Ohio Personal Injury Blog by Cincinnati Accident Attorney Anthony Castelli

Archive for August, 2011

Cincinnati Personal Injury Lawyer Law Talk 2

Monday, August 29th, 2011

Cincinnnati Personal Injury Lawyer Law Talk 2 is the second in a series of articles on Ohio personal injury law. . The purpose is to give any personal injury accident victim some information about the law behind their potential insurance settlement claim for personal injury. It is general information only and no substitute for consulting with an experienced personal injury lawyer.

The first in the series answered the question “Do I have a claim? ” or in other words what is negligence. However you must not only prove that there was negligence, but that the negligence was a proximate cause of the accident and the injury.

Here is a jury charge on proximate cause. a jury charge is the law that the judge tells the jury to apply to a particular case.

A party who seeks to recover for injuries must prove not only that the other party was negligent, but also that such negligence was a proximate cause of the injuries. Proximate cause is an act or failure to act that in the natural and continuous sequence directly produced the injury and without which it would not have occurred.

There may be more than one proximate cause. When the negligent act or failure to act of one party joins the negligence of another to produce the injury , the negligence of each is a cause. It is not necessary that the negligence of each occur at the same time or that there be a common purpose or action.

Where two or more independent, negligent acts combine to produce a single harmful result, and where each of these is a substantial factor in producing that result, the actors are jointly responsible for the result.

The (negligent) act of any other person is not a defense to the negligence of the defendant, unless you find that the other person’s (negligent) act was an independent and superseding cause.

Causal connection is broken when another’s negligent act, which could not have been reasonably foreseen and is fully independent of the defendant’s negligence, intervenes and completely removes the effect of the defendant’s negligence, and becomes itself the proximate cause of the injury.

So you can see that not every act of negligence is a cause of an injury.In fact in many case several parties were negligent. They often seek to excuse their negligence by saying that the other party was an independent superseding cause.

Here are some facts from an actual case involving a a auto accident injury.

On the morning of November 20, 2006, Michael Platz, a mechanic employed by Cleveland Metroparks was heading westbound on Route 303, returning to work at the Hinckley Reservation after picking up a part from a store. Mr. Platz encountered a truck and trailer off to the side of the road that he had to pass on the way up a hill. He noticed that the van behind him, driven by Defendant Daniel Kohler, III, narrowly made it around the truck and trailer due to an oncoming truck in the eastbound lane. Mr. Platz proceeded down the hill and began braking in preparation for a left-hand turn onto Medina Line Road. It is disputed whether Mr. Platz utilized his turn signal. Mr. Platz had to come to a complete stop at the intersection as a vehicle was approaching driving eastbound. That vehicle was driven by Plaintiff-Appellee Judith Makowski. Mrs. Makowski’s husband, Plaintiff Appellee Roger Makowski was a passenger in the vehicle.

{¶3} Mr. Platz noticed that the van behind him driven by Mr. Kohler was not slowing down. Mr. Platz became concerned that the van would not be able to stop; thus, Mr. Platz began to accelerate in an attempt to prevent Mr. Kohler’s vehicle from striking his. Mr. Kohler attempted to “thread the needle” and pass Mr. Platz’s vehicle, believing he had enough time to re-enter the westbound lane without striking Mrs. Makowski’s vehicle. Mr. Kohler, however, was unsuccessful and struck Mrs. Makowski’s vehicle head-on. In addition, Mr. Kohler’s vehicle also struck the rear portion of Mr. Platz’s truck, slightly damaging the vehicle. Both Mr. and Mrs. Makowski suffered injuries as a result of the accident.

So what do you think the Court decided . Was Mr Kohler negligent for not turning the turn signal on and was that negligence the cause of the injury. Here is what the court said in finding that it was a question for the jury to decide if Kohler was negligent and the proximate cause

{¶19} The Supreme Court has stated that:

“The intervention of a responsible human agency between a wrongful act and an injury does not absolve a defendant from liability if that defendant’s prior negligence and the negligence of the intervening agency co-operated in proximately causing the injury. If the original negligence continues to the time of the injury and contributes substantially thereto in conjunction with the intervening act, each may be a proximate, concurring cause for which full liability may be imposed. Concurrent negligence consists of the negligence of two or more persons concurring, not necessarily in point of time, but in point of consequence, in producing a single indivisible injury.

{¶20} “In order to relieve a party of liability, a break in the chain of causation must take place. A break will occur when there intervenes between an agency creating a hazard and an injury resulting therefrom another conscious and responsible agency which could or should have eliminated the hazard.” Id. “The test * * * is whether the original and successive acts may be joined together as a whole, linking each of the actors as to the liability, or whether there is a new and independent act or cause which intervenes and thereby absolves the original negligent actor.”

“[t]he causal connection of the first act of negligence is broken and superseded by the second, only if the intervening negligent act is both new and independent. The term independent means the absence of any connection or relationship of cause and effect between the original and subsequent act of negligence. The term new means that the second act of negligence could not reasonably have been foreseen.’ Thus, the key determination whether an intervening act breaks the causal connection between negligence and injury depends upon whether that intervening cause was reasonably foreseeable by the one who was guilty of the negligence.”
“Intervening causation is not proven if the alleged intervening cause was reasonably foreseeable by the one who was guilty of the negligence. It is not necessary that the defendant should have anticipated the particular injury; it is sufficient that his act was likely to result in injury to some one.”
{¶22} We agree with the trial court that genuine issues of material fact exist with respect to whether Mr. Platz was negligent in operating his vehicle. Assuming that Mr. Platz did not use his turn signal, there was evidence, which if believed, could allow one to reasonably conclude that Mr. Platz was a concurrent proximate cause of the accident.

{¶23} Mr. Kohler testified in his deposition that he noticed brake lights on Mr. Platz’s truck when he was “at the top of the hill, more or less coming down, about halfway.” Mr. Kohler stated that he did not realize Mr. Platz was stopped at the bottom of the hill about to make a turn until he did not have enough time to stop. Prior to that point in time, Mr. Kohler believed that Mr. Platz was “just braking down the hill.” Mr. Kohler testified that he did not have enough time to stop behind Mr. Platz after he realized that Mr. Platz was stopped to turn and not just braking down the hill. Further, despite seeing Mrs. Makowski’s vehicle coming from the other direction, Mr. Kohler believed he had enough time to pass Mr. Platz and avoid a collision with Mrs. Makowski’s vehicle.

{¶24} While Mr. Platz testified in his deposition that he had his turn signal on, Mr. Kohler stated that Mr. Platz did not have his turn signal on. Thus, for purposes of summary judgment we will assume that he did not. Mr. Platz testified that:

“I was riding my brakes the whole way down the hill. I had been going that way for the last 30 years almost, for parts. I know people make a run at you coming down that hill; and the ones that are going straight, they’re right on your rear; so I know to ride the brakes the whole way down; turn on the turn signal to let them know you’re turning, and I know – It happens every time. It’s a bad intersection. I know cars coming the opposite way crest that hill, and you think you have a clear shot to make the turn, and you don’t because you have to wait for them to go by, and people are right on your rear more times than not. So I know the intersection.

{¶26} Viewing Mr. Platz’s testimony in a light most favorable to Mr. and Mrs. Makowski, the trier of fact could reasonably conclude that Mr. Platz knew that the intersection where he was attempting to make a turn was a dangerous intersection that required the use of a turn signal in order to give people behind him warning that he was turning and not merely slowing down due to the incline. Given Mr. Platz’s testimony, it would not be unreasonable for a trier of fact to conclude that some type of injury was foreseeable based upon his failure to use his turn signal. . Moreover, it would not be unreasonable for the trier of fact to conclude that Mr. Platz’s negligent action of failing to use his turn signal combined with Mr. Kohler’s negligent action of driving left of center and that these acts “may be joined together as a whole, linking each of the actors as to the liability[.]” . At the very least, this Court concludes that reasonable minds could reach different conclusions on the issue. Therefore, under the particular facts of this case, the trier of fact could conclude that Mr. Platz’s negligence was a concurrent proximate cause.

Is it any wonder that you may want to consult an experienced personal injury lawyer Often times a seemingly simple case is complex. what if you left one car driver out of your car accident injury claim and it turned out they were fully or partially at fault. The potential is you may lose partially or completely even though one negligent auto driver appeared to clearly be at fault for a car accident personal injury.

by Cincinnati personal injury lawyer Anthony Castelli for a free evaluation call 1-800-447-6549

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Cincinnati Personal Injury Lawyer Law Talk 1 Negligence

Sunday, August 28th, 2011

Cincinnati personal injury lawyer law talk will be a blog series on personal injury law of Ohio. I hope to break down some of the statutes and cases that deal with Ohio personal injury accident claims. This is part one in and will focus on an introduction to the law of negligence. That is a term often used int Ohio as do other states have theri own definition, which is probably similar to Ohio personal injury law.

If you were to have a personal injury accident case or be on a jury you would hear the judge explain to the jury what negligence is. Here is an example from an actual case :
The defendants are required to use ordinary care to discover and avoid danger. The plaintiffs claim that the defendants failed to use ordinary care in maintaining, inspecting, and/or repairing a tank car. As discussed above, ordinary care is the care that a reasonably careful person would use under the circumstances. In considering this, you must decide what the facts and circumstances were, then you must decide whether the defendants used ordinary care. If the defendants did not use ordinary care, they were negligent; if the defendants used ordinary care, they were not negligent.”

So negligence is a failure to use the care that a reasonably prudent person would use. In the first instance the party injured , the plaintiff , must be owed a duty by the defendant. For example all car drivers have a duty to operate their car with ordinary care to avoid injuring others. The duty and the standard of care can also be set be the legislature. So if a person violates a statute this can be negligence as a matter of law.

Everyone is familiar with the rear end collision. You are sitting at a red light and someone for whatever reason drives right into the rear of your car. In Ohio this can be a violation of 4511.21 the assured clear distance statute. This occurs if there is a car traveling in the same direction and in the same lane as you and you are visible and the car fails to stop in time to avoid striking you. That person would be negligent . If there negligence caused you a auto accident personal injury then they would be responsible to you to pay for your injuries.
I was injured in a car accident and can’t work is a good phrase to use if you are trying to find information on the steps to take if you have a personal injury. However this series hopes to send the lay person to law school in the very defined area of personal injury accident and injury law. Or if you would like specific questions on Ohio law you can go to my personal injury lawyer web site .
Also I have a video series on aspects of personal injury and accident law of Ohio on my video blog series on Apple Itunes called LAW TALK OF OHIO

As always I am happy to take your call for a free personal injury law case evaluation . Call Anthony Castelli Cincinnati personal injury lawyer at 513-621-2345 or enter your information in the box to the right.

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I Had my Social Security Disability Benefits Application Denied What Should I Do

Sunday, August 21st, 2011

If you had your social security disability application denied in Cincinnati Ohio you may what to know what do to do. You know you can not work . You may have a heart problem , epilepsy, diabetis, back injury , head or traumatic brain injury , but what should you do right know.

If this was you first denial normally you have 60 days to appeal your social security disabilty application denial. What are you going to do different? There are many things that an experienced social security disability lawyer can do for you. But I emphasize you need to find an experienced lawyer. How do you know the lawyer that will be the best for you.

I just wrote a blog article on 1 critical piece of evidence that you must have for your social security disability application. I invite you to take a look at that artice to see if you had that piece of evidence presented. Even if you did, it must be presented properly.

An experienced social security disability lawyer should know about this important piece of evidence and how to use it in conjunction with your treating physican. In the event your case goes all the way to an adminstrative law judge hearing your attorney should know how to use this evidence against a vocational expert.

You see its the Judges’ obligation to determine your physical functional capacity. Such things as how long you can sit, stand, walk and how much you can lift. But the judge must use a vocational expert in some cases to determine in light of your residual functional capacity are there jobs you can do, or are there no significant jobs you can do which would then win you social security disability benefits application.

In some cases the judge is restricted from using a vocational expert if you meet a listing or a grid regulation. This article can not go into all aspects of winning your social security disability application, but if you click here to go to my web site for help from a Cincinnati Ohio social security disability lawyer you will find a wealth of articles and videos.

You can learn about some of the following critical aspects of a social security disability benefits application such as:

The Social security disability benefits application process,
What you must do to win you claim
The differnce between SSI and SSD

7 Mistakes that can wreck your social security case.

More keys to winnning your social security disability application.

Why you can afford to hire a social security attorney without worring about an hourly bill.

Also you can learn 13 reasons why social security disability benefit applicants hire Anthony Castelli a social security disability benefits lawyer.

Just because you were denied at the initial application does not mean you can’t win your case. I have won many disability cases after the claimant was initially denied. There are many things that can be done to improve your prospects of winning your social security disability benefits application. I have listed several of them in this article. To recap: Get your treating physician on board, get a residual functional capacity form filled out by him. If you would like a free copy of the form I use I will gladly send it to you. But better yet make an appointment for a free case evaluation by filling out the box in the upper right hand corner or call me at 1-800-447-6549.

I have been handling social security cases for 30 years. This is what a man was kind enough to send in about the assistance I gave his daughter for her social security disability benefits application:

“A little over two years ago my daughter was denied her appeal for social security disability. Not knowing what else to do, I contacted your office and was provided Mr. Tony Castelli’s name as a lawyer who had significant experience and success with social security disability claims based on MS.
Thank you for the referral. I contacted Mr. Castelli and interviewed with him and my daughter. He took the case. It took 2 years and 2 months from the time he filed in our behalf to finally getting the hearing. During that period, Mr. Castelli diligently researched the case and provided supporting evidence to the social security administration and the court – even making phone calls to determine the cause for delay. I’m happy to report his diligence paid off. Yesterday the Court granted Debbie permanent disability status.
I highly recommend him to you – and thank you for the original referral which directly led to a successful appeal and social security disability for Debbie.
Again, my thanks – Mr. Castelli is a fine man and represented us well.”
Sincerely, Jerry
P.S. I rarely provide referrals because I’m rarely so impressed with effort/results. You and Toni took on a hard job and done good.
Debbie’s, Valerie’s and my thanks. Jerry

I would love the opportunity to turn your denial into a succesful application. Contact me today.

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Truck Accident Death Don't Blame the Seatbelt

Thursday, August 18th, 2011

A truck accident involving injury and death recently occurred on I-75 in Cincinnati. Here is how the story
was reported in the Cincinnati news. Note the emphasis on the fact that the person caused the wrongful death was not wearing a seatbelt nor was the passenger.

You may be wondering whether the fact that an injury victim or one caused a wrongful death forfeit their rights because of that . You may be surprised to know that failure to wear a seatbelt can potentially bar you from a claim for your injury. But that is why it’s important to hire a truck accident personal injury lawyer experienced with the seatbelt defense.

The TRUCK ACCIDENT WRONGFUL DEATH INJURY STORY

Police have reopened Northbound I-75 near Hopple Street after a fiery crash in which a man died. The highway was closed for nearly six hours while police investigated the circumstances surrounding the wreck.

Officers say 38 year old Nicholas Taylor was driving a Jeep north on I-75 when he lost control and hit a pickup truck driven by 46 year old Glen Delk. Delk was not wearing a seatbelt-he was partially thrown from the pickup and died at the scene. His passenger, 32 year old Kath Delk was also unbelted. She was caught inside the truck, which was on fire when officers arrived. They put out the flames and rescued her. She was taken to University Hospital with minor injuries and has since been released.

Taylor was wearing a seatbelt. He had minor injuries and was treated at the scene.

Alcohol and speed are both considered factors in the crash, although no charges have been filed.

HERE WERE SOME OF THE COMMENTS TO THE STORY REGARDING THE CAUSE OF THE
ACCIDENT DEATH INJURY AND SEATBELTS

” I don’t understand how people can actually say if he was wearing his seat belt he may still be alive? He wasn’t the one drinking and driving, I mean really he was just minding his own business when an idiot decided to get into his car drunk and drive down the expressway of all places and killed someone. My condolences goes to his family.

” It should be my choice to wear a seatbelt just like it’s the motorcyclist’s choice to wear a helmet. I agree that it is in the best interest of safety to wear the seat belt, but as I said it should be my choice. My condolences to the family.

“Don’t try blaming me for your personal choices…folks must start accepting responsilbility for their OWN actions and the consequences that go along with those poor choices/actions. The law and courts are still way too easy on drunk drivers! You can bet your bippy that I won’t be if your drunken ass is behind the wheel of a vehicle that harms me or mine. ”

“This is an example of WEAR YOUR SEATBELTS PEOPLE! Not only is it the law, but it can save your life. I don’t care how inconvienient you think it is… it is there for a reason. Let this sad tragedy be a lesson to everyone who doesn’t wear their seatbelt… My prayers to those involved. ”

” Hm here we go again blamin someone for some grown folks choice, a grown man chose to go to a bar if that’s the case, a grown man got behind the wheel of a automobile, a grown man chose to speed down the street. And it was grown people who didn’t have on seat belts. So therefore the bartender is at fault for not babysitting a grown man? I mean really anything for money?”

These comments are instructive to me a personal injury auto accident lawyer Several persons clearly blame the alleged drunk speeding truck driver. So do I. Others say the failure to wear a seat belt is just as much the cause of the injury and death from the drunk speeding truck driver.

Here’s the law in Ohio about the failure to wear a seat belt as being the cause of a truck car auto motor vehicle accident and the injury victim’s right to recover money compensation.

(F)(1) Subject to division (F)(2) of this section, the failure of a person to wear all of the available elements of a properly adjusted occupant restraining device in violation of division (B)(1) or (3) of this section or the failure of a person to ensure that each minor who is a passenger of an automobile being operated by that person is wearing all of the available elements of a properly adjusted occupant restraining device in violation of division (B)(2) of this section shall not be considered or used by the trier of fact in a tort action as evidence of negligence or contributory negligence. But, the trier of fact may determine based on evidence admitted consistent with the Ohio Rules of Evidence that the failure contributed to the harm alleged in the tort action and may diminish a recovery of compensatory damages that represents noneconomic loss, as defined in section 2307.011 of the Revised Code, in a tort action that could have been recovered but for the plaintiff’s failure to wear all of the available elements of a properly adjusted occupant restraining device. Evidence of that failure shall not be used as a basis for a criminal prosecution of the person other than a prosecution for a violation of this section; and shall not be admissible as evidence in a criminal action involving the person other than a prosecution for a violation of this section.

What that means is that if a seat belt could have prevented the injury you can not recover for anything other than monetary loss. You can get your lost wages and medical bills paid , but that’s it. That’s why it’s important to hire an attorney that knows the law and the evidentiary priniciples and the experts to hire to overcome this defense. Just because you did not have a seat belt on does not mean your injury would not have occured. I just concluded a case where the failure to wear a seatbelt was raised by the insurance company.I hired one of the best experts in the country and he proved that the seat belt would not have made any difference.

If you have a truck auto or other motor vehicle injury i will gladly give you a free case evaluation . Just call me at 1-800-447-6549 or fill in the form to email me and I will personally answer your questions.

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Mild Traumatic Brain Injury Is a Serious Injury by Cincinnati Lawyer

Tuesday, August 9th, 2011

Mild traumatic brain injury is a real misnomer. The term mild is terribly misleading. There can be severe and significant symptoms when the doctor diagnoses a mild traumatic brain injury.

When you here these words there is an immediate assumption that the injury is not serious. You can bet that the insurance company will say to you it’s only mild so it’s not that big a deal. But that’s where medicine and insurance companies part ways. The medical definition and the meaning doctors such as neurosurgeons and neuropsychologists attribute to the term mild traumatic brain injury is significant.

Mild only means that the injury is not life threatening and does not require immediate action on their part such as a surgical procedure to relieve the swelling and attendant pressure on the brain. So what is mild traumatic brain injury. It is an injury to the brain caused by blunt trauma or acceleration deceleration. Or as the military is finding out, the concusive force of blasts sending waves through the brain can cause tramatic brain injury. It is important to know that a direct blow to the head is not required for the injury to occur. That is why these injuries often go undiagnosed in a car accident

The following symptoms may be present in a mild traumatic brain injury:

Signs of neurological disorder such as seizures , dizziness and headache. Also loss of memory is significant, as
is disorientation, confusion, inability to recall , feelings of being “out of it” . There can also be symptoms of anxiety and depression. Some times this injury overlaps with post traumatic stress disorder. The brain has experienced trauma , an insult from the outside separate from disease.

The brain is a soft jelly like substance . It can come in contact with the skull causing injury even without a direct blow. Sport injury is another common cause as well as motorcycle accidents with or without helmets. It is important to get the proper care for this injury. Another injury to the brain while the brain is recovering can cause
a death. If the death is the result of negligence this can be termed a wrongful death

Concussion can be another name for mild traumatic brain injury. Concussions are often graded as 1, grade 2 or grade 3. The Cat scan or Mri may be negative , but there can still be serious symptoms. I have represented people injured in car accidents that have had severe headaches persist for many years.

The brain injury association is a good source of information for mild traumatic brain injury.

An MTBI is often referred to as a concussion. Within the category of concussion there are three different grades (1-3). In a Grade 1 or 2 concussion a person remains conscious and in a Grade 3 concussion the person loses consciousness.

It is important to know that MTBIs can seriously affect a person’s functioning. Although a person may “look fine” on the outside, the brain injury may cause changes in thinking and memory which impact daily life.

According to the Brain Injury Association of America there are multiple symptoms those suffering from a MTBI may experience. The recovery from mild traumatic brain injury can differ. Your doctor can guide you on the therapy you need . Do your own research to make sure you have a doctor that knows how to treat a mild traumatic brain injury.

Contact a Lawyer

If you or a loved one has suffered a mild traumatic brain injury due to the negligent or careless actions of another, you may be entitled to money damages to make up for your injuries. An attorney can evaluate your case, provide information about available options, and work on your behalf. Call today for a free evaluation with a Cincinnati traumatic brain injury lawyer. 1-800-447-6549

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