Monday, February 29, 2016

ATV Property Claims in Tennessee


A Tennessee Court of Appeals case sheds light on the new law when someone is hurt riding ATVs on your property. Mr. McCaig sustained multiple injuries while operating an all-terrain vehicle (ATV) on Mr. Whitmore‘s property. Mr. Whitmore‘s property consists of approximately seven acres of land and a residence. With the exception of the residence, the property is largely undeveloped. Mr. McCaig and his family were attending a social gathering at Mr. Whitmore‘s home when the accident occurred. While riding Mr. Whitmore‘s ATV, Mr. McCaig flipped the vehicle, which landed on top of him. Mr. McCaig sustained significant injuries, including nerve damage to his spine, legs, feet, and hands that prevent him from walking unassisted.

In his lawsuit against Mr. Whitmore, the McCaigs allege that Mr. Whitmore is liable to them for negligence as a result of failing to properly instruct Mr. McCaig on how to operate the ATV and by failing to warn Mr. McCaig of dangerous and concealed conditions like bumps in the lawn, to avoid the edges of the concrete driveway, and to avoid steel guide wires, all of which he alleges were concealed to him, but known to Mr. Whitmore.

Mr. Whitmore’s homeowner’s insurance attorneys filed his answer, in which he denied any liability for Mr. McCaig‘s injuries and claimed that the recent Recreational Use Statute, TCA 70-7-104, bars any recovery by the McCaigs against Mr. Whitmore. Mr. Whitmore filed a motion for summary judgment alleging that he owed no duty to Mr. McCaig and the trial court agreed to throw out the case.

In this appeal, the Court stated that in order to bring a successful suit based on a claim of negligence, the plaintiff must establish: (1) a duty of care owed by the defendant to the plaintiff; (2) conduct falling below the applicable standard of care amounting to a breach of that duty; (3) an injury or loss; (4) causation in fact; and (5) proximate, or legal cause. The first element that must be established is ―a duty of care owed by the defendant to the plaintiff-- the legal obligation of a defendant to conform to a reasonable person‘s standard of care in order to protect against unreasonable risks of harm. establish a negligence claim.
The new  Tennessee Recreational Use Statute codified at Tenn. Code Ann. §70-7-101 states that (a) The landowner, lessee, occupant, or any person in control of land or premises owes no duty of care to keep such land or premises safe for entry or use by others for such recreational activities as . . . off-road vehicle riding, . . . and nor shall such landowner be required to give any warning of hazardous conditions, uses of, structures, or activities on such land or premises to any person entering on such land or premises for such purposes…
There are exceptions to this law, but none were found to apply here. Therefore the land-owner, Mr. Whitmore, won the appeal as well.

Wednesday, February 17, 2016

EMP: something to worry about

As a child growing up during the Cold War, the first president I voted for was Reagan. Back then, we were worried that Soviet missiles might rain down from space and incinerate our country, if not all humanity, in a global thermonuclear winter. If you remember the movie “War Games,” that was basically it.
Today, we feel fairly confident that a large-scale nuclear exchange with another country is highly unlikely, however, a newer threat has evolved. In fact, it would not take hundreds of complex intercontinental ballistic missiles to cripple the United States. Even one single, relatively simple nuclear weapon, detonated in space above the U.S. could destabilize us.  You see, back when Russia and the U.S. were testing our nukes, a side effect of the bursts was an electromagnetic pulse (EMP). EMP effects were found to be both direct and indirect. Direct electromagnetic shock electronics and stress electrical systems. Indirect effects include the damage that said shocked electronic controls might cause on systems that include them, which can be quite severe as well. Therefore, terrorists or state actors that possess relatively unsophisticated missiles armed with nuclear weapons may well calculate that, instead of destroying a city or military base, they may obtain the greatest political-military utility from one or a few such weapons by using them—or threatening their use—in an EMP attack.
EMP will cover the wide region within line of sight to the nuclear weapon. The primary avenues for catastrophic damage to the Nation are through our electric power infrastructure and thence into our telecommunications, energy, and other infrastructures. These, in turn, can seriously impact other important aspects of our Nation’s life, including the financial system; means of getting food, water, and medical care to the citizenry; trade; and production of goods and services. The recovery of any one of the key national infrastructures is dependent on the recovery of others. The longer the outage, the more problematic and uncertain the recovery will be.
The very fabric of our society, let alone our military power, is actually at risk from a fairly unsophisticated terrorist group who could launch one of these off a container ship near our coast. Rogue states, such as North Korea and Iran, may also be developing the capability to pose an EMP threat to the United States, and may also be unpredictable and difficult to deter.
Certain types of relatively low-yield nuclear weapons can be employed to generate potentially catastrophic EMP effects over wide geographic areas, and designs for such weapons may have been illicitly trafficked for a quarter-century.
The US has developed more than most other nations as a modern society heavily dependent on electronics, telecommunications, energy, information networks, and a rich set of financial and transportation systems that leverage modern technology. This asymmetry is a source of substantial economic, industrial, and societal advantages, but it creates vulnerabilities and critical interdependencies that are potentially disastrous to the United States. The current vulnerability of US critical infrastructures can both invite and reward attack if not corrected.
An Electromagnetic Pulse attack could result in the greatest loss of life in human history, but most people have never heard of an EMP.

An EMP can be triggered by detonating a nuclear warhead above the earth’s atmosphere, which would release a pulse of energy that could destroy electrical grids and electronics such as cell phones and computers over a thousand-mile radius.

“What happens when, when the grid comes down, is there are surges of electricity that blow the big transformers,” Roscoe Bartlett, a former member of the House of Representatives who spearheaded the creation of a Congressional EMP Commission, said. “The estimate is that we could lose somewhere between 100 and 200 of those; that means that the grid would be down for a year or more.”

The Congressional EMP Commission reported that after such an attack Americans would face starvation, a lack of clean water, disease and eventually societal unrest. The commission estimated that 90 percent of the U.S. population would die within a year — nearly 300 million people.

Driver License on Your Mobile Phone??


Delaware and Iowa have launched pilot programs to try using digital licenses instead of the traditional plastic drivers license cards that we all use to verify our driver’s status, age and identity.
As airline boarding passes, business loyalty cards and Apple Pay all are applications on the smartphone, a digital license would likely be its own mobile app. Also, car insurance companies now offer digital versions of auto insurance cards.
In theory, the cop that pulls you over might alert you via phone, and you can use your fingerprint to allow your info to be accessed remotely. That's when you see the ticket you received and you can even pay the citation on the app.
In practice, however, there are sure to be problems. From a technical standpoint, it us unknown how secure such a system might remain. Further, each state has its own computer systems in po0lice cars and their DMV, all of which may not be compatible.
A more troubling issue is if you are requested to hand your smartphone to a police officer. If the phone is that accessible, the police may be able to see things that the fourth amendment against unreasonable search and seizure would require a warrant to see. (The US Supreme Court has ruled that cell phones are protected from warrantless searches.) What happens if a notification pops up jokingly asking if you are “ready to go hide the body?”
One real advantage would be the instant update to change your address without a dreaded trip to the “take a number” soul-crushing long lines at the Department of Motor Vehicles. Kids these days have no idea why something as simple as updating an address requires a physical trip to a “brick and mortar” location. So, as with many new technologies, the enormous generation gap looms.
Younger drivers will be likely to embrace this technology and say it’s about time. Those of us well over 40 are likely to be more cautious and suspicious.
The way things are headed, the car will soon be diving the human, rather than the other way around.  I am definitely not ready for that!

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Monday, February 1, 2016

Teen Driver Safety

As an injury lawyer, I am not surprised to repeatedly hear that crashes are the leading cause of death of 16- to 20-year-olds. Inexperience, poor judgment, peer pressure, and a feeling of invincibility conspire to cause reckless behaviors, and dangerous over-reactions while driving.

Teens don't really understand just how long or fragile life is, or how much pain their loss would cause their family and friends. Nevertheless, we all remember the scare tactics of Driver’s Education class:  Blood-filled movies of real car accident victims, shown dead on the highway.

General Motors seems to think there is a better way. They call it “Teen Driver.” It is intended as a teaching tool.

The 2016 Chevrolet Malibu features this factory-installed, hard-wired technology that seems to touch almost every part of the vehicle. It will be rolled out to more vehicles soon, and Ford has a similar system as well.

Teen Driver mutes the stereo system until both driver and passenger seatbelts are fastened. Parents can even set volume limits on the radio and program speed maximums that will sound an alarm. While kids might ignore the alarms, they will face the fact that Mom and Dad will have a “Report Card” reflecting all of the following juicy information:
1. Every time a set speed parameter was broken
2. Every time a forward collision alert sounded
3. Every time a lane departure alert went off
4. Every time the safety devices, like anti-lock brakes, triggered.

In theory, the teen would also be able to prove that he or she was, in fact, driving safely. And, they may be much less likely to text or be distracted if they are mindful that swerving is recorded. While some teens are likely to see it as spying and resent the intrusion of the privacy many covet, I think it will help develop better habits behind the wheel for teens.
Given that the teen death rate is about triple compared those over 20 years old, any progress is represented as less teen funerals.

We can all agree that safer teen driving is a very good thing.