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Case study 

Eden Rafferty Uses Car Accident Reconstruction to Obtain Acquittal for Mother Charged in Death of Own Daughter

 

Grieving mother found not guilty of vehicular homicide in emotional trial

 

Background

It all started with an illegal U-turn that became a nightmare for a mother and her family. Suddenly, a violent collision involving a speeding truck resulted in the death of one of the children in the car.

Not only did the mother lose her child, she was charged with operating to endanger and vehicular homicide. Having to live with the tragedy of losing a daughter was the most pain and suffering the mother could ever experience but now she also feared going to jail for a serious crime if convicted.

 

This fear brought her to the offices of Eden Rafferty and to Criminal Defense Attorney Greg Benoit, a known expert in motor vehicle accidents and motor vehicle homicides. Attorney Benoit sat down with the client and explained the trial process to her, reassuring her that he would do all he could to lift the heavy burden of defense that added to her fear, apprehension, and grief.

Attorney Benoit explained that the court process would take a long time and did, in fact, take two and a half years to get to trial.  He explained the several pretrial phases of going through discovery of evidence that the prosecutor had.

 

He advised her that there wasn’t much need for her testimony or anything else she had to do because the case would depend on the numbers of the accident and all the calculations. It would be all about the reconstruction of the crash.

Throughout the trial, he would represent her in court, sparing her from as much additional trauma as possible. He felt they had a good case and advised her not to plead guilty to anything.

Approach

There were several prosecutors in the case and much evidence to go through. Both the client and the truck driver were charged. Evidence from the medical examiner’s office was presented. There were several hearings, most of which were short, and the client had to appear briefly in some of them.

Attorney Benoit’s experience with the Worcester District Attorney’s office turned out to be a major benefit to this client. He was a member of the Motor Vehicle Homicide Unit and had studied active reconstruction of accidents.

Attorney Benoit went through all the evidence, and, using that reconstructive experience, determined that the truck that struck his client was using excessive speed at the time of the collision.

 

He also showed that, even though his client made an illegal U-turn, that if the truck driver had been going the proper speed limit, she would have cleared his lane by 5 or 6 seconds; or, if he had been going the proper speed limit, he would've had enough perception-reaction time to stop his vehicle from hitting her.

 

But because he was traveling at such a high rate of speed, he had no reaction time whatsoever. As a result, he broadsided her car, killing the daughter.

Result

The overshadowing element was the client’s daughter died in this accident, so there was nothing the court was going to do that would make this any less of a tragedy for her.

But Attorney Benoit did what he could do. She was not found guilty of any motor vehicle crime. She did make an illegal U-turn, and that was put on her file. But she also got her license back which had been suspended since the accident. After the evidence was in, she was discharged from her arrest and freed to go.

Although acquitted and released, this client has to live with the tragic result of the car accident every day. According to Attorney Benoit, “This was one of the toughest cases I've ever had to try.”

10 Common Legal Issues in the Workplace

 

Companies today must be very aware of the legal issues involved in employer-employee relations and the responsibilities companies have to establish and maintain a safe and fair environment.

 

Companies have to establish a clear set of policies and practices that guide corporate behavior toward its workers and its business partners.

 

Companies that produce products and services for the consumer also need to stand behind what they produce and meet common expectations for product reliability and consumer safety.

 

The laws governing workplace culture are changing all the time, and both employer and employee need to keep up with current trends in society as they may apply to the workplace.

 

Here are some of the more common legal issues seen in the workplace.

 

1. Faulty products

 

There is an implied warranty that goes with all products under which consumers can expect those products to work as advertised, without being faulty or causing injury. There are also express warranties that companies offer to cover certain problems within specified time limits. These warranties must be honored as well.

 

If several customers experience similar problems with a company’s products, these dissatisfied customers can file class action lawsuits against the company that can affect the company’s short-term financial status and longer-term brand image.


Companies need to practice quality management in developing their products to ensure reliability and safety and, should any problems be found, immediately notify customers of any needed recalls or preventative steps needed for safety.

 

2. Workplace safety

 

Safety applies to the workplace as well. Workers should feel safe in the workplace, especially where hazardous chemicals or working with dangerous equipment may be involved. Proper protective equipment and procedures should be used to minimize any injuries.

 

Even in workplaces with offices and meeting spaces need to be careful about worker safety. Injuries from trips and falls are a major reason for workplace lawsuits and are typically due to employer negligence over the conditions that caused the injuries. Companies should provide adequate warnings over wet floors or slippery sidewalks or weak stairs, etc.

 

3. Wrongful termination

 

Employers who are unaware of labor laws can easily violate them. If workers are fired, there need to be good legal reasons for doing so. And workers need to be aware of those reasons. Terminating an employee for the wrong reason can lead to lawsuits.

 

A worker can make a case against the company if he or she is terminated for a variety of reasons including being treated differently from other employees, or for complaining about safety issues, or for being too old, or for reporting illegal activities. And there are more reasons like these that can get a company in trouble.

 

Employers need to know federal and state laws concerning their responsibilities to workers before, during, and after termination including proper notification, advanced warnings, documentation, and policy conformance.

 

4. Breaking privacy laws

 

Many employers may be unaware that they cannot use employee names or photos in advertisements or other promotions without employee approvals. This a violation of privacy and also possibly infers employee endorsement of the company’s products.

 

Just because employees work for a company doesn’t give the company a right to use their identity for commercial gain. Taking photos or videos in public may be legal but recording conversations without permission is not. This includes phone calls where someone is recorded without their knowledge.

 

5. Social media impact

 

The use of social media is growing all the time. People use Facebook and Twitter in their private lives to exchange ideas and feelings and events. They share photos and discuss everyday life – including their work life. This is where the danger comes.

 

Comments about a worker’s company can lead to serious consequences. Workers have been legally terminated for damaging remarks about their employer. Everyone should be aware that they are not immune from consequences from using social media even in their private lives. There have been many legal precedents to demonstrate this point.

 

6. Intern or employee?

 

It’s a common practice for companies to hire interns. It’s a great way for these people to come in, learn a business, and do some minor work to help the company. But hiring an intern can be a double-edged sword. It helps the intern, possibly to the point of being hired in the future as a permanent employee, but it also raises a question. Is the intern doing too much work and not getting paid fairly?

 

If the intern is really doing the job of a permanent employee, he or she may not be legally considered an intern but instead a regular employee who should be paid like one.

Sometimes a company will make the mistake of hiring an intern to replace a regular employee and do the same work. This is obviously illegal if that intern is not paid the same for the same work.

 

The purpose of hiring an intern is to help that person learn a new business or skill, more so than actually doing meaningful work for the company. If that is not the right balance, it is very likely that the law is being broken.

 

7. Time or Overtime?

 

Pay for time or overtime is an ongoing debate that has political overtones. The law enacted in 2016 may or may not be the law of 2020 or even the law of 2019. Adding to the confusion is the research that shows about half of the employees in some industries do not know how many hours they have worked in given week.

 

The current law says that unless exempt, employees covered by the Fair Labor Standards Act must receive at least time and one-half their regular pay rate for all hours worked over 40 in a work week.

 

The FLSA provides minimum wage and hour standards but states can provide more protective standards. Companies need to be aware of current legal definitions and requirements regarding fair employee compensation.

 

8. Discrimination

 

Workplace discrimination comes in many forms. The federal government has laws expressly forbidding discrimination on national or ethnic origin, sex, age, religion, disability, gender preference, and retaliation. But even if employees are treated differently from other employees, they may be victims of workplace discrimination.

 

Sexual harassment or some form of intimidation is also illegal and examples of discrimination. Companies must be very aware of discrimination and work positively to prevent it, through established company policies and awareness meetings and practices.

9. Illegal labor

 

Companies should make sure that their employees can work legally in the United States and do the background checks or identification checks needed. There can be illegal immigrants signed on with falsified documents, and surprise immigration audits can cause major problems for unaware companies. Child labor can also be a subject of legal action.

 

10. Patent infringement

 

Start-up companies come up with new techniques and new technologies all the time. But sometimes there are challenges from existing companies for patent infringement of their ideas or products. This challenge leads to lawsuits.

 

There are similar issues possible in the areas of copyrights and trademark violations. Companies need to follow legal guidelines for establishing their original content and avoid creating anything similar to the work of others while claiming it as their own.

WORKERS’ COMPENSATION:

Learning the difference between total disability and partial disability

 

If you become incapacitated as a result of work in the Commonwealth of Massachusetts, you may be entitled to certain disability benefits. Depending on the nature of your disability, these benefits range from temporary to permanent and partial to total and knowing the differences can help you get the best coverage allowed by workers’ compensation laws.

 

Temporary total incapacity benefits

 You qualify for this benefit if your illness or injury leaves you temporarily unable to work for six or more full or partial calendar days (not necessarily consecutive). For example, you may need knee surgery and physical therapy that will incapacitate you for a period of time.

 

Your benefit will be 60% of your gross average weekly wage based on the prior 52 weeks of your employment – up to a maximum of the state’s average weekly wage (SAWW) at the time of your injury.

 

You may receive this benefit for up to 156 weeks (three years).

 

Temporary partial incapacity benefits

 You qualify for this benefit if you are able to work but are forced to take a lower paying job or work fewer hours, resulting in less earnings.

 

Your benefit will be 60% of the difference between your pre-injury wage and post-injury wage. The wage is calculated as your gross average weekly wage.

 

For example, if you earned $1,000 before your injury and $600 after it, you would be losing $400. The benefit would pay 60% of this difference or $360.

 

If you were receiving temporary total benefits, the most you could receive with temporary partial is 75% of that temporary total benefit.

 

You may receive this benefit up to 260 weeks (five years).

 

Permanent and total incapacity benefits

 You qualify for this benefit if you are totally and permanently unable to perform any kind of work on the open market for the foreseeable future as a result of your illness or injury.

 

This determination will be made on the basis of age, education, work experience, and medical condition.

 

Your benefit will be 66% of your gross average weekly wage, with a minimum of 20% of the state average weekly wage (SAWW) and a maximum of the SAWW. You also receive annual cost-of-living adjustments (COLA).

 

You can receive this benefit for as long as you are disabled.

 

Medical benefits

 You qualify for medical benefits if you suffer a work-related illness or injury that requires medical attention.

 

The benefits are adequate and reasonable medical care, prescription and mileage reimbursement for travel to and from medical visits.

 

Your employer has the right to send you to the doctor or hospital of their choice for the first medical visit. You have the right to choose your own healthcare provider for subsequent visits.

 

The insurance carrier has the right to send you periodically to see its doctor for evaluations and may deny or stop treatments it believes are not reasonable or necessary. But you can appeal this denial.

 

What is an Umbrella Liability Policy and why do I need one?
Answer: It’s extra protection for that legal rain storm.

 

In legal terms, what might a rainstorm look like?

  • a neighbor or customer falling on your property and suing you; a tree falling on your neighbor’s house or car because of some natural disaster

  •  a major accident where you are at fault, perhaps involving multiple cars, and your car insurance isn’t enough

  • someone injured in your swimming pool or at your home-given party 

  • a travel accident on a trip you are hosting or on a watercraft you own

 

These are risk factors which might put extra stress on your home or car insurance coverage.

The umbrella helps in any rainstorm

In today’s sue-first society, you might have more peace-of-mind to add an umbrella policy – one which sits on the top of your home and car insurance policies, ready to kick in with added coverage should you need it. An umbrella policy can add 1 million or several million dollars in extra coverage for a reasonable premium. And it’s not complicated to arrange.

 

A typical homeowner and auto insurance package sufficient to allow the addition of an umbrella policy would provide $250,000 -$300,000 liability coverage for auto and $300,000 for home, with a $1,000 deductible for each. On top of this coverage, an umbrella policy can be added for $1 million, with a deductible of $300,000.

If you were sued for $800,000, you would pay only the $1,000 deductible on the underlying coverage. The remainder of that policy, plus the umbrella, would pay the rest.

According to the Insurance Information Institute (III), the cost of an umbrella policy would be $150-$300 per year for the first million dollars, $75 for the second million, and $50 for every million after that – very reasonable considering the extent of coverage provided.

The umbrella is no longer a luxury

At a time when multi million dollar lawsuits are typical, umbrella policies are no longer luxuries. What is at stake is a lifetime of savings, future income, possibly inheritance and the future of children and grandchildren.

Anyone in the risk groups listed above should definitely consider adding an umbrella policy if not already done. Even the occasional home entertainer or home-based businessman should consider the possibilities of unexpected accidents and lawsuits. And, as the III points out, coverage includes such character challenges as libel and slander. No one is really immune to such threats.

Property owners are not the only ones to be concerned with liability. Renters, too, need to have protection for liability and personal property. The value of personal belongings may itself warrant umbrella coverage. Similar to the umbrella in your closet, it’s comforting to know it’s there when you need it.


 

I Was Attacked by a Dog - Now What?

 

Dogs are great pets. They provide companionship and enjoyment for their owners. But sometimes, they can be a problem for strangers. 

 

They can also be a problem for people they know. Dogs do have bad days like the rest of us. And some dogs, especially breeds like pit bulls, have propensities for being aggressive.

So, what happens if you are attacked by a dog? What are your legal rights? That depends on a number of factors. It depends on what injury you sustained, where it happened, whether you were trespassing, whether you provoked the dog, and more.

 

It also depends on the state in which it happened. Different states have different laws concerning dog bites.

State laws that determine dog bite liability are two basic types. The first one is sometimes called the “one bite” law where the dog owner knew or should have known that the dog may bite someone. In the 1800s, if a dog owner were unaware of his dog’s aggressiveness, he would not have been found liable for the “first bite,” but that isn’t necessarily the case today.

The second type is a liability regardless of what the owner knew or should have known. This is called the “strict liability” law and happens to be the law that applies in California. This law makes owners always responsible for their dog, whether they knew about the dog’s propensities or not.

“Should have known” liability

In states where there is no dog bite statute or no other law that supersedes it, the general rule is that the owner is liable for a dog bite only in situations where he or she knew or should have known that the dog may bite someone.

If the dog owner knew the dog had aggressive tendencies and might bite someone, that owner is liable. An example would be that the owner knew the dog had bitten someone before.

But a previous bite is not necessary to show liability. The dog can be irritable after an operation or sickness, and in such case, the owner would be responsible for keeping others safe around the dog or become liable.

There is also a liability factor if the dog were kept on a chain, is known to be a n aggressive breed, may be used as a watchdog or guard dog, etc.

 

It can be hard to prove the owner knew or should have known that his dog might bite someone. You would have to convince the court that it was “more likely than not” that the owner should have known.

As evidence, you could use the dog’s breed, whether the dog was used for protection, how the dog was trained, how and how often the dog was restrained by its owner, and other circumstances involving neighbors, etc.

“Strict” liability

In states having strict liability laws (including California), dog owners are held responsible for their dog’s actions, regardless of whether they could have done anything to prevent the event.

The dog owner (defendant) is liable if his dog bit you and:

  1. You (plaintiff) were legally allowed to be where you were when the bite occurred, and

  2. You did not provoke the dog.                           So, you would have a case if you were legally in some place when you were bitten by a dog, and you did nothing to provoke the dog. Military and police dogs (dogs on duty) are usually exempt from this law.

 

 

You would have to prove that the dog bite was actually harmful and caused damage, and you can include factors like physical pain as well as emotional suffering. You or a child might be traumatized by a dog attack.

In California, a dog bite is considered a personal injury, and there is a statute of limitations for personal injury lawsuits that is two years from the date of the bite. If you make a claim beyond two years, your case will probably not be heard.

Defenses to dog bite liability in California

To have a valid claim, you would have to be in a public place or lawfully in a private place when you are bitten. If you are trespassing, you may not be able to file the personal injury lawsuit.

If you provoked the dog in some way, the owner may not be liable. This includes intentional actions like teasing or poking the dog. However, if someone accidentally stepped on a dog he didn’t see, the action could also lead to a provoking defense because something still happened to the dog to make it react aggressively.

So, one of the first things you will have to do is show that you did not provoke the dog and convince the judge or jury that at least 50 percent of the dog’s action was not due to provoking. This is a “preponderance of evidence” requirement for civil cases to establish the burden of proof.

Strange as it sounds, the court will consider the dog’s actions compared with those of an (implied) reasonable dog. If a dog is overly aggressive toward any slight provocation, the owner may be liable. If you bothered an aggressive breed of dog while it was eating, that may be considered a provocation.

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