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Yearly Archives: 2018

How Negligence Per Se Works in Alabama

Oct 31, 2018 - Personal Injury by

Alabama — as with other states — allows those who have been injured due to the negligent conduct of another to sue and recover damages as compensation.  Negligence can be difficult to prove in some cases, however, or may cause delays (even in more straightforward cases) where the defendant is particularly aggressive in denying liability. Negligence per se is a unique legal principle that can strengthen your position in litigation and give you substantial leverage during early negotiations.  Let’s take a brief look at how it works in Alabama. Establishing Negligence Per Se is Advantageous Negligence per se can be quite advantageous in an injury lawsuit, as it allows the plaintiff to move forward with a presumption of negligence.  Normally, negligence-based injury claims require that the plaintiff establish: That the defendant owed the plaintiff a duty of care; That the defendant’s conduct violated the applicable standard of care; That the defendant’s violation proximately caused the plaintiff to suffer harm; and The plaintiff actually suffered harm. With negligence per se, “proof” of negligence isn’t necessary, as the violation of law creates the presumption of negligence.  The plaintiff must simply satisfy the negligence per se requirements and show that the defendant’s violation of the law caused them harm.  This is simpler (and more favorable to the interests of the injured plaintiff) than establishing the applicable standard of care and then showing that the defendant’s conduct violated that standard of care. Requirements for Negligence Per Se Negligence per se in Alabama is applied […]

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Lane Splitting is Prohibited in Alabama

Sep 28, 2018 - Motorcycle Accidents by

Motorcyclists often take advantage of lane splitting — moving between lanes — to avoid getting stuck in the sort of traffic that plagues larger vehicles.  During times of heavy traffic, it is not uncommon to see a motorcycle (or other two-wheeler) splitting lanes and weaving through the endless parade of stopping-starting vehicles. In Alabama — given its relatively warm weather year-round — motorcycles are a regular feature on roadways.  If you are a motorcyclist who has sustained injuries in an accident, then you may be entitled to damages under Alabama law.  It’s worth noting, however, that your ability to recover may be significantly impacted by your engagement in certain prohibited activities, such as lane splitting. Lane Splitting is Illegal It’s important to note that Alabama law prohibits lane splitting.  Motorcyclists may not lane split and are only entitled to do so in a sudden emergency.  As such, you should avoid the practice of lane splitting, even if you are used to doing so (particularly as other states may allow for lane splitting). What Happens if You’re Injured While Lane Splitting? If you’re injured in an accident that occurred while you were splitting two lanes, then your ability to sue and recover damages will almost certainly be affected.  In fact, Alabama is a pure contributory negligence state, which means that injured plaintiffs may not be entitled to compensation if they are partially at-fault for their injuries — if the court finds that your negligent actions (i.e., lane splitting) contributed even to […]

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Negligent Entrustment Claims in Alabama

Aug 31, 2018 - Car Accidents by

In Alabama, those who are injured in a motor vehicle accident that was caused by the negligence or otherwise wrongful misconduct of the driver are entitled to sue and recover damages — and under certain circumstances, may have a legitimate right of action against the owner of the vehicle itself. Oftentimes, motor vehicle accidents involve vehicles that are owned by different individuals than the drivers whose negligence actually caused the accident.   If a vehicle owner is aware (or should be aware) of an unreasonable risk of injury posed by the driver, but permits use of the vehicle anyway, then such conduct could expose them to significant liability pursuant to the doctrine of negligent entrustment. As the injured plaintiff, negligent entrustment represents an excellent opportunity for securing damages.  In many cases, the driver may not have the necessary insurance coverage to payout your damages in full — by looping in other liable defendants, such as the vehicle owner, you can spread liability around, thus maximizing your chance of a successful and adequate recovery. Elements Necessary to Prove Negligent Entrustment In Alabama, you can successfully hold the vehicle owner liable if you can prove that the following elements are true: The driver was incompetent; The vehicle owner permitted the driver to use the vehicle; The vehicle owner knew or should have reasonably known that the driver was incompetent; and The driver’s incompetence substantially contributed to the plaintiff’s injuries. For example, imagine that you suffer injures in a motor vehicle collision.  As it […]

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Cross & Smith Offering Annual $1,000 College Scholarship

Aug 29, 2018 - Firm News by

Cross & Smith is a Tuscaloosa law firm that handles personal injury, wrongful death and insurance cases throughout the State of Alabama. Attorneys Dell Cross and Justin Smith have been frequent lecturers statewide in the area of civil litigation and have written and spoken at several legal education seminars across the state.  The firm’s main office is located in Tuscaloosa, AL, but they have an additional office in Birmingham, AL. The firm believes giving back to the community is an important part of making a positive impact. To aid in this effort, each year the firm awards one student with $1,000 towards their college education. This is in hopes to ease the burden of college and help with the many expenses that students encounter each semester. High school seniors or current college students that plan to pursue a law degree within the U.S. are eligible to apply. How to Apply: Write an essay between 500 – 1,000 words that explains your motivation for pursuing a law degree including any obstacles you think you may encounter and how you plan to address them. Send an e-mail to both dell.cross@crossandsmith.com and justin.smith@crossandsmith.com with the below information and attach your essay Full name Phone number Address Current school Current GPA Intended college and major Any extracurricular or volunteer activities The winner will be selected based on a combination of writing skills, academic qualifications and extracurricular activities. Qualification Requirements: Must be a high school senior or currently in college Must intend to pursue a […]

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Reimbursed Injury Losses May Still Be Recoverable in Alabama

Jul 31, 2018 - Personal Injury by

If you have been injured in an accident (that was caused by the negligent or wrongful actions of another party), then you may be entitled to significant damages.  Importantly, however, many injured plaintiffs have access to some form of third-party reimbursement.  For example, if you are injured in a car accident, then you may not actually pay any of your medical expenses out of pocket if you have comprehensive health insurance coverage. How does reimbursement affect your damage recovery in a lawsuit? In Alabama, and in most other states, the common law “collateral source rule” made evidence of any third-party reimbursement — such as health insurance, disability insurance, and property insurance — inadmissible as evidence in litigation.  Such evidence was traditionally deemed irrelevant and potentially confusing to the jury. This had an enormous, positive influence on damages recovery for injured plaintiffs who were otherwise reimbursed for their losses.  Generally speaking, one’s billed losses are much higher than the actual losses.  For example, you may be charged $100,000 for medical treatment, but have the entire amount reimbursed due to health insurance coverage — in the end, your insurer may have only paid $25,000 to the hospital (after negotiating the cost down).  According to the common law collateral source rule, however, you would be entitled to claim $100,000 in medical expenses damages, and the defendant could not introduce evidence of the reimbursement to counter your claim. Alabama Statutory Modifications With regard to all civil actions (including personal injury and medical malpractice), the […]

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Hurt in an Accident? You May Be Entitled to Damages For Loss of Future Earning Capacity

Jun 29, 2018 - Personal Injury by

If you have suffered injuries in an accident due to another’s fault, then Alabama law may give you the right to recover damages to cover a range of different losses, including damages for the loss of future earning capacity.  Loss of future earning capacity is a unique damage claim that many injured plaintiffs are actually unaware of — unlike the standard wage loss claim, which is somewhat related, a damage claim involving the loss of future earning capacity is fundamentally uncertain. Loss of Future Earning Capacity is a Projection In Alabama, plaintiffs may be entitled to recover damages for their loss of earning capacity when their injuries are substantial enough to diminish their ability to earn. For example, if you are an office worker, but you suffer a severe back injury in a motor vehicle accident that renders you unable to work full-time, then you have likely had your future earning capacity diminished by your injury.  You would have to calculate the hours you are now capable of working (and what you’re capable of in the future) and compare the total earnings with what you would have otherwise been able to earn had you never been injured. There is an inherent uncertainty that accompanies damage claims for loss of future earning capacity.  As such, Alabama courts have emphasized that plaintiffs seeking to recover such damages must establish: Reasonable certainty of the injury at-issue; That the injury impaired the earning capacity of the injured plaintiff; and Sufficient evidence to allow for […]

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Employers May Be Held Vicariously Liable for Injuries Caused by Employees

May 31, 2018 - Personal Injury by

In Alabama, as in most other states, employers can be held liable for the negligence of their employees, pursuant to the doctrine of “vicarious liability.”  For example, if you are injured in a car accident involving a company car being driven by an employee, then it’s highly likely that you will be entitled to sue and recover damages from the employer, too. Fundamentals of Vicarious Liability The doctrine of vicarious liability is unique in that it is not an independent injury claim brought against the defendant-employer.  Vicarious liability simply attaches the liability of the employee to their employer.  As such, there are no “additional” damages to be obtained through vicarious liability. Why bother with arguing for vicarious liability? Application of vicarious liability can be hugely beneficial to certain plaintiffs, depending on the circumstances.  Generally speaking, vicarious liability is most useful in circumstances where the defendant-employee does not have sufficient insurance (or other personal assets) to cover the damages owed.  In such cases, being able to sue and recover damages from the employer gives the plaintiff an opportunity to “reach into the pockets” of a party that is much more likely to have significant insurance coverage and assets. For example, suppose that you have been injured in a motor vehicle accident caused by an employee of a small company.  You suffered losses totaling about $250,000.  The employee does not have independent car insurance or liability insurance, nor do they have substantial personal assets to cover your losses.  If you sue the […]

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An Introduction to Product Liability in Alabama

Apr 30, 2018 - Personal Injury by

In the state of Alabama, as in other jurisdictions throughout the country, plaintiffs who are injured due to a defective product may pursue litigation and recover damages pursuant to product liability principles that have been established through statutory and case law. If you have suffered injuries due to a defective product, then you have the right to sue the manufacturer and recover damages in accordance with Alabama law.  Such claims tend to be complicated and hard-fought by manufacturers seeking to discourage future lawsuits, however.  As such, it’s important that you consult with an experienced Tuscaloosa injury attorney who has the knowledge and background necessary to effectively broker a resolution to your claim. Product defect liability can be a rather complex and intimidating subject for those who are not already familiar with such litigation.  Oftentimes, people assume that product liability claims operate quite similarly to standard negligence-based personal injury claims.  Though there are certainly some similarities, there are significant differences that are worth considering as you explore the product liability space. A proper introduction requires a breakdown of the basic elements that constitute an Alabama product defect claim.  Let’s begin. Foundational Elements Product defect liability in Alabama does not require proof of negligence.  As the injured plaintiff in a product defect case, you need only prove that the defendant-manufacturer (or seller) sold you a product that was actually defective — and therefore unreasonably dangerous to you as the end-user. For example, if you are injured in a motor vehicle accident, and […]

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How to Secure Punitive Damages in Your Alabama Personal Injury Lawsuit

Mar 30, 2018 - Personal Injury by

Throughout the United States — and in the state of Alabama — punitive damages awards occupy a special place in popular culture, though many people may be unaware of its importance.  When civil lawsuits (non-criminal) capture the attention of the mainstream, it’s typically due to the existence of a sizable and perhaps disproportionate damage award. For example, a trip-and-fall injury case is not particularly noteworthy if the damages are $100,000 in total, but it may be picked up by various media outlets and make the nightly news if the damages rocket up to $10 million. What does this have to do with punitive damages? Well, put simply, punitive damages act as a multiplier for the “actual damages” in the case.  Suppose you have suffered a grand total of $500,000 in damages, including wage loss, medical expenses, and emotional damages, among other things.  If the court awards punitive damages, then your total compensation may be multiplied by some factor — say, three times — thus leading to damage recovery worth millions of dollars! If you have been injured due to another person’s reckless or intentional actions, then an Alabama court may award punitive damages.  Punitive damages are only infrequently awarded, however.  Given the inherent challenge in securing an award of punitive damages, it’s important to work with a qualified Tuscaloosa personal injury attorney who has experience successfully obtaining such damages on behalf of their clients. Punitive damages (sometimes referred to as exemplary damages) may be a rather confusing and unfamiliar topic […]

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What Constitutes Negligence in Alabama?

Feb 28, 2018 - Personal Injury by

If you’ve been injured in an accident that was caused due to some mistake made by the defendant, then you might not be certain as to whether you have a legitimate claim through which you can sue and recover damages.  Liability does not necessarily attach to the defendant on the basis of a mistake.  Mistakes only give rise to negligence when the standard of care has been violated.  Negligence, and more generally, the concept of negligence — whether in Alabama or elsewhere — can be quite difficult for the average person (who lacks legal experience) to understand.  Fortunately, however, negligence is a straightforward concept at its core. The conduct of the defendant in a given accident scenario is perhaps best viewed as a point along a spectrum.  On one side is a basic mistake that other reasonable people would have made in similar circumstances — such mistakes will not give rise to negligence, and will therefore not attach liability to the defendant.  On the other side of the spectrum is intentional misconduct, where the defendant specifically intended to cause harm to you.  Finally, resting somewhere in the middle is negligence.  Negligent behavior is not specifically intended.  In fact, negligent behavior can be seen as a mistake that is “unjustified” by the circumstances. Demonstrating that the defendant’s conduct actually qualifies as “negligent” lies at the core of a successful negligence-based personal injury claim, in Alabama and elsewhere.  In order to do so, you’ll have to show that the defendant’s conduct violated […]

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