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Road Construction Injuries
Posted by: euser
July 07, 2008
Topic: Minnesota Personal Injury

With all of the road construction this time of year, an injury to a motorist who is using a roadway under construction is a distinct possibility. A construction company or contractor may be held liable if it created a hazardous environment, did not properly warn motorists of the hazard, and injury resulted.

To make a case in an action for death or injury caused by failure to properly warn of road construction hazards, a plaintiff must generally prove four elements. First, the plaintiff must show that the road construction performed by the defendant created a hazard to motorists using the roadway. Potential hazards include holes in the road, debris or equipment in the roadway, an abnormal road surface condition, and traffic detours and diversions. It is generally unnecessary for the plaintiff to show that the defendant knew of the hazard because a defendant is automatically charged with notice of hazards that it created. A defendant does not have a responsibility to protect motorists from hazards that it did not create or that have arisen naturally.

Second, it must be shown that the defendant had a duty to warn of the hazard it had created. The traditional standard of duty required is to exercise ordinary and reasonable care to ensure that roads under construction are safe for motorists who are exercising reasonable care for their own safety. State statutes, ordinances, regulations. and the construction contract itself may impose more specific requirements, and the duty required may differ depending on whether the defendant is a governmental entity or private contractor. This duty is generally owed to all motor vehicle operators and passengers, as well as to pedestrians and bicyclists.

Third, a plaintiff must show that the defendant failed to provide adequate signs, signals, or devices to warn of the hazard. Warning signals must be easily visible to an approaching motorist, not to someone who is standing still, and must give the motorists adequate time to respond to the oncoming hazard. The adequacy of a warning signal can be challenged in various ways, for example by arguing that it was not of sufficient size, was not positioned correctly, was obstructed from view, was not lighted or reflective for night driving, or did not comply with customary standards. Where the defendant had installed adequate warning signals that later became missing or dysfunctional, the plaintiff may be required to show that the defendant had notice that they were no longer in place or were not functioning properly.

Fourth, the plaintiff must prove that the defendant's failure to provide adequate warning of the hazard was the proximate cause of the plaintiff's injury or death. The defendant's failure need not necessarily be the sole cause of the injury, but must be a substantial factor.

A defendant has several defenses available in a lawsuit for failure to provide adequate warning of a road construction hazard. If the defendant is a governmental entity it may be protected by governmental immunity. This immunity may also be available to private contractors who contracted with a governmental entity and are working on behalf of the government. However, governmental immunity in this area has been waived by some states. Of course a defendant also has a defense if it did not have a duty to warn or if it fulfilled that duty.

In addition, the defendant may have a defense if the plaintiff's own negligence caused or partially caused the injury or death. This may be the case if the plaintiff was not attentive to road conditions, such that additional warnings would not have prevented the plaintiff's accident anyway. The plaintiff may also have been driving in a reckless or dangerous manner, such as speeding or driving while impaired. Lastly, the hazard may have been so open and obvious that its very presence was as effective as any warning sign would have been.

Minnesota has a statute of limitations for motor vehicle accidents, and your lawsuit could be time-barred if not commenced within the statutory period. The attorneys at Milavetz, Gallop & Milavetz are experienced and knowledgeable in this area and can help to evaluate your potential claim today.

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Workers' Compensation
Posted by: euser
January 24, 2008
Topic: Workers' Compensation

The purpose of Minnesota's workers' compensation system is to quickly and efficiently deliver medical benefits and lost wages to employees who have been injured in the workplace. An employer is liable to pay compensation when an employee's injury, illness, disease, or death arises out of and in the course of employment. Injuries that occur while an employee is participating in voluntary programs sponsored by an employer, such as athletic events, parties, and picnics, do not arise out of and in the course of employment, such that an employer need not pay compensation, unless the employer ordered or assigned the employee to participate in the program. The burden of proving that an injury arose out of and in the course of employment is on the employee. If there is a question as to whether workers' compensation applies to a particular situation, courts will generally determine that workers' compensation should apply.

Workers' compensation is an employee's exclusive remedy for damages against an employer for a workplace injury. The employee generally may not bring a private lawsuit against the employer unless the employer consciously and deliberately intended for the employee to be injured.

The employer is strictly liable to pay workers' compensation regardless of negligence or assumption of risk on the part of the injured employee, or of negligence on the part of another employee. However, if the injury was intentionally self-inflicted or was proximately caused by the injured employee's intoxication, the employer need not compensate the employee.

The employer is responsible for paying for the employee's reasonable medical treatment resulting from the injury, including surgery, psychological treatment, chiropractic care, rehabilitation, and medications. The employer may also be responsible for paying for medical supplies, artificial members, and assistive devices.

The employer may also need to compensate the employee for wages that have been lost due to the injury. There are five types of payments to compensate an employee for lost wages. Temporary partial benefits are paid if an employee is able to continue working, but his injury disrupts his job duties such that he experiences a temporary reduction in salary. Temporary total benefits are paid if an injury temporarily incapacitates an employee from working, but he is later able to return to work. Permanent partial benefits are paid if an employee is able to continue working, but his injury permanently disrupts his job duties and causes a reduction in salary. Permanent total benefits are paid if the employee's injury is so severe that it prevents him from returning to work. Death benefits and burial expenses may be paid to an employee's surviving spouse and dependents if a workplace accident results in death.

An employer may not retaliate against, threaten, or discharge an employee for seeking workers' compensation benefits or intentionally obstruct an employee from seeking these benefits. Employers who have done so may be liable to the employee for damages. The employee has the burden of proving that he was retaliated against for seeking workers' compensation.

An action to collect workers' compensation must be commenced no later than three years after the employer has made a written report of the injury to the Minnesota Department of Labor and Industry, or no later than six years from the date of the accident if no report was made. The attorneys at Milavetz, Gallop & Milavetz are experienced and knowledgeable in this area and can help you to evaluate a potential workers' compensation claim today.

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Dog Attacks
Posted by: euser
January 24, 2008
Topic: Minnesota Dog Bite Attorneys

A dog owner is strictly liable for damages to a person who was attacked or injured by a dog. This may be true even if there was no physical contact between the person and the dog, but the person was injured while trying to avoid or escape from an attacking dog. A dog's past good character or lack of negligence by the owner are irrelevant when determining whether the owner is liable. The term "owner" includes not only the legal or primary owner of a dog, but also generally any person who harbors, keeps, cares for, or has control over the dog. Minnesota courts have construed dog groomers, sitters, and walkers as "owners."

An owner can also be held criminally responsible for a dog that causes injury or death. An owner may be found guilty of a misdemeanor if a dog that is allowed to run uncontrolled or is improperly confined causes a person great or substantial bodily harm. This is punishable by up to ninety days imprisonment and/or up to a $1,000 fine. An owner may be guilty of a gross misdemeanor if the same dog causes great or substantial bodily harm a second time. This may be punishable by imprisonment of up to one year and/or up to a $3,000 fine. An owner may be guilty of manslaughter in the second degree if he negligently or intentionally permits a dog known to have vicious propensities or to have caused great or substantial bodily harm in the past to run uncontrolled or improperly confined, and the dog causes the death of a person. This may be punishable by up to ten years imprisonment and/or up to a $20,000 fine.

Defenses available to the owner of a dog that has attacked:

1. Provocation: The owner has a defense if the injured person provoked, tormented, abused, or assaulted the dog prior to the attack. However, the owner is not relieved of liability if the injured person inadvertently or involuntarily provoked the dog to attack, such as accidently stepping on it.

2. Trespass: The owner may have a defense if the injured person was unlawfully on the premises occupied by the dog when the attack occurred.

The statute of limitations for commencing a personal injury action for damages from a dog attack is six years. The attorneys at Milavetz, Gallop & Milavetz are experienced and knowledgeable in this area and can help to evaluate your potential dog bite claim today.

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Possible E. coli Contamination Forces General Mills to Recall Totino?s and Jeno?s Frozen Pizzas
Posted by: euser
November 06, 2007
Topic: Minnesota Personal Injury

On November 1, 2007, General Mills announced a recall of Totino's and Jeno's frozen pizzas with pepperoni toppings because the pepperoni may be contaminated with E. coli O157:H7.

The potential E. coli contamination was uncovered by state and federal authorities investigating 21 E. coli-related illnesses in 10 states.  Nine of the 21 people reported having eaten Totino's or Jeno's pizza with pepperoni topping at some point before becoming ill.  The first reported case occurred on July 20, with the latest case being reported on October 10.

The recall affects approximately 414,000 cases of pizza products currently in stores and similar products in consumer's freezers.  Each case contains 12 pizzas, meaning that close to 5 million individual pizzas are subject to the recall.  The recall includes eight types of Totino's brand frozen pizza and three types of Jeno's brand frozen pizza with pepperoni topping, or pepperoni in combination with other toppings.

E. coli O157:H7 is a potentially deadly bacteria that can cause hemorrhagic colitis, which is the sudden onset of stomach pain and severe cramps, followed by bloody diarrhea and dehydration.  The symptoms of E. coli poisoning usually occur within 3 to 9 days after a victim eats contaminated foods and the illness lasts for approximately one week.  Those most vulnerable to this disease include the very young, seniors, and persons with compromised immune systems.

If you or a loved one became infected with E. coli after eating contaminated Totino's or Jeno's frozen pizzas with pepperoni toppings, please contact the attorneys of Milavetz, Gallop & Milavetz, P.A. 

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Minnesota Recognizes Negligent Credentialing
Posted by: euser
October 04, 2007
Topic: Minnesota Personal Injury

The Minnesota Supreme Court decided recently in the case of Larson v. Wasemiller that Minnesota law recognizes a cause of action against a hospital for negligent credentialing/privileging of a physician.

Physicians who are independent contractors must be "credentialed" to be granted hospital privileges and access to hospital facilities. Each hospital has a credentialing committee that reviews the background, character, and qualifications of physicians to determine whether a particular physician should be credentialed at that hospital. A hospital has a duty to exercise reasonable care when selecting is medical staff to permit only competent and qualified physicians the privilege of using its facilities. The committee must therefore perform an adequate investigation to ensure that a physician it credentials is competent and qualified. This duty of care is owed to all hospital patients because it is reasonably foreseeable that negligent credentialing will cause harm.

What information was actually acquired and reviewed by a credentialing committee when making a credentialing decision, and what transpired during a credentialing meeting, must be held confidential under Minnesota statute, and is not subject to subpoena or discovery. However, the Larson court determined that this requirement of confidentiality does not preclude a cause of action for negligent credentialing because negligence can be shown by what was actually known or what should have been known by the hospital and committee at the time of the credentialing decision.

Although Minnesota law on this subject is thus far limited to what was discussed in Larson, many other states have also recognized negligent credentialing as a cause of action. Generally for a hospital to be held liable for negligent credentialing, it must be shown that the hospital knew or should have known that the particular physician did not possess the proper professional competence to practice. Expert testimony is usually required to show that the committee deviated from an ordinary standard of care when making a credentialing determination. A claim of negligent credentialing has been most successful in other states when there was a grievous oversight by the credentialing committee, such as not discovering previous malpractice claims against a physician or not checking into whether the physician was properly trained or certified. Moreover, it must be shown that the physician's incompetence directly and proximately caused the plaintiff patient's injuries or death.

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