TEXAS LAW ALERT
WINTER 2008/2009 ISSUE
ATVS: ACCIDENTS WAITING TO HAPPEN
Since they were introduced in the early 1970s, ATVs (all‑terrain
vehicles) have become increasingly popular. With this popularity comes
an increasing number of accidents and injuries—according to the Consumer
Product Safety Commission, approximately 136,000 injuries and 700 deaths
occur every year. It might not surprise you to learn that Texas has the
dubious distinction of leading the nation in these injuries.
Design Problems
The reason ATVs are so dangerous has a lot to do with their
design. They have no frame protecting the operator in the event of an
accident. They ride on large, low‑pressure tires that can have
difficulty gripping the rough terrain over which they travel. They are
stopped by hand‑operated brakes, which can lack sufficient power and can
cause ATVs to overturn as they stop.
ATVs have relatively large engines for their size and weight,
which means they can travel as fast as 70 mph, often across broken,
uneven terrain. Although ATVs are not designed for passengers, it is
possible (even easy) for people to jump on—people who will be injured if
there is a crash. Earlier three‑wheeled ATVs were less stable than the
current four‑wheeled versions, but even the four‑wheeled models can be
top‑heavy and prone to serious rollover accidents. Even on roads and
flat surfaces, ATVs can be unstable.
Consent Decree
As the result of safety concerns expressed by the federal
government, ATV manufacturers entered into a consent decree in 1988. In
this decree, they agreed to halt production of three‑wheeled ATVs, to
provide safety training for new owners, to place warning labels on their
products, and to make recommendations about what size of ATV is
appropriate for different age groups. Although this consent decree
expired in 1998, ATV manufacturers have pledged to continue to follow
most of its provisions, although the government can no longer force them
to do so.
Despite these improvements, the number of injuries and deaths per
year attributable to ATV accidents continues to rise. To some degree,
this is because ATVs continue to become more popular, and more people
ride them. However, another reason for the increase in injuries and
deaths is that ATV makers are building more powerful ATVs and marketing
them to younger and younger children.
The latest marketing gimmick is the so‑called “transitional” ATV,
one that is sized between the smaller ATVs intended for children and a
full‑sized adult ATV. ATV makers claim that these ATVs are more
appropriate for the 14‑ to 15‑year‑old age group, but critics note that
bigger ATVs with bigger engines undercut the messages conveyed by safety
training and other warnings, increasing the likelihood of injuries.
In addition to making more powerful ATVs, ATV makers have fought
any attempt to impose regulations on ATV ownership or use (such as age
limits and mandatory helmet laws). With the expiration of the 1988
consent decree, it will take either new laws passed by Congress or new
action by federal agencies (such as the Consumer Product Safety
Commission) to force ATV manufacturers to pay more attention to safety.
Neither of these outcomes appears likely to happen.
Sad to say, the only kind of regulation available to many is the
“private” regulation that comes with lawsuits. Enough successful suits
may convince ATV manufacturers that the cost of not planning for safety
is just too high.
If you or someone you know has been injured or killed while
riding an ATV, contact us so that we can help protect your legal rights.
CHILDREN AND ATVS
Children are involved in over 45,000 ATV accidents every year.
Amazingly, 95% of children between the ages of 12 and 15 who are injured
on ATVs (and 65% of younger children) are injured or killed while riding
a full‑size ATV intended for an adult. These full‑size machines are
dangerous for children because they are too big and powerful for kids to
control.
Alarmed by the number of injuries and deaths suffered by child
ATV riders and passengers, neurologists who conducted a study of ATV
accidents involving children issued a call for a number of common‑sense
guidelines, including banning children younger than 16 from riding ATVs
and requiring all ATV riders to wear a helmet. Such common sense would
reduce the profits of ATV manufacturers, who oppose any such regulation
and continue to market ever more powerful ATVs to children.
Regulations or not, if parents allow their children to ride ATVs,
they should insist that their children safely ride ATVs of an
appropriate size while wearing a helmet. This is not a cure‑all but
should help reduce what is becoming an epidemic of ATV‑related injuries.
BE ALERT FOR MEDICATION ERRORS
Rarely a year passes without the announcement of some new wonder
drug to treat another disease. While more and better drugs are usually
considered a good thing, the increase in the number of drugs available
and in the number of drugs the average person takes has led to an
explosion in the number of errors made in prescriptions.
These errors can take all kinds of forms and can occur in many
different ways. Sometimes a drug other than the one prescribed is
provided, or the correct drug is provided in the wrong dosage. Sometimes
a drug is prescribed that interacts negatively with another drug the
person is taking and the patient is not warned of the danger. Sometimes
the mistake is made by the doctor prescribing the drug, sometimes by the
pharmacist filling the prescription, sometimes by the person
administering the prescribed drug. Mistakes can occur in hospitals,
nursing homes, and the corner drugstore. Regardless of the many
different ways that prescription problems can occur, they all share one
thing: They can be serious and potentially deadly.
A recent study concluded that out of 3 billion prescriptions
filled each year, 51.5 million of them contain some kind of error.
Although reliable statistics are hard to come by, these errors lead to
thousands of unnecessary hospitalizations and hundreds of unnecessary
deaths.
Interestingly, many consider the primary reason for the rise in
errors to be financial—the doctors who write the prescriptions, the
pharmacists who fill them, and the nurses who often administer them are
pressured to serve more patients in less time, increasing profits, but
also increasing the risk of an error. Others point to the rise in the
marketing of drugs directly to patients. Patients are more likely to go
to their doctors and demand a prescription for some drug they saw on
television, leading to more prescriptions and more chances for error.
Several solutions to this problem have been suggested. The first
is also the easiest: Slow down and make sure the prescription is
correct. The second is to install more safeguards, such as having
another person check the prescription. Another solution is to make sure
that different drugs or different dosages don’t look similar, reducing
the chance that the wrong bottle will be used. Yet another suggested
solution is to make sure that pills are always available in many
dosages, which will prevent people from having to break their pills into
halves or quarters, possibly exceeding the intended dosage.
Cases involving prescription errors, which can involve claims of
negligence, medical malpractice, and products liability, and which
require a great deal of expert testimony, can be very complicated to
pursue. If you or someone you know has been injured due to a
prescription error, call us. We would be happy to discuss your case with
you.
UNSAFE LOAD = BIG RECOVERY
It is worth remembering that sometimes things do work out for the
best if you do the right thing. This point was driven home by a recent
case involving a Texas truck driver and an unsafe load.
The truck driver was fired because he refused to take to the
highways driving a load of steel that was not properly secured and that
was therefore dangerous. The company’s president told him he could
either drive the company’s truck or drive his own truck home. The
trucker refused to take the unsafe load and was fired the same day.
The trucker sued, claiming that he was fired solely for refusing
to perform an illegal act. At trial, the jury agreed. Contributing to
its verdict were a number of facts, including the following:
The trucking company tried to discredit the trucker’s stance and
to portray him as being in it for the money, but the jury credited his
testimony that he had been trying to do the right thing and be a good
role model for his kids. The jury awarded the trucker $267,000, even
though he had suffered only $7,500 in lost wages. Those of us who drive
on Texas highways can only hope that the trucking company got the
message.
BALANCE YOUR CHECKBOOK
Although no one would argue that balancing your checkbook is a
fun way to pass an evening, balancing it every month is important for
several reasons.
Bouncing Checks Is
Expensive
Banks make much of their profit on bounced check charges and
overdraft fees, and these charges and fees keep going up. They can also
have a negative effect on your credit rating, making borrowing for
everything from a house to a car to a vacation more expensive. Balancing
your checkbook every month (and keeping good records of ATM withdrawals,
fund transfers, etc.) helps make sure you don’t write checks you can’t
cover, saving money.
Mistakes Happen
Although not common, banks sometimes make mistakes on your
statement. If you balance your checkbook every month, you can find these
mistakes early, when they are easier to correct.
Stop the Bad Guys
Finally, as much as we hate to think about it, fraud and identity
theft are on the rise. While rare, it is possible for others to siphon
off funds from your bank account without your knowledge. If you go over
your records every month, you can discover this kind of problem before
you lose too much of your hard‑earned money.
INSURANCE COMPANY HITS
Insurance companies take in billions of dollars of premiums. But
when the tables get turned and it’s time for an insurance company to pay
you a settlement because you were injured in an auto accident, the
insurance company sings a different tune. An insurer will use any excuse
to avoid paying a fair settlement, but some of the more common ones are
listed below.
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