Injuries to Minors

District Court Dismisses Personal Injury Action under FTCA for Failure to Prove Negligence

December 17, 2013 | Lebowitz & Mzhen

The U.S. United States District Court, W.D. Virginia, Danville Division reached a decision this year in a personal injury lawsuit arising out of the Federal Tort Claims Act, which involved a U.S. Postal Service employee allegedly running over a woman’s foot.

In the case, Pannell v. US, Dist. Ct., WD Va. (2013), the nine year old plaintiff had been sitting on the porch, when she noticed the civilian vehicle that the rural postal carrier drove approaching her grandmother’s house. The plaintiff and her cousin ran across the lawn toward the mailbox, making eye contact with the USPS employee, who also waved at them.

However, as the girls approached the mailbox, the plaintiff fell, and slid such that her legs were under the vehicle. The plaintiff’s cousin attempted unsuccessfully to pull her from under the vehicle, and as a result, as the car drove away, one of the tires ran over the Plaintiff’s right foot.

Four Year Old Maryland Boy Accidentally Shoots Self

October 4, 2013 | Lebowitz & Mzhen

The Charles County Sheriff’s Office said in a statement that a four year old boy accidentally shot himself with a gun in a car parked in a driveway in La Plata last week.

The incident occurred in the early evening. According to deputies, a woman was reportedly watching her grandson play outside, and then the boy went into a parked car. The woman said she heard a gunshot and that the boy then ran to her. She saw the boy had a head wound, and immediately called 911.

The Sheriff’s Office said that the boy was flown to a hospital for treatment of a graze wound, and is expected to recover. Following a search, the police found a 9mm handgun in the parked car, which officers say is registered to a relative of the child. The incident remains under investigation.

Baltimore to Pay $100k in School Bus Death Lawsuit

May 13, 2013 | Lebowitz & Mzhen

Last week, the City of Baltimore Board of Estimates voted unanimously to pay $100,000 as part of a settlement in a negligence lawsuit relating to the death of a young special needs boy who died after jumping from a school bus.

The $100,000 settlement relates only to the allegations made against the city school system, who hired the bus company to transport the boy to and from school. The family has a separate claim against the bus company, an independent company.

The lawsuit alleges that school officials knew the boy struggled with “impulse control,” and that he had a history of attempted exiting from the bus, yet proper procedures were not followed, and he was not restrained on the day of the fatal accident. He died just two days after the accident, as a result of the head injuries he sustained.

According to the suit, there were multiple prior incidents demonstrating the boy’s behavior on the bus. These included the boy standing at the rear of the bus during the entire duration of the ride and, on a separate occasion, an attempted jump out the back door.

The lawsuit alleges that, on the day of the accident, the boy first attempted to open the front door of the bus, but the bus driver motioned at him with his hat, and continued to drive. The boy then allegedly walked past several aides, none of whom made any attempt to stop him, and then opened an emergency exit at the back of the bus, and jumped from four feet in the air into oncoming traffic. The bus driver continued driving, at a speed of 30 mph.

Parents of 7 Year-Old File Notice of Intent to Sue Police for Allegedly Handcuffing, Interrogating Child for 10 Hours

February 11, 2013 | Lebowitz & Mzhen

The parents of a seven year-old Bronx boy filed a notice of a claim against the New York City Police Department for $250 million. Another student at their son’s elementary school accused the boy of stealing five dollars from him, and the parents allege that the police drastically overreacted by detaining him for ten hours. The claim, filed with city officials, is a required step prior to filing a lawsuit for damages against the city.

Police say that they responded to a report of a robbery and assault at PS X114 in the Bronx at around 10:20 a.m. on December 4, 2012, four days after the alleged offense occurred. The child claiming to be the victim of the robbery, a nine year-old whom we shall refer to as A., alleged that another boy, seven year-old W., punched and shoved him, then took five dollars out of his pocket. This occurred off school grounds. A. described W. to the media as “the worst bully,” claiming that W. routinely harassed him. W. denied A.’s allegations, saying that the money had fallen to the ground, and that another boy picked it up. W.’s family alleged that another boy later admitted to the theft.

Instead of sending W. to the principal’s office, the school called the police, who allegedly pulled W. out of class and detained him at the school for about four hours. They then took W. to the 44th Precinct. W.’s mother, Frances Mendez, says that she was not allowed to see W. when she arrived at the station. When officers eventually allowed Mendez and her sister to see W., they claim that they found him in a panicked state with his left wrist handcuffed to a wall. W. allegedly spent six hours at the precinct. Mendez claims that officers “verbally, physically, and emotionally abused” W. during this time, and that they also “intimidated, humiliated, embarrassed and defamed” him.

Insurer Not Obligated to Defend in Tort Case for Sex Abuse, Maryland Court Rules

January 10, 2013 | Lebowitz & Mzhen

An insurance company is not obligated to defend or indemnify its insured in a civil claim for damages arising from acts of sexual abuse of a child, according to a Maryland court’s order. The U.S. District Court for the District of Maryland, ruling in Harrison v. Fireman’s Fund Ins. Co., Civil Action No. ELH-11-1258 (D. Md., Dec. 29, 2011), denied a request for a declaratory judgment that the defendant insurance company had a duty to defend the plaintiff. After the plaintiffs in the civil sex abuse lawsuit intervened in the case, they and the insurance company each filed motions for summary judgment. The court granted the insurance company’s motion and entered a declaratory judgment in its favor. It denied the intervenors’ summary judgment motion.

The chain of events leading to the declaratory judgment action began with a criminal case. William L. Harrison was convicted of sexual abuse of a minor in August 2009, and received a ten-year prison sentence. See Harrison v. Maryland, 17 A.3d 144 (Md. Spec. App. 2011). According to the appellate court that affirmed the conviction in 2011, Harrison approached the father of the victim, identified as S.B., in the summer of 2006. He reportedly asked the father if S.B., who was thirteen years old at the time, would be interested in working with him on landscaping and other jobs. S.B. worked for Harrison part-time until the summer of 2007, when S.B. told his mother that Harrison had “touched him inappropriately.” Id. at 145. Harrison was indicted in January 2008.

S.B.’s parents filed a civil lawsuit against Harrison in February 2010 for damages related to the abuse of S.B., identified in that lawsuit as S. Doe. The Does pleaded five causes of action against Harrison: negligence, assault, battery, intentional infliction of emotional distress, and a claim for medical expenses. Harrison in turn filed suit against his insurer, Fireman’s Fund Insurance Company, seeking a declaratory judgment as to its duty to defend him in the Does’ lawsuit. The Does intervened, and both they and the insurance company moved for summary judgment.

Death of Maryland Family in Auto Accident Leads to First Lawsuit Based on Fetal Death Statute: Baumann et al v. Slezak et al

November 23, 2012 | Lebowitz & Mzhen

An accident on a Nebraska highway took the lives of a Maryland family. The resulting lawsuit, Baumann v. Slezak, et al, is reportedly the first to invoke that state’s law allowing causes of action for the wrongful death of unborn children. Nebraska’s law, enacted in 2003, differs from Maryland’s wrongful death statute, in that it allows causes of action for prenatal deaths “at any stage of gestation.” Maryland only allows causes of action for the death of viable fetuses.

In the early morning of September 9, 2012, the Schmidt family was stuck in a traffic jam on westbound Interstate 80. The family, which consisted of Christopher and Diana Schmidt and their two children, was driving through western Nebraska on their way from Maryland to California. Diana Schmidt was seven-and-a-half months pregnant with a child they had named Ethan. The couple was driving in separate cars: Diana Schmidt and the two children were in a Toyota Corolla, and Christopher Schmidt was directly behind them in a Ford Mustang. The traffic jam was the result of a deadly collision between two semi-trailers about a mile further up the highway. One semi had become disabled, and although the driver pulled the rig to the side of the road, he allegedly left the trailer blocking traffic. Another semi crashed into the trailer at about 4:30 a.m., killing its driver.

While the Schmidts were stopped at the rear of the long line of traffic, a semi trailer driven by Josef Slezak collided with the back of the Mustang. Slezak was allegedly driving seventy-five miles per hour, and did not make an effort to slow or stop his rig. The collision caused the Mustang to collide with the Corolla, pushing the Corolla under another trailer. All four members of the Schmidt family, as well as their unborn child, died in the collision.

Children Risk Serious Injury from Recreational Trampoline Use, Pediatricians Say

October 8, 2012 | Lebowitz & Mzhen

Recreational trampolines, particularly the kind found in backyards, pose a serious risk of injury to children, according to a paper published by the American Academy of Pediatrics (AAP) this month. The AAP has long advocated against the recreational use of trampolines, citing the high risk of fractures, spinal cord injuries, and traumatic brain injuries. Other medical associations and the federal government have also noted the hazards of trampolines.

Trampoline use in the home environment remains a popular activity for children and teenagers, despite repeated warnings from the AAP and other groups. The Council on Sports Medicine and Fitness, part of the AAP, reported on the risks of trampoline use in the October issue of the AAP’s official journal, Pediatrics. It estimates that around 100,000 trampoline-related injuries occur every year, and that in every year since 2005, they have been responsible for three to four thousand hospitalizations and deaths. This actually represents a decrease in the annual injury rate, which reportedly peaked at the same time as trampoline sales in 2004. The American Academy of Orthopaedic Surgeons (AAOS) has also noted a direct correlation between the popularity of recreational trampolines and injury rates.

The original purpose of the modern trampoline was athletic training, not recreation, according to the patent obtained in 1945 by competitive gymnast George Nissen. His patent was for a “tumbling device” he intended to use to train gymnasts and acrobats. It later found a use in military aviation training. Recreational trampolines appeared once manufacturers were able to create frames that consumers could assemble at home. The AAP, the AAOS, and the U.S. Consumer Product Safety Commission (CPSC) all warn of the dangers inherent in trampoline use. Manufacturers have added safety features in recent years, including padding for trampoline frames and nets to prevent users from falling off the sides, but the AAP reports that these measures have not shown any significant impact on the injury rate.

Penn State Prepares for Sexual Abuse Lawsuits After Sandusky Verdict

June 28, 2012 | Lebowitz & Mzhen

Penn State University is reportedly seeking to settle the civil lawsuits filed by victims of former assistant football coach Jerry Sandusky after a Pennsylvania jury convicted Sandusky on forty-five counts of sexual abuse. This reported intent includes lawsuits that were already filed against the university, and those that are sure to follow. Penn State proposed a process to “address the victims’ concerns and compensate them for claims” related to allegations of abuse by Sandusky and both inaction and concealment by the university. In all likelihood, the university wants to resolve all potential claims quickly. Several lawsuits are already pending in Pennsylvania courts.

Sandusky worked in the Penn State football program for decades, retiring in 1999 but staying on with an “emeritus” title. He founded The Second Mile, a charity intended to help at-risk youth, in 1977. Prosecutors alleged that he used the charity to find his victims. They also alleged that the university knew about allegations of abuse going back years but failed to follow up on reports and investigations. In addition to the charges against Sandusky, prosecutors charged several Penn State administrators with perjury and obstruction of justice. After a trial lasting about a week, a jury convicted Sandusky on all but three charges of sexual abuse, forty-five in total.

Maryland’s Graduated Driver’s License Law Helps Prevent Teen Fatalities in Car Crashes

April 19, 2012 | Lebowitz & Mzhen

Graduated driver licensing laws (GDL) in Maryland contribute to one of the lowest rates of automobile accident fatalities involving teen drivers, according to a recent study. The Children’s Hospital of Philadelphia (CHOP), working with State Farm Insurance, reviewed data on nationwide traffic accidents involving teenagers between 2009 and 2010. The study defined “teens” as people ages 15 to 19. Maryland has one of the lowest rates of teen-driver-related fatalities in the nation, and the rate has substantially declined in the past five years. Robust GDL laws, in which teen drivers initially receive highly-restricted driver’s licenses and gradually earn additional privileges, show a strong correlation with low rates of fatal automobile accidents involving teen drivers.

CHOP’s report, entitled “Miles to Go,” provides a “yearly snapshot of teen driver safety for the nation.” The study found over 55,000 serious injuries among teens due to car accidents in the period from 2009 to 2010. Thirty percent of those injuries involved head trauma, such as skull fractures or traumatic brain injuries. Head trauma is the leading cause of death for teens in traffic accidents.

A total of 3,413 car crash fatalities involving teen drivers occurred in 2010. Fatalities include teen drivers, passengers of teen drivers, people in other vehicles, and people not in a vehicle (e.g. pedestrians). The report notes that three out of ten teen fatalities in 2010 involved people outside the teen’s vehicle. The total number of fatalities involving teen drivers nationwide declined by over thirty-five percent between 2005 and 2010.

Nationwide, the fatality rate for auto accidents involving teen drivers was 9.5 per 100,000 people. Maryland had the fifth-lowest rate in the country, with 5.8 per 100,000 people. This is a decline of more than forty-eight percent from 2005. The study’s authors credit strong GDL laws in the states with the lowest fatality rates.

Maryland’s GDL law, known as the “Rookie Driver” program, issues a driver’s license to teens in three stages: a learner’s permit, a provisional license, and a full driver’s license. A teen can apply for a learner’s permit at age 15 years and 9 months. A learner’s permit holder can only drive with a person age 21 or older, who has had a full license for at least three years (known as a “qualified supervising driver”), in the front passenger seat with them.

Energy Drinks Allegedly Cause Maryland Teen’s Death from Caffeine Toxicity

March 21, 2012 | Lebowitz & Mzhen

Fourteen year-old Anais Fournier, of Hagerstown, was at the mall with friends on December 16, 2011. Her friends told the Record Herald that Fournier drank one 24-ounce energy drink that day, and that she drank another one less than twenty-four hours later. On December 17, she went into cardiac arrest. Doctors at a Baltimore hospital induced a coma to prevent her brain from swelling, but six days later, she died, having never regained consciousness.

Fournier’s death certificate lists “cardiac arrhythmia due to caffeine toxicity” as her official cause of death. She reportedly suffered a complete lack of oxygen to her brain when she lost consciousness. Fournier had a heart condition that can cause heart valve malfunctions. Doctors did not directly connect her heart condition to the arrhythmia that caused her death, but heart conditions are among the risk factors in scientific studies of energy drinks.

The forty-eight ounces consumed by Fournier reportedly contained 480 milligrams of caffeine, which according to TODAY Health is almost five times the limit that the American Academy of Pediatrics recommends, and roughly equal to the amount of fourteen 12-ounce cans of Coca-Cola. Many beverages marketed as “energy drinks” contain ingredients like guarana and taurine that themselves contain caffeine, as well as high levels of sodium and sugar. The Record Herald reports that doctors advise parents to keep such energy drinks away from children, citing potential side effects like high blood pressure, seizures, and even death. Energy drinks can be especially dangerous for people with diabetes, high or low blood sugar, or heart conditions.

Fournier’s death has led her family, friends, and others to call for regulation of energy drinks by the U.S. Food and Drug Administration (FDA). Energy drinks are reportedly categorized as “nutritional supplements,” and so are not subject to the FDA’s limit of 71 milligrams of caffeine per 12 ounces in soda. They are also not subject to the FDA’s safety testing and labeling requirements. A press release from the American Beverage Association, issued about a month before Fournier’s death and quoted by the Record Herald, alleged that energy drinks have FDA approval, and that they contain less caffeine than a typical cup of coffee. While an 8-ounce energy drink contains between 60 and 100 milligrams of caffeine, according to the press release, a similar amount of coffee contains between 104 and 192 milligrams.