Why you’re not getting workers compensation for your offshore injuries

If you got hurt working on a vessel, a jack-up rig, a semi-submersible rig, or anywhere on the water, you may think you’ve filed a workers compensation claim. The truth is that you probably haven’t. Most maritime and offshore workers aren’t covered by state workers compensation programs. Instead, you’re covered by federal maritime laws.

These laws, which include the Jones Act, are better for you than workers compensation laws. Under the Jones Act, you are entitled to maintenance and cure when you get injured on the job. You can be compensated for your lost wages. You can be compensated for the wages you will miss out on because of your injuries. You can be compensated for the medical expenses you will face in the future for these injuries. And, on top of all that, you may be able to be compensated if you can prove your company was negligent.

What are “maintenance” and “cure” under maritime law?

Under maritime law, most people working on vessels, drilling rigs, or even tugboats and other “brownwater” workplaces qualify for two types of benefits if they get sick or get injured at work:

  • Maintenance payments are an income supplement. These payments give you money to help pay your normal living expenses while you are unable to work. Frankly, it’s not especially generous, but it’s better than no income at all. In order to collect maintenance, you have to prove that you incurred day-to-day expenses which were not otherwise covered while recuperating from your injuries.
  • Cure payments cover the legitimate medical expenses related to your accident or illness. This not only means payment for immediate emergency care right after the accident, but also any necessary surgery and follow-up therapy.

If you are injured or become ill while you’re working on a vessel or a drilling rig, you automatically qualify for maintenance and cure benefits. If your employer negligence played a part in the accident, you qualify for basic maintenance and cure benefits even if you also are eligible for additional financial compensation under the Jones Act. Your employer is required by law to make these payments to eligible seamen.

How long do workers receive maintenance and cure?

You should receive maintenance and cure payments until you’ve reached “maximum medical improvement,” also called “MMI.” This means that employers must continue paying both maintenance and cure until you have recovered as fully as you can with medical treatment. If further treatment isn’t likely to make you feel better, then the law will not force the employer to continue to pay for it.

Keep in mind that it is up to your doctors to decide when your condition has improved to the point that further medical care is no longer necessary. Even if your boss can find a physician who is willing to testify that you cannot benefit from more medical care, that doesn’t guarantee your benefits will end. You can speak up about the truth of your condition and pursue your right to financial compensation with the help of an attorney who understands and has won these kinds of cases for seamen.

How is the amount of maintenance and cure payments determined?

The amount that an injured seaman is paid for maintenance and cure varies quite a bit. “Cure” is basically your medical bills, so that amount will depend on the kinds of treatment you received and the actual cost of that treatment. “Maintenance” can vary depending on your living expenses while you are unable to work, but most companies try to pay as little as possible—sometimes less than $30 per day. In both cases, the total amount is added up from many, many different expenses related to your injury, from surgical bills to travel costs to pharmacy needs.

If you aren’t sure how much you should be receiving for maintenance and cure, talk with an attorney who has experience with injury cases for Jones Act seamen. He or she will be able to go over all the specific information in your case and explain what kinds of payments your employer owes you.

What to do when maintenance and cure are denied or an employer stops paying benefits

Employees who qualify for maintenance and cure often get into disputes with their employers on the issue of payments. If you believe your company is short-changing you on maintenance and cure, contact us to start investigating your rights. We help a lot of injured seaman on the issue of maintenance and cure. Sometimes we get it resolved without the need for a lawsuit. Other times a lawsuit is necessary. It all depends on the circumstances of your particular situation.

Your employer must pay these benefits, even though they may be very costly for the company. Saving the “bottom line” should never mean breaking the law and denying injured people the money they desperately need while they are hurt. If your employer is threatening to cut off your maintenance and cure benefits, or if your employer has refused to pay your costs, reach out to us at 877-724-7800 for help today.

Did ‘Captain Phillips’ hide the truth about Maersk Alabama?

October 11, 2013 was an exciting date for many moviegoers, as the highly anticipated film Captain Phillips arrived in theaters. The film, starring Tom Hanks, follows the actions of Captain Richard Phillips, who heroically saved his crew from armed pirates. As a result of his actions, the Somali pirates were forced to kidnap him onto a lifeboat. This allowed the US Navy to successfully subdue the pirate threat, which ultimately painted Phillips as a hero. However, according to some crew members, the film’s portrayal of Phillips is a blatant manipulation of the facts.

In a case brought by VB Attorneys, the crew claims that Phillips wasn’t a hero, but was actually partially to blame for the pirate attack. They say he ignored warnings of the potential threat in the first place and made the decision to take the vessel through the dangerously known waters, in order to save the shipping company unnecessary costs.

In addition to the film using artistic license to create a more likable hero, the owner of the vessel, Maersk Line Limited, used the film and the audience’s manipulated empathy to try to create sympathy for its lawsuit defense. Maersk is hoping that the film’s positive portrayal of the Captain and lesser portrayal of the crew will help persuade the decision in their favor.

While the filmmakers may not have intended to outright manipulate the audience, they did, however, most likely omit the Captain’s disregard for the warning in order to portray him as a more empathetic and relatable hero. Unfortunately, this does misrepresent the facts in their entirety. This misrepresentation in a film that is billed as being “based on actual events” can then easily be interpreted as fact. This is exactly the reason why Maersk wanted to delay the trial until after its release.

This underhanded tactic by Maersk to take unfair advantage of the movie’s factual manipulation hopefully won’t persuade an unfair verdict in the case, but time will tell.

The trial is scheduled to begin on December 2, 2013. For more updates on this case, whether or not Maersk did profit from the film, or The Truth About Captain Phillips, please contact VB Attorneys at 877.724.7800.

 

Maximum Medical Improvement is Key to Winning Your Jones Act Case

You Should Never Let Your Employer Decide on Your Maximum Medical Improvement

Here’s why: if you are seriously injured while working in an offshore capacity, your employer is not obliged to pay your medical bills for the rest of your life—or even, in most instances, for more than one or two years after your accident. This is because the Jones Act contains a provision referring to maximum medical improvement, the point at which doctors have done all they can for your condition, and you can’t expect to get any better.

Your Employer Must Be Honest about Your Maximum Medical Improvement

As you can probably guess, maximum medical improvement (MMI) can be a serious bone of contention between an injured offshore worker and his employer. It’s in the employer’s best interest to declare MMI as quickly as possible because at that point, the company will no longer be on the hook for ongoing medical care. On the other hand, an injured seaman can always see improvement on the horizon, and will resist an MMI determination until he’s actually able to go back to work.

In the worst case, take the example of a sailor who has been paralyzed from the waist down after an onboard explosion. This individual’s employer will be on the hook for his medical care immediately following the accident, and after he has been stabilized, presumably in a mainland hospital. Usually, at some point within a few months after the accident, doctors will make a determination whether that person has any hope of ever walking again, or if he has reached MMI. If they decide the latter, the sailor’s employer no longer has to pay for his ongoing medical and rehabilitative care, and the sailor will have to pay his medical bills by other means (probably by going on Social Security disability). To take a less severe case, if that sailor merely broke his arm in the accident, and that arm has healed, he has reached MMI and can return to work.

Don’t Let Your Employer Determine Your Maximum Medical Improvement

If you have been injured at sea, you should never let your employer dictate when you have reached maximum medical improvement, since your company’s decision will be guided by financial rather than medical concerns. Instead, you should consult an experienced Jones Act and offshore law expert at VB Attorneys (877-724-7800); we will aggressively work to defend your rights and obtain the maximum payout for your claim.

What the Firestone recall means for dangerous tire claims

A few years ago, Bridgestone/Firestone, Inc., the largest subsidiary of the world’s largest tire and rubber manufacturer, recalled 6.5 million tires of a certain brand and size in North America. The recall was preceded by the U.S. government’s investigation into hundreds of motor vehicle accidents resulting in death or serious injury, allegedly caused by tread or belt “separation” in these tires. Most accidents involved Ford Explorers equipped with the recalled tires.

Based on the public information that was released, it appears that many incidents of tread separation are attributable to poor manufacturing practices and quality control at certain tire plants. This information greatly bolsters manufacturing-defect claims involving tread separation. In addition, finger pointing by Firestone and Ford supports additional claims against these companies in tread separation cases, including design defect, marketing defect, and negligence claims.

Investigation of Firestone tread separation

On May 2, 2000, the National Highway Traffic Safety Administration (NHTSA) initiated a formal investigation into the tread separation of Firestone Wilderness AT, ATX, and ATX II tires. These tires were original equipment on many Ford Explorers and other Ford sport utility vehicles and light trucks, and they were also available as replacement tires.

At the time NHTSA initiated this investigation, the agency was aware of 90 incidents involving these tires, 33 of which resulted in crashes that caused 27 injuries and four fatalities. These numbers increased dramatically over a short period of time. At press time, NHTSA had received over 2,000 complaints, including reports of over 100 fatalities. Most drivers reported that they were driving at highway speeds when “suddenly they lost control.” In some of the crashes, it was reported that the tread wrapped itself around the rear axle. NHTSA noted a “strong geographical trend,” with most of the incidents occurring in warmer-weather states.

Shortly after NHTSA began its investigation, it was discovered that Ford had already recalled Firestone tires on its vehicles in at least 10 foreign countries, where it said hot temperatures could make the tread separation problem worse. Ford was replacing these tires for consumers in Venezuela, Ecuador, Colombia, Saudi Arabia, Kuwait, Oman, Qatar, Basra, Thailand, and Malaysia. During the same period, numerous retailers, including Sears, Roebuck & Co., stopped selling these tires.

Firestone announced the recall on August 9, 2000. The recall included all 15-inch Firestone ATX and ATX II models produced in North America and all 15-inch Firestone Wilderness AT models produced in the company’s Decatur, Illinois, plant. Firestone made about 14.4 million of these tires. The company estimated that 6.5 million of the recalled tires were still in use, including 3.8 million Radial ATX and ATX II tires and 2.7 million Wilderness AT tires.

Firestone indicated that it would execute the recall in three phases, beginning with the warmer-weather states. The company said the recall would take one year to complete. By August 12, Ford began offering replacement tires for its vehicles with tires subject to the recall in the United States.

Tire recall creates more questions for consumers

Shortly after the recall, concerns were raised about its scope. Consumer groups in this country and others questioned why the 16-inch tires of all the models were not recalled and why the Wilderness AT tires built in plants other than the Decatur plant were not recalled. It was discovered that, in 1999, Ford recalled 16-inch Wilderness AT tires in Saudi Arabia, other Persian Gulf countries, and Venezuela. Further, there was evidence that some of Firestone’s other plants experienced manufacturing problems similar to those experienced at the Decatur plant. On September 1, NHTSA issued a “consumer advisory” for an additional 1.4 million Firestone tires that were not covered by the recall, noting that tread separation rates for the additional tires exceeded those for the recalled tires, sometimes by a large margin.

Firestone’s and Ford’s problems with government agencies were not limited to products sold in the United States. In late August, the Venezuelan consumer protection agency released a report indicating that it had enough evidence to proceed with criminal charges against Firestone and Ford. Ford announced that Firestone had failed to include a nylon overlay in the Venezuelan tires that could have reduced the tread separations that led to hundreds of accidents and many fatalities. Firestone, however, maintained that Ford recommended tire pressure that was too low for driving conditions in that country.

According to Firestone, it built the tires to Ford specifications, which did not include a requirement for nylon overlays. Ford charged that Firestone agreed to include the nylon overlays in tires manufactured in Venezuela but failed to do so. Ford further asserted that Firestone mistakenly labeled the tires to indicate that they contained nylon overlays.

Ford has continuously maintained that the problem is exclusively related to the Firestone tires. Firestone, on the other hand, blames Ford for recommending an excessively low tire pressure.

On September 6, the chief executives of Firestone and Ford testified before the U.S. Congress. Masatoshi Ono of Firestone offered an apology, stating he accepted “full and personal responsibility” for the events leading to the hearings, but reiterated the company’s defense that drivers are to blame for the accidents.

Jacques Nasser, Ford’s chief executive, placed the blame on Firestone. He said that Ford did not learn of the tire problem until the company “virtually pried the data from Firestone’s hands and analyzed it ourselves.” During the hearing, committee members accused Firestone and Ford of conducting a cover-up at the expense of people’s lives by failing to notify U.S. safety officials sooner about the problem. Both Ono and Nasser promised to furnish the congressional committee with additional information.

How a tire is manufactured

To understand how tread and belt separations occur, it is useful to have some understanding of how a tire is manufactured. Most tires, including the recalled ones, are pneumatic tires.

A pneumatic tire is defined as “a mechanical device made of rubber, chemicals, fabric, and steel or other materials, which, when mounted on an automotive wheel, provides the traction and contains the gas or fluid that sustains the load.” There are two basic types of pneumatic tires in use, radial-ply and bias-ply. The radial-ply tire has widely replaced the bias-ply tire in developed countries, due to its higher cornering properties, greater tread mileage, and better wet grip. It is defined as “a pneumatic tire in which the ply cords which extend to the beads are laid at substantially 90 degrees to the centerline of the tread.”

Manufacturing a tire requires the assembly of various component parts. This requires an element of handwork, so the tire manufacturer must employ individuals with the skill and diligence to properly put a tire together.

The skeleton of a radial-ply pneumatic tire consists of two hoops of steel-stranded wire. The ply, which is generally made of rayon or polyester, is wrapped around this framework in the form of a wide cylinder of rubber fabric, with cords running directly from one edge to the other.

The belt unit, which consists of two to four layers of inextensible cord (known as “breakers”), is placed on the casing ply. It is preferable to produce a belt with some flexibility but little stretch. The sidewalls and tread are laid over this structure, and at this point the product is known as a “green” tire. The green tire is then “vulcanized.” In this process, the tire is subjected to extreme heat and pressure that cause the components of the tire to fuse together and coalesce until the rubber becomes a single structure—a completed pneumatic tire. These layers of components should never separate if the tire is properly manufactured.

Tread and belt separations

There are at least three causes of tread and belt separation that may be traced back to the manufacturer: breaker-edge separation, rubber skim-stock tearing, and rubber-interface separation (referred to as rubber-rubber separation in the noted source).

In breaker-edge separation, looseness at the breaker edge develops into complete separation. There is an inherent looseness at the edge because the steel cord is brass plated to make it bond to the surrounding rubber, and where the steel cord is cut, the brass plating is also cut. As a result, where the greatest adhesion is required—at the belt edge—there is an area of zero adhesion. Tire manufacturers are aware of this and must design and manufacture tires so that separation does not spread inside the tire.

In rubber skim-stock tearing, the tire separates when the skim stock, which is the rubber compound applied to the breaker cords, does not properly bond to the brass-plated steel cord. The skim stock is supposed to enhance adhesion in this area of the tire, and when it fails to do its job, tread or belt separation may occur.

Tires used in areas with consistently high temperatures often suffer this type of separation. Manufacturers know this, and therefore they must select their compounds and design their tires to perform in various temperatures.

Finally, rubber-interface separation results when certain surfaces within the tire fail to remain unified after vulcanization. This type of separation is almost always caused by manufacturing errors, such as allowing surfaces in the tire to become contaminated in various ways.

Questionable practices

Some former Firestone employees who worked in the company’s Decatur plant have revealed questionable practices at that plant. These employees, all of whom began working in the plant in the early 1960s, left the company during a strike in 1994.

One primary point of contention between Firestone and these plant workers was the company’s decision to change from 8-hour days to 12-hour days. According to one of the Decatur plant employees, before the strike, Firestone held safety symposiums teaching workers that most problems in assembling tires occurred between the sixth and eighth hours of work.

During the strike, Firestone hired about 1,400 replacement workers. These employees worked the new 12-hour shifts. It was reported that many more tires were scrapped while the replacement workers were building them than when the regular workers built them. Based on this information, it is likely that many tread separations can be traced to these inexperienced and overworked replacement employees.

It is clear that there were problems at the Decatur plant even before the replacement workers arrived. Former plant employees reported questionable manufacturing processes and quality control occurring well before the 1994 strike, including:

  • Storing green tires on the floor and allowing debris to stick to the tires;
  • Allowing hot and humid conditions inside the plant most of the time;
  • Requiring tire builders to build about 100 tires per hour;
  • Giving tire builders monetary bonuses for exceeding their quotas;
  • “Repairing” blisters or knots in tires before placing them into the stream of commerce; and
  • Failing to inspect, or properly inspect, all tires before placing them into the stream of commerce.

These poor manufacturing practices can lead to manufacturing defects and rubber-interface separation.

These former employees also reported that they used the same stock of green tires for all tire lines, and that tire builders and others in the plant did not change their manufacturing practices among different tire lines. Based on this information, all Firestone tire lines, including those built at plants other than the Decatur plant, may have been manufactured under the same questionable practices. Accordingly, Firestone tires other than those recalled by the company may contain manufacturing defects similar to those in the recalled tires.

Firestone did not identify any specific defects when it announced the recall. A representative said the company had not determined “what, if any, problem there may be with these tires.”

This representative noted that the company’s review of the relevant data suggested three things:

  • First, the number of reported incidents with the 15-inch Radial ATX and ATX II was higher than with other sizes in this line of tires.
  • Second, the Decatur plant was “overrepresented” in the accident claims and reports compared with the company’s other plants.
  • Third, the majority of the incidents occurred in the southernmost states, suggesting a direct correlation between heat and tire performance.

About one month into the recall, a Firestone executive said the company was looking into “variations in the manufacturing process at the Decatur plant” and “the unique design specification” of the recalled tires.

The company’s statement regarding an overrepresentation of claims in connection with the Decatur plant and its investigation into manufacturing processes suggest a problem with the practices in this plant. Although Firestone singled out the Decatur plant, information has surfaced suggesting that other plants experienced similar manufacturing problems. Information from former employees from these plants should shed additional light on this issue.

Manufacturing defect

Manufacturing defect claims are bolstered by evidence of poor manufacturing practices in tire plants. As noted above, rubber-interface separation, where the tire materials do not remain unified after vulcanization, is frequently related to manufacturing problems. Specifically, weak interface adhesion results when the breaker surfaces become contaminated or are allowed to deteriorate. The contaminant remains between the two breakers and prevents complete fusion.

There are many ways tire surfaces can become contaminated during the manufacturing process, causing rubber-interface separation. For example, dust or moisture may accumulate on tires, contaminating them. As indicated by former Decatur plant workers, green tires were sometimes placed on the floor, which can cause contamination. Further, in light of the reported problems with the tire inspection process, it is likely that many defects went unnoticed before the tires were placed in the stream of commerce. Manufacturers must prevent such flaws by keeping their plants clean and air-conditioned and by employing strict quality control measures.

In light of the recall and evidence of poor manufacturing practices and quality control, juries may well be persuaded to hold the company liable for manufacturing defects in its tires, even where it may be difficult to identify the precise defect. While some courts may find that the occurrence of a tread separation is circumstantial evidence of a defect, the prudent practitioner will be prepared to present expert testimony regarding the precise nature of the defect. It is therefore important for a plaintiff’s expert to be qualified to determine whether rubber-interface separation or some other type of tread separation occurred.

Design defect

Firestone’s statement acknowledging a correlation between heat and tire performance, as well as the company’s investigation into the “specifications” of its tires, support a design defect claim in connection with rubber skim-stock tearing. As noted above, this type of separation is often aggravated by high temperatures. Manufacturers must ensure that the skim-stock material selected sufficiently enhances adhesion in all temperatures or in the range of temperatures expected wherever the tire is being placed into the stream of commerce. Obviously, the alternative design is a skim-stock material that works properly in the relevant temperature range.

Breaker-edge separation may also form the basis of a design defect claim. This type of separation can be prevented in many instances by the use of a nylon bandage or overbelt.

The nylon cord in the overbelt is heat-set to reduce excessive stretch, so it contracts during vulcanization. By winding an additional breaker with such an overbelt and extending it beyond the edges by a small amount, tire manufacturers can create a “belt tourniquet.” This specific design has been in existence since the 1970s. The recalled Firestone tires do not incorporate this technologically and economically feasible alternative design.

Firestone’s emphasis on the recall in warmer-weather states, its statement acknowledging a link between heat and tire performance, and its investigation into the specifications of its tires bolster design defect claims involving skim-stock tearing and breaker-edge separation.

Marketing defect

Documents surfacing since the recall show that Firestone (and Ford) knew about tire safety problems at least a year before the recall. This information will certainly assist plaintiff counsel in arguing that the risks involving tread separation were foreseeable and that the companies should have warned the public.

It has been reported that many individuals hear loud noises before tread separation. Unfortunately, most consumers and many tire dealers do not appreciate the severity of this symptom, which may indicate structural failure. In most instances, consumers simply have their tires rebalanced. Tire manufacturers should place a warning on all tires instructing users who hear loud noises to have the tires checked for structural damage and for the possibility of impending tread separation.

The tire recall has resulted in the dissemination of much information regarding tire defects. Tire manufacturers will certainly argue that the consuming public was warned immediately upon issuance of the recall. For instance, if a consumer fails to bring a vehicle to a Firestone dealer within a “reasonable” time, the company will probably argue that his or her claim is barred or that he or she was contributory negligent. This defense is suspect in light of the problems Firestone encountered in implementing the recall and the company’s initial assessment that many customers would have to wait a year or longer for replacement tires.

Finally, in connection with the marketing defect issue, some experts have noted that Firestone tires have a relatively hard tread. Drivers can put an extraordinary number of miles on these tires, and yet a considerable amount of tread remains on them. As a result, there is no warning (through the physical properties of the tires) that they are getting worn out. Indeed, the first warning of a problem may be the actual tread separation.

Potential liability of Ford

As the seller of a product with defective component parts, Ford is subject to strict liability for harm caused in tread separation accidents under the same theories as Firestone. However, Ford may face additional liability based on the stability of the vehicles into which the defective tires are integrated and on its recommendation of excessively low tire pressure.

Unfortunately, tread separation often causes a sport utility vehicle such as the Ford Explorer to roll over, a type of accident that frequently results in death or catastrophic injury to the vehicle’s occupants. If tread separation occurs on a vehicle traveling 65 miles per hour, it becomes extremely difficult for the average driver to safely steer the vehicle to the road’s shoulder.

The driver generally loses control as a result of a combination of factors. The loss of control starts with the tread separating from one of the rear tires. For example, if the right rear tread separates, the vehicle will pull slightly to the right, causing the driver to steer to the left to compensate. However, once the tread has separated, the vehicle will oversteer because the side-force capability of that tire is drastically reduced (usually to 25 percent or less of its normal value). This means that the vehicle has two tires on the front generating side force, but only one good tire on the rear to balance the turning moment.

The oversteer becomes progressively more extreme as the lateral acceleration in the turn increases. As the lateral acceleration increases, the load on the rear of the vehicle is transferred from the remaining good tire on the left to the detreaded tire on the right, causing the side force capability of the rear tires to be reduced still further. This has been compared to trying to control the vehicle with its rear tires on ice.

As a consequence, any steer input will be amplified by the oversteer nature of the vehicle and lead to high lateral accelerations. Once the lateral acceleration exceeds the vehicle’s stability threshold (which is approximately 70 percent of its static stability factor), the vehicle will roll over. As a result, the combination of Firestone tires and Ford Explorers can be a deadly mix.

As previously noted, many of the recalled tires were sold as original equipment on Explorers. This vehicle was introduced by Ford as a replacement of the Bronco II, which had a horrible fatal rollover record and a poor stability index. The Explorer is a bigger vehicle than the Bronco II, with a longer wheelbase and a slightly higher stability index, but it still has stability problems.

To improve the reported stability of the vehicle through rollover resistance testing, Ford manipulated the recommended air pressure in the tires to a low of 26 pounds per square inch. This is extremely low in comparison with the recommendations of other auto manufacturers, and may be one reason for the high incidence of tread separation on Explorers.

As set forth below, tire manufacturers often argue that consumers are to blame for tread separation because they drove on underinflated tires. According to the manufacturers, driving on underinflated tires generates excessive heat and results in tread separation.

If Ford recommended an excessively low tire pressure, it may share liability with Firestone for tread separation failures. Indeed, it would be disingenuous for Firestone or Ford to blame consumers for driving on underinflated tires when Ford effectively recommended that they do just that.

Common defenses

In lawsuits involving tread separation, tire manufacturers often assert defenses within the following three categories:

  • Improper maintenance
  • Impact damage
  • Improper handling by the driver after tread separation

All these defenses relate to an alleged misuse of the product. In the first category, manufacturers often argue that the tire in question was underinflated or overloaded, which can lead to tread separation. Specifically, manufacturers argue that driving on underinflated or overloaded tires can lead to “overdeflection,” a process that generates heat inside the tire, which in turn causes tread separation.

A qualified expert often can determine whether underinflation or overloading was the sole cause of, or contributed to, tread separation. But, even if it is determined that underinflation or overloading caused the tread separation, Ford may face liability based on its recommendation of excessively low tire pressure.

Manufacturers also assert the improper-maintenance defense in connection with conduct occurring after the incident. For example, defendants have asserted that plaintiffs’ experts damaged tires during the inspection process.

Defense attorneys also often assert that the tread separation was caused by impact damage, such as driving through a pothole or over a curb. Plaintiff’s counsel should point out that impact damage is foreseeable. Further, impact damage may simply exacerbate preexisting tread separation in a tire, which is also a foreseeable event.

Again, the role of experts in these types of cases cannot be overemphasized. A properly qualified expert should be able to determine whether a tire sustained impact damage and, if it did, whether it contributed to the tread separation.

Finally, manufacturers usually claim that the driver failed to properly control the vehicle after the tread separation. These defendants have spent large sums of money on testing intended to show that an individual should be able to bring a vehicle to a safe stop after a tire tread separates.

In responding to this defense, plaintiff counsel should generally rely on the jury’s common sense (that is, it is unreasonable to expect a person to react calmly to a tread separation and bring a vehicle to a stop without incident). The sheer numbers of drivers who have been unable to control a vehicle after tread separation should effectively convince a jury to reject this defense.

In light of the Firestone recall, juries will most likely hold tire manufacturers to a high standard when they assert these defenses. Information on poor manufacturing practices and quality control and the thousands of other similar tread separation incidents is strong evidence that these tires are defective.

Investigating a case

Before taking on a tread separation case, plaintiff counsel should thoroughly investigate the history of the allegedly defective tire. Since manufacturers usually argue that a tire was abused or improperly maintained, plaintiff counsel must be able to prove that there was no abuse or improper maintenance.

Since many vehicles are purchased used, it is also important to contact all previous owners and users of the vehicle to determine whether any abuse or improper maintenance occurred. In addition, counsel should have a tire expert examine the tire to determine whether it suffered any abuse before the accident. It is also important to preserve the tire itself and make sure the expert does not damage the tire during his or her examination.

In Kumho Tire Co. v. Carmichael, coincidentally a tire tread separation case, the Supreme Court held that the requirement set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc. that all expert testimony be relevant and reliable applies to all types of experts, including tire experts.

Some courts applying the general holdings of Kumho and/or Daubert have held that plaintiffs’ causation experts must eliminate alternative causes of the accident and injuries. This is especially important in tire tread separation cases because, as noted above, tire manufacturers often point to various potential alternative causes of the tread separation. Under today’s line of cases on admissibility of expert testimony, it is important that, to the extent possible, these experts analyze and eliminate all potential alternative causes, even if they are not raised as defenses by the tire manufacturer.

Additionally, plaintiff counsel should offer into evidence as much information on the recall as possible. Many jurisdictions have specifically addressed the admissibility of recall campaigns, and the majority authorize the admission of recall information, at least for limited purposes. One common requirement for the admissibility of recall information is that the plaintiff establish that the defect addressed by the recall existed in the product involved in the lawsuit.

In jurisdictions that have not specifically addressed the admissibility of recall information, the recall may be characterized as a subsequent remedial measure. Unfortunately, the overwhelming majority rule excludes such measures as evidence of negligence or culpable conduct. However, there are some exceptions.

For instance, under Federal Rule of Evidence 407, such evidence may be admitted to prove “ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.” In addition, a minority of jurisdictions—including Texas, under Texas Rule of Evidence 407(A)—allow evidence of subsequent remedial measures in strict products liability cases.

The tire recall also raises the issue of the admissibility of the 2,000 (and ever increasing) other incidents caused by tire tread separation. Evidence of other similar incidents involving identically designed products are generally admissible in strict products liability cases to prove that the product was defective and that the manufacturer knew this. With the growing number of accidents caused by Firestone tires, such evidence will certainly assist in convincing a jury that the tires were defective.

The final chapter on the Firestone recall is yet to be written. It is clear, however, that the recall will change the nature of products liability litigation involving tread separation for years to come.

Notes:

  1. NHTSA Defect Investigation No. PE00-020 (May 2, 2000).
  2. Id.
  3. Id.
  4. Robert L. Simison et al., Ford Says It Knew of Venezuelan Tire Failures in 1998, WALL ST. J., Aug. 30, 2000, at A3.
  5. Amy Merrick, Sears Stops Selling Some Firestone Tires Amid Government Safety Investigation, WALL ST. J., Aug. 7, 2000, at A3.
  6. Timothy Aeppel, Firestone Will Replace 6.5 Million Tires, WALL ST. J., Aug. 10, 2000, at A3.
  7. NHTSA Consumer Advisory (Sept. 1, 2000).
  8. Robert L. Simison et al., Pressure Points: Tension Between Ford and Firestone Mounts Amid Recall Efforts, Tire Plant in Venezuela Brings Latest in a Long String of Snags and Clashes, WALL ST. J., Aug. 28, 2000, at A1; Francisco Toro & Frank Swoboda, Venezuela Puts Blame on Ford, Firestone, WASH. POST, Sept. 1, 2000, at A1.

Texas Attorney Reveals Safety Hazards With Child Seats

Children who are too big for safety seats and too small for adult-size seat belts face a high risk of injury in crashes. Youngsters who fall into this safety gap need artful advocacy.

By VUK VUJASINOVIC, Board Certified Personal Injury Law, Texas Board of Legal Specialization

Safety experts and auto manufacturers have long known that a lack of crash protection exists for children between the ages of four and eight. Most children in this age group have outgrown their child safety seats. Yet they are too small to be adequately protected by seat belt restraints that have been designed for adults and fit poorly on a child’s small frame.1

Automakers say that children who are 12 and under should ride in a vehicle’s rear seats.2 The outside rear seats of domestic vehicles made in the last decade are equipped with combination lap/shoulder belts. Passengers seated in the middle of a rear bench seat are usually secured by a two-point lap belt. Unfortunately, few of these restraints are designed to accommodate an occupant shorter than 57 inches and weighing less than 80 pounds.3 The average six-year-old child—who is right in the middle of the “forgotten child” age range—stands only 47 inches high and weighs merely 52 pounds.

Manufacturers concede that injuries and deaths attributable to the safety gap have reached unacceptable proportions. According to industry estimates, 500 children are killed every year, and thousands more are seriously injured, due to a lack of proper belt usage.4 Many of these children were killed while wearing safety belts.5 At a recent trade show, a former chief executive officer of Ford Motor Co. told colleagues that “these are preventable tragedies and urgent action is needed” to close the safety gap.6

Studies demonstrate that every 90 seconds a child is killed or injured in a motor vehicle crash.7 During the 1990s, children between the ages of four and eight were dying in crashes at a rate of about 16 per week.

Between 1982 and 1998, there was a 23 percent increase in automotive fatalities among children aged five to nine.9 In 2000, 2,343 children under 15 were killed, and more than 291,000 were injured in motor vehicle crashes.10

Manufacturers would have the public believe that the best way to prevent these tragedies is through the use of aftermarket child safety seats. According to the National Highway Traffic Safety Administration (NHTSA), placing a child in an age-appropriate safety seat will reduce a child’s risk of dying in a crash by as much as two-thirds.11

Parents are restraining children four and under in child safety seats. The usage rate of safety seats for children under one year old is 95 percent; the rate for children between ages one and four is 91 percent.12 But according to recent studies, the usage rate for children in the safety gap is substantially lower—10 percent.13

The National Transportation Safety Board and NHTSA recommend that children who outgrow child safety seats be placed in “booster seats” until they are large enough for adult-size lap and shoulder belts.14 A well-designed booster seat positions a child so that the three-point shoulder and lap belts fit better.

However, less than 10 percent of children between the ages of four and eight use booster seats.15 This is probably due, in part, to the lack of consensus among experts concerning which types of seats are appropriate for children of different ages and sizes.

For example, NHTSA recommends that children who have outgrown child safety seats be restrained in booster seats until they are at least eight years old, unless they are 49 inches tall.16 On the other hand, a study conducted by the Children’s Hospital of Philadelphia, State Farm Insurance Co., and the University of Pennsylvania suggests that parents should keep children in booster seats until they are at least eight years old, weigh 80 pounds, and are 58 inches tall.17 In light of this conflicting information, how are parents supposed to determine whether their child should be using a booster seat?

This confusion is exacerbated by manufacturers’ failure to develop their own booster seats. Not every seat works well in every vehicle. Obviously, auto manufacturers are in the best position to determine which types of booster seats are best suited for the wide range of vehicles they build. But they neither build booster seats nor adequately test aftermarket seats to determine which ones can be used safely with their vehicles’ rear seat-belt restraint systems. As a result, parents are denied important information regarding the proper fit of booster seat, child, and vehicle.

Understanding the Injuries

In a collision, the seat belt is supposed to slow down the occupant with the vehicle and spread the forces of the collision to the strong bones of the body.18 Proper belt fit and good belt geometry are important in maximizing protection.19

The auto industry has long been aware of the dangers associated with placing children in restraints designed for adults. These dangers result in three types of injuries: submarining injuries to the spine and abdomen; fulcrum injuries to the cervical spine; and injuries associated with partial or full ejection.

Submarining injuries. The lap portion of a properly fitting seat belt should fit snugly below the hips.20 In a crash, the lap belt should couple the occupant to the vehicle and provide restraint by transferring force to the pelvic bones.21 Submarining occurs when a passenger’s pelvis and buttocks slide down and forward during a collision, allowing the lap belt to slip up to the abdomen.22 Submarining can cause severe intra-abdominal injuries and spinal cord trauma.23

Children between four and eight are particularly vulnerable to this type of injury. The lap and shoulder belt geometry is not well suited to their stature. They tend to slouch down in their seats because their legs do not hang comfortably over the edge of the seat cushion.24 Consequently, the lap belt lies above the child’s pelvis and can easily slide up to the abdomen during a crash.25

Fulcrum injuries. The shoulder harness of a rear seat lap/shoulder belt typically passes diagonally across an adult’s outside shoulder, over the sternum, and down to the inside hip where it connects with the lap belt and fastens into the seat belt buckle.26 In the case of a child, the typical shoulder harness crosses in front of the child’s face or throat.27

A belt in this position creates an artificial fulcrum that, during an accident, can stretch the upper spine past the breaking point, resulting in paralysis or death.28 If the torso belt is not used (either because the vehicle is not equipped with it or because it is placed behind the child’s back for a more comfortable fit), the fulcrum point is at the waist. This can cause severe head injuries when the force of an impact throws the child’s head forward onto his or her knees or the back of the front seat.29

Full or partial ejection injuries. Some seat belts are so poorly designed that even belted children can be thrown completely out of a vehicle. Such was the case in Johnston v. Ford Motor Co.30 In that case, five-year-old Cody Johnston was riding as a front-seat passenger while his mother was driving the family’s Ford Ranger on an interstate. Both Cody and his mother were wearing three-point lap/shoulder belts.31 

Another vehicle collided with the Ranger, causing it to roll over. Cody was thrown from the car and killed. The investigating officer noted in the police report that Cody was not big enough for the seat belt and that the belt was still buckled after the car came to rest.

Poor seat-belt design can also cause partial ejection.32 Torso rollout—when the torso of a child completely escapes or rolls out of the shoulder harness—is a type of partial ejection that can occur in oblique crashes and rollovers.33 Children who roll out of a shoulder belt often sustain severe intra-abdominal injuries and lumbar or cervical spinal cord injuries, often resulting in paralysis.34

Establishing liability

As with any crashworthiness case, one brought on behalf of a child injured by improperly fitting, or absent, safety belts is based on the claim that the vehicle was defectively designed because it failed to provide adequate occupant protection during a crash.

In addition to proving that a product is unreasonably dangerous as designed, plaintiffs in many jurisdictions are required to assert a design defect claim to prove the existence of a safer alternative design. A safer alternative design in safety gap cases is the integrated child seat. These are seats with harnesses built into the cushion of a vehicle’s rear seats. They have been available in some European vehicles since the late1980s. Child safety advocates, manufacturers, and safety experts agree that an integrated child seat with a five-point harness is the safest form of child restraint available.35

Most jurisdictions also require plaintiffs to prove that a proposed safer alternative design is economically and technologically feasible. In the United States, Chrysler first introduced five-point integrated child seats in the U.S. market by placing them in its minivans in the 1992 model year. Other manufacturers have also offered the seats, as optional equipment on select model vehicles.

Accordingly, the auto manufacturers’ own conduct proves the technological and economic feasibility of this safer alternative design. Moreover, there is no real functional or cosmetic problem associated with integrated child seats; the seat is virtually indistinguishable from a normal bench seat when the safety seat is not in use.

Plaintiff attorneys also should consider advancing a marketing-defect claim. This concerns the seller’s failure to adequately warn or instruct consumers on the safe use of the product. Manufacturers recognize that nearly 80 percent of parents do not use the proper safety device for their four- to eight-year-old children; automakers clearly have knowledge of the danger. Yet manuals and notices that accompany many vehicles do not warn parents of the danger associated with having children wear seat belts designed for adults.

Many owner’s manuals may suggest that booster seats be used for children who weigh 40 to 80 pounds, but they are unlikely to contain any meaningful instruction on which ones work best with the vehicle’s seat belts. These vehicles therefore lack adequate instructions for safe use by children in the safety gap.

Making the Case

As soon as a potential client contacts you, take immediate steps to preserve the evidence. The vehicle should be secured in its postcrash condition. Nothing should be disassembled or removed from it without notice to the defendants.

You should inspect the seat belt, review the child’s medical records, and interview witnesses to determine if and how the child was wearing the belt. A qualified accident-reconstruction expert should inspect, measure, and photograph the crash scene and any other vehicles involved.

Retain a biomechanical engineer or qualified medical expert to review the medical records, X-rays, and other imaging studies to determine whether the child’s injuries were caused by a belt’s poor fit and geometry. After an initial review, consult an expert with knowledge of automobile design to analyze the design defect claims.

Obtain documentation from the manufacturer relating to the design and marketing issues raised in the case. Many of these materials have been disseminated publicly or uncovered in earlier litigation, so you may already have many of the relevant documents even before filing the case.

Anticipate Certain Defenses.

First, the automaker may deny that a safety gap exists. This defense is easily refuted by statistical information compiled by independent third parties like the consumer advocacy group Public Citizen and by the auto industry’s own statements acknowledging the safety gap.

Second, the manufacturer may blame the child’s parents for not using a booster seat. To counter this, produce evidence showing there is no consensus on the appropriate use of booster seats. Properly qualified design and biomechanical experts can explain why the use of a booster seat may not have prevented the injuries sustained in a particular crash.

Finally, the manufacturer almost certainly will argue that because its rear-seat restraint system meets Federal Motor Vehicle Safety Standards, it is not defective. However, compliance with government standards does not establish as a matter of law that the design is not defective. Explain to the jury that these are minimum standards and that nothing prevents manufacturers from exceeding these minimum standards in the interests of children.

Auto manufacturers have a duty to design and market cars that provide consumers of all ages with a reasonable level of protection in the event of a crash. While seat belts may provide protection for many adults, a gap in crash protection exists for children between four and eight years old. Successfully pursuing cases for the forgotten children in this age group should allow the injured to obtain justice and cause auto manufacturers to improve the safety of their cars.

Notes
1. Martha W. Bidez & Stephen R. Syson, Kinematics, Injury Mechanisms, and Design Considerations for Older Children in Adult Torso Belts, SAE 2001-01-0173, in BIOMECHANICS RESEARCH & DEVELOPMENT (Soc’y Auto. Eng’rs 2001); Richard Stalnaker, Inconsistencies in State Laws and Federal Regulations Regarding Child Restraint Use in Automobiles, SAE 933087, in CHILD OCCUPANT PROTECTION 51 (Soc’y Auto. Eng’rs 1993).
2. Jacques Nasser, Former Chief Executive Officer, Ford Motor Co., Address at the New York International Auto Show (Apr. 2000).
3. Id.
4. See FORD MOTOR CO., BOOST AMERICA! RAISING KIDS WITH SAFETY IN MIND, available at www.actsinc.org/childpassengersafety.html (last visited Sept. 27, 2002).
5. See generally AUTO. COALITION FOR TRAFFIC SAFETY, INC., CHILD PASSENGER SAFETY, at www.actsinc.org/childpassengersafety.html (last visited Sept. 27, 2002).
6. See Nasser, supra note 2.
7. See S. REP. NO. 107-137 (2002).
8. Id.
9. Id.
10. Id.
11. NAT’L HIGHWAY TRAFFIC SAFETY ADMIN., BUYING A SAFER CAR FOR CHILD PASSENGERS (2001), available at www.nhtsa.dot.gov/People/ Injury/ChildPS/SaferCar2001/contents.html (last visited Sept. 27, 2002).
12. NAT’L HIGHWAY TRAFFIC SAFETY ADMIN., TRAFFIC SAFETY FACTS 2000—CHILDREN 5 (2000), available at www-nrd.nhtsa.dot.gov/pdf/nrd-30/ NCSA/TSF2000/2000chdfacts.pdf (last visited Sept. 27, 2002).
13. Press Release, Automotive Coalition for Traffic Safety, Blue Ribbon Panel II Announces Recommendations to Improve Child Passenger Safety (Mar. 15, 1999), available at www.actsinc.org/ whatsnew_5.html (last visited Sept. 27, 2002).
14. See S. REP. NO. 107-137, supra note 7.
15. Id.
16. See S. REP. NO. 107-137, supra note 7.
17. PARTNERS FOR CHILD PASSENGER SAFETY PROJECT, PARTNERS INTERIM REPORT (1997), available at www.chop.edu/download/ Interim_report.pdf.
18. Bidez & Syson, supra note 1.
19. Id.
20. Bidez & Syson, supra note 1.
21. David L. Perry, A Primer on Crashworthiness for the Non-Crashworthiness Lawyer (Nov. 3, 2001), available at www.crashworthinesscases.com/crashworthinessIntro.html.
22. See S. REP. NO. 107-137, supra note 7.
23. Id.
24. Id.
25. Id.
26. Bidez & Syson, supra note 1.
27. Id.
28. Id.
29. Id.
30. No. 010902023 PI (Utah, Salt Lake County Dist. Ct. June 26, 2002).
31. See Utah Highway Patrol Accident Report (Nov. 8, 1999).
32. Bidez & Syson, supra note 1.
33. Id.
34. Id.
35. FORD MOTOR CO., INTEGRATED CHILD RESTRAINT STRATEGY STATUS REPORT (1995).

What is a Jones Act Seaman?

What is a Jones Act Seaman?

Under the Jones Act, “seamen” are entitled to compensation for their medical care, lost wages, and potentially other financial damages if you are injured at work or suffer an occupational illness. The text of the Jones Act itself does not define a “seaman.” Rather, court cases interpreting who is eligible for Jones Act relief have defined the term. Out of this body of law, the Supreme Court developed a three-part test to determine if an individual counts as a “seaman” within the scope of the Jones Act. The three-part Jones Act Seaman test is determined by answering the following:

  • Are you professionally attached to a vessel that navigates on the water?
  • Do you have a substantial employment connection to this vessel or fleet of vessels in terms of time served or the nature of your duties?
  • Do your duties make a significant contribution to the function of the vessel?

Do I Qualify Under the Jones Act If I Am Injured? Am I a Seaman?

Under the Jones Act, “seamen” who are injured in their line of work or suffer occupational illness are entitled to compensation for their medical care, lost wages, and sometimes other financial damages. However, whether you are considered to be a “seaman” under the law is important to your recovery—and the definition may not be as obvious as you think.

Who Is a “Seaman” Under the Jones Act?

Three Vessels on the Ocean

The text of the Jones Act itself does not define a “seaman.” Rather, court cases interpreting who is eligible for Jones Act reliefhave defined the term over time. Ultimately, the Supreme Court developed a three-part test to determine if an individual counts as a “seaman” within scope of the Jones Act:

  • Are you professionally attached to a vessel that navigates on the water?
  • Do you have a substantial employment connection to this vessel or fleet of vessels in terms of time served or the nature of your duties?
  • Do your duties make a significant contribution to the function of the vessel?

With the Jones Act, seamen are afforded some of the greatest protections in American law. But, without a clear statutory definition of the term “seaman,” it is often necessary to talk over the details with an attorney to determine if you qualify for these special protections awarded to those who spend their lives working at sea.

Job Positions Usually Covered by the Jones Act and Other Maritime Laws

If you meet the basic requirements to be considered a seaman, your position on the vessel does not matter. The Jones Act covers all kinds of positions, including:

  • Cook
  • Steward
  • Deckhand
  • Roustabout
  • Roughneck
  • Driller
  • Commercial fisherman
  • Captain
  • AB
  • Deckhand
  • Ferry worker
  • Carpenter

Temporary workers, some contractors, and passengers are generally excluded, but most other positions working on or near the water are generally covered. Although they don’t qualify for Jones Act benefits, passengers and non-employees who are injured on a ship or as a result of an accident on the water may have other options for recovery. If you have any questions about your rights, don’t be afraid to talk it over confidentially with an attorney who is familiar with maritime laws and injury claims.

Types of Vessels That Jones Act Seamen Work On

The type of vessel you work on can also have an impact on whether or not you qualify as a “seaman.” For the purposes of the Jones Act, the word “vessel” can be applied to a number of different structures and ships, such as:

  • Drill ships
  • Towboats
  • Crew boats
  • Floating cranes
  • Cargo ships
  • Cruise ships
  • Dredges
  • Fishing boats
  • Ferry boats
  • Jack-up rigs
  • Semi-submersible vessels
  • Tugboats
  • Barges
  • Supply boats
  • Tankers

Keep in mind, too, that a common misunderstanding about the Jones Act is that people think you have to be injured while a vessel is in the water in order for this law to apply. This is not how the Jones Act works. Even if you are injured while docked or on land, you may have a valid Jones Act claim. As long as you were required to work on a vessel at the time of your injury, it doesn’t matter whether you were on this vessel or on the water.

Some Workers Who Don’t Qualify for the Jones Act Still May Qualify for Other Compensation for an Injury

There are other workers who do not qualify as “seamen” but still work on or near the water. While they may not qualify for Jones Act benefits, they may have rights under other maritime laws. For example, the Longshore and Harbor Worker’s Compensation Act (LHWCA) covers some injured workers who don’t qualify as “seamen” under the Jones Act, including:

  • Stevedores
  • Longshoremen
  • Dock workers
  • Shipbuilders
  • Harbor workers

The types of benefits awarded under the Jones Act, LHWCA, and other laws can differ greatly, so it’s important to get informed about your rights and the benefits you can pursue as soon as possible after you’ve been hurt.

Contact Our Experienced Attorneys Today for Answers About the Jones Act and Injury Benefits

If you have been hurt while working on just about any type of vessel, there is a good chance that you are eligible for benefits under the Jones Act or other laws. However, not every claim is successful, and sometimes it might not even be necessary to pursue a claim at all. Because Jones Act claims can be complicated, we urge you to seek legal guidance before you decide whether or not you want to pursue a claim. Keep in mind that, while many maritime employees are covered by the Jones Act, not all employees are protected in every situation.

To start investigating your case with one of our experienced attorneys right away, please contact us at 877-724-7800.


Is The All-American Amusement Park Safe?

Thousands of visitors are injured every year at amusement parks, but the industry remains largely unregulated. How much fun is too much? How many people have to be hurt or killed because amusement parks, state fairs, carnivals, water parks, and more fail to maintain their rides and the government has failed to pass safety laws.

Memorial Day is the unofficial kickoff of the amusement-park season every year. As families flock to parks this summer seeking fun and excitement, government authorities and consumer advocates continue to question the safety of rides in an increasingly competitive industry.

We put our safety in the hands of these parks, fairs, and carnivals when we go on these rides. The operators have a duty to inspect and maintain their rides to keep people safe. And we assume they’ve done their job.

Most people assume that these rides are safe, but public scrutiny of amusement parks has increased dramatically since 1999, a particularly deadly year for the industry. With every injury or death, we want the amusement park industry to take steps to make rides safer and to prevent future incidents. Here are a few of the most recent serious injuries at parks:

  • 1 person was killed and 7 people were injured in an amsuement park ride accident at the Ohio State Fair in July, 2017.
  • An Army veteran drowned at a water park in East Texas because the park failed to keep the swimming area safe and clear of hazards or debris.
  • An 11-year-old boy fell out of the Mayan Mindbender at Astroworld in Houston, Texas, suffering catastrophic injuries.
  • A 12-year-old boy fell 200 feet to his death after slipping through a harness on the Drop Zone Stunt Tower ride at Paramount’s Great America Theme Park in Santa Clara, California.
  • Five people were injured when a piece of wood came loose from the track of a Knott’s Berry Farm roller coaster in Buena Vista, California.
  • A 20-year-old man sustained fatal injuries on the Shockwave roller coaster at Paramount’s Kings Dominion in Doswell, Virginia.
  • A 39-year-old woman and her 8-year-old daughter were killed when their car slid backward down a 30-foot ascent and crashed into another car, injuring two others on the Wild Wonder roller coaster at Gillian’s Wonderland Pier in Ocean City, New Jersey.
  • A 28-year-old woman drowned when a raft capsized at Six Flags Over Texas in Arlington.
  • A teenager died of internal bleeding when he was thrown from a decoupled car on Coney Island’s Super Himalaya.1

Tragically, ride-related deaths have occurred every year since. According to the most recent figures compiled by the Consumer Product Safety Commission (CPSC), in 2002 an estimated 3,800 injuries were associated with fixed-site amusement rides, 3,000 with mobile rides, and 2,500 with inflatable rides.2

Amusement is big business. The International Association of Amusement Parks and Attractions (IAAPA), a leading industry organization, estimates that there are 600 parks and attractions in the United States. Last year, according to the organization, 322 million people visited amusement parks, a 27 percent jump in attendance from 1990. Revenues over the same period increased much faster —revenues of $10.3 billion in 2003 were 81 percent higher than those in 1990.3

Although parks come in many different sizes, the industry is dominated by large, corporate-owned establishments. According to Amusement Business, an industry newspaper, nearly half of all 2003 visitors—over 155 million people—went to the 50 largest parks in North America. It is not surprising that Walt Disney Co. owns the five most highly attended parks on the list: The Magic Kingdom, Disneyland, Epcot, Disney MGM Studios, and Disney’s Animal Kingdom. Six Flags Theme Parks, Inc., is another big player, with 14 parks in the top 50 for attendance in 2003.4

The amusement industry is also highly competitive. Customers are no longer satisfied with the quiet thrill of a spin on the Ferris wheel; they want the tallest and the fastest, and companies struggle to outdo each other to deliver.

Until last year, the largest and fastest roller coaster in North America was Superman: The Escape, at Six Flags Magic Mountain in Valencia, California. At 415 feet high, with a 328-foot drop and speeds up to 100 mph, the $20 million coaster had held that record since 1997.5 The Cedar Point amusement company spent $25 million to top Superman by 5 feet and 20 mph with its Top Thrill Dragster in Sandusky, Ohio.6

Wild rides, weak regulations

Surprisingly, this highly lucrative and competitive industry is not regulated by the federal government. When Congress established the CPSC in 1972, it gave the commission the authority to regulate all types of amusement rides.7 In 1981, however, Congress amended the Consumer Product Safety Act to exclude certain types of rides

The term ‘consumer product’ . . . includes any mechanical device which carries or conveys passengers along, around, or over a fixed or restricted route or course or within a defined area for the purpose of giving its passengers amusement, which is customarily controlled or directed by an individual who is employed for that purpose and who is not a consumer with respect to that device, and which is not permanently fixed to a site. Such term does not include such a device which is permanently fixed to a site.8

According to the commission, the term “consumer product” includes “mobile rides,” which are moved from location to location with fairs, carnivals, parties, or other events, as well as inflatable rides. However, the description explicitly excludes the “fixed-site rides” found in amusement parks, theme parks, or other permanent locations.9 This means that the biggest rides are the ones most likely to operate without real oversight.

Not surprisingly, the big corporate players in the amusement industry lobbied extensively for this amendment. Senator Edward Markey, then a Democratic Congressman for Massachusetts, a long-time advocate for the return of federal regulation over fixed-site amusement rides, calls this amendment the “roller coaster loophole.”10

The CPSC has no jurisdiction to investigate any incidents at the large parks, and fixed-site operators are not required to report incidents or ride malfunctions to authorities. Because the data the commission obtains through its National Electronic Injury Surveillance System (NEISS)—a sample of about 100 U.S. hospitals with emergency rooms—involves only situations that require hospitalization, no one knows how often rides malfunction or operators make mistakes that do not result in injury. It is likely that injuries, fatalities, malfunctions, and operator errors are under-reported.

Markey introduced a bill in 2003 to close the roller coaster loophole, and has reintroduced the bill multiple times in both the House and the Senate. The National Amusement Park Ride Safety Act (currently pending) would restore the CPSC’s jurisdiction over fixed-site rides and would appropriate funds for the commission’s expanded duties.11 The last time he introduced his bill, IAAPA President and CEO Chip Cleary released a statement opposing it, saying the “industry is already safe and well regulated.”

Regulations are also lacking in some states. Eight do not have state-administered inspection programs for mobile rides, and another eight states and the District of Columbia do not have state-administered inspection programs for fixed-site rides.12 Amusement companies in these states may operate without any government regulation at all.

State regulations that do exist are based on vague standards drafted primarily by the amusement industry itself. Most of them are based on standards created by the American Society for Testing and Materials (ASTM), which merely provides a management and administrative system for the development of voluntary, consensus standards.

In 1978, ASTM created a technical committee on amusement-ride safety standards. The committee, called ASTM F-24, developed 15 standards addressing ride design, operations, maintenance, quality control, and testing. The most recent of these, F2291-03a—issued late last year and known as the “world standard” for amusement-ride design—details specific criteria, including g-force limits.13 These are the only standards that apply specifically to amusement rides.

Of the nearly 400 members of ASTM F-24, more than half are either ride manufacturers or amusement park operators.14 Most of the committee’s officers are from the amusement industry or aligned with its interests.15

What can families of people injured or killed at amusement parks do?

Given the large number of ride-related injuries and deaths each year, along with weak regulations heavily influenced by the industry, litigation involving amusement companies will no doubt continue. Families of people who have been hurt or killed because of unsafe, unregulated rides or attractions deserve answers, deserve justice, and deserve accountability.

We have helped victims of unsafe amusement park rides and water parks obtain millions in compensation as well as helped them shut down Astroworld and Nine Mile Ranch for failing to keep their loved ones safe. Our experience helping victims of unsafe amusement parks can help guide other families. Time is of the essence after an accident on a ride or at a water park.

Three steps for families to take after a loved one is hurt or killed in an amusement park accident:

  1. Families need to hire a lawyer right away to get a Temporary Restraining Order (TRO) filed with a judge. This TRO will prevent the park and the owner of the ride from tampering with, altering, removing, or destroying any evidence. The company will want to get rid of any evidence that might prove they were at fault, which means you need to get the justice system working for you as fast as possible. The TRO will allow your lawyer time to bring in an independent expert at these types of cases to investigate the accident, examine all of the evidence, and determine who is at fault.
  2. Families need to make sure they document everything. Photograph any injuries, document all doctors’ visits, write down what you remember happening and if there was anyone else around you who saw the accident happen, and keep all the receipts and records you can. These documents are going to be important as you and your lawyer build your case.
  3. Focus on recovering. Your attorney is working hard to hold the company accountable, and you need to make sure you’re doing everything to get better. Do everything your doctors say. Always assume the amusement park has people watching you to see if you’re really hurt or if you do anything that goes against your doctor’s orders. For example, if your doctor tells you to not mow the lawn, don’t mow the lawn. Ignoring your doctors is the fastest way to ruin your case.

Your lawyers will be working on making sure you have the strongest case possible. That includes:

  • Finding the best place to file your case. One of the most common hurdles to an amusement park injury case is the doctrine of “assumption of risk,” which bars a claim if the plaintiff expressly or impliedly assumes a risk of harm.16 Many, but not all, states follow this doctrine.17 Counsel should determine whether the relevant jurisdiction recognizes the doctrine, and if so, the manner in which it is applied.
    •  For example, in Georgia, a person who uses amusement park rides assumes the risk of injury arising “as a result of the natural and obvious hazards necessary to the purpose of the device.”18 In New York, a participant in a recreational activity consents to those commonly appreciated risks that are inherent in and arise from the nature of the activity.19
  • Liability theories. Several causes of action are typically available to an amusement park patron injured on a ride. Evidence that the patron was not properly secured in a ride, or that the amusement company failed to properly maintain or operate the ride, should support an allegation of general negligence. Rides are typically operated by low-wage workers, so finding evidence to support a negligent hiring or training claim is not unusual. In states with regulations that apply to a particular ride, you should plead negligence per se, which will probably be based on ASTM standards.
    • The facts underlying many amusement park accidents support allegations of premises liability. Patrons are generally considered invitees, triggering the highest premises-related duties on the part of the amusement company in most states.20 There may be evidence, for instance, that the company knew of previous problems with a particular ride.
    • Also consider whether strict products liability is a viable claim. Strict liability does not apply to owners and operators of amusement rides in most states.21 However, if evidence shows that a manufacturing, design, or marketing-related defect in the amusement ride contributed to cause the injury, you should assert a strict products liability claim against the appropriate parties. For example, a patron injured on a roller coaster at a Pennsylvania amusement park sued the park on the theory of strict liability; the plaintiff alleged that his injuries were caused by the defective manufacture and design of the ride’s seat belt.22
    • Many of the larger parks design their own rides, in which case a design defect claim may be alleged against the park. Some parks, however, contract with outside companies to design and manufacture rides. You will need to be careful in asserting products liability claims against such contractors, because they often have limited or no insurance coverage.
    • Some states hold amusement parks to the heightened duty of common carriers.23 Common carriers typically are engaged in the business of transporting the public, or its property, and have a duty to exercise the utmost diligence, skill, and foresight to provide for passengers’ safety.24 You should determine whether the relevant jurisdiction recognizes amusement parks as common carriers, and if it does, you should assert claims based on this heightened duty.
  • Discovery. Ask for all maintenance and operations records and instructions. You should also get all of the manufacturer’s specifications for the ride. In some cases, you will find that the amusement company was not maintaining or operating the ride properly. If state regulations apply to maintenance or operation, you may discover that the company did not comply with those regulations, either.
    • Also ask for any reports of injuries or other complaints. Amusement companies are often required by state law or insurance companies to keep track of injuries and complaints, although they are not necessarily required to report them to authorities.
    • Discovery may reveal information to support a spoliation-of-evidence claim. Because the defendant has complete control over its rides both before and after an accident, it may attempt to fix a ride before you can inspect it.
    • For example, in Nguyen v. Six Flags Theme Parks, Inc.,  an 11-year-old boy was ejected from the front car of a moving roller coaster, the Mayan Mindbender, which operated inside a closed structure in complete darkness.25 Each car had a T-shaped lap bar to be pulled down onto each rider’s lap before the ride started. Weeks after the accident, a company mechanic recorded that the lap bar on the subject car had an “intermittent locking malfunction.” Although Six Flags received several notices of the claim, the company completely disassembled and rehabilitated the ride—including replacing the lap bars in almost every car—before the plaintiff could inspect it. The company employee who supervised the rehabilitation project testified that the company did not keep track of which bars came out of which cars, so it was impossible to determine the condition of the bar that came out of the car involved in the accident.
    • To avoid problems like this, notify the amusement company in writing of a potential claim as early as possible, and request an immediate inspection of the ride before it is altered in any way. Quick measures such as these will help preserve, or even prevent, a claim of spoliation.
    • Blame-the-victim defense. Amusement companies almost always attempt to blame the patron for his or her injuries. However, because those injured at amusement parks are often young children, the company may be barred from asserting contributory negligence. In Nguyen, the defendant blamed the boy for not staying in the roller coaster car. Despite the lap-bar locking malfunction, Six Flags asserted that the boy came out of the car and flew approximately 20 feet to the concrete floor because he stood up and was jumping up and down on his seat. The company’s case began to crumble when it took the ludicrous position that the purpose of the lap bars was simply to remind the guests to stay seated, rather than to physically restrain them. Nguyen exemplifies the inadequacies of the CPSC’s data collection capabilities: Because the child was treated at a non-NEISS hospital, his injury was never reported to the commission.
  • Experts. Knowledgeable experts can help you refute the blame-the-victim defense and keep the jury focused on the ride, not the rider. For example, a biomechanical engineer or similarly qualified expert can analyze the forces exerted on a person’s body while on a particular ride. Often these forces are powerful enough to eject riders who are not properly secured or who are aboard rides that malfunction because of defective equipment.
    • Also consider retaining an industry expert with experience in the proper maintenance and operation of amusement rides. He or she can explain how negligence contributed to a mishap.

Amusement parks, theme parks, and water parks, with their array of thrill rides, have become an integral part of the American summer experience. Most parks encourage a false sense of security among patrons, who think—as they stand in line waiting for their turn— “Surely, with all these people here, these rides must be safe.” But numerous incidents from all over the country suggest otherwise.

Until the government establishes effective regulations, and until companies are required to report injuries that occur at their parks, visitors won’t know the dangers that await them.

To talk with our Board Certified attorneys about how we can help if you or a loved one has been injured or killed at an amusement park, give us a call at 877-724-7800. You will receive a free and 100% confidential case analysis. We will help you understand the lawsuit process, what to expect, and how we can help you get the justice you deserve.


Notes
1. Marc Silver, Fatal Attractions—Are Amusement Park Rides Unsafe at Any Speed?, U.S. NEWS & WORLD REP., Sept. 13, 2000, at 56.

2. MARK S. LEVENSON, U.S. CONSUMER PROD. SAFETY COMM’N, AMUSEMENT RIDE-RELATED INJURIES AND DEATHS IN THE UNITED STATES: 2003 UPDATE 4 (Nov. 2003).

3. INT’L ASS’N OF AMUSEMENT PARKS & ATTRACTIONS, U.S. AMUSEMENT/THEME PARKS & ATTRACTIONS INDUSTRY—ATTENDANCE & REVENUES (2003) available at www.iaapa.org (search for “attendance”) (last visited Apr. 28, 2004).

4. AMUSEMENT BUSINESS, TOP 50 NORTH AMERICAN AMUSEMENT & THEME PARKS (2003).

5. Jessica Reaves & Frank Pellegrini, The New Roller Coasters: Thrills, Chills, and Few Spills, TIME, June 26, 2001, available at www.time.com (search for “new roller coaster”) (last visited Apr. 28, 2004).

6. Top Thrill Dragster: Race for the Sky, available at www.cedarpoint.com (search for “Top Thrill Dragster”) (last visited Apr. 28, 2004).

7. Memorandum from Susan Ness, Office of General Counsel, U.S. Consumer Prod. Safety Comm’n, to Charles H. Boehne, Office of Field Coordination, U.S. Consumer Prod. Safety Comm’n, stating that “amusement rides fall within the jurisdiction of the commission, and are subject to regulation under the Consumer Product Safety Act,” citing 15 U.S.C. §2052(a)(1) (Nov. 13, 1974). As originally enacted, the act defined a “consumer product” as “any article or component part thereof, produced or distributed . . . (ii) for the personal use, consumption, or enjoyment of a consumer in or around a permanent or temporary household or residence, a school, in recreation, or otherwise . . .” (emphasis added).

8. 15 U.S.C. 2052(a)(1) (2000).

9. LEVENSON, supra note 2.

10. Statement of Rep. Edward Markey (D-Mass.) introducing the National Amusement Park Ride Safety Act of 2003 (May 22, 2003), H.R. 2207, 108th Cong., 1st Sess. (2003).

11. National Amusement Park Safety Act of 2003, available at www.theorator.com/bills108/ hr2207.html (last visited Apr. 28, 2004).

12. JAMES A. DEMARCO, OFFICE OF COMPLIANCE, U.S. CONSUMER PROD. SAFETY COMM’N, DIRECTORY OF STATE AMUSEMENT RIDE SAFETY OFFICIALS (Mar. 2004).

13. Standard Practice for Design of Amusement Rides and Devices, available at www.astm.org (search for “F2291”) (last visited Apr. 28, 2004).

14. T. Harold Hudson, A New World Standard for Amusement Rides (Aug. 2003), available at www.astm.org (search for “world standard”) (last visited Apr. 28, 2004).

15. Committee F24 on Amusement Rides and Devices, Officers and Staff Support, available at www.astm.org (search for “F24,” then click on “Committee Officers & Staff Support”) (last visited Apr. 28, 2004).

16. RESTATEMENT (SECOND) OF TORTS §§496B, 496C (1965).

17. See, e.g., Jekyll Island State Park Auth. v. Machurik, 552 S.E.2d 94 (Ga. Ct. App. 2001); Beroutsos v. Six Flags Theme Park, Inc., 713 N.Y.S.2d 640 (N.Y. Sup. 2000).

18. See Jekyll Island State Park Auth., 552 S.E.2d 94, 95-96.

19. See Beroutsos, 713 N.Y.S.2d 640, 641.

20. Harrelson v. Wild Adventures, Inc., 588 S.E.2d 341 (Ga. Ct. App. 2003); Lilya v. Greater Gulf State Fair, Inc., 855 So.2d 1049 (Ala. 2003).

21. Ferrari v. Grand Canyon Dories, 38 Cal. Rptr. 2d 65, 71-72 (Ct. App. 1995); Siciliano v. Capitol City Shows, Inc., 475 A.2d 19 (N.H. 1984).

22. Eljizi v. Dorney Park Coaster Co., No. 92-C-2322, 1996 WL 1038823 (Pa., Lehigh County Ct. Com. Pl. June 19, 1996).

23. See, e.g., Friedli v. Kerr, No. M1999- 02810-COA-R9-CV, 2001 WL 177184, at *7 (Tenn. Ct. App. 2001).

24. Id. at *6.

25. No. 2001-54868 (Tex., Harris County Dist. Ct. 2002).

Jones Act lawsuit settlements – learn the formula

Learn the “formula” for Jones Act lawsuit settlements

The Jones Act is a federal law that provides compensation to injured seaman, offshore workers, and inshore workers injured on the job while assigned to a vessel in navigation. As an injured seamen, you probably want to know the “formula” for calculating your settlement amount.  In fact, during a maritime case the formula for a Jones Act lawsuit is one of the most common questions.

There are many different answers to this question.  Some lawyers will tell you to add up your medical bills and lost wages, then multiply by 2 or 3. Some believe the resulting number is a good range for a settlement.  Other lawyers may tell you to “discount” the settlement amount by some percentage of estimated chances of success at trial.  Other lawyers may tell you to research what other clients have received in similar cases and use this as guidepost.

VB Attorneys has a different opinion, and a different way of helping clients determine a fair settlement for their case.  Let’s look further.

Why Our Jones Act Settlement Formula is Different

Juries or judges decide Jones Act cases that go to trial, not lawyers, clients, or insurance companies. They receive special instructions that tell them exactly what evidence they should and can consider.  Prior to reaching a verdict, these instructions guide them in the decision making process, telling them what questions to answer.

Judges and juries often have different opinions on personal injury and negligence cases, and the appropriate compensation for them.  Their answers to the proposed questions may vary widely. This is why you must be careful when comparing a prior verdict to your case, even if it is similar.

Another issue to consider is the fact that some lawyers have more experience handling and settling Jones Act cases. We have personally witnessed cases where a lawyer settled a Jones Act case for significantly less than we would have recommended.  This is yet another reason why it’s dangerous to look at other settlements and compare your case to them.  The amount of your settlement may have more to do with who you hire as your lawyer than you may believe.

Finally,  you also have to be careful about calculating your case based on someone else’s because every case is different.  Even if the maritime case is against the company that employed you and you have similar injuries and lost wages, your case is different.  Witnesses may say and do different things or the negligence evidence could be different. The lawyers defending the company may be different, and the insurance company deciding how much to pay in settlement may differ.

So, although other cases can be somewhat helpful, it is our opinion, you should avoid using similar comparisons or “formulas” in an individual Jones Act case to determine your case value.

A Better Approach to Determining Settlement Values in Your Maritime Case

We believe the best way to determine an appropriate and fair settlement amount is to ask this overarching question:  “If my case goes to trial, what would a jury likely do with my case?”  That, to us, is the number one consideration to determining a fair and reasonable settlement.  Nothing else matters as much as the answer to this question.

In fact, insurance companies have huge databases of verdicts and settlements at their disposal to keep track of thousands of cases.  A good lawyer will have access to publications that contain Jones Act lawsuit settlements in all sorts of cases.

So, obviously, the next question is:  “How can you determine what a jury is likely to do with your case?”

It is our opinion that unless you have a qualified lawyer with experience investigating, preparing, and settling cases, it will be extremely difficult to know with any level of comfort what a jury is likely to decide.

How Can a Good Jones Act Lawyer Help Me Understand a Fair Jones Act Lawsuit Settlement Amount?

Once you’ve selected the right lawyer for your maritime case, they should carefully, thoroughly, and painstakingly investigate.  The particulars of the investigation will vary greatly from case to case, but in general, a competent and thorough investigation will include interviewing witnesses and examining accident reports and witness statements.  It will also include studying your medical, employment, and financial records, looking at industry safety standards, and, if necessary, taking formal legal steps like depositions and document requests.

You will almost certainly need help from expert consultants like economists (for lost wages), medical doctors (to explain your diagnosis and prognosis), specialists for job training, and maybe a specialist for future medical cost analysis.

Once your case is investigated then your lawyer should meet with you and explain what the investigation has revealed and answer any questions you have.

In a Jones Act case, you are entitled to what is known as maintenance and cure, unless you didn’t reveal a pre-existing medical condition.  Your settlement should include all past due and future maintenance and cure.

You are also entitled to lost wages, both past and future, pain and suffering, mental anguish, impairment, loss of enjoyment of life, and other elements of financial compensation, if you prove negligence or unseaworthiness.  A good lawyer will walk you through your chances of success and help you calculate all these figures.

Finally, your case will also be effected by the Judge assigned to your case and the geographical location of the Court.  Simply put, some Judges are friendlier to injured workers and some are less friendly, and some geographic locations have a history of being more or less friendly to the claims of injured people.  That’s why you have to factor in your judge and jury into the settlement calculation.

Settling Your Jones Act Case the Right Way

We at VB Attorneys believe there is a right way and a wrong way to help clients settle their Jones Act case.

The wrong way is to base your decision on someone else’s case, or on some “stock formula” of medical bills plus lost wages plus some factor of 2, 3 or 4.  This is the lazy way to determine settlements and approaches like this may or may not be appropriate for your case.

The right way to obtain a fair and reasonable settlement is to carefully and thoroughly review the facts of your case and to carefully and thoroughly investigate your case.  After which, analyze the facts of your case through the lawyer’s experience and professional judgment.  Then, and only then, will a competent lawyer talk with you about the results of his or her investigation, walk you through all the pros and cons, answer any questions you have, and then give you their professional opinion of what your settlement should be based on.

You should never be forced into accepting any Jones Act lawsuit settlements you don’t approve.  It is your case and your decision.  But if you trust your lawyer, you should obviously give great weight to their professional recommendations.

Learn More About What Your Jones Act Lawsuit Settlement Should Look Like

To learn more about what your Jones Act lawsuit settlement should look like, contact our Board Certified maritime attorneys today by filling out a confidential contact form or giving us a call at (877) 724-7800.