Dog Bite Attacks

There is something particularly terrifying about being attacked by a dog. Psychologists explain it as part of our DNA which has probably been part of human nature since humans first walked the earth.

Children in particular suffer long lasting trauma from “being attacked by a wild beast.” The noise, the animal’s hostility and very apparent intention to inflict great harm or even death, the built-in flight response, the overwhelming terror, all contribute to the creation of severe emotional distress. In both children and adults this often results in a Post Traumatic Stress Disorder with disruptions in memory and concentration, startle responses, avoidance responses, night terrors (children), nightmares (children and adults), as well as terrifying flash backs.

Scarring is inevitable except in the most minimal of bites and fixing the scar usually requires plastic surgery.

Who pays for this?

In Arizona, the dog’s owner and anyone else who has the right to control the dog’s ability to come into contact with people, for example a tenant dog owner and a landlord who knows about the dog, are strictly liable in the first year after the bite. Being strictly liable means that the dog’s owner (custodian) cannot escape responsibility for paying damages by arguing that the dog never bit anyone before, or is a “good dog,” etc. Responsibility is absolute as long as the law suit for the bite is filed in the proper court within one year of the date of the attack. If the one year time limit is missed, then a lawsuit filed between year one and year two after the attack must be based on the negligence of the owner (custodian). This is tougher. Now the victim must prove that the owner or custodian knew or should have known of the dog’s tendency to bite and must have been negligent in allowing the dog to come into contact with the victim.

Letter carriers (postmen) and delivery people such as UPS or FedEx drivers, are sometimes bitten on the job. Anyone bitten on the job has two claims. One is for worker’s compensation and the second is a civil lawsuit for damages against the dog’s owner or custodian.

Proving the amount of damages in order to be fully compensated often requires the services of an attorney. The first reason is that finding insurance is sometimes tricky. The dog owner might not want to admit that he or she carries homeowner’s insurance. Even if such a policy is found, it must be read carefully, along with any “insurance rider’s” to figure out if dog bites are covered. The second reason is that evidence of damages has to be acquired. The attorney may have to send the client to a psychologist and to a plastic surgeon to obtain a report that will estimate the amount of money that it will take to restore the victim to “pre-bite” physical and emotional health. Pain and suffering has to be calculated, as discussed in another blog I wrote on this subject. Third, the statute of limitations, which is the time in which a lawsuit must be brought, has to watched and conformed with. Finally, the attorney has to make certain that the victim is not wrongly accused of bringing on the attack by teasing or inciting the dog.

I have been handling these cases for many years due to my long service to union members who have to deal with the threat of bites on a daily basis, such as members of the National Association of Letter Carriers (postmen) and Teamsters (UPS Drivers).

I would be happy to answer any of your questions on this subject and to help you evaluate your claim.


Fair Compensation Following an Accident

Question to Attorney Stephen Gorey:

Following an auto accident, what steps should be taken if the 'at fault' party's insurance company proposes a settlement?

The answer to your question depends on what you lost.

You can probably negotiate without a lawyer if the accident only involved damage to your car and the insurance company is offering to fix it or to replace it for what it is worth.

The same is true if your injuries were very minor, such as one or two days of minor pain.   On the other hand, you are probably going to need the advice of a good personal injury lawyer if your losses go beyond these easily fixed problems.

Why? Because in order to know if you are being offered a fair settlement you have to add up all of the things that were taken away from you in the accident.

In an accident, it is possible to lose more than just your car and some minor medical bills. If you have been seriously hurt, another thing that has been taken away from you is your health. Before the accident, you had pain free days or disability free days. You were able to go where you wanted in comfort and do what you wanted without problems. You were able to sleep well and get up feeling good about yourself. You get the idea.

Here is a legally recognized list that judges instruct juries to take into consideration when someone has personal injuries. This jury instruction is entitled “Measure of Damages” and the judge fills in everything in the brackets [.....] and then reads this to the jury at the end of the trial.

“If you find [any] [name of defendant] liable to [name of plaintiff], you must then decide the full amount of money that will reasonably and fairly compensate [name of plaintiff] for each of the following elements of damages proved by the evidence to have resulted from the fault of [any] [name of defendant] [party][person]:

1. The nature, extent and duration of the injury;

2. The pain, discomfort, suffering, disability, disfigurement, and anxiety already experienced, and reasonably probable to be experienced in the future as a result of the injury.

3. Reasonable expenses of necessary medical care, treatment, and services rendered, and reasonably probable to be incurred in the future.

4. Lost earnings to date, and any decrease in earning power or capacity in the future.

5. Loss of love, care, affection, companionship, and other pleasures of the [marital][family] relationship.

6. Loss of enjoyment of life, that is, the participation in life’s activities to the quality and extent normally enjoyed before the injury.”

This is quite a list and it takes a very experienced attorney to correctly interpret this instruction and explain it to a jury.

Now, you are going to be a jury member for a little while and I am going to explain it to you. I am going to go through the instruction with you and explain the key words so that you can understand it.

Here is the instruction again with the key words in the beginning of the instruction put in capital letters and bolded.

“If you find [any] [name of defendant] liable to [name of plaintiff], you must then decide the FULL AMOUNT of money that will reasonably and fairly compensate [name of plaintiff] FOR EACH of the following elements of damages proved by the evidence to have resulted from the fault of [any] [name of defendant] [party][person]:”

What is the “full amount” “for each” element of damages? This means that you need to put a number of dollars for each of the losses suffered in as a result of the defendant’s (bad guy’s) negligence. It doesn’t mean “give them something” and it doesn’t mean “give them a little.” It means exactly what it says “give them the full amount” of money necessary to compensate the innocent victim for each and every one of the losses.

How do you figure that out?

Well, some of the losses are relatively easy and are usually proved at trial by the lawyer who has hired an expert to be your witness. For instance, for wage losses and future loss of the capability of earning wages the lawyer will probably hire a person who works in the field of vocational rehabilitation and someone who works as a labor market consultant. These are people who have special training and experience that they can use to explain a number to the jury.

So much for item number 4. Relatively straightforward.

Item number 3 is also pretty easy. It is easy to know how much medical care ran in the past by getting the doctor and hospital to submit these records. Your doctor or a doctor hired by the lawyer or even a “life care planner” hired by the lawyer can explain to the jury how much medical care will cost going as far into the future as medical care will be needed.

So much for item number 3. Also relatively straightforward.   Now the jury has numbers put on their sheet for those items of damages.   But what about numbers 1, 2, 5 and 6? Look at 2 especially. It has a list within the list!

A doctor can tell us in number 1 what the nature of the injury is, how serious it is and how long it is expected to last, but how do you put a value on it so that you can fill in the amount on your list?

Begin by thinking about this. After the accident, through no fault of your own, you have been robbed of these things because someone was careless. That person had a duty to act as a reasonable driver who would obey the law and drive carefully and they didn’t. Or that person had a duty to act as a reasonable doctor and treat you up to the standard of care of other doctor’s in your State and didn’t. Or that person had a duty to act as a reasonable store owner and keep aisle’s clean and didn’t. And something has been taken away from you that has to be restored. The law can’t make that person who wrongfully hurt you give you back your health. They can only give you back money.

The key to understanding how to come up with a rational number is to come up with a rational method of calculation. There are several ways to do this. I am going to give you two.

The Daily Method:

The first method is the “daily” method (per diem method). This method is allowed in some states, Arizona being one of them, and not allowed in others, such as California.

How are losses, such as pain and suffering experienced in life? They are experienced minute by minute and hour by hour and day by day for as long as they last. Ever had a bad night’s sleep? Remember tossing and turning and thinking you’d give anything for some proper rest? Remember how miserable the next day was? Ever been sick with the flu or have a bout with back pain or a really bad headache?

After a serious accident, some people have problems like this every day, possibly for the rest of their lives.

Most hard labor jobs are paid at least minimum wage. The “daily” method says “Assign a dollar figure for hard labor and multiply it times the number of hours the injured person would be awake, times the number of days in their life expectancy.

Once you have that basic number for a “hard life” you can enter it on the jury list next to number 1. Now go down to item number 2 and use the same method. If a minimum wage doesn’t fit what a reasonable person would be willing to put up with on the job to fit each item in number 2, use a higher figure to start the multiplication.

Now do the same for number 5. Then do the same for number 6.   Finally, add up all the figures and you have your total losses that the law will recognize.

The Free Society Method:

The free society method of figuring damages uses the same tool that any business uses in a rational business model. It is supply and demand. What will a reasonable person pay for this good or for this service? It is the basis for how you earn money or how your company earns money to pay your salary. It is therefore a rational way to put a value on a loss.

This method has to look at what the injured person, the plaintiff, would pay for certain things, not what you as a jury member would pay.

Here is something to think about in this regard. If someone has a business or a family to care for and doesn’t have time to do their own fence painting or yard work, they might pay someone else to do it. People are willing to pay other people to do certain things to avoid having to do it themselves. People are also willing to pay to avoid the pain that can come from digging a ditch to put in irrigation lines themselves. I’m sure you get this idea also.

This method says: “Look at the seriousness of the injuries and the terrible impact on the plaintiff (the victim) and ask yourself what the plaintiff would pay to avoid this pain and these problems.”
However, it is important in this method, just as in the “daily method” to go through each and every item of damages in this consideration and to put a dollar figure by each one.

A Final Thought:

Outside many courtrooms is a statue of a woman with a blind across her eyes and a scale in her hand. This is the statue of justice. She wears a blind because she does not want to know the color, the creed, or anything else about the person. She simply wants to restore the balance.

Before an accident, the scales of a person’s life are balanced. Afterwards, they are out of balance. Something has been taken away from the victim. Maybe it is money that needs to be paid for medical bills. Maybe it is money that was lost from being out of work after an accident. If so, the scale has to be put back into balance by having the negligent person or negligent company put the same amount of money on the scale to even things back up.

But there is no way to put back someone’s health and their happiness. Only money can be put back in. Enough money has to be put back in to balance out their suffering. It has to be enough money that the injured person no longer cares that he or she is in so much pain. It is an even swap.

This is why pain and suffering damages must be high. It is the only fair thing to do in our country which values fairness - fights for fairness - and teaches fairness every day to our children from a perspective of what is right and good.


Swimming Pool Injuries - The Drowning Accident

By Attorney Stephen Gorey
Click to view our Pool Safety Video Series

An Overview

The vast majority of injuries in swimming pools happen to children. The death of a child or the terrible consequences of brain damage leave a wake of anguish, guilt, frustration and unending suffering for the parents, grandparents and caregivers of these children.

Newspapers, radio and television spots beat a constant drum that these tragedies only happen when parents don’t live up to their role as loving parents. There is simply no escape from the constant reminders and unending heartbreak.

And the sad part about this assault on the grieving parents is: IT IS SIMPLY NOT TRUE.

If you have ever been a parent you know that children can be little escape artists, capable of disappearing acts from time to time. If you are not a parent, think back on your own childhood. Chances are you can remember having escaped a parent’s side at some time. No parent can watch a child every second and these accidents can happen in mere seconds.

For this reason, the law looks differently at the situation. The law recognizes that even the most vigilant parent can lose sight of a child and for that reason the law makes the care of children the duty of society and especially the duty of people and companies that make a profit in the swimming pool industry.

Everyone in society is charged with looking out for other people’s children in some fashion. We have to slow down in school zones: we don’t simply tell parents they have to hold their child’s hand from home to school door. We have to stop for stopped school buses: we don’t simply tell parents they have to ride the bus themselves with their children. We have to keep dangerous objects such as knives away from the lower shelves in stores: we don’t simply tell parents it is their obligation to hold both of their child’s hands at all times. We have to build hotels with windows that cannot be opened by children: we don’t simply tell parents to make sure their child doesn’t fall to their death.

It is no different with swimming pools. In the pool industry (the “aquatics industry”), the guiding principle is embodied in the phrase: “LAYERS OF PROTECTION.” Depending on the situation, different people and different companies owe a duty to provide a layer of protection to a child in a pool. The legal principle is that if one layer of protection breaks down, another must be in place to safeguard the swimmer. If that second layer breaks down, then another safeguard must come into play. The number and type of layers of protection depends on the nature of the pool.

The first line of protection is easy to see. It is the child’s custodian, whether it is a parent, a babysitter, a teacher, etc. It is the various layers of protection beyond that which I want you to know about.

The following list is very, very brief and I have mentioned only a few of the cases I have handled to give you an idea of this concept.

The Backyard Pool

The owner of a backyard pool is required by law in many cities and in many counties to comply with codes requiring an inner fence around the pool. It is not enough in these areas to simply have a fence around the property. Fences of certain heights with self closing and self latching gates are often required so that children cannot get into the water unattended.

The designers of backyard pools are accountable to take care that the slope from shallow end to deep end is not too steep. Night lights have to be designed with enough brightness to allow a child in distress to be seen on the bottom of the pool.

The makers of pool covers are accountable to take care that the cover can be properly anchored in such a way that a small child cannot walk out on it and slip under and drown. For example, I handled a case for a child who walked out on a pool solar cover which gave way and drowned him. The pool cover manufacturer was held largely responsible. The company’s own tests showed that the lack of a way to anchor its cover could lead to such a drowning.

The companies that sell and construct pools need to take care with the kind of suction filters used so that a child’s hair or limbs can’t get caught and drown them.

Makers of backyard pool accessories have to make sure that slides aren’t designed in such a way that a child can hit their head and get knocked out as they enter the water.

Makers of “water wings” and “floaties” need to make it very clear that these are not life preservers and can actually cause danger to small unattended children.

The Neighbor’s Pool

Water attracts children. Child trespassers (picture a toddler getting through a loose board in a neighbor’s fence) need to be protected also. The amount of care that a pool owner must take to child proof the pool will usually depend on the pool owner’s knowledge that a child can get into the pool area. In a case I handled for a child and his mother, a neighbor let his backyard fence get into state of disrepair and a toddler got through a narrow opening while the mother was very briefly in the bathroom. The child walked straight into the neighbor’s unprotected pool and suffered catastrophic brain damage. The neighbor was held largely responsible both for the loose board and for the unprotected pool.

The Apartment and Hotel Pool

Apartments and hotels install pools for one reason and one reason only. It makes them money because vacationers want to use or to sit out by a pool.

Practically every city and county has codes (laws) governing hotel pool safety. These are simply minimum standards and hotels must go beyond these rules if necessary to make their pools reasonably safe. The violation of one of these city, county or state codes is automatically considered negligence (legally called “negligence per se”) and if the violation caused or contributed to a drowning, the hotel is responsible. This is the “layer of protection” in case the child escapes from the parent (such as when a parent has to take a nap and a child sneaks out to the pool). Just a few examples of the safety precautions hotels typically have to take are fence and gate requirements, pool floor slope restrictions, safety rope requirements, pool deck material requirements to prevent slipping, appropriate warning signs, adequate underwater lights at night, attendants to check the pool for unattended minors.

Another “layer of protection” involves rescue equipment. These typically include a pole and hook to pull children off the bottom or out of deep water, a pool side telephone to call 911, someone on staff trained in CPR, and in appropriate situations a lifeguard.

Shortcomings in these areas lead to tragedies. For example, in one case I settled during trial a mother had been taking a nap in a hotel and her children went to the pool without her permission. The hotel’s underwater light was out and in the darkness an older child failed to see his younger brother in distress and the child drowned. The hotel was primarily responsible because the pool should have been locked at dusk to prevent children from entering if the underwater night light wasn’t working.

Also for example, in another case I handled, an apartment let its self latching gate fall into disrepair.  The apartment owner knew of the problem but did not fix it for almost a week and a small child got out of the apartment while his mother was cooking and got into the pool and died. The apartment owner was held responsible.

The Community Pool

Pools such as at a YMCA, a municipal pool or a gated community pool, have much the same duties to provide layers of protection as a hotel, but usually must also provide lifeguards.

Lifeguards need to be properly trained and equipped and often aren’t. Charged with lifesaving, too often they are 15 or 16 year old teenagers at minimum wage. Even if taught CPR, they are emotionally unprepared for the stress of a true tragic emergency. Community pools that employ unsuitable lifeguards are responsible for those lifeguards’ failures.

However, even the best lifeguards can lose their concentration if not given procedures by the pool operators to walk every so often, to avoid eye strain, to have enough breaks to avoid boredom and fatigue, and to be positioned so that reflections and deflections of light do not obscure their vision. Chairs need to be set at appropriate heights and at appropriate vantage points.

Duties of Water Parks

The duties of water parks are similar to that of community pools but there are certain dangers that have to be particularly guarded against. The most obvious is that having crowds of people create visual obstacles to seeing a child on the bottom. The training and positioning of lifeguards has to be of the highest caliber. Water clarity has to be maintained so that the bottom is always visible. The bottom of the water park should be a color that makes spotting a child underwater easier to see. Slides have to be constructed in a way that they do not cause injury during use and do not allow sliders to topple on top of each at the bottom.

Final Note

These are only a very few of the vast number of situations that can arise and of the duties that the various kinds of pool owners must fulfill. The one concept I hope you take away from this is that pool accidents are rarely the sole fault of a parent. Pools are too dangerous and children are too active to be the sole responsibility of parents. The law recognizes this and justice demands it.

Swimming Pool Injuries - Diving Accidents

Attorney Stephen Gorey
Click to view our  Pool Safety Video Series

Every year hundreds of people are seriously injured in diving accidents. The vast majority are caused by diving into water that is too shallow for the angle of the dive, resulting in a broken neck (fractured vertebrae). The consequences can be catastrophic, often causing quadriplegia and, if the dive went unnoticed, brain damage or death while the diver lies helplessly paralyzed on the bottom of the pool.

Who is at fault in such a situation?

Legally, it is usually NOT THE DIVER’S FAULT.

Why is this?

The reason the law holds others at fault is that the swimming pool industry (swimming pool designers, swimming pool manufacturers, hotels with pools, apartments with pools, community pools, water parks, etc.) have superior knowledge about the mechanics of swimming and diving and the risk of serious injury of these activities, much more than the public.

Most people do not realize that a teenager runs such a risk diving headfirst from a pool deck at a steep angle into less than 8 feet of water and under no circumstances should dive into water that is less than 6 feet deep (competitive swimmers trained to make a shallow entry being a recognized exception).

Most people do not realize that a low diving board should not be more that 40 inches above the water and the water for the dive should be at least 9 feet.

But the swimming pool industry does know this and people and companies who make money off the public by selling them pools or charging them to use pools, directly or as part of the cost of a hotel room or apartment, need to provide warnings that are clear, conspicuous and properly designed to prevent such activities.

The duty of a pool owner to prevent diving injuries does not stop with putting up a sign that says “No Diving.” Sometimes the pool itself is built wrong. It can have a diving board that is over water that is too shallow. It can have a diving board that is too “springy” and allows divers to get airborne all the way into shallow water. It can have a slope into the deep end that is so steep that it makes diving into water like diving into an underwater wall. It can be mis-marked as to the depth, or have no depth markers at all so that a diver does not realize how shallow the water actually is.

I had a case in Orange County in which an “upscale apartment” had a designer pool. The pool was gorgeous and water was kept crystal clear. The only problem was that it didn’t just have four sides. It had several curves and angles and at one point you could stand to dive in, look straight ahead and see a 6 foot depth marker, but the water under your feet would only be 3 and a half feet deep. The clarity of the water during the day made the water almost invisible and a swimmer would have an optical illusion at this point. Unfortunately, a man in his early thirties did head first dive from this point thinking he had more water under him than he did and ended up quadriplegic. He died of those complications and I won a judgment at trial for wrongful death on behalf of his children against the corporation that owned this apartment complex.

While liquor is sometimes involved in people making dives into shallow water, the provider of the liquor is often legally responsible. For example, I represented a young woman who was attending a business party at a resort near Newport Beach, California. The resort was selling liquor and sold this woman enough to get drunk. The pool outside the ballroom was lit at night and very scenic but it was not secured against people the resort sold drinks to from getting into it at night and this woman was too impaired to be able to judge the depth properly. She dove in headfirst and broke her neck, resulting in surgery to fuse her part of her upper spine (cervical fusion). I recovered for her against the resort, in the same way that I would recover against a bar that keeps on serving someone who is intoxicated and gets behind the wheel of a car, injuring my client in a drunk driving accident.

Small children at water parks dive into all kinds of trouble and come up with broken teeth and facial lacerations. This is often the fault of the establishment in failing to enforce their own rules. An establishment that puts up a “No Diving” sign and then has employees passing by the pool without stopping people who are diving is not in compliance with safety standards well known to the swimming pool industry and can be held liable for this “non-action” (omission).

The laws regarding swimming pool depths, design, markings, warnings, lifeguards, diving boards, etc., vary from state to state and even county to county. However, the superior knowledge of safety requirements in the swimming pool industry blankets the entire U.S. and the violation of these known safety requirements is often the legal cause of a diver’s injuries.