Pedal

September 26, 2017

Happy Tuesday Afternoon Karen,

On Sunday we rode in Pedal the Cause. It's an amazing charity with 100% of donated money going to fund research to cure cancer. As with anyone, I have family members who have battled this disease (and are).

I was pumped to ride the 50 mile distance and many friends contributed; I was bummed to crash 4 miles into my ride. My front wheel hit a crevice and failed. My bike and I hit hard. At the end is a pic of my leg after. (And after I discuss three slip and fall successes).

The support truck with Big Shark was great. They loaned me a new wheel, cleaned my leg and off I went. It was really swollen and bloody – but cancer survivors don't stop and neither did I. On the plus side, I had a great time, raised $$, got new wheels on my bike and get to see my orthopod (it's been too long).

Pedal's mission "is to provide critical funding for cancer research at Siteman Cancer Center and Siteman Kids at St. Louis Children’s Hospital through our annual cycling challenge. It is our hope that research funded by Pedal the Cause will ultimately lead to a cure for cancer."

Kristen and I ride on Team Ellen, named in honor of our friends' mother Ellen Moore. Team Ellen has raised $135,325 for cancer research since 2013. Click here to visit and donate to the Team Ellen page.

Pedal the Cause raised $2,813,965 in donations this year and had 3,074 riders. Wow.

Slip and Fall Success

We just settled a claim for Regina at mediation for $66,000 against Walgreens and other Defendants. Regina went to Walgreens on January 12, 2015 in Chesterfield. She slipped on black ice in the parking lot, fell and injured her knee and foot. She immediately complained to management.

The Defendants refused to pay any money to compensate her for her case so we filed suit, took depositions, and set the case for trial. Regina had not seen or slipped on the ice going into the store but only when she came out. And there were no witnesses other than her.

Regina had medical treatment and ended up having knee surgery. She also had a second knee surgery. Unfortunately, her second surgeon said that the surgery was unrelated to the fall and was degenerative condition of her knee. We were happy to resolve all liens in the case and get a large amount of money in Regina’s pocket to assist her.

Regina had $12,333.91 in paid medical and we were able to get her $50,000 over those bills.

We have such an amazing client, so it was really rewarding after such a long fight to get her a good recovery.

The last challenge of the case was identifying the parties. When we sue a landowner, we encounter multiple parties: a corporate entity that owns the underlying land, a company that owns the store and is a franchisee for a parent company, a management company for the property and someone who is hired to do the ice and snow cleaning.

In Missouri, all store owners have a nondelegable duty to provide a safe parking lot and entry and exit to their facility. However, it is a challenge when you have to sue multiple entities for a simple claim. We have 10 current pending cases where this is the situation.

Sneaky Apartment Lease

Recently, we defeated a Motion for Judgment on the Pleadings for one of our clients. Maurice slipped and fell on ice last year at his apartment complex. A water main broke and the management did a bad job cleaning the ice up. His landlord tried to dismiss the case because it had a non-liability clause hidden in his lease.

It is important to carefully read any lease or contract for a release or "you can't sue us" clause. Although disfavored, they are often enforced. The Missouri Supreme Court found in Alack v. Vic Tanny International of Missouri, Inc., 923 S.W. 2d 330 (1996), that non-liability clauses must specifically state that the signer is waiving claims for negligence, and such clauses must be set apart and highly visible to the signer.

We were able to show that the exculpatory clause in our client’s lease was hidden in the lease and was unfairly vague. But others who sign contracts with such clauses may not be so lucky. It is important to consult an attorney before signing important documents.

It would also be great if Missouri Courts revisited the validity of such clauses (especially in lease agreements). Residential leases are usually unfair and many contain non-liability clauses. People would not sign if they knew about them and had bargaining power.

“Allowing the use of exculpatory clauses in residential leases stems from the idea that residential leases are essentially private contracts; however, it is unrealistic to ignore the present day realities of the landlord-tenant relationship. There is rarely a negotiation in a private residential lease where bargains and concessions occur until an agreement is reached.” Milligan v. Chesterfield Village GP, LLC, 239 S.W.3d 613, 616 (Mo. Ct. App. 2007).

Now we get our day in court......

Hotel Stair Collapse Settlement

This week we got a great result for a client and settled his slip and fall case for $55,000. Larcell was traveling through Arkansas and staying at a Super 8 hotel. As he was using the outside stairs, they collapsed and injured him.

When his pain persisted he got medical attention and made a claim. Larcell first hired a lawyer in Illinois who worked the case for over a year and a half and only got an $18,000 offer. When the client fired that lawyer and hired us, we were able to push that offer to $35,000, but we still didn’t feel as though that was enough for our client.

Instead, we teamed up with an Arkansas lawyer and filed suit in the case. After filing the lawsuit, we did initial discovery and made the defendant pay our client $55,000 to settle the case. Hiring the right lawyer made a difference.

Also, I am proud to say that because we had to hire an Arkansas lawyer and share the attorneys' fee under ethics Rule 4-1.5(e), we made less money than if we would have settled for the $35,000. We put our client's interest first as all lawyers should.

I often say we fight hard to get full recovery for our clients and not 60 or 70% recovery. Larcell is a great guy who deserved the full recovery we obtained.

Responses:

“Awesome, I hoping for the same results thanks to your help, and thanks for your charity work on the behalf of those who suffer from cancer. I hope to hear from you soon, and take care of that leg!!!”

--Cypher

“Horrible fall! I'm glad you are ok. I was there riding as well, 5 months post 6 pelvic fractures. Life is good!”

--Karen

Greatest Uber Ride Ever

October 8, 2017

Hey Rochelle,

Last Thursday I had the Greatest Uber Ride Ever. I land in Dallas after late night work flight. I'm going to inspect a tractor trailer for a wrongful death case in Texas. (More on tractor trailer death claims and results below).

My Uber driver, Manuel, gets a flat tire on the way to my hotel. We change the tire together on the side of the surprisingly busy highway at 1 am – I get really dirty. He had never changed a tire on his car before – so we figured it out together.

We get back in the car to continue the long ride – to discover his car battery is dead. A Samaritan stops to give us a jump. He cannot seem to turn his car around to jump us so I ask if I can. He gets out of his really old car with his crutch (he is missing a leg; no prosthetic).

We jump it and send the nice rescuer on his way. As we continue our journey, I start laughing with Manuel that it's the best ride ever. I could tell he was scared I would be mad – kept calling me sir.

We get to the hotel and take this pic (even before he knows I tipped him $100 to get him a new tire). Manuel works really hard to support his two sons. Uber and Manuel are awesome. 5 star rating for Manuel (1 star for the tire).

Tractor Trailer Fatalities

The prevalence and power of tractor trailers on our roads is scary. We read about tractor trailer crashes and their toll daily. Their impact is hard to measure, so I looked up some facts from the Federal Motor Carrier Safety Administration, and other sources.

There were more than 12 million trucks and buses registered in the United States in 2015 and trucks drive over 280 billion miles a year on American roads. Over 70% of all the freight tonnage moved in the U.S. goes on trucks.

Tractor trailers can weigh up to 80,000 pounds and their force dwarfs passenger cars. They stop slower and are more difficult to control than other vehicles.

Over 4,000 large trucks were involved in 3,598 fatal crashes in the U.S. in 2015. That averages to almost 10 a day. Of these: 64% involved two vehicles; 60% were on rural roads; 25% were on highways; 35 % occurred at night; and 83% happened during the work week.

The three most common causes: speeding; distraction/inattention; and impairment (fatigue, alcohol, illness, etc.). These are similar reasons as passenger car fatalities.

We hear and assume that all truck drivers involved in fatal crashes are tested for drugs and alcohol. Incredibly from 2013 -2015 63% were not tested for drugs or alcohol. 5 % of those truck drivers were under the influence of alcohol or illegal drugs.

In 2015, there were 11.2 fatal large truck crashes per million people in the U.S. (a 6-percent increase from 2010. Of the 3,996 truck drivers involved in fatal crashes, 325 (8 percent) were not wearing a safety belt at the time of the crash.

Twenty-seven percent of work zone fatal crashes and 11 percent of work zone injury crashes involved at least one large truck.

Death is obviously not the only result of these crashes – of the approximately 415,000 police reported crashes involving large trucks in 2015, there were 3,598 (1 percent) fatal crashes and 83,000 (20 percent) injury crashes. 138,000 people were injured by trucks and buses in 2105.

Truck drivers and companies must follow the rules set in place by the Federal Motor Carrier Safety Administration in order to prevent unsafe driving conditions for truck drivers and those around them. Did you know truck drivers cannot drive more than 11 hours or drive after 14 hours since the beginning of a shift without taking a 10-hour break? Truck drivers are not allowed to drive after 60 hours of work during a 7-day period or 70 hours of work during an 8-day period.

But our Congress may relax these requirements – and the one below.

Increase U.S. Truck Weight Limit?

Did you know that each year the trucking industry tries to pass the Safe, Flexible, and Efficient (SAFE) Trucking Act? The U.S. Congress considers it every year. It’s a terrible idea that would kill more Americans on the roads.

It seeks to increase the weight limit for tractor trailers to 91,000 pounds from the current 80,000 limit. But already at 80,000 pounds, commercial trucks are 20 to 30 times heavier than most passenger vehicles. And an 80,000 pound truck takes 20 to 40 percent more distance to stop than a consumer car.

With greater stopping distances, more mass and force, more difficulty to handle in bad weather and more damage to our roads, we hope it never passes. Many safety groups oppose it.

$5 Million Tractor Trailer Death Settlement

I represented the family of a man killed in a wreck with a tractor trailer in a wrongful death claim. In the early morning, our client was leaving a casino and went through an intersection on a green light. A tractor trailer proceeded southbound on South Broadway in St. Louis violated a red light and crashed into our client’s truck.

It was a disastrous impact with both vehicles traveling in different directions. Both drivers instantly died. The tractor trailer took out some light poles and its cargo was spilt all over the road. The crash also caused a lot of property damage to the neighborhood and destroyed both vehicles.

We filed suit and proceeded with litigation on behalf of the family. We also conducted a quick and extensive investigation to identify some amazing liability evidence and to secure the evidence at the scene. We had an investigator at the location of the crash quickly. We were able to show through the timing of the traffic lights that the tractor trailer went through the red light. We interviewed witnesses.

We also showed with skid marks that the tractor trailer was over the center line and was on the wrong side of the road at the time of the impact. Witness accounts indicated the tractor trailer was speeding.

We were able to keep the venue in the City of St. Louis, where it was originally filed. The Defendant sought to remove the case to Federal Court. However, we opened an Estate for the deceased truck driver. Did you know that you can open an estate as a creditor? We did so.

Residency is different between an individual and an Estate. A deceased individual does not have a residence, but his Estate is a residence of the State of Missouri. This destroyed diversity jurisdiction and enabled us to keep the case in State Court.

We also conducted extensive litigation and matters in 4 probate filings (as part of our fee). This involved probate filing to ensure that our client’s son was his heir (he had not been declared his son prior to his death), a different suit to open the probate estate for his assets and to establish conservatorship and guardianship on behalf of the child by his grandparents.

We put together strong exhibits for our mediation to prove to the trucking company and its insurer their driver’s gross negligence. We were aggressive in the mediation in this case and refused to settle. Later, when the defendant obtained additional authority from its Board of Directors, we settled the claim for $5 Million a couple years ago.

We were able to put a very large amount of money in a trust fund and structured settlement for the young child of the deceased. We continue to maintain and work with the Court and the Conservatorship proceedings to make sure that money is secured for him.

In addition, we are proud to co-counsel with another St. Louis area lawyer who referred us to this case. We are happy to get such a great result in the case and share such a robust referral fee to him for his assistance in the case. Click here to see the Missouri Lawyers Weekly article.

Be safe from those trucks on the road!

Responses:

“This story should be shared a million times it's simply wonderful to hear that there are still people in the world that that can find simplicity in a rough situation!!! You are truly amazing!!!!”

--Chris

“You certainly had an amazing Uber ride. You need to put it into a reality show. That was very generous of you in your tip. Great selfie. I always thought that Tractor trailers should have their own highways to keep them away from cars. Glad you were able to get such a wonderful settlement for the car driver's son. Keep up the good work.”

--Rochelle