SEVERAL DEATHS ON AREA LAKES OVER MEMORIAL DAY HOLIDAY SHOW THE IMPORTANCE OF WATER SAFETY | Dallas, Texas Personal Injury Attorney Blog

Each year, the Memorial Day Weekend marks that beginning of summer and a substantial increase in lake activities in the area. Sadly, this year, like many previous years, the holiday has been marked with several deaths on local lakes.

Sunday night, two personal watercrafts collided on Eagle Mountain Lake and killed two people. The crash occurred about 8:30 p.m. on the southwest portion of the lake near Azle. Two men on a personal watercraft collided with another personal watercraft operated by a man who had a female passenger. The man and woman on the same watercraft were killed. The man was identified as Richard Minnaar, 22, of Keller, according to the Tarrant County medical examiner’s office. The woman’s identity had not been released Monday afternoon. “The investigation into the cause is still pending,” Lorance said.

Anyone who has ridden a personal watercraft knows how much fun these machines can be to operate, but they still require a level of skill and control that some people fail to appreciate. Because these machines have the ability to rapidly accelerate, and despite the fact that they look like a motorcycle, they do not brake or steer like a motorcycle. Therefore, stopping quickly or trying to make an emergency maneuver on a personal watercraft or jet ski can be very difficult for inexperienced riders. As a result, many lakes control not only the areas where personal watercraft can be operated, how those personal watercraft can be operated, and how much distance operators are required to keep between themselves and other watercraft, swimmers and the shore.

Although the reports on this incident have not given any indication if alcohol is suspected to have played a part in this collision, it is not uncommon for boating accidents to be an alcohol-related event as many people see going to the lake as an excuse to drink. However, Texas law makes boating while intoxicated just as illegal as driving while intoxicated, and being at the lake does not shield someone from being charged with public intoxication. Read our blog on Boating While Intoxicated for a brief review of some of the laws affecting alcohol consumption.

Sadly, there were two other deaths on area lakes these weekend.

Ricky Frazier (22) of Irving is believed to have drowned in Lake Grapevine after jumping into the lake from a boat 100 yards off show and never re-surfacing. Investigators do not know what caused Frazier to disappear but said alcohol does not appear to be a factor. Divers were also checking conditions at the site where he jumped in.

Balint Gash (24) of The Colony also died Sunday at Lake Lewisville after jumped off a boat and never surfaced. Game Warden Neal Bieler, captain for the Fort Worth district, stressed how important it is for all people at the lake to wear a life jacket whether people think they need them or not.” And for children, the law requires children 13 and under to wear a life jacket on any watercraft at all times, and each water craft must have at least one life jacket for each person on board. Likewise, any person riding a personal watercraft without a life jacket can be charged with a Class C misdemeanor.

Rachel Montes and Tom Herald are the attorneys at Montes Law Group, PC. We are located in the Dallas Fort Worth metroplex at 1121 Kinwest Parkway, Suite 100, Irving, Texas 75063. Telephone (214) 522-9401. Visit our website at www.Monteslawgroup.com and our Facebook at Montes Law Group, PC. to learn more about current events and issues that may affect you.

SUPREME COURT SAYS SPEAK UP TO INVOKE YOUR RIGHT TO REMAIN SILENT | Dallas, Texas Personal Injury Attorney Blog

SUPREME COURT SAYS SPEAK UP TO INVOKE YOUR RIGHT TO REMAIN SILENT

By Rachel E. Montes posted in Recent Court Decisions on Monday, May 31, 2010

The Supreme Court of the United States of America has ruled in the case of Berghuis v. Thompkins that criminal suspects must explicitly and unambiguously tell police they want to invoke their right to remain silent. We have all heard the Miranda warning on police shows and movies. It is the first warning that is given to a suspect once the suspect is placed in custody.

In 1966, the Supreme Court ruled in Miranda v. Arizona that the Fifth Amendment and Sixth Amendment rights of Ernesto Arturo Miranda had been violated during his arrest and and questioning in connection with charges of rape and kidnapping. Interestingly, Miranda was subsequently retried, found guilty and sentenced to 20-30 years even with the Court having thrown out his statements that were obtained during the questioning by police.

The Supreme Court did not specify the exact wording to use when informing a suspect of their rights. However, a basic Miranda warning has become standardized so that police know that the suspect has been properly advised of his or her rights. The typical Miranda warning is as follows:

You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be appointed to you. Do you understand these rights as they have been read to you?

The right to remain silent and a right to a lawyer are the first part of the Miranda rights warnings, and are considered to be the most fundamental parts of the rights persons have under our Constitution against self-incrimination. But the 9 Supreme Court Justices ruled in this 5-4 split decision that suspects must tell police they are going to remain silent and must tell the police to stop an interrogation, just as they must tell police that they want a lawyer.

The ruling comes in a case where a suspect, Van Chester Thompkins was arrested for murder, and remained mostly silent for a three-hour police interrogation before implicating himself in a Jan. 10, 2000, murder in Southfield, Mich. He appealed his conviction, saying that he invoked his Miranda right to remain silent by remaining silent.

During a three hour interrogation of Thompkins, officers acknowledged that Thompkins said little during the interrogation, occasionally answering “yes,” “no,” “I don’t know,” nodding his head and making eye contact as his responses. But when one of the officers asked him if he prayed for forgiveness for “shooting that boy down,” Thompkins said, “Yes.”

Justice Anthony Kennedy, wrote that Thompkins’ decision to remain silent through most of the interrogation was not enough to invoke his right to remain silent. “Thompkins did not say that he wanted to remain silent or that he did not want to talk to police,” Kennedy said. “Had he made either of these simple, unambiguous statements, he would have invoked his ‘right to cut off questioning.’ Here he did neither, so he did not invoke his right to remain silent.”

Justice Sonia Sotomayor, the court’s newest member, wrote a strongly worded dissent, saying the majority’s decision “turns Miranda upside down.” “Criminal suspects must now unambiguously invoke their right to remain silent – which counter-intuitively, requires them to speak,” she said. More interestingly, Justice Sotomayor pointed out that unlike most constitutional rights which are strictly protected absent a clear and affirmative waiver of the right, as a result of this decision, the law will presume that all suspects have chosen to waive his or constitutional rights in the absence of a clear and unambiguous statement of an intent not to waive that right. Justice Sotomayor commented, “…suspects will be legally presumed to have waived their rights even if they have given no clear expression of their intent to do so. Those results, in my view, find no basis in Miranda or our subsequent cases and are inconsistent with the fair-trial principles on which those precedents are grounded.”

Obviously, we hope that no one ever finds themselves in a situation where they are being wrongful accused of committing a crime and being interrogated by the police, and being forced to consider whether or not to invoke the right to remain silent. However, this case has much broader implications than just the constitutional rights of a single American to remain silent when being questioned by police. For example, last month, President Obama indicated that he has asked the Department of Justice to research ways to try to peal back some of the constitutional protections given to individuals (both American citizens and international suspects) during police interrogations to better enable law enforcement agencies to investigate and to prevent terrorism. In particular, the administration is considering ways to avoid the requirement of giving Miranda warnings to terrorism suspects. However, our constitution does not currently currently make distinctions in the constitutional rights of suspects have depending upon the nature of the charges being investigated or pursued.

Rachel Montes and Tom Herald are the attorneys at Montes Herald Law Group, L.L.P. We are located in the Dallas Fort Worth metroplex at 1121 Kinwest Parkway, Suite 100, Irving, Texas 75063. Telephone (214) 522-9401. Visit our website at www.MontesHerald.com, our blog at www.MontesHeraldBlog.com and our Facebook at Montes Herald Law Group, L.L.P. to learn more about current events and issues that may affect you.

LAWSUIT CLAIMS PAMPERS DIAPERS ARE CAUSING CHEMICAL BURNS ON BABIES | Dallas, Texas Personal Injury Attorney Blog

LAWSUIT CLAIMS PAMPERS DIAPERS ARE CAUSING CHEMICAL BURNS ON BABIES

By Rachel E. Montes posted in In The News on Monday, May 17, 2010

Procter & Gamble Co is being sued by parents claiming that Pampers newly designed diapers have caused severe rashes and other skin conditions on their children. Proctor & Gamble has responded to the claims saying that they are “completely false.”

The lawsuit, Clark et al v. The Procter & Gamble Company, was filed in U.S. District Court for the Southern District of Ohio on May 11, 2010 and tracks complaints on Facebook that the new Pampers Swaddlers and Cruisers diapers with Proctor & Gamble’s new Dry Max technology appear to have caused rashes and burns on their children. In March, Procter & Gamble launched new versions of its Swaddlers and Cruisers diapers in the U.S. These diapers are thinner and use the company’s Dry Max technology to replace the paper pulp previously used.

The Consumer Product Safety Commission started an investigation this week following complaints of babies and toddlers suffering severe and persistent diaper rashes and blisters that resemble chemical burns. CPSC spokesman Scott Wolfson encouraged parents to report any problems to the agency, which he said has received only a handful of reports so far. Wolfson said the investigation is in its early stages and the agency is seeking as much information as possible. “We would like parents and caregivers to report to CPSC if they feel that their baby has been affected by this issue,” he said. “It’s so important for it to come directly to us.”

Montes Herald Law Group, LLP

1121 Kinwest Parkway, Suite 100

Irving, Texas 75063

Telephone (214) 522-9401

www.MontesHerald.com

www.MontesHeraldBlog.com

Facebook @ Montes Herald Law Group, L.L.P.

CELL PHONES & NIGHT-TIME DRIVING KILLING TEENAGERS | Dallas, Texas Personal Injury Attorney Blog

CELL PHONES & NIGHT-TIME DRIVING KILLING TEENAGERS

By Rachel E. Montes posted in Auto Accidents: Drivers Distracted by Text Messaging and Using Cell Phones While Driving on Wednesday, May 5, 2010

The percentage of teens dying in nighttime crashes is rising along with a rapid increase of cell phone use among young drivers, according to a new Texas Transportation Institute study released today. Researchers at the Texas A&M University-based institute analyzed Fatality Analysis Reporting System data collected by by the National Highway Traffic Safety Administration from 1999 through 2008, the most recent 10-year period available. Looking only at the fatal crashes where light conditions were either “dark” or “dark, but lighted,” the researchers found that the percentage of nighttime fatal crashes involving drivers 20 and older rose nearly 8 percent over the previous decade but more than 10 percent for teen drivers ages 16 to 19. This trend is happening despite the fact that the number of teen drivers involved in all and nighttime fatal crashes dropped.

Drinking while driving also fell among teens, leading researchers in College Station to conclude that teens’ unfamiliarity with nighttime driving was one of the chief contributors. “Driving at night is a common risk factor for all drivers, but it is particularly dangerous for young drivers,” the study found. “Distractions, speeding, low seat belt use and alcohol are also among the most frequently-faced dangers, but it is the nighttime risk that ranks at the top of the list for the youngest motorists on the road, primarily due to a combination of the visibility challenges caused by dark conditions, slower response time brought about by fatigue, and a lack of experience driving under such conditions.”

Cell phone use, while documented more recently as a troubling driving distraction is not always collected uniformly as a factor in police reports, the basis of the federal data examined for the study. “There is, however, substantial evidence demonstrating that cell phone use is growing rapidly (far more quickly for teenagers than it is for individuals age 20 and older) and that much of that use takes place behind the wheel,” the study’s authors wrote. “Clearly, the use of a cell phone complicates the driving task substantially for all drivers. The effects of this risk factor are compounded by the compromised vision and fatigue that characterize the nighttime driving environment, and for teenagers, the problem is further exacerbated by a lack of driving experience.”

ARLINGTON WOMAN CHARGED WITH FELONY AFTER PIT BULL ATTACK | Dallas, Texas Personal Injury Attorney Blog

ARLINGTON WOMAN CHARGED WITH FELONY AFTER PIT BULL ATTACK

By Rachel E. Montes on Wednesday, May 5, 2010

Nancy Hayes, (30), of Arlington, Texas, is the owner of two pit bulls, one of which was previously declared as “dangerous” was charged with a crime for her dogs’ recent attack on a neighbor. The victim, Robert Wallis, (66) said Hayes’ two pit bulls flew out an unlocked gate as he walked outside to his mailbox. Mr. Wallis reported that, “(There was) no warning, and every time I got halfway back up, I was pulled back down again.” The dog bit Mr. Wallis on his hand, arm, ankle and face. “All I could think of was (to) get up and keep them off of me,” Mr. Wallis was rescued by a postal service employee. Wallis says his neighbor hasn’t apologized for the attack or said anything to him since it happened April 22. As is typical for these types of incidents, the city euthanized both of the animals after this attack.

One of the same dogs had been declared dangerous last summer after it attacked another man. Following that incident, Hayes had promised to keep the animal restrained. Like most cities, Arlington has a number of local ordinances that are fairly strict about the requirements to keep dogs fenced in and on a leash.

Arlington’s City Ordinances state:

Section 4.11 Animal At Large

     A.   A person commits an offense if he fails to keep an animal he owns from being at large.

Section 8.05 Requirements for Owners of Dangerous Animals

     A.   … the owner of a dangerous animal, the owner shall:

          1. Register the dangerous animal with the Animal Services Manager and maintain current registration at all times;

          2. Restrain the animal in a secure enclosure inspected and approved by the Animal Services Manager;

         4. Microchip and register the dangerous animal for its life with a national registry, and present proof to the Animal Services Manager…..

Section 8.06 Registration

     A. The Animal Services Manager shall annually register a dangerous animal if the owner is in compliance with the owner’s requirements of Section 8.05. ….

Section 8.10 Muzzle and Restraint of Dangerous Animals

An owner of a dangerous animal shall not permit a dangerous animal to be outside the secure enclosure unless the animal is muzzled and restrained by a substantial chain or leash, no longer than six (6) feet in length, and a capable person is in immediate physical control of the leash. Such animal shall not be leashed to any inanimate object such as a tree, post, building, or other object. The muzzle shall be made in a manner that will not cause injury to the animal or interfere with its vision or respiration but shall prevent it from biting any person or animal.

 

Section 8.08 Offenses

     A. A person commits an offense if the person is the owner of a dangerous animal and the animal makes an unprovoked attack on another person outside the animal’s enclosure, and the attack causes bodily injury to the other person.

     B. A person commits an offense if the person is the owner of a dangerous dog and the dog makes an unprovoked attack on a domestic animal or domestic fowl while said dog is at large, and the attack causes bodily injury or death to the domestic animal or domestic fowl.

     C. A person commits an offense if the person is the owner of a dangerous animal or the new owner of a dangerous animal and performs an act prohibited or fails to perform an act required by this Article.

In this case, the criminal charges, however, are not based upon the city ordinances, but rather violations of Texas law. Specifically, police are charging Nancy Hayes with a third degree felony of “attack by dog resulting in serious injury.” The charge is punishable by up two to 10 years in prison. In 2007, the Texas legislature enacted “Lillian’s Law,” after Lillian Stiles, a central Texas woman who was mauled by several dogs in 2005 to hold dog owners accountable for these attacks.

While there is no doubt that even pit bulls and rotweillers can be very good and loving pets, dog owners have a responsibility to make sure that they do not let their dogs roam free and attack other people. This is particularly true when the dog has previously been declared a dangerous dog because of its vicious propensities. In Arlington, if the dog is declared “dangerous” then the dog owner must carry homeowner’s insurance in the amount of at least $100,000 to cover the damages the dog may cause if another attack occurs. However, even if the dog has not been declared dangerous, most homeowner’s policies will cover the damages these dogs cause when an attack occurs that is shown to be caused in part by the negligence of the dog’s owner.

Montes Herald Law Group, LLP

Attorneys: Rachel Montes and Tom Herald

1121 Kinwest Parkway, Suite 100

Irving, Texas 75063

Telephone (214) 522-9401

www.MontesHerald.com

www.MontesHeraldBlog.com

Facebook @ Montes Herald Law Group, L.L.P.

STARBUCKS SUED FOR CAUSING SECOND DEGREE BURNS | Dallas, Texas Personal Injury Attorney Blog

STARBUCKS SUED FOR CAUSING SECOND DEGREE BURNS

By Rachel E. Montes posted in In The News on Wednesday, May 5, 2010

A customer has sued Starbucks Corp who claims she suffered second-degree burns after being served tea that was too hot. According to the complaint, the plaintiff Zeynep Inanli was served tea that was “unreasonably hot, in containers which were not safe,” at a Starbucks store in Manhattan. The case is Inanli v. Starbucks Corp et al, New York State Supreme Court, New York County, No. 105767-2010.

The lawsuit alleges that as a result of Starbucks’ negligence, Inanli suffered “great physical pain and mental anguish,” including the burns. Retailers who serve hot coffee and tea know that when their products are served at certain temperatures, the liquid can cause severe burns to their customers. In fact, there are numerous industry studies that specifically warn businesses that serve coffee and other hot liquids to regularly check the temperature of the coffee to make sure that the temperature is safe for human consumption. These studies point out that there is an important distinction between “hot” coffee and “dangerous” coffee. These companies know or should know that coffee and tea should never be served to customers at or above certain temperatures. These studies also warn businesses that water for coffee or tea should never be warmed up in a microwave oven as the microwaves can superheat the water far beyond the point at which the water is dangerous to touch.

While many people remember the now famous McDonald’s hot coffee case because of the amount of damages the jury awarded, and it is often used as a soundbite or a punchline for people who want to claim lawsuit abuse, you do not hear these people tell the entire story of that case.

Stella Liebeck of Albuquerque, New Mexico was the customer who was severely burned in that case. Ms. Liebeck suffered full thickness burns (or third-degree burns) over 6 percent of her body, including her inner thighs, perineum, buttocks, and genital and groin areas. She was hospitalized for eight days, during which time she underwent skin grafting. Liebeck, who also underwent debridement treatments. Ask any burn patient how painful this treatment and these types of burns are, and you will know that Ms. Liebeck suffered a great amount of physical pain and suffering and mental anguish.

McDonald’s had documented over 700 complaints from customers who had been burned by McDonald’s coffee, including many who sustained third degree burns. Based on the advice of consultants McDonald’s held its coffee at temperatures ranging between 180 and 190 degrees fahrenheit, but the consultants had never evaluated the safety ramifications at this temperature. Meanwhile evidence showed that other establishments sell coffee at substantially lower temperatures, and coffee served at home is generally 135 to 140 degrees.

The temperature at which coffee is served is critical because at certain temperatures, any contact with the hot coffee to the skin will cause a burn. Plus, the hotter the coffee is and the longer it stays on the skin, the more severe the risk for a burn injury. At trial, expert witnesses testified that liquids, at 180 degrees, will cause a full thickness burn to human skin in as little as two seconds. In contrast, other testimony showed that as the temperature decreases toward 155 degrees, the extent of the burn relative to that temperature decreases exponentially. Thus, if Liebeck’s spill had involved coffee at 155 degrees, the liquid would have cooled and given her time to avoid a serious burn.

While it may be understandable that many people who have not seen the pictures of Ms. Liebeck’s injuries or who have not heard the whole story, may have an initial, negative reaction to this type of case, it is not uncommon to see that the customer, like Ms. Liebeck can suffer a massive amount of burns, endure tremendous pain and suffering just like anyone who sustains third degree burns, be forced to under painful medical procedures, and incurthousands of dollars in medical bills because of hot coffee or tea that is served at dangerously hot temperatures.

Montes Herald Law Group, L.L.P.

Attorneys: Rachel Montes and Tom Herald

1121 Kinwest Parkway, Suite 100

Irving, Texas 75063

Telephone (214) 522-9401

www.MontesHerald.com

www.MontesHeraldBlog.com

Facebook @ Montes Herald Law Group, L.L.P.