Missouri Injury Lawyers Blog
Missouri Injury Lawyers Blog

Fast Food Falls

by Cassie J Carpenter, April 23, 2015

Approximately 50 million Americans are served daily at fast food establishments across the nation.  With all the foot and automobile traffic produced by service to 50 million people, it should be a top priority of each restaurant to properly maintain safe parking areas, sidewalks and other surfaces outside buildings.  As many people have discovered, however, that is not the case.    Parking lots with large holes, crumbling sidewalks, and poorly maintained handicapped parking areas have become common.   

Most municipalities have adopted a version of the International Property Maintenance Code or have implemented other similar municipal codes that regulate the maintenance and up-keep of parking areas and sidewalks.  These types of codes and ordinances exist to ensure public health and safety.   In addition to codes and ordinances, the Americans with Disabilities Act (ADA) has rules for property owners to ensure public accommodations are made for people with disabilities, which includes properly maintaining handicapped parking spaces, ramps and other assistive accommodations. 

Despite the existence of these codes, ordinances and federal regulations, these restaurants continue to neglect maintenance resulting in trips, falls and injuries to their own paying customers.  If you or someone you know has fallen and/or been injured as a result of neglected property or poor maintenance, you should consider contacting at attorney, or call Tatlow, Gump, Faiella & Wheelan, LLC for a free consultation    

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Summer Camp Injury and Liability

by Christian L Faiella, April 17, 2015

You expect when you send your child to summer camp that they will have a fun memorable time.  Maybe they will suffer from a little homesickness. You don’t expect them to be seriously injured, but it can, and does, happen.  Injury is the leading cause of death in children; and, according to the CDC, there are an average of 9.2 million nonfatal injuries to children per year.  While these don’t all occur at summer camp, thousands of children are injured at summer camp every year.   

Most injuries at camp occur during structured camp activities.  Ineffective or improper protective equipment, such as damaged lifejackets, is a cause of many injuries.  Because there is no state regulation of summer camps in Missouri, it is up to the camp to regulate itself.  The protective equipment can withstand a lot of use and abuse in the course of a summer and needs to be inspected regularly and replaced as necessary.  Many injuries can be avoided by simply monitoring the equipment and making sure it is used properly.

Proper supervision by staff is a key component in camper safety.  It is the responsibility of the directors of the camp to make sure the staff they hire is qualified and properly trained. 

In 2011 a fifteen year-old boy drown at a camp in Michigan.  The staff had the children swimming in a lake at 10:00 pm in violation rules prohibiting swimming in the dark.   It is the duty of the camp to make their staff aware of the rules imposed for the camper’s safety.

In another horrifying case, counselors and lifeguards at a swim camp were completely oblivious to a drowning 4 year-old boy.  He lay motionless, floating in the pool for over 8 minutes before the lifeguard finally took notice.  Once the boy was pulled from the pool, his life could have been saved had they used proper CPR.  However, despite it’s own rule that staff be certified and current in CPR, neither the lifeguard nor the aquatics director who attempted to administer it had that certification. 

These cases are not solitary and go to show the importance of a camp that not only implements safety rules, but follows them as well.  Having a staff trained in CPR, water safety and lifesaving, disease prevention, as well as areas specific to the camp is vital to the health and welfare of the campers.

While prevention of injury is the goal, children do get hurt.   A determination must be made in each individual case as to whether an “accident” was actually the result of someone’s negligence or misconduct.  If your child is seriously injured at summer camp, call Tatlow, Gump, Faiella and Wheelen for a free consultation.

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CHILDREN AND WAIVERS OF LIABILITY

by Christian L Faiella, April 16, 2015

Summer is coming and with it summer activities for children.  Sports, swimming lessons, summer camp are just some of the fun things our children like to do in the summer.  As parents, we are presented with waivers, disclaimers, release of liability forms, and other similarly named documents.  In these documents we agree not to sue or to “hold harmless” the providers of activities or camps in the event that our children are injured.  When you sign these, are you really agreeing not to hold them accountable if they injure your child?

The effectiveness of waivers varies from state to state.  In Missouri releases of liability are not affective in cases where the conduct is willful, intentional, or beyond mere negligence.  They are also not generally favored so they are “strictly construed” against the person or entity receiving the benefit.

In Missouri the release must be “clear, unambiguous, unmistakable, and conspicuous” to release someone from their own future negligence.  The language must be understandable to the average person.  A parent reading the release should be able to readily ascertain that it is a document exonerating the other party from liability if, due to their negligence, that parent’s child is injured.  If you need a law degree to understand it, it probably doesn’t meet the standard.   It can’t be hidden.  If the language releasing someone from liability is difficult to find in the document, it may not be invalid.   

When it comes to children, there is some question in this state whether a parent can waive liability for the child’s injury.   But the same rules apply.  The release still cannot waive willful, intentional, or grossly negligent acts and must be clear and conspicuous.

If your child is injured and you have signed a waiver or release, do not assume you have no recourse.  Consult an attorney who handles cases of injured children.  At Tatlow, Gump, Faiella and Wheelen, LLC we have experience representing injured children and their parents.

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SUMMER CAMP SAFETY

by Christian L Faiella, April 15, 2015

As the last two months of the school year roll around, many parents are looking for summer camps for their children.  Those of us who attended summer camp look back at the fun, activities, and friends, not appreciating the apparent and not-so-apparent dangers that go with the experience.  However, as parents we need to be proactive and aware of the risks.  Before you send your child off the summer camp, here are some things of which you should be mindful. 

While many states do regulate and license summer camps, Missouri does not.  That certainly does not mean that you should not send your child to a Missouri camp.  There are many camps in this state that provide a fun, healthy, and safe experience.  You just need to do your homework and ask questions. 

Get references and speak with other parents.  They have been where you are now.  Ask about their child’s experience.  How easy is it to contact and speak with the staff?  Is their child going back to the camp?

Ask questions of the camp directors and staff.  Of course, you will have your own concerns relating to your child, but the following are some topics you should explore:

  • Staff training.  How are the counselor’s trained by the camp and what type of experience and training do they bring to the job? 
  • What is the staff to camper ratio?
  • What is the minimum age of counselors?  What is the screening process and how are they selected?
  • What are the sports or activities?  Some activities have inherent dangers and you need to find out what steps are taken by the camp to mitigate some of those dangers.  Is there swimming?  In a pool or lake?  Are the counselors instructed on lifesaving and CPR?  Are the campers instructed not to dive into a pool less than 10 feet or any lake?  Is that warning posted?  If they are in a lake do the campers wear life jackets?  Some camps provide horseback riding, hiking, rappelling and other activities that may be new to you and your child.  Don’t be afraid to ask about the safety protocals of these programs.   
  • Medical facilities.  Is there a doctor or nurse on site?  What are the procedures in the event of illness or injury?  Is there adequate access to a hospital?
  • Criminal background checks.  Does the camp do a background check on prospective employees?  Check with local law enforcement.  Have there been complaints filed by parents regarding the camp or it’s employees?  
  • How is discipline handled?
  • How are food allergies addressed?  If you child has an allergy, what is the procedure for dealing with it? 

The American Camp Association (ACA) accredits many camps nation wide.  Camps must meet up to 3,000 standards for “health, safety, and program quality.”  Their website is a great place to find a camp.

Because summer camps in many states are not regulated, it can be difficult to determine fault if your child has been injured at a summer camp.  If you believe your child has been injured do to the bad practices or negligence of a summer camp, don’t wait.  Call Tatlow, Gump, Faiella and Wheelen, LLC for a free consultation.  

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Can Payable on Death Designations, Joint Tenancies with Right of Survivorship, and Beneficiary Deeds on Real Estate Be Challenged and Set Aside

by Rex V Gump, April 3, 2015

Historically, wills have been the method by which people pass their assets after their death. The capacity to make a will is extremely low in the State of Missouri. It requires only that the person executing the will have a sound and disposing mind and memory. This has been defined as being able to understand the ordinary affairs of life, being able to understand the nature and extent of their property, being able to know the persons who are the natural objects of their bounty, and can intelligently weigh and appreciate those natural obligations to those persons.


A person can have the required state of mind to execute a will but still be laboring under diminished capacity which might well expose one to being unduly influenced by persons with self serving intent.
Since wills have to be probated, beneficiary designations and joint account designations on bank accounts and beneficiary deeds on real estate have seen much increase in use, as these documents do not require any formality to create, and they avoid probate . This has provided a fertile area for plundering the vulnerable elderly.


Missouri statutes allow payable on death designations, joint tenancy designations and beneficiary transfers on real estate to be challenged, if those transfers were obtained by undue influence or fraud.  Undue influence is generally defined as influence that destroys the free choice of the person making the beneficiary transfer. Proving undue influence requires evaluation of a vast array of factual circumstances and each case is different. Generally, some factors to be considered and evaluated are:

  1. Was the person who received the wrongful benefit (the perpetrator), in a fiduciary or confidential relationship, such as a lawyer, clergyman, accountant, financial advisor, or someone else purporting to act for the decedent, such as assisting them with their banking, writing checks, handling some of their business matters, possibly by use of a power of attorney?
  2. Did the deceased have a weakened mental state such as suffering from the effects of a stroke, heart attack, depression, surgery, early stages of dementia, early onset of Alzheimer’s or taking mood and mind altering medication?
  3. Was the decedent of advanced age? 
  4. Did the perpetrator isolate the decedent from others during the relevant period of undue influence, such as interfering with visits, communications to and from the decedent with relatives and other friends, and restricting access to the decedent?
  5. Was the decedent very dependent upon the perpetrator for living accommodations, assistance in activities of daily living, health care, psychological dependence and transportation?
  6. Is the perpetrator a serial undue influencer, who has shown a prior pattern of establishing a relationship with vulnerable elderly or infirm persons and thereby benefiting upon the death of that person?
  7. Is the perpetrator someone who would not be normally expected to benefit from the decedent’s death?
  8. Did the perpetrator engage in a pattern of self promotion and disparaging remarks about other persons who the decedent had previously desired to favor?
  9. Did the beneficiary transfers create a pattern of radical departure from any prior estate plan of the decedent?
  10. Did the perpetrator guide the decedent to a different lawyer, particularly a lawyer that the perpetrator had a prior relationship with and therefore would be sympathetic to the perpetrator? 

The foregoing list is a brief overview. There are many, many other factors that come into play in each particular case.
Undue influence is seldom proved by eyewitnesses or documents that confirm the perpetrators self serving and wrongful actions.
One Missouri court has observed that:

“Persons exerting undue influence will do so in a subtle, furtive, indirect and elusive manner as possible and such influence therefore may be shown indirectly by the reasonable and natural inferences drawn from the facts and circumstances proved”. Estate of Groves, 840 S.W.2d 253 (Mo. App. E.D. 1992).

Undue influence is almost always proved by circumstantial evidence i.e. the totality of the circumstances which resulted in the decedent drastically changing his distribution scheme to benefit one who has wrongfully unduly influenced the decedent to make those wrongful account changes and beneficiary designations.


If undue influence can be proven then the payable on death designations, joint tenancy or other instrument can be set aside.  If you need assistance with estate claims or inheritance litigation, contact Tatlow, Gump, Faiella & Wheelan, LLC for a consultation.

 

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Sidney Wheelan Teaching CLE on Auto Accident Cases for Missouri Bar

by Tatlow, Gump, Faiella & Wheelan, LLC, February 3, 2015

TGFW Partner Sidney Wheelan will present a 2 hour CLE telephone seminar tomorrow, February 4, 2015, beginning at noon C.S.T.  The seminar is the first of a three part series on the Basics of Handling an Auto Accident Case.  The topic for this presentation is “Screening the Case”.

Whether you are contemplating taking your first motor vehicle accident case or you are an experienced practitioner wanting to enhance your skills, this telephone seminar series will help you better serve your clients’ needs. 

Sidney has extensive experience handling automobile accident cases and will be providing guidance and expertise on how to effectively evaluate and manage these cases.

If you are interested in participating in the CLE, you may register online at www.mobarcle.org or by phone at 1-888-253-6013 or 573-635-4128. 

If you know of someone who may have been severely injured in an automobile accident, please don’t hesitate to contact Tatlow, Gump, Faiella and Wheelan, LLC, for an initial consultation.   We have the expertise and resources to successfully pursue these claims.

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