Montana Injury Law Blog

Paull v. Park County – 2009 MT 321

As a general rule, contractors are not liable (financially responsible) for the torts of a subcontractor. Under Montana law, there are three exceptions to this rule which include: 1) where there is a nondelegable duty based on contract; 2) where the activity is inherently or intrinsically dangerous; and 3) where the general contractor negligently exercises a reserved right of control over a subcontractor’s work. The second exception, which was at issue in this case, only applies to torts which arise from the unreasonable risks caused by engaging in that activity. The Montana Supreme Court has ruled that a contractor “is vicariously liable for injuries to others caused by a subcontractor’s failure to take precautions to reduce the unreasonable risks associated with engaging in an inherently dangerous activity.” Beckman v. Butte-Silver Bow County, 2000 MT 112, ¶ 22.

Paull argued that transporting prisoners is an inherently dangerous activity and, therefore, because Park County had hired a company to transport him, the County was liable for the torts of the transportation company. The Montana Supreme Court agreed and ruled that “a county or other governmental entity that contracts to have prisoners transported may be held vicariously liable for injuries caused by an independent contractor that provides prisoner transport services.” Paull, ¶ 22.

Likewise, Paull argued that the State of Montana, a co-defendant in the case, owed him a duty of ordinary care. The State attempted to avoid the issue by claiming that it only had a duty to prisoners in actual custody. The Montana Supreme Court disagreed, saying that “Paull was under State authority and supervision” during his trip from Florida to Montana. Paull, ¶ 36. The Court held that “the State had a duty to exercise ordinary care in returning Paull to Montana to answer its probation revocation proceeding. This does not mean that the State may not use a private contractor or other means to transport prisoners like Paull. It does not mean that the State is strictly liable for any injury that results from prisoner transportation regardless of fault. It does mean, however, that if the State chooses to transport prisoners by allowing other entities to do the work, it may be held liable for the tortious acts or omissions of its agents undertaking the transportation.” Paull, ¶ 38.

In this case, the private company Park County had hired to transport Paull from Florida went out of business and dissolved shortly after the accident which injured Paull and killed the driver of the van he was traveling in. The company was not bonded and no assets were left. If the State nor County were vicariously liable for Paull’s injuries, there would be no one to answer for the harm he had suffered.

Scott Zeilinski came into Nick’s Short Shop Party Store in Detroit wearing a mask and waiving a knife around, which he reportedly held to the employees’ throats while threatening to kill them. After taking cash and cigarettes, he started to exit the store still making threats. One of the clerks grabbed a gun and shot Zeilinski twice.

Zeilinski, who is currently serving an 8 to 22 year sentence, has filed a suit demanding upwards of $125,000 for his pain, suffering, and emotional distress. This is the sort of person who gives personal injury plaintiffs a bad name. The vast majority of victims who file accident claims are honest people who have been injured by someone else and suffered a loss because of it. My job, as a Montana Injury Lawyer, is to help those people get back what they’ve lost. One of the toughest hurdles in my job is overcoming the public perception that many injury plaintiffs are just like Mr. Zeilinski. Luckily, most of us know someone who has been injured by a careless driver in a car accident, or seriously injured because of someone else’s negligence. And we know that everyone who gets hurt isn’t like Mr. Zeilinski.

You can read the original article about Mr. Zeilinski here.

The term “wrongful death” usually refers to a legal claim because of an accidental death caused by someone else’s carelessness or negligence. Some examples are:

• auto, truck, boat, and bicycle deaths caused by negligent, careless, inattentive, speeding, and drunk drivers
• drowning
• pedestrian deaths
• construction accidents and OSHA violations
• defective and dangerous products

This is by no means an exhaustive list, but provided to give you an idea of some cases where a wrongful death occurs. If the death was caused by the negligence of another person, entity, or company, a wrongful death lawsuit may provide a path to justice – and practical help for those left behind.

Lawsuits for wrongful death can be very complex, especially when the actions of multiple parties contributed to a person’s death. It is impossible to “put a number” on the value of a lost life. But giving financial compensation for the loss that the death has caused is the only practical remedy that civil courts have. Calculating recoverable expenses is a complicated and complex process, but some examples of included costs are:

• How much did the victim earn?
• How financially dependent were the survivors on the victim?
• Health
• Life expectancy
• Funeral Costs
• Medical Expenses

A wrongful death lawsuit is meant to compensate the surviving family members, not necessarily punish the responsible party. Punitive damages may be available, but only in certain circumstances. As with all issues related to an injury you or a family member has sustained because of another person’s actions, the best approach is always to talk with an attorney before making any decisions.

Social media sites like Facebook, MySpace, Linked In, or Twitter provide a new and fun way to stay in touch with friends and family. But have you ever thought about who else might be looking? By default, the information you post on these sites may be accessible by people you never imagined. If you are involved in a personal injury action, you must remember that your profiles, even if private or restricted, could be accessed.  And, most importantly, that information could be used against you.

As a Montana personal injury attorney, I always warn my clients that they could be followed by an investigator or video taped outside their home. But equally important is to think before you Tweet (or update your status of Facebook, etc.). By assuming false identities online, some insurance investigators have “friended” plaintiffs in order to get access to personal information.

The point of this post is not to help dishonest people succeed in injury claims.  Frankly, I want nothing to do with cases like that.  But, I think most of my clients, folks with real and serious injuries, would like to know just what they’re exposing in cyberspace.  And who might be looking.

This post was inspired by Social Networks and Personal Injury Suits.

A contingency fee is an arrangement where your lawyer only earns his fee if a certain event occurs.  In injury cases, this generally means that your lawyer only gets paid if he recovers money on your behalf.  Usually, the fee is a percentage of the amount recovered – often 33 ⅓% of the net sum recovered.

Note that I said net sum recovered.  This means that the expenses and disbursements that the lawyer advanced for the case are deducted “off the top” and repaid back to the lawyer before his fee is calculated.

Always  ask for a complete explanation of how an attorney’s legal fee arrangement works before you agree to any representation.  It should be spelled out in the retainer agreement, but if it’s missing, or you’re unclear about how it works ask for more information.

And unfortunately, it’s always a good idea to double check your attorney’s math at the end of the case.  Make sure that you get everything you’re entitled to.

Despite the fact that I earn my living as an accident attorney in Montana, I often tell potential clients that not every accident case is best resolved by hiring a lawyer.  But before you can make that decision, you need to be properly informed.  You need to be able to protect your rights.  The sad fact is that insurance companies love it when you don’t know your rights.  It makes their job much easier.  So always get informed before you make any decision.

So when does an accident claim not need a lawyer?  In a small accident, with minor damage to your vehicle and little damage to yourself it may not be worth it to get a lawyer involved.  By the time you pay for costs and attorneys’ fees, there’s little to no money left for you.  I never want that outcome.  So in situations like that, it may make the most sense to handle the claim yourself.

But, I recently read about a study which found that accident victims represented by an attorney recover, on average, 300% more than people who were not.  So even after my standard 1/3 attorney’s fee, you still take home twice as much as you would have otherwise.  That’s a serious advantage.

So, if you’ve been injured in an accident in Montana, the best advice I can offer is to schedule a free consultation with me, or another injury lawyer, so that we can educate you.  Because knowledge is power.  And when you’re going up against an insurance company, you need all the power you can get.