Under certain circumstances, Florida law affords the victim of a rear-end car accident the presumption that the other driver is at fault for the crash.  Specifically, Florida has adopted a rebuttable presumption that a rear driver’s actions are the sole proximate cause of an accident and any resulting in injuries in the case  Clampitt v. D.J. Spencer Sales.

To rebut the presumption of negligence, the rear driver must present evidence that “fairly and reasonably tends to show” that the presumption is misplaced.  Evidence that the lead driver stopped suddenly would not be sufficient to rebut the presumption, however, evidence that the lead driver stopped “at a time and place where it could not reasonably be expected by the following driver” would be.

The Florida rear-end presumption recently became an issue in the case of Arce v. Mullane, decided by the U.S. District Court for the Middle District of Florida.  In Arce, the plaintiff was injured in a rear-end collision and sued the defendant for negligence.  The plaintiff filed for summary judgment, relying on the Florida presumption to establish that the defendant had been negligent.

The District Court denied the motion for summary judgment, concluding that the plaintiff could not merely assert that she had been rear-ended and rely upon the presumption to prevail.  Specifically, the Court held that the plaintiff was required to produce some factual evidence supporting a claim that the accident had occurred under circumstances entitling her to the presumption.

Apparently, the plaintiff failed to attach any affidavits to or reference any deposition testimony in her motion for summary judgment, a fact which the defendant seized upon in his response.  The defendant argued that, because the plaintiff failed to support the motion with any factual evidence, she had failed to carry her burden of proof.  The plaintiff later responded by filing an affidavit restating her earlier arguments which the Court declined to consider.

According to the Court, there was “essentially no evidence…on which to consider the motion – only the parties’ dueling arguments” and based on the “meager record, lacking in any evidence describing the circumstances of the accident” the Court concluded that there were material facts in dispute.  The Court criticized that the plaintiff’s “motion, citations of authority, and efforts to provide evidentiary support [were] woefully insufficient to a consideration of the requested relief under the most liberal view of Rule 56.”

Unfortunately, rear-end collisions are some of the most  common types car accidents that occur on Florida’s roadways and can result in serious injuries, even at low rates of speed.  Further, as demonstrated by the Arce case, liability is not always as clear cut as it might initially appear.

Liability if often one of the most contentious issues that can arise with regard to a motor vehicle accident.  The Miami car accident attorneys of Gerson and Schwartz, PA have extensive experience representing individuals who have been injured in car accidents.  If you or someone you know has been injured in a rear end collision, or by the negligence of another, contact a Miami, Florida personal injury attorney at Gerson and Schwartz, P.A. toll free at 1-877-475-2905.

In a shocking announcement earlier this week, the National Transportation Safety Board released a proposal arguing that all states, including my home state of Minnesota, should decrease the legal limit for alcohol consumption. The proposal by the federal agency would lead to potentially major changes in what qualifies as legally acceptable social drinking.

The NTSB specifically issued a recommendation that all 50 states drop their hurdle for what qualifies as impaired driving from the current 0.08 percent BAC. This figure is currently the legal limit in all 50 states and also many other countries across the world. The number has long been seen as a fairly accurate barometer for the level at which most drivers are unable to safely operate a motor vehicle.

Unhappy with the thousands of deaths that result from drunk driving each year, the NTSB felt that only by lowering the legal limit even further could police really make headway in tackling the problem. As such, the NTSB says that states should lower the legal limit to 0.05 percent BAC. The NTSB says it hopes such a low level of blood alcohol content will help achieve its goal of ending the practice of drunk driving in the United States entirely.

The agency says that it believes that by lowering the BAC to 0.05, the U.S. could see between 500 and 800 fewer deaths each year on the nation’s roadways. They say that countries across Europe have embraced the lower alcohol limit and seen their drunk driving death rates cut in half as a result.

Talking about drunk driving in terms of percentages can be difficult for most drivers to wrap their minds around. To put things in slightly more practical terms let’s look at what the NTSB’s recommendations might mean to a man or woman out for a drink on a Friday or Saturday night. Currently, a 180-pound man would have to consume around four drinks in under an hour before reaching the 0.08 legal limit. That changes substantially at the recommended 0.05 percent BAC level. The same 180-pound man could consume between two and three drinks in an hour before reaching the limit. The number of drinks drops for thinner men and women. Studies indicate that a 160-pound man could only have two drinks before topping out while a 120-pound woman would reach 0.05 after only one drink.

The problem with this logic is that the agency is ignoring how individualized people’s responses to alcohol are. While it is true that some drivers might show signs of impairment at a 0.05 percent level, there are many others who do not. Moreover, there are also drivers who would demonstrate signs of impairment at levels even lower than 0.05, but that should not be taken as an excuse for lowering the legal limit for everyone else to such a level. The one size fits all approach to drunk driving ignores the differences in each motorist and has led to many thousands of people dealing with the expense and embarrassment of a DWI conviction when they were perfectly safe to operate a vehicle. By lowering the current limit even further, the chance of safe drivers being unnecessarily swept up in police enforcement efforts would only increase.

Related Source: “One drink DUI? Feds want lower threshold for drunk driving,” published at FoxNews.com.

Labeled by the U.S. Government as the largest drug-safety settlement to date with a generic drug manufacturer; Ranbaxy Laboratories has just pled guilty to three felony counts under the Food, Drug, and Cosmetic act, and four felony counts of of providing false statements to the United States Food and Drug Administration.

The company failed to conduct proper safety and quality tests of several drugs that were manufactured in the Indian plants. These generic drugs were manufactured in Paonta Sahib, and Dewas India. The major drugs involved in this case were the generic versions of Gabapentin, Sotret, and Ciprofloxacin. This is a great cause for concern because compared to the plants in the United States which are inspected by the F.D.A. once every two years, plants over seas are inspected about once every seven to thirteen years. It has been proven between June and August of 2007, certain batches of medications had tested positive for “unknown impurities” and had unreliable shelf lives. Ranbaxy waited two months until October of that year to report these impurities.

Arun Sawhney, the chief executive officer stated that “today’s announcement marks the resolution of this past issue… We are pleased to continue bringing safe, effective, and quality medicines to market for the benefit of consumers in the U.S. and other parts of the world.” However, last November Ranbaxy had to halt production of generic Lipitor because glass particles had turned up in pills that were being distributed to the public. This problem was traced back to another plant in India who was found to have a cracked glass lining in a tank used for production of the drug. They fixed the issue and were allowed to resume manufacture in February.

Ranbaxy settled the case for $500 million that they had already set aside in the anticipation of a lawsuit. The company paid a criminal fine of $150 million and paid $350 million to settle civil claims. The whistle-blower, as former Ranbaxy executive who alerted the federal government of these problems will receive close to $49 million as compensation.

Although we’ve previously blogged about a previous case involving a DWI on a horse out of Kentucky, a more recent article discussed the case of a Montana woman who set out one night drunk, on horseback and also ended up behind bars facing DWI charges. The article says the Billings woman’s rough night began late one the evening when she decided to ride through the middle of town on her horse, obviously intoxicated. The police were called in to deal with the situation and asked her to return to her house several blocks away.

When she arrived back at home the woman, Dawnalee Ellis-Peterson, was apparently riled up and decided to call the police department to give them a piece of her mind. She yelled at the operator about how she ought to be allowed to ride around on her horse without getting pulled over. Not long after the call, an officer was sent to the house to check on Peterson. When the officer arrived, Peterson refused to come to the door, instead yelling that she was drunk and needed to be left in peace. The officer did as she asked and left.

Sadly for Peterson, she decided to yet again venture outside her home before sobering up. This time, rather than hop on her horse, she jumped in the cab of her pickup truck. It did not take long for a neighbor to report her to the police who picked her up down the road and charged her with felony DUI.

Shockingly, this was not Peterson’s first brush with the law while operating a horse. Back in 2004, police say she was arrested for disorderly conduct for riding a horse in the same area while topless and drinking a can of malt liquor.

If you’ll notice, Peterson’s previous arrest was not for drunk driving, but instead for disorderly conduct. That’s because in Montana, the definition of a vehicle specifically excludes any form of transportation that is powered by an animal. That means that Peterson would have again avoided a drunk driving charge had she simply hopped back on her horse rather than in her pickup.

The whole drunken horse-riding situation might lead you to wonder what would happen if Peterson had been in a state like Minnesota, what do the laws in other states say about such intoxicated equestrian displays? Minnesota law (Minnesota Statutes 169A.20) defines a DUI as driving or physically controlling a motor vehicle while under the influence. The statute specifically refers to a motor vehicle as a machine that is “self-propelled” including those moved by combustion engines, electric power and even overhead trolley wires. The law excludes those things that are moved solely through the use of human power or exertion, such as a bicycle.

This means that while Minnesota’s law is not as clear as Montana’s, it seems fairly certain that a horse does not qualify as a self-propelled motor vehicle. Given the lack of a motor, electric or otherwise, it is likely a stretch that a prosecutor would ever try to press drunk driving charges on someone riding a horse. Just because you likely won’t be convicted with a DUI does not mean riding around on a horse drunk is a good idea. After all, you might face other charges such as public intoxication or disorderly conduct, just like Peterson in her 2004 incident.

Source: “Billings woman sent home for riding horse drunk later charged with DUI,” by Greg Tuttle, published at Missoulian.com.

You said you would always be mine

Just like the common cold, pretty much everyone has had Bieber fever, but apparently people are immune to the epidemic. Two songwriters, Devin Copeland and Mareio Overton, filed a complaint in U.S. District Court in Virginia against the pop star. Justin Beiber and Usher are facing a $10 million lawsuit for supposedly stealing song “Somebody to Love.” Back in 2009, Copeland and Overton claim that “Somebody To Love” was presented to Usher and Jonetta Patton, Usher’s mother, who also plays the role of his manager from time to time, by music scouts. They state that copy was never returned and that they never heard back from Jonetta or anyone associated with the company.

Usher first recorded a demo track and first and uploaded it to YouTube, but then decided to use it as Justin’s single. When “Somebody to Love” was released, it went to number 15 on the charts and instantly became a hit. Overton first heard the song on the radio and immediately contacted Copeland and to inform him of the situation.

According to an article by Annie Youderian in the Courthouse New Service, Copeland and Overton want Beiber, Usher, his mother, the Stereotypes and a slew of music companies to pay $10 million plus punitive damages for direct and vicarious copyright infringement. Overton and Copeland will not settle unless proven in court that they deserve less and have facts and statistics to prove what they deserve.

“There is essentially a zero probability for the number of points of congruence between the two versions of ‘Somebody to Love,’” Copeland and Overton said. As for Justin Bieber’s stance on the complaint, he has been informed but no official statement has been released. In the music business, copyright suits are not uncommon and can vary from a big payout or can easily be dismissed.

Can I Kick It?

A man in New Mexico is suing his company after some co-workers placed a “Kick Me” sign on his back. Harvey Palacio of Albuquerque, NM has filed a lawsuit against Intel Corp. seeking damages related to harassment in the workplace. According to the suit, Palacio had the prank pulled on him and was subject to repeated kicking in the backside during a day of work. Palacio, a Filipino man, believes that this was racially motivated and put forth in an attempt to get him to quit the company. Two of the employees involved have already been fired by Intel and also charged with petty misdemeanor battery.

According to the lawsuit, Harvey Palacio was going about his business in the workplace when a few of his fellow employees began to randomly kick him. He eventually caught on to the prank and went to senior staff member Randy Lehman with the issue. It was at this point that Lehman requested for his own employee to turn around, at which point he proceeded to strike him in the rear with his foot “about 3 times, and hard”. Palacio was so embarrassed by the situation that he broke down crying on the way home from work and hid the ordeal from his wife in order to avoid the shame. While Intel has yet to publicly comment on the matter, the firing of both Randy Lehman and Chris Zeltinger seems to point toward restitution.

This case gives a very negative spin on the idea of staying young at heart. The thought process behind kicking a grown man in the workplace, especially as a prank, is very hard to comprehend. A joke stops becoming a joke when both parties are not laughing or can not see the “humor” in the act itself. There seems to be a malicious nature behind the act, and while one would hope it was not racially motivated, it seems that Mr. Palacio was being targeted for one reason or another. On the flip side of the coin, it is remarkable that you are now able to file suit on someone for something so silly and childish. With respect to Harvey, you would hope there are more serious issues to be discussed in the courtroom.

“I have run, I have crawled, I have scaled these city walls…”

Spider-Man has always been much more familiar with spandex suits than lawsuits.  The Broadway play ‘Turn Off the Dark’ is slinging across headlines after the old co-writer and musical director Julie Taymor is suing over copyright infringement.  She is seeking compensation up to $1 million after being terminated after the show suffered from freak injuries and other mishaps.  It was believed that a decision could be reached, however sources claim the final stumbling block was creative control over Marvel’s web-head himself.  U2′s Bono and The Edge, who are the show’s composers, are also set to appear for the court date in New York, officially set for May 28.

Julie Taymor is seeking sizable royalties from the most expensive show in Broadway history, which is understandable considering she was instrumental in the show’s creation. Members of the Irish rock quartet U2 worked closely with Taymor to develop the songs and themes based around Peter Parker’s heroic battle as the masked super-hero.  Spider-Man: Turn Off the Dark remains to be one of the most talked about plays on all of Broadway, regardless of the fact that it is barely operating at a profit.  Operating costs per week are slightly less than $1 million, which is about what the show’s revenue is as well.

I often think that if a Broadway play were designed specifically for me to enjoy it, it would be this show.  Not only am I a Spider-Man aficionado (I grew up watching the cartoons), U2 is also my favorite band.  New York is no stranger to expensive operating costs and lawsuits, and Bono himself has been in a courthouse or two in his lifetime, so there are some pretty common themes in this lawsuit.  I’m just not sure Taymor has any claim to the money here; I would think her initial agreement to produce/direct would’ve had royalties included.  If not, then I think her issue should be with whoever drew that contract up on her behalf.

A recent investigation by the local Minneapolis CBS affiliate discussed the dangerous trend of morning drunk driving arrests. While everyone knows about the thousands of people pulled over by police officers each year for impaired driving, many people who understandably assume these arrests take place on the weekend and late at night.

While it is true that the majority of arrests take place overnight, a surprisingly large number happen during daylight hours, when many people least expect to encounter a drunk driver. However, just because the public may not expect to meet a drunk driver does not mean police are not aware of the trend, in fact, some interviewed in the article begin their shifts specifically by looking for day drunk drivers.

WCCO, a local news station, spent several days following along with police officers in Eagan, MN who said that looking for impaired drivers is one of their main responsibilities. Several also explained that part of that job entails watching out for drunk drivers during the daytime. One officer interviewed in the piece said his strategy is to simply drive around town and keep an eye out for erratic or overly cautious motorists.

Another officer had a more strategic plan for catching day drunk drivers. The officer told reporters that he likes to drive through several busy areas where such impaired drivers might be lurking. At the beginning of every shift the officer does a loop through restaurant and bar districts, checking to be sure that no one is asleep in their cars. At the same time the officer watches for people who appear to be heading to pick up their vehicles from the night before. The officer admitted that even people who made the responsible choice and took a cab home the night before may not yet be totally sober and that they are sometimes targets for daytime stops.

Officers agreed that morning drunk drivers often fall into one of two categories: chronic alcoholics who never stop drinking and those who get back behind the wheel too soon after a wild night, before the alcohol has had a chance to totally wear off.

In the past year, the Minnesota State Patrol says its officers have made nearly 6,700 drunk driving arrests across the state. Of that total, five percent took place between 5 in the morning and 11 a.m. Officers say they are now trying to educate the public about the danger of morning drunk driving to encourage the public’s help in spotting dangerous drivers.

Erratic driving during the day seldom warrants much attention from motorists while that same behavior at night might prompt drivers to call 911. Police say they hope that people realize the danger of morning drunk driving and that concerned drivers report erratic behaviors to law enforcement agencies. State Patrol says that such tips from worried drivers are a crucial component of their DWI enforcement strategy and account for between 25 and 30 percent of all DWI arrests.

For additional information on this topic or other subjects related to DWI and alcohol driving offenses, please visit us at www.kanslaw.com.

Source: “MN State Patrol: Report Morning Drunk Drivers,” by Rachel Slavik, published at Minnesota.CBSLocal.com.

I have little doubt that Ms. Witherspoon is a nice person and truly regrets this ordeal, but the whole incident serves as an example of how people should not behave when pulled over on suspicion of drunk driving or any other traffic stop. Now, there may be certain legal issues to the validity of a traffic stop, but that should be addressed later through counsel not litigated between you and the officer on the side of the highway. This generally never ends well for the driver or passenger.

The incident took place on a Friday night, just after midnight when an officer saw the couple’s rented Ford Fusion driving erratically down a major artery in the city. The car repeatedly drifted in and out of the designated lane, prompting the officer to pull the two over for questioning. The officer asked Witherspoon’s husband, James Toth, who was driving at the time to step out of the car after he admitted having had several drinks that evening. Toth agreed to perform a series of field sobriety tests which he had difficulty with, ultimately failing the tests. A later breath test found that Toth had a BAC of 0.139, more than enough to face drunk driving charges.

While all this was going on, Witherspoon was behaving belligerently from the front seat. Not content to sit quietly as she was asked, the actress kept arguing with the officer. Several times Witherspoon attempted to get out of the car and approach the officer, despite repeated orders by the officer to remain in the car, fearing for his safety. Witherspoon yelled at the officer that she was a “U.S. Citizens” and was thus “allowed to stand on American ground.” After yet another attempt to confront the officer, Witherspoon was placed in handcuffs and arrested, reportedly asking the officer, “Do you know my name?” and later telling him that he was now going to be on national news. Witherspoon was ultimately arrested and charged with disorderly conduct.

The incident was regrettable on everyone’s part and never needed to get as contentious as it ultimately became. Following a few simple rules would have avoided the escalation and would have meant that Witherspoon never had to be arrested at all that evening. If you or someone you are driving with has been pulled over on suspicion of drunk driving, never ever argue with the officer. Attempting to threaten or intimidate the officer with violence or your status in the community will not only fail to resolve the situation, but likely make the matter much worse.

As Witherspoon found out, it is possible to face charges other than a DWI during a drunk driving stop, even as a passenger. Though Witherspoon’s attorney was able to negotiate a deal with prosecutors in Atlanta to ensure that the actress would go through a pre-trail diversion program and thus avoid having a conviction on her record, not everyone will be so lucky or well connected.

Just a few months ago I brought you a story about how one Minnesota man had his drunk driving charges dismissed after the Minnesota Court of Appeals found that a Segway was not considered a motor vehicle under state law. Though a Segway may not qualify, a new case is testing the limits of that definition.

The case involves a man who was arrested in Lakeville, MN earlier this month. The man stands accused of driving drunk on an electric scooter. Police say that they received a call late at night from someone who wanted to report that a man on a scooter had hit a parked car. Police have not released details about the specifications of the scooter, other than that the scooter was powered by gasoline.

When police arrived at the scene of the accident, they located the 46-year-old man who was swaying back and forth next to the scooter. He appeared intoxicated to the officers on the scene and admitted to having consumed two vodka-based drinks. He denied ever riding the scooter, another detail that police officials have not yet responded to.

The police administered a breathalyzer test to the suspect at the scene and discovered that he had a BAC of 0.19. He was then arrested and charged with two counts of first-degree DWI, a felony under Minnesota law. If the defendant is convicted, he faces up to seven years behind bars and a fine of up to $14,000, no small matter for someone who is accused of driving a scooter. A spokesperson for the local police department says that the defendant has been convicted of drunk driving and had his license revoked for other alcohol violation four separate times since 2005.

A similar issue has arisen before, in 2011, when the Minnesota Court of Appeals ruled that a handicapped person who relied on a motorized disability scooter to get around could not be found guilty of DWI despite operating the scooter with a BAC above legal limits. In that case, the Court of Appeals overturned the conviction of James Brown who had been charged with drunk driving his scooter down the sidewalks of Grand Rapids. The Court of Appeals decided the scooter, which topped out at six miles per hour, was not a motor vehicle, in part because a driver’s license is not required to operate it.

Exactly what kind of scooter was in use in this case has not yet been revealed, which may differentiate the current case from Brown’s. However, other states including Florida, allow scooters that go as fast as 20 miles per hour to fall under the classification for a “low speed electric bike” and thus do not require a license to operate. In fact, one company in Clearwater has begun marketing the electric bikes as “DUI scooters” and has appealed to those who have had their licenses suspended because of alcohol charges. The company says the bikes represent the perfect legal way for drunk drivers to continue to get around without the benefit of a driver’s license.

For more information on what may be defined as a motor vehicle and other information about DWI related matters, feel free to contact us.