Findlay Personal Injury Lawyer - All Topics - Most Popular

16-year-old Findlay boy dies in fatal car accident

Anneke Kurt — Tue, 25 Sep 2007 16:41:24 GMT

A fatal car accident occurred last Sunday as a 16-year-old boy lost control of his SUV and struck a tree, mirroring many of the cases we see as Toledo, Ohio personal injury attorneys. The Findlay, Ohio boy was pronounced dead at the scene on Liberty Township Road 89 in Hancock County, and the evening car accident is still under investigation, according to the Toledo Blade.

Unfortunately, the numbers of car accidents caused by 16-year-olds is much greater than those caused by older drivers. According to USA Today, 16-year-old drivers are involved in fatal crashes almost five times more than those drivers 20 years or older, and an average of two American people die every day in vehicles driven by 16-year-olds. Researchers are finding that it is not lack of experience or driving skills that is causing these fatal accidents, it is the immaturity of the brain affecting young drivers' decision making skills and impulse controls. At age 16, the part of the brain responsible for impulses and decisions is still developing, and will not reach full potential until age 25, according to National Institute of Child Health and Human Development. Parents around the country are pushing for an older minimum driving age, to try and prevent personal injury resulting from teen car accidents. They feel that if the driving age is moved to 17 or 18, the driver can gain more maturity and make better decisions before getting behind the wheel. As always, encourage your teen drivers to be smart out on the roads to keep everyone, including passengers, safe.

For more information on this subject, please review our section on Car and Motorcycle Accidents.

Originally posted at InjuryBoard by Anneke Kurt

Is neighbor responsible for damage done by fallen tree branch?

Anneke Kurt — Thu, 21 Feb 2008 10:11:32 GMT

Whether or not a neighbor must pay for car damage from a fallen tree branch is discussed in Toledo, Ohio personal injury attorney Dale Emch's most recent "Legal Briefs" column in the Toledo Blade.

Dear Dale: A large branch from a tree in my neighbor's yard recently fell on my car in my driveway. My neighbor said he spoke to his insurance agent, who told him that he wasn't responsible for covering the damage to my car. This is frustrating because my neighbor has told me in the past that he needed to remove the tree because some of the branches were dead and have been falling in my yard regularly. I don't have comprehensive insurance on my car, so do I have to pay for this myself?
ANSWER: Don't give up too fast on this one. It looks like you've got some ammo you can use to fight the insurance company.
A few factors come into play when analyzing these types of cases. One is whether we're talking about an urban or rural setting; another is whether the tree or branch fell near a public road or highway, and a third is whether the owner of the tree knew or should have known about the tree's defects.
In rural settings, courts have deemed it to be too much of a burden to require a property owner to inspect trees to determine if there might be a problem that could cause injury to a person or property. In theory, we could be talking about property owners who have forests on their land. Judges reason that requiring a rural landowner to correct problems with trees would be disproportionate to the risk of the harm actually occurring.
In urban settings, and I'd include suburbs in that definition, the equation changes when you're talking about the duty to inspect, especially near a public road or highway. The rationale is that it's generally not that great a burden for urban dwellers to pay attention to parcels of land that likely are a lot smaller than those found in rural areas. If the tree is near a public road or highway in an urban area, the risk of danger from a damaged or dying tree increases significantly because there's likely to be much more traffic.
Finally, and perhaps most importantly, is the issue of whether the landowner had actual or constructive knowledge about a defect within a tree that could cause it or a limb to fall. Even in a rural area where there's no duty to inspect, a landowner who knew of a problem with a tree near a public highway and failed to correct it could be held responsible for damage caused by a falling tree or limb.
So, let's put some of those rough rules into play for your situation. I found a case from our Toledo-based court of appeals, which covers much of northwest Ohio, that held that urban landowners must take reasonable steps to cure defects in trees even if they aren't along a public road. Therefore, the fact that the branch fell in your driveway or backyard shouldn't work against you.
More significant, though, is that your neighbor made comments that he knew the tree in his yard had dying branches that had been falling and that he failed to either remove the tree or have the dead branches trimmed. To show negligence, you must show the defendant owed a duty of care. It appears your neighbor owed a duty of care because he had actual knowledge that his dying tree was dropping branches. He failed to take the reasonable steps to cure the defect within the tree, so you have a good argument that he should be held responsible.
Your neighbor's insurance company might argue that a landowner is not responsible for harm caused by a natural condition on the land such as a tree. An example might help here. In one case I found, a tree from Neighbor A's land fell on Neighbor B's land during a storm. In that case, the court held that Neighbor A had no knowledge that there was a problem with the tree or that it was in such a condition that it could fall during a storm, so Neighbor A wasn't responsible for the damage to Neighbor B's property.
Your case is different because your neighbor knew of the problem with your tree. I'd recommend talking to your neighbor about the situation again, now that you're armed with more information. I'm guessing your neighbor wants his insurance company to cover the costs of repairing your car so he can keep a good relationship with you. If he has a deductible, maybe you can offer to split it so he has more incentive to push his insurance company to pay up. If you can't get your neighbor or his insurer to move, though, you'll have to decide whether it's worth the time and money to pursue the matter in court.

Originally posted at InjuryBoard by Anneke Kurt

Findlay, Ohio car accident Dale Emch on intra family exclusions | Findlay, Ohio car accident attorneys

Chuck Boyk — Fri, 06 Mar 2009 14:08:00 GMT

Findlay, Ohio car accident lawyer Dale Emch wrote a very interesting article in the Toledo Blade on intra family exclusions in auto insurance policies. He has posted it on his Toledo, Ohio car accident blog.

If your auto policy has an intra family exclusion, it could mean that your family would not be protected in the event that you cause an Ohio car accident. The exclusion allows for the insurance carrier to deny the claim if you cause the accident, which also means that the insurance company would refuse to pay for your passengers’ medical bills, lost wages, or pain and suffering.

If you or someone you know has suffered injuries from a Findlay, Ohio car accident, you need information. Contact our Findlay, Ohio car accident lawyers today to receive your FREE copy of The Ohio Accident Book, or to schedule a free, no-obligation case evaluation and consultation.

Originally posted at InjuryBoard by Chuck Boyk

Toledo, Ohio car accident attorney Dale Emch's most recent "Legal Briefs" column

Chuck Boyk — Tue, 08 Jul 2008 16:46:08 GMT

Check out Toledo, Ohio car accident attorney Dale Emch’s most recent “Legal Briefs” column found in the Toledo Blade. You can also send in your general legal question addressing any legal topic including car accidents, workers’ compensation, and wrongful death to Attorney Emch at 405 Madison Avenue, Suite 1200, Toledo, Ohio 43604 or via email at demch@charlesboyk-law.com .

Dear Dale: The lots in my neighborhood are rather narrow and my property sits about two feet higher than the neighbors’ property. On that side of the house, my sump pump discharges water into my yard, but because my yard is higher the water runs into their driveway. I can’t help it that my property is higher than theirs and I don’t know what else to do with the sump. In the wintertime this could be a problem because it freezes and creates an icy spot. They haven’t complained, but I must think about the future when they sell and someone else moves in who might complain. Also, would I be responsible if frozen water originating from my sump caused someone to slip and fall in their driveway?

Answer: You’ve got a couple of related questions here. The first is whether you’re essentially causing a trespass or nuisance on your neighbors’ property because the way in which the water from your sump pump discharges, and the second being whether you’d be liable for a slip and fall from the resulting ice formation in the winter.

Water drainage issues create tricky questions of law. Generally, the owner of a higher property isn’t responsible if surface water naturally flows to a lower property. The problems come in when the landowner alters the flow of surface water to the detriment of another property owner.

Property owners are not prohibited from making beneficial use of their land. It makes sense that a landowner may want to control surface water and channel it in one direction or another. That said, there can be consequences if the property owner alters the direction of surface water to the detriment of another.

The Ohio Supreme Court has adopted what’s called the “reasonable-use” rule. The gist is that one can interfere with the natural flow of surface water even if it causes some harm to another property owner as long as the use is reasonable. The potential liability occurs only when the land use is unreasonable.

Determining what’s reasonable and unreasonable becomes the key. Some of the issues used to make that determination are the extent of the harm, the utility of the alteration, the financial consequences of the harm, the burden of the harm, and whether the water was intentionally or unintentionally diverted to another’s property. Those are pretty fact-specific questions so it’s impossible to come up with a formula that would allow an outcome to be predicted.

The problem with your situation is that I’m not sure whether water discharged from your sump pump constitutes surface water. While the water collected by your sump pump probably comes from rain or melting snow, I’m not sure that it can still be termed surface water. It seems to me that you’re directing water toward your neighbors’ property by pumping it to a spot that causes it to flow to their driveway. In a similar case, a court found a property owner liable for damages when his sump pump and drain system caused water to collect on a neighbor’s property. Again, it’s a fact-specific situation that would have to be viewed through the prism of the rules I wrote about above. My gut feeling is that your neighbors would have a case against you if they could show harm. A puddle of water in the driveway in the summer isn’t the same thing as a dangerous sheet of ice in the winter.

And that brings us to the issue of whether you’d be liable if someone slipped on a patch of ice created by the water draining from the pump. As a personal injury attorney, I can tell you I’d try to make that case against you if one of my clients fell on the ice. Generally, people who slip and fall on a natural accumulation of snow and ice can’t prove negligence. Here, I’d argue that the ice hazard was man made and that you were the cause of it. The fact that you’re aware of the risk you’re creating would strengthen the case against you.

So, I guess you could take a few approaches. You could try to find a way to direct the hose from the pump in a way that the water wouldn’t flow to your neighbors’ property, or at least wouldn’t flow to their driveway. That way you’d protect yourself from a nuisance suit and prevent a potential injury.

Or, you could hope it never becomes an issue. If it does, a court may find that you’ve made reasonable use of your property and you haven’t created a nuisance just because the water is flowing downward on to your neighbor’s property. And, the possibility of an injury claim is probably pretty remote and I’m guessing you have homeowner’s insurance if you do get sued.

Originally posted at InjuryBoard by Chuck Boyk

Are you financially responsible for damages caused by your minor child?

Chuck Boyk — Tue, 16 Sep 2008 17:37:00 GMT

What do you do if your minor child has committed a crime? Can you be held responsible for his actions? Are you financially liable for any damages his crime might have caused?

Toledo, Ohio dog bite attorney Dale Emch addresses these tough question in his Toledo Blade “Legal Briefs” column. If you have a general legal question on topics such as car accidents, dog bites, or workers’ compensation, send them to Attorney Dale Emch. Attorney Emch may also consider the question for his bi-weekly column.

Dear Dale: My 4-year-old daughter told us recently that a 13-year-old boy touched her inappropriately. We called the police and took her to the hospital for an exam. I want to know what our legal options are. I want the boy's parents to pay for her medical treatment and I'd like to know if I can sue them for his actions.

Answer: I think you're going to have to watch where the criminal investigation goes before you start exploring any civil remedies you might have. My gut feeling is that a civil suit ultimately will be a waste of your time and emotional energy.

Under judge-made law, parents can be held liable for the wrongful acts of their minor children in limited circumstances. Parents can be on the hook for their child's actions when they negligently entrust the child with something like a car or a gun when the child's immaturity or inexperience makes them a danger to others.

Parents also can be liable when they don't exercise reasonable control over their child even though they knew or should have known that their child probably would injure someone in a particular circumstance.

And, if a parent consents to a child's wrongdoing, directs it, or allows it, the parent can be held responsible for any injuries caused by the child.

The Ohio Revised Code also has a section that allows parents to be held liable for a minor child's willful and malicious assault by force likely to cause great bodily harm. Under that section, the parent's liability is limited to $10,000 and the cost to bring the suit.

In your situation, I think you're going to have to wait for the criminal investigation to conclude to see if the police determine that the sexual molestation occurred and, if so, if the evidence is sufficient to prove it. I won't get into the difficulty of proving a case like this, especially with a 4-year-old victim, but it probably wouldn't be easy unless the boy confessed or there's DNA evidence.

Given the legal standard for a civil case, I think the only way you could hold the parents liable is if you could show that the boy's parents knew he had previously committed this type of act and, despite that knowledge, they still left him unsupervised around little kids. In that scenario, you might have a viable claim against the parents.

But, even assuming the investigation reveals that information, it still might not be worth pursuing a civil claim. The parents' homeowner's or renter's insurance would not cover them for this kind of intentional criminal act. That means that you would have to pursue the parents' personal assets, which, in most situations, probably wouldn't be that significant. That's not always the case - the personal injury attorneys in our office have sued people without insurance coverage who have injured our clients, but it's rare.

You also have the option of suing the boy. You could get a judgment against him and force him to start paying on it when he enters the workforce, but you're not going to find many attorneys who would take that case.

Regardless of whether you could or should pursue a lawsuit, it might be worth your time to talk to the boy's parents. I'm guessing that if they're convinced their son molested your daughter, they'd be willing to pay for any medical treatment or counseling that she required.

Originally posted at InjuryBoard by Chuck Boyk

Prevent truck accidents this winter, be extra cautious on ice and snow

Chuck Boyk — Fri, 02 Jan 2009 22:48:00 GMT

According to the National Highway Traffic Safety Administration, one in eight fatal car accidents in 2004 resulted from a collision involving a large truck.

The heavy weight of the vehicle makes it harder for semi-trucks to stop, especially when there is snow and ice on the ground. Since the trailer is only connected to the truck’s cab in one place, it is easy for the trailer to jack-knife, or sway on icy roads. Help truck drivers avoid an Ohio truck accident by never cutting off a driver, and by maintaining proper speed around them.

Our Toledo, Ohio truck accident lawyers want to urge drivers to be extra careful this winter as the snow and ice make it difficult for semi-trucks to maneuver on roadways.

Stay out of a trucker’s blind spot. If you cannot see their rear-view mirrors, the truck drivers cannot see you. Avoid Ohio truck accidents by keeping extra distance between you and trucks this winter. But if you or someone you know has been injured in an Ohio truck accident, contact our Ohio truck accident attorneys to order your FREE copy of The Ohio Accident Book today.

Originally posted at InjuryBoard by Chuck Boyk

Toledo, Ohio dog bite attorney voices opposition to Ohio bill

Anneke Kurt — Thu, 07 Feb 2008 17:33:01 GMT

Attorney Dale Emch testified recently in front of the Ohio House Infrastructure, Homeland Security, and Veterans Affairs committee to oppose HB 366, which would declassify pit bulls as vicious dogs.

As a Toledo, Ohio dog bite attorney, Dale Emch has seen the extensive damage pit bulls can cause in the blink of an eye. Injuries to his clients led him to speak out against a bill that's being offered in the Ohio General Assembly that would strip pit bulls out of the state's vicious dog law. A copy of his testimony about his Ohio dog bite victims is available online if you're interested.

Here's an excerpt of Dale's testimony:

I'm here today as an attorney who has dealt with the types of injuries pit bulls can cause in just a matter of seconds. In our Toledo law office, nine of the 23 dog bite cases we're handling involve pit bulls. That's 39 percent, which strikes me as being disproportionately high when you consider how many different breeds of dogs there are in our state. I recognize this is a such a small sampling that it is statistically meaningless in the broader context of this discussion, but it gives you at least a glimpse of what we're seeing. I'll leave it to Mr. Skeldon and his colleagues to provide the statistical information this committee needs to evaluate whether pit bulls should remain labeled as vicious dogs.
I'd like to provide you with some evidence of just how much damage these dogs can do. In the three cases I'll discuss, it's worth noting that none of the attacks were provoked, nor is there any evidence that these dogs were trained to fight or that they were owned by gang members. Something tripped their switch and they attacked.

Ohio law labels pit bulls as vicious dogs and requires that owners confine them in ways that would minimize the risk of them injuring people. It also requires pit bull owners to maintain a certain level of insurance in case their dog does cause an injury. The law is not overly burdensome and its requirements offer common sense measures designed to protect the public.

Removing the vicious dog label would restrict a valuable enforcement tool that Lucas County Dog Warden Tom Skeldon and other law enforcement officials throughout the state have to control pit bull ownership. Mr. Skeldon and a group of other concerned dog wardens and police officers are leading the charge against HB 366.

Dale urges you to contact Steve Reinard, chairman of the Infrastructure, Homeland Security, and Veterans Affairs committee, as well as other members, to voice your opposition to HB 366.

Originally posted at InjuryBoard by Anneke Kurt

Find out what to do in event of injury accident, Toledo, Ohio attorney answers questions

Chuck Boyk — Tue, 19 Aug 2008 17:09:00 GMT

What do you do in the event of a car accident? What happens if you are injured at work? Who pays the medical bills if you are the passenger in a car wreck? Toledo, Ohio car accident attorney Dale Emch answers readers’ questions in his most recent “Legal Briefs” column found in the Toledo Blade. If you have a general legal question you would like addressed, contact our office. Mr. Emch will consider all questions for publication in his column, including those inquiring about car accidents, workers’ compensation, and dog bite injuries.

Dear Dale: Earlier this year, I was charged with assaulting a man following a traffic confrontation. I never struck the man and the case eventually was dismissed. This man told the police I hit him and based on what he said, I was arrested. I'm so angry that I was held in jail, even for a short time, and that I had to defend myself on this charge that I want to sue the small police department that arrested me. It just wasn't right, what they put me through, and I've found that I no longer trust the police.

Bringing a claim for wrongful arrest against a police department is possible, but you're looking at an uphill battle. Both state law and common law made by judges set a very high standard for suing the police or any public official for action taken in the performance in their duties.

The idea is that police need to make judgment calls all the time, so exposing them to lawsuits every time they get it wrong - or someone alleges they got it wrong - would discourage people from being public officials and would cost communities a lot of money to defend them.

People making these allegations can go down a few paths even in the same lawsuit. One route is to allege that the police committed a violation of federal law by violating the person's rights under the U.S. Constitution. Even if the person bringing the suit can show his rights were violated, a concept called qualified immunity protects an officer if the officer misunderstood the law in the particular circumstances or a reasonable officer would understand that his actions violated the person's rights. That is one tough burden of proof to overcome, but it's not impossible because these cases are successfully brought from time to time.

The other route a person advancing such a claim can explore is a state-law civil action for wrongful arrest and false imprisonment. In Ohio, the law presumes that officers are immune from state civil suits. An officer - and the city or governmental entity for which he or she works - can be stripped of immunity in limited circumstances.

A person making such a claim under state law must show that the officer acted with malicious purpose, in bad faith, or in a wanton or reckless manner. Without getting bogged down in the specific legal definitions of all those terms, it's safe to say the officer pretty much had to intentionally desire to wrongfully arrest someone or acted so recklessly that the conduct could be viewed an intentional deviation of duty. So, again, that's a high standard to meet.

It's not enough for an officer to simply make a mistake. Just getting it wrong doesn't mean the officer should lose his immunity and be forced to defend a lawsuit.

All of these cases are fact-specific. Applying the situation to the facts you described, my gut feeling is that your case would get bounced out of court by a judge before it could even be presented to a jury. It sounds like the person who claims you hit him convinced the police that the incident likely occurred. The police apparently found him credible enough that they believed they had probable cause to arrest you. Having probable cause doesn't mean that there was enough evidence to convict you - it just means that based on the totality of the circumstances, the police believed they had trustworthy information that you committed the assault.

So, unless you can prove - not through your suspicions or conjecture - that the police knew you were innocent but decided to arrest you just for kicks, or that their decisions amounted to recklessness so severe that it could be construed as intentional conduct, you probably couldn't prevail. I don't want to be redundant, but just making the wrong decision or believing the wrong person isn't enough for an officer to lose the shield of immunity.

Dismissal of the criminal charges may be the only satisfaction you're going to get out of this situation, which probably seems like a hollow victory.

Originally posted at InjuryBoard by Chuck Boyk

Toledo, Ohio car accident attorney Dale Emch on neighboring properties and liability

Chuck Boyk — Mon, 23 Jun 2008 17:16:00 GMT

Check out Toledo, Ohio car accident attorney Dale Emch’s most recent “Legal Briefs” column found in the Toledo Blade. Attorney Emch welcomes all general legal questions, including those pertaining to personal injury, workers’ compensation, medical malpractice, and dog bites.

Originally posted at InjuryBoard by Chuck Boyk

Boy swallows toy magnets, emergency surgery prevents wrongful death

Chuck Boyk — Fri, 03 Oct 2008 08:39:00 GMT

Our Toledo, Ohio personal injury attorneys urge parents to carefully choose the toys their children play with, and supervise them at all times. Make sure the toys are age-appropriate, and cannot be swallowed.

A settlement of more than $1 million was recently reached after a four-year-old boy ingested a pair of small magnets made by Rose Art, according to the Jere Beasley Report. The toys stuck together inside the boy’s digestive system, lodging in his pelvis. Surgery performed after two ER visits saved the boy from suffering wrongful death, but his will have digestive problems for the rest of his life, including abdominal pain, constipation, and diarrhea, and will be forced to always adhere to a strict diet.

The plaintiffs argued that even though there was a “choking hazard” warning label on the toy, the packaging did not disclose the severity of ingesting the magnets, or the serious personal injury that their magnetic attraction could cause.

If you or someone you love has suffered personal injury from a defective product, contact our Toledo, Ohio products liability attorneys to learn your rights and for your free consultation and case evaluation.

Originally posted at InjuryBoard by Chuck Boyk