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Category: Personal Injury

Product Defect Claims Based on Breach of an Express Warranty

May 31, 2019 - Personal Injury by

Hire an Experienced Injury Attorney in Tuscaloosa, AL Today Breach of warranty disputes can be somewhat confusing for first-time plaintiffs who are just getting a handle on personal injury and product defect law.  In Alabama, as is the case in most other states, the breach of an express product warranty can give rise to a claim for significant damages, depending on the circumstances. What would be considered a breach of an express warranty case? Suppose that you are injured while using a ladder.  The ladder is rated to handle a certain amount of weight.  Though this is not listed specifically as a “warranty” on the box, it suffices as a guarantee equivalent to an express warranty.  Later, you use the ladder while removing heavy materials from the roof of your house.  Despite the fact that the ladder is rated to handle more than the amount of weight you are carrying, it fails and the ladder collapses, causing you to sustain serious injuries. Given the above fact pattern, you would almost certainly have an actionable product defect lawsuit, one aspect of which would involve the breach of an express warranty. Basics of an Express Warranty Warranty law is based on contract, and as such, there must be privity between the end-user and the defendant.  If the retail store makes a warranty that is not in the manufacturer’s marketing materials, for example, then you would not have an actionable claim against the manufacturer — your claim would exist solely against the seller […]

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Trial Readiness is Critical to Securing a Favorable Result

Apr 30, 2019 - Personal Injury by

Experienced Injury Attorney in Tuscaloosa, AL There is no easy formula for success in personal injury litigation.  A variety of factors — some predictable, others unpredictable — can influence whether you are able to secure a favorable result, whether through a trial verdict or pre-trial settlement negotiation.  To a significant degree, then, maximizing one’s likelihood of success depends on identifying the relevant factors and executing a case strategy that takes advantage of the opportunities unique to the situation at-hand. Despite the fact that there is so much variation from case-to-case, it’s reasonable to say that your attorney’s “trial readiness” will give you a substantial competitive advantage when it comes to litigating nearly any personal injury claim. Let’s take a closer look. Being Ready, Willing, and Able to Litigate — and What it Means for the Lawsuit Many personal injury firms base their business on a high volume of customers.  They are looking to invest the minimum amount of time, attention, and resources into each client necessary to secure a “win,” typically through a settlement negotiation with the defendant.  Though this may be effective for securing something of a recovery, in many cases, you may be compensated inadequately.  These high volume firms do not necessarily have substantial experience trying cases to conclusion, and insurers (and defense counsel) recognize this deficiency — the defendant knows that they have leverage in settlement negotiations, since the plaintiff’s counsel may not be able to effectively argue the case at trial. Here at Cross & Smith, […]

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Factors Contributing to Poor Roadway Visibility

Feb 28, 2019 - Car Accidents by

Tuscaloosa Injury Attorney If you’ve been injured in a motor vehicle accident while traveling on a roadway, then you may have a right of action for damages under Alabama law. Motor vehicle accident disputes do not always proceed in an obvious manner, however — if you were injured due to poor roadway conditions (such as a lack of visibility), then you may have a right to sue and recover damages from the entity responsible for building/maintaining the roadway.  Property owners have a responsibility to exercise reasonable care so as not to expose others to an excessive and foreseeable risk of harm. Let’s explore some of the factors that contribute to poor roadway visibility, and that may give rise to a lawsuit against the party responsible for the roadway. Upward or Downward Slant Upward and downward elevation changes in the roadway can lead to significant visibility impairment.  If a driver is traveling down a hill road with sudden changes in elevation, for example, then they might not be able to see “over” the hump, thus preventing them from anticipating an accident with upward traffic. Blind Turns Blind turns pose a genuine risk of harm to drivers, no matter how well-prepared and cautious the driver.  For example, suppose that a turn is so sharp that a driver cannot actually see incoming traffic coming around the bend — under such circumstances, visibility is sufficiently poor that it could contribute to an accident if one of the drivers (making the turn) does not exercise […]

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Property Owners Can Be Held Liable for Exposure to Criminal Harm

Jan 31, 2019 - Personal Injury by

Tuscaloosa Injury Attorneys Helping You When You Need it Most If you’ve been injured by a third-party while on the defendant’s commercial property, then you could be entitled to bring an inadequate security claim against the defendant for the damages you suffered. In Alabama, and elsewhere, commercial property owners are responsible for shielding premises entrants from unreasonable and non-obvious risks of harm.  This duty can be resolved by correcting dangerous conditions of property, or by warning premises entrants of the dangerous condition itself. When the dangerous condition of property is not an object-based defect, but the risks posed by criminal activity in-and-around the property, then the owner must either provide adequate security to protect entrants or warn entrants so that they are aware of the inherent dangers. Let’s take a closer look. Inadequate Security Claims Can Be a Challenge When bringing an inadequate security claim against the property owner, you’ll have to show that the risk of harm from a third-party was reasonably foreseeable.  Property owners cannot be held liable for the unexpected acts of third parties. Reasonably Foreseeable Harm Whether third-party harm is reasonably foreseeable is a determination that depends on the total circumstances.  There is no clear objective standard. We’ll explore the basics using an example. Suppose that you are injured by a mugger just outside of the defendant’s retail store, in their parking lot.  With the aid of a qualified attorney, you begin to investigate the case and discover that there have been multiple muggings outside the […]

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If My Brakes Fail and Cause an Accident, Do I Have a Claim for Damages?

Nov 30, 2018 - Personal Injury by

Tuscaloosa Injury Attorney In Alabama, as in other states, those who are injured in motor vehicle accidents — whether a car, truck, or motorcycle accident — may be entitled to damages, depending on the circumstances surrounding the harm at-issue.  Many people unfamiliar with personal injury litigation may be confused about the particular circumstances under which they might be entitled to bring a claim against the defendant for damages.  In fact, they might not be sure who the defendant actually is! So, what happens if you experience a brake failure?  Can you sue, and (if possible) who can you sue? If you’ve been injured in an accident that was caused due to a brake failure, then Alabama law may give you a right of action for damages against the relevant manufacturer — either the brakes manufacturer, motor vehicle manufacturer, or some other distributor in the supply chain that is responsible for the defect. Confused about how liability is applied?  Let’s take a closer look. Product Defect Basics In Alabama, a product may be defective if it is unreasonably dangerous for its intended or foreseeable uses.  Whether a product is “unreasonably dangerous” depends on the circumstances, however, and the industry space that the product occupies.  For example, if motor vehicle brakes fail 10 percent of the time, most industry experts would agree that the failure rate is indicative of an unreasonably dangerous product. Brakes may be defective due to their design, or due to some manufacturing issue that caused it to become […]

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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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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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"I was injured in an accident and I chose Justin Smith to handle my case. I worked with every staff member there by the end of the ordeal and was treated like family but also with true professionalism. They worked diligently on my case and never faltered or backed down regardless of the obstacles. I am so happy with the outcome and highly, highly recommend Cross & Smith, LLC to anyone that needs someone they can trust."