are subject to criminal prosecution and to civil lawsuits.
Montes Herald Law Group, LLP
Attorney: Rachel Montes
1121 Kinwest Parkway, Suite 100
Irving, Texas 75063
(214) 522-9401
Facebook “Montes Herald Law Group”
PRIVACY IN THE WORKPLACE: SENDING PRIVATE EMAILS ON COMPANY COMPUTERS | Dallas, Texas Personal Injury Attorney Blog
How private are the emails you send from a company computer. The answer should scare you if you think the email you are sending from work is private. The New Jersey’s Supreme Court has ruled an employer was wrong in retrieving e-mails between a former employee and her attorney, even though they were sent from a company computer.
The unanimous decision published in Stengart v. Loving Care Agency is believed to be the first of its kind to reach a state Supreme Court. While the Court’s ruling makes it clear that just because a person is using a company computer doesn’t mean they leave all their rights to privacy at the door, don’t be so sure that the next email you send on a company computer or a company email account will be private.
Marina Stengart filed a lawsuit in 2008 against her employer, Loving Care, a northern New Jersey company that provides home-care nursing and health services, claiming discrimination based on gender, religion and national origin. Before Stengart left the company, she exchanged several e-mail messages with her attorney from a company-provided computer, but from her personal email account through Yahoo.com. The account was password-protected
Loving Care hired computer experts to retrieve the private emails between Stengart and her attorneys and then used those emails in preparing to defend the lawsuit Stengart filed against Loving Care. In court, the attorneys for Loving Care cited the statements in the company’s employee manual which states that e-mail communications “are not to be considered private or personal to any individual employee” and that Loving Care reserved the right to “review, audit, intercept, access, and disclose all matters on the company’s media systems and services at any time.”
The trial judge sided with the employer, but the Court of Appeals reversed the trial court’s decision and ordered the company to turn over all copies of the e-mails and to delete any record of them. In affirming the appellate decision, Supreme Court Chief Justice Stuart Rabner wrote that while a company has a right to establish policies governing computer use – and to discipline employees who violate them – even a stated policy that an employer could read an employee’s attorney-client communications would be unenforceable. “Employers have no need or basis to read the specific contents of personal, privileged, attorney-client communications in order to enforce corporate policy,” This decision provides some limitations on the rights of the company to access and to review and to act upon emails sent by its employees. But if the emails at stake were not private emails with her attorney, the Court would likely have not protected the employee, and the company could very well have take disciplinary action against the employee without ever informing the employee of the reasons for its decision.
Attorney Peter Frazza, representing Stengart, said the ruling preserved the sanctity of the attorney-client privilege. “When people come to lawyers, they have to know they can speak honestly and candidly with them,” he said. The Supreme Court found that even though Loving Care’s attorneys didn’t illegally hack into Stengart’s computer account, they violated rules of professional conduct by reading the e-mails and not promptly notifying Stengart and her attorney. A lower court will decide what penalties the law firm could face, which include monetary sanctions and possible disqualification from the case.
Even though the employee eventually won in this case, the real message in this case is clear.
If you want to keep your emails private, use your own personal computer and a private email account, not an account that your employer provides. In this case, the employee eventually won, but in reality she lost a lot. Her opponent was able to retrieve access to her private emails and to disclose those to her previous employer that she was suing.
Employees need to understand that emails they send may not be as private as they believe.
Everyone should protect their email accounts and computers with a password as this is an objective indicator that the emails are intended to be kept private.
Employees should not use any company supplied computer or company email accounts to send private emails.
Employees should not even send private emails on a company computer through private email accounts as those are likely to be read by an employer.
Even though the Court eventually sided in her favor, Ms. Stengart’s private communications were eventually declared to be private because they were a uniquely private communication, a communication with her lawyers. It is very likely that the Court would have reached a different result if the emails at issue were emails to a friend.
It will be interesting to follow this case as it continues on and to see what type of disciplinary action is taken against the company’s attorneys for obtaining the emails, using them against the employee and for not immediately disclosing this information as our legal system is designed to prevent that type of behavior by attorneys.
If you value your private communications, take the time to send your emails and text messages from your own privately owned computers and email accounts.
Montes Law Group, P.C.
Attorney: Rachel Montes
1121 Kinwest Parkway, Suite 100
Irving, Texas 75063
Telephone (214) 522-9401