Abbott Law Blog

Bonnie Anderson was recently awarded $7,000,000 as personal injury compensation after developing malignant peritoneal mesothelioma as a result of being exposed to asbestos.  The asbestos came from an Exxon refi

What is unusual about this case is that Bonnie did not work for Exxon.  Instead, her husband worked there.  Bonnie was exposed to asbestos when she did her husband’s laundry.  Before placing the laundry in the washing machine, she often shook out the laundry, unkowningly causing the asbestos dust to go into the air and then be inhaled by her.  Another interesting thing about this case is that after the first trial, the jury awarded only $100,000.  The judge thought this was too low and held a second trial on the issue of damages.

The court of appeals published a decision today clarifying the reach of liability in negligence cases.

A Ryder truck was taken to a repair shop to have the brakes worked on.  During the course of working on the brakes, the shop made a mistake that allowed brake fluid to slowly leak.  No one noticed the leak and the Ryder truck left the shop.  As a result of the slow leak, the Emergency Brake began to slowly engage until the truck wouldn’t move.  A tow truck was called.

When the tow truck arrived, the tow truck driver realized that the drive train was under tension.  In order to tow the truck, he had to release the tension.  In doing that, he was killed.

While this is a very unusual, and even a freak, accident, the law does provide a remedy.  Normally, people are only liable for harms that they could foresee.  In this case, the shop owner claimed that leaving a leaky brake line might foreseeably harm someone driving the Ryder truck, or even someone who was hit by the truck, it wasn’t foreseeable that  a tow truck driver could be killed.

The court disagreed. While the exact mechanism of injury might not have been foreseeable, most people understand that a leaky brake line will likely result in injury to someone, even someone coming to rescue a broken down vehicle.  Therefore, the shop is liable.

John Flynn passed away on April 11, 2010.  John was a professor at the University of Utah law school for 42 years.  His students loved him.

Richard Burke, one of his law students, had this to say about Professor Flynn:

“I dreamed of being a lawyer since I was 8 years old.  But when I finally got to law school, I began to have second thoughts about my life’s dream.  I was shocked to discover that many students were there as a means to an end, with little or no regard for “justice” or the American legal system – the very reason I was there.  To them, the law was just a meal ticket, and that disgusted me.  As if that were not bad enough, my professors’ (apparent) collective indifference to this state of affairs (or so it seemed at the time) was doubly depressing.  Then someone persuaded me to sign up for Jurisprudence, with Professor Flynn.

It was a revelation, because he obviously cared about why he was there and why we were there.  He looked us in the eye, challenged us, and cared about the quality of our responses, and how we came to them; he was never satisfied with merely giving the correct answer.  Professor Flynn also shared his thoughts about the pending rate cases with us students, and asked us our opinions, brainstorming with us as if we were equals.  It was astounding: Here was a man who could have made boatloads of money as a corporate lawyer, but he chose to devote his many talents to the thankless task of educating and inspiring fresh crops of new lawyers.   He cared about justice, and showed his devotion not only by championing the public good in rate cases, but also by his insistence that his students were prepared to think and reason as lawyers in our justice system.  He inspired me, helped me to remember why I chose this path, and through his example of quiet confidence, let me know it was okay to think differently than my classmates.  I took every class he offered.

John Flynn had a superb legal mind, but I will remember him mostly for his humanity and grace.”

Even those who never studied under Professor Flynn have reason to be grateful.  In the early 1990’s Professor Flynn took on US West and the Utah Public Service Commission.  As the telephone utility for Utah, US West had a monopoly and could charge exorbitant rates to Utah consumers.  The legislature formed the Public Service Commission to “keep an eye” on US West.  The Public Service Commission had the legal authority to regulate the rates that US West could charge.

Professor Flynn, as a private attorney, took on US West and the Public Service Commission.  He contended that they colluded to charge too much money.  The case was hard fought, going the Utah Supreme Court twice.  Ultimately, the courts sided with Professor Flynn.  The Utah Supreme said, “the history of USWC’s unprecedented overearnings for a number of years indicates an extraordinary abdication by the Commission of its statutory duties . . . . Notwithstanding that history, the Commission was apparently content to continue allowing exorbitant earnings . . . . The record in this case and the history of prior proceedings give rise to grave concerns about the integrity of the Commission’s regulation of USWC’s rates and practices and why the regulatory process has been abused.”

In the end, Professor Flynn succeded in forcing USWest to refund almost $4,000,000 to the people of the State of Utah.

One of the more controversial aspects of the decision was the award of attorney fees.  Professor Flynn argued that the ATtorney General should have taken on this case.  Since the Attorney General instead chose to fight the case, Professor Flynn asked that USWest pay his attorneys fees.  The court agreed, reasoning that Professor Flynn had brought almost $4,000,000 in benefits to the State of Utah and an award of attorneys fees would encourage these types of lawsuits in the future.  The court limited attorney fees in these cases to a reasonable amount and only in cases where a significant societal interest was vindicated.  After all, who wouldn’t want someone to take on a utility that overcharged consumers almost $4,00,000 with the implict consent of a corrupt Public Service Commission.

To answer that question, jump forward to 2009.  Stephen H. Urquhart is a member of the Utah legislature.  He also represents large corporations. His clients oppose the award of attorneys fees in these cases because it gives incentives to people to bring lawsuits to force large corporations to obey the law.  He sponsored a senate bill that would do away with attorneys fees in these cases.  It passed and is now Utah law.

We all have Professor Flynn to thank for forcing USWest not to overcharge us.  We all have Stephen Urquhart and the Utah legislature to thank for discouraging others from following in Professor Flynn’s footsteps.

The courts long ago realized that it was difficult, if not impossible, to hold foreign manufacturers liable for making defective products.  The difficulty arises from the fact that many foreign manufacturers are from countries with archaic and corrupt legal systems.  To fix the problem, U.S. Courts told retailers that if they imported foreign products they would be required to stand behind those products.

To adapt to that law, American retailers purchased insurance.  The insurance would pay any claims against the retailer due to injuries resulting from defective foreign products.  The insurance companies would often investigage the foreign manufacture and take measures to ensure that products were made so as not to injure consumers.

The Utah legislature turned that law on its head.  The Utah legislature passed a statute that gave retailers immunity in most product liability cases.  The legislature made a big mistake.  Over the past few years, chineses manufacturers have made baby formula with melamine in it, drywall that emits sulfur, toys with lead paint and most recently children’s jewelry with cadmium (a poisonous substance).

Now, more than ever, American consumers need protection from foreign products that are manufactured in a way that makes them dangerous.  The Utah legislature should repeal the law and again require retailers to deal with reputable manufacturers.

Ford Motor company has announced that it is expanding its recall of certain Ford vehicles that have a faulty cruise control switch that can cause a fire.  This is the largest vehicle recall ever.  The recent expansion adds about 4.5 million vehicles to the recall.  Over 14 million vehicles have now been recalled.

The switches were sold by Texas Instruments to Ford for about $21.  They were installed in about 16 million vehicles.  Ford finally stopped using them in 2003.  The faulty switch has caused at least 550 vehicle fires.  In some cases, significant property damage has also occurred.  Vehicles parked in garages pose a significant risk to fire damage to an entire structure.

The vehicles covered by the recall include:

The recall appears to be under inclusive.  The switch, or a similar switch, was installed in 16 million vehicles.  Ford has recalled only 14 million.  This means that millions of vehicles may remain on the road and pose a significant fire risk.

Abbott & Associates is now accepting cases in which significant property damage or personal injury has been caused by a vehicle fire.  Call or click for a free consultation.

Today’s newspaper carried an article about Chinese drywall in the Southeast United States.  Apparently, the drywall was installed when homebuilders decided they could get it cheaper than domestic drywall.  Now it turns out the drywall emits toxic fumes that are damages the homes themselves, and perhaps even the residents.

We are lucky this didn’t happen in Utah.  Many members of our Utah legislature are too eager to be swayed by lobbyists and give in on tort reform issues.  In the past few years, our legislature has limted the rights of homeowners to sue builders for defects in construction materials and techniques.  Our legislature has also limited our ability to hold someone accountable when defective products are shipped in from overseas.

While those measures may win legislators campaign contributions, they only make our society more dangerous.  We end up in a situation where the reputable builders are forced out of business by price undercutting made possible by shoddy workmanship and materials.

It is now time for our legislators to hold true to the ideals our civil justice system has embraced for centuries.  We must protect our right to trial by jury and hold people and businesses responsible when the hurt others.

Utah has long lagged behind other states in holding contractors accountable for shoddy construction.  The Utah Supreme Court took an important step today in bringing Utah in line with the rest of the nation.  Today, the Utah Supreme Court held that all builders owe an implied warranty to purchasers.  The warranty only applies if certain specific conditions are met.  First, the injured party must have been in a contractual relationship with the seller.  Second, the building must be a new residence.  Third, the construction defect must be difficult to see (ie. hidden defect).  Fourth, the defect must have been found only after closing.  Fifth, the defect must have been caused by improper design, materials or workmanship.  Sixth, the defect must create a safety issue or make the residence unfit for human habitation.

As you can see, these specific requirements limt this new laws application.  Few real estate construction defects will meet all of these requirements.  To win in court, all requirements must be met.

Even so, this is an important step forward in protecting purchases of new residential construction.  Without a law like this, reputable builders are put at a disadvantage.  Utah has many reputable builders.  Unfortunately, those builders are too often squeezed out of business by builders who are willing to cut corners and save a few bucks.  Contractors who cut corners can bid a lower price.  This makes them more competitive.  Fortunately, the Utah Supreme Court chose to squeeze bad builders today.  If a builder decides to cut corners, the builder will sometimes be held accountable.

If you believe that you have a case that meets the above requirements, please call or click for a free initial consulation.

We are Utah personal injury attorneys and we are accepting cases for personal injury victims who have been injured in a Yamaha Rhino rollover and cases for family members who have been killed in a Yamaha Rhino rollover. Typical injuries include broken or crushed feet, ankles, hands and arms. Other injuries may occur, including death.

The Yamaha Rhino is a four wheel vehicle in which the driver and passenger sit side by side. Because of a defective design, the Yamaha Rhino tends to roll over too easily. The Consumer Product Safety Commission has founds incidents in which the Rhino has rolled over at relatively low speeds on level ground. When the Rhino rolls over, an occupants head, torso, arms or legs may be thrown from the vehicle resulting in severe injuries and even death.

On March 31, 2009 the U.S. Consumer product safety commission announced a repair program for Rhino model numbers 450, 660 and 700.. Under the program, Yamaha will make several repairs to the Rhino to improve its stability and to help keep an occupant’s arms and legs inside the vehicle. Rhino owners should not use their Rhino until the repairs are made.

If you or a loved one has been injured or killed in a Yamaha Rhino rollover, please contact us for a free consultation. The law entitles you to benefits for medical expenses, funeral expenses, lost income and pain and suffering. We will make the claim against Yamaha for you and file a lawsuit, if necessary, to preserve your legal rights. Contact us now for a free case evaluation.