Monahan Law Blog
Monahan Law Blog
Automobile Accidents
A Little Known Drunk Driving Fact
Despite what you may think, Thanksgiving is the holiday when statistically the largest number of drunk driving fatalities occur. New Year's Eve, which might have been your first guess, runs a distant second.
Many people know that Thanksgiving is a time with family, and people often feel the need to drink more around family. However, this drunk driving fact is no laughing matter. So as you gather around your Thanksgiving table, give thanks for the health of those you are with and make sure that they get home safely.
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On October 29, 2008 Sulochana Rani Nemalikanti was walking as a pedestrian in Downingtown where Chestnut Street intersects with Lancaster Avenue. Apparently, the driver of the truck who was stopped at the intersection and had looked both ways, did not see Ms. Nemalikanti. According to Police Chief James McGowan, the pedestrian was walking around the truck when she was struck by the rear wheels. Ms. Nemalikanti dies at Crozer Chester Hospital the following Sunday. Although the Downingtown police have reopened the investigation, no charges have been filed.
Read More about "Woman dies in tragic Downingtown Accident at Chestnut Street and Lancaster Avenue"
Two Lincoln University residents were killed in a car crash on October 19, 2008 in the early morning on Lewisville Road north of State Road. Both victims were passengers in a car driver by Kevin DeMichiel also of Lincoln University. According to state police, DeMichiel drove his vehicle into the opposing lane of traffic and struck a car driven by Christopher Lynch. The victims of the accident were not wearing seat belts.
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On October 20, 2008 a seventeen year old Downingtown West student was tragically killed in a two vehicle accident when, according to a state police report, a car driven by Wesley Wallace on Amish Road in Salisbury Township failed to stop for a stop sign at Route 772. Passenger Larry Woodward who was riding with Wallace was also critically injured and were taken to Lancaster General Hospital.
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Inadequate Security and Crime Victim Cases
According to the Pittsburgh Post-Gazette, jury selection starts on November 18, 2008 in a civil lawsuit between a rape victim and the company that manages Waterworks Mall.
The victim claims J.J. Gumberg Co. provided "wholly inadequate" security at the mall, leaving her vulnerable to a man who kidnapped her and later raped her three times.
The rapist waited in the Waterworks parking lot the morning of April 7, 2007, then accosted the woman and her 16-month-old daughter after they finished grocery shopping. He held a knife to the baby's throat and forced the woman to drive him to Ohio where the rapes occurred.
The woman and her husband are seeking monetary damages from Gumberg. In court filings, Gumberg's attorneys said the couple's lawsuit has no merit.
"It is denied that J.J. Gumberg knew Waterworks Mall attracted an unusually high incidence of crime, or that it failed to take action with regards to reasonable threats. To the contrary, J.J. Gumberg acted reasonably at all times," their lawyers said.
Gumberg's lawyers previously tried without success to force the woman to disclose her real name in the lawsuit. Common Pleas Judge Christine Ward ruled that the woman and her husband could sue Gumberg under the pseudonyms Jane and John Doe. The couple, from Fox Chapel, said revealing their real names would cause them unnecessary embarrassment.
Read More about "Pittsburgh Civil Lawsuit on behalf of rape victim against shopping mall goes to Trial"
Three simple tips which can help you and your family avoid becoming the victims of a burglary.
1. Make your house look lived-in
Burglars use cues to help them choose a house to target. These cues include:
- an accumulation of flyers, newspapers or mail;
- snow covered walkways or driveways;
- lawns in need of maintenance; and
- unkempt bushes which obstruct the view of an entrance.
Eliminate as many of these cues as possible, and try to make sure a neighbor takes care of things for you, if you’re away for an extended period of time.
2. Mark your property items
permanently mark your valuables with a unique identifying number, such as a driver’s license number (never use a social insurance number).
3. Install a high-quality lock
A surprising 26% of all burglaries occur through the front door, largely due to inadequate locks. Improve your home’s safety by installing a good quality dead bolt with a one-inch latch and security strike plate. The security strike plate should feature a minimum of four holes and should be installed with a wood screw, measuring no less than 2 ½ inches.
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The Brady Center is suing a Utal gun dealer who illegally armed an eighteen year old shooter with a pistol grip shotgun. The dealer, Sportsman's Fash Cash Pawn, sold the shotgun to Sulejman Talovic, who used it to kill five people and wound four others in a shooting spree at a popular Utah shopping mall. Talovic first opened fire in the parking lot and then entered the mall and began killing again.
The Brady Center's lawsuit contends that the gun dealer is liable and responsible for the deaths and injuries because Talovic should have never been sold the dangerous high firepower pistol grip shotgun he used in the shooting spree and was only able to obtain the weapon because the gun dealer violated federal law.
Talovic purchased the gun when he was eighteen and under federal law a shotgun lacking a shoulder stock like this one and with a pistol grip can not legally be sold to anyone who the seller had a reasonable basis to believe is under twenty one years of age.
The case is scheduled for trial in early 2010 in Salt Lake City, Utah.
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A very brave and courageous woman called our office the other day because her landlord was suing her for the damage to the house she was renting which happened to have been caused by two burglars who tried to break into her house, shot the woman ten times through a poorly secured door in a known dangerous neighbor in Coatesville, Pennsylvania.
The woman sustained serious and permanent injuries but she says she was lucky because her quick thinking probably kept her two kids from getting shot and possibly killed too. When burglars tried to kick in her back door, the woman acted quickly, even after being shot, to get on the ground and put her feet up against the poorly secured door to prevent the burglars from further entry. She was shot repeatedly again but when her boyfried arrived, the burglars left. Several weeks later, the burglars were at it again at a motel in West Chester when they were confronted by police and one of them was killed in a gun battle. The other burglar remains in custody.
With over $200,000 in unpaid medical bills, lost wages and her landlord suing her, the woman was referred to us by a local Crime Victims' Advocate organization to see what other rights she might have. We are helping her with the landlord tenant issues, but unfortunately we had to advise her that no cause of action existed against the landlord for failing to provide a safe rental property.
In 1984 the Pennsylvania Supreme Court in
Feld v. Merriam denied a claim where a resident was assault in her apartment's parking garage. The Court held that a residential landlord cannot be civilly liable for a crime attack which occurred in a private area not open to the public. Absent an agreement to provide security or undertaking to provide security and then negligently performing that, the Court found no liability on the part of the apartment owner.
The exceptions in these cases need to be considered. But for this woman, no such exception existed.
Read More about "Your Home May be Your Castle But Landlords Have Limited Liability, If Any, in Pennsylvania For Criminal Acts of Third Parties"
In the early morning hours of November 2, 2008 two men were knifed, one fatally, in a fight outside the Vy Da Sports Club in South Philadelphia, following a fight outside the club around 1 a.m.
The question of whether the Club owner has any responsibility or liability for these murders will be determined by quick and competent investigation of the circumstances of the fight and whether the premises had inadequate security in place that would have prevented the killings.
In any case involving inadequate security of premises, where it's a Club like Vy Da Sports, a parking lot, bar, apartment complex or other premise, investigators need to consider the following:
1. Current Code Violations
2. Past Code Violations
3. Multiple Premise Violations in the past
4. Interviews with former tenants and former employees
5. Internal and external marketing materials about the premises
6. Advertisements in local community papers, brochures and magazines about the premises
This type of early investigation could make the case that adequate security precautions because of known risks to the owner of Clubs such as Vy Da Sports would have prevented these assaults that ended up with one patron dead.
Read More about "Fatal Stabbing at Vy Da Sports Club in South Philadelphia Demands Immediate Investigation If Lawsuit Against the Bar is Considered"
The Brady Center to Prevent Gun Violence filed a "friend of the Court" brief with the United States Supreme Court on June 16, 2008 urging the Court to reverse an appeals court ruling allowing convicted domestic violence abusers to possess guns.
The Supreme Court will consider this case in this term which began the first week of October of this year. The case will likely be the first case the Court will hear following its Second Amendment decision in
District of Columbia v. Heller. If upheld, the lower court ruling could require the names of thousands of dangerous, convicted abusers to be purged from the Brady background check system.
The Brady Center's Brief was joined by ten national law enforcement organizations. The brief provides the Court with studies highlighting the extreme danger posed by domestic violence abusers armed with firearms. On average, more than three people are killed by intimate partners every day in this country, and the number of homicides by intimates with handguns has increased. When firearms are involved in domestic incidents, the abuse is twelves times more likely to result in death. The mere presence of a firearm in the house of an abuser makes an abused woman at least six times more likely to be killed that other abused women. In addition, statistics show that the safety of law enforcement is also jeoparized and that 81% of law enforcement officers were killed while responding to domestic disturbance calls between 1996 and 2005.
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A 25 year old man was stabbed and in critical condition at Thomas Jefferson University Hospital after he was stabbed in the stomach with a 12-inch knife. The incident took place after an altercation that took place while leaving "Bump", a "luxe lounge" in Center City Philadephia at 13th and Locust Streets.
If a case of inadequate or lax security is to be considered, the first task after performing a preliminary screening of the claim is to determine the level of crime in the attempt to determine foreseeability of this crime to the potential defendants. To do this, police reports of the crime on the premises (first) and in the surrounding areas (second) must be obtained. The first source of crime record data are the printout of calls for service or "grids" and then obtaining the police reports of the crimes to get the specifics of the crimes. Lastly, the internal records of the potential defendant will eventually have to be reviewed.
All of this involves prompt investigation by qualified experts.
Read More about "Stabbling Outside Philadelphia Center City Night Club Needs Immediate Investigation If Claim Against Owner Is Considered"
A Philadelphia jury awarded $5.5 million for the family of a man shot to death in 2006 at a Hahnemann University Hospital parking-lot booth in a case that apparantly revealed an appalling lack of security according to the attorneys who tried the case for the surviving family. After the jury reached a decision in September 2008, the family's attorney advised the media that the security breaches were truly staggering for any institution let alone a hospital. The victim, a 18 year old Roman Catholic High School graduate and the son of a Philadelphia police officer, was killed after being shot in the chest during an attempted robbery in the lot on Race Street near Broad in Center City.
While spokesmen for the Hospital expressed sympathy for the family after the tragic events, the slain victim's attorney criticized what he found to be the lack of security measures at the parking lot especially considering that an armed robbery had taken place at the same booth just 12 days before his client was murdered.
Evidence presented at trial revealed that Hahnemann failed to make the cashier's booth bulletproof and failed to change the parking lot system to operate unmanned during the unsafe night hours. Furthermore, although security patrols were increased, evidence showed that the last time was at 7:56 p.m., over two and a half hours before the victim was killed. In addition, a surveillance camera that overlooked the cashier's booth wasn't even being watched by anyone in security.
Read More about "Philadelphia Jury Awards $5.5 million for Family Members of Slain Hahnemann Hospital Parking Lot Attendant"
On Sunday, October 5, 2008 an unknown rapist assautled a woman in a party bus parked at Lincoln Financial Field in South Philadelphia during the Eagles football game against the Washington Redskins. The assaulted woman according to newspaper accounts left the game to rest in the party bus. Seeking help in finding the bus from a man who appeared to be an event staffer who was wearing a bright yellow vest, she was escorted by the man to the bus where she fell asleep. Later, according to police, the man returned and sexually assaulted the woman.
Pennsylvania Courts have consistently adopted the Restatement of Torts §344 which holds that property owners, such as owners of parking lots here, must provide reasonable measures to control the conduct of third persons, or to give adequate waring to enable patrons to avoid possible harm. Responsibility on the part of the owner will be imposed when they either fail to take reasonable care to discover dangerous conduct of third persons which is likely to occur or fail to take reasonable care to provide appropriate precautions.
Cases such as these require immediate investigation to determine whether the parking lot owner has breached that duty and whether the risk of harm was foreseeable. According to Security Expert Chris E. McGoey the concept of crime foreseeability has been the subject of great confusion around the country. He writes that when assessing crime foreseeability, three factors need to be considered: (1) the nature of the premise, (2) crime demongraphics, and (3) location.
Read More about "Owners of Parking Lots and Established Public Areas Have a Duty to Protect Invitees from Forseeable Risk of Harm"
School Violence
A report by the Massachusetts Department of Education called for its colleges and the University of Massachusetts to respond to the potential of "serious violence" on public school campuses across the state. Currently, state public higher education officicals are considering whether to implement the proposed safety and security measures. Since 1990, 13 separate incidients like the one at Virginia Tech have occured across the United States. Such tragedies require bolstering campus security especially for more prevalent crimes such as sexual assaults and other violence, according to the Department's report. The report made more than two dozen recommendations to improve school safety including identifying at risk students, providing necessary mental health assistance, upgrades to campus security systems and establishing plans to respond to on campus emergencies. In addition, researchers have reommended that sworn college police officers be permitted to carry guns, be trained to deal with a situation where someone is shooting people in a campus building like what occured at Virginia Tech, and have equipment to break into locked rooms and buildings.
Read More about "Department of Education Releases Report Calling for Increased Safety and Security Measures at College Campuses"
Sexual Assault and Abuse Claims
A former top attorney for the Bucks County District Attorney's Office was charged on October 30, 2008 with having a sexual relationship with a minor while volunteering in a church youth group at the First United Methodist Church in Perkasie, Bucks County, according to a Philadelphia Inquirer news article.
The former prosecutor was discovered partially dressed with a 17 year old boy at about midnight September 5. The abuser has admitted to a sexual relationship along with supplying alcohol and smoking marijuana with various minors.
Contrary to popular misconceptions, sexual predators like this come from all segments of society and are not self identifying. Although the Church has reported that a criminal background check and child abuse clearance had been performed on the offender four years ago, crime victims looking into the possibility of a civil law suit should immediately consider hiring an experienced investigator and attorney with knowledge of this area of the law. These types of experts have the ability to tap into a vast amount of resources to begin investigating the possible liability of anyone who was involved or facilitated the sexual abuse of these minors.
Read More about "Church Youth Group Volunteer at Bucks County First United Methodist Church Charged in Sex Case Involving Minors"
Donald J. McGuire, 78, a Jesuit priest who was only defrocked in February 2008 was convicted in Federal Court in Chicago of engaging in sexual activity with a teenage boy who accompanied him on religious trips to Europe and Minnesota in 2000 and 2002, acording to an article in the New York Times.
Described by prosecutors as a "wolf in sheep's clothing" evidence was presented that showed that McGuire started abusing his victim in 1999 at the age of 13. Mr. McGuire who taught at Loyola Academy a Jesuit preparatory school in suburban Chicago directed retreats for laypeople and members of Mother Teresa's religious order.
Read More about "Ex-Jesuit Priest from Illinois Convicted in Sexual Abuse Case"
The New York Times reported on October 22, 2008 that two groups that advocate for sex-abuse victims, the Survivors Network of Those Abused by Priests (SNAP) and BishopAccountability.org, identified two priests that were permitted to live until recently on the campus of Fordham Preparatory School in the Bronx. The groups criticized the school administration for allowing the priests to reside there for years after the abuse complaints were made known.
One abuser's case was resolved in 1997 but school officials and the archdiosese refused to confirm the terms of the settlement agreement. The other priest was recently sued by Richard Cerick, a former student at Fordham Prep and now a lawyer in New York, for the abuses that occurred in late 1968. The priest has since died but Cerick said that even though he reported the crime three years ago, the priest was permitted to continue to work and reside on Fordham's campus.
Read More about "Leaders of Survivors Network of Those Abused by Priests and BishopAccountability.org Criticize New York Catholic Prep School for Harboring Priests who were Sex Abusers"
The American Association for Justice reported in its October 2008 Law Reporter that a Michigan woman was awarded $3.69 million, including $990,000 for past pain and suffering and the rest for future pain and suffering against a restaurant owner who had sexually abused her beginning when she was 11 years old. At 23 the woman began suffering flashbacks and required therapy for posttraumatic stress disorder, dissociative disorder, and depression.
Plaintiffs like this woman, however, may suffer an additional injury when they attempt to collect their judgments. Many insurance companies try to avoid paying claims stating that insurance coverage is excluded for these types of injuries. Fortunately, for residents of Pennsylvania the Supreme Court held in 2006 that when a Complaint alleges injuries that could be covered under the policy of insurance, it is the duty of the insurance company to defend until such time as the claim is confined to a recovery that the policy does not cover.
Read More about "Michigan Jury Awards $3.69 million to Victim who was sexually abused for years"
General
The idea that no price is too high to pay to save a single life is a commonly held point of view. But not in Washington D.C. apparently. Inside the Beltway, they take a very stubborn approach to the value of human life. Recently, the Environmental Protection Agency downgraded its estimated value of a life for $8 million to $7.22 million. On the other side of town, meanwhile, the Department of Transportation raised its calculation from $3 million to $5.8 million. And the Consumer Product Safety Commission held its estimate right where it was at $5 million. Government agencies use these estimates to evaluate the merits of choices they make. They're also something to consider when injuries consumer and workers are asking "How much is my life worth" in a personal injury case.
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British researchers reported last month in the journal PLoS Medicine that 1 in 75 new joint replacements must eventually be redone. Given the skyrocketing number of first time hip and knee replacement which is expected to go from 478,000 knee replacements a year currently to an expected 3.4 million per year by 2030 as the population ages, and 234,000 total hip replacements that is expected to more than double in the same time, younger patients are more likely to outlive their artificial joints. Plus revisions require longer operations as surgeons hunt for usable bone and they also cost more. In addition, another new study warns about what athletic activity patients should try after recovery.
In a case that I am currently handling involving a man in his early 40's who slipped and fell on ice that the owner let melt and freeze over a period of three days without admittedly ever placing sand or salt on the surface where hundreds of pedestrians walked each morning, the prospect of further hip replacement over the course of his life represents a real possibility after he suffered a fractured hip in the fall. In addition, the man runs additional risks of developing complications from the hip fracture including failure of the hardware used to fix the fracture, infections to the fracture site, and what is known as avascular necrosis which might further necessitate hip replacement.
Read More about "New Medical Study Shows Hip Replacements Need to be Redone in 1 out of 75"
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