Hot Cars are Death Traps: Babies Left in Cars Will Die From Heat - Miami's Dominicue Andrews Tragedy One More Example

Every year, babies die from heat stroke after being left in a hot car. And while the Miami Dade medical examiner has not released findings yet, it appears that the tragic death of little Dominicue Andrews, 22 months old, may be added to those statistics.

Dominicue Andrews was pronounced dead earlier this week after he was discovered near a van parked outside his daycare, the Jomiba Learning Center. His parents have announced that they will be suing the daycare facility.

This is a national problem. And, responsible personal injury attorneys applaud the efforts to educate the public and to help busy parents in eradicating this modern-day dilemma - no one wants to hear of a baby dying, and no one wants any parent to have to deal with the aftermath of this situation.

According to one study, a baby dies from heatstroke after being left in a hot car EVERY TEN DAYS in this country. There are even more instances of near-death accidents, where babies are found before heatstroke has caused them to perish in the hot sealed environment of a motor vehicle.

How does this happen?

• Sometimes the parent forgets that the child is in the backseat, drives to work, and leaves the child in the car for the entire workday;
• Sometimes caretakers forget a little one is in the hot car and cannot exit the vehicle on his/her own;
• Sometimes the child manages to get inside the car through an unlocked door or open window and then cannot get back out of the vehicle.

Efforts to Stop These Kinds of Infant Deaths

Several efforts have been undertaken across the country to fight against these horrific deaths. There have been media campaigns designed to make everyone aware of the dangers of babies left in cars -- not only to help parents but to encourage all of us to check the cars in the parking garage or mall parking lot for babies in the backseat.

NASA developed the "Child Presence Sensor" - a mechanism that alerts parents when babies are in the vehicle.

And, personal injury wrongful death lawsuits have been filed - as it's suggested will happen in the Dominicue Andrews case - to pursue justice in infant heatstroke deaths. There are those that argue these cases are just for money but that's not true.

Wrongful death litigation serves society by not only focusing upon circumstances that need to be changed, but (though "punitive damages") providing an example to an industry that better consumer safety protections are just and right to implement.

By suing one day care, for example, maybe the lives of babies in the future will be saved because caregivers across the country will institute car checks, vehicle monitors, or other safety checks to insure that toddlers are not inside a hot vehicle during their watch. (If only to avoid being sued themselves.)

Our sincerest condolences to the family of Dominicue Andrews and all others who have lost little loved ones in this sort of tragic way.

By Bryant Esquenazi on July 14, 2011 1:48 PM

Miami Beach Cop Crashes ATV: Miami Police Causing Personal Injuries - What is Sovereign Immunity and When Can the Government Be Sued for Injury or Death?

Over this past Fourth of July weekend, a veteran Miami Beach cop named Derick Kuilan who was on the job (on duty) left a local hotel bar with a young woman, giving her a ride on the beach on his ATV.

They sped along, this cop and his lady friend, and they were going fast. It was dark. The ATV's lights were off.

The ATV was going so fast, in fact, that Luis Almonte and his girlfriend Kitzie Nicantor couldn't get out of the ATV's way in time, and both were run over by the police officer (again, who was ON DUTY) and seriously injured. The cop's friend, Adelee Sharie Martin, was reported thrown from the ATV but not hurt very badly.

If This Were Not a Cop....

If this were not a police officer, then this would be a straight-up personal injury law example: an ATV crash where the duty of the driver to be safe as he operated his all-terrain vehicle would be examined, to see if the driver breached that duty and caused the injuries sustained by the victim. If negligence was found, then the driver (and his insurance coverage) would have to cover the damages sustained by those who had been hurt.

When a Government Employee Is Involved in a Crash, It's a Different Situation

Things are different in a personal injury situation where a government employee is involved as the person operating the vehicle that crashes. Whether it is a car, an ATV, a motorcycle, or an SUV, if that government vehicle is involved then something called "sovereign immunity" may apply.

Or not. It's been reported in the Miami Beach ATV crash that officer Kuilan was seen fleeing the scene of the accident after it happened -- a key fact -- and that tests of his BAC levels (blood alcohol content) are being done by Internal Affairs, as he is on administrative leave from his job.

Witnesses say that the accident happened at around five o'clock on the morning of Sunday, July 3, 2011, and that after the crash, Kuilan asked onlookers to help him out and not say anything before he ran away.

What is Sovereign Immunity?

The idea of "sovereign immunity" has been a legal concept since ancient times, where it was more commonly known as "the king can do no wrong." Today, it is a legal concept, or "doctrine," that bars anyone from suing a governmental agency (like a police department) unless there are laws on the books that allow that lawsuit to be filed.

In other words, if the State of Florida does not have a law that lets an injured person sue the Miami Beach Police Department -- or any other state agency, even the Governor himself -- then that lawsuit cannot be filed.

Why not? There are several reasons for sovereign immunity, including protecting taxpayer money. If the accident happened in the course of a proper governmental action, then in the balance, it may be seen as better to protect the taxpayers as a whole than allow lawsuits for damages against a state entity.

For more details, check out this summary of sovereign immunity prepared by the Florida Senate.

Florida Statute 768.28 - Limited Ability to Sue Florida Government for Personal Injury

The Florida Legislature has passed a law that allows injured victims in Florida to sue for damages, waiving sovereign immunity in some situations. Of course, this law limits who can be sued, how much attorneys' fees can be awarded, etc. - but Florida does have laws on the books waiving sovereign immunity in some situations.

For the full text of Florida Statute 768.28, go here.

One of the Keys to Sovereign Immunity is Scope of Employment

One of the first questions to ask when a government agency, like a police department, is involved in a personal injury claim, is whether or not sovereign immunity bars the suit, and one of the key issues in that analysis is this: was the government employee acting in his scope of employment at the time of the accident?

Was a Miami Beach police officer in the scope of his employment, allegedly drinking at a hotel bar on a holiday weekend before taking a female passenger on a fast ATV ride in the dark, without headlights at five in the morning?

By Bryant Esquenazi on July 5, 2011 1:16 PM

Flo Rida Charged With DUI in Miami Beach While Driving $1.7 Million Bugati: How DUI Charges Can Impact Personal Injury Claims

You may know him as the guy with the hit song "Low" but Miami knows Tramar Dillard as Flo Rida (get it, Florida?) and when Flo Rida was arrested before sunrise this morning here in Miami Beach for suspicion of driving under the influence, he was just one more celebrity partying on vacation here in South Florida that may have had one too many.

Celebrities like Miami, Miami likes celebrities. Around here, we're not too surprised that Flo Rida may have been tipsy at 3:30 am -- but that ride is causing some talk. Seems that Mr. Dillard was driving a $1,700,000 car when he was pulled over: a red and black Bugatti.

According to police reports, Flo Rida was found to have a blood alcohol content that was twice the legal limit, and he failed a field sobriety test to boot. Now, that's all criminal stuff, right? Nothing to do with personal injury lawsuits, right?

In Flo Rida's case, right. Thankfully neither Mr. Dillard nor his very, very nice car were injured in any way - nor was anyone else (or anything else).

However, there's a lesson to be learned here. Driving drunk - and things like BAC levels -- can be used in personal injury lawsuits that involve major damages for wrongful death, severe injury, car crashes, pedestrian accidents, and the like to help prove the element of CAUSE.

In an accident case, the plaintiff must prove four basic things: duty, breach, cause, harm. A car driver has a duty to drive in accordance with state law, and if he violates the law then he is in breach of that duty. Driving under the influence proven in a criminal court is easy evidence here: just put the authenticated criminal records into evidence in the injury case.

Next comes cause - did that breach cause the plaintiff's harm? An accident while the driver has a BAC above the legal limit helps to establish the cause of the injury - and it's evidence that's been compiled by law enforcement, easy for a plaintiff's attorney to get and use in the civil suit.

No, Flo Rida isn't involved here in any injury suit. However, his arrest today does give us pause - or it should. Things could have been very bad this morning and we could be worried about Flo Rida today just like we are about Sean Kingston. And that Bugatti is pristine today just like it was yesterday, thankfully.

Duty, breach, cause, harm. The other side of driving under the influence - it's good to know.

By Bryant Esquenazi on June 9, 2011 1:55 PM

This is National Hurricane Preparedness Week: We Get More Warning Than Joplin Could, Miami, Let's Take Heed and Avoid Serious Injury and Death

Right now, in the midst of National Hurricane Preparedness Week, Miami joins the rest of America in watching the continuing massive destruction that the recent wave of huge thunderstorms and powerful tornadoes has caused throughout the Midwest.

According to the National Oceanic and Atmospheric Administration, the United States tornado death toll in 2011 is the highest ever through the month of May in the NOAA-NWS official record (1950-present).

Here in South Florida, we understand what it means to folk in Joplin, Missouri, and other hard hit areas: hurricanes and tornadoes are different, but the horrors they leave behind are the same.

The Joplin tornado exceed 200 mph and destroyed 30% of the town. You can watch the Associated Press video of the storm and its damage here. Right now, there are 232 names on the Joplin Missing List.

June 1st is the Start of Hurricane Season

Next week, the 2011 Hurricane Season begins. NOAA is predicting that we are going to have a higher than number of hurricanes in the Atlantic Ocean this year. NOAA is predicting the following:

* 12 to 18 named storms (winds of 39 mph or higher), of which:

* 6 to 10 could become hurricanes (winds of 74 mph or higher), including:

* 3 to 6 major hurricanes (Category 3, 4 or 5; winds of 111 mph or higher)

Getting Ready Now for a Bad Hurricane Coming

Last year, on the eve of Hurricane Season we posted steps everyone should take to make sure they have adequate insurance protection on their homes, cars, boats, RVs, motorcycles, and themselves long before the weathercasters start predicting landfall of a storm.

To read that list of tasks you should undertake now, read our post "Hurricane Earl and Miami: Tips for Preparing Now 4 Hurricane Storm Damage Insurance Claims."

Hopefully, South Florida will escape the horrors that Joplin, Missouri, is dealing with today. However, it is best to be prepared for a huge hurricane: we're in the high risk area, after all.

Luckily, there are several sources of information online that you and your family should review now. They are both downloadable documents and short videos to watch, prepared by the National Hurricane Center as part of National Hurricane Preparedness Week.

Go check this stuff out -- it's easy stuff, and we need to be ready now. Unlike the tornado sweeping down on an unexpected Joplin, we're getting advance notice of the Big Storm Coming.

By Bryant Esquenazi on May 26, 2011 3:21 PM

Two Horrible Motorcycle Accidents in Miami Area Remind South Florida of the Dangers in Riding Motorcycles Here

Motorcycles are fun and freeing - and the weather here in South Florida invites all sorts of people to drive our roadways on their motorcycle - be it a rice chopper, a cruiser, whatever.

It's adventurous. It's romantic. It's downright American.

However, in two separate news stories this week, both involving motorcycle accidents, people were seriously injured and killed while peacefully riding along on their bikes.

These tragedies remind all of us how serious these types of crashes can be. Even when -- especially when -- the biker is doing absolutely nothing wrong.

1. Pembroke Park, biker hit from behind by SUV - serious injuries

In Hollywood, Florida, bike enthusiast Ytzhak Hartzy was hit from behind on I95 near Pembroke Road (in the park) by a hit-and-run driver driving a black Kia SUV early Sunday morning. Last we knew he remained in critical condition at Memorial Regional Hospital.

The Florida Highway Patrol Sergeant is investigating - but they know the driver's identity (and they've arrested him) thanks to witness John Roxey, who saw Hartzy get hit, fly into the air, and roll down the roadway several hundred feet. Roxey and a pal followed the hit-and-run driver and held him until the cops arrived.

(Now, there's a great witness for trial, right?)

2. Lakeland, two died as motorcycle tries to avoid car pulling out of driveway

In Lakeland, Michael Mitts and his passenger, Laura Nalley, were riding a motorcycle down North Chestnut Road on Monday evening (about 7:30 p.m. according to the Florida Highway Patrol), when a driver started backing out of his driveway oblivious to the bike coming down the road.

Mitts hit the brakes. Both Mitts and Nalley were thrown from the bike; the bike crashed into the car. Both were pronounced dead at the crash scene.

Florida Law and Motorcycle Crashes - Personal Injuries and Wrongful Death in Motorcycle Accidents

In Florida, the law requires that anyone driving a motorcycle on Florida roads know what they are doing: you must have special knowledge and the state gives you a special license to drive a two-wheel motor vehicle. Florida also requires helmets.

However, even the most experienced rider - wearing leathers, obeying the law with that helmet - is vulnerable to the cage drivers out there.

Like these two examples. In both these motorcycle crashes, there doesn't appear to be any question that the motorcycle drivers were not at fault here.

Whether or not criminal cases will proceed against the car (or SUV) drivers in these terrible wrecks, the truth is that Florida personal injury law provides some level of justice in the form of a civil lawsuit.

Under the law of negligence here in Florida, damages in the form of wrongful death, pain and suffering, lost wages, medical care, etc. can be obtained through a personal injury lawsuit.

What's involved in a Florida motorcycle accident negligence lawsuit?

Under Florida law, when someone causes personal injury to another due to their negligent acts, then they are legally responsible for all the harm that results from what they've done.

The personal injury lawsuit must prove that:

1. There was a duty of care owed to the person injured (the one on the motorcycle) in this circumstance -- which is clear from the laws covering driving on Florida's roads;
2. For some reason (driving drunk? distracted driving?), the defendant failed to meet his or her duty of care to the guy on the bike; and
3. As a result, the plaintiff (e.g., the motorcycle driver or passenger) was injured or killed.

By Bryant Esquenazi on May 17, 2011 1:37 PM

What is PIP Insurance Coverage - and How Insurance Companies Just Lost Their Latest Try at Getting Florida to Gut PIP Coverage

Personal Injury Protection, or "PIP" coverage, is something offered to Floridians as part of their automobile insurance policy. Right now, under Florida law, every car owner and driver must have at least $10,000 PIP coverage.

If you are in a car accident in Florida, this PIP coverage kicks in, never asking who's to blame. The $10,000 coverage is there, ready to help. Since the insurance company isn't allowed to assess blame here, Florida is called a "no fault" state.

PIP will cover up to 80% of your medical bills and up to 60% of your lost wages - up to that $10,000 cap. No questions asked.

Insurance companies are against PIP coverage because they are arguing that too many people take advantage of it, setting up fake insurance claims just to get the money. We've discussed this before; now, however, Tampa's Fox 13 Investigative Reporter has just published its own expose on PIP coverage fraud, which may help drive those pushing the legislature for change in the future.

Florida is No. 1 in the USA for Fraud PIP Claims

According to Tampa Bay reporter Doug Smith, Florida is actually number 1 in the United States for these kinds of fraud -- and Tampa is tops within the state for filing fake PIP claims.

According to the Fox story, many of these fake PIP claims are professional jobs where there are staged wrecks and clinics are set up to handle the filings. The crashes are set up to have lots of folk involved, so that $10,000 cap can be milked. Eight people can mean close to $80,000 from one scam. The news story goes on to interview those in the know, including police detectives who suggest that these big crash scams are orchestrated by organized crime.

Florida Legislature Nixes Reform - No Changes to PIP Laws for Now

In January, we discussed PIP reform proposals that were being talked about up in the state capital and the efforts of insurance carriers to push reforms through, from bill to law. They've failed.

The insurance industry had gone so far as to build up proposed comprehensive reforms to Florida's PIP laws, creating one big comprehensive personal insurance coverage reform bill.

Around ten days ago, that all fizzled out when the Florida House committee hearing the proposal voted against it. Specifically, HB967/HB1411 - the biggest attempt at changing PIP laws here in Florida in the past 4 years - died as it was voted down by the Florida House Subcommittee on Health Care and Human Services.

Read the dead bill's language here -- and see for yourself that what didn't succeed into turning into law this year was not only an attempt at altering your insurance coverage (instead of boosting regulations to stop criminals via criminal investigation, etc.) but an attempt to:

1. give the insurance companies the right to cap the charges they would cover under PIP for medical services;

2. limit the amount of money that attorneys could charge for their work regarding these crashes; and

3. granting the insurance company even more time (read that delay) in investigating claims before they pay.

It's one thing to fight crime. It's another thing to hurt all Floridians who unfortunately are involved in an accident. Sounds like lots of Florida accident victims may have just dodged a bullet.

By Bryant Esquenazi on May 10, 2011 3:41 PM

Dolphin Expressway PileUp Today - Good Example of Florida's Good Samaritan Law In Action

This morning, several Miami folk left their homes thinking that they had all the time in the world to do things on their to-do lists: shop, schedule an oil change for the car, vote on American Idol this week, follow the Miami Heat to the NBA Championship - just like we all did.

Except these few of our fellow Miamians had their life change today. What happened?

They were involved in a huge, horrific traffic pileup on Dolphin Expressway this morning. It was a multi-car pile up. News reports are that one person died in the car crash(es), and nine people were seriously injured.

And, out of those 9 people who were hurt but hopefully will live to tell their stories of what happened today, more than one may well have survived because other Miamians stopped and helped them.

Dolphin Expressway Crash - People Stop to Help those in Need

WSVN-TV interviewed men who didn't just rubberneck, but stopped their vehicles and ran to help people who were injured, trapped, screaming in pain. The victims of the Dolphin Expressway accident today undoubtedly are grateful to them, as well as their families.

It's also probably very true to say that all of Miami is both proud and grateful that we have people like this living in our community. Heroes. No other word for them.

Florida's Good Samaritan Law

It's sad to say that in the past - and it's still true in some other states - that Good Samaritans like those who went into action today might have involuntarily exposed themselves to a lawsuit in the future. Yes, sad but true that there are people who got sued just for trying to do the right thing.

Not in Florida. Not now.

In Florida, we have laws in place to protect Good Samaritans in situations like this one today. The Florida Good Samaritan Act, Florida Statute 168.13, provides immunity to those (including physicians) to stop to help in an emergency.

Florida personal injury attorneys are all for seeking justice in situations like this -- going after product liability claims when cars or trucks or SUVs fail in some way, or suing for road conditions that should have been fixed, or whatever else may cause horrible accidents like this one today.

Justice in this country depends upon brave plaintiffs bringing negligent defendants to task for their bad acts.

However, it's also justice to protect those who stop and risk themselves as they act to help others in trouble. Like the heroes today.

The Florida Good Samaritan Law is a good thing. It's something that Florida can be proud of - right along with the character of those Floridians we saw on that highway today.

By Bryant Esquenazi on April 26, 2011 1:31 PM

Fatal Car Crash in West Palm Beach Provides Lessons to South Florida Re Importance of Insurance

Yesterday, a silver Ford Mustang driven by Jorge Alberto Salinas of Cary, North Carolina, sped through a red light as it zipped south down Military Trail.

It was six o'clock in the morning.

No one can know for sure when or if driver Rodlin Hyppolite, 39, saw that Mustang speeding toward the Mitsubishi Galant as Hyppolite drove along Elmhurst Road. Hyppolite died at the scene of the crash. Passenger Maryory Cruz, 21, survived the accident, but she's suffering from serious injuries. Both Hyppolite and Cruz hail from West Palm Beach.

Jorge Salinas, 27, was arrested for (1) driving without a license and causing death and (2) driving without a license and causing serious injury. The test results for whether or not he was driving drunk have not been released.

Here's the thing: right now, it's not a question of drunk driving -- it's a question of no insurance. If he didn't have a license to drive, then did he have insurance to cover a wreck?

The Importance of Having Car Insurance

From a legal perspective, there is Florida law in place for a wrongful death action in cases of fatal car accidents where the victim is not the one at fault for the wreck, as well as personal injury claims that are available to those who are seriously injured in accidents like these.

In other words, Florida law provides an avenue for justice here - both for the man who died in this wreck, as well as the passenger who today fights to recover from serious and painful injuries in a hospital intensive care unit.

However, even assuming that these avenues were used and damages were awarded, the reality is that insurance carriers are usually the pockets where most of the money actually comes from to satisfy personal injury and wrongful death judgments.

That's why car insurance is mandatory in so many states. To protect against cases like this: where the out-of-state driver -- who the police have already deemed responsible for this tragedy -- may well not have the personal resources to cover the literal and practical and real costs of what he has done.

Florida Law Regarding Mandatory Car Insurance

In Florida, the Florida Financial Responsibility Law requires that any person at fault in a crash resulting in bodily injury and property damage to others must have in effect at the time of the crash full liability insurance coverage, which at the minimum should be:

• bodily injury liability of $10,000 per person,
• bodily injury liability of $20,000 per crash,
• $10,000 property damage liability per crash, and
• personal injury protection limits of $10,000 per person per crash.

However, the fact that yesterday's driver, Jorge Salinas, was cavalier enough to be speeding along Florida roads without a driver's license does suggest that he may well not have followed Florida law regarding having minimum insurance coverage.

Under Florida law, without a policy, the winning plaintiffs can seek to enforce any judgment with any property he may own that isn't judgment-proof. Whatever that is.

What happens if he doesn't have insurance?

Under Florida law, the lawsuit judgment is immediately enforceable, and the defendant's driver's license, car tags, and vehicle registrations are suspended for 20 years or until the judgment is satisfied.

Of course, to someone who is already driving without a license, this may not sound very scary.

What's left?

Looking for another defendant, for one thing. Where did this man come from? If he was drunk, then does the bar or partygiver have a legal responsibility here? Did the car itself fail in some way -- will Salinas report failed brakes, for example?

There's still hope for the victims here. But it's a harder road for them if this guy was driving without a license and without insurance.

 By Bryant Esquenazi on April 12, 2011 1:55 PM

Opening Day 2011: Baseball Season Begins Today Along With News of SF Giants' Barry Zito Car Crash

Baseball's Opening Day is an American tradition, recognized by many as a national holiday according to the Baseball Hall of Fame website.

Here in South Florida, it's a special year because it marks the last year for the Florida Marlins over at Sun Life Stadium. Soon, they'll be the Miami Marlins, playing in a brand spankin' new stadium in downtown Miami. (Go here for the 2011 Marlins schedule.)

Today, for the first time on a Thursday since 1976, the 2011 Major League Baseball regular season hits off with:

the Milwaukee Brewers at the Cinncinnati Reds,
the Los Angeles Angels at the Kansas City Royals,
the Atlanta Braves at the Washington Nationals,
the Detroit Tigers at the New York Yankees, and
the San Diego Padres at the St. Louis Cardinals.

For a blow by blow on the season openers, check out Mark Newmann's overview at the Major League Baseball site.

Here in Miami Beach, we can watch the Marlins go against the New York Mets tomorrow night, over at the stadium or on Fox-TV (which is covering all the Marlin games this season).

The Spring Season for Sports Injuries Begins, Too: SF Giants Barry Zito Car Crash

Along with the excitement of Opening Day, there is news of a minor car crash involving San Francisco Giants' pitcher Barry Zito over in Los Angeles. Seems Zito was treated and released at a local LA hospital after his car was broadsided as he drove through an intersection on Sunset Boulevard.

It's important to remember that minor car wrecks can sometimes result in longterm injuries, and the fact that Zito has been released from hospital care does not mean that he may be home free on any physical injury. Head injuries and back injuries may appear over time. Neck injuries often appear after minor car crashes, and whiplash can be a very serious injury that doesn't fully manifest for awhile after the accident itself.

Of course, Barry Zito's condition will be closely monitored by team physicians. This may not be the case for the rest of us, who may return to a job where our physical prowess isn't a vital component to company success.

For anyone experiencing a minor car accident, it's important to be vigilant about any body conditions or changes for awhile after the accident occurs. Pain should not be ignored. Favoring a limb, a nagging headache, numbness -- all are symptoms which should be immediately reviewed by a doctor.

Not all of us are baseball stars like Barry Zito, but we're all important to our family and friends. No matter how minor your car crash, it's better to be safe than sorry. Get a doctor's opinion, and remember: the party at fault (and their insurance carrier) should be responsible for your medical expenses.

By Bryant Esquenazi on March 31, 2011 12:35 PM

Vanessa Hudgens Fights Release of Nude Photos - When Criminal Law and Personal Injury Tort Law Overlap

Vanessa Hudgens is mad and taking action regarding the unauthorized release of some old nude photographs taken of her years back. Seems that someone has sent out photos of Vanessa Hudgens sans clothing without her okay and now, several websites have posted the photos on their websites.

What Vanessa Hudgens Has Done About This So Far: State and Federal Criminal Investigations

Vanessa Hudgens obviously believes she has been, and continues to be, harmed by this. She's gone to local police.

Today, there are news reports that Vanessa Hudgens is also talking with the Federal Bureau of Investigation about the leaked nude pix.

Which means that Vanessa Hudgens has opened the door to both state and federal criminal laws and statutes applying to her situation. Law enforcement authorities for both the state where the crime allegedly occured (presumably California according to the news reports) as well as for the federal government will be actively involved in determining what has happened here.

If state or federal laws have been violated, then the person believed to have violated these laws will be arrested, charged, and if convicted, forced to pay monetary fines and/or serve jail time.

None of which provides justice to Vanessa Hudgens for the harm that she may have experienced because of these bad acts.

What Vanessa Hudgens Can Do In the Future: Personal Injury Civil Suit.

Crime victims often suffer severe personal injury as a result of the criminal acts committed against them. Sometimes these are physical injuries. Sometimes they are emotional ones. In many cases, they are economic harms.

Here, Vanessa Hudgens may argue that she has been detrimentally impacted by the release of these photos in a permanent way insofar as her professional career.

With her background as a Disney star, release of compromising nude photos may be argued to have injured her career-wise. The criminal investigations and prosecutions will do nothing to rectify that injustice.

Personal injury lawsuits, based on any number of torts, are often filed by victims of crime in order to obtain personal justice for the sufferings the victims have indured. Civil cases can proceed at the same time as criminal cases do, and in civil cases the burden of proof will be lessen stringent than the prosecutor will have to meet.

Personal injury evidence must prove the plaintiff's case by a "preponderance of the evidence" standard, which basically means "more likely than not." It is more likely than not that the defendant's actions harmed the plaintiff in the amount of X dollars.

In criminal matters, the state attorney must meet the "beyond a reasonable doubt" standard: it is an almost certainty that the defendant committed the crime.

It is only through the personal injury civil lawsuit that a victim of wrongdoing can obtain monetary justice for the real damage that they have suffered at the hands of the wrongdoer, where the courts can and will force that wrongdoer to pay money to the victim to repair, at least in part, the harm that they have caused.

Whether or not Vanessa Hudgens, the star of Disney's High School Musical series, sues for personal injuries remains to be seen. Legally, it's an avenue open to her and her legal counsel to consider and pursue in the coming months.

By Bryant Esquenazi on March 17, 2011 12:15 PM

Charlie Sheen Sues for $100,000,000: But What About the Arbitration Clause in His Employment Contract?

Charlie Sheen has officially filed a lawsuit against a number of defendants regarding the controversy over his CBS TV series Two and a Half Men, and you can read the entire pleading here on TMZ.com.

So, what does this mean in view of the arbitration clause that is contained in his contract?

As discussed in an earlier post, there was an agreed-upon arbitration clause in the contract Charlie Sheen signed regarding the show as referenced in the Warner Bros' lawyers' letter responding to Sheen's initial written demands.

While the contract has not been made available, it's probably safe to assume that it exists, since it was quoted by Warner Brother's counsel (as shown in the earlier post).

That doesn't mean it's written in stone, though.

You may find an arbitration clause in the contract you have for your cellular phone service, or in your new car loan, or in your checking account agreement. Buy any major appliance and check the language in the sales agreement: odds are high that there will be language in there about arbitrating any dispute that arises from the deal.

Doesn't mean that you can't fight that arbitration provision. Many have. Many do.

Just last year, for example, a Florida court nixed an arbitration clause in an employment agreement involving Carnival Cruise Lines (Carnival Corporation), where the agreement stated:

"any and all disputes arising out of or in connection with this Agreement, including any question regarding its existence, validity, or termination, or Seafarer's service on the vessel, shall be referred to and finally resolved by arbitration."

In this Florida case, the employee committed suicide while on board the cruise ship, and the personal representative of his estate sued Carnival for negligence. Carnival asserted that the case had to be arbitrated. The Florida federal judge ruled that this contract provision (above) was null and void because it violates language found in the Jones Act. Result? No arbitration. (See Ruiz v. Carvinal Corporation)

The Fight On Where the Battleground Will Be

Now that Sheen has filed a lawsuit, doesn't mean that arbitration won't be the result. A "motion to compel arbitration" can be filed, for example, and then the lawsuit goes into limbo and the fighting moves to the arbitration forum if the motion is granted.

Of note: not all of Sheen's lawsuit involves that contract, though. He's got allegations against parties that may not be a party to the agreement -- and he's alleging tortious conduct that involves activity outside of the contract. Personal injuries that he and others have sustained as a result of the bad acts of another, which Sheen can argue are outside the scope of the contract provision.

Charlie Sheen is educating lots of people through his example, in more ways than one.

Charlie Sheen may be suffering from mental illness. Charlie Sheen may be addicted to any one or more substances. However, one thing is obvious: Charlie Sheen has worked well with his legal counsel, as all clients are smart to do, and together, a solid (and yes, perhaps #winning) strategy is revealing itself to all of us.

It's very clear that CBS and Warner Brothers, et al., have a big legal fight on their hands.

By Bryant Esquenazi on March 10, 2011 2:12 PM