Friday, August 29, 2008

Discriminated due to “Kissing Disease”

A kissing disease is an ailment which commonly occurs among young adults. Technically called Mononucleosis, this disease is typically transmitted through saliva or blood. It isn’t deadly but can make you miss work and can be a cause of action for discrimination claims.

Symptoms don’t appear until four to seven weeks of the infection. Typically, symptoms include:

• Fever
• Sore throat
• Depression
• Stomach ache
• Weakness or fatigue
• Severe tiredness
• Muscle soreness

The following symptoms might resemble and are commonly confused with cases of cold and flu. You might end up being discriminated against by your employer because of this rare disease when 1) you were not allowed to leave work to see a doctor, 2) you were not accommodated concerning your need to take reasonable time off work, 3) there were no reasonable on-work accommodations provided for your disability and 4) you were given time to rest.

This ailment is rare and most people with high resistance to bacterial infections do not easily experience this. Almost always, people who suffer from this disease didn’t know that they have it as it cannot be easily discerned.

However, if you believe that you are suffering from it, you must immediately seek medical assistance. And when you experience discrimination because of this sickness as mentioned in the instances above, speak with an employment law attorney to assist you for possible recovery of damages.

The ADA and the California Fair Employment and Housing Act can protect you from this kind of employment discrimination.

Pedestrian killed in Fresno Bus Accident had Right of Way

The police investigation recently confirmed that 74 year old man who was killed in a bus accident in Fresno had right of way when the accident occurred.

Initially, it appears that a Fresno Area Express bus was maneuvering a U-turn from Fresno Street onto M Street when the victim, who was crossing M Street at about the same time, was struck by the bus.

After the investigation, the police believe that the bus was about to stop at the intersection when all of a sudden the light turns green. So it proceeded to turn into the intersection, thus hitting the pedestrian which the driver didn’t probably notice. It means then that the victim was in the right.

Statistics shows that there are at least 360 million bus passengers in the US each year, while there are 30,000 commercial buses for tours, charters, special operations and regular route services.

With the rise in numbers is the rise in bus accidents. From year 1990 to 2001, there were recorded 50,000 to 63,000 bus accidents in the US. The figure includes school, transit and intercity buses. Death toll is rather low, fortunately, but injuries reached a staggering figure of 15,000 to 21,000.

In this particular case, civil suit for recovery of compensation must be vehemently and strongly pursued by the family of the old man. This is not to enrich them but to vindicate them for the loss of a loved one.

If the bus was operating illegally such as when it turned out that the bus company was not authorized to operate as a carrier in intestate commerce, then it may be facing more legal repercussion that its owners or operators care to imagine.

Friday, August 22, 2008

Reporting a Boat Accident

Due to its proximity to the ocean, boating has become a foremost recreation in California. Even boating enthusiasts from other states come to the place to experience the joys of sailing.

But accidents happen when we least expect it – even at sea.

The article “Boat Catches on Fire in Marina Del Rey” posted on August 19, 2008, tells of a boat, which caught fire near the north jetty of Marina del Rey. Luckily, for the two people on board, they were immediately rescued by responding firefighters. The cause of the fire was yet to be determined.

Urgent response is always required for an emergency like this. Anyone involved in a boating accident that results in serious injury, death or disappearance must notify authorities as soon as possible.

A boat operator is required by law to file a boating accident report (BAR) when an accident happens. The Code of Federal Regulations 33 CFR 173.55 (2001) requires a BAR to be filed with the nearest state boating authority under the following circumstances:

1. when a person dies

2. when a person is injured and requires medical treatment

3. when damage to vessels and other property totals $2,000 or more or there is a complete loss of any vessel

4. when person disappears from the vessel under circumstances that indicate death or injury

If you happen to get involved in a boating accident, you must file an accident report with the Department of Boating and Waterways if:

• a person dies, disappears or is injured and requires treatment beyond first aid

• property damage exceeds $500 or there is complete loss of a vessel

Accident reports must be filed within 48 hours of the occurrence if a person dies within 24 hours of the accident, is injured and requires medical treatment beyond first-aid, or disappears from a vessel.

How Discretionary is Discretionary bonus

Now that the ‘-ber’ months is coming, we usually think of bonus, among other things. And when we talk of bonus; the issue of whether the same is discretionary or non-discretionary will come into picture.

Determining whether your bonus is discretionary or not, is important. The legal implication with each kind varies.

Discretionary bonus, as a rule, can be withheld from the employee provided it is done in good faith. Non-discretionary bonus, again as a general rule, cannot be withheld.

Issues branch out when we speak of discretionary bonus. Questions arise like have the employers all the power to withdraw discretionary bonus because in the first place, it is that – discretionary?

Can the employer exercise discretion in not paying discretionary bonus?

In both instances, the employer cannot. As mentioned, the exercise of discretion to withhold the bonus must be made in good faith. It must not be withdrawn from the employee capriciously or irrationally.

The discretion to mean at employer’s will and want is not absolute after all. An employer must always be fair and just in his dealings with his employees. His rights, though clearly his, must be exercised in good faith and in reasonable grounds.

Lack or absence of good faith and reasonable ground would constitute a cause of action against the employer by the employee. For those who have been unfairly treated and denied discretionary bonus, it is imperative to speak with a labor or employment attorney right away and stand for your right.

Wednesday, August 20, 2008

California: Boating Accident Capital?

The article, “California Leads in Boating Accidents Nationwide”, posted in August 11, 2008, has placed the state in the map of accident-prone areas, particularly for its high incidence of boating accidents. In contrast to this image of the state, the information may actually do more harm than good to California, which is better known for having “some of the most perfect conditions for sailing”, owing to its extensive coastline and good beaches.

However, no less than the state Department of Boating and Waterways has confirmed this information, recording approximately 804 boating accidents last year, making California the second leading state with the most number of boating fatalities.

The agency data also noted a steady increase in the number of victims at 30 percent from 42 percent the previous year.

The department has enough reasons to be alarmed. In a study done recently, it identified some of the common causes linked to boating accidents. They are:

• operator inattention

• inexperience of the operator

• excessive speed

• other external factors such as weather conditions or boat defects

What’s surprising is that most of these accidents (the Department says) may be avoided or preventable. For instance, the study also showed that of the 71 percent fatalities that drowned, at least 87 percent of them were not wearing life jackets.

Basic safety precautions like wearing of life jackets and following proper and safe boating practices can help in reducing the number of boat accidents. The US Coast Guard recommends boating safety guidelines that all boating enthusiasts may follow.

Boating accidents, like all other accidents, can actually be prevented. With adherence to safety guidelines and learning of some basic boating skills, one can avoid accidents or know how to deal or confront when the situation arises.

If people will only heed the call to maintain safety when sailing or boating, then perhaps California may regain the pride of being a safe destination for boating enthusiasts all over the country.

Wednesday, August 13, 2008

Battling Motor Vehicle Accidents in Los Angeles

For quite a long number of years, Los Angeles is experiencing great troubles in dealing with various types of motor vehicle accidents that results to thousands of people injured and even killed.

Most of these untoward incidents are being caused by those people who are negligent and careless with their behavior. Further, during these recent years, famous celebrities are also facing annoyance and dangers in dealing with paparazzi photographers who frequently go beyond their limits just to take a close shot on them.

Enough is enough for these irresponsible acts as many Hollywood stars echoed their appeal against paparazzi. During an inaugural meeting, held at the LA City Hall, celebrities gave their testimonies of dangerous chases and dreadful experiences with paparazzi.

However, the Police Department seems so sluggish and uninterested in forming a task force to battle these occurrences. They said that all the existing rules and operations are just enough to handle paparazzi problems.

In my opinion, I think that it is just time to establish a group operating against paparazzi. We should not wait until such major accidents occur due to these dangerous dealings.

Even our celebrities have their right to protection on the roads – and creating a special task force may keep them safe from those people who earn money at their expense.

Paparazzi photographers must learn to respect the privacy of these celebrities at some point. They must also be aware that our laws will apply if they have caused injuries and damages resulting from such performances.

Tuesday, August 12, 2008

Who’s to Blame in a Bicycle Accident?

Accidents involving bicycles can be fatal. On the other hand, if a rider luckily survives an accident, he may sustain severe injuries that could lead to a disability. A look at the article, “Six-year-old Boy Suffers Severe Head Injuries in California Bicycle Accident”, posted on August 4, 2008, will tell you that injuries from these accidents are no laughing matter.

According to the article, the accident occurred when the rider made a sudden U-turn and collided with an oncoming car. The victim was not wearing a helmet and as a result, he suffered a “depressed skull fracture”. He was reportedly in “critical but stable condition”.

News accounts attributed the cause of the accident mainly to the victim, or largely to that sudden U-turn he made directly into the path of the car. Nevertheless, facts regarding the accident are yet to be confirmed, especially in the light of information that the six-year old boy was actually wearing a helmet when the incident happened and he would not have survived the serious injuries he incurred were it not for it.

In order to find liability in a bicycle accident, it is first necessary to establish the facts of the incident. Accounts from independent witnesses, physical evidence culled from the site of the accident, and police accident and medical reports may form a substantial body of evidence that could help a victim pursue claims in a bicycle accident. Without these, proving liability in any accident may be difficult even for a lawyer.

In this incident, the following questions must be satisfied first:

• What are the relative positions of the vehicles and the damages incurred on both vehicles?

• Why was the car so close to the bicycle?

• Why didn’t the car stop when the rider turned towards her?

• How close was the car to the bicycle?
• Are the car’s brakes in good condition?

• Why is a six-year old boy allowed to ride alone on the streets and without adult supervision?

In the end, the victim’s family would truly need a good personal injury lawyer to establish liability of the other party (car driver) in this accident. All information related to the accident will ultimately determine who is to blame for injuries incurred by a victim in an accident such as this.

The Prevalence of Multi-Vehicle Collisions on Freeways

Commonly referred to as one of the most fatal incidents on streets, multi-vehicle collisions or pile-up accidents bring about more than a thousand of injuries and deaths in California alone. That is, since the state envelopes some of the most dangerous highways and freeways in the United States.

As reported recently, a multi-vehicle accident again happened in one of the busiest freeways in California. Three different types of vehicles have been the subject of such accident, which killed two young victims. It involved a truck trailer that rear-ended a car situated on the back of a motorcycle, which stopped along the freeway for unknown reasons.

The drivers of the car and the motorcycle, who happen to be siblings, died on the spot due to the impact created by the raging truck that failed to make a timely stop.

This example tells us how risky it is to be driving on major highways and freeways where thousands vehicles of various kinds run wild. Many motorists are still unaware of the dangers of driving without caution.

Primarily, negligence is the root cause of most multi-vehicle accidents. These irresponsible individuals still assume that they own the road and fail to care about the safety of other travelers. As a result, they tend to cause great injuries and damages.

Now, to at least the accounts of these accidents and misfortunes, I guess the authorities should strictly implement more laws that will castigate these negligent drivers. Also, they should conduct more seminars and campaigns about road safety.

Nevertheless, our motorists should me more vigilant in traveling. They should know how to foresee accidents in various conditions.

Finally, for those who have already been injured in a multi-vehicle catastrophe, they should understand their legal rights. Consulting a credible vehicle accident lawyer can then be advantageous in pursuing a legal action against the liable parties.

Friday, August 8, 2008

Frequency of Roll over Accidents

Most of us spend most of our time on the road traveling from one place to another for work, leisure activity or fun. Expectedly, we face great risk of meeting an accident – a roll over crash for instance.

True enough, when a family of five was on their way home from a fishing trip, a roll over crash spoiled their day. They were sent to the hospital although sustaining minor injuries. The reports failed to state the reason for the accident.

In a more recent roll over accident involving two vehicles - Chrysler sedan and a Chevrolet Suburban, it appeared that defects in the design of one of the vehicles were apparent.

The said accident had been the subject of a blog “Three Injured in Santa Rosa Chevy Suburban Rollover Accident” posted on August 3, 2008.

These accidents happened only in two months!

Ultimately, roll over accidents or crashes pertain to the vehicle’s stability in making turns. It usually happens to pickup trucks or sport-utility vehicles. The typical cause is that the vehicle is either so loaded or simply defective.

Regardless of the cause of the accident, we should be alarmed. Accident like that should not suppose to happen at all much more on a monthly basis. Action should be taken to prevent, if not completely eliminate, this kind of accident.

Wednesday, August 6, 2008

Do We Need a New Law to Protect Disabled Employees from Discrimination?

Last 25 June, the US House of Representatives approved an amendment to the ADA or the Americans with Disabilities Act of 1990.

The ADA is a law which prohibits “private employers, state and local governments and employment agencies and labor unions from discriminating against qualified individuals with disabilities in job application procedures, hiring, firing, advancement, compensation, job training, or in the terms, conditions and privileges of employment.”

Also in places of public acomodation such as schools, restaurants, parks, etc.

This time, the law, termed the ADA Restoration Act of 2008, is born to restore the original intent of the Americans with Disabilities Act.”

In order to give the law more tooth in preventing further discrimination of our disabled citizens, the law is amended to make clear the following, among others.

The ADA should be interpreted broadly to provide ample protection for people who experience disability discrimination.

Impairment that “substantially limits a major life activity, such as caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating and working”, does not need to limit another major life activity to be considered a disability.”

An episodic impairment or impairment in remission is still a disability if it would substantially limit a major life activity when it is active.

It is improper to take into consideration most measures that would reduce the impact of impairment, such as medication, prosthetics, or other technology, when determining if an individual is disabled.

Employees are protected from discrimination if their employers discriminate them because they perceive the employee to have a disability, even in fact there was none.

The law is still “wait and see”, pending approval of the Senate and the signature of the President.

Tuesday, August 5, 2008

Swimming pool Accident

Swimming pools are essentially attractive and eye-catching but with inherent hazards especially for children. These so-called ornaments have caught our attention with so much case of accidents and drowning scenarios.

Like in the recent case of the 6-year-old daughter Ruby, of Fleetwood Mac drummer Mick Fleetwood, where it was held in critical condition following pool accident that happened at the home of Fleetwood’s family friend in Los Angeles.

Ruby was the victim of an accident that is extremely serious, as held by the doctors treating her. According to the hospital spokespeople, she has made remarkable progress and doing quite well though, she still has not made a complete recovery. The doctors and the Fleetwood’ are optimistic that she will recover fully from the injuries she suffered.

Setting aside speculations on what really transpired in the incident, if anything the swimming pool accident and like cases underscores, was the importance of maintaining pool safety at all times, especially where there are children involved.

Whether the pool is situated in private homes, hotels or in public, pool safety must be taken huge considerations (at all times) by swimming pool owners or operators, as these provisions are common source of accidents especially for the sector of the kids.

For otherwise, the failure of the owners or operators to maintain their swimming pool in safe conditions or of them deficient in providing pool safety measures, will hold them liable for any accident or injury that may happen thereto. Specifically, a constitutive premise liability case can be filed against them.

Employee and independent contractor: A comparison

Often times, employers are confused on how to treat someone working for them, whether to treat them as employee or an independent contractor.

To avoid misconceptions and confusions, the California’s Employment Development Department (EDD), in partnership with the Internal Revenue Service (IRS) is offering a seminar on employment status issues.

This information had been the subject of the blog, “Employee versus Independent Contractor”. The author relayed that the seminar is available from time to time. An online webinar or CD is also available for free.

Well, this will be useful especially to employers. Knowing the difference between the two will greatly affect employer’s dealing on matters such as withholding of income taxes or withholding insurance or medical taxes.

My professors in law school taught me that in determining whether the person providing service is an employee or an independent contractor, the degree of control and independence must be considered.

An employer must have control over the employee’s means and method. Regardless what the employment contract states, if all evidence points to the existence of an employee-employer relationship, then that will hold true.

Now that I am practicing law myself, my guide is to examine the entire relationship and look into the degree or extent of the right to direct and control. Only after doing those steps that I can arrive at a conclusion.

The keys are to look at the entire relationship, consider the degree or extent of the right to direct and control, and finally, to document each of the factors used in coming up with the determination.

Friday, August 1, 2008

Another Vehicular Accident in California freeway

Another vehicular accident, particularly one involving a big truck, happened in one of California’s freeways just a couple of days ago.

The accident was reported to have occurred on the I-5 Freeway. It involved a big rig truck and an SUV near the San Clemente State Beach. The SUV was the first vehicle to figure in an accident when the truck struck it causing the latter to rollover several times.

The big truck was then reportedly carrying 60,000 pounds of food cargo.

When the two vehicles collide, both the SUV and the truck caught fire. The truck driver was airlifted to a hospital. The SUV driver was lucky to be uninjured.

Vehicular accident, such as this one, is one of the common sources of personal bodily injuries and deaths in the US.

In California freeways in particular, it is very common to see accidents involving large trucks.

For those who are involved, one thing I could suggest is to go after whosoever is responsible for the damage. Under the law, they may sue the driver, or the owner or anyone which contributed to the accident.

They may recover damages by hiring a competent car accident or personal injury lawyer. In doing so, they may realize that they can get a lot more than to grab hasty settlements from insurance companies.

A good accident lawyer is the key.

In the US, there are more than 6 million car accidents and from that figure, 42,642 lost their lives.

One person dies every 13 minutes or 115 each day. Others suffer bodily injury which range from temporary to permanent injuries.

The Right to Recover Full Amount Billed for Medical Services

The Court decisions in Hanif v. Housing Authority (1988) 200 Cal. App. 3rd 635 and Nishihama v. City and County of San Francisco (2001) 93 Cal. App. 4th 298 are to the effect that when a personal injury victim is insured, the damages that may be recovered is limited to the amount actually paid or incurred, not the amount stated in the actual medical billing.

These decisions draw disapproval from some, especially personal injury lawyers who represents the victims.

For starter, the insured victim pays premium to the insurance company. And if any one is entitled to benefit from such “investment” it is he who pays the same.

In effect, the decisions negate this simple logic.

It allows the defendant to benefit from the victim’s prudence and from the output of negotiation between the insurer and the hospital, clinic or medical institution as the case may be, which wouldn’t have materialized in the first place if the victim didn’t insure himself.

That was the concurring opinion in another more latter case. But, being a mere opinion, it has no binding effect to future cases with the same points in issue.

The court will still follow Hanif and Nishihama.

It may or may not be overturned in the near future. Let’s just hope that the Supreme Court uphold what is more beneficial to the injured person.

After all, the victim had already suffered personal injury. It’s not right that he suffers once more.