Personal Injury Law In Usa

PERSONAL INJURY LAW IN USA

Submitted by Sadanand Naik Legal Assistant Bangalore 20 June 2009

1

Index 1. Introduction 2. Definition 3. Governing Laws 4. Types of torts 5. Courts to handle the personal injury case 6. Reasons/factors for accidents

7. Types of accidents 8. Types of Injuries

9. Types of Liability/ damages / tort 10.Jurisdiction 11.Burden of proof 12.Limitation 13.How the procedure takes place

2

Introduction Personal Injury which comes under Tort Law involves civil law cases where a person will try to obtain compensation for an injury he sustained. Physical injuries to person could arise from being involved in an automobile accident, a railroad accident, airline or other common carrier accident, a construction or other workplace accident, being injured as a result of a dangerous or otherwise unsafe product and other injury-causing situations. Personal injuries

even

could

be

psychological

which

are

typically

caused

by

psychological trauma associated with life-threatening and/or disfiguring physical injuries, or as a result of witnessing trauma in others1. According to the U.S. National Highway Traffic Safety Administration (NHTSA), 42,642 people were killed and 2,575,000 were injured in road accidents in the year 20062. Definition Personal injury is an injury not to property, but to a person’s body, mind or emotions3. Personal Injury also includes causing of false arrest, invasion of privacy, libel, slander, defamation of character and bodily injury. The injury is against the person in contrast to property damage or destruction4. Governing law When a person is injured, tort law will usually govern whether that person may be compensated for the injury, the amount of compensation that may be recovered, as well as which parties will be liable for the injury. Tort law, also known as injury law, comes from federal and state codes, as well as judicial opinions from prior cases5 1

http://www.statelawyers.com/Practice/Practice_Detail.cfm/PracticeTypeID:76

2

http://www.drivers.com/article/955/

3

http://www.nolo.com/definition.cfm/Term/DEEE0E11-E3A5-4E2D-9E36FA5CC1F46D61/alpha/P/

4

http://www.answers.com/topic/personal-injury

5

http://www.justia.com/injury/

3

A personal injury law varies from state to state. Road accident, rail road accident, flight accidents has its own statutes and methods of compensation in every state. For example in California, we see a statutes like vehicle Code, Streets and Highways Code, Harbors and Navigation Code, Water code, Insurance code, Code of Civil Procedure etc.6 Rules and penalties for driving under the influence of alcohol also vary by state. The blood-alcohol level (BAL) is .10 in some states while other states have a lower .08 legal limit. There are severe penalties and punishment for the drink and driving under the age of 21 in many states. Anyone under the age of 21 who is found driving under the influence will be subject to serious punishment for their transgressions. Anyone arrested for drunk driving is subject to the laws of the state in which they were arrested, which can vary. Typically, an offender can expect to have his license suspended either at the time of the arrest or at the time of a conviction. There will also likely be additional fines and penalties for a drunk driving offender. Punishment is much harsher for repeat offenders than firsttime convictions7. Federal and state regulations govern the activities of common carriers such as buses, trains, and airplanes. Common carrier regulations hold railroad companies liable for even the slightest act of negligence8. The federal government allows most railroads the responsibility of regulating themselves. This creates an obvious conflict of interests, as no railroad would ever enforce regulation that would hinder their business and ongoing operations. Most railroad companies ignore safety violations, and save the money that it would cost to make sure that all trains, gates, and railroad crossings are properly equipped with all of today's safety regulations. 6 7 8

http://www.leginfo.ca.gov/calaw.html http://www.auto-accident-resource.com/ http://www.askaccidentlawyers.com/practice-areas/railroad+accident+lawyers.html

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If a person involved in an accident that was the fault of a train owned and operated by the federal government, a person will have certain rights under the Tort Claims Acts, which were established so that people who were victims of wrongful acts, such as negligence, can sue the federal government9. Industrial accident law can be complicated, and regulations may vary by state10. In the U.S., states cannot govern aviation matters in most cases directly but look to Federal laws and case law for this function instead. We shall look into the provisions of US Code - Title 49 - Aviation Programs, Air Transportation Regulatory Reform Act of 1978, Airport and Airway Development Act of 1970, Aviation and Transportation Security Act of 2001, Civil Aeronautics Act of 1938, Federal Aviation Act of 1958, US Federal Aviation Administration (FAA) - Regulations & Policies11. The Federal Aviation Administration (FAA), governs applied aspects of flight. In the international realm, the International Civil Aviation organization (ICAO) provides general rules and mediates international concerns to an extent regarding aviation law. The ICAO is a specialized agency of the United Nations12. As to the rail road law is concerned, The Federal Railroad Administration (FRA) is an agency in the United States Department of

9

http://www.auto-accident-resource.com/

10

11

http://www.askaccidentlawyers.com/practice-areas/industrial+accident+lawyers.html

12

http://www.hg.org/aviation-law.html

, http://topics.law.cornell.edu/wex/Aviation,

http://en.wikipedia.org/wiki/Aviation_law, http://www.faa.gov/regulations_policies/

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Transportation governs (49U.S.C.)13 Rail Roads in USA and we shall also look into the provisions under Title 45-Railroads. As per Highways is concerned, we need to look into the Title 23—Highways14 As per the workmen’s compensation we need to look into Title 29—Labor. As per marine accidents concerned Title 46—Shipping governs it. As per transportation is concerned Title 49—Transportation federal Code governs it. The Occupational Safety and Health Act of 1970 were created to provide men and women with safe work environments. The OSH Act set up strict health and safety standards and enacted training programs to ensure the safety of employees across the country. When an employee is injured on the job, the contractor can be held liable because he or she is responsible for the safety of the employees. Falls are the most common construction-related accident, although there are many other workplace hazards, including: Electrocution, Scaffolding accident, Exposure to toxic fumes, Forklift accident, Slip and fall injury, being hit by object, Accidents involving machinery, Accidents caused by debris. Falling materials; Nail gun and other power tool injuries; Burns from hot objects. Blindness, amputation, head injuries, fractured bones, scarring and disfigurement are some of the serious injuries that may result from industrial machinery and construction site accidents. Employees have the right to work in an environment free of hazards and safety risks15.

13

http://en.wikipedia.org/wiki/Federal_Railroad_Administration

http://www.fra.dot.gov/ 14

http://www.law.cornell.edu/uscode/html/uscode23/usc_sup_01_23.html, http://www.dot.gov/new/index.htm

15

http://www.askaccidentlawyers.com/practice-areas/industrial+accident+lawyers.html

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Courts to handle the personal injury cases: Both the state and federal courts handles the personal injury cases. Federal courts will have the jurisdiction to entertain the case if the federal issue is involved or the suit is between the citizens of 2 different states and the amount claimed exceeds $75,000.

Types of accidents16: Federal or state statutes of USA do not give any classification of accidents. Generally accidents may be classified as follows 1. Road accidents 2. Train Accidents 3. Construction and Industrial accidents 4. Boating/marine accidents 5. Aviation accidents

16

http://www.auto-accident-resource.com/

http://www.resource4personalinjury.com/topics/types.html http://www.onlinelawyersource.com/personal_injury/personal-injury-cases/

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Road accidents: Reasons for Road accidents: Many factors result in Road accidents, and sometimes multiple causes contribute to a single accident. Reasons include the following17:

•

Driver

distraction:

fiddling

with

technical

devices,

talking

with

passengers, eating or grooming in the car, dealing with children or pets, or attempting to retrieve dropped items. •

An improper lookout - This accident occurs when drivers negligently fail to look for and avoid oncoming traffic.

•

Improper lane change. Improper lane change accidents occur when drivers move into other lanes without first checking for the presence of other vehicles.

•

Speed exceeding safe conditions, such as the speed for which the road was designed,

the road

condition, the weather, the

speed of

surrounding motorists, and so on. •

Driver fatigue/drowsy driving. Driver fatigue is especially common with commercial drivers. Federal laws regulate how long truckers can drive between rest breaks. Driving for excessive amounts of time is illegal and can form the basis of liability cases. Speeding/traveling too fast for conditions.

•

Failure to comply with vehicle guidelines.

•

Driver impairment by tiredness, illness, alcohol or drugs, both legal and illegal. Liability in accidents involving drunk driving is usually easier to prove, as negligence and carelessness are inherent to drinking and driving. Drunk driving is a serious offense and can carry with it repercussions for years down the road. Rules and penalties for driving under the influence of alcohol vary by state and it is up to you

17

http://chinese-school.netfirms.com/personal-injury-California.html

http://www.resource4personalinjury.com/topics/types.html

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to know the rules wherever you are. The blood-alcohol level (BAL) is .10 in some states while other states have a lower .08 legal limit18. •

Mechanical failure, including flat tires or tires blowing out, brake failure, axle failure, steering mechanism failure.

•

Road conditions, including foreign obstacles or substances on the road surface; rain, ice, or snow making the roads slick; road damage including pot holes.

•

Other road accidents occur due to sideswipes, rollovers, jack knifes, turning across paths into intersecting vehicles, running off roads and unfamiliarity with roadways

Road accidents may be classified into as follows: 1. Pedestrian Accidents 2. Bicycle Accidents 3. Motorcycle Accidents 4. Automobile/car Accidents 5. Trucking Accidents 6. other vehicle accidents Pedestrian Accidents: A pedestrian is a person who is not riding in or entering/ existing motor vehicle. Since the pedestrian do not wear any shield to cover his body, accidents between the pedestrians and motor vehicles becomes serious and dangerous as it may result in the death of the pedestrian. The National Highway Traffic and Safety Administration (NHTSA) reported 70,000 accidents involving automobiles and pedestrians in 2002. Many a

18

http://www.auto-accident-resource.com/

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times, the children meet with an accident when they are on the way to their home after school hours. Pedestrian accidents occur as a result of negligent on the part of the pedestrian or the driver. Sometimes parked cars can cause obstructions that block pedestrians from getting a good view of oncoming traffic19.

Bicycle Accidents: A bicyclist is fatally injured in an accident every 6 hours in the United States. Bicycle accidents are dangerous because the cyclist is exposed to the elements and can easily be seriously injured Around one-third of bicycle accidents involve other vehicles, and it is those accidents which cause most of the serious injuries sustained in bicycle crashes (often head trauma)20. Motorcycle Accidents: Motorcycle accidents are extremely dangerous as the motorcycle rider is not strapped or belted in and protected, but instead exposed to the full brunt of the impact. Since 1966, over 100,000 riders have been killed in motorcycle accidents. 75% of motorcycle accidents involve a collision with another vehicle, most likely a passenger automobile

19

20

http://www.auto-accident-resource.com/

http://www.auto-accident-resource.com/

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In about 2/3 of these accidents, motorcycle rider error was to blame for the accident. The rider may slide out and fall due to over-braking or running wide on a curve due to excess speed or under-cornering. Automobile/car Accidents: Automobile accidents are one of the leading causes of death in the United States. There are approximately 6 million car accidents in the United States every year. Of these 6 million accidents, there are 3 million injuries - about 2 million of which are permanent, including paralysis, paraplegia,

and

quadriplegia. Car accidents are responsible for killing over 40,000 people each year. It is estimated that 25% of the cars on the road are being driven by uninsured drivers21. At least 90 percent of automobile accidents are caused by on-the-road carelessness. About half of nation’s states have “no-fault liability laws.” The remaining states have “at-fault liability laws,” which makes the responsible driver accountable for all damages. Insurance laws and regulations in the state in which you reside may be different for motorcyclists and automobile operators22. Trucking Accidents: As the trucks are bigger, heavier, take longer to stop and/or avoid danger and often carry hazardous substances, trucks will cause a much greater amount of damage and lead to much more serious injuries. There are more than 125,000 truck accidents in the United States every year, leading to more than 60,000 injuries and more than 5,000 deaths23.

21

22

23

http://www.bestattorney.com/auto_accidents.html

http://theinjuryguide.com/pcar-accidents.html http://www.resource4personalinjury.com/topics/types.html

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Many standards in the trucking industry are inadequate. There is no national standard for truck drivers to even receive formal training, and many truck drivers on the road have been insufficiently prepared to drive such a powerful piece of machinery. Licensing programs are not up to par and vary differently from state to state, which makes it possible for drivers who have proven to be incompetent to stay on the road. Government has failed to adequately police the trucking industry, and, consequently, there are truck drivers on the road who should not be operating such deadly vehicles24. Some times the truck drivers are under pressure to make deliveries on time. This pressure to meet strict deadlines can create significant stress for drivers, causing them to falsify log books that document how much time they’ve spent behind the wheel. And that’s a big deal. Time spent behind the wheel is regulated by federal law; this law is meant to prevent truckers from driving when they are tired and fatigued, since accidents are more likely to happen under such circumstances. When large trucks are involved in accidents with smaller passenger vehicles, people are often seriously injured or killed25. Other Accidents: Personal Injury from a SUV Rollover: Although the sheer number of Sports-Utility Vehicles (SUV) rollovers is small compared to auto accidents, the rate of fatalities is alarmingly high. SUV rollovers create a situation where thousands of pounds of steel can literally crush the SUV's inhabitants, and SUV's tend to have a narrow base, creating a greater statistical likelihood of rollovers26. 24

25

26

http://www.auto-accident-resource.com/

http://www.law4injury.com/truck-accidents.htm

http://www.resource4personalinjury.com/topics/types.html

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Rollover accidents are more likely to result in fatalities than other types of accidents, though they occur less often. (SUVs) are especially prone to rollover accidents compared to other types of automobiles. Rollover accidents kill more than 10,000 people across America each year. The rate of serious injury in passenger vehicle rollover crashes is 36 percent higher than in crashes where there is no rollover. ATV Accidents An all-terrain vehicle (ATV) is a vehicle that travels on low pressure tires, with a seat that is straddled by the operator, along with handlebars for steering control. All Terrain Vehicles (ATVs) are among the most popular of outdoor recreational vehicles. In the past twenty years, ATV's have been linked to millions of injuries over 5,000 of which were fatal. In 2002, 113,900 people reported injuries from the use of All Terrain Vehicles, which is 2,200 more injuries than were reported in 2001 and 18,400 more injuries than were reported in 2000. For the most part, ATV accidents are a matter of human error and could easily have been prevented with the proper education on ATV safety, and proper supervision. The majority of these accidents were caused by unsafe operation

of

the

vehicles,

including:

operating

at

high

speeds,

the

consumption of alcohol, operating the ATV on roads with automobile traffic. The other causes of ATV accidents fall into the category of "manufacturing defects", these are problems created due to improper assembly or design27.

http://www.auto-accident-resource.com/

27

http://en.wikipedia.org/wiki/All-terrain_vehicle, http://www.auto-accident-resource.com/

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Aviation Accidents: Compared to other types of Accidents, Aviation accidents are rare in number. However, every aviation accident carries the potential for disaster not only for those in the plane but for those in the area where a plane crashes28. Recovering for damages can be very complicated when international law is involved. If a citizen of Switzerland is flying from New York to Switzerland and the plane crashes off the coast of Canada. Many different jurisdictions have involvement in that case, especially if the person is of foreign nationality. The question would arose as to whether Swiss law, the American law, the Canadian law apply or the Maritime law apply if it crashed into the sea off the coast of Canada. Many times, a person who’s sitting on a plane next to another person, are from two different jurisdictions. They will recover different amounts based on where they’re from, rather than where the accident took place. One person may recover a million dollars; the other may only collect $500,000 – even if he had the same job and income as the first – because he comes from a country that has different rights of entitlement to damages for wrongful death. It can get very, very complicated. Reasons and common types of aviation accidents29: An aviation accident is the worst nightmare of every pilot or passenger that has ever ridden in an aircraft. Although air travel is one of the safest forms of transportation, accidents do happen with dramatic and terrifying results. The

28 29

http://www.resource4personalinjury.com/topics/types.html http://www.resource4aviationlaw.com/topics/causesofaviationaccidents.html

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causes of these aviation accidents vary greatly depending on specific circumstances and problems that may develop during the flight process. 1. Decent and Landing Accidents Descent and landing accidents account for 36 percent of all general aviation mishaps and the most common type of accident. There are five stages of the descent and landing process. These include descent, approach, landing, goaround or aborted landing, and taxi. When a problem occurs during any of the five steps, an accident could result. Although not all accidents result in death, there is an increased likelihood of injury and fatalities may occur. Naturally, such consequences of an otherwise typical descent and landing can be incredibly painful for pilots and passengers alike. 2. Aborted Landings It is a circumstance where the pilot of a plane must take control and abandon his or her landing plan for a safer alternative. This usually requires a second go-around followed by a successful landing, but sometimes complications can arise. Aborted landings are done out of necessity and to ensure the safety of all pilots and passengers involved. Frequently, aborted landings are a result of runway obstructions. Sometimes other planes may be sitting on the runway when a pilot is preparing to land, requiring the other planes to move out of the way and the landing plane to make a detour. It is the pilot’s job to know when an aborted landing is appropriate and required. 3. Defective Landing Gear Landing a plane safely is perhaps the most important part of a pilot’s job. Sometimes this task is complicated not through the fault of a pilot but as a result of defective landing gear on the plane itself.

15

Defective landing gear situations can lead to panic and horrible accidents. One famous case of such circumstances resulted in the 1972 plane crash of Easter Air Lines Flight 401, in which nearly 100 people were killed. Defective landing gear can lead to some of the most dangerous and horrendous aviation tragedies imaginable. 4. Taxi and Takeoff Accidents One of the most important parts of a flight is the preflight and planning stages of the operation. This involves preflight inspections for safety, flight preparation, taxiing, and takeoff. When combined, taxi and takeoff accidents account for about 22 percent of all commercial jet airplane accidents and about 22 percent of all fatalities. Although taxi and takeoff accidents may not always be visually dramatic, they can still cause fatalities and injuries. 5. Preflight Accidents Before taking off, it is the responsibility of the pilot or airline to perform a complete inspection of the plane to make absolutely certain it is safe to be airborne.

This

instruments,

process

and

all

involves parts

of

the the

checking plane

to

of

gauges,

ensure

its

displays, safety.

There have been cases in the past where operators have failed to perform adequate preflight inspections. The results can be absolutely catastrophic. Whether there are no injuries or hundreds of deaths, it is a tragedy any time a preventable aviation accident occurs. 6. Climb out Accidents The period of flight during takeoff and climb out can be extremely dangerous for pilots and passengers alike. Much of the uncertainty during this time can be prevented with effective flight planning. However, when pilots or staff

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members fail to be vigilant in planning their ascent, climb out accidents may be more likely to occur. Wind conditions can dramatically influence flight plans during climb out. Without compensating for gusty winds, the plane may be pitched from side to side which can result in a crash. Similarly, if adequate airspeed is not maintained during climb out the plane may stall and a severe aviation accident may result. 7. Mechanical Failures Mechanical failure is responsible for 13 percent of all commercial airplane accidents from 1950 through 2004. Although the aircraft or airline usually safe, there are circumstances when a single malfunction or failure can lead to catastrophic accidents. 8. Electrical Malfunctions Aging electrical systems on older airplanes can cause severe aviation accidents. Electrical malfunctions can be deadly because electrical systems control many of the instruments pilots rely on to fly steadily. When these instruments are unreadable, pilots must fly blindly and the lives of pilots and passengers are put at risk. Some of the wires used in electrical systems are not insulated adequately and as a result lack durability and fire resistance. Electrical fires on airplanes have deadly consequences. Additionally, electrical malfunctions may cause certain systems on the plane to act erratically, making control of the airplane challenging or completely impossible. 9. Fixed-Wing Accidents When most people think of an airplane, the mental image they conjure up is that of a fixed-wing aircraft. The term fixed-wing can apply to monoplanes,

17

biplanes, and trip lanes. Fixed-wing airplanes are by far the most commonly used vehicles for commercial and recreational recreation. when fixed-wing accidents occur the effects can be tragic. The visual image of a plane crash has created a fear of flying in countless people, and although not every fixed-sing accident results in death they can certainly be described as traumatic experiences for pilots, passengers, and witnesses. 10. Engine Failure It is a mechanical problem which can lead to aviation accidents. It may occur due to insufficient fuel supply and the breaking of engine parts. Not all engine failures result in accidents. In certain situations, pilots can regain control of the aircraft without much difficulty. 11. Defective Landing Gear When mechanical problems affect the landing gear of an aircraft, a pilot’s ability to land safely is compromised. Defective landing gear can result in panic and quick decisions that have lead to truly tragic aviation accidents in the past. Nearly 100 people perished when Easter Air Lines Flight 401 crashed in 1972. It was later determined that defective landing gear caused this tragic accident. Fortunately, pilots and passengers can take legal action against companies that manufacture defective landing gear systems. 12. Defective Rudder The rudder on an aircraft is an essential component on the tail that is used by the pilot to control the yaw axis. In aviation, the yaw axis describes the rotation about the vehicle’s normal axis or center of mass. The rudder of an airplane is usually controlled by foot pedals, and when the pedals or rudder are defective the pilot becomes unable to fully control the plane.

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The Boeing 737 is the world’s most widely used commercial airliner with over 3,000 in service. The 737 also has been shown to have rudder malfunctions and defects when the plane is flown at low speeds. This condition has resulted in several terrible aviation accidents. Fortunately, the families of some victims knew their legal rights and sought compensation for their suffering. 13. Defective Gauges/Instruments The gauges and instruments in the cockpit of an aircraft allow the pilot to control the vehicle he or she is flying. These gauges and instruments provide power,

fuel

supply,

temperature,

altitude,

speed,

position

and

other

information that allows the aircraft to operate safely. When a pilot encounters defective gauges or instruments he or she loses the ability to fully understand certain aspects of the vehicle they are flying. Being unaware of this vital information naturally results in aviation accidents for even the most experienced aviators. Most pilots are taught to trust their instruments instead of their own intuition. Defective gauges and instruments have lead to some horrific mishaps for pilots, passengers, and people on the ground. 14. Pilot Errors and Negligence When most people make mistakes at their jobs, their employment can be terminated. When pilots are negligent or make errors while on the job, there is the potential for hundreds of lives to be terminated. Pilots receive extensive training designed to prepare them to handle a wide variety of situations, but there are times when fatal mistakes are made. Pilot error accounts for 37 percent of all commercial airplane accidents from 1950 through 2004. There are a variety of errors pilots and flight crew can make that result in aviation accidents. These could include a lack of planning, maintenance problems, faulty maneuvers, and in some cases simple

19

irresponsibility. It is truly tragic that the oversight of some could result in the fatalities of others. 15. Faulty Flight Maneuvers Faulty flight maneuvers can be avoided when pilots are cautious and act professionally. Steep turns, slow flight, stalls and stall recovery, spins and spin recovery, and forced landings are all procedures that pilots should have mastered before earning their license. Sadly, in rare situations some licensed pilots make mistakes that can cost the lives of themselves or innocent others. These faulty flight maneuvers can be in response to external factors, but in the end a pilot’s inability to make the right decisions can lead to a serious aviation accident. Accidents that can arise from faulty maneuvers in flight may include collisions between planes, spins, crashes, and botched takeoffs or landings. 16. Pilot Heart Attack/ Stroke Pilots are under tremendous amounts of stress while flying. It is their duty to ensure the safety of themselves and all the passengers on board. US Navy studies have found that most pilots experience an increase in their heart rate when landing or taking off that can be explained by the high level of concentration required to perform these tasks safely. Whatever the causes may be, if a pilot suffers from a heart attack or stroke while operating an aircraft he or she is increasingly likely to lose control of the vehicle and cause an aviation accident. With a pilot incapacitated, it is up to the flight crew and air traffic control to guide passengers to safety. If the combined efforts of these people are not successful, injury or death is likely to occur. 17. Pilot Intoxication

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Federal law dictates that pilots cannot drink alcohol within eight hours of a flight. This is because the level of attention to safely pilot an aircraft is extremely high. Studies have suggested that the number of serious errors made by pilots dramatically increases at blood alcohol concentration (BAC) levels as low as 0.025%. The effects of alcohol consumption can impact pilots who are not intoxicated at the time of flying. A hangover effect can be extremely dangerous for individuals attempting to operate aircraft. Symptoms of a hangover include headache, dizziness, dry mouth, stuffy nose, fatigue, upset stomach, irritability, impaired judgment, drowsiness, and increased sensitivity to bright light. It is not safe for a pilot to fly with these symptoms. A pilot’s ability to remain alert and safe is severely impaired when he or she is intoxicated. 18. Pilot Epileptic Attack People diagnosed with epilepsy are forbidden by law to fly aircraft by the Federal Aviation Administration. This is due to the incapacitating effects an epileptic seizure could have on a pilot. Although there are different forms of epilepsy and a wide range of seizure severity, individuals suffering from epilepsy may not become licensed pilots. Pilots may experience seizures caused by other conditions while in flight that can result in aviation accidents. When individuals are found to suffer from seizures, they are usually deemed unable to fly. If they continue to fly, they are putting themselves and others at risk. 19. Fuel Mismanagement Fuel mismanagement often results in some of the most avoidable aviation accidents. There are two main forms of fuel mismanagement: fuel exhaustion and fuel starvation. Fuel exhaustion takes place when the aircraft is completely out of fuel, while fuel starvation occurs when fuel remains but the pilot does not switch tanks after one runs dry.

21

Pilots and flight crew have a responsibility to plan every aspect of their flight, including fuel usage. By underestimating the amount of fuel required for a journey, they are putting the lives of others at risk. General aviation fuel accidents occur at a rate of three per week. In addition to the two types of fuel mismanagement already described, other fuel problems that can result in aviation accidents include leaks, the use of wrong fuel, and fuel pump malfunctions. 20. Gas/ Fuel Leak When a gas or fuel leak occurs, fuel mismanagement is likely to occur. When pilots plan their flights they load their aircraft with fuel accordingly. The onset of a leak can severely shorten the amount of time one may safely fly. Pilots must act quickly when they observe a leak taking place. In some instances, by acting quickly and appropriately pilots may be able to avert an aviation accident. Gas and fuel leaks are often the result of a manufacturing problem, but the management of these defects is the responsibility of the pilot and flight crew. When pilots act accordingly, disasters can be avoided and fuel leaks can result in a minimal level of interference with prior flight plans. 21. Wrong Fuel Usage It is extremely important for the correct fuel to be used in aircraft engines. Reciprocating engines require avgas, while turbine engines must run on jet fuel. Engine damage and other malfunctions are common consequences of using the wrong fuel. In some cases damage may occur slowly over time but in other circumstances overheating or combustion may take place. In many cases, incorrect fuel usage is a result of misleading signs or inattentive personnel performing the refueling. In these instances, wrong fuel usage

is

completely

preventable.

The

risks

of

this

form

of

fuel

mismanagement affect owners, pilots and passengers alike. The owners

22

suffer because their airplanes are damaged, pilots must deal with the stress of responding to the engine problems caused by wrong fuel usage, and the safety of passengers is compromised. 22. Fuel Pump Malfunction Aircraft fuel is what feeds engines and allows a vehicle to become and remain airborne. When the supply of fuel is interrupted, the fate of the aircraft is jeopardized. The fuel pump of an aircraft allows fuel to be distributed from tanks to the engines. When fuel pump malfunctions occur the results can be deadly. Fuel pump malfunctions can result in an inoperative fuel pump and subsequent fuel starvation. Fuel remains on the plane, but it is inaccessible because there is no way for it to reach the engines. When this takes place an aircraft must rely on its gliding ability to land safely. The lives of everyone on board are the responsibility of the pilot and flight crew. Clearly, fuel pump malfunctions can create painfully stressful and lethal aviation accidents. The simple truth is that no aircraft should carry parts that fail. Everyone component

must be continually checked

for malfunctions

that could

compromise the safety of those on board. 23. Inclement Weather Over an eleven year period there were over five thousand light aircraft accidents in the United States relating to inclement weather. Of these, over 1,700 resulted in fatalities. Although poor weather conditions are beyond the control of pilots, airlines, and flight crew, these people have a responsibility for the safety of their passengers. When the decision is made to go ahead with a flight despite weather advisories, the lives of others are put at risk. 24. Lightning

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It is estimated that on average each commercial airplane in the United States is struck by lightning at least once per year. Although it is extremely rare for aviation accidents to directly result from lightning contact, complications and other distractions may occur that could divert a pilot’s attention from his or her flight plan. Commercial airliners are most likely to be hit by lightning, but great precautions are taken in the design of the aircraft to ensure its safety. Light aircraft are less likely to be struck by lightning but are more likely to be damaged as a result of extreme turbulence caused by the lightning storm. Aircraft with the biggest risk to be struck by lightning are experimental, because these vehicles do not follow strict FAA regulations and may be constructed of materials that are not adequately protected against lightning. Unfortunately, aviation accidents caused by lightning do occur. In some cases, a pilot’s overconfidence in hazardous weather can lead to his or her aircraft being struck by lightning. 25. Wind and Wind Shear During an eleven year period, 48 percent of light aircraft weather accidents were caused by winds blowing aircraft off the side or end of a runway on takeoff. Although light aircraft are most affected by winds, larger aircrafts can be unexpectedly moved around as well. When this occurs a sense of panic may fill the cabin as passengers question their own safety and the competence of their pilots. Turbulence is a stream of irregular winds that can influence the steadiness of an airplane flight. Although it is usually impossible to predict, turbulence and other wind conditions can be avoided or managed effectively by experienced pilots. It is a pilot’s responsibility to respond appropriately to wind conditions or any other form of inclement weather. 26. Snow

24

As anyone might suspect, flying in the snow can be a dangerous adventure. Pilots should not fly in whiteout conditions such as blizzards. At these times visibility is often so poor that instruments must be relied upon almost exclusively to determine one’s position and surroundings. There are certain precautions that must be taken during winter and snow flying. Extreme temperatures can cause some mechanical operations to jam and cause ice to form on aircraft. The presence of ice and snow on an aircraft can

cause

many

unwanted

problems

and

complications.

It

is

the

responsibility of the pilot and flight crew to practice their training and ensure a safe flight in snowy conditions. When pilots attempt to fly in unsafe weather conditions they not only endanger their own lives, but also the lives of passengers and people on the ground. 27. Rain Rain and thunderstorms can be extremely hazardous to aviation. Turbulence, cumulus clouds, high winds, ice, hail, lightning, loss of visibility, electrostatic discharge, tornadoes, altimetry errors, and wet runways often accompany rain and must be managed by pilots and flight crews. In most situations, pilots are instructed to avoid severe thunderstorms and rain due to the risks they may pose for passengers and crew. In 1999, American Airlines Flight 1420 crashed while attempting to land in a thunderstorm in Little Rock, Arkansas. The large amount of rainfall had made the runway slick, causing the plane to lose control and break apart. There were eleven fatalities in this plane crash and American Airlines admitted liability for the accident. A settlement greater than 14 million dollars was reached for victims of the crash. 28. Other Causes of Airplane Accidents

25

Beyond the obvious hazards that can contribute to an aviation accident, other causes exist. It is important for these possibilities to be taken into consideration so that the lives of passengers and other innocent people are not jeopardized by the short-sightedness of crew. Other causes of aviation accidents include bird hazards, mid-air collisions, air traffic control errors, structural defects, lack of maintenance, air show accidents, and search and rescue operations. These factors often receive less attention than decent and landing accidents, taxi and takeoff accidents, mechanical failures, pilot errors, fuel mismanagement, and inclement weather. However, the other causes of aviation accidents can have equally deadly results. 29. Bird Hazards Although many people may not realize it, birds are a common threat to airline safety. A number of fatal accidents have been caused by bird strike, one of which killed 62 passengers in 1960. Bird strike is such a serious problem that the FAA estimates it costs United States aviation $480 million each year. Bird strike (also called BASH-bird aircraft strike hazard) occurs when there is a collision between a bird and an aircraft. The speed of impact is such that even light objects like birds can cause destructive damage to a fast-moving vehicle. In most cases, birds impact the engine and can cause thus cause a plane to completely lose its ability to fly. Because bird hazards have been such a significant problem throughout the history of aviation, pilots are trained to avoid bird collisions and most airports have taken measures to make their runway areas inhospitable to winged animals. However, some people may act negligent in addressing bird strike. 30. Mid-Air Collisions

26

A mid-air collision is every pilot and passenger’s worst nightmare and one of the most dramatic types of aviation accident. Mid-air collisions are almost always due to human error, and are entirely preventable. Pilots receive training to avoid potentially dangerous situations, but when this preparation is overlooked fatal consequences may occur. During a three-year study of midair collisions involving civilian aircraft, the National Transportation and Safety Board (NTSB) found that most mid-air collisions occur during daylight hours under good visibility. Additionally, the study indicated that no pilot regardless of experience is immune to mid-air collisions, and most collisions occurred during pleasure flights with no flight plan filed. This study only further emphasizes that mid-air collisions are a result of pilot shortsightedness and can be avoided. It is tragic to be involved in a mid-air collision in any form. Pilots, passengers, and innocent bystanders on the ground may all be fatally injured. 31. Air Traffic Control Errors Not all air traffic control errors result in aviation accidents. Many errors are only described as “close calls”, where a mistake was made but no accident took place. However, nobody wants to put their life at risk with “close calls” when they are traveling hundreds of miles per hour at thousands of feet above ground. Recent reports of air traffic controllers acting dangerously only bring more attention to the potential consequences of their actions. In 2005 it was reported that by August 200 mistakes had been made by New York air traffic controllers, compared to 24 for all of 2004. Air traffic controllers have responsibilities just as pilots do. Mistakes and lapses in vigilance can result in aviation accidents and losses of life. 32. Structural Defects

27

Structural defects can lead to dramatic and unpredictable aviation accidents. Defects can range from faulty or aging wires to corrosion and fuselage loss. In 1988, a Boeing 737 flown by Aloha Airlines experienced a ruptured fuselage, tearing part of the cabin apart and blowing a flight attendant off the plane and to her death. The accident was caused by problems with the adhesive bonding process, a problem Boeing was already aware of. Structural problems in aircraft are usually related to corrosion, surface cracks, fatigue cracks, and skin disbonds. Aging aircraft may experience structural defects from general use and lack of maintenance. When these problems go undetected, the lives of passengers and flight crew are endangered. You deserve to travel safely. Structural defects jeopardize your safety and may arise from negligence. 33. Lack of Maintenance on an Airplane. Without maintenance, any aircraft will eventually become a serious hazard. Commercial, military, and private aviation organizations employ aircraft maintenance technicians to constantly work on aircraft to keep them safe and in working order. In the vast majority of cases, the work done is timely and of high quality, contributing the overall safety of flight as a mode of transportation. However, mistakes can occur and a lack of proper maintenance can lead to structural

problems

and

fuel

mismanagement.

Aircraft

maintenance

technicians must be able to address existing and potential problems faced by the aircraft they work on. When these problems are not rectified, aviation accidents are likely to occur.

Train Accidents/ railroad accident:

28

Many people use the train services for their visit to daily work places as the fuel costs more and as the train is one of the safest mode of transportation compare to vehicles. On average, there are about 3,000 train accidents in the United States every year, and they have led to 1,000 fatalities per year. Train accidents also create ongoing environmental concerns, and potential injuries, for residents near the accident site30. A train accident is defined by the Federal Railroad Administration in a number of different terms. A train accident is a "collision, derailment, and other event involving the operation of on-track equipment." Train accidents cause "reportable damage above an established threshold" and generally involve collisions. Another leading cause of train accidents is derailment. A lesserknown category of train accidents is the occupational illness of railroad employees.

Causes of train accidents: Train accidents usually involve derailment, collision with passenger vehicles or with other trains and mechanical failure. These accidents are commonly caused by negligence, rule violations or other reckless behavior31.

A railroad accident can involve a number of different scenarios. Trains can collide with cars, school buses, or motorcycles. A railroad accident can also be the result of two trains crashing into one another. A train accident can also be the result of mechanical failure of the train itself or of the railroad crossing warning system. A train accident can also be the result of human error, whether a railroad employee or not. A train accident can be the result of railroad company or employee negligence. Defective railroad tracks, poor maintenance of a train, track, or any other related train equipment, increased train traffic, and excessive cargo loads are all railroad liabilities that can 30 31

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29

cause a railroad accident. In a railroad accident that occurs at a crossing, railroad negligence may be responsible. Train accident victims who are partially at fault may be entitled to recover a portion of their damages. Under State’s law of comparative fault, if more than one person causes an accident, the

fault

is

shared

by

the

parties.

There are over 600 railroads and hundreds of thousands of miles of track traversing the country. Train accidents are regular occurrences in the United States today. Trains are frequently involved in accidents that critically injury passengers and innocent bystanders. Train accidents can result in loss of life, property,

and

health32.

Construction site and Industrial Accidents: Despite strict safety regulations, such as those enforced

by OSHA,

(Occupational Safety and Health Administration) construction workers face a high risk of on-the-job injury. thousands of people each year are seriously injured on construction sites Construction site accidents are on the rise in the United States given the recent building boom, and the injuries that result from these incidents are almost always serious in nature. Recent years have shown that construction site accidents resulted in over 300,000 injuries and over 1,000 deaths33. Amusement Park Accidents: Amusement park accidents are growing these days as of many wishes to spend their spare time in the Amusement parks. Injuries at the amusement parks are quite severe on average, as the equipment used at these parks is 32 33

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30

enormous, and patrons are often placed in extremely dangerous and vulnerable positions. Over 270 million people visit these parks annually, and on average, amusement park accidents lead to over 7,000 injuries in a given year34. Dog Bites: Dog bites are growing in number as many of the USA. There are an average of 5 million dog bite victims every year in the United States. And many people die every year due to this and many a require medical treatment35. Most serious dog bites are inflicted by the breeds of German Shepherd, Rottweiler, Pit Bull, Chow-Husky and the Doberman Pincher. And other dog bite was inflicted by more docile breeds like the Golden Retriever and Border Collie. Even family-type dogs can leave serious physical and emotional scars on children and adults alike36. In many states, if a person is bitten by someone's dog, the owner is "strictly liable" for that person injuries. A person need not

have to prove that the

owner was negligent in controlling his or her animal. Snowmobile Accidents A snowmobile, also known in some places as a snowmachine, sled, or skimobile, is a land vehicle for travel on snow that is commonly propelled by a continuous track or tracks at the rear and steered by skis at the front37.

34 35 36

37

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http://en.wikipedia.org/wiki/Snowmobile

31

Snowmobiles are popular recreational vehicles that grow in popularity each year. The United States Product Safety Commission claims that 13,400 people are hospitalized for snowmobile related injuries each year. Sadly, 110 of those injuries prove to be fatal. The accidents that cause these fatalities are cases where the snowmobile impacts trees, structures, wires, and other vehicles. Operation around bodies of water is the cause for other fatal accidents. For example, when traveling through a stream or river bed the snowmobiles have been known to rollover and pin their drivers underneath. Snowmobiles that are driven across frozen bodies of water have been known to break through the ice and drown their passengers Reasons for snowmobile accidents: Overall, most snowmobile accidents are preventable, and the majority of which are caused by mistakes made by the driver. accidents that occur on snowmobiles are often caused by operation at unsafe high speeds, operation while under the influence of alcohol, inexperience with the geography of the site, and inexperience with the vehicle itself. When children are involved in snowmobile accidents, often one of the key factors was a lack of parental supervision. Factors that can cause snowmobile accidents that are not the driver's fault, include manufacturer defects in the snowmobile design and/or assembly, bad weather, and occasionally the path or trail designated for snowmobile recreation can be of poor and hazardous design38.

38

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32

Boating Accidents Boat accidents carry serious consequences as well, as every boat accident occurs over water, leaving passengers to have to swim to safety. The average number of fatalities due to boat accidents every year is over 1,000. Boat accidents also lead to more than 5,000 serious injuries in the United States every year39. According to the United States Coast Guard, a total of 12, 764,616 recreational boats were registered in 2003. Of these nearly 13 million boats, 5,438 boating accidents were reported. These accidents were the cause of 3,888 injuries, 703 fatalities, and over $40,000,000 in property damage. The most common types of boating accidents occur when a passenger falls overboard, or when two boats run into each other. These two situations account for over half of all boating deaths. Sadly, 70% of the people who die in boating accidents die of drowning. And, nearly 90% of all of these boaters who drowned were not wearing life jackets or any form of personal flotation device. This means that the vast majority of these deaths were easily preventable. Perhaps the greatest tragedy is the fact that 60% of boating fatalities involving children under the age of 12 report drowning as the cause of death40. Reasons for Boating Accidents: Most common causes of boat accident injury include boat collisions, capsizing or just plain negligence on the part of the operator in taking precautionary 39

40

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33

steps

that

might

have

prevented

the

accident

from

happening.41.

At the time of most accidents, drivers are usually not paying attention, drinking, acting recklessly, operating at dangerous speeds, and/or they are inexperienced boat operators. In 2003, 80% of all accidents occurred because the driver had not been educated with basic boating safety instructions. Alcohol accounted for over 30% of accidents in 2003. While most accidents can be accredited to human error, manufacturer defects in the boat or boating equipment has also been known to be the cause of boating accidents. It is vital that each boat has enough life jackets for every person onboard, and even more importantly, it is vital that these people are wearing these jackets at all times. It is also, important for the driver to remember that he/she is responsible for everyone onboard.

Result and the types of Injuries from the accident: Types of Injuries from road accidents42: Death: Death is the end or cessation of the life. In other words it is the permanent termination of the biological functions that define a living organism. An accident may result in the death of the person. After the accident the death may also caused by suffocation/asphyxiation or prolonged lack of oxygen to the brain, or physical trauma as a result of an accident or suicide Whiplash: It represents a range of injuries to the neck caused by or related to a sudden distortion of the neck 41

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42

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Whiplash is commonly associated with motor vehicle accidents, usually when the vehicle has been hit in the rear. It may also due to the fall from the bicycle. A whiplash injury may be the result of impulsive stretching of the spine, mainly the ligament: anterior longitudinal ligament which is stretched or tears, as the head snaps forward and then back again causing a whiplash injury. Whiplash may be caused by any motion similar to a rear-end collision in a motor vehicle, such as may take place on a roller coaster or other rides at an amusement park, sports injuries such as skiing accidents, other modes of transportation such as airplane travel, or from being hit, kicked or shaken. Shaken baby syndrome can result in a whiplash injury. Symptoms includes pain and aching to the neck and back, referred pain to the shoulders, sensory disturbance (such as pins and needles) to the arms & legs and headaches. Symptoms can appear directly after the injury, but often are not felt until days afterwards. Whiplash is usually confined to the spinal cord, and the most common areas of the spinal cord affected by whiplash are the neck, and the mid-back (middle of the spine). Head Injuries: Traffic Accidents are the main reason for many head injuries. Head injury refers to trauma to the head. This may or may not include injury to the brain. However, the terms traumatic brain injury and head injury are often used interchangeably in the medical literature. Head injuries include both injuries to the brain and those to other parts of the head, such as the scalp and skull. Head injuries may be closed or open. A closed (non-missile) head injury is one in which the skull is not broken. A injury occurs when an object pierces the skull and breaches the dura Brain injuries may be diffuse, occurring over a wide area, or focal, located in a small, specific area.

35

A head injury may cause a skull fracture, which may or may not be associated with injury to the brain. Some patients may have linear or depressed skull fractures. If intracranial hemorrhage occurs, a hematoma within the skull can put pressure on the brain. Types of intracranial hemorrage include subdural, subarachnoid, extradural,and intraparenchymalhematoma. Craniotomy surge ries are used in these cases to lessen the pressure by draining off blood. Brain injury can be at the site of impact, but can also be at the opposite side of the skull due to a contrecoup effect (the impact to the head can cause the brain to move within the skull, causing the brain to impact the interior of the skull opposite the head-impact). If the impact causes the head to move, the injury may be worsened, because the brain may ricochet inside the skull causing additional impacts, or the brain may stay relatively still (due to inertia) but be hit by the moving skull (both are contrecoup injuries). Specific problems after head injury can include Skull fracture,Lacerations to the

scalp

hematoma,(

and a

resulting hemorrhage of bleeding

below

the

the dura

skin,

Traumatic

mater which

may

subdural develop

slowly),Traumatic extradural, or epidural hematoma, bleeding between the dura mater and the skull, Traumatic subarachnoid hemorrhage, Cerebral contusion, a bruise of the brain, Concussion, a temporary loss of function due to trauma, Dementia pugilistica.

Broken Bones: Accident also may result in the Broken bones or the fracture of bones. Broken bones occur when bones cannot withstand outside forces. Fractures or broken bones may be classified into various ways like closed fractures are those in which the skin is intact, while open (compound) fractures involve wounds that communicate with the fracture, or where fracture hematoma is exposed, and may thus expose bone to contamination.

36

Open

injuries

carry

require antibiotic treatment

a

higher

risk

and

usually

urgent

of infection; surgical

they

treatment

(debridement). This involves removal of all dirt, contamination, and dead tissue. And Simple fractures are fractures that only occur along one line, splitting

the

bone

into

two

pieces,

while multi-fragmentary fractures

(formerly called comminuted) involve the bone splitting into multiple pieces. A simple, closed fracture is much easier to treat and has a much better prognosis than an open, comminuted fracture. Other types of fracture include Complete fracture (A fracture in which bone fragments separate completely) Incomplete fracture( A fracture in which the bone fragments are still partially joined.),Linear fracture(A fracture that is parallel to the bone's long axis), Transverse fracture ( A fracture that is at a right angle to the bone's long axis), Oblique fracture (A fracture that is diagonal to a bone's long axis), Spiral fracture (A fracture where at least one part of the bone has been twisted), Compacted fracture (A fracture caused when bone fragments are driven into each other)43

Spinal Cord Injuries: An Accident also may cause spinal cord injury to the person. Spinal cord injuries causes myelopathy or damage to white matter or myelinated fiber tracts that carry signals to and from the brain. It also damages gray matter in the central part of the spine, causing segmental losses of interneurons and motorneurons. Spinal cord injury can occur from many causes, including: One can have spine injury without spinal cord injury44.

43

44

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37

The exact effects of a spinal cord injury vary according to the type and level injury, and can be organized into two types: 1. In a complete injury, there is no function below the "neurological" level, defined as the lowest level that has intact neurological function. If a person has some level below which there is no motor and sensory function, the injury is said to be "complete". Recent evidence suggest that less than 5% of people with "complete" spinal cord injury recover locomotion. 2.A person with an incomplete injury retains some sensation or movement below the level of the injury. The lowest spinal cord level is S4-5, representing the anal sphincter and peri-anal sensation. So, if a person is able to contract the anal sphincter voluntarily or is able to feel peri-anal pinprick or touch, the injury is said to be "incomplete". Recent evidence suggest that over 95% of people with "incomplete" spinal cord injury recover some locomotory ability. Herniated discs45: When a disc herniation occurs, the cushion that sits between the spinal vertebra is pushed outside its normal position. As the spinal disc becomes less elastic, it can rupture. When the disc ruptures, a portion of the spinal disc pushes outside its normal boundary-this is called a herniated disc. When a herniated disc bulges out from between the vertebrae, the spinal nerves and spinal cord can become pinched. Common symptoms of a herniated disc include: Electric Shock Pain Pressure on the nerve can cause abnormal sensations, commonly experienced as electric shock pains. When the compression occurs in the

45

http://www.webmd.com/back-pain/tc/herniated-disc-topic-overview

38

cervical (neck) region, the shocks go down your arms, when the compression is in the lumbar (low back) region, the shocks go down your legs. Tingling & Numbness Patients often have abnormal sensations such as tingling, numbness, or pins and needles. These symptoms may be experienced in the same region as painful electric shock sensations. Muscle Weakness Because of the nerve irritation, signals from the brain may be interrupted causing muscle weakness. Nerve irritation can also be tested by examining reflexes. Bowel or Bladder Problems These symptoms are important because it may be a sign of cauda equina syndrome, a possible condition resulting from a herniated disc. This is a medical emergency, and your should see your doctor immediately if you have problems urinating, having bowel movements, or if you have numbness around your genitals. Post-traumatic stress disorder (PTSD)46: Posttraumatic stress disorder (abbreviated PTSD) is an anxiety disorder that can develop after exposure to one or more traumatic events that threatened or caused great physical harm. It is a severe and ongoing emotional reaction to an extreme psychological trauma. This stressor may involve someone's actual death, a threat to the patient's or someone else's life, serious physical injury, an unwanted sexual act, or a threat to physical or psychological integrity, overwhelming psychological defenses. In some cases it can also be from profound psychological and emotional trauma, apart from any actual physical harm. Often, however, incidents involving both things are found to be the cause.

46

http://en.wikipedia.org/wiki/Post-traumatic_stress_disorder

39

PTSD is a more chronic and less frequent consequence of trauma than the normal acute stress response. PTSD has also been recognized in the past as railway spine, stress syndrome, shell shock, battle fatigue, traumatic war neurosis, or post-traumatic stress syndrome. Diagnostic

symptoms

include

reexperience,

such

as

flashbacks

and

nightmares; avoidance of stimuli associated with the trauma; and increased arousal, such as difficulty falling or staying asleep, anger, and hypervigilance. Per definition, the symptoms last more than six months and cause significant impairment in social, occupational, or other important areas of functioning (e.g. problems with work and relationships). Types of liability47: Personal injury creates 3 types of liability •

Liability caused by intentional act

•

Liability caused by negligent act

•

Strict liability

Intentional act: An intentional act is one designed to cause harm or injury. If someone willfully throws a stone at one’s house and house window is broke, it will be an intentional act and punishable. Assault, battery, false imprisonment, invasion of privacy, and trespass are some examples for an intentional Act. Negligent Act: Negligent act occurs when a person fails to take appropriate action and the other person is harmed as a result of failure. It happens when a person fails to take appropriate action to prevent an injury. Most of the personal Injury cases come under negligent act.

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Strict liability: When any products or drugs cause an injury to the person, by its defects or duty of the manufacturer to warn about bad effects, manufacturer of drug is strictly liable for the same. When the building is in dangerous condition, and the employer has not taken any precaution of it, the owner of the building is strictly liable for the same. contributory negligence: If there is any failure on your part to exercise reasonable care to prevent injury or damage then there may be comparative (or contributory) negligence, where a plaintiff and the other party both are at some degree of fault. If plaintiff wins, he may receive money (an award) to compensate for medical costs, lost wages and lost future earnings as well as possibly for pain and suffering and punitive damages Types of Damages: When a person meets with an accident he can claim the compensatory damages or the punitive damages or both from the party who was at fault48. Compensatory damages: Compensatory damages are designed to place a victim in the position he or she would be in if the injury had never occurred.( Compensatory damages are awarded to injured people as a way to put them back into the position they were in before being injured.) Compensatory damages seek to restore the victim financially, physically and emotionally. Compensatory damages may be divided into two categories:

•

damages that compensate victims for monetary losses (also known as special damages), and

•

damages that compensate victims for non-monetary losses (also known as general damages).

48

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Monetary Losses Compensatory damages for monetary losses include: Medical expenses: includes the costs of both past and future medical care and rehabilitation. Future costs are calculated by estimating the patient's medical needs for the rest of his or her life expectancy. Costs of living with a disability: A disability makes a person to change his or her lifestyle. Compensatory damages may cover the costs associated with this change. A damage award may compensate a victim for the costs of renovating a house to make it wheelchair-accessible, or the costs of in-home nursing care or assistance. Lost wages: A victim may recover past and future lost of wages or any wages lost while recovering from an injury, as well as any lost earning capacity suffered as a result of an injury. And future diminished earning capacity. Repair or replacement of property: An aggrieved party may recover the costs of property damage suffered in an accident. Property is typically valued at its fair market value at the time of the injury. Funeral expenses: The family of deceased person may recover the costs of any funeral expenses of the deceased person. Loss of vehicle Non-Monetary Losses Non-monetary damages are difficult to calculate and the damages vary person to person. Damages for non-monetary losses include: Pain and suffering: Past and future pain and typically include compensation for actual physical pain, as well as compensation for emotional distress.

42

Loss of consortium: Spouses of personal injury victims may receive damages for the loss of the emotional and intangible elements of marriage, such as loss of affection, solace, comfort, companionship, society, assistance, and sexual relations. Punitive Damages Punitive damages are not designed to compensate the victim, but to punish the defendant for inflicting the victim's injuries and to deter others from engaging in similar behavior. Punitive damages are awarded when the defendant's conduct has been especially egregious or outrageous. Punitive damages are not awarded in every personal injury case, and may not be considered unless a compensatory damage award has been ordered. In order to avoid excessive punitive damage awards, courts typically limit punitive damages to less than ten times the amount of compensatory damages. Jurisdiction: Jurisdiction is the practical authority granted to a formally constituted legal body or to a political leader to deal with and make pronouncements on legal matters and, by implication, to administer justice within a defined area of responsibility. There are three main types of judicial jurisdiction, personal (personam), territorial (locum), and subject matter (subjectam): Personal jurisdiction is an authority over a person, regardless of his location. Territorial jurisdiction is an authority confined to a bounded space, including all those present therein, and events which occur there. Subject Matter jurisdiction is an authority over the subject of the legal questions involved in the case.

43

In aviation accidents, residence the respective party decides about the jurisdiction. A party can file for compensation in the Federal District court where he resided. If a passenger sustains fatal injury on high seas more than three miles from the shores of the United States or its territories as the result of air transportation over water, the federal Death on the High seas Act is the basis of liability. Jurisdiction for wrongful death is in either the federal or state court. Jurisdiction of an aviation accident may involve a combination of local, state, federal, and even international laws49. Suppose a citizen of Switzerland is flying from New York to Switzerland and the plane crashes off the coast of Canada. Many different jurisdictions have involvement in that case, especially if the person is of foreign nationality. Would Swiss law apply? Would American law apply? Would Canadian law apply? Would Maritime law apply if it crashed into the sea off the coast of Canada? These are questions that come up in all of these cases and many times, a person who’s sitting on a plane next to another person, are from two different jurisdictions. They will recover different amounts based on where they’re from, rather than where the accident took place50. In aviation accident wrongful death, damages vary from state to state, or country to country, depending on where the passenger lived during his lifetime. A wrongful death case encompasses either the earnings of a person during his lifetime or the amounts of monies that that person gave to his or her immediate family and the lost guidance that that person gave. Some places have the loss of society, which means the affection, love and the

49 50

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44

consortium and services – the value of tasks such as working on the house or babysitting51.

Burden of proof: In a personal injury Lawsuit the plaintiff has to establish that the defendant acted willfully means to deliberately, intentionally, or wantonly perform an act with actual or constructive knowledge that injury is a likely result, coupled with conscious failure to act to avoid the injury. The defendant's willful act must be the cause of the plaintiff's injury52. Beside these, if the defendant alleges any wrong on the part of the plaintiff, then the defendant has to prove. Hence the person who alleges shall prove his cause.

Limitation: Limitation for filing a complaint for personal injury varies state to state from 1 year to 4 Years.

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In California and Alabama limitation for filing a complaint under personal injury is 2 years53. It is 3 years from the date of injury in North Carolina 54. And it is 4 years in Florida55. In Personal Injury involving adults, many jurisdictions limitation start to run 1 year form date of loss. In cases involving minors the statute of limitations in many jurisdictions does not run out until 1 year after the minors 18th birthday56. How the procedure takes place in a court: The procedure which takes before the courts are common to all the states but may differ as to court rules and procedures and limitation for filing complaint, motions reply’s etc. Generally the procedure before the court involves the following stages57: Complaint Every case begins with the filing and service of a Summons and Complaint. Service of Complaint Once the complaint is filed in the court, there will be an issuance of summons to the defendants along with the complaint copy. And it must be properly 53

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http://www.expertlaw.com/library/limitations_by_state/Alabama.html

54

55

56

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http://www.expertlaw.com/library/limitations_by_state/Florida.html

http://books.google.co.in/books?id=2eS5V6PADrUC&pg=RA1-PA882&lpg=RA1-

PA882&dq=personal+injury+abbreviations&source=bl&ots=SSNDpTY9nk&sig=dZ0K13-r4KeQhJGjXkdWkPoYTs&hl=en&ei=q9wwSoSbBpWVkAW7s4XZBw&sa=X&oi=book_result&ct=result&resnum=7#PPA19,M 1 57

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served on all the parties included as the defendants in the complaint. If the defendant will accept service, he may sign an Acknowledgment of Service. Response to Complaint The Defendant will have 20 to 40 days from the date of service of the Summons to answer for the complaint. In California state response to the complaint has to be filed in 30 days. He can also directly file motion before the court. Hearing of Challenges to Sufficiency of Complaint (If Applicable) If the defendant decides to file a demurrer or motion to strike, these motions must be heard and ruled upon before the matter may proceed. This can take up to 2 months. If such motion is sustained and the court grants leave to amend the Complaint, a new complaint must be drafted and served and the process starts over. Sometimes a second demurrer or motion will be filed causing more delays. Discovery Discovery comes after once the complaint and answer is filed. Both parties commence "discovery" procedures by which the evidence necessary to prosecute both sides of the case. Depending on the nature and complexity of the case, one or more of the following discovery devices may be used by the parties: Interrogatories: Written questions which must be answered under oath. --

Request For Production Of Documents: Demands for production of

documents by the parties involved. -Requests For Admission: Requiring the parties to say which allegations they affirm and which they deny. -Deposition: The parties may be required to appear in the opposing attorney's office to answer questions under oath in front of a court reporter. Depositions can also be taken from 3rd parties. -Subpoena Documents From Third Party: Documents may be subpoenad from 3rd parties such as banks and employers. Discovery Motions (If Applicable)

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If a party fails or refuses to comply with discovery requests, it may be necessary for the party propounding the discovery to make a motion in court to compel responses. If the court grants the motion, further responses will be made. If those responses are still inadequate, another motion may be made and the court can sanction (fine) the resisting party. In extreme cases the court can even terminate the action in favor of the moving party. Trial Setting Throughout the case the court will set a series of Case Management Conferences to be attended by attorneys for all parties. These hearings are designed to determine whether the case is ready for trial. When the court feels that a case is ready for trial, it will set the date for trial and make orders concerning completion of discovery and final preparation for trial. Settlement Negotiations Settlement negotiations may proceed throughout the trial. Often the court will require the parties to try a mediation of the issues or will set a "Mandatory Settlement Conference" (MSC) before the trial date. Settlement negotiations general become more intense as the trial date approaches. Trial The vast majority of cases settle before trial. However if the parties cannot settle the case, the only way to resolve the issues is by way of trial. Evidence: In the evidence stage, the plaintiffs and defendants will be examined and cross examined. Argument: There will be an argument and reply to an argument by both the party Attorneys. Verdict: A verdict is the formal finding of fact made by a jury on matters or questions submitted to the jury by a judge. Judgment: If the case was not tried by the jury or the case was for bench trial, the judge will pass the judgment, based on the facts and the evidence produced before the court.

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