Levenbaum & Cohen Blog

Typically, to recover for negligent infliction of emotional distress, a plaintiff needs to show that they are in the “zone of danger” when a loved one is hurt.  In a memorandum decision out of Division One today, State Farm v. Slayton, the Arizona Court of Appeals affirmed the dismissal of a claim by parents who witnessed the freshly dead body of their son at the scene of an accident.

The appellants urged the Court to abandon the “zone of danger” test where “the injury suffered by the victim is fatal or severe; the victim and the plaintiff are related as spouse, parent-child, grandparent-grandchild, or siblings; and, the plaintiff has observed an extraordinary event, specifically the incident and injury or aftermath of an accident in gruesome detail.”  Reading between the lines, this extension of negligent infliction jurisprudence has apparently been accepted in other jurisdictions.

The Court of Appeals politely held that they were bound by Supreme Court precedent and that “[w]e assume that by seeking in our court a change in established supreme court law, they are essentially making their record as a prerequisite to asking the Arizona Supreme Court for a change in the law.”

My candid view is that the Slaytons are quite right to push for this modification of the antiquated “zone of danger” test.  The purpose of that test was to limit claims to where negligent infliction could be more readily anticipated and, it should be obvious, these types of circumstances are well-within our society’s expectations of foreseeable and extreme emotional distress.

Accordingly, look for a Petition for Reivew in this case and, hopefully, a revision of the existing law.

Couple seek $7.2 million from Gilbert for injuries in crash

A Gilbert couple who were seriously injured in a motorcycle crash last fall are demanding a $7.2 million settlement from the town, claiming road construction created unsafe driving conditions.

Brent and Charlotte Kapustik, both 47, were riding westbound on Guadalupe Road near Greenfield Road when the driver of a Toyota Prius turned left in front of them, according to a notice of claim filed April 22.

Renae Urie, wife of state Rep. Steve Urie, R-Gilbert, was the driver of the Prius, according to the claim.

The crash occurred around 3 p.m. Oct. 30, on Guadalupe Road. The road had recently been resurfaced, and crews had not completed lane striping, the claim states.

White dots roughly indicated where traffic lanes should be, and 50-inch traffic barricades separated eastbound and westbound traffic.

The barricades impaired Renae Urie’s vision of oncoming traffic as she turned left into a church parking lot, the claim said.

The Kapustiks’ motorcycle slammed into the passenger side of the Prius, sending the couple crashing facedown onto the asphalt. Although they were wearing helmets, they suffered numerous injuries that required surgery and a lengthy recovery, the claim said.

Charlotte, a senior analyst for Catholic Healthcare West, was injured more seriously and spent weeks after the crash in a coma. She had internal lacerations to her spleen, liver, intestines and lungs.

Charlotte continued to bleed “copiously” after surgery and remained unstable a day after the crash. An orthopedic doctor found fractures in her pelvis, ankle and shoulder.

She required additional surgery on Nov. 2 and 4, and needed several blood transfusions. Charlotte developed complications including E. coli pneumonia, staph infection and suffered “mild cognitive deficits,” such as impaired memory.

To date, her medical costs have totaled $1.2 million, according to the claim.

Her husband, Brent, a carpet and tile cleaner for Campbell’s Steam Pro, also suffered numerous injuries, including fractures to his face, leg and foot, bleeding in his brain and a partial tear in his shoulder.

So far, Brent’s medical costs have totaled $149,000.

To supplement their case against the town, Phoenix-based injury law firm Levenbaum & Cohen obtained an expert opinion from forensic transportation engineer Robert Bleyl.

In Bleyl’s opinion, the use of traffic barricades to separate traffic on Guadalupe Road was a cause of the crash and would have blocked Urie’s view of distant oncoming traffic, according to the claim.

“Absent the view-obstructing, massive, vertical panels, Urie would have had an unrestricted view of the motorcycle and, in all likelihood, she would not have made her turn,” Bleyl said.

The town does not comment on pending claims, but Town Manager Collin DeWitt briefly mentioned the case in a recent e-mail to a resident.

Greg Land, who lives near Higley and Pecos roads, had complained to town officials about bright streetlights casting excessive light on his property.

DeWitt responded by explaining the town must “battle with a balance of industry safety standards and the notion of quality of life for those that live on town streets.”

Any variation from those standards puts the town in a “position of increased risk and liability,” DeWitt said.

“As a case study, we were just served with a ($7 million) claim for a recent auto accident that the town was not involved in except that it occurred on one of our streets,” DeWitt wrote. “If all of the required standards for driver protection are not followed, the town is without defense.”

The town has until June 21 to review and respond to the claim. If the town refuses to settle, the Kapustiks could file a formal lawsuit.

Source: AZCentral.com

A 29-year-old man was found dead Friday afternoon near Blackduck, MN.

According to the Beltrami County Sheriff’s Office received 2 calls late Friday afternoon reporting a severe motorcycle injury accident involving a pickup truck on Alvwood Road Northeast (County Road 30) located approximately two miles east of Blackduck in Summit Township.

The motorcycle rider, Mitchell Ryan Skyberg, 29, of Tenstrike, MN, was found dead on the scene. The driver of the other vehicle had no injuries.

The accident is still under investigation.

If you have been involved in an motorcycle accident or auto accident, you need the help of a skilled accident lawyer. The accident attorneys at Levenbaum & Cohen can help handle every aspect of an accident or injury case, allowing you to concentrate on getting your life back together.

A good accident attorney knows what steps to take to generate the kind of settlement to which you’re entitled. Call the accident lawyers at Levenbaum & Cohen today.

A Reading, PA native who served a tour of duty in Afghanistan died in a tragic motorcycle accident in Florida Saturday.

25-year-old Christopher Schofer from Deltona, FL, was riding his motorcycle Friday afternoon when he collided with a car. Mr. Schofer had no helmet on, and was pronounced dead at the scene.

The cause of the motorcycle accident is still being investigated. Mr. Schofer is survived by his wife and two daughters.

Anyone suffering injuries as a result of a motorcycle accicent or car accident is urged to contact our team of skilled accident lawyers for assistance in obtaining a proper settlement.

If you or a loved one has been injured as a result of a car accident, motorcycle accident, truck accident, drowning, construction accident, slip and fall accident, medical malpractice, or any other type of accident, you may be entitled to receive compensation for your losses. A skilled accident lawyer can help you get what you deserve.

Call Levenbaum & Cohen today to set up an appointment with one of our expert accident attorneys.

Troy police are investigating a fatal motorcycle accident that occurred around 9:40pm on Thursday, October 7, 2010.

The victim has been identified by police as 32-year old Clarence King.

Police report that Mr. King crashed his motorcycle into a car at the intersection of 5th Avenue and 111th Street, and was pronounced dead upon arrival at Albany Medical Center.

The other vehicle involved in the accident was relatively unharmed. Its driver sustained only minor injuries.

The accident is still under investigation.

If you or someone you know has been involved in a motorcycle accident or car accident, you are urged to contact a skilled accident attorney immediately. Our team of experienced accident lawyers can help manage your case and get you the compensation you deserve.

Police investigation teams are continuing to try to reassemble parts of a motorcycle crash.

The accident, which occurred around 2:30am, happened around 2:30 a.m. and resulted in the death of a women, and the injury of an off-duty police officer.

Sources told KDKA-TV that the officer is Adam Lewis and he is a three-year veteran operating out of Zone 5 in the East Liberty area.

Police say the off-duty officer was driving with his fiance when the motorcycle crossed the center line and struck their vehicle. Both driver and passenger were taken to the hospital, and the passenger was pronounced dead. The driver was listed in critical condition.

Investigators are checking into whether speed or alcohol played a role in the crash.

It is critical that if you or someone you love has been involved in a motorcycle accident or car accident, you contact a skilled accident attorney immediately. A team of skilled accident lawyers can help immensely to get your case managed and secure the settlement you deserve. It’s important to choose an accident attorney who understands your case and how to handle all aspects of reaching a settlement.

Call the experienced team of accident lawyers at Levenbaum & Cohen today.

When I started to read Dennis v. Ryan, a memorandum decision from Division One today, I started to get excited.

It seemed as though Jack Levine had finally gotten the break-through he’s been working on for so many years: getting the courts to see that, medical bills and records are all that’s needed to create a triable fact as to whether care is reasonable, necessary and even casually related. After all, the Court of Appeals reversed the trial court’s exclusion of certain medical records and bills in a trial where there was “no medical testimony” presented “to establish that . . . the medical care was reasonable and necessary.”

But upon closer examination, I think the Court got to the right result in this case for quite the wrong reason or, at a minimum, created substantially more confusion on the topic.

The essential fact seized upon by the Court of Appeals in this case was that there was a stipulation to enter certain medical records and bills into evidence, although there was a reservation to argue the reasonableness of the charges and necessity of subject care. Yet, in short, despite the stipulation to enter those documents into evidence, the trial court later “un-admitted” them based upon the defendant’s assertion that plaintiff had not presented “testimony” regarding reasonableness or necessity. The Court of Appeals viewed this un-admission as a violation of the stipulation and, therefore, reversed. They did so, however, all while buying into a bizarre concept that the trial court was otherwise right: that is, additional testimonial evidence is generally necessary on the issues or reasonableness and necessity to somehow get those documents admitted.

As many of you know, the parties’ forgoing stipulation is common. Parties routinely agree to forgo calling custodians of records to set forth exceptions to the hearsay rule a/k/a business records exception and other hurdles to laying the foundation for admission of documents which are, quite obviously, authentic records. Likewise, without addressing the issue of burden, parties routinely agree to allow for argument as to “reasonableness” and “necessity” to the extent such issues are raised by the Personal Injury RAJI’s (Damages 1). Where the trial court and this Court of Appeals gets screwy is that they morph this factual issue into an evidentiary issue.

Over the years, many people have taken the position that, notwithstanding the RAJIs, there is no requirement that puts the “burden” on plaintiffs to “prove” medical expenses are “reasonable” or that procedures were “necessary.” Rather, people have argued, it is an affirmative defense and the burden is on the defense. Jack Levine has also long argued that, regardless of who has such a burden, medical bills and records themselves are at least evidence the charges are reasonable and that the care was necessary.

Still, these topics remain subject to considerable dispute, so it was not entirely surprising to read the trial court’s view that “I believe that [it] is the law in Arizona, that the Plaintiff must establish the reasonableness and necessity of all medical treatment.” While we may disagree with this assertion, we are used to being saddled with the burden of proof and/or dealing with trial courts who embrace this contested view.

The Court of Appeals, though, took it a step further. They claimed that, “[i]n addition to authenticity, the traditional foundation required for the admission of medical bills is a showing of reasonableness and necessity,” citing, with a “”see” qualifier, their opinion in Larsen v. Decker, 196 Ariz. 239, 995 P.2d 281 (App. 2000), which admittedly tends to support this nonsensical thinking. The problem, however, is this is all an illusory, judge-made addition to the Rules of Evidence which clearly permit the admission of relevant documents which are subject to hearsay exceptions.

In Larson the Court of Appeals wrongly sustained a trial judge’s evaluation of medical care based upon his review of the records. For example, Larson notes that the trial court excluded the evidence “because [Dr.] Immerman re-took x-rays that had been taken the prior week during Larsen’s hospital stay and no testimony showed that either they or the chiropractic treatments were necessary because of the auto accident.” Such inquiry clearly goes well-beyond what the trial judge is supposed to do – i.e., determine whether the evidence is “sufficiently reliable.” It is certainly not for the trial judge to decide whether the evidence – i.e., records and bills – itself sufficiently proves (assuming the burden is on the plaintiff) reasonableness or necessity.

That is for the jury. That is why it is in a RAJI.

This case furthers the Court of Appeals incorrect views that (a) reasonableness and necessity is something plaintiffs must prove and (b) evidence of reasonableness and necessity are necessary to admit medical records and bills. Indeed, based on this latter suggestion, one must have testimony about reasonableness and necessity to prove reasonableness and necessity since the documents themselves, as Jack points out, are evidence of the reasonableness and necessity of care.

Probably one of the most thrilling rides of your life may be on a motorcycle. As a rider, you experience a certain feeling of being a free spirit on the road while feeling the wind and sun on your face. You feel a sense of confidence, more than you feel when you are driving a car. But you also realize that motorcycle riding is one of the most dangerous ways to travel, as you are prone to accidents caused by unfortunate circumstances and other drivers, all of which may cause you great harm and injury, and possibly death.

Knowing the importance of safety in motorcycle riding is a good way to avoid accidents. But just how safe should you be?

For starters, you must learn how to ride the motorcycle properly. Get the proper training and familiarize yourself with the ways on how to start, ride, balance, brake, stop and even learn how to maneuver in different types of roads. Practice as much as you can until you familiarize yourself with your motorcycle. Try to get the feel of your bike so you’ll always be ready for the unexpected.

Remember to wear clothing that can be easily seen at a distance particularly at night. Remember to wear protective gear such as a good and durable helmet to protect your head. Wear a good eye visor to protect your eyes from harsh elements like the wind, dust and sun glare. Your body can be further protected by wearing thick, extra padded jackets or clothing especially for your arms, knees and legs. Wear comfortable boots or footwear as well.

Never drink or take drugs when riding your motorcycle because that is the surest way to get into an accident. If you are taking medication and are feeling drowsy because of it, then you should not take that motorcycle ride.

Always be on guard when taking curves on the road. Learn to anticipate, slow down and be wary of what lies ahead. Also take care to see sudden bumps or humps, uneven surfaces or anything that would hamper your safety on the road.

Drive defensively and concentrate on the road. Be on the lookout for motorists turning left in front of you, as this is one of the most common causes of motorcycle accidents. Be sure to slow down on intersections or junctions, and communicate with other motorists by using your signal lights and observing the proper lanes for you to take. Try to keep a safe distance from other vehicles.

Never give in to road rage as this is also a very common reasons for motorcycle riding accidents. Let other vehicles pass you by and yield to them if you feel you are being tailgated on the road.

If the motorcycle is not yours, avoid riding it. Don’t try to impress others by trying to ride a bike you are not familiar with. Be realistic enough to know your own limitations.

Always be careful when riding at night. Make sure you have your lights on. If you can avoid night rides, then do so. Also take extra care when you ride during extreme weather conditions like rainstorms and winter where roads can become slippery and wet.

The key to remember here is that you must ride your motorcycle with common sense, great caution and anticipation. Keep in mind that you are prone to anything on the road and you have minimal bodily protection in an accident.

If you are involved in a motorcycle accident, it is highly recommended that you contact an experienced motorcycle accident attorney who can help you get the compensation you deserve.
Most importantly, have fun!

Levenbaum & Cohen is one of the nation’s oldest and most experienced motorcycle injury and personal injury law firms. Call us today for a free consultation and speak to our accident lawyers, motorcycle accident attorneys, personal injury attorneys and motorcycle injury lawyers. We’ll help you determine the specifics of your motorcycle injury case and guide you through the process of getting the compensation you deserve.

Motorcycle accidents do happen and are unfortunate occurrences in our daily life. With so many motorcyclists on the road, it is no surprise that there are more cases of accidents involving motorcycles.

If you are involved in a motorcycle accident, it is important that you know what to do. If you are injured, you should know that you may be entitled to some form of compensation. You need to know that time is of the essence when you want to make a claim after the accident. Most of all, you should remember important steps to help you get compensation that may be due to you.

First, you should seek medical attention. Even if you are not sure if you are hurt, it is an advantage to do so because commonly, many injuries present themselves days or weeks after the accident. If you end up filing any claims later, your medical records will prove to be critical pieces of evidence.

If the police arrive, coordinate with them to file a police report or incident report of the accident. Try to recall all the details of the accident such as the location, time, date, the type of weather and the road conditions. You do not have to make a statement as to who is at fault.

Try to gather witnesses to support your claim, and do your best to get important details such as their names and addresses.

Next, make a detailed list of what was damaged on your part such as the extent of damage of your motorcycle, the severity of your injuries, damaged clothing and other personal effects.

You should also refrain from doing certain things that could negatively affect your claim. Avoid making statements about the accident regardless of who is at fault. Don’t discuss anything with insurance adjusters because doing so may affect your claim negatively. Don’t repair your motorcycle immediately after the accident; its damaged condition is your evidence in your claim. Lastly, never settle a claim on your own because there a lot of legalities that you may not be aware of, thus, the insurance company may take advantage of this.

After gathering all the important evidence and other paperwork, you should seek good legal advice from an expert motorcycle lawyer who specializes in motorcycle accidents like a personal injury lawyer. You can ask from your family or friends if they can recommend one. If not, you can always check online for a reliable personal injury attorney. Choose one that can help you and represent your case convincingly.

A good lawyer should be available to discuss the details of your case with you, and answer your questions. It is advantageous to have a knowledgeable and skilled accident lawyer to come up with a good and fair fight. Your motorcycle accident lawyer would be the one to correctly negotiate for your claim, protect your rights and seek the most reasonable compensation for you.

Clearly, you don’t want to get involved in a motorcycle accident or in any other type of accident for that matter. But in the event that you do, it pays to know that you are equipped with the knowledge of knowing what to do if the situation calls for it.

Levenbaum & Cohen is one of the nation’s oldest and most experienced motorcycle injury and personal injury law firms. Call us today for a free consultation and speak to our motorcycle accident attorneys. We’ll help you determine the specifics of your motorcycle injury case and guide you through the process of getting the compensation you deserve.

When choosing an accident lawyer, it’s important to make sure you find one who specializes in the area of practice that describes your specific case. Make sure the accident attoney you choose has the expertise and the knowledge in handling such cases. Ask your lawyer about past cases to find out his or her effectiveness in handling and winning these types of cases. Make sure that your accident lawyer has good standing in the court of law or any association he belongs to. An experienced personal injury lawyer or accident attorney would always be ready to take action and already knows what to do without doing further research. This is important, as you’ll need your accident lawyer to speak on your behalf - he or she must know what to say and what actions to take when speaking to insurance companies or negotiation on your behalf.

It is also important to make sure that you hire a lawyer that you are comfortable talking to and one with whom you can build working relationship. You may not be too familiar with legal and technical terms so it would be the job of your lawyer to explain and help you understand in simpler terms the features of your claim. This way, you are relieved of further stress about your case because you know and understand where your case stands at all times.

Although finding the right auto accident or truck accident lawyer may take some time and effort, it is worth it to be selective. You must understand that you are hiring an accident lawyer to make your case, build it and win it persuasively. That is the most important reason why it is an advantage for you to hire one who has the skills and experience to win. Furthermore, carefully choosing and hiring a lawyer will help you save more time and reduce your financial costs in due time. You will be free from unwanted worries and you can be assured of a successful outcome of collecting the biggest possible compensation due to you.