Nebraska Dog Bites Fall Under Strict Liability Statute

They are man’s best friend.  They don’t know evil or jealousy or discontent.  Although the majority of time dogs are docile and friendly, they sometimes can be dangerous.  Dogs can be aggressive, sometimes lacking malicious intent, but causing serious injury or death nonetheless.  In Nebraska, dog owners are liable for any and all damages to anyone except a trespasser under a statutory strict liability.

Neb. Rev. Stat. § 54-601 sets forth dog bite liability.  As dogs are personal property for all intents and purposes, the owner of a dog is liable for any and all damages that could accrue (1) to any person other than a trespasser by reason of having been bitten by such dog or dogs and (2) to any person, firm, or corporation by reason of such dog or dogs killing, wounding, injuring, worrying or chasing any person or persons or any sheep or other domestic animals belonging to such person.  Owners become strictly liable for the actions of their dogs.

The Nebraska dog bite statute also applies to scratches, knock-downs and other attacks.  In 2009, the Supreme Court clarified the legislative intent in Underhill v. Hobelman, 279 Neb. 30, 34 (2009).  Underwood demonstrated that not only does Nebraska’s dog bite statute apply to bites, but any means of injury.  A potential exception is the dog that causes damages during playful and mischievous acts.  Donner v. Plymate, 193 Neb. 647, 649-650 (1975).  Nebraska recognizes a strict liability standard for nearly all dog bites.  Donner determined that, when read together, the terms “killing”, “wounding”, “worrying” and “chasing” implied the dog was acting aggressively.  The Nebraska statute does not require the injury to be inflicted maliciously, however.

Nebraska’s strict liability statute on dog attacks and dog bites allows for recovery for damages without a showing of negligence on the part of the owner.  If you have been bitten by a dog, make sure you file a dog bite report with the Nebraska Humane Society.  You will want to gather the following information:

1)   Information about the dog that bit you, including name, age, address, color, breed and vaccination history (if available).  You may be able to find some of this information on the bite report completed by the Nebraska Humane Society.  Do NOT attempt to approach the dog again to obtain this information on your own.  You could risk further injury.

2)   Information about the owner of the dog, including name, address and phone number.

3)   Name of the dog’s veterinarian.

4)   Photos of the dog bite and the area of the attack.  If your clothing was torn, take photographs of the damage to your clothing, as well as keeping the clothing.  You may need it at a later time.

5)   Copies of any medical bills you receive as a result of treatment for the bite or attac

It is important to hire an attorney early in order to protect your rights.  Dog bite claims have time limits in which to bring your claim, so be sure to contact an attorney with experience handling dog bite claims.

Lawyers Against Hunger

Inserra & Kelley will again be hosting the Lawyers Against Hunger turkey giveaway to support our community.  This year’s event will take place on November 26, 2013 between 2:30 p.m. and 5:30 p.m. in the No Frills Supermarket parking lot located at 50th & G Streets in Omaha, NE.  You must have a ticket from the Omaha Food Bank distribution in order to pick up a turkey.  If you have a ticket, be sure to complete the back side with your name, address, phone number and email address as we will be drawing for a $100.00 No Frills grocery giveaway at 5:30 p.m.  You do not need to be present to win.

Iowa Department of Transportation Proposes Regulation of Traffic Cameras

If you are operating a motor vehicle in the State of Iowa, you know speeds are carefully monitored.  Last week, the Iowa Department of Transportation published new rules requiring cities and counties to provide proof there’s a critical safety concern at a specific location before traffic monitoring cameras would be allowed at that location.  The proposed rules will be presented at a public hearing at 9:30 a.m. on Tuesday at the Iowa Capital in front of a committee of five Republicans and five Democrats who provide legislative oversight on state agency rule making.

If you would like to comment on the proposed rules, please send your suggestions to the Department of Transportation prior to October 29, 2013.  The rules could go into effect as early as February 12, 2014.

At the current time, nine Iowa cities and Polk County use automated cameras to ticket motorists for minor traffic infractions, such as running a red light or violating posted speed limits.  The cities included are:  Cedar Rapids, Clive, Council Bluffs, Davenport, Des Moines, Fort Dodge, Muscatine, Sioux City and Windsor Heights.  Some of these cities use permanent cameras on highways or Interstates, while others use mobile cameras mounted in vehicles parked alongside state roads.

Although opinions vary on how cost effective and efficient this process is, law enforcement contends roads are safer when drivers know their actions are being monitored.  Although the rules would provide some oversight and regulation to the use of the cameras, some politicians and citizens would like to see a permanent ban on the traffic monitoring cameras.

Hunting Safety Prevents Tragic Accidents

The fall season brings many fun activities including football games, Halloween and, of course, hunting season.  In Nebraska, big game hunting seasons begin in late August and continue through the end of January.   Whether you prefer to hunt with a bow and arrow or with a hunting firearm, following standard safety rules can prevent serious injury and even death.   In 2012, there were nine hunting incidents in Nebraska, including eight resulting in personal injury and one fatality.  One of the incidents resulted from illegal hunting activity.

Nebraska law  requires all persons age twelve through twenty-nine years of age who hunt with a firearm or crossbow to complete a firearm hunter education program.  An approved hunter education course includes a minimum of ten hours of classroom instruction, or independent study sufficient to pass an examination given by the commission followed by the student’s participation in a minimum of four hours of practical instruction in the areas of safe firearms use, shooting and sighting techniques, hunter ethics, game identification and conservation management.

Some basic hunter safety tips can keep you and your entire hunting party safe.

  • Assume your weapon is always loaded and avoid pointing a weapon in any direction you do not wish it to be fired;
  • Keep your safety on and point the barrel of your firearm down when walking with or transporting a firearm;
  • Make sure you can identify your target before discharging your weapon, avoiding any area where humans are present;
  • Wear safety orange and a brightly colored hat when hunting to avoid blending in with your surroundings and accidentally being mistaken for wildlife;
  • Ensure your target is deceased prior to putting them into or strapping them onto your vehicle;
  • Never hunt with small children;
  • Do not climb up or down a tree or over a fence with a loaded gun.  Pass your gun to a hunting partner with the safety on and allow them to hand it to you when you are in shooting position;
  • Stay sober and avoid mind-altering drugs before or during your hunting session;
  • Look beyond your target to avoid striking something other than your target should you miss the primary target;
  • Whenever possible, hunt with a buddy or ensure someone knows your hunting path and schedule of when you expect to return;
  • When using a tree stand, wear a safety belt;
  • Test all your hunting equipment to ensure it is working properly and you know the correct way to operate all equipment;
  • Store and transport your ammunition separately from your firearm;
  • When not in use, keep both ammunition and firearms under lock and key;
  • Never shoot at a sound or movement;
  • Store both firearms and bows in cool, dry places;
  • Carry a safety kit and first aid kit, including a waterproof fire-starting kit to avoid hypothermia if you get wet or stranded in an area you are not familiar with;
  • Make sure your vehicle is in good working order and stocked with safety gear, including survival rations, rope, a flare gun, space blanket, hand axe, whistle and small compass; and
  • Carry your cell phone in a waterproof plastic bag when hunting so if an emergency arises, you can call for help.

With proper preparation and observation of safety procedures, you and your hunting party can enjoy the sport and avoid a preventable tragedy.

 

Cycle Gear Motorcycle Helmets Recalled

 

Cycle Gear is recalling certain Street & Steel brand Big Bore model motorcycle helmets, sizes Extra Small and Small.  These helmets were manufactured in December of 2012.  The recall deals with the failure of the helmets to comply with dwell time requirements of Federal Motor Vehicle Safety Standard No. 2818 “Motorcycle Helmets”.  If you own one of these helmets, you should be aware that you may not be adequately protected in the event of a crash, increasing your risk of head and neck injuries.

The voluntary recall by Cycle Gear includes the ability to exchange your defective helmet with a replacement helmet, or alternatively, a refund on your investment.  If you own one of these helmets, please contact Cycle Gear by calling 1-800-292-5343 or by email to customerservice@cyclegear.com.

Is That School Bus Safe for My Child?

As parents, we want our children to be as safe as possible when we send them off to school.  Twenty years ago, we could assume our children were safe not only getting to school but in school.  Unfortunately, there are many aspects of school safety that we simply have no control over.  So we concentrate on the things we do have control over, such as how our children get to school.  If you are fortunate enough to be able to take your children to school every day, you have a great deal of control over their safety.  However, many of us have no choice but to trust the bus to transport our children safely from our homes to their school.  Do you know how safe your school bus company is?

The Federal Motor Carrier Safety Administration has developed an Online Safety Measurement System “Carrier Search” tool, which can be found at http://ai.fmcsa.dot.gov/sms/Data/Search.asp.  This search tool allows you to search for your school bus carrier, either by legal name or a trade name (“d/b/a” – doing business as).  Alternatively you can search by state.  Once you are able to locate your school bus company, you can get details on the company including unsafe driving, driver fitness, drugs/alcohol, crash indicator and other helpful details.  You may also access details regarding vehicle maintenance.

This tool makes it easier than ever to compare different transportation companies, if you have a choice, or to simply stay informed regarding the company you are entrusting with your child’s safety on their way to school.  You will note that most school buses do not have seat belts.  According to the American School Bus Council, school buses are designed to be safer than passenger vehicles in avoiding crashes and preventing injury.

Drivers are well trained and carefully screened, participating in pre-employment and random drug and alcohol testing, as well as frequent record checks.  The drivers receive specialized training in loading and unloading, as well as security and emergency medical procedures.  The buses themselves are equipped with stop arm signs, flashing red lights, cross-view mirrors and reinforced sides.  They are often painted a bright color to help keep them visible in inclement weather.  The National Highway Transportation Safety Administration has a website dedicated to school bus facts.  Ultimately, students are about fifty times more likely to arrive at school alive if they take the bus than if they drive themselves or ride with friends.  Statistics also show that students are actually safer riding the bus than even being drive by a parent.

For more information regarding school bus safety, please refer to the Federal Motor Carrier Safety Administration.

FDA Recalls Stryker Spine Oasys Midline Occiput Plate

The United States Food & Drug Administration (FDA) has issued a Class 1 Recall on the Stryker Spine OASYS Midline Occiput Plate, used as an implant in spinal surgeries.  The recall was issued as a result of reported fractures of the pin that connects the implant’s tulip head to the plate body.   On May 30, 2013, Stryker, the maker of the implant, had issued an Urgent Medical Device Recall requesting medical facilities to immediately stop using or distributing recalled lots.  In June of 2013, Stryker notified spinal implant surgeons to begin routine clinical and radiographic post-operative evaluation for patients with an implant.

The FDA recommends an urgent evaluation if a patient with an implant begins to experience pain, weakness or numbness.   After revision, Stryker recommends routine post-operative care and follow-up.

Stryker has learned that in cases where a post-operative fracture occurs in the pin that connects the tulip head to the plate body, serious side-effects can occur, including blood loss, nerve injury and the necessity of a revision surgery to attempt to replace a fractured implant.  Affected products were distributed between April 23, 2010 and February 12, 2013 and include an estimated 1,536 units in the United States and another 880 abroad.

If you or a loved one has experienced any of the above symptoms, contact an attorney experienced in evaluating these types of claims.  Compensation recovered can help pay for medical expenses, lifestyle changes due to disability, economic and emotional damages.

Granuflo/Naturalyte Litigation Demonstrate Potentially Devastating Effects for Patients of Dialysis

On March 29, 2012, the United States Food & Drug Administration (FDA) issued a Class 1 recall of a popular dialysis drug called GranuFlo, along with its sister drug Naturalyte.  According to the recall, these products can lead to “a high serum bicarbonate level in patients undergoing hemodialysis”.  This could contribute to additional side effects such as metabolic alkalosis, a significant risk factor which has been associated with low blood pressure, hypokalemia, hypoxemia, hypercapnia and cardiac arrhythmia, which could also result in heart attacks or cardiopulmonary arrest.

Evidence that Granuflo/Naturalyte could lead to such serious and devastating injuries, up to and including death, during dialysis led the FDA to take action in the form of a serious recall.  Unfortunately, these drugs still remain on the market, despite the fact that lawsuits have begun to emerge based on the terrible effects of the drugs.   Although not inherently dangerous products, NaturaLyte and GranuFlo can become lethal when mixed and administered incorrectly.  GranuFlo is the only acetic acid containing drug that also has sodium di-acetate.  The sodium acetate gets converted into bicarbonate by the patient’s liver, which results in increased bicarbonate levels beyond prescribed limits and causes an increased risk of metabolic alkalosis.

DaVita Healthcare, a national dialysis treatment provider that uses both GranuFlo and NaturaLyte during hemodialysis, is currently facing four class action lawsuits in the US District Court for the District of Colorado resulting from the adverse health effects associated with improper use of the drugs.  Both drugs are made by Fresenius Medical Care.   Lawsuits brought against Fresnius Medical Care are based on allegations that Fresnius knew about the possibility of adverse effects from its products but failed to warn doctors and facilities outside of the company.

If you or a loved one has suffered adverse effects during dialysis, please contact an attorney experienced in evaluating these types of claims.  Compensation recovered can help pay for medical expenses, lifestyle changes due to disability, economic and emotional damages, as well as funeral expenses for the worst cases.

Nebraska Lawsuits Emerge from Cyclospora Outbreaks

The second lawsuit has now been filed in Nebraska stemming from a multi-state Cyclospora outbreak from salad mix served at Olive Garden Restaurants.  The lawsuit was filed in Lancaster County, Nebraska on behalf of a pregnant mother-to-be who dined at Olive Garden in Lincoln, Nebraska.  Symptoms include diarrhea, vomiting, nausea, fever and chills, dehydration, loss of appetite and related weight loss. Cyclospora is diagnosed through a stool sample and treated with antibiotics.  The multi-state outbreak has reportedly affected over 86 Nebraskans and 535 cases throughout 18 states.

 The salad mix has also affected those who have eaten at Red Lobster locations.  The Cyclospora parasite has been traced back to Taylor Farms in Mexico, which ships to both Olive Garden and Red Lobster locations.  The parasite is spread by ingestion of food or water contaminated with feces.   If you are suffering from the symptoms of Cyclospora parasite listed above and have eaten at Olive Garden or Red Lobster recently, see your doctor to have a stool test completed.  An attorney with experience in claims dealing with food-borne illness can evaluate your claim.

Appeals Court Grants Plaintiff Day in Court

The Nebraska Court of Appeals has granted the mother of a deceased 15-year old a chance to present her case to a jury, reversing the dismissal of a lower Court.  The case stems from a crossing accident in which the plaintiff’s ex-husband was traveling in a car along with his 15 year old son and drove onto train tracks in December of 2007, failing to adhere to the warning lights and oncoming train’s horn in December of 2007.

 The lower Court granted Union Pacific’s Motion to Dismiss based upon allegations that the negligence of the father was the sole proximate cause of the collision.  The plaintiff alleged that Union Pacific was also negligent by failing to remove the concrete signal base which the ex-husband’s vehicle was pushed into by the train upon impact.

 Although the lower court dismissed the case stating the state law in effect at the time of the crash required the father to be grossly negligent in order to be held liable for damages, the appeals court reversed the dismissal, stating a jury should decide the merits of the plaintiff’s claims that the concrete barrier constituted active negligence by Union Pacific.  The appeals decision stated that the matter of gross negligence was a factual dispute to be decided by the trier of fact, a jury.