School Bus Driver Liability for Injuries

Earlier this year, the Ohio Supreme Court heard arguments about liability for injuries to children involving school buses. The issue in the case was whether school bus drivers are liable for injuries and fatalities when students do not go straight home after leaving the bus.  Although the court dismissed the case, the general issues are worthy of consideration.

_MG_7919-2The case in question involves a first-grader who left her school bus and ran down the street toward a friend’s house and was struck and seriously injured by a car – after the bus had continued on its route.  The incident occurred in the Village of Cleves, near Cincinnati. Ohio law says that drivers must wait until the student reaches a safe place before moving on. At issue is how long a driver must wait and what is meant by a “safe” place. Although many, including some justices on the lower court, agreed that the law was poorly written, it is the only law available for now.

The Ohio Supreme Court decided that it had “improvidently” accepted this case and dismissed it, sustaining the ruling of the Hamilton County Court of Appeals that the school district was not liable.  Nevertheless, the larger issues about school busses and liability are not new nor are they limited to Ohio.

Do you think school bus drivers should be liable for students after they leave the bus? Share your school bus safety concerns in the comment section below.

School districts across the United States are generally immune from liability in such matters, unless it can be demonstrated that the driver was negligent. Is the driver required to actually supervise a child once he or she is no longer on the bus? Is not providing such supervision a form of negligence?  Is the driver required to escort the child to a safe place, leaving the other children unsupervised on the bus?

Supervision of Students

And what is meant by supervision? In North Carolina, for example, the state Board of Education is considering a requirement that drivers signal students when it is safe to cross the street. What if the driver signals, the students start to cross, and a car speeds around a corner and strikes a student? Is the bus driver liable?

Criminal Negligence vs. Civil Negligence

Like Ohio, the state of Washington requires that school bus drivers be found negligent before they can be held liable for student injuries or deaths. They can be criminally negligent, which means they have broken a law, such as failing to stop at a traffic signal or speeding. A driver could also be proven negligent in a civil case, which requires a lower standard of proof than criminal negligence. This could mean that the driver should have responded to a situation in a way a reasonable person would have and is a tough standard to apply. For example, if a driver suspected that the brakes on the bus were bad, should he or she have kept on driving?

Are Drivers Supposed to Intervene When a Child Is Being Bullied?

What about a child who is bullied on a school bus? Parents in Missouri sued their school district because it allegedly failed to stop their son from being bullied on the school bus, resulting in the boy’s suicide. The parents received a $300,000 settlement from the school district.

Bus Fights

In St. Johns County, Florida, bus drivers are expected to break up fights – IF doing so does not compromise their safety. In other Florida counties, however, drivers are not permitted to touch students in any way, making it difficult to intervene in many situations.

Driver Texting

A Nashville case was pretty straightforward; a driver was found to have been sending and receiving texts while transporting students. The driver has since died, so families cannot file lawsuits against the driver. However, the school district could still be held liable.

Liability for Administering Medication

How far will we go to ensure the safety of students on school buses? Some districts issue EpiPens to drivers so they can administer medication to students experiencing allergic reactions. However, many drivers are afraid they will be found liable if a student dies as a result of an allergic reaction, despite being given the injection. A lawmaker in Pennsylvania introduced a bill that would give drivers immunity from civil lawsuits involving the use of EpiPens.

Other Questions About School Bus Driver Liability

What if drivers are not school district employees? What if the buses are not school district equipment? Who is liable if school transportation is provided by a contractor rather than a school employee? The questions seem endless. This makes it very important for drivers to know the rules of their districts and states regarding operation of buses and their liability for injuries and deaths.

AED Liability in Ohio

The Elk & Elk law firm is pleased to announce it has purchased an Automatic External Defibrillator (AED) for use in an emergency. This life-saving device is located on the first floor of our Mayfield Heights location, near the restrooms. Now employees, clients and visitors to the Elk & Elk building will have a better chance of surviving a cardiac arrest.

Cardiac Arrest

According to the Red Cross, sudden cardiac arrest is one of the leading causes of death in the United States. Over 350,000 people will suffer from sudden cardiac arrest this year. It can happen to anyone, anytime, anywhere and at any age. An AED is the only effective treatment for restoring a regular heart rhythm during sudden cardiac arrest and is an easy-to-operate tool for someone with no medical background.

Time is of the essence:

  • The average response time for first responders once 9-1-1 is called is 8-12 minutes.
  • For each minute defibrillation is delayed, the chance of survival is reduced approximately 10%.

Am I Liable?

People may worry they may be sued if something goes wrong while using an AED or performing CPR on an unconscious victim. Thanks to Ohio’s “Good Samaritan Laws,” people who voluntarily assist victims in distress are protected from litigation. Pursuant to Ohio Rev. Code §2305.23, individuals are protected from liability for providing emergency care outside of a hospital unless their acts constitute “willful” or “wanton” misconduct or are performed for payment. (Paid firefighters and police are exempt from this provision.)

In December 2014, lawmakers passed an Ohio bill, which shields building owners from negligence claims arising from AED use. The new automated external defibrillator law (O.R.C. § 3701.85) extends immunity to anyone who owns an AED machine and allows anyone to use the device, recommending training but not requiring it. Additionally, any person performing defibrillation is required to make a “good-faith effort” to activate an emergency medical system (call 9-1-1) as soon as possible. The law had previously required the person to activate the system.

AED Training at Elk & Elk

To help us start our new public access defibrillation program, Certified American Red Cross Instructor Laura Breese came to Elk & Elk to train volunteers from throughout the building to recognize a cardiac emergency and use the device to shock the heart into a regular rhythm.

Checking an Injured or Ill Adult

If you encounter an unconscious person, follow these steps before using an AED:

  • Check for responsiveness. Tap their shoulder and shout, “Are you OK?”
  • If no response, Call 9-1-1 and send someone to get an AED. If an unconscious person is face-down, roll him or her face-up keeping the head, neck and back in a straight line.
  • If you are certified in CPR, begin while you wait for the AED.
    • Open the airway. Tilt head; lift chin.
    • Check for Breathing. Check for no more than 10 seconds. Occasional gasps are not breathing. If there is no breathing, perform CPR.
    • Give 30 chest compressions. Push hard, push fast in the middle of the chest at least 2 inches deep and at a rate of at least 100 compressions per minute. Person must be on a firm, flat surface.
    • Give 2 rescue breaths. Tilt the head back and lift the chin up. Pinch the nose shut and make a complete seal over the mouth. Blow in for about 1 second to make the chest clearly rise. Give rescue breaths, one after another.
    • Do Not Stop. Continue cycles of CPR. Do not stop unless you find an obvious sign of life (such as breathing), an AED is ready to use, another trained responder or EMS personnel take over, you are too exhausted to continue or the scene becomes unsafe.

An Automatic External Defibrillator (AED) can save livesUsing the AED

  1. Turn on AED. Follow the voice and visual prompts.
  2. Remove all clothing from the victim’s chest and wipe the bare chest dry. Remove any medication patches. Shave away any excessive hair. Metal jewelry may be removed to prevent burns, but remember that time is critical.
  3. Attach pads. Place one pad on the right center of the person’s chest above the nipple. Place the other pad slightly below the other nipple and to the left of the ribcage.
  4. Plug in connector, if necessary. (Our AED does not require this step, but others may.)
  5. Stand clear. Make sure no one, including you, is touching the person. Say, “Everyone, STAND CLEAR.”
  6. Let the AED analyze the heart rhythm. Push the “analyze” button if necessary.
  7. Deliver shock, if advised. Make sure no one, including you, is touching the person. Say, “Everyone, STAND CLEAR.” Push the “shock” button, if necessary.
  8. Perform CPR if no signs of life. After delivering the shock or if no shock is advised, perform 2 minutes (5 cycles) of CPR and continue to follow the prompts of the AED. If at any time you notice an obvious sign of life, stop CPR and monitor breathing and for any changes in condition. If two trained responders are present, one should perform CPR while the other operates the AED.

AED Safety

  • Do not use on children below 8 years or 55 lbs. unless using pediatric electrode pads.
  • Do not use on conductive surfaces , such as water, fluids or metals
  • Do not operate an AED if under the effects of alcohol or drugs
  • Do not touch patient when shock therapy is being delivered
  • Do not use in an explosive environment, e.g. oxygen enriched, gaseous or fume environment

For the complete Red Cross “Adult First Aid/CPR/AED Ready Reference” card, visit:
http://www.redcross.org/images/MEDIA_CustomProductCatalog/m28340131_Adult_Ready_Reference_Card.pdf

 

Ohio Backyard Pool Liability

black-and-white-pool-1

Nothing beats cooling off in a pool on a hot summer day, but be aware that owning a pool comes with important responsibilities. In Ohio, homeowners may be liable for injuries that occur on their property, including incidents in or around swimming pools. What’s more, under the “attractive nuisance doctrine,” pool owners may be held liable for injuries to a child who is hurt while trespassing on their property.

To help mitigate your liability, it is important to take steps to protect your guests and the general public from injuries. Please keep in mind the following safety tips are general guidelines. Pool owners should make themselves aware of all applicable city, county, and state requirements.

Safety Measures for Backyard Pools

Fencing

  • Install a four-sided pool fence that completely separates the house from the pool area. Do not consider the house as a fourth side of a fence if children can access the pool from a door or opening.
  • The fence should be at least four feet high and separate the pool from the house and play areas of the yard.
  • Use self-closing and self-latching gates that open outward. Ensure that the latches are out of the child’s reach.
  • Consider additional barriers such as automatic door locks or alarms to prevent or notify you of entry into the pool area.
  • Always remove portable pool ladders when not in use.

Safety Equipment

The Consumer Product Safety Commission recommends that you have the following items near your pool to ensure that if the worst happens, you are ready to respond.

  • First aid kit
  • Scissors to cut hair, clothing or a pool cover, if needed
  • Charged portable telephone or cell phone to call 911
  • Flotation devices
  • Reach pole

Insurance

While your homeowner’s insurance may be sufficient to cover some pool-related injuries, you may want to consider adding additional coverage. Talk to your insurance provider about adding an umbrella policy, which provides liability coverage over and above your automobile or homeowner’s policy. For about $150 to $350 per year, you can buy a $1 million personal umbrella liability policy. An umbrella policy will help protect your assets from an unfavorable lawsuit arising from personal injury or property damage caused by you, members of your family, or hazards on your property for which you are legally liable. Exclusions may apply, always talk to an experienced insurance agent and read your policy carefully to insure you have appropriate coverage.

 

Dog Bite Prevention Week – 2014

By now you’ve probably seen the viral video of “Tara,” a family cat saving a young boy from a dog attack.  Unfortunately, dogs bite more than 4 million Americans annually, half of which are children. While not all bites are severe, one in five dog bites results in injuries serious enough to require medical attention.

National Dog Bite Prevention Week® (May 18-24, 2014), is an annual event designed to provide consumers with information on how to be responsible pet owners while increasing awareness of a serious public health issue.

To reduce the chances of your dog biting someone, the Insurance Information Institute recommends taking the following steps:

  • Consult with a professional (e.g., veterinarian, animal behaviorist, or responsible breeder) to learn about suitable breeds of dogs for your household and neighborhood.
  • Spend time with a dog before buying or adopting it. Use caution when bringing a dog into a home with an infant or toddler. A dog with a history of aggression is inappropriate in a household with children.
  • Be sensitive to cues that a child is fearful of or apprehensive about a dog and, if so, delay acquiring a dog. Never leave infants or young children alone with any dog.
  • Socialize your dog so it knows how to act with other people and animals.
  • Discourage children from disturbing a dog that is eating or sleeping.
  • Play non-aggressive games with your dog, such as “go fetch.” Playing aggressive games like tug-of-war” can encourage inappropriate behavior.
  • Avoid exposing your dog to new situations in which you are unsure of its response.
  • Never approach a strange dog and always avoid eye contact with a dog that appears threatening.
  • Immediately seek professional advice from veterinarians, animal behaviorists, or responsible breeders if your dog develops aggressive or undesirable behaviors.

Liability

The Ohio Revised Code (955.28) imposes strict liability in dog bite cases. That means anyone who owns, harbors or keeps a dog is liable whenever his dog bites, injures or causes a loss to a person or to the property of a person—even if the dog has never bitten anyone one before—unless the injured individual was trespassing or committing a criminal offense other than a minor misdemeanor on the property. (Beckett v. Warren, 124 Ohio St. 3d 256, 2010-Ohio-4, 921 N.E.2d 624, ¶ 10.)

What to do after a dog bite

If you are bitten or attacked by a dog, try not to panic.

  • Immediately wash the wound thoroughly with soap and warm water.
  • Call 911 or contact your physician for additional care and advice.
  • Report the bite to your local animal care and control agency. Tell the animal control official everything you know about the dog, including his owner’s name and the address where he lives. If the dog is a stray, tell the animal control official what the dog looks like, where you saw him, whether you’ve seen him before, and in which direction he went.
  • Contact an experienced dog bite attorney to investigate your case and protect your legal rights.

 

For more information, visit http://www.cdc.gov/homeandrecreationalsafety/dog-bites/index.html

Insurance Company Blames You for Accident

Ohio attorney Michael Eisner shares a story about a client who was unable to collect compensation for his accident because the insurance company blamed him for his own injuries.

Following any motor vehicle accident, you will have to make countless decisions and face added responsibilities. After seeking medical attention, you’ll need to focus on getting healthy again, see to vehicle repairs, address absences at work and, of course, talk to your insurance company.

Unfortunately, you may find your insurance company is not on your side, which can exacerbate the stress of recovering from your injuries and the losses you suffered.

An insurance company may deny your claim based on a variety of factors, including the circumstances of the accident and if they determine the other party was not at fault. So, what happens when the other party is an animal?

Dog Owner Liability

In Ohio, there are laws regarding animals involved in accidents, especially dogs.

Section 955.28(B) of the Ohio Revised Code provides that, subject to certain exceptions, an “owner, keeper, or harborer of a dog is liable in damages for any injury, death, or loss to person or property that is caused by the dog.” Although widely used in dog bite cases, this statute applies to any injury to a person or property.

It takes an experienced attorney who understands liability laws and can help mediate with the insurance company to ensure your case is handled properly. While an accident involving a family pet may be upsetting, the dog’s owner needs to be held responsible for the accident.

To learn more about personal injury law, I encourage you to watch the video above and to explore our educational website at elkandelk.com. If you have legal questions, please call us at 1-800-ELK-OHIO. I welcome your call.

Michael Eisner

Make your home safe for trick-or-treaters

As a homeowner, you are responsible for keeping your property safe on Halloween and throughout the year. If a person trips or slips and gets hurt walking through your yard, you can be held responsible for any medical expenses they incur as a result. This is known as premises liability.

Your friends at Elk & Elk offer these Halloween safety tips to make your home safer for trick-or-treaters and help protect yourself from potential premises liability claims.

Halloween SafetyLight it up

A dark, spooky house might look festive, but opt for porch lights instead. Lighting along your driveway, on stairs, or along meandering paths makes it easier for little ones to see where they’re going and prevents trips, falls, and injury. Inexpensive wireless solar lights are available; just make sure they are charged properly before the festivities begin.

Clear the way

Remove all clutter from the yard, driveway, and walkways. Pick up lawn equipment, garden hoses, flowerpots, children’s toys, or any other items that may pose a tripping hazard. You may also want to consider pulling up low trellis fences or other landscape edging.

Clean up your act

The crunching of little feet on newly fallen leaves may bring a smile to your face, but they can be slippery, especially when wet. Leaves may also hide uneven pavement or divots in your lawn. To prevent injury, carefully rake and sweep the day of Halloween.

Who let the dogs out?

Dogs and other pets can become agitated with a bevy of oddly clad trick-or-treaters at your door. To prevent bites or an escaping pet, it’s best to keep your furry friends contained in a bedroom or behind a gate.

Don’t get burned

Battery operated candles in a jack-o’-lantern are a great alternative to traditional flames. They’re inexpensive, reusable and some even operate with a realistic flicker. However, if you’re a stickler for tradition, make sure candle-lit pumpkins are securely resting on a sturdy table, safely away from decorations and passers-by.

Remember, as a homeowner, premises liability is a legal responsibility that should always be taken seriously. A few simple steps may make the difference between a happy Halloween and a nightmarish lawsuit.
Now, who has the peanut butter cups?

Ohio Bill Gives Doctors More Immunities

Tort reform is alive and well in Ohio. Amid the rancor surrounding the federal government shutdown, a reprehensible bill has been proposed in the Ohio House of Representatives. If passed, House Bill 276 would grant even more immunities to health care providers.

Among other provisions, the bill states that if a physician admits he or she made a medical mistake, which caused death or serious harm to a patient, then that statement would be ruled inadmissible — preventing it from being used against the doctor in a court of law. If you or I were involved in an auto accident and we admitted the crash was our fault, we would be held liable for our actions. This begs the question: Why should doctors be treated differently?

Tort Reform

Proponents of tort reform have argued that litigation is to blame for the rise in medical costs. They maintain that by limiting jury awards and settlements, thereby lowering medical malpractice payments for doctors, patients will see a decrease in medical bills. During the health care reform debate, then-House Minority Leader John Boehner (R-Ohio) called medical malpractice the “biggest cost driver” in medicine. Republicans in Congress have made it a perennial priority to pass legislation that would restrict patients’ ability to seek redress in court.

However, a recent study by Public Citizen, an independent consumer advocacy group, shows that despite reduced litigation and smaller payouts to victims, the nation’s health care bill has continued to rise.

“Since 2003, medical malpractice payments have fallen 28.8 percent,” the report states. “If medical malpractice litigation were truly the ‘biggest cost driver’ in medicine, then declining payments should have pulled overall health care costs down. But the nation’s health care bill has risen 58.3 percent since 2003.”

New Legislation

Introduced by Rep. Peter Stautberg (R-Anderson Twp.), H.B. 276 would amend section 2317.43 and enact sections 2305.27 and 2323.40 of the Revised Code to provide special immunities to health care providers. The Ohio Association for Justice plans to fight the proposed legislation. They shared a summary of the bill in a recent email.

  • The bill says that admissions to the patient or patient’s family that the doctor committed an error or is at fault would be inadmissible in court. Ohio’s current apology statute makes expressions of sentiment inadmissible, but statements of fact that an error occurred during a procedure are admissible.
  • The bill bans medical negligence claims when the chance of a patient’s survival is less than 50%. In loss of chance cases today, the injured patient’s recovery is reduced proportionally based on loss of chance, but this would bar all recovery.
  • The bill grants immunity to hospitals and other health care facilities when the treating physician is an independent contractor. The hospital would have a duty to notify the patient that the facility is not liable for the actions of doctors who are independent contractors.

Prior tort reform legislation in Ohio placed caps on the amount an injured party could receive, thereby reducing the volume of litigation. However, as we previously shared, medical malpractice litigation can actually improve patient health by drawing attention to problem areas.

Joining Rep. Stuatberg as co-sponsors of the bill are Representatives John Becker (R-Union Township), Terry Blair (R-Washington Twp.), Louis W. Blessing, III (R-Colerain Twp.), Bob D. Hackett (R-London), Jay Hottinger (R-Newark), Terry Johnson (R-McDermott), Gary Scherer (R-Circleville), Barbara R. Sears (R-Monclova Twp.), and Ryan Smith (R-Bidwell).

 

Sources: 

House Bill 276, 130th Ohio Gen. Assembly, proposed September 30, 2013.

No Correlation: Continued Decrease in Medical Malpractice Payments Debunks Theory That Litigation Is to Blame for Soaring Medical Costs” Public Citizen, August 2013.

How to Combat Low Insurance Limits and Uninsured Drivers

Any responsible driver knows they must carry insurance that will help cover not only themselves in an accident but also anyone else they may have harmed.

Unfortunately, there are plenty of drivers out there that either have very low insurance coverage or are simply driving around without any insurance at all. How do you protect yourself from a driver like this?

One option is purchasing expanded coverage with your own insurance company. Your insurance company will have different options such as uninsured and underinsured motorist coverage. Basically, this type of coverage helps you recover when someone is driving without insurance or too little insurance to cover your damages and/or injury.

Most people who drive without insurance typically don’t have enough money to personally pay you for your injuries. So you really need to look at your own insurance company in order to recoup losses caused by such a negligent driver. Uninsured and underinsured motorist coverage often covers items such as medical bills, wage loss, prescription drugs, doctor visits, pain and suffering, emotional distress and even future earnings. It may not cover actual physical damage to your car or punitive damages, but it is meant to be used in conjunction with your current insurance policy, which will cover these damages. It is simply an extra amount of insurance for you if the other person’s policy does not cover your injuries or they don’t have any insurance at all.

To learn more about personal injury law, I encourage you to watch the video above and to explore our educational website at http://www.elkandelk.com. If you have legal questions, please call us at 1-800-ELK-OHIO. I welcome your call.

David J. Elk

 

You did not sign away all your rights with that injury waiver

 

People participate in many physical activities, usually with an understanding of the associated risks and dangers. The activity could be mild, like riding in a go-kart or extreme, like bungee jumping or skydiving. It seems like everywhere you go, you’re being asked to sign a waiver to exclude someone from being sued.

An injury waiver, also known as a release and waiver of liability, frequently states that a participant cannot take legal action if they are harmed or injured in any way because of the activity. But is that it? Does a waiver prevent us from taking any action — no matter what has happened? Actually, the answer is no. You do have some rights.

A waiver, once signed, is a valid contract. However, in the state of Ohio, you cannot waive away a person’s rights from unforeseeable negligence. By signing, you are saying that you understand the risk and are agreeing to go forward with the activity anyway. You are not saying that you won’t sue if someone is negligent and causes you harm.

Another instance that may allow you to file a claim is an injury due to a defective product. If you were injured as a result of a defective product and the defendant knew (or reasonably should have known) about the defect, you may be entitled to money damages.

If you suffered an injury because of a normal risk associated with the activity, you probably don’t have a case. On the other hand, if negligence was involved, your injury probably wasn’t caused by any of the normal risks and you may have a valid claim.

To learn more about personal injury law, I encourage you to watch the video above and to explore our educational website at http://www.elkandelk.com. If you have legal questions, please call us at 1-800-ELK-OHIO. I welcome your call.

Art Elk

Dozens injured in Ohio Bus Accident

A passenger bus crashed early this morning, just north of Cincinnati. The driver may have fallen asleep.

The Greyhound bus was carrying 51 passengers bound for Detroit when it careened off I-75 around 4:00 a.m., violently striking a tree and fence. The out-of-control vehicle flipped over twice before it finally came to rest on its side, injuring at least 35 people.

Nearly 100 first-responders arrived on the scene to find passengers suffering from a wide range of injuries. Six people required helicopter transportation to area hospitals and 29 were taken by ambulance. Reports indicate that emergency crews had to extract passengers trapped in the bus, some of whom had a suffered compound fracture – a grisly injury in which a broken bone pierces the skin.

Driver may have fallen asleep

Christopher Lake, a passenger from Michigan, told TV reporters that he saw the driver slumped over and heard a woman scream at the driver, “Wake up! Wake up!”

However, Kim Plaskett, a spokeswoman for Greyhound Lines Inc., assured reporters that the driver had only been on duty for an hour and was “fully rested.”

Interstate commercial passenger bus drivers must follow strict Hours of Service (HOS) regulations set forth by the Federal Motor Carrier Safety Administration (FMCSA).  Once drivers have been behind the wheel for 10 hours, they must rest for 8 hours before they are permitted to drive again. Additionally, there are limits for total weekly hours. Drivers may not exceed 60 hours in 7 days or 70 hours in an 8 day period.

Commercial drivers must also submit to a medical exam conducted by the Department of Transportation (DOT). Physicians take a detailed medical history and perform a physical exam – testing the driver’s vision, hearing, blood pressure, and screening for drugs and alcohol. The results are recorded in a medical report. The DOT exam is valid for 24 months.

Bus accidents are a serious problem

According to the Cincinnati Enquirer, “In the last two years, Greyhound buses have been involved in 102 crashes, three involving fatalities and 57 involving injuries. Nationally, in 2011 alone, there were 54,000 accidents involving buses, with 283 fatalities and 2,400 injuries.”

Don’t wait

In any motor vehicle crash, the period immediately after the crash is critical. Prompt investigations can capture accurate explanations of what happened and prevent evidence from being lost or destroyed. You can trust our experienced attorneys and comprehensive team of doctors, nurses, and accident reconstruction experts to investigate your claim.

For information about how our Ohio lawyers can help you obtain compensation for your damages after an accident, call 1-800-ELK-OHIO or contact us online.

 

Sources:

“34 injured in Liberty Twp. bus crash” by the Cincinnati Enquirer, September 14, 2013. (Updated)

“Greyhound Bus Overturns In Southwest Ohio; 34 Injured” by Lisa Cornwell, Huffington Post, September 14, 2013.

Ohio bus crash: Did driver fall asleep?Christian Science Monitor/AP, September 14, 2013.