Expertly Speaking

Double Counting 1 of 2: Household Chores… Done Remotely

Irina Balashova, CPA, CIA, CFE, Economic Consultant ::::

When assessing economic losses, be aware of the potential double counting of damages, utilizing different categories of loss.

Case Synopsis: A traveling agent was injured in an MVA. Prior to the injury, the plaintiff spent the majority of her time away from home, as her service area spanned across multiple states. She purchased a home in an area that would reduce commuting time. She returned home sporadically, staying there approximately seven days a month. Her economic claims were for both loss of income and loss of household services.

Expert Analysis: The claim for lost earnings was based on traveling agent’s ability to succeed in her work, which required extensive traveling. This requirement was a necessity in order to generate income. Her workweek was much longer than normal 40 hours, 70 to 80 hours on average. She also routinely stayed overnight away from home. A loss of household services claim, at a minimum, requires the plaintiff’s consistent presence at home when not working.

The facts of the case essentially contradicted each other and thus, only one of the two claims could be supported. The case facts show that the loss of household services claim lacks merit. The plaintiff appeared to be focused on building her career, which was evident from her steadily increasing annual earnings and the fact that she received bonuses and positive appraisals. From a household services perspective, plaintiff’s husband testified there was no, or limited, involvement from her related to performing household services.
Even though there are statistics showing the average time people in various stages of their life commit to household services, the case specific facts here showed otherwise. Having proper documentation on hand as well as relevant testimony, can make it easier to rebut any unreasonable claims. Having your economic expert involved early to advise/assist in discovery and request relevant documents and testimony can help resolve these claims.

Result: case was settled with no amount for double claim.

Irina Balashova, CPA, CIA, CFE, is an Economic Consultant with DJS Associates, and can be reached via email at or via phone at 215-659-2010.

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Car backing up

New Regulations for Back-Up Cameras

Leslie E. Lovre, Technical Assistant :::::

Federal regulators call them backover events; those heartbreaking accidents, often involving small children, wherein a rearward-moving vehicle strikes and often injures, sometimes fatally, someone standing in or crossing its path. For many years, Federal Motor Vehicle Safety Standards (FMVSS) have required rear and side-view mirrors to, in part, help minimize such incidents; yet, studies show that nearly 300 fatalities, and over 18,000 injuries, occur annually due to backover events. In apparent recognition of this risk, some auto manufacturers have begun equipping vehicles with back-up cameras and dash-mounted displays; in fact, all vehicles weighing 10,000 pounds or less will soon be required to have them.

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Shortcomings Lead to Defective Design

R. Scott King, BSME, Principal Mechanical Engineer ::::

A vehicle operator was injured when his vehicle collided with a landscaping equipment trailer that had separated from its towing vehicle. He subsequently brought suit against the landscaping company, as well as the trailer manufacturer and its distributor alleging defective trailer design, maintenance and repairs.

The discovery data produced in this case revealed that the trailer manufacturer previously experienced numerous other failures similar to the one that resulted in the subject incident, and had taken certain measures to notify other owners of the risk potential, and to remedy the defect. However, a study of those measures revealed significant shortcomings both in terms of the design remedy as well as the manner in which the manufacturer sought to communicate the condition. In particular, engineers working on behalf of the landscaping company were especially critical of prioritizing efforts to improve the safety-chains, components that were designed to keep an otherwise detached trailer connected to the towing vehicle, above efforts to remedy the underlying design defect that allowed the trailer to separate. They also found historical records within the National Highway Traffic Safety Administration database demonstrating that this same manufacturer had experienced numerous, identical failures as occurred in the subject case nearly 30 years earlier, but did nothing to remedy the condition or prevent it from occurring again. Perhaps most egregious, was the fact that the manufacturer continued to sell the defective equipment to unsuspecting owners, like the defendant landscape company, and provided inadequate inspection and maintenance criteria to them that would have mitigated the risk of trailer separation.

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Nighttime Photography in Collision Reconstruction

Smarter Cars, Brighter Roads

Robert T. Lynch, PE, Senior Mechanical Engineer ::::

To mitigate pedestrian collisions, automobile manufacturers, such as Toyota, have started to install autonomous tech, including pedestrian detection systems and automatic high beams, as standard equipment across all models. With new high-intensity, energy-efficient street lighting technology coming down in price as well as maintenance and operational costs, more and more municipalities are adding street lights along their roadways, especially in areas with high pedestrian traffic.

Properly positioned street lighting makes a roadway safer for pedestrians, but it also presents an added challenge to the reconstructionist attempting to evaluate what the lighting conditions were at the time of the subject incident. DJS Associates was recently retained to conduct a nighttime site inspection with the hope of acquiring representative photographs to show how dark/bright the roadway was under similar conditions as the time of the subject incident. To our surprise, multiple street lights were added along the opposite side of the roadway between the incident and the inspection. The conditions were not substantially similar to those at the time of the incident, so nighttime photographs would have provided little to no benefit to the reconstruction.

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Seeing Yellow

Johann F. Szautner, PE, Civil Engineer ::::

We all know the meaning of “seeing red”, often associated with a state of heightened emotion when the blood pressure rises, and we become angry; like the bull when the matador teases him with a red cape to charge to his demise. However, if you are in anyway involved with analyzing personal injury accidents happening on roadways, on the grounds of facilities, institutions, or shopping centers, then you may get irritated by seeing yellow, the universal color of caution warnings, because of its counterproductive overuse negating its effect in situations where such warning is warranted.

Case synopsis: On a sunny summer day, the plaintiff, a shopper at a local supermarket, walked towards the store’s entrance. Access is by means of a ramp leading from the parking lot pavement to the sidewalk and front doors. The ramp configuration facilitates easy ingress and egress with shopping carts, and for people with disabilities (ADA). The ramp has a generous width of 16 feet between the flared end sections. Nevertheless, this shopper decided to step up on the sidewalk over the sloped curb section at the end of the ramp, but did not lift the right foot sufficiently, and tripped over the curb, landing on the concrete sidewalk, and sustaining multiple injuries. The complaint alleged that the shopper did not see the height of the curb, because it was not painted yellow.

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Public Playground Equipment

Alan R. Caskey, Ph.D., Parks and Recreation Consultant ::::

Playground injury litigation is about to get more difficult, i.e. finding additional defendants. The American Society of Testing Materials is in the process of approving new requirements for ASTM 1487-17 (Title of Standard, Standard Consumer Safety Performance Specification for Playground Equipment for Public Use) Section 11: Installation.

The new ASTM standard reads:

11.2 Owner’s/Operator’s responsibilities:

11.2.1 The owner/operator or their designated representative shall follow the designer’s and manufacturer’s instructions and procedures to install all play structures and impact attenuating surfacing in accordance with appropriate standard specification and accessibility where applicable.

11.2.2 Prior to the playground’s first use, the owner/operator shall obtain written verification from a qualified person that the playground equipment and impact attenuating surfacing have been installed in accordance with the requirements of 11.2.1.

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