Understanding Dog Bite Laws in Delaware

Jan 03

According to the American Veterinary Medical Association, 4.7 million people in the US are bitten by a dog, of which according to the website of Morris James LLP about 20% will be serious enough to require medical attention and about 27,000 (2012) requiring reconstructive surgery. In 2013, 31 people died from dog bites.

In Delaware, the laws are very strict when it comes to dog bites. The main statute dealing with the liability of dog owners is embodied in Delaware Code §1711 which states that the “owner of a dog is liable in damages for any injury, death or loss to person or property that is caused by such dog.” This means that a victim of a dog attack (bite or not) can recover compensation from the dog’s owner or other third person unless the victim was committing a crime, trespassing, or taunting or abusing the dog at the time of the incident. Delaware imposes strict liability for dog bites i.e. the dog does not have to have a history of biting under four legal doctrines: negligence, negligence per se, and scienter.

Negligence refers to the failure of a person (dog owner or others) to exercise reasonable care when dealing with a dog, resulting in injury or damage to another person. A homeowner that allows a stray dog to get into the yard where young children are playing will be liable for injuries resulting from that action, even if the homeowner does not own the dog. Negligence per se, on the other hand, refers to negligence as a legal matter. A dog owner that fails to properly restrain a dog while in a public area can be held liable for injuries to another person, animal, or damage to property under the negligence per se doctrine (Delaware Code §1705).

This is distinct from the scienter doctrine, in which the cause of action is the propensity of a dog i.e. sharp teeth or any domestic animal to do harm and not the action or lack of action of the owner/keeper. The owner or keeper can be held strictly liable for causing harm to a third party if scienter is proven.

Dog bites can be serious, and the victims can suffer huge losses. In Delaware, you can get compensation from the party responsible for your dog bite or animal attack injuries. Consult with a personal injury lawyer in Delaware for more information about your legal options.

Read More

Possession of Marijuana Charges

Aug 10

Oregon is pretty laid back when it comes to a little cannabis here and there for personal use. While it is against the law to possess any amount of marijuana while in Portland, having less than an ounce is a violation that may result in a hefty fine but it is not considered a crime.

With marijuana “pot” shops opening across the water on the side of Washington state where possessing a limited amount of marijuana for personal use is legal, there are understandable concerns that people driving under the influence of intoxicants (DUII-Drugs) or “drugged driving” may drift over to Portland. The Portland Police Bureau, however, has no plans to step up patrols for this purpose until such time as having legal marijuana so close at hand becomes a real problem.

While it may have a somewhat tolerant attitude toward a little recreational use of marijuana and medical marijuana is already legal in the state, DUII is something the Portland police take very seriously. You can be arrested if you are suspected of being high behind the wheel and probable cause can be established for a blood test.

Unlike alcohol-related DUI where there is a legal limit, any amount of marijuana or any other drug found in the system is automatically a DUI and a crime. Even a first offense carries up to one year in jail, a fine, community service, or any combination of the three. If the DUI-Drugs results in serious bodily harm or death to a third party, it is immediately escalated to a felony charge.

If you are in a city where marijuana possession is still illegal and think you can get away with a slap on the wrist for possession of marijuana charges, you could be making a dangerous assumption. Consult with an experienced marijuana possession lawyer, just to be on the safe side. Dealing with the consequences of a marijuana possession conviction because you didn’t take the charge seriously enough is something that you’ll regret instantly.

Read More

Domestic Employees and Overtime Disputes

Aug 07

It is very easy to overlook the fact that your live-out nanny who comes in 5 days a week before you go to work and leaves when you get home is a non-exempt employee under the Fair Labor Standards Act (FLSA). This means that live-out domestic workers are entitled to overtime pay at 1.5 times the regular rate. This can lead to overtime disputes that can get pretty ugly pretty fast unless you cover your legal bases pretty thoroughly.

All domestic workers are non-exempt employees under the FLSA, and in New York, even live-in domestic employees are entitled to time-and-a-half in overtime when they work beyond 40 hours a week. In essence, you can have your domestic staff working extended hours; just be ready to fork out the cash. If you don’t, you could be dealing with a New York City overtime lawyer in a, well, New York minute.

The rule of thumb to avoiding overtime disputes with domestic employees is to have a clear and FLSA compliant work agreement. Employers typically quote a weekly salary without specifying how many work hours it encompasses and what the hourly rate will be. In the absence of specifics, it is presumed that the weekly salary is for a 40-hour workweek, and any hours worked over and above that will be paid in addition to the weekly salary.

The work agreement should include:

  • An hourly rate
  • Work hours
  • Weekly rate

If you include all these details, the weekly rate will include all hours worked within that week, including overtime. For example, if a live-out nanny is paid $650 for a 5-day workweek at 10 hours a day (50 hours a week) this works out to an hourly rate of $11.82. At the regular rate x 40 hours + [(regular rate * 1.5) x 10 hours)], it comes out to $650.53 a week.

If you are a domestic employee in New York with no work agreement and regularly work over 40 hours a week without being paid overtime, you have a possible case for an overtime dispute. You can use this website to record your hours of work which your New York overtime lawyer can use as evidence.

Read More

Discharging Student Loans in Bankruptcy

Aug 05

According to student loan expert Heather Jarvis, 7 out of 10 college graduates in 2012 will have an average student loan debt of $29,400. That’s about 37 million student loan borrowers for a total of $1 trillion in outstanding debt to federal, state, and private lenders. Typically, student loan should be repaid with interest within 10 years after graduation which can significantly impact on a person’s income, more so when it gets to the point when filing for bankruptcy is the best option for managing debt.

Filing for Chapter 7 bankruptcy can eliminate most unsecured debts and provide relief through more favorable debt payment options under Chapter 13. Student loans, however, need to be repaid within the prescribed period, except in one circumstance: undue hardship. You can have your student loan debts discharged through bankruptcy court if you can prove that repaying them will impose undue hardship on you.

There are various tests used by courts to determine if student loan debt repayment actually constitutes undue hardship in a particular case. In Alabama, for instance, the courts make use of the Brunner test standard to make this determination. Birmingham bankruptcy lawyers would help you determine if you qualify under the following factors:

  • Poverty
  • Persistence
  • Good faith

In most cases, in order to discharge your student loan debts when filing for bankruptcy, you will need to file a Complaint to Determine Dischargeability. You will then produce evidence that repaying your student loan debts poses undue hardship for you. This is incredibly difficult to do and most people do not succeed. Student loan debts are categorically challenging to receive assistance for.

If you fail to prove your case, you will need to find a way to manage your student loan debts on your own. There are several options open to you, including income-based repayment, the pay-as-you-earn program, public service loan forgiveness (for certain public service jobs), and federal loan consolidation. A bankruptcy lawyer will be able to give you advice on what may work best for you.

Read More

The Sandwich Generation: Coping with Children and Elderly Parents

Aug 04

It is no joke to be a parent, especially to a child of divorce; there are many parenting issues involved as well as a rollercoaster of emotional and financial problems even in the best of arrangements. Add into the mix the need to care for elderly parents, some with mental or physical impairments, and you have a recipe for a nervous breakdown.

Legal matters may also come into play if the parent is mentally incapacitated and estate planning becomes an issue; few think about getting a power of attorney while the parent is in full control of their faculties. And yet more and more people are finding ways to cope with being members of what is known as the “sandwich generation.”

It is estimated that in 15 years or so, about 18% of the US population will be over 65 years old, and with the present generation having children later in life, a household where a child of 12 may be living with a 50 year old parent and a 75 year old grandparent. The challenges to the adult child can be overwhelming, draining not only finances but time and emotions as well.

The toll on the elderly can also be substantial, especially when relocation stress syndrome is a factor. Many adult children live far away from their parents, and in order to take care of them, it is necessary to bring them closer. This could mean bringing the parent into the household in lieu of a nursing home or assisted living care. This can trigger mental or psychological problems, which in turn can develop child safety issues. For example, a single mother in Raleigh with a full-time job may be caring simultaneously for a parent with dementia and a child of 7. Raleigh child custody lawyers may legitimately bring up issues of the child’s safety in such a case.

On the other hand, putting an elderly parent with a physical or mental impairment in a nursing home or assisted living facility poses a different set of issues. It is mostly financial, but it can also be psychological and emotional. Most of the elderly dislike being in unfamiliar surroundings with strangers caring for them, and rapidly decline even when nursing home abuse or neglect is not an issue. Which it can be far too easily, as any Chicago elder law attorney can attest to.

There is no easy one-size-fits-all solution for the sandwich generation; it will largely depend on the family dynamics and what a particular situation calls for. Most will go through a trial-and-error process until they hit on the best possible arrangement.

Read More

Reasons Why Workers’ Compensation Claims are Denied

Aug 02

Employees in non-exempt companies believe that if they incur work-related injuries they are covered by workers’ compensation insurance, as mandated by law. However, there are instances when a claim will be denied, and it can be a very upsetting experience to get a letter stating that this is so and why.

There are several reasons why a workers’ compensation claim will be denied. The most common would be that the claim was not filed within the time frame required by law, which is typically within a few days. Depending on the state, the employer may be required to do the filing, or the employee can go directly to the insurance carrier to file a claim.

The claim may have been denied because the employer disputed the claim. This could be because the employer alleges that the injury or illness is not work-related, or that the accident did not occur at the workplace. In such cases, the employee will have to produce evidence to the contrary, such as statements from witnesses, or certification from a doctor that the injury or illness is work-related.

Another reason a claim may be denied is because the state does not recognize the injury or illness as eligible for workers’ compensation. In some states, stress-induced conditions are precluded. It may also be that the severity of your condition does not meet the criteria set in the insurance policy.

However, even if a claim is denied, an employee can still appeal. The process will vary from state to state. In Delaware, for example, the employee must file a petition with the Office of Workers’ Compensation within two years after the initial claim is denied. A Delaware workers’ compensation lawyer would ideally be the one to draft and file the petition to make sure that it complies with the state’s requirements.

If you are employed in Lexington, on the other hand, a denied claim can be appealed by informing the Kentucky Department of Workers’ Compensation that your claim was denied, and to file for an appeal. A Benefit Review Conference will then be scheduled between you and the insurance carrier to iron out any issues. The presence of Lexington workers’ compensation lawyers at this point would be desirable to make sure that your rights are protected and to impress on the insurer that you are in earnest.

In both states, when mediation is unsuccessful, a hearing will be scheduled at which you and your lawyer should present your corroborating evidence to support your claim. While you may file an appeal on your own, it is not advisable as the appeals process is often too complicated and highly technical for an individual with no legal training.

Read More

Facts about Erb’s Palsy

Jul 31

About 3 in every 1,000 babies suffer from some type of injury at birth which is understandable because it is a traumatic experience for both mother and child. However, there are some injuries that could have been prevented with a better trained or more conscientious physician. Some cases of Erb’s palsy qualify under this category, as an Oklahoma mother campaigning to raise awareness of the condition is well-qualified to testify, even without consultation with Oklahoma personal injury lawyers.

Erb’s palsy is a subset of a group of birth injuries called Brachial Plexus Birth Palsy (BPBP) which primarily affects the nerves of the brachial plexus that controls arm and hand movement. It is differentiated from Klumpke’s palsy by the location of the injury. Erb’s palsy occurs in the upper trunk between cervical roots (C) 5 and 6 while Klumpke’s palsy is in the lower trunk between C8 and the first thoracic nerves. Erb’s palsy is much more common than Klumpke’s palsy but not necessarily less serious. It all depends on how severe the injury is.

The manifestation of Erb’s palsy in a newborn can be quite worrying, but in fact the prognosis for Erb’s palsy is quite good, unlike one case where the baby died due to a botched forceps delivery in Texas and the parents may very well need Houston personal injury lawyers to help them sue the doctor. More than 50% of all Erb’s palsy cases resolve itself within the first six weeks after birth with no intervention at all, while most of the rest markedly improve with physical therapy, nerve surgery, or a combination of both. Only a small portion of those with Erb’s palsy end up with the affected arm permanently disabled.

However, this does not mean that the cause of the injury should not be investigated and when appropriate liability assigned. It is true that in a majority of cases BPBP can result when there is prolonged labor, high birth weight, breech birth, or shoulder dystocia absent any medical negligence. But as Erb’s palsy lawyers maintain and the evidence supports, in some cases causation can be traced directly to errors made by the physician due to recklessness, inexperience, or other factors. Even if the child makes a full recovery, the physician still failed in their duty of care to the patient and should be brought to book.

Read More